The Catholic University of America

Summary of Federal Laws

Students

Non-Discrimination with Respect to Students

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.

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. 

 

Affirmative Action and the Voluntary Use of Race

Students for Fair Admissions v. Harvard, U.S. Dist. Court (Boston), Case 1:14-cv-14176-ADB, Brief of Amici Curiae ACE and 36 other IHEs in support of Defendant's Motion to Dismiss

The issue is whether it is constitutional for Harvard to consider race, as one factor among many, in its holistic review of a student application for admission for the purpose of achieving the educational benefit of diversity on campus. Amici argue that a diverse student body is essential to the educational objectives of higher education institutions, stating that students' interactions with individuals from diverse backgrounds break down racial stereotypes and prepare students for "today's increasing global marketplace.

Updates to DOE and DOJ Guidance on Title VI (issued 7-3-18)

Stated in the update: 

The Departments have reviewed the documents and have concluded that they advocate policy preferences and positions beyond the requirements of the Constitution, Title IV, and Title VI.

Included in the withdrawn documents are the 2011 Dear Colleague Letter (DCL) regarding the Use of Race by Educational Institutions, the 2013 DCL on the Voluntary Use of Race to Achieve Diversity in Higher Education after Fisher v. University of Texas at Austin [Fisher I], and the 2016 Q & A about Fisher v. University of Texas at Austin [Fisher II].

Fisher v. University of Texas at Austin, et al. (U.S.S.Ct.) (June 23, 2016)

Sept. 9, 2015 OCR Region II Letter to Princeton University, Case No. 02-08-6002

This OCR compliance review addresses reverse discrimination claims made in 2006 by a student (the student was Jian Li-see WSJ article of Nov. 11, 2006-Is Admissions Bar Higher for Asians at Elite Schools?)  alleging discrimination on the basis of race and national origin against Asian-American applicants to the University and a 2011 complaint alleging discrimination against students of Indian descent.

OCR’s review of the university’s admissions process was made pursuant to the U.S. Supreme Court decisions in Grutter v. Bollinger, Gratz v. Bollinger, and Fisher v. University of Texas at Austin. These decisions collectively found the university must be seeking to achieve a compelling interest in a diverse student body. Princeton made this showing. In addition, race must not be the defining factor in furthering such an interest, and any use of race in admissions must be narrowly tailored.

OCR conducted a lengthy (commenced in January 2008)  review of the University’s process, with a focus on
 

  •  whether the University considered workable race-neutral alternatives;
  •  whether the admissions program provided for flexible and individualized review of applicants;
  •  whether it unduly burdened students of any racial group; and
  •  whether the consideration of race was limited in time and subject to periodic review.
  •  

The 20 page OCR letter sets out the step by step review of the Princeton University’s admissions process. Taking into account 15 years of admissions data, and an in depth review of the Class of 2010 process, OCR’s review found  that race and national origin were not used impermissibly. The use of race was flexible with no quotas, and were only minor factors among many other factors. 

The University had invested considerable time in training admissions staff, reviewing the admissions process annually, and making changes as needed over the years, with the understanding use of race is to be time limited.  A diverse student body is considered an essential aspect of mission at Princeton, and the background work had been undertaken by the University to create the necessary record to support this finding, including extensive outreach and recruitment.
 

A Policy and Legal Syllabus for Diversity Programs at Colleges and Universities, May 2015, CollegeBoard, ACE and EducationCounsel. This document identifies the issues on affirmative action/diversity initiatives, and is a syllabus of resources.

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 

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."

 

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. 



[1] Grutter v. Bollinger, 2003 U.S. LEXIS 4800 (U.S. June 23, 2003)

[2] Gratz v. Bollinger, 2003 U.S. LEXIS 4801 (U.S. June 23, 2003)

Resources and Agency Guidance

NACUANOTE: Scholarship Restrictions, by Donna Snyder and Maya Kobersy, April 20, 2017

The Playbook: A Guide to Assist Institutions of Higher Education in Evaluating Race and Ethnicity Neutral Policies in Support of the Mission-Related Diversity Goals: October 2014.

April 24, 2013 Dear Colleague Letter on Retaliation against Complainants or Participants in OCR Investigations. ***

NACUANOTES Vol. 11, No. 13 - Fisher v. University of Texas: Keeping the "Strict" in "Strict Scrutiny"

NACUANOTE: OFCCP "Internet Applicant" Data Collection and Recordkeeping Rule Feb. 6, 2007

 

 

 

 

links updated 8-27-18