Legal Update: A Review of the Latest Cases Concerning Diversity

1. Legal Update: A Review of the Latest Cases Concerning Diversity Gerard D. St. Ours Associate General Counsel The Johns Hopkins University November 1, 2007

2. Review: Constitutional and Statutory Limitations on Race-Conscious Action Equal Protection Clause provides that "no State shall� deny to any person within its jurisdiction the equal protection of the laws." Title VII Prohibits discrimination in employment on the basis of race, gender, religion and national orgin Title VI Prohibits discrimination in any program that receives federal funds

3. Strict Scrutiny and Narrow Tailoring �It is well established that when the government distributes burdens or benefits on the basis of individual racial classifications, that action is reviewed under strict scrutiny. . . . �[R]acical classifications are simply too perniciious to permit any but the most exact connection between justification and classification.�� Parents Involved in Community Schools v. Seattle School District No. 1, 127 S.Ct. 2738, 2751-52 (2007). Remedial justification (remedying the effects of past intentional discrimination) Diversity Questions to ask on narrow tailoring: Is the consideration of race necessary? Have race-neutral programs or strategies been considered or tried? How flexible is the consideration of race? Is race but one factor among many, or does it operate to insulate some candidates from consideration from others? What is the impact of the race-conscious practice on otherwise qualified non-beneficiaries? Are those non-qualifying candidates disadvantaged by the race-conscious practice? What is the process for review and refinement of the race-conscious program, and is there an end in site? Quoting Arthur Coleman and Scott Palmer, Diversity in Higher Education: A Strategic Planning and Policy Manual Regarding Federal Law in Admissions, Financial Aid and Outreach, p. 16 (2nd Ed., 2004, Published by the College Board). Questions to ask on narrow tailoring: Is the consideration of race necessary? Have race-neutral programs or strategies been considered or tried? How flexible is the consideration of race? Is race but one factor among many, or does it operate to insulate some candidates from consideration from others? What is the impact of the race-conscious practice on otherwise qualified non-beneficiaries? Are those non-qualifying candidates disadvantaged by the race-conscious practice? What is the process for review and refinement of the race-conscious program, and is there an end in site? Quoting Arthur Coleman and Scott Palmer, Diversity in Higher Education: A Strategic Planning and Policy Manual Regarding Federal Law in Admissions, Financial Aid and Outreach, p. 16 (2nd Ed., 2004, Published by the College Board).

4. Brief Review of Grutter Supreme Court confirms that there is a compelling interest in higher education to expose students to �widely diverse people, culture, ideas and viewpoints,� and this interest permits universities to adopt narrowly tailored race conscious programs in admissions.

5. Grutter�s Take on Diversity Supreme Court Broadly Endorsed the Benefits of Diversity Justice O�Connor: The �benefits are not theoretical but real . . . .�: Skills needed in today's marketplace can only be developed through exposure to widely diverse people, cultures, ideas, and viewpoints. Education is the very foundation of good citizenship; diffusion of knowledge and opportunity through higher education must be accessible to all; effective participation by members of all racial and ethnic groups in the civic life of our Nation is essential if the dream of one Nation, indivisible, is to be realized.

6. What does �diversity� mean in Grutter? Diversity refers to a mix of diverse backgrounds, cultures and life experiences, of which race and ethnicity are only two of several factors. Other diversity factors may include geographic origin, socioeconomic background, exceptional talents, and academic and non-academic interests.

7. Student Admissions Programs must be designed to ensure individualized review of applicants and their diversity attributes, which should include: Non-mechanical, full-file review of applicants; Flexible review entailing consideration of �all pertinent elements of diversity in light of the particular qualifications of each applicant, and to place them on the same footing for consideration, although not necessarily according them the same weight;� and Protection against burdens on individuals who do not benefit from the race-conscious policies.

8. Student Admissions Race/Ethnicity as a �plus factor� No quotas or mechanized consideration or race (Note in Gratz, the Supreme Court struck down Michigan�s undergraduate admissions program that awarded points based on race) Universities must conduct periodic reviews of their race-conscious programs. Programs should include sunset provisions and/or require periodic reviews to determine whether racial preferences are still necessary to achieve student body diversity.

