Summary of Federal Laws
Non-Discrimination with Respect to Students
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Title VI of the Civil Rights Act of 1964
Prohibits discrimination based on race, color or national origin at any program or activity receiving federal financial assistance. Records must be maintained on racial and ethnic composition. Grievance procedures must be adopted and published, and the college's policy on nondiscrimination must be prominently included in announcement bulletins, catalogs, and application forms. The Department of Education has interpreted Title VI as prohibiting racial harassment.
An admissions preference on the basis of religion at a private university is not considered a violation of any federal law. Title 42 U.S.C. § 2000a contains a provision prohibiting discrimination on the basis of race, color, religion or national origin in places of public accommodation. Title 42 U.S.C. § 2000c-6 allows the Attorney General to bring a civil action when an individual alleges he has been denied admission at a public university on the basis or race, color, religion, sex, or national origin. General principles of legal interpretation would dictate that the specific inclusion of a public university, and failure to mention private universities, must be given meaning. The clear meaning here is that a religious preference in admissions at private universities is not prohibited by the Civil Rights Act of 1964.A private religious educational institution may ask the applicant for admission to identify his or her religion, and may grant a preference based on that information. This is part of the First Amendment free exercise right of the religious educational institution.
An admissions preference alone would not amount to a finding that the university is pervasively sectarian, and thus ineligible for public funding. See Columbia Union College v. Clark, 159 F.3d 151 (4th Cir. 1998), cert. denied, 67 U.S.L.W. 3755 (U.S. June 14, 1999) (No. 98-1509) on remand, Columbia Union College v. Oliver, No. MJG 96-1831 (D. Md. Aug. 17, 2000). The court stated the following :
A careful reading of Roemer, Tilton and Hunt leads to the inescapable conclusion that even colleges obviously and firmly devoted to the ideals and teachings of a given religion are not necessarily "so permeated by religion that the secular side cannot be separated from the sectarian." Roemer, 426 U.S. at 759. . . . Indeed, the Supreme Court has set the bar to finding an institution of higher learning pervasively sectarian quite high. We believe that to find religion pervades a college to such a degree that religious indoctrination thoroughly dominates secular instruction, the college must in fact possess a great many of the following characteristics: mandatory student worship services; an express preference in hiring and admissions for members of the affiliated church for the purpose of deepening the religious experience or furthering religious indoctrination; academic course implemented with the primary goal of religious indoctrination; and church dominance over college affairs as illustrated by its control over the board of trustees and financial expenditures.
Columbia Union College, 159 F.3d at 163. The court also made note of the fact that the Supreme Court has never found an institution of higher education to be pervasively sectarian.
Joint Dear Colleague Letter from DOJ and DOE on Schuette v. Coalition to Defend Affirmative Action. The letter notes prior guidance documents on use of race remain in effect absent any restrictions in state law. This includes the following documents relating to postsecondary education
Joint Dear Colleague Letter from DOJ and the Dept. of Education on the Supreme Court decision in Fisher v. University of Texas, issued Sept. 27, 2013. Also issued was a Q and A on the topic. Both documents affirm IHEs continue to "have a compelling interest in achieving the educational benefits that flow from a racially and ethnically diverse student body and can lawfully pursue that interest in their admissions programs". The Q and A note the 2011 Dept. of Education/DOJ 2011 Guidance on the Voluntary Use of Race to Achieve Diversity in Postsecondary Education is still valid. There will also be a video posted of the presentation made by the Department of Justice along with release of the documents. Those who attended stated it is worth watching.
Coalition to Defend Affirmative Action v. Regents of University of Michigan, (C.A. 6th Cir.), Case Nos. 08-1387-1534, Nov. 15, 2012, Decision strking down voter referendum that had banned use of affirmative action by public colleges in Michigan. See the Chronicle article titled *Court Strikes Down Michigan's Ban on Race Conscious College Admissions*, dated Nov. 15, 2012.
