The Use of Race in Admissions Decisions. Kaitlyn O Keefe. Florida State University

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Oliver Dickerson
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1 The Use of Race in Admissions Decisions Kaitlyn O Keefe Florida State University

2 O Keefe 2 Introduction The use of race in college admissions decisions has been at the forefront of the national media and higher education in recent years, but this was far from the beginning of this issue. The use of race in decisions regarding college admissions has been a focus of higher education for more than a half century. In 1950, the Supreme Court s decision in Heman Sweatt s case, regarding discrimination in admissions, produced a landmark court ruling that set the stage for the eventual end of racial segregation at public institutions. In 2008 this issue was brought back to the public eye when Abigail Fisher applied to the University of Texas at Austin and was denied admission. Fisher claimed that her admissions decision was due to her race, the same platform that Sweatt won his case on more than fifty years ago. The media coverage of this case was thorough and a quote from CNN that expresses the evolution of this issue, But it is the key difference between these plaintiffs -- separated by three generations and a troubled road to "equality" -- that now confronts the nation's highest court: Sweatt was black, Fisher is white (CNN, 2012). Following Fisher s case in 2008 a hold of sorts was placed on this issue meaning that universities using race as a factor in admissions processes could continue doing so as long as it was used appropriately. In a USA Today article from June 2013, Ada Meloy, a member of the general counsel for the American Council on Education explained that, any university, public or private, that considers race or ethnicity as a factor in admitting students "needs to be very careful to be able to demonstrate, if challenged, that they have considered race-neutral alternatives and that their system is narrowly tailored to achieve the educational benefits of diversity" (Marklein, 2013). Meloy s statement expresses the uncertainty that accompanies the choice to use race as a factor in admissions decisions even today.

3 O Keefe 3 There are supporters backing both sides of this debate determining the role of race in admissions. There are those who believe that there must be, flexibility to consider each applicant's unique experiences and background so we can provide the best environment in which to educate and train the students who will be our nation's future leaders," (Mears, 2012) which was a statement given by University of Texas at Austin administrators in response to the Fisher lawsuit. On the other hand, there are individuals such as Joshua Thompson of the Pacific Legal Foundation, who believe that, "using race in admissions decisions, to achieve diversity, amounts to stereotyping people by their race. Racial diversity in a student body does not guarantee a diversity of experience and perspectives. It is unrealistic and wrong to try to pigeonhole people by their race" (Mears, 2012). The impact of the decisions from these landmark cases dealing with race can be directly felt across the field of higher education. From admissions processes to diversity on campus, the outcome of cases such as Sweatt and Fisher have lasting implications on the higher education system. As affirmative action continues to draw attention the questions is raised whether or not race should be considered as a factor in collegiate admissions. Legal Precedent The landmark case that has since been considered precedence for cases concerning race as a consideration in the admissions process was Sweatt v. Painter. In this 1950 case, Heman Sweatt was denied admission to the University of Texas Law School based on his race as an African-American. The university stated that he was denied admission to the Law School at the University of Texas because state law forbade the admission of African-American students to that Law School. While the case was on hold, the state made efforts to create an equal educational facility for African-American students. In place of being offered a space at the University of Texas, he was admitted to a separate law school that was newly established by the

