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New Paper Outlines Lessons Learned from Recent Supreme Court Decision on Affirmative Action in K-12 Schools

Sept. 11, 2007

The American Council on Education (ACE) has released a paper evaluating the implications for higher education of the recent Supreme Court decision regarding race- and ethnicity-conscious admissions policies in K-12 public schools.

In two closely-watched cases, the Supreme Court ruled on June 28 that public school districts may not use race and ethnicity as the predominant consideration in school assignment programs designed to promote diversity. In a 5-4 decision that combined the two cases Parents Involved in Community Schools v. Seattle School District No. 1 and Meredith v. Jefferson County Board of Education, the Court set a difficult standard for “narrow tailoring” of such policies in the future but did not completely rule out diversity as a compelling state interest  in K-12 public education.

The new ACE paper points out that the most important implication of the K-12 cases is that the Supreme Court’s 2003 ruling in Grutter v. Bollinger “remains controlling law” for colleges and universities.

The decision in Grutter v. Bollinger upheld the affirmative action admissions policy of the University of Michigan Law School. In the court’s ruling, Justice Sandra Day O’Connor's majority opinion held that the United States Constitution “does not prohibit the law school's narrowly tailored use of race in admissions decisions to further a compelling interest in obtaining the educational benefits that flow from a diverse student body.”

"Since Seattle and Louisville were the first consideration of principles taken from the 2003 University of Michigan cases, we have given the Court's decision a careful reading to analyze its impact on how colleges and universities use race as an aspect of diversity," said Ada Meloy, ACE's general counsel. "We remain cautiously optimistic that Grutter survives the change in Supreme Court membership."

Distinguishing the K-12 decision from its seemingly contrary decision in Grutter v. Bollinger, the Court noted that unlike the admissions plan it upheld in Grutter, “the plans here ‘do not provide for a meaningful individualized review of applicants’ but instead rely on racial classifications in a ‘nonindividualized, mechanical’ way.”

However, the ACE paper outlines, there are lessons to be learned for colleges and universities in these  latest decisions, including:

1. Diversity is still a legitimate factor to consider in making admissions decisions. Colleges and universities will need to ensure that, if they are seeking to admit a diverse student body, they have both a clear mission with a definition of diversity and a process for reviewing applications to implement that mission.
2. Individualized and holistic review of applications. Colleges and universities need to make admissions decisions based on whether the totality of an application indicates that the applicant contributes to the school’s diversity goals, its overall mission, and its educational objectives. 
3. Considerations of race must yield results. Although the Court does not explicitly state a college or university must achieve results if it is going to consider race, the implication of the Court’s reasoning is that results matter (and those results probably have to be more than minimal). 
4. Caution regarding “critical mass.” The skepticism toward the use of numerical goals or broad ranges expressed by the Court in the cases suggests that institutions should use the concept of “critical mass” carefully and base it upon the educational benefits the institution seeks to obtain from enrolling a diverse student body.
5. Race-neutral alternatives must be considered. A college or university that wishes to create a diverse student body must seriously consider non-race-conscious means first. If those means do not accomplish the institution’s goal, the institution may then consider race to a limited degree.
6. Sense of institution’s mission. A college or university must have a strong sense of its mission and educational objectives and the role, if any, diversity plays in achieving both.

To download the full paper, see the ACE website. Also read ACE’s “friend of the court” brief filed in October 2006 in support of the Seattle and Louisville school districts.