Charting the Future of College Affirmative Action: Legal Victories, Continuing Attacks, and New Research
Author: Orfield, Gary, Ed.
Date: 2007-00-00
Type: Reports - Evaluative
Subjects: Higher Education,Equal Opportunities (Jobs),Civil Rights Legislation,Affirmative Action,Minority Groups,Court Litigation,Admission Criteria,College Admission,Student Diversity,Student Recruitment,Outreach Programs,Educational Policy,Federal Legislation,Policy Analysis,Change Strategies,Selective Admission,Student Financial Aid,STEM Education,Trend Analysis,Ethnic Groups,Racial Bias,Enrollment Management,Educational Research,Politics of Education

The United States Supreme Court's landmark 2003 decisions in "Grutter v. Bollinger" and "Gratz v. Bollinger" firmly established that university admissions policies which are designed to promote student body diversity and which employ race in a carefully crafted selection process can withstand constitutional challenge. The Supreme Court ruled that the creation of a diverse student body is a compelling governmental interest that can justify the flexible and modest use of race in admissions decisions. By upholding the diversity interest under the "strict scrutiny" test applied to race-conscious policies challenged under the federal constitution's equal protection clause, the Court issued an imprimatur on the use of race in a variety of diversity-based policies outside of admissions, including outreach and recruitment, financial aid and employment, and support and retention programs. Yet, the Supreme Court did not issue definitive guidelines on the constitutionality of non-admissions policies in higher education, and the lower courts have yet to address many of the legal questions that remain unanswered in the wake of the "Grutter and Gratz" decisions. For example, should race-conscious outreach and recruitment policies that expand the applicant pools to colleges and universities be subject to the same strict scrutiny standards as selective race-conscious admissions policies? Should "race-exclusive" financial aid or retention programs that limit eligibility to minority students be analyzed under the same legal framework as university admissions? If so, how might these programs fare under a "Grutter/Gratz" analysis? What laws should govern the race-conscious programs of private entities, such as nonprofit foundations that provide scholarships only to minorities or particular ethnic groups? How do other civil rights laws such as Title VII of the Civil Rights Act of 1964, which covers employment discrimination and to which the courts have applied different standards for affirmative action policies, affect race-conscious fellowships or graduate student hiring? This paper analyzes some of the major legal questions left unanswered by the Supreme Court's decisions in "Grutter v. Bollinger" and "Gratz v. Bollinger" and examines the role of law in the recent evolution of minority-targeted policies outside of admissions. Part I offers a brief review of the Supreme Court's "Grutter and Gratz" decisions and discusses various lower court decisions and federal statutes that affect the development of race-conscious policies in higher education. Part II examines a representative set of minority-targeted policies that are in use in higher education and applies the existing legal frameworks to these policies. Part III concludes with some suggestions for developing the law in this area, as well as directions for research and potential evidence to help justify existing race-conscious programs. Individual chapters contain notes, references and appendices. (Contains 29 tables and 12 figures.)