9. Parents Involved in Community Schools v. Seattle School District No. 1 5-4 decision striking down race-based school assignment programs in the Seattle and Jefferson County, Kentucky school systems Chief Justice Roberts� Plurality opinion Justice Kennedy�s concurring opinion Justice Breyer�s dissent All claim to be the true legacy of Brown v. Board� Both Seattle and Jefferson County sought to justified their programs under a diversity rationale

10. The Seattle Plan 10 public high schools; incoming freshmen can rank their preferences. For any schools that are �oversubscribed�, tiebreakers are employed. The second tiebreaker depends on the racial composition of the school and how that compares to the white/nonwhite composition of the overall school district student population. If an oversubscribed school is not within 10% of the school�s overall white/nonwhite balance, the tiebreaker would be applied to assign students whose race �will serve to bring the school into balance.� Seattle: 41% white; 59% nonwhiteSeattle: 41% white; 59% nonwhite

11. Jefferson County Plan Jefferson County (Louisville) had been under a court order to desegregate from 1973 through 2000. After court order had been dissolved, the county adopted a student assignment plan. The plan requires that all shools maintain a minimum black enrollment of 15% (blacks make up 34% of the school district student population). Students are classified as �black� or �other�. At the elementary school level, students entering the system may submit an application indicating a first and second choice among the schools within their cluster. Decisions on assignments and certain transfer requests are based on available space within the schools and the racial guidelines. A student whose race would contribute to a school�s racial imbalance will not be assigned to the school.

12. Chief Justice Roberts Places Grutter in context: higher education�s interest in student body diversity Contrasts Grutter: Students not considered as individuals Exclusive consideration of race Plans tied to specific racial demographics, rather than �any pedagogic concept of the level of diversity needed to obtain the asserted educational benefits.� (i.e. not narrowly tailored) Bogeyman is �racial balancing� - - the fatal flaw of both plans. Plans use of race have minimal effect on results; this suggests that non-racial means would be effective Chief Justice Roberts attempts to exemplify the imprecise tailoring in the Seattle plan: Seattle stated that the plan was necessary to have �sufficient numbers so as to avoid the students feeling any kind of specter of exceptionality.� However, the district did not explain how anything outside the range it used (+ or- 10%) would create racial isolation, nor did it �demonstrate in any way how the educational and social benefits of racial diversity [are] more likely to be achieved at a school that is 50% white and 50% Asian-American, which would qualify as diverse under the Seattle plan, than at a a school that is 30% Asian-American, 25% African-American, 25% Latino, and 20% white, which under Seattle�s definition would be racially concentrated.�Chief Justice Roberts attempts to exemplify the imprecise tailoring in the Seattle plan: Seattle stated that the plan was necessary to have �sufficient numbers so as to avoid the students feeling any kind of specter of exceptionality.� However, the district did not explain how anything outside the range it used (+ or- 10%) would create racial isolation, nor did it �demonstrate in any way how the educational and social benefits of racial diversity [are] more likely to be achieved at a school that is 50% white and 50% Asian-American, which would qualify as diverse under the Seattle plan, than at a a school that is 30% Asian-American, 25% African-American, 25% Latino, and 20% white, which under Seattle�s definition would be racially concentrated.�

13. Justice Kennedy: The 5th Vote Joins in the decision to strike down the Seattle and Kentucky plans, but notes: The school systems identified a compelling diversity interest; Disagrees with the Chief Justice�s postulate that the �way to stop discrimination on the basis of race is to stop discriminating on the basis of race.� Kennedy: �Fifty years of experience since [Brown v. Board] should teach us that the problem before us defies so easy a solution.� Rejects notion that schools cannot address �de facto� segregation: �The decision today should not prevent school districts from continuing the important work of bringing students together of different racial, ethnic and economic backgrounds. Due to a variety of factors - - some influenced by government, some not - - neighborhoods in our communities do not reflect the diversity of our Nation as a whole. Those entrusted with directing our public schools can bring to bear the creativity of experts, parents, administrators and other concerned citizens to find a way to achieve the compelling interests they face without resorting to widesperad governmental allocation of benefits and burdens on the basis of racial classifications.�

