Ask the Scholar
Document scope · 1 page
Scholar
Ask about this object, its catalog metadata, its source description, or the page inventory.
For page-specific OCR and visual context, open one of the page chats.
Scholar Source Context
Document identity
localId
122243772
label
OCR [Office for Civil Rights] Handout on Affirmative Action [1]
core
doc
dtoType
document
citationUrl
pageCount
1
Source metadata
id
122243772
contentType
document
title
OCR [Office for Civil Rights] Handout on Affirmative Action [1]
citationUrl
collections
Records of the Domestic Policy Council (Clinton Administration)
William "Bill" Kincaid's Files
imageCount
1
hasImages
yes
source
import
hasTranscription
no
Source extras
naId
122243772
levelOfDescription
fileUnit
otherTitles
42-t-7367457-20170692S-018-008-2017
recordType
description
ocrSource
nara-archive
Single page context
seq
1
pageIndex
0
type
document
mediaId
0c52d988619e5455
ocrText
THE WHITE HOUSE
WASHINGTON
February 9, 1998
MEMORANDUM FOR:
SYLVIA MATHEWS
MARIA ECHAVESTE
ELENA KAGAN
JUDY WINSTON
FROM:
DAWN CHIRWA AND BILL KINCAID
RE:
Review of Draft Self-assessment Guide on Affirmative Action for Institutions of
Higher Education.
The attached draft guide has been cleared by the Department of Education and the Department of
Justice. The Office for Civil Rights at Education would like to use the document in consultations
with individual postsecondary institutions, as well as in regional meetings for institutions which
have affirmative action programs. We have been working with ED and DOJ to make the
document more user-friendly and to better convey Administration support for properly conducted
affirmative action programs. Before proceeding with further constituency vetting, we would like
to get internal comments.
We would appreciate it if you could review the document and provide any comments to Dawn (at
6-7963) by COB Friday, February 13. We would be happy to discuss this if necessary.
cc:
Mike Cohen
Julie Fernandes
Scott Palmer
Peter Rundlet
Bob Shireman
EDUCATION OF BLUC ATION
UNITED STATES of AMERICA
AFFIRMATIVE ACTION
ASSESSMENT OUTLINE
Postsecondary Admissions and Financial Aid
Programs
February 1998
UNITED STATES DEPARTMENT OF EDUCATION
OFFICE FOR CIVIL RIGHTS
ASSESSMENT OUTLINE
Contents
INTRODUCTION
OVERVIEW
GUIDE
Endnotes
WORKSHEETS
ADMISSIONS
STUDENT FINANCIAL AID
ATTACHMENTS
Department's Financial Aid Guidance
List of OCR Offices
INTRODUCTION
Properly designed and conducted affirmative action programs that consider race or
national origin in postsecondary admissions and financial aid decisions are permissible under
federal law. This guide is designed to help postsecondary institutions that have, or are
considering establishing, affirmative action programs assess whether those programs are
consistent with Title VI of the Civil Rights Act of 1964 and the Constitution. Institutions that
operate affirmative action programs should rigorously review those programs on a regular basis
to ensure that they continue to be necessary and that they are being conducted consistent with the
applicable legal standards.
As used in this Outline, the term "affirmative action" means the use or consideration of
race or national origin as a factor in admissions or in the award of financial aid. Because courts
have determined that recruitment and outreach programs designed to increase the number of
minorities in an institution's applicant pool typically should not be subject to heightened
constitutional scrutiny, this Outline should not be used to assess those types of programs. This
Outline also does not address programs undertaken pursuant to a court order.
In 1994, the U.S. Department of Education published guidance regarding its evaluation
under Title VI of an institution's consideration of race or national origin in the award of financial
aid. Nondiscrimination in Federally Assisted Programs; Title VI of the Civil Rights Act of 1964,
59 Fed. Reg. 8756 (1994) [hereinafter Financial Aid Guidance]. Institutions should consult that
guidance for a more specific discussion of affirmative action in financial aid decisions, including
an institution's involvement with privately donated race-restrictive funds. The Financial Aid
Guidance is included with this Outline and can be found on the Education Department's web site
at www.ed.gov.
This Self Assessment Outline consists of an Overview, a legal Guide, and a Worksheet.
