Title VI of the Civil Rights Act of 1964

42 U.S.C. § 2000d; 28 C.F.R. § 42.101 et seq., 34 C.F.R. Part 100; and 45 C.F.R. Part 80.

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.  See Racial Incidents and Harassment Against Students at Educational Institutions; Investigative Guidance 59 Fed. Reg. 11,448 (Mar. 10, 1994).

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.

Selected Recent Case Law Under Title VI:

Fisher v. University of Texas at Austin, Case No 08-CV-00263, US District Court for Western District of Texas, Filed 8/17/09

On August 17, 2009  Judge Sam Sparks upheld the affirmative action admissions policies at the University of Texas at Austin, finding they were in line with the Supreme Court holding in Grutter v. Bollinger. Race is just one factor used by the university, which uses a holistic review.

This case was a claim of reverse discrimination filed by Abigail Noel Fisher and Rachel Michalewicz.

The Texas legislature voted in May to limit the number of students who could be automatically admitted to the incoming class (under the top 10% program for high school graduates) to give UT Austin more flexibility. The court sided with the attorney for the University, who stated "If the plaintiffs are right Grutter is wrong." For more see the NAACP write up of the decision and related documents.  See also the Chronicle article by Katherine Mangan, titled Federal Court Throws out Challenge to U. of Texas Admissions Policy.

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) 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 v. Bollinger et al; Plaintiffs Motion for for class certification and partial summary judgment with respect to certain damages, and supporting memorandum of law, filed with the U.S. District Court (E.D. Michigan). The motion seeks nominal damages of $1 and a refund of the admissions application fee for each member of the class previously certified by the District Court (individuals who applied for and were denied undergraduate admission to the University of Michigan from 1995 - 2003 and who were members of racial or ethnic groups treated less favorably on the basis of race). The motion also seeks certification of a sub-class of applicants plaintiffs contend may be entitled to additional compensatory damages, consisting of individuals who were rejected for admission after first receiving a letter from the university informing them that they were qualified for admission but placing them on a waiting list.

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[1] involves the standards used by the University’s Law School and Gratz v. Bollinger[2] 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.

OCR September 22, 2004 compliance determination on a complaint filed alleging hostile environment on basis of race and sex at University of North Carolina-Chapel Hill. The complaint was resolved favorably on behalf of the University.

OCR Final Guidance on Testing  (N.B.  legal effect of this document, given change in the political administration, may be subject to debate.)

On December 12, 2000, the Office of Civil Rights (OCR) of the Department of Education released the final document entitled, The Use of Tests When Making High Stakes Decisions for Students: A Resource Guide for Educators and Policy Makers. (now online only as an archived document)  The guide is intended to apply to standardized tests that are used as part of decision-making that has high-stakes consequences for individual students and that are addressed in the Standards for Educational and Psychological Testing (Joint Standards, 1999).  As issued, the guide focuses primarily on testing at the elementary and secondary level, but does have some relevance for the post-secondary level.  In the "Legal Principles" portion of the guide, it is noted:  "High-stakes testing issues at the post-secondary level generally relate to tests considered by post-secondary institutions for admissions, including tests given by an educational institution or other covered entities as prerequisites for entering a career or career path, and tests of academic competency required by the institution to complete a program."  The final document avoids the controversy caused by the first draft which called into question the use of SAT and other standardized scores in admissions at the post-secondary level.  In this document, references to the SAT and ACT are made, but more in the context of footnotes.  The guide does note that post-secondary admissions policies and practices should be derived from and clearly linked to an institution’s overarching educational goals, and the use of tests in the admissions process should serve those institutional goals.  Appendix D contains a useful compendium of federal statutes and regulations relevant to testing issues.

Resources
NACUA Resource Page on Affirmative Action (password protected)

University of Michigan Diversity Blueprints Task Force: March 15, 2007 Final Report
This is a 24 page report on how to maintain diversity despite the passage of Proposition 2 in Michigan in November 2006.

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. Per one of the authors, Art Coleman, this manual will serve two purposes: to explain what can and cannot be done,  post Grutter and Gratz, and to identify second generation issues the courts have not yet taken up.

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.

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