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

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

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

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

5. 5 The Decisions – Diversity Pursuit of diversity is compelling interest Pursuit of diversity is compelling interest –Diversity provides educational benefits for all students Promotion of learning outcomes Promotion of learning outcomes Improvement in “cross-racial understanding” and disintegration of racial stereotypes Improvement in “cross-racial understanding” and disintegration of racial stereotypes Better preparation for increasingly diverse workforce and society 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. 6 The Decisions – Narrow Tailoring Use of race must: Use of race must: –Be flexible No quotas or separate admissions tracks No quotas or separate admissions tracks Race can be “plus” factor in context of individualized, holistic review Race can be “plus” factor in context of individualized, holistic review Can seek “critical mass” of underrepresented minority students Can seek “critical mass” of underrepresented minority students –Not unduly harm any racial group –Be limited in time Periodic review Periodic review Sunset provision Sunset provision

7. 7 The Decisions – Narrow Tailoring (continued) Institution must consider race-neutral alternatives 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. 8 The Decisions – Narrow Tailoring Holdings Law school admissions policy was narrowly tailored Law school admissions policy was narrowly tailored –Highly individualized, holistic review –Range of diversity factors Undergraduate admissions policy was not narrowly tailored 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. 9 Implications Admissions Admissions Scholarships and Financial Aid Scholarships and Financial Aid Educational Outreach and Recruitment Educational Outreach and Recruitment Supplier Diversity Supplier Diversity K-12 K-12

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

11. 11 Admissions (continued) Example: University of Michigan Undergraduate Admissions 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. 12 Admissions (continued) Example: University of Texas-Austin 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. 13 Scholarships and Financial Aid Consider 1994 Department of Education Guidance Consider 1994 Department of Education Guidance Questions to consider include: Questions to consider include: –Does institution fund? –Does institution administer or significantly assist? If so, strict scrutiny applies (even if privately funded) 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? Institutional mission? Other institutional programs (admissions, etc.)? Other institutional programs (admissions, etc.)? Institution’s overall financial aid program? Institution’s overall financial aid program? –Is use of race periodically reviewed?

14. 14 Scholarships and Financial Aid (continued) Example: Southern Illinois University 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 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 Prohibition of limitations based on race, national origin, or sex in recruitment or advertisements for paid fellowships

15. 15 Scholarships and Financial Aid (continued) Example: St. Louis University Example: St. Louis University –Previously, Ernest A. Calloway Jr. Scholarship 30 scholarships of $11,000/year 30 scholarships of $11,000/year Eligibility limited to African American students Eligibility limited to African American students –Now, Martin Luther King Jr. Scholarship Up to 100 scholarships of $8,000/year 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” 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 University reportedly still expects a significant share of the recipients will be African American

16. 16 Educational Outreach and Recruitment Questions to consider include: 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. 17 Educational Outreach and Recruitment (continued) Example: Harvard Business School 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 First in their families to attend college From families with little to no business education or experience From families with little to no business education or experience From colleges whose graduates do not typically attend top-tier urban universities From colleges whose graduates do not typically attend top-tier urban universities

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

19. 19 Supplier Diversity (continued) Example: Kent State University 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 http://www.kent.edu/procurement/supplierdiversity.cfm

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

21. 21 K-12 (continued) Example: McFarland v. Jefferson County Public Schools Example: McFarland v. Jefferson County Public Schools –Compelling interest in “integrated schools” Educational benefits are as or more apparent in K-12 context Educational benefits are as or more apparent in K-12 context Not pretext for “racial balancing” 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 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 No undue harm because assignment to alternative but appropriate public school ≠ denial of admission to a selective college or graduate school

22. Questions?