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The efforts of institutions of higher education to maintain racially diverse student bodies are more complicated today than ever before. Both public and private institutions may be sued by applicants claiming that admissions policies, designed to ensure minority student enrollment, discriminate against them. The well-known 1978 decision of the United States Supreme Court in Regents of the University of California v. Bakke (“Bakke”), relied on by many colleges and universities as a guide for developing their admissions policies, may not insulate them from liability. The legality of an institution’s admissions policy may be determined by how, not whether, race is used as a factor in admitting students. That was the clear message of the United States Court of Appeals for the Eleventh Circuit (“Eleventh Circuit”) in Johnson v. Board of Regents of the University of Georgia (“Johnson“).

In late August, the Eleventh Circuit affirmed a lower court ruling striking down the affirmative action policy for freshman admissions at the University of Georgia (“UGA”). UGA had until late November to seek an appeal of this decision to the United States Supreme Court but has chosen not to seek further review. Other appeals courts have considered the same issue, including the United States Court of Appeals for the Sixth Circuit (“Sixth Circuit”), which, in early December, heard arguments regarding challenges to affirmative action at the University of Michigan in two cases involving undergraduate and law school admissions, respectively. A decision in the Michigan cases may be rendered sometime next year and, whatever the outcome, will more than likely be appealed to the Supreme Court. Other jurisdictions, including the Second Circuit, have not addressed this issue directly. Although binding only in Alabama, Florida and Georgia, the decision in Johnson relies on principles already adopted by the Supreme Court in other cases and serves as a useful analytical tool for reviewing the use of race in college and university admissions policies.

Title VI Lawsuits Can Be Filed Against Public and Private Colleges and Universities

The Johnson court relied not only on the Fourteenth Amendment of the United States Constitution in striking down UGA’s admissions policy, but also on Title VI of the Civil Rights Act of 1964. This difference is not simply one of semantics. A ruling under the Fourteenth Amendment means that only public institutions can be sued for the consideration of race in their admissions policies. A decision under Title VI means that every college and university that receives federal funding can face litigation over its admissions policy. Thus, an issue, once only thought to be within the province of public institutions, is a problem for every institution of higher education.

A College or University’s Admissions Policy Can Be Struck Down Even If Bakke Is Good Law

The Johnson decision highlights another issue which colleges and universities should take seriously: what if the United States Supreme Court reaffirmed the notion that diversity is a constitutionally legitimate interest for college and universities to consider in their admissions policies, but still found your institution’s admissions policy legally deficient?

Many legal observers and university officials have been focusing on whether the much-debated Bakke ruling is or ever was good law. In Bakke, decided in 1978, the United States Supreme Court could not reach a single majority opinion, but it did find unconstitutional an admissions program based on racial quotas. In his opinion, then-Justice Lewis Powell held that the long-recognized First Amendment right of academic freedom, including the right to decide whom to admit, provided colleges and universities with a constitutionally legitimate interest in considering racial diversity in admissions. Colleges and universities may consider race as one of many factors necessary for achieving a diverse student body, but not as the only one. For nearly a quarter of a century, institutions of higher education followed the Powell opinion in Bakke as the legal standard. While the Johnson decision does not deviate from this standard, the court did find UGA’s admissions policy to be unlawful. The court relied on other applicable Supreme Court principles requiring that the use of race be narrowly tailored to accomplish an institution’s objectives. It was UGA’s failure to explain adequately how it used race, not whether it was justified in doing so, that doomed its admissions policy.

Five Questions on Diversity in Admissions that Every College and University Should Think About

The potential for Title VI litigation and the reality that no future Supreme Court decision is likely to give institutions carte blanche to use race as a factor in admissions suggests that every institution should give serious thought to the five questions presented in the Johnson decision. First, how does your institution’s admissions policy consider race? Second, how does your institution’s admissions policy take into consideration factors other than race? Third, how does your institution’s admissions policy prevent non-white applicants from being unduly favored? Fourth, has your institution honestly considered and rejected as inadequate the use of factors other than race to create a diverse student body? Fifth and finally, for how long does your institution intend to use race as a criterion in its admissions policy?