Guidance of the Voluntary use of Race to Achieve Diversity in Postsecondary Education and
Joint OCR/DOJ "Dear Colleague" Letter and Guidance Documents on the Voluntary Use of Race (December 2, 2011), addressing the voluntary use of race to achieve diversity or avoid racial isolation in elementary and secondary schools, and the voluntary use of race to achieve diversity in postsecondary institutions.
Recent Case Law Under Title VI
Fisher v. University of Texas et al, brief of Respondents filed August 2012 in Supreme Court case # 11-345.
The question before the court is “Whether this Court's decisions interpreting the Equal Protection Clause of the Fourteenth Amendment, including Grutter v. Bollinger, 539 U.S. 306 (2003), permit the University of Texas at Austin's use of race in undergraduate admissions”. The American Council on Education filed an Amicus Curiae brief in support of respondents. See the SCOTUS Blog for more documents in case.
The Fifth Circuit held inter alia that a Texas state law requiring admission of students in the top ten percent of their high school graduating class is not a sufficiently race-neutral alternative under the U.S. Supreme Court decision in Grutter v. Bollinger, 539 U.S. 306 (2003), to bar the use by the respondent university of a holistic admissions procedure, that takes race into account as one factor, for the admission of students to the remaining admission slots unfilled by those admitted under the ten percent statutory formula.
Fisher v. University of Texas at Austin, No. 09-50822 (5th Cir. Court of Appeals) Jan. 18, 2011
This is an appeal from the US District Court for W. D. Texas. Two Texas residents, both non-minority students, brought a claim that they were denied admission to the flagship program at the University of Texas. They challenged on the basis of equal protection under the Fourteenth Amendment and under 42 USC §§ 1981, 1983 and 2000d et seq. The District Court granted summary judgment to the University, and the 5th Circuit upheld the Summary Judgment, finding the current practices met the test set forth in Grutter. In so holding the court used language that will be useful to universities seeking to claim judicial deference. On page 26 the court noted:
Considering UT’s admissions system in its historical context, it is evident that the efforts of the University have been studied, serious, and of high purpose, lending support to a constitutionally protected zone of discretion. That said, the use of race summons close judicial scrutiny, necessary for the nation’s slow march toward the ideal of a color-blind society, at least as far as the government
The standard of scrutiny was strict review, with due deference to "the university's educational judgment" The court presumed the university acted in good faith, and refused to adopt the stricter standard used for employment cases. The facts of the case were quite complicated, as the University employs automatic admission for the top 10% of the class, and a Grutter style holistic reviewing for the limited number of spots remaining after the majority of seats have gone to the top 10% of the class. The court criticized the Top Ten Percent Law as follows at page 45:
The Top Ten Percent Law was adopted to increase minority enrollment. That it has done, but its sweep of admissions is a polar opposite of the holistic focus upon individuals. Its internal proxies for race end-run the Supreme Court’s studied structure for the use of race in university admissions decisions.
It casts aside testing historically relied upon, admitting many top ten percent minorities with significantly lower scores than rejected minorities and nonminorities alike. That these admitted minorities are academically able to remain in the University does not respond to the reality that the Top Ten Percent Law eliminated the consideration of test scores, and correspondingly reduced academic selectivity, to produce increased enrollment of minorities. Such costs may be intrinsic to affirmative action plans. If so, Grutter at least sought to minimize those costs through narrow tailoring. The Top Ten Percent Law is anything but narrow.
Coalition to Defend Affirmative Action et al. v. Board of Regents of the University of Michigan et. al (and Cantrell v. Cox)
March 18, 2008, U.S. Dist. Court (E.D. Michigan). In this consolidated case, the court dismissed the challenge to constitutionality of the amendment to the Michigan constitution that probibits the use of affirmative action. The amendment, known as Proposal 2, prohibits the State and its political subdivisions from "discriminat[ing] against, or grant[ing] preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, ornational origin in the operation of public employment, public education, or public contracting."Mich. Const. art. I, § 26(1).See the University of Michigan diversity page tracking the litigation related to Proposal 2.
