More implications of the Michigan decisions - Last Word

Colleges and universities this June received a momentous set of rulings from the U.S. Supreme Court in the twin University of Michigan affirmative action decisions. The court gave major new guidance on the permissible consideration of race in higher education admissions to achieve diversity when it upheld the use of race as one "plus" factor among the elements of a flexible, holistic evaluation of applicants by the law school. But it struck down a more mechanical bonus-point system used in undergraduate admissions.

The rulings not only addressed the constitutionality of the admissions programs under the Equal Protection clause of the 14th Amendment, but they also curtly stated that the same results follow under Title VI of the 1964 Civil Rights Act and 42 U.S. Code Section 1981. Thus, the question of whether private institutions--assuming they receive any federal funding (and almost all do)--have more latitude under federal law than public universities in designing affirmative action programs has been decided. We now know that the standards are the same.

The Michigan cases are directed at admissions, and much has been said about the challenge they pose to large public universities to re-design admissions procedures designed to achieve diversity. But they also have implications for other kinds of programs that a great many colleges and universities operate or participate in as part of their efforts to build and support diversity. Less has been said about these.

Examples include race-sensitive outreach programs at the high-school level, recruitment and preparatory programs for college and for graduate and professional schools, mentorship programs, summer or term-time research or other special enrichment programs, and race-sensitive or exclusive financial-aid programs. Colleges and universities should now carefully review all of these programs.

While many legal questions cannot yet be answered with certainty, attorneys can anticipate areas that will be ripe for further litigation and can identify some necessary questions around which to focus a review.

Applying strict scrutiny to the use of race in admissions and amplifying the reasoning of Justice Lewis Powell in the Bakke case a generation ago, the high court has now stated unequivocally that it will recognize a compelling governmental interest in having diversity within a higher education student body. The use of race, however, must be narrowly tailored to accomplish that interest. The precise meaning of "narrow tailoring" in the context of each of these other sorts of programs will be the rub. If a program is exclusive on the basis of race or ethnicity, defending it will present daunting challenges.

For each of these race-sensitive programs, a careful review should revisit its precise purpose. For all but a few, that purpose will clearly derive from or be closely related to the attraction, retention and support of a diverse student body. In cases where a program focuses on a specific part of the institution--for example, minorities in the sciences--it will be necessary to articulate why the interest in diversity is important in that particular part. For programs that serve to enhance the "pipeline" to promote greater representation of minorities in academic careers, the interest may differ slightly. It is critical that the purpose of any race-sensitive program be understood and adequately articulated. All relevant descriptive material in print and on the Web should be reviewed.

The review process may be relatively easy for some programs, but it may be delicate for others that involve multiple campus constituencies and in some instances outside funding entities. In the coming months, the U.S. Education Department's Office of Civil Rights will be pursuing these programs; in fact, federal attorneys have already begun reviews at some schools. Trustees should see that their institutions are prepared.

--Dorothy K. Robinson is vice president and general counsel of Yale University. A version of this article originally appeared in Trusteeship Magazine.

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