1. How Does Your Institution’s Admissions Policy Consider Race?

During the Fall 1999 admissions cycle, UGA admitted nearly 90% of its entering first-year undergraduate students based solely on academic credentials. The university admitted a significant number of the remainder based on a point system, which included a variety of factors, such as SAT score, grade point average, school activities, work experiences, alumni affiliation and race. The point system did not provide for individual consideration of applications, other than to assign point values. The court in Johnson found this system too “rigid.” An admissions process that incorporates a point system is not per se impermissible. Certainly, the Johnson decision did not reach that conclusion. However, the court did signal that when employing such a system, colleges and universities must ensure that each applicant receives individual consideration. As the court stated in Johnson: “If UGA wants to ensure diversity through its admissions decisions, and wants race to be part of that calculus, it must be prepared to shoulder the burden of fully and fairly analyzing applicants as individuals and not merely as members of groups when deciding their likely contribution to student body diversity.”

2. How Does Your Institution’s Admissions Policy Take into Consideration Factors Other than Race?

As noted above, UGA’s admissions process did place a value on factors other than race in assigning points. However, UGA could not demonstrate how a whole host of factors other than race advanced the institution’s overall interest in diversity. Its point system, for instance, did not measure the quality of an individual applicant’s extra-curricular activities and after-school and summer job experiences. Instead, it only considered the number of hours spent on them. Socio-economic status, presumably another measure of diversity, counted for little in UGA’s point scheme. If race is just one component of diversity, then the other indicia of diversity must meaningfully contribute to decisions on admission. In essence, the Johnson decision suggests that an interest in a diverse student body cannot simply be an interest in a racially diverse student body.

3. How Does Your Institution’s Admissions Policy Prevent Non-White Applicants from Being Unduly Favored?

UGA argued that its affirmative action policy did not unduly favor any applicant, noting, inter alia, that points for alumni relatives favored white applicants. Yet, UGA failed to present any statistical evidence to support this argument. The court in Johnson could not and did not accept this argument without such evidence. Perhaps, if UGA had presented sufficient evidence, the court would have reached a different result or, at the very least, required the case to proceed to trial rather than having it summarily decided.

4. Has Your Institution Honestly Considered and Rejected as Inadequate the Use of Factors Other than Race to Create a Diverse Student Body?

The Johnson decision also discussed the lack of evidence supporting UGA’s decision to use race as a factor in its admissions process. UGA “presented no evidence that it rejected or even gave meaningful thought to substituting wholly race-neutral alternatives for its race-conscious admissions policy; indeed, at oral argument, UGA conceded that it has introduced no such evidence.” In fact, a UGA admissions officer admitted not knowing what the impact would be on the school’s African-American enrollment if points were no longer awarded for race.

Thus, if race is a factor used in determining admissions, it may be important to know that the use of race was necessary to achieve a student body diverse enough to include students from all races.

5. How Long Does Your Institution Plan to Use Race as a Criterion in Its Admissions Policy?

While the Johnson decision did not apply this factor to UGA, it recognized that this factor, nevertheless, has generally been part of the analysis applied by courts to other affirmative action measures and therefore analyzed this factor. In its analysis, the Court determined that an annual review of a policy is insufficient. There must be some understanding that the use of race in the admissions process has an end point. Thus, if the Johnson decision is any indication of how this factor will be applied, consideration must be given to determining the circumstances under which use of race as a criterion in admitting students will no longer be necessary.

Conclusion

The Johnson decision will not be the final word on the issue of affirmative action in college and university admissions. In the next year or two, it is possible that the Supreme Court will review any decision rendered by the Sixth Circuit. Institutions should also check the law in their own jurisdiction. However, the critical aspects of the Johnson decision are unlikely to change. Title VI will still provide a basis for suing both private and public institutions. The five questions asked by the Eleventh Circuit – applying Supreme Court precedent for measuring whether an affirmative action plan is “narrowly tailored” – will still have to be answered. Not having sufficient answers to these questions will leave an institution vulnerable to litigation, even if Bakke is not overturned.

Victor A. Bolden, a Wiggin & Dana attorney and former NAACP Legal Defense & Educational Fund, Inc. Assistant Counsel, will soon conduct a seminar on Affirmative Action & College and University Admissions. Further information about date and location will be forthcoming. If you wish to be added to the distribution list for this seminar and future editions of the Wiggin & Dana Education Client Alert, please contact him at (203) 498-4528.

The Wiggin & Dana EDUCATION CLIENT ALERT is a periodic newsletter designed to inform clients and other interested parties about recent developments in the field of education law. Nothing in the EDUCATION CLIENT ALERT constitutes legal advice, which can only be obtained as the result of personal consultation with an attorney. The information published is believed accurate at the time of publication but is subject to change and does not purport to be a complete statement of all relevant issues.