The Overview highlights the Guide's comprehensive presentation of federal standards applicable
to affirmative action in admissions and financial aid. The Worksheet is included to aid
institutions in collecting the information necessary to conduct a thorough review of their
programs. The Worksheet is designed to help institutions identify and organize information
relevant to the legal standards discussed in the Guide, but not every question necessarily will be
relevant to each institution. In addition, no single answer or combination of answers will be
conclusive as to the validity of any particular program.
There is much uncertainty with respect to the law on affirmative action at this time. New
decisions, by the Supreme Court or lower courts, may significantly affect the standards governing
the appropriate consideration of race or national origin by educational institutions. An
institution's programs may also be affected by state law requirements, such as Proposition 209 in
California. We encourage institutions to consult with their counsel, and to contact the Office for
Civil Rights ("OCR") at the Department of Education, for technical assistance. A list of OCR
offices and staff available to assist you is included in this guidance.
1
ASSESSMENT OVERVIEW
Federal legal standards that apply to the consideration of race or national origin in higher
education arise from the Constitution and Title VI of the Civil Rights Act of 1964. This
summary is intended as a brief overview of the comprehensive legal discussion in the Guide,
which must be thoroughly considered in using the Assessment Outline.
I. COVERAGE OF THE OUTLINE
Public institutions that are part of a state's government are subject to the
Fourteenth Amendment of the Constitution. Public and private institutions
that receive federal financial assistance from the U.S. Department of
Education are subject to Title VI.
This Assessment Outline applies to admissions and financial aid programs
where race, color, or national origin is a factor in decision making. It
SEE GUIDE,
applies both to programs in which race or national origin is the sole factor
in a decision and to those in which race or national origin is one of many
factors considered. The Outline does not apply to admissions or financial
aid decisions made without regard to race or national origin.
The legal standards governing the use of race or national origin in awarding
financial aid are generally the same as those applicable to admissions
decisions. The Department has published guidance on the use of race or
national origin in financial aid programs, 59 Federal Register 8756 (1994)
(copy included with this Outline). The Financial Aid Guidance is also
available on the Department of Education's internet web site, www.ed.gov.
Institutions in the Fifth Circuit, should consult the Fifth Circuit Standards
sections of the Guide and the Hopwood decision for the appropriate
standards. Institutions in the Fourth Circuit, should consider the
Podberesky v. Kirwan decision, as described in the Guide.
2. CONSIDERATION OF RACE OR NATIONAL ORIGIN IS PERMISSIBLE WHEN
THE STRICT SCRUTINY TEST IS SATISFIED
Under the Constitution and Title VI of the Civil Rights Act of 1964 it is
permissible for colleges and universities to consider race or national origin
in making admissions decisions and in awarding financial aid provided
SEE GUIDE,
that they satisfy the legal test of "strict scrutiny."
1
To satisfy strict scrutiny, the institutional interest underlying an affirmative
action measure must be "compelling" and the measure must be "narrowly
tailored" to serve that interest.
3. REMEDYING DISCRIMINATION AND ACHIEVING CAMPUS DIVERSITY ARE
COMPELLING INTERESTS SUPPORTING CONSIDERATION OF RACE OR
NATIONAL ORIGIN
The compelling interest inquiry centers on "ends" and
asks why an institution is classifying individuals on the
basis of race or national origin.
SEE GUIDE,
Remedying the effects of past discrimination constitutes a
compelling interest that justifies the narrowly tailored use of race or
national origin in admissions or financial aid.
In his landmark opinion in Bakke, Justice Powell concluded that a
university may consider race in admissions to attain the educational
benefits of diversity where race or national origin is considered as one
factor among many.
REMEDIAL PURPOSES
The Title VI regulations require a recipient of federal funds that
has discriminated in violation of Title VI or its regulations to take
remedial action to overcome the effects of past discrimination.
A college that has been found to have
SEE GUIDE,
discriminated by a court or an administrative
agency like the U.S. Department of Education,
Office for Civil Rights, must take steps to remedy that
discrimination. A finding could also be made by a State or local
legislative body, as long as the body finding discrimination had a
strong basis in evidence identifying discrimination within its
jurisdiction for which remedial action is required.
2
Absent such formal findings by a court, agency or legislature, a
college may take race-conscious remedial action if it has a strong
basis in evidence for concluding that the affirmative action is
necessary to remedy the effects of its past discrimination and is
narrowly tailored to remedy that discrimination.