Parents Involved in Community Schools v. Seattle School District No. 1 et al, Case no. 05-908 (Supreme Court June 28th, 2007) Supreme Court case striking down race based school assignments in Seattle, Washington and Jefferson County, Kentucky. In Seattle students were classified as white or non-white and this factor was used to allocate slots in oversubscribed high schools. In Jefferson County, the students were identified as black or other, and the race of the student was used to make certain elementary school assignments and rule on other transfer requests. The Court cited Grutter v. Bollinger in holding that neither school district policy met the strict scrutiny test for race based classifications, as the compelling interest test was not met. The use of race in Seattle and Jefferson County was not as nuanced as it had been at the University of Michigan Law School.
The Court also held that the Districts had not considered race neutral alternatives, and had failed to show the race based policies were necessary to achieve the goals of the student assignment policies.
Justice Kennedy wrote a concurring opinion in which he stated the following:
- "A compelling interest exists in avoiding racial isolation, an interest that a school district, in its discretion and expertise, may choose to pursue. Likewise, a district may consider it a compelling interest to achieve a diverse student population. Race may be one component of that diversity, but other demographic factors, plus special talents and needs, should also be considered."
See the commentary on the case on the Wikipedia discourse page. See also the July 15, 2007 New York Times article Diversity Plans Based on Income Leave Some Schools Segregated.
Smith et al v. University of Washington Law School et al (No. 02-35676), 392 Fed. 3d 367; Cert denied by Smith v. University of Washington Law School, 546 US 813 (No. 04-1408)
This is the 9th Circuit opinion filed Dec. 20, 2004, holding that U.W. Law School's affirmative action program was narrowly tailored to achieve the compelling governmental interest of racial diversity. Some of the key findings made by the court were as follows:
Substantiation letter sent to applicants to ascertain whether or not an applicant's race or ethnicity should be used as a factor was fine. This letter, which asked questions about family background, country of origin, language spoken, etc. and which went only to minority applicants, did not unduly harm non-minority applicants. All applicants were given a chance to write a 700 word essay on their potential contributions to diversity.
"Asian-American" is not a homogenous group, so it was fine for the school to give a plus to this group for diversity. The court rejected the plaintiff's argument that 7-9% would have been an adequate % for Asian Americans, and noted that in a small class, 7-9% may be too small a percentage for meaningful participation. The court also pointed out that Grutter did not establish such an arbitrary cap, and further noted the educational mission of the U. Washington Law School, which has a preeminent Asian Law program.
Expedited review of minority files was ok. The court bought the Law School's reasoning that prompt admits were key when dealing with a finite group of minorities with excellent qualifications.
Gratz and Grutter Supreme Court cases
On June 23, 2003 the U.S. Supreme Court handed down its decisions in two similar cases challenging the University of Michigan's admissions standards. Grutter v. Bollinger involves the standards used by the University's Law School and Gratz v. Bollinger affects the undergraduate admissions procedures.
The issue before the Court in both cases was whether states have a "compelling interest" in promoting a diverse student body, or whether the Fourteenth Amendment's Equal Protection Clause denies giving advantages to one group over another. Once the compelling interest was found, the Court also addressed the question of whether or not the use of race was narrowly tailored to accomplish the goal.
In a 5-4 decision, the U.S. Supreme Court handed down its decision in Grutter v. Bollinger, upholding the University of Michigan's Law School admissions procedures. The holding finds that race may be among many factors colleges may look at when selecting students for admission. Justice O'Connor, delivering the opinion, stated:
"the Equal Protection Clause does not prohibit the Law School's narrowly tailored use of race in admissions decisions to further a compelling interest in obtaining the educational benefits that flow from a diverse student body."
The Law School's process consisted of an individualized review of each applicant's file, giving serious consideration to all the ways an applicant might contribute to a diverse educational environment. There is no policy of automatic acceptance or rejection based on any single 'soft' variable. Soft variables include such areas as "recommender's enthusiasm, the quality of the undergraduate institution and the applicant's essay, and the areas and difficulty of the course selection."
