Legal Update: A Review of the Latest Cases Concerning Diversity Gerard D. St. Ours Associate General Counsel The Johns Hopkins University November 1, 2007

Review: Constitutional and Statutory Limitations on Race-Conscious Action Equal Protection Clause Equal Protection Clause provides that "no State shall… deny to any person within its jurisdiction the equal protection of the laws." provides that "no State shall… deny to any person within its jurisdiction the equal protection of the laws." Title VII Title VII Prohibits discrimination in employment on the basis of race, gender, religion and national orgin Prohibits discrimination in employment on the basis of race, gender, religion and national orgin Title VI Title VI Prohibits discrimination in any program that receives federal funds Prohibits discrimination in any program that receives federal funds

Strict Scrutiny and Narrow Tailoring “It is well established that when the government distributes burdens or benefits on the basis of individual racial classifications, that action is reviewed under strict scrutiny.... ‘[R]acical classifications are simply too perniciious to permit any but the most exact connection between justification and classification.’” “It is well established that when the government distributes burdens or benefits on the basis of individual racial classifications, that action is reviewed under strict scrutiny.... ‘[R]acical classifications are simply too perniciious to permit any but the most exact connection between justification and classification.’” Parents Involved in Community Schools v. Seattle School District No. 1, 127 S.Ct. 2738, (2007). Remedial justification (remedying the effects of past intentional discrimination) Diversity

Brief Review of Grutter Supreme Court confirms that there is a compelling interest in higher education to expose students to “widely diverse people, culture, ideas and viewpoints,” and this interest permits universities to adopt narrowly tailored race conscious programs in admissions. Supreme Court confirms that there is a compelling interest in higher education to expose students to “widely diverse people, culture, ideas and viewpoints,” and this interest permits universities to adopt narrowly tailored race conscious programs in admissions.

Grutter’s Take on Diversity Supreme Court Broadly Endorsed the Benefits of Diversity Supreme Court Broadly Endorsed the Benefits of Diversity Justice O’Connor: The “benefits are not theoretical but real....”: Justice O’Connor: The “benefits are not theoretical but real....”: 1. Skills needed in today's marketplace can only be developed through exposure to widely diverse people, cultures, ideas, and viewpoints. 2. Education is the very foundation of good citizenship; diffusion of knowledge and opportunity through higher education must be accessible to all; effective participation by members of all racial and ethnic groups in the civic life of our Nation is essential if the dream of one Nation, indivisible, is to be realized.

What does “diversity” mean in Grutter? Diversity refers to a mix of diverse backgrounds, cultures and life experiences, of which race and ethnicity are only two of several factors. Other diversity factors may include geographic origin, socioeconomic background, exceptional talents, and academic and non-academic interests. Diversity refers to a mix of diverse backgrounds, cultures and life experiences, of which race and ethnicity are only two of several factors. Other diversity factors may include geographic origin, socioeconomic background, exceptional talents, and academic and non-academic interests.

Student Admissions Programs must be designed to ensure individualized review of applicants and their diversity attributes, which should include: Programs must be designed to ensure individualized review of applicants and their diversity attributes, which should include: Non-mechanical, full-file review of applicants; Non-mechanical, full-file review of applicants; Flexible review entailing consideration of “all pertinent elements of diversity in light of the particular qualifications of each applicant, and to place them on the same footing for consideration, although not necessarily according them the same weight;” and Flexible review entailing consideration of “all pertinent elements of diversity in light of the particular qualifications of each applicant, and to place them on the same footing for consideration, although not necessarily according them the same weight;” and Protection against burdens on individuals who do not benefit from the race-conscious policies. Protection against burdens on individuals who do not benefit from the race-conscious policies.

