How is race and ethnicity considered in college admissions? The Hechinger Report has teamed up with WCNY and Retro Report with support from the Pulitzer Center on Crisis Reporting to explore the origins of affirmative action and the arguments before the Supreme Court that are challenging this practice today.

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What has the Supreme Court decided in the past?

Fisher v. University of Texas

What the court found in 2016:

A race-conscious university admissions program may satisfy strict scrutiny under the Equal Protection Clause if it furthers the compelling interest of maintaining diversity for the educational benefit of students, and race-neutral programs would not achieve the same effect, although universities must revisit these policies periodically to ensure that they are narrowly tailored.

Grutter v. Bollinger

What the court found in 2003:

The use of an applicant’s race as one factor in an admissions policy of a public educational institution does not violate the Equal Protection Clause of the Fourteenth Amendment if the policy is narrowly tailored to the compelling interest of promoting a diverse student body, and if it uses a holistic process to evaluate each applicant, as opposed to a quota system.

Regents of the University of California v. Bakke

What the court found in 1978:

Affirmative action programs that take race into account can continue to play a role in the college admissions process, since creating a diverse classroom environment is a compelling state interest under the Fourteenth Amendment. State universities go too far, however, when they set a certain quota for the number of minority students who enroll.

What do we mean by “Affirmative Action?”

“So affirmative action, and specifically in the context of college admissions, is also sometimes called race-conscious admissions… The affirmative action term, more broadly, has its historical roots in the need to affirmatively remedy past discrimination. And so, that term is used in civil rights laws, for example, to acknowledge that an entity needs to affirmatively take steps to make sure that, in the case of a college, that their admissions practices are fair and open, that students of all races can attend their school and be educated there.”  

Sarah Hinger, Lawyer, ACLU Racial Justice Program

 “Affirmative action is race-conscious decision making that has been used in the educational context and in employment —  in the employment context, as well. And it’s designed to make sure that the elite reaches of our society reflect the rich racial diversity of this nation”

Justin Driver, Constitutional Law Professor, Yale Law School

“Well, affirmative action in higher education can mean different things to different people.  For some, it means casting a wider net to make sure that kids who are qualified who may not always apply to competitive universities do apply. Unfortunately, for most of higher education, affirmative action today means race-based affirmative action. Which, in practice, means that a student’s race and ethnicity will be used either to help that student gain admission to a college, or harm that student to be rejected from that college.”

Edward Blum, conservative activist and founder Students for Fair Admissions

Defining the key arguments

Strict Scrutiny

“In constitutional law, strict scrutiny is the term used for the standard of review that a court will look at when reviewing a government program or an educational government program that considers race as one factor.  And strict scrutiny means that to justify the use of race or ethnicity, you have to have a compelling interest which is a very high standard.  And it – you have to do it – you have to use that factor in a way that is narrowly tailored.”  

Marvin Krislov, President, Pace University (Note: He was former General counsel at University of Michigan during Grutter case.)

“Strict scrutiny is a doctrinal term of art that describes when courts will look with extra suspicion at a government’s decision to enact particular law or policy.  The default rule generally for courts reviewing legislation, socio-economic legislation for a consistency with the constitution is rationality review.  So, as long as it’s reasonable for a legislature to think that its policies will advance its objectives, the courts aren’t going to take a second look.  But there are certain kinds of policies that trigger what the courts have called strict scrutiny.  That term dates back to the Korematsu decision after World War II and the scrutiny of the internment of the Japanese during that era.”  

Cristina Rodriguez, Former O’Connor Law Clerk and Professor, Yale Law School

Narrowly Tailored

“When the court speaks about a state law or policy being narrowly tailored, what they’re looking for is a fit between the policy that they adopt and the ends the policy is supposed to serve.  So, the kinds of questions courts ask when determining whether there is a tight fit include, are there other obvious ways of doing the same, achieving the same objective without using race?  Is this a necessary or vital way of pursuing the objective?”

Cristina Rodriguez, Former O’Connor Law Clerk and Professor, Yale Law School

“Narrowly tailored refers to ensuring that a race-conscious policy is not too broadly drafted; that it limits the way that race is considered to the purpose that the government actor is trying to achieve.”  

Sarah Hinger, Lawyer, ACLU Racial Justice Program

“So, if you’re going to have a policy that considers race and ethnicity as one element, you have to have the compelling interest which in this case was student body diversity.  And it has to be done in a narrow tailoring, narrowly tailored way which means that if it gives any sort of consideration to one group, it has to be careful not to be unfairly burdening those people who don’t have that particular attribute.”

Marvin Krislov, President, Pace University (Note: He was former General council of University of Michigan during Grutter case)

Compelling State Interest

“So, under the equal protection clause, a government actor can consider race if there is a compelling interest for that. And compelling interests are not something that the court has never particularly well defined in a concrete way. There could be new compelling interests that are articulated. But effectively, it means something that is of import, not just in this narrow particular transaction, but a societal value. So, compelling interests are diversity on campus, the integrity of the judicial system, protection of voting rights. They’re more values-based judgments.”

Sarah Hinger, Lawyer, ACLU Racial Justice Program

“A compelling state interest is a doctrinal term of art that the courts have developed to describe what the state must have in mind if it’s going to use race in its policy making or decision making.  And in order for a race-conscious policy like affirmative action to be justified under existing doctrine, the state has to have a compelling reason for using race.  So, in the context of affirmative action, the two recognized compelling interests today are remedying past discrimination by the institution that is using race in its decision making, and the promotion of diversity in the educational setting in, in higher education.  There’s not a great definition of how we determine whether something is a compelling state interest.  It’s really for the courts to define through case-by-case decision making. ”  

Cristina Rodriguez, Former O’Connor Law Clerk and Professor, Yale Law School