4 O Keefe 4 state of Texas specifically for African-American students. Sweatt filed a lawsuit claiming that the separate Law School for African-America students was not equivalent to the University of Texas and being denied access to admission was a violation of his Fourteenth Amendment. It was found that the faculty, resources, and opportunities afforded by the African-American Law School established by the state did not provide its students with experiences equal to students at the University of Texas Law School. When comparing the two institutions it was found that there were comparable physical resources and faculty in relation to the student population at each institution, however, the separate law school was lacking in, members of racial groups which number 85% of the population of the State and which include most of the lawyers, witnesses, jurors, judges, and other officials with whom petitioner would deal as a member of the Texas Bar (Sweatt v. Painter, 1950). The judge ruled in favor of the plaintiff stating that because the separate facilities created by the state did not provide Sweatt with an equal education, that the Equal Protection Clause of the Fourteenth Amendment requires that petitioner be admitted to the University of Texas Law School. In September of 1971, the University of Washington Law School received 1,601 applications with spaces for 150 students in the class. Admission was offered to 275 applicants, but Marco DeFunis, Jr. was not among those individuals. DeFunis was denied admission to the institution and filed a lawsuit claiming it was due to race being considered during the admissions process. Originally the court ruled in favor of DeFunis and the University of Washington was required to admit the student to the class. However in an appeal, the court found that the university s admission policy that used race as a factor did not violate the equal protection clause or the Fourteenth Amendment. The court reasoned that the policy was necessary to promote a compelling state interest. The court reasoned that racial imbalances in the law school and the

5 O Keefe 5 legal profession could only be corrected by providing legal education to those minority groups that had been previously deprived. Further, the court found that no less restrictive means would serve the governmental interest (DeFunis v. Odegaard, 1974). The court revered their original decision and concluded that incorporating race as factor in the admissions process was permissible, this statement showed that incorporating this policy in the admissions process supported the state interest of building diversity among the legal professionals within the state. In Hopwood v. State of Texas, a case from 1998 four white students claim they were denied admission to the University of Texas School of Law as a result of procedures in the admissions process that granted preference to minority students, particularly black and Mexican- American applicants. The issue in this case is determining whether or not the Fourteenth Amendment permits schools to discriminate in such a way in an admissions process. The court found that the school had violated the plaintiffs equal protection rights and each of the students involved in the lawsuit would be allowed to re-apply to the program without any of the associated fees. In the majority opinion it is explained that, the law school has presented no compelling justification, under the Fourteenth Amendment or Supreme Court precedent, that allows it to continue to elevate some races over others, even for the wholesome purpose of correcting perceived racial imbalance in the student body (Hopwood v. State of Texas, 1998). However, even when finding in favor of the students, the court refused to bar the law school from using race in admissions decisions and the law school may continue to impose racial preferences. In the fall of 1999, three Caucasian female applicants applied to the University of Georgia and were unsuccessful in gaining admission to the institution. The applicants alleged that the process violated the Equal Protection Clause of the Fourteenth Amendment because it

6 O Keefe 6 awarded a fixed numerical point bonus to non-white and male applicants that it did not give to white and female applicants. The admissions process in place at the University of Georgia in 1999 was a three-stage process. The majority of the freshman class is selected at during the first stage, known as the First Notice, which accounts for academic criteria and without regard to applicants race. Students who are not accepted in the first wave are further evaluated by calculating the Total Student Index (TSI), which is based on a combination of weighted academic, extracurricular, demographic, and other factors, it is here that race is expressly considered. A pre-set threshold is set and any student with a TSI above that range is admitted to the university and those below are rejected. Those applicants whose TSI score fall within those guides move on to a third stage of evaluation. The final stage is known as the edge read or ER. Factors not originally considered in the Frist Notice or TSI stages are reviewed and students are admitted based on the ER rating they receive. Race is not a factor included in the ER rating as it had already been considered in the TSI (Johnson v. Board Of Regents Of University Of Ga., 2001). The court found that this preferential treatment of males and non-white applicants was unlawful and entered summary judgment with the plaintiffs. During an appeal, the court came to the same conclusion regarding the ruling concerning male applicants, but determines a different rational on the decision regarding non-white students. The appeal concluded that while diversifying the student body could be considered a compelling interest for having such a policy, the policy set in place at the University of Georgia was not narrowly tailored enough to serve that interest. The faculty of the University of Michigan Law School was charged with crafting an admissions policy that would admit a group of students who would be capable and have a strong likelihood of succeeding once enrolled. One section of the policy focused on diversity within the

