The University of Michigan Cases: Unraveling the Confusion

1. The University of Michigan Cases:Unraveling the Confusion Maya R. Kobersy Assistant General Counsel The University of Michigan (March 24, 2006)

2. The Cases • Gratz v. Bollinger– challenge to UM’s undergraduate admissions policies • Grutter v. Bollinger – challenge to UM’s law school admissions policies

3. The Cases – Questions Presented • Whether diversity is a compelling interest in the context of university admissions • How to determine whether an admissions program is narrowly tailored to meet that interest

4. The Decisions – Guiding Principles • “Context matters” when evaluating governmental use of race • Race still matters in American society • Courts traditionally defer to the good-faith judgments of educational institutions

5. The Decisions – Diversity • Pursuit of diversity is compelling interest • Diversity provides educational benefits for all students • Promotion of learning outcomes • Improvement in “cross-racial understanding” and disintegration of racial stereotypes • Better preparation for increasingly diverse workforce and society • Court relied heavily on social science research and amicus briefs • Court upheld Justice Powell’s reasoning in Regents of the University of California v. Bakke (1978)

6. The Decisions – Narrow Tailoring • Use of race must: • Be flexible • No quotas or separate admissions tracks • Race can be “plus” factor in context of individualized, holistic review • Can seek “critical mass” of underrepresented minority students • Not unduly harm any racial group • Be limited in time • Periodic review • Sunset provision

7. The Decisions – Narrow Tailoring (continued) • Institution must consider race-neutral alternatives • Requires “serious, good faith” consideration, not exhaustion of all conceivable options • But, institution need not choose between excellence and diversity

8. The Decisions – Narrow Tailoring Holdings • Law school admissions policy was narrowly tailored • Highly individualized, holistic review • Range of diversity factors • Undergraduate admissions policy was not narrowly tailored • Mechanical consideration of race, along with other diversity factors • Race decisive for “virtually every minimally qualified underrepresented minority applicant” • Administrative burden/challenges ≠ justification

9. Implications • Admissions • Scholarships and Financial Aid • Educational Outreach and Recruitment • Supplier Diversity • K-12

10. Admissions • Questions to consider include: • Is race/ethnicity a factor? Should it be? • If so, for what purpose? • Articulated? • Related to institutional purposes/objectives? • Is race considered in an individualized, holistic manner? • Range of factors (including diversity factors)? • Critical mass vs. specific targets? • Is use of race periodically reviewed?

11. Admissions (continued) • Example: University of Michigan Undergraduate Admissions • Previously, point system (150 total) • Academic criteria foremost (110 points) • Underrepresented minorities (20 points) • Many other diversity factors (geography, special skills and talents, socioeconomic status, athletics, alumni connections, etc.) • Now, holistic review • Multiple reads of all applications • Increased emphasis on applicant essays • Additional opportunities to learn about an applicant’s background, including with respect to socioeconomic status, family income, household size, single-parent status, first-generation-college status, etc.

12. Admissions (continued) • Example: University of Texas-Austin • Previously, could not consider race under Hopwood v. Texas • Now, race/ethnicity as factor • “Special circumstances” might give “clearer picture of . . . applicant’s qualifications” • In addition to race/ethnicity, “special circumstances” include cultural background, socioeconomic status, overcoming adversity, language spoken at home, single-parent home, family responsibilities, etc.

13. Scholarships and Financial Aid • Consider 1994 Department of Education Guidance • Questions to consider include: • Does institution fund? • Does institution administer or significantly assist? • If so, strict scrutiny applies (even if privately funded) • Is race/ethnicity a factor? How/To what extent? • If a factor, for what purpose? • How does program relate to: • Institutional mission? • Other institutional programs (admissions, etc.)? • Institution’s overall financial aid program? • Is use of race periodically reviewed?

14. Scholarships and Financial Aid (continued) • Example: Southern Illinois University • Department of Justice challenged, under Title VII, three fellowship programs for minorities and/or women • SIU agreed to consent decree • Immediate end to any race, national origin, or sex set-asides or restrictions in paid fellowship positions • Prohibition of limitations based on race, national origin, or sex in recruitment or advertisements for paid fellowships

15. Scholarships and Financial Aid (continued) • Example: St. Louis University • Previously, Ernest A. Calloway Jr. Scholarship • 30 scholarships of $11,000/year • Eligibility limited to African American students • Now, Martin Luther King Jr. Scholarship • Up to 100 scholarships of $8,000/year • Open to any students “who demonstrate leadership potential for promoting Dr. King’s dream of a diverse but unified America” • University reportedly still expects a significant share of the recipients will be African American

16. Educational Outreach and Recruitment • Questions to consider include: • Is race/ethnicity a factor? How/To what extent? • If a factor, for what purpose? • How does program relate to other University programs (admissions, financial aid)? • What benefits does program participation confer? Are those benefits unique? • Are there alternatives to use of race/ethnicity as factor? What effect would alternatives have on program’s purpose and success?

17. Educational Outreach and Recruitment (continued) • Example: Harvard Business School • Summer Venture in Management Program previously limited to African American, Hispanic, and American Indian students • Eligibility expanded to include students who are: • First in their families to attend college • From families with little to no business education or experience • From colleges whose graduates do not typically attend top-tier urban universities

18. Supplier Diversity • Decisions do not directly apply • But, opinions may still provide some guidance • Definition of diversity • Flexibility in consideration of diversity factors • Role of diversity considerations in process

19. Supplier Diversity (continued) • Example: Kent State University • Describes as “natural extension of our core values, including the overall commitment to diversity in classrooms, the workplace, and residential communities” • Seeks “active and full participation of historically disadvantaged, economically and socially underutilized businesses,” with special attention to Minority- and Women-Owned Business Enterprises • Sets forth rationale for and benefits of supplier diversity • http://www.kent.edu/procurement/supplierdiversity.cfm

20. K-12 • Applicability to public elementary and secondary student assignment decisions, primarily in context of: • Transfer decisions • Magnet school assignments

21. K-12 (continued) • Example: McFarland v. Jefferson County Public Schools • Compelling interest in “integrated schools” • Educational benefits are as or more apparent in K-12 context • Not pretext for “racial balancing” • Narrowly tailored assignment process • 15%-50% African-American enrollment at each school = “quite flexible and broad target range,” not quota • No undue harm because assignment to alternative but appropriate public school ≠ denial of admission to a selective college or graduate school

22. Questions?