Summary: Two United States Supreme Court decisions involving the University of Michigan’s law school and undergraduate admissions policies, Grutter v. Bollinger and Gratz v. Bollinger. Three essential points emerge from these decisions.
1. The Express Use of Race In The Admissions Process Will Lead To Heightened Judicial Review of the Institution’s Policies and Practices.
Any express use of race by a college or university in the selection of its students will undergo strict scrutiny, the highest degree of constitutional review under the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution. Under strict scrutiny, any express use of race in the admissions process must be justified by a compelling interest and narrowly tailored to achieve that interest.
2. This Heightened Review Is Applicable To Both Public and Private Institutions.
While strict scrutiny generally applies only to public institutions, there are two federal statutes that extend the standard to private institutions: Title VI of the Civil Rights Act of 1964 and 42 U.S.C. 1981. Even before Grutter and Gratz, the Supreme Court held that any violation of the Fourteenth Amendment will also constitute a violation of Title VI, which applies to all educational institutions that receive federal funds. In Grutter and Gratz, the Supreme Court re-affirmed this position. Moreover, the ruling in Gratz extends 42 U.S.C. 1981, which protects against racial discrimination in the making of contracts, to the university admissions decision-making process. Thus, any educational institution can violate this statute, even a private institution that does not receive federal funding.
3. An Educational Institution’s Use Of Race In Its Admissions Process Can Survive Heightened Judicial Review If Done Properly.
Under Grutter and Gratz, a college or university’s interest in enrolling a diverse student body is compelling enough to justify the use of race under certain circumstances. Adopting the reasoning of Justice Lewis Powell in Regents of the University of California v. Bakke, the Supreme Court deferred to Michigan’s judgment that diversity, including racial diversity, was important to its mission and thus a compelling interest.
In Grutter, the Supreme Court also recognized that Michigan’s law school admissions process was narrowly tailored to achieve the school’s interest in having a diverse student body. In contrast, Michigan’s undergraduate admissions process followed a point system which mechanically awarded the same number of points to every minority student, instead of treating each applicant as an individual and weighing his or her contributions to the creation of a diverse student body. In Gratz, the Supreme Court ruled that this admissions process lacked the kind of individualized review that Justice Powell deemed essential in Bakke and that the Court considered critical in upholding the law school admissions policy.
As a result, if educational institutions wish to use race as a factor in their admissions processes in order to achieve diversity, this use will survive heightened judicial review only if (1) Race is just one of many factors considered in seeking to achieve a diverse student body, and (2) The process considers each applicant’s individual contributions to the diversity of the student body. Moreover, the institution’s use of race must be reviewed periodically to determine whether it is still necessary.