7 O Keefe 7 incoming class, the policy did not limit the types of diversity considered in the admissions decisions, however, the policy did state that there is a commitment to, "racial and ethnic diversity with special reference to the inclusion of students from groups which have been historically discriminated against, like African-Americans, Hispanics and Native Americans, who without this commitment might not be represented in our student body in meaningful numbers" (Grutter v. Bollinger, 2003). Instead of the law school implementing quotas to increase diversity, plus factors were given to applicants who identified as a minority race or ethnicity. In 1996, Barbara Grutter s application to the University of Michigan Law School was placed on a waiting list and subsequently rejected. Grutter filed a lawsuit claiming race discrimination in the law school's admission policy, in favor of students who identified as members of minority groups. The court found in favor of the institution, stating that the Equal Protection Clause of the Fourteenth Amendment was not violated by this policy. The use of race in the admissions decision at the institution was narrowly tailored in an attempt to further the schools compelling interest in obtaining the educational benefits that come from diversity. Additionally it is explained in the majority opinion that, Because the law school engaged in a highly individualized, holistic review of each applicant, giving serious consideration to all the ways the applicant might contribute to a diverse educational environment, it ensured that all factors that could contribute to diversity were meaningfully considered alongside race (Grutter v. Bollinger, 2003). The University of Michigan s undergraduate admissions procedure is based on a point system. An applicant can earn a total of 150 points through this process and if a student is awarded 100 points or more they are generally automatically admitted to the institution. The factors applicants were eligible to earn points included high school grades, standardized test scores, high school quality, strength of high school curriculum, in-state residency, alumni

8 O Keefe 8 relationships, a personal essay, and personal achievement or leadership, and membership in an underrepresented racial or ethnic minority group. Any student who self identified as African American, Hispanic, or Native American was considered to be an underrepresented group by the institution and these students automatically received 20 points in the admissions process based on this classification (Gratz v. Bollinger, 2003). In 1997, applicant Jennifer Gratz filed a lawsuit on the basis that her rejection from the University of Michigan was due to the institutions unconstitutional consideration of race in the admissions decision process. This case paralleled Grutter v. Bollinger, 2003 and it was requested that the two trials be tried together at one point. It was found that The University of Michigan s college of literature, science, and arts point-based undergraduate admissions policy was in violation of the Fourteenth Amendment s Equal Protection Clause as it automatically awarded points to every student who was a member of an underrepresented minority. This automatic point reward was racially referencing some applicants over others on the basis of arbitrary factors that did not provide individualized consideration of each candidate. The case that brought back the use of race in admissions decisions to the forefront of the media was Fisher v. University of Texas at Austin in In this case, two Caucasian female applicants, Fisher and Michalewicz, filed a suit against the institution alleging they had been illegally denied admission to the University of Texas because the admissions procedures in place had discriminated against them on the basis of their race. From this lawsuit the students were seeking a race-neutral evaluation of their applications. The role of race in the admissions process was one of seven special circumstances, which include the applicant's family's socio-economic status, school's socio-economic status, family responsibilities, whether they lives in a singleparent home, whether languages other than English are spoken at home, and SAT or ACT score

9 O Keefe 9 compared to her school's average score. These seven circumstances above are considered as one part of six factors that make up an applicant's personal achievement score. This personal achievement score is only half of the elements that determine an applicant s ultimate score. The use of this ultimate score is only considered in the admissions process when deciding whether a non-top 10 percent applicant should be admitted to the institution. The court denied the applicants motion for summary judgment and ruled in favor of the institution stating that the use of race in the admissions process was narrowly tailored and the admissions policies were holistic. Legal Principles Throughout this research, there have been numerous legal principles discussed that have implications that impact higher education. The two trending themes that appear throughout this paper include the modern interpretation of the Equal Protection Clause and the degrees of judicial scrutiny under the Fourteenth Amendment. When created, the purpose behind the Fourteenth Amendment was to protect the newly freed slaves following the civil war. Its original intent had little to do with its modern application and would be nearly unrecognizable from how we utilize it today (Fossey et al., 2001). As the Fourteenth Amendment has been repurposed over the years, its original focus on protecting individuals who hold membership as members of a protected or suspect class can still be found. Among these protected classes included in the Fourteenth Amendment is race. In 1950, Sweatt, who had been discriminated against due to his race when applying to law school, won his case and began the transition that ended segregation in public schools and institutions. Since the time of desegregation, the use of the Equal Protection Clause in collegiate admissions lawsuits has seemed to transition to a form of protection for white students who claim they have been

