DONATED FUNDS AND RACE-CONSCIOUS SCHOLARSHIP PROGRAMS AFTER THE UNIVERSITY OF MICHIGAN DECISIONS. April 23, 2004

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1 DONATED FUNDS AND RACE-CONSCIOUS SCHOLARSHIP PROGRAMS AFTER THE UNIVERSITY OF MICHIGAN DECISIONS April 23, 2004 Mary Jo Dively Carnegie Mellon University Pittsburgh, Pennsylvania In Grutter v. Bollinger, 123 S. Ct 2325 (2003) ( Grutter ) and Gratz v. Bollinger, 123 S. Ct (2003) ( Gratz ), the Supreme Court held that states have a compelling interest in promoting diversity in education and, therefore, diversity itself justifies a narrowly tailored consideration of race in admissions decisions. While not specifically addressing issues other than admissions (such as financial aid or outreach programs operated by most institutions to support diverse admissions), it is useful to consider the holdings of Grutter and Gratz in developing a framework for dealing with those other issues. This paper does not address in detail the current state of the law, particularly as amplified by the Grutter and Gratz decisions, as that is set forth in a companion paper prepared by Jonathan Alger and Donna Snyder of the University of Michigan (the Alger and Snyder Paper ), which is being presented in conjunction with this paper. Rather, this paper suggests practical ways in which University counsel may wish to react to the Grutter and Gratz decisions, including implementing the conclusions and recommendations of the Alger and Snyder Paper. (The Grutter and Gratz decisions are hereafter sometimes called the Michigan Cases. ) Since the Michigan Cases were decided, University counsel across the country have been engaged in an evaluation of whether their admissions programs are consistent with Grutter and Gratz, whether the standards of Grutter and Gratz will be followed in non-admissions matters, and if so, whether their various non-admissions programs are consistent therewith. While it is not yet known whether a court or the Department of Education s Office for Civil Rights will apply, in a challenge to race-conscious financial aid or race-consciousness in other non-admissions programs, an analysis similar to that employed in the contest of race-conscious admissions by the Michigan decisions, this seems likely. Based upon numerous public announcements by many institutions in the months since the Michigan Cases were decided, as well as discussions in public and private fora involving many university counsel, it is the author s conclusion that most institutions will apply an analysis similar to that contained in the Michigan Cases in most situations involving non-admissions programs. 1 A. Suggestions for a Practical Response In order to organize such an evaluation and review, University counsel must develop an understanding of the myriad of non-admissions programs which may be offered throughout the institution and then review each of those programs for consistency 1 See, e.g. Yale U. Opens an Orientation Program, Formerly for Minority Students Only, to all Freshmen. Chronicle of Higher Education, Peter Schmidt, February 25,

2 with Grutter and Gratz. This paper will suggest one way in which such an evaluation can be conducted. Step 1: Educate yourself about the Michigan Cases While it is obvious, the first and most important step for University counsel is to educate themselves about the Michigan decisions. This area, like many developing areas in which we are called upon to offer advice, is significantly affected by what other institutions are doing, and at some point you likely will be expected to be able to assure your campus that you are not recommending actions that are not thought to be necessary generally by your peer institutions. The Michigan Cases, while offering startling and welcome clarity on certain issues such as the value of diverse student bodies in higher education, are opaque in other areas, such as their application to non-admissions matters. And, in the initial blush of enthusiasm when the cases were handed down, this opacity was not immediately and widely talked about. Talk to your peers at other institutions, attend some of the numerous seminars being offered on the topic, seek the advice of respected outside counsel, and read everything you can. (For example, it has been particularly educational to track the articles on these issues in the Chronicle of Higher Education from the time the decisions came down to the present. They demonstrate an evolution of action, particularly about non-admissions matters, that many may not have expected when the decisions were first reached.) Your understanding not only of the cases themselves, but of the reaction to them by higher education at large, will help those at your institution conclude that you know what you are talking about and can be trusted. Step 2: Educate those responsible for this area at your institution about the Michigan decisions, and the need for the Review Each institution likely will have a group which oversees the institution s diversity efforts. At Carnegie Mellon, that body is the Diversity Advisory Council, which is chaired by the President, and which contains representatives (both faculty and staff) from the colleges and other units of the University. Shortly after the Grutter and Gratz decisions were handed down, the General Counsel made a presentation to the Diversity Advisory Council explaining the decisions, answered questions and offered recommendations for how the University should proceed to determine whether its current procedures were consistent therewith. The Diversity Advisory Council ultimately made the decision to proceed with these recommendations, and that was invaluable as the review progressed. It was important, at least at Carnegie Mellon, that this issue not be one that was dictated by the lawyers but rather was decided upon by the entire community. Step 3: Seek the professional advice of the faculty as to the educational benefits of diversity at your particular institution. As noted in the Alger and Snyder Paper: 2