The process affirms the Court's 1978 holding in Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, which found a "State has a substantial interest that legitimately may be served by a properly devised admissions program involving the competitive consideration of race and ethnic origin." Id., at 320. The Law School is able to accomplish this by having a system that focuses on the benefits of diversity, yet does not define diversity in terms of racial and ethnic status. Such a definition may lead to outright racial balancing, which is unconstitutional. Instead, the program adequately ensures that all factors that may contribute to diversity are meaningfully considered alongside race.
Issued concurrently was the Supreme Court's decision regarding whether the University of Michigan's undergraduate admissions guidelines unconstitutionally discriminate against white students. Chief Justice Rehnquist's holding in Gratz v. Bollinger found,
"that because the University's use of race in its current freshman admissions policy is not narrowly tailored to achieve respondent's asserted compelling interest in diversity, the admissions policy violates the Equal Protection Clause of the Fourteenth Amendment."
At the University of Michigan, undergraduate minority applicants automatically receive a 20-point bonus on the basis of race out of a 150 point total. The system takes into account geography, alumni, essay, personal achievement, leadership and service, and several miscellaneous factors. The Court finds that the result of the automatic distribution of 20 points is that the University would never consider a student's individual background, experiences, and characteristics to assess his individual 'potential contribution to diversity, instead, every applicant receiving the 20-point bonus would simply be admitted.
Unlike the Law School's standards for admissions, the undergraduate standards are not found to be narrowly tailored by the Court. A race-conscious admissions program cannot use a quota system, meaning, it cannot insulate each category of applicants with certain desired qualifications from competition with all other applicants." Bakke, supra, at 315. A university may consider race or ethnicity only in a manner that does not make such factor decisive, and in a way which allows a highly individualized assessment concerning admission.
 Grutter v. Bollinger, 2003 U.S. LEXIS 4800 (U.S. June 23, 2003)
 Gratz v. Bollinger, 2003 U.S. LEXIS 4801 (U.S. June 23, 2003)
May 6, 2014 Dear Colleague Letter affirming use of appropriately tailored programs considering race in adminissions, post Schuette v. Coalition to Defend Affirmation Action, which held that Proposal 2, banning use of race in admissions in Michigan, could stand.
We are writing to confirm that the decision of the United States Supreme Court issued on April 22, 2014 in Schuette v. Coalition to Defend Affirmative Action, et al., leaves intact the Court’s prior holdings recognizing that institutions of higher education and elementary and secondary schools may use all legally permissible methods to achieve their diversity goals. These include, absent any restrictions in state law, appropriately tailored programs that consider the race of individual applicants as one of several factors in an individualized process to achieve the educational benefits that flow from a diverse student body.
NACUA Resource Page on Affirmative Action (password protected)
NACUANOTE: OFCCP "Internet Applicant" Data Collection and Recordkeeping Rule Feb. 6, 2007
Admissions and Diversity After Michigan: The Next Generation of Legal and Policy Issues, published by the College Board, authored by Arthur L. Coleman and Scott R. Palmer, Holland & Knight LLP.
Federal Law and Recruitment, Outreach and Retention: A Framework for Evaluating Diversity-Related Programs published by the College Board, authored by Arthur L. Coleman, Scott R. Palmer, and Femi Richards from Holland & Knight LLP. See also the College Board's Access and Diversity Collaborative. Print copies may be ordered from the College Board.
Federal Law and Financial Aid: A Framework for Evaluating Diversity-Related Programs. By Arthur L. Coleman, Scott R. Palmer, and Femi Richards from Holland & Knight LLP. This is an excellent publication that can be ordered from the College Board for $15.00 or for $5 a copy when 50 or more copies are ordered. The guide is a practical framework to help colleges and universities develop and evaluate diversity-related financial aid and scholarship policies and practices in ways that are both educationally and legally sound.
Racial Incidents and Harassment Against Students at Educational Institutions; Investigative Guidance 59 Fed. Reg. 11,448 (Mar. 10, 1994).
updated 5-7-14 to add DCL of 5-6-14