10 O Keefe 10 discriminated based on their race. The current trend found among these lawsuits follows the notion that institutions are attempting to promote and encourage diversity among the student body through the admissions process, which results in the creation of admissions policies that account for or factor in race as a consideration when making decisions. When race is considered as a factor it must be done so carefully, preferential treatment of students who identify as a minority cannot be admitted simply because of their status as a protected class. However, when a holistic view of a student is taken into account and race is considered on a secondary level an admissions policy supporting a diversifying campus can have success in what it was intended to do. The amendment, in practice, protects individuals against laws enacted by legislature, or policies created by government officials, that seek to classify them and thus treat them differently because of there membership in certain classes (Fossey et al., 2001, p.398). Judicial scrutiny determines whether or not a policy or law violates an individual s equal protection, specifically in this research focusing on whether or not a violation occurred during the admissions process. There are three degrees of judicial scrutiny, rational basis, intermediate scrutiny, and strict scrutiny. Strict scrutiny is the highest level of scrutiny and is applied to classifications based on race. In order for an admissions policy to survive a judicial review, it must be narrowly tailored with a compelling interest and convincing effort at being successful in its purpose. As the landscape of higher education continues to change it will require that educational policy, specifically policies and procedures associated with admissions continue adapting. With the number of lawsuits that have been filed in the last two decades where Caucasian students claim discrimination, it would not be unexpected to see a change in how diversity is determined and calculated through the collegiate admissions process.

11 O Keefe 11 The influence of the legal principles discussed concerning race as a factor in the admissions process will continue to shape educational policies and higher education as a whole. As attending college becomes the expectation and the norm, more students will be applying for the same number of spaces in an incoming class. Those spaces will continue to become more coveted and acceptance letters will be fought for. Continued changes to current admissions policies will be necessary as the state of higher education continues to change. With diversity continuing to be a focus of higher education, educational polices will have to be tailored and adjusted to fit the continuously changing field.

12 O Keefe 12 Resources DeFunis v. Odegaard, 416 U.S. 312, 94 S. Ct. 1704, 40 L. Ed. 2d 164 (1974). Fisher v. University of Texas at Austin, 631 F.3d 213 (5th Cir. 2011). Fossey, F., Melear, K. B., & Beckham, J. (eds. 2011). Contemporary Issues in Higher Education Law, 2nd edition. Dayton, Ohio: Education Law Association. Gratz v. Bollinger, 539 U.S. 244, 123 S. Ct. 2411, 156 L. Ed. 2d 257 (2003). Grutter v. Bollinger, 539 U.S. 306, 123 S. Ct. 2325, 156 L. Ed. 2d 304 (2003). Hopwood v. State of Tex., 78 F.3d 932 (5th Cir. 1996). Johnson v. BOARD OF REGENTS OF UNIVERSITY OF GA., 263 F.3d 1234 (11th Cir. 2001). Marklein, M.B. (2013, June 24). Colleges can still use race for admissions -- but carefully. USA Today. Retrieved from actionuniversities-admissions-supreme-court/ / Mears, B. (2012, October 10). Justices to re-examine use of race in college admissions. CNN News. Retrieved from Sweatt v. Painter, 339 U.S. 629, 70 S. Ct. 848, 94 L. Ed (1950).

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT KATURIA E. SMITH; ANGELA ROCK; MICHAEL PYLE, for themselves and all other similarly situated, Plaintiffs-Appellants, v. UNIVERSITY OF