3 The Court indicated that courts owe some deference to educational judgments about who may be admitted to study--fundamentally, these are educational rather than legal judgments. Institutions will want to be able to demonstrate that admissions criteria are based on sound educational judgments (especially where the consideration of race is involved) and not mere administrative convenience. It is helpful to have institution-specific (as well as national) research, data, or testimony (e.g. in the form of considered educational judgment by a faculty committee, faculty and/or student surveys, etc.) to demonstrate why diversity is important to the educational experience and mission of your particular institution. 2 At Carnegie Mellon, we asked leading faculty members with relevant experience to create a faculty committee to study the research, conduct additional research, review Carnegie Mellon s diversity history, and develop a paper on why diversity is important to the educational experience and mission of Carnegie Mellon. The committee enthusiastically took on this task, and, over the course of many months, studied, met and discussed drafts, and finally completed the paper this month. We believe that it is a valuable document not only for inside use, but also to demonstrate the importance of these principles at Carnegie Mellon if called upon to do so in court or before a governmental agency. Again, it was important, that the faculty was directly involved in the decisions made on these issues, rather than having them dictated by administration or worse still the lawyers. Step 4: Decide who will conduct the review Each institution will decide upon a group of individuals who are most appropriate to conduct the review. At Carnegie Mellon, the review was conducted jointly by the General Counsel and the Director of Equal Opportunity Services, at the direction of the Diversity Advisory Council. Again, we felt it was important that the entire community be involved in any decisions that were made. Step 5: Learn what you Have; Take an Inventory It is not a given that even the most involved University counsel will be aware of all of the policies and programs which are operating throughout the institution, particularly in institutions which are highly decentralized, where the responsibility for achieving diversity has been placed on individual units, and where there has not been direct involvement over the years by University counsel in such efforts. (It probably is safe to say that prior to the Michigan cases, many institutions believed for many years that most race-exclusive programs were legal--particularly in light of the Department of Education s Policy Guidance on race-conscious financial aid issued in ). Accordingly, an inventory of all University policies and programs should be undertaken. 2 Alger and Snyder Paper at 5. Emphasis in original. 3 See detailed discussion of the 1994 Policy Guidance in the Alger and Snyder Paper 3

4 Examples would include: The institution s Mission Statement, and those of each of the colleges and units of the institution Diversity Vision Statement Diversity Mission Statement Statements of Values Statement of Assurance Centralized University Policies relating to admissions, financial aid, outreach, mentoring and the like Centralized University Procedures relating to admissions, financial aid, outreach, mentoring and the like Individual College and Unit Policies and Procedures relating to same The University s websites with respect to same All of these should be examined for consistency with the Grutter and Gratz analysis and recommendations made to the governing body as to whether any changes are indicated. Step 6: Meet with representatives of each college and unit Following the initial inventory, meet with representatives of each college and unit to explain the Michigan Cases, to advise them about what the governing body has determined to do, to ask for information about the particular programs and policies being used in that college or unit, and finally, to answer questions they may have about the impact of the Michigan decisions on those programs and policies. We found that these initial meetings required at least an hour each in order to be effective, and we asked to meet with the Deans or heads of each of the units, and other representatives designated by that individual. Again, we felt that it was important that individuals at the highest levels of each college or unit understand and be involved in the decision-making. We also provided in advance a list of the types of programs and procedures that we d be asking about, so that they could prepare themselves. In particular, we asked about programs being done in conjunction with other schools, or with consortia or provided by certain national foundations. (There are, for example, programs being operated by a Graduate Business School Consortium, and by a Graduate Public Policy Consortium.) Step 7: Conduct Follow-Up meetings with each College and Unit 4