Student Admissions Race/Ethnicity as a “plus factor” Race/Ethnicity as a “plus factor” No quotas or mechanized consideration or race (Note in Gratz, the Supreme Court struck down Michigan’s undergraduate admissions program that awarded points based on race) No quotas or mechanized consideration or race (Note in Gratz, the Supreme Court struck down Michigan’s undergraduate admissions program that awarded points based on race) Universities must conduct periodic reviews of their race-conscious programs. Programs should include sunset provisions and/or require periodic reviews to determine whether racial preferences are still necessary to achieve student body diversity. Universities must conduct periodic reviews of their race-conscious programs. Programs should include sunset provisions and/or require periodic reviews to determine whether racial preferences are still necessary to achieve student body diversity.

Parents Involved in Community Schools v. Seattle School District No decision striking down race-based school assignment programs in the Seattle and Jefferson County, Kentucky school systems 5-4 decision striking down race-based school assignment programs in the Seattle and Jefferson County, Kentucky school systems Chief Justice Roberts’ Plurality opinion Chief Justice Roberts’ Plurality opinion Justice Kennedy’s concurring opinion Justice Kennedy’s concurring opinion Justice Breyer’s dissent Justice Breyer’s dissent All claim to be the true legacy of Brown v. Board’ All claim to be the true legacy of Brown v. Board’ Both Seattle and Jefferson County sought to justified their programs under a diversity rationale Both Seattle and Jefferson County sought to justified their programs under a diversity rationale

The Seattle Plan 10 public high schools; incoming freshmen can rank their preferences. For any schools that are “oversubscribed”, tiebreakers are employed. The second tiebreaker depends on the racial composition of the school and how that compares to the white/nonwhite composition of the overall school district student population. 10 public high schools; incoming freshmen can rank their preferences. For any schools that are “oversubscribed”, tiebreakers are employed. The second tiebreaker depends on the racial composition of the school and how that compares to the white/nonwhite composition of the overall school district student population. If an oversubscribed school is not within 10% of the school’s overall white/nonwhite balance, the tiebreaker would be applied to assign students whose race “will serve to bring the school into balance.” If an oversubscribed school is not within 10% of the school’s overall white/nonwhite balance, the tiebreaker would be applied to assign students whose race “will serve to bring the school into balance.”

Jefferson County Plan Jefferson County (Louisville) had been under a court order to desegregate from 1973 through After court order had been dissolved, the county adopted a student assignment plan. The plan requires that all shools maintain a minimum black enrollment of 15% (blacks make up 34% of the school district student population). Students are classified as “black” or “other”. At the elementary school level, students entering the system may submit an application indicating a first and second choice among the schools within their cluster. Decisions on assignments and certain transfer requests are based on available space within the schools and the racial guidelines. A student whose race would contribute to a school’s racial imbalance will not be assigned to the school. Jefferson County (Louisville) had been under a court order to desegregate from 1973 through After court order had been dissolved, the county adopted a student assignment plan. The plan requires that all shools maintain a minimum black enrollment of 15% (blacks make up 34% of the school district student population). Students are classified as “black” or “other”. At the elementary school level, students entering the system may submit an application indicating a first and second choice among the schools within their cluster. Decisions on assignments and certain transfer requests are based on available space within the schools and the racial guidelines. A student whose race would contribute to a school’s racial imbalance will not be assigned to the school.

Chief Justice Roberts Places Grutter in context: higher education’s interest in student body diversity Places Grutter in context: higher education’s interest in student body diversity Contrasts Grutter: Contrasts Grutter: Students not considered as individuals Students not considered as individuals Exclusive consideration of race Exclusive consideration of race Plans tied to specific racial demographics, rather than “any pedagogic concept of the level of diversity needed to obtain the asserted educational benefits.” (i.e. not narrowly tailored) Plans tied to specific racial demographics, rather than “any pedagogic concept of the level of diversity needed to obtain the asserted educational benefits.” (i.e. not narrowly tailored) Bogeyman is “racial balancing” - - the fatal flaw of both plans. Bogeyman is “racial balancing” - - the fatal flaw of both plans. Plans use of race have minimal effect on results; this suggests that non-racial means would be effective Plans use of race have minimal effect on results; this suggests that non-racial means would be effective