DIVERSITY PURPOSES
SEE GUIDE,
In Regents of the University of California V.
Bakke, Justice Powell concluded that achieving
the educational benefits of campus diversity is a compelling reason
for considering race or national origin in admissions in a narrowly
tailored way. According to Justice Powell's opinion, colleges may
seek diversity in admissions to fulfill their academic mission
through the "robust exchange of ideas" that flows from a diverse
student body. The United States supports Justice Powell's opinion
as a correct statement of the law under the Constitution and Title
VI.
Colleges and universities may justify the use of race or national
origin to achieve fundamental educational goals through campus
diversity. An institution must be able to support its claim that
diversity serves its educational objectives.
For the consideration of race and national origin in admissions to
be lawful under a diversity rationale, an institution's definition of
diversity must include characteristics in addition to race or
national origin. Such diversity characteristics may include other
life experiences, achievements, talents, interests, extracurricular
activities, economic disadvantages, geographic background, as
well as various others.
4. USES OF RACE OR NATIONAL ORIGIN MUST BE NARROWLY TAILORED
3
The narrow tailoring inquiry focuses on "means" and asks how the government is seeking to
meet the objective of the race or national origin-based classification. If an institution supports its
affirmative action program on remedial purposes or the attainment of diversity, the use of race or
national origin must be narrowly tailored to achieve its purposes.
Whether a college's consideration of race or national
SEE GUIDE,
origin meets the narrow tailoring requirements of Title VI
and the Constitution depends upon factors established by
federal case law.
CONSIDERATION OF RACE/NATIONAL ORIGIN- NEUTRAL ALTERNATIVES
AND THE NEED FOR THE USE OF RACE OR NATIONAL ORIGIN
A school's use of race should be necessary and
SEE GUIDE,
focused as narrowly as possible on the
achievement of the school's compelling interest,
for example, remedial or diversity objectives.
Before resorting to race-conscious action, it is important that an
institution consider seriously the use of race-neutral alternative
approaches (e.g., the use of recruitment or admissions criteria that
do not include race).
MANNER RACE OR NATIONAL ORIGIN is USED, FLEXIBILITY, AND
POOL OF BENEFICIARIES
Set-asides or quotas should not be used unless
SEE GUIDE,
such measures are absolutely essential to
remedying discrimination and its effects. In
addition, admissions programs that rely on separate tracks or
separate decision-making procedures that prevent a comparison
among applicants of different races and ethnic origins are also
4
particularly vulnerable to challenge.
The use of classifications based on race or national origin should
be flexible. For example, the Supreme Court in United States V.
Paradise found that a race-conscious promotion requirement was
flexible in operation because it could be waived if no qualified
candidates were available.
Consideration of race or national origin as one factor among
several other admissions criteria in some circumstances may be
evidence of flexibility.
DURATION AND PERIODIC REVIEW
The duration of the use of a racial classification
SEE GUIDE,
should be no longer than is necessary to its
purpose. The classification should be periodically
reexamined to determine whether there is a continued need for its
use or whether it should be modified based on changing
circumstances.
OCR considers annual reviews the best practice to satisfy this
aspect of Title VI's narrow tailoring requirements.
BURDEN ON NON-BENEFICIARIES
Affirmative action necessarily imposes some
SEE GUIDE,
burden or disadvantage on persons who do not
belong to the racial or ethnic groups favored by
the program's classifications. While some burdens are acceptable,
others may be too high. In general, a race-based classification that
unsettles. legitimate, firmly rooted expectations or imposes the
entire burden on particular individuals crosses that line.
For example, if an institution terminated scholarships that had
been awarded to particular non-minority students in order to fund
a scholarship program for minority students, that might place too
much of a burden on the affected non-minority students to be
5
II
considered narrowly tailored.
Generally, the less severe and more diffuse the impact on non-
minority students, the more likely a classification based on race or
national origin will address this factor satisfactorily. It is not
necessary to show that no student's opportunity to be admitted has
been in any way diminished. Rather, the use of race or national
origin must not, overall, place an undue burden on students who
are not eligible for that consideration.
6
ASSESSMENT GUIDE
I.
WHEN IS AN INSTITUTION COVERED BY THE CONSTITUTION OR TITLE VI?