14. More from Justice Kennedy Indicates that diverse school enrollments and reduction of the potentially harmful effects of racial isolation are compelling interests. However, the programs� blunt distinction between white/non-white (or white and �other�) do not correlate closely with advancing the goal of diversity. Further, in their design and operation, the plans had features that were imprecise and ambiguous and therefore could not withstand strict scrutiny - - a failure of narrow tailoring. For example, it was not clear that Jefferson County�s plan should have even been applied to the transfer request of the kindergartner who was the lead plaintiff - - the plan guidelines indicate that they are not to be applied to kindergartens. Moreover, the guidelines failed to make clear �who makes the decisions; what if any oversight is employed; the precise circumstances in which an assignment decision will or will not be made on the basis of race; or how it is determined which of tow similarly situated children will be subjected to a given race-based decision.�For example, it was not clear that Jefferson County�s plan should have even been applied to the transfer request of the kindergartner who was the lead plaintiff - - the plan guidelines indicate that they are not to be applied to kindergartens. Moreover, the guidelines failed to make clear �who makes the decisions; what if any oversight is employed; the precise circumstances in which an assignment decision will or will not be made on the basis of race; or how it is determined which of tow similarly situated children will be subjected to a given race-based decision.�

15. Still more Kennedy! Things school boards can do, according to Justice Kennedy: �School boards may pursue the goal of bringing together students of diverse backgrounds and races through other means, including strategic site selection of new schools; drawing attendance zones with general recognition of the demographics of neighborhoods; allocating resources for special programs; recruiting students and faculty in a targeted fashion; and tracking enrollments, performance, and other statistics by race. These mechanisms are race-conscious but do not lead to different treatment based on a classification that tells each student he or she is to be defined by race, so it is unlikely any of them would demand strict scrutiny to be found permissible.� Race can also be used as a �component� under Grutter where the school system finds that doing so is necessary in evaluating school needs. Presumably, strict scrutiny would apply. For example, outreach and partnership with majority minority schools, pipeline programsFor example, outreach and partnership with majority minority schools, pipeline programs

16. Justice Breyer�s dissent Would de-emphasizes the distinction between de jure and de facto - - looks to broad historical context Seemingly less onerous application of strict scrutiny and deference to local school boards Not hung up on �racial balancing� vs. �diversity�. Breyer identifies the interest as �Integration� and sees three essential elements: (1) historical and remedial: setting right the consequences of prior conditions of segregation; (2) educational: overcoming the adverse effects produced by highly segregated schools; (3) democratic: producing an educational environment that reflects the �pluralistic society� in which our children live - - so that we can be one Nation. Note Seattle OCR settlement; note Grutter�s nod to the democratic interest; Note the school systems target broad ranges.Note Seattle OCR settlement; note Grutter�s nod to the democratic interest; Note the school systems target broad ranges.

17. For what it�s worth Kennedy does not support Breyer�s looser interpretation of strict scrutiny; however, he seems ready to vote with the dissenters in Parents Involved if the program clearly defines diversity goals and can show how the race-conscious means it applies are necessary and correlate precisely with achieving those goals.

18. Application of Diversity to Employment? Grutter�s broad rationale presents some intriguing open questions, particularly for higher education institutions. Kennedy�s reference to �targeted� recruiting However, Title VII�s prohibition on racial discrimination calls into question any employment decision that takes race into consideration. The S. Ct. has permitted race-conscious affirmative action only on narrow grounds where there is a �manifest imbalance� between the employer�s work force and the available labor pool.

19. �Operational Need� as Justification for Race-Conscious Diversity Initiatives Petit v. City of Chicago, 352 F.3d 1111 (7th Cir. 2003): Applies Grutter in upholding Chicago�s race-conscious promotion plan for police officers (standardization of test results by race). �[A] visible presence of minorities in supervisory positions is critcal to effective policing in a racially diverse city . . . because supervisors set the tone for the department.� Also, diversity is necessary for: earning the community�s trust, a key component of effective police work. Lomack v. City of Newark, 463 F.3d 303 (3d Cir. 2006). Rejects race-based assignment and transfer plan for city fire department. Grutter�s recognition of educational benefits of diversity not relevant to the fire department�s mission, and, unlike police work, court finds no operational need for diversity to accomplish the mission of fighting fires. Both cases handed down before Parents Involved. Leaves open the question of how broadly the operational need rationale could be applied in other contexts, such as faculty employment. Petit court cites approvingly the City�s position that the presence of minorities at the sergeant rank has improved police-community relations and defused potentially explosive situations such as the tense racial situation following riots in the 1980s in a predominately Hispanic community.Petit court cites approvingly the City�s position that the presence of minorities at the sergeant rank has improved police-community relations and defused potentially explosive situations such as the tense racial situation following riots in the 1980s in a predominately Hispanic community.

20. Q & A/Discussion