Justice Kennedy: The 5 th Vote Joins in the decision to strike down the Seattle and Kentucky plans, but notes: Joins in the decision to strike down the Seattle and Kentucky plans, but notes: The school systems identified a compelling diversity interest; The school systems identified a compelling diversity interest; Disagrees with the Chief Justice’s postulate that the “way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” Kennedy: “Fifty years of experience since [Brown v. Board] should teach us that the problem before us defies so easy a solution.” Disagrees with the Chief Justice’s postulate that the “way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” Kennedy: “Fifty years of experience since [Brown v. Board] should teach us that the problem before us defies so easy a solution.” Rejects notion that schools cannot address “de facto” segregation: “The decision today should not prevent school districts from continuing the important work of bringing students together of different racial, ethnic and economic backgrounds. Due to a variety of factors - - some influenced by government, some not - - neighborhoods in our communities do not reflect the diversity of our Nation as a whole. Those entrusted with directing our public schools can bring to bear the creativity of experts, parents, administrators and other concerned citizens to find a way to achieve the compelling interests they face without resorting to widesperad governmental allocation of benefits and burdens on the basis of racial classifications.” Rejects notion that schools cannot address “de facto” segregation: “The decision today should not prevent school districts from continuing the important work of bringing students together of different racial, ethnic and economic backgrounds. Due to a variety of factors - - some influenced by government, some not - - neighborhoods in our communities do not reflect the diversity of our Nation as a whole. Those entrusted with directing our public schools can bring to bear the creativity of experts, parents, administrators and other concerned citizens to find a way to achieve the compelling interests they face without resorting to widesperad governmental allocation of benefits and burdens on the basis of racial classifications.”

More from Justice Kennedy Indicates that diverse school enrollments and reduction of the potentially harmful effects of racial isolation are compelling interests. Indicates that diverse school enrollments and reduction of the potentially harmful effects of racial isolation are compelling interests. However, the programs’ blunt distinction between white/non-white (or white and “other”) do not correlate closely with advancing the goal of diversity. Further, in their design and operation, the plans had features that were imprecise and ambiguous and therefore could not withstand strict scrutiny - - a failure of narrow tailoring. However, the programs’ blunt distinction between white/non-white (or white and “other”) do not correlate closely with advancing the goal of diversity. Further, in their design and operation, the plans had features that were imprecise and ambiguous and therefore could not withstand strict scrutiny - - a failure of narrow tailoring.

Still more Kennedy! Things school boards can do, according to Justice Kennedy: Things school boards can do, according to Justice Kennedy: “School boards may pursue the goal of bringing together students of diverse backgrounds and races through other means, including strategic site selection of new schools; drawing attendance zones with general recognition of the demographics of neighborhoods; allocating resources for special programs; recruiting students and faculty in a targeted fashion; and tracking enrollments, performance, and other statistics by race. These mechanisms are race-conscious but do not lead to different treatment based on a classification that tells each student he or she is to be defined by race, so it is unlikely any of them would demand strict scrutiny to be found permissible.” “School boards may pursue the goal of bringing together students of diverse backgrounds and races through other means, including strategic site selection of new schools; drawing attendance zones with general recognition of the demographics of neighborhoods; allocating resources for special programs; recruiting students and faculty in a targeted fashion; and tracking enrollments, performance, and other statistics by race. These mechanisms are race-conscious but do not lead to different treatment based on a classification that tells each student he or she is to be defined by race, so it is unlikely any of them would demand strict scrutiny to be found permissible.” Race can also be used as a “component” under Grutter where the school system finds that doing so is necessary in evaluating school needs. Presumably, strict scrutiny would apply. Race can also be used as a “component” under Grutter where the school system finds that doing so is necessary in evaluating school needs. Presumably, strict scrutiny would apply.