Both the Constitution and Title VI of the Civil Rights Act of 1964 may apply to an
institution's affirmative action programs. The Fourteenth Amendment to the United States
Constitution prohibits states from denying any person equal protection of the laws. Because they
are a part of state government, public colleges and universities are covered by the Fourteenth
Amendment.
Title VI provides that no person in the United States shall, on the ground of race, color, or
national origin, be excluded from participation in, be denied the benefits of, or be subjected to
discrimination under any program or activity receiving federal financial assistance. Any public
or private institution that receives financial assistance from the federal government is subject to
the requirements of Title VI. A public institution that receives federal financial assistance is
therefore covered by both the Constitution and Title VI. Title VI covers all of the operations of an
institution that receives federal financial assistance, including the institution's involvement in the
award of privately donated funds.² Title VI permits affirmative action measures that would satisfy
the requirements of the Fourteenth Amendment.³
The Office for Civil Rights at the Department of Education is responsible for enforcing the
requirements of Title VI at institutions receiving federal education funds. Institutions subject to
Title VI must abide by the provisions of the statute and comply with regulations promulgated by
the Office for Civil Rights.4
II.
WHEN DOES AN ADMISSIONS OR FINANCIAL AID PROGRAM USE A
CLASSIFICATION BASED ON RACE OR NATIONAL ORIGIN?
This Guide applies to admissions and financial aid programs that use criteria based on
race, color, or national origin as a factor in decision making. It applies both to programs in which
race or national origin is the sole factor underlying the institution's decision and to those in which
race or national origin is one of many factors considered. This Guide does not apply to
admissions decisions or financial aid awards that are based on race-neutral factors. For example,
the Guide would not apply to an institution's support for disadvantaged students through
admissions or financial aid, as long as the determination that a student is disadvantaged is not
7
based on race or national origin.
III.
COMPLIANCE WITH THE CONSTITUTION AND TITLE VI: STRICT SCRUTINY
The Supreme Court has determined that the Constitution requires that any government
program that uses race or national origin as a factor in decision making must satisfy "strict
scrutiny". As explained above, this same standard applies under Title VI to all schools receiving
federal funds. The strict scrutiny test is rigorous, but it is important to remember that affirmative
action programs are allowed under this standard as long as they meet the two prongs of the test.
To satisfy strict scrutiny, the institutional interest underlying an affirmative action measure must
be "compelling" and the measure must be "narrowly tailored" to serve that interest.⁶ The
compelling interest inquiry centers on "ends" and asks why an institution is classifying individuals
on the basis of race or national origin. The narrow tailoring inquiry focuses on "means" and asks
how the government is seeking to meet the objective of the race-based classification.
A. THE COMPELLING INTEREST
The Supreme Court has held, in the Regents of the University of California V. Bakke
decision, that a college or university may consider race in its admissions process.⁷ The interests
that may justify the consideration of race or national origin in higher education can be divided into
two broad categories: remedial interests and non-remedial interests. The Supreme Court
repeatedly has held that remedying the effects of past discrimination constitutes a compelling
interest.⁸ With respect to non-remedial interests, in his landmark opinion in Bakke, Justice
Powell concluded that a university may consider race in its admissions process in order to foster
diversity among its student body to further the university's educational objectives.⁹ The United
States supports Justice Powell's opinion as a correct statement of law under the Constitution and
Title VI.
The Court's decisions have not foreclosed the possibility that non-remedial interests other
than fostering diversity for educational purposes may also be compelling, but no such interest has
been recognized as compelling by the Supreme Court to date. Thus, there are substantial
questions as to whether and in what settings such other non-remedial objectives can constitute a
compelling interest.
1. REMEDYING THE EFFECTS OF DISCRIMINATION
A. GENERAL STANDARDS
Remedying the identified effects of past discrimination constitutes a compelling interest
that can support an institution's use of a classification based on race or national origin. This
8
discrimination could fall into two categories. First, an
Remedying the identified
institution can seek to remedy the effects of its own
effects of past
discrimination. Second, the federal government or a state or
discrimination constitutes
local government may seek to remedy the effects of
a compelling interest that
discrimination committed within its jurisdiction, including
can support an
discrimination committed by private actors, where the
institution's use of a
government becomes a passive participant in that conduct and
classification based on
thus helps to perpetuate a system of exclusion. 10
race or national origin.
Thus, a public institution may, consistent with its authority, seek to remedy the
effects of