5 After giving the colleges and units time to gather the requested information, schedule follow-up meetings to receive the information, and to discuss it. We found that these follow up meetings required about an hour and a half per college or unit. Step 8: Analyze the information received and develop recommendations to the governing body At Carnegie Mellon, because it is so highly decentralized, we found that each college and unit had its own policies and programs, and that there were differences among them. Once we had gathered all of the data, we analyzed it against the standards that we believed were indicated by the Michigan decisions. Rather than repeat here the standards which we used, I refer you to those described in detail in the Alger and Snyder Paper. (I also refer you to the specific questions set forth in Part B of this Paper.) In some cases, changes were indicated. In those cases, we presented those recommendations to the Diversity Advisory Council for approval prior to taking them back to the units. For example, we recommended, and the Diversity Council approved, applying race-conscious, but not race-exclusive, criteria to Carnegie Mellon scholarships and to Carnegie Mellon summer outreach programs which previously had stated raceexclusive criteria. Step 9: Communicate any changes to the individual Colleges and Units Following the action of the Diversity Advisory Council, we communicated the changes made to each of the Colleges and Units, discussing with them as appropriate parallel changes that would need to be made to their procedures and policies. Step 10: Communicate, Communicate, Communicate As noted above, this is an area which is developing rapidly. A week has not gone by that I have not received notice of a decision made by one of our peer institutions in this area, or a question from campus about the efficacy of a particular action. It is important, as you stay abreast of changes, to communicate those changes to your campus. In our office, we have one lawyer designated to track developments in this area, and these developments are reported to the rest of the office on a regular basis so that all of us are able to field questions from campus. B. Some Specific Questions You may be Called Upon to Answer At the risk of repeating some of the recommendations provided in the Alger and Snyder Paper, University counsel will want to know the answers to the following specific questions: 1. If your University has scholarships which are race or ethnicity exclusive, (i.e. awarded only to qualified members of under-represented ethnic minority groups) you will want to know whether the University actually has determined that it has an underrepresentation of students of these particular races, and, if so, how it determined this. 5

6 You ll also want to know the University s specific purpose in offering the scholarship, and how the candidates are evaluated--including an understanding of the factors that are considered and the relative weight of each factor. 2. If your University uses University resources to fund financial aid programs where race or national origin is a factor, you ll want to know which groups receive favorable consideration and whether race/ethnicity is a condition of getting the award, or just a plus factor. You ll want to understand how the factor is weighted relative to other factors. 3. If your University participates in financial aid programs funded by third parties where race or national origin is a factor, you ll want to understand how the University is involved in selecting or recommending the recipients of awards under these programs. You ll want to understand what groups receive favorable consideration and what weight is assigned to the race/ethnicity factor. 4. If your University believes that the use of race or national origin in awarding financial aid is justified by a compelling interest in student body diversity, then you ll want to be able to speak to the University s definition of diversity, the University s mission, the University s core educational objectives, the diversity objectives pursued by the admissions and/or financial aid programs, the relationship between how the admissions process pursues diversity objectives and how the University uses financial aid to pursue diversity objectives, and the specific educational benefits for your University that have been achieved by presenting this aid as race-exclusive or race-conscious. 5. You ll want to know whether your University has considered race-neutral alternatives, which alternatives it has considered, whether they worked or didn t and why or why not, and why such race-neutral alternatives are not, in themselves, enough to meet the institution s goals to enroll a diverse student body. 6. You ll want to know whether your University has selected an end date for the use of race or national origin criteria in the awarding of financial aid, the making of admissions decisions, and the admission to outreach and mentoring programs, and if not, why not. You may find that no end date has been selected, but that a program of monitoring has been put in place to ensure that the use of race or national origin criteria is evaluated periodically to determine whether it continues to be warranted. C. Conclusions The promise and value of Grutter that many University counsel discerned upon a first read continue to be there. Careful reading and discussion over subsequent months have shown us, however, that Grutter does not resolve all issues. It is clear that there are highly-motivated and well-financed opponents to the consideration of race as a factor in making decisions on admissions, financial aid and the like, who will continue to challenge in the gray areas in the hope of significantly diluting the benefits of Grutter. We expect these challenges and it obviously falls upon each of us to see that our 6

7 institution is not the one which creates the conditions necessary for such a challenge to succeed, while ensuring at the same time that the fundamental benefits of diversity described in Grutter are realized. We can meet these challenges in the same fashion that we meet others, by careful and thoughtful study of the law, by keeping abreast of, and being able to address, the rapid changes in this field, and by working collaboratively with our peer institutions and others who are involved in supporting diversity in higher education. We can encourage and participate in the national discussion about the value of diversity, both on our campuses and in the general public, and particularly with those who oppose it. While it is comforting to talk to those who hold the same opinions that we do, the real test, and the real opportunity for meaningful advancement, comes when we advocate them to those who do not. And, finally, we can ensure that our institutions understand the law and adopt policies and programs which enable them to realize the benefits of diversity as described in Grutter, but which also reasonably can be expected to successfully withstand legal challenge understanding that this is of value not only for our individual institutions, but also for higher education as a whole and for the students and larger society which we serve. 7