Justice Breyer’s dissent Would de-emphasizes the distinction between de jure and de facto - - looks to broad historical context Would de-emphasizes the distinction between de jure and de facto - - looks to broad historical context Seemingly less onerous application of strict scrutiny and deference to local school boards Seemingly less onerous application of strict scrutiny and deference to local school boards Not hung up on “racial balancing” vs. “diversity”. Breyer identifies the interest as “Integration” and sees three essential elements: (1) historical and remedial: setting right the consequences of prior conditions of segregation; (2) educational: overcoming the adverse effects produced by highly segregated schools; (3) democratic: producing an educational environment that reflects the “pluralistic society” in which our children live - - so that we can be one Nation. Not hung up on “racial balancing” vs. “diversity”. Breyer identifies the interest as “Integration” and sees three essential elements: (1) historical and remedial: setting right the consequences of prior conditions of segregation; (2) educational: overcoming the adverse effects produced by highly segregated schools; (3) democratic: producing an educational environment that reflects the “pluralistic society” in which our children live - - so that we can be one Nation.

For what it’s worth Kennedy does not support Breyer’s looser interpretation of strict scrutiny; however, he seems ready to vote with the dissenters in Parents Involved if the program clearly defines diversity goals and can show how the race-conscious means it applies are necessary and correlate precisely with achieving those goals. Kennedy does not support Breyer’s looser interpretation of strict scrutiny; however, he seems ready to vote with the dissenters in Parents Involved if the program clearly defines diversity goals and can show how the race-conscious means it applies are necessary and correlate precisely with achieving those goals.

Application of Diversity to Employment? Grutter’s broad rationale presents some intriguing open questions, particularly for higher education institutions. Grutter’s broad rationale presents some intriguing open questions, particularly for higher education institutions. Kennedy’s reference to “targeted” recruiting Kennedy’s reference to “targeted” recruiting However, Title VII’s prohibition on racial discrimination calls into question any employment decision that takes race into consideration. The S. Ct. has permitted race- conscious affirmative action only on narrow grounds where there is a “manifest imbalance” between the employer’s work force and the available labor pool. However, Title VII’s prohibition on racial discrimination calls into question any employment decision that takes race into consideration. The S. Ct. has permitted race- conscious affirmative action only on narrow grounds where there is a “manifest imbalance” between the employer’s work force and the available labor pool.

“Operational Need” as Justification for Race- Conscious Diversity Initiatives Petit v. City of Chicago, 352 F.3d 1111 (7 th Cir. 2003): Petit v. City of Chicago, 352 F.3d 1111 (7 th Cir. 2003): Applies Grutter in upholding Chicago’s race-conscious promotion plan for police officers (standardization of test results by race). “[A] visible presence of minorities in supervisory positions is critcal to effective policing in a racially diverse city... because supervisors set the tone for the department.” Also, diversity is necessary for: earning the community’s trust, a key component of effective police work. Applies Grutter in upholding Chicago’s race-conscious promotion plan for police officers (standardization of test results by race). “[A] visible presence of minorities in supervisory positions is critcal to effective policing in a racially diverse city... because supervisors set the tone for the department.” Also, diversity is necessary for: earning the community’s trust, a key component of effective police work. Lomack v. City of Newark, 463 F.3d 303 (3d Cir. 2006). Lomack v. City of Newark, 463 F.3d 303 (3d Cir. 2006). Rejects race-based assignment and transfer plan for city fire department. Grutter’s recognition of educational benefits of diversity not relevant to the fire department’s mission, and, unlike police work, court finds no operational need for diversity to accomplish the mission of fighting fires. Rejects race-based assignment and transfer plan for city fire department. Grutter’s recognition of educational benefits of diversity not relevant to the fire department’s mission, and, unlike police work, court finds no operational need for diversity to accomplish the mission of fighting fires. Both cases handed down before Parents Involved. Leaves open the question of how broadly the operational need rationale could be applied in other contexts, such as faculty employment. Both cases handed down before Parents Involved. Leaves open the question of how broadly the operational need rationale could be applied in other contexts, such as faculty employment.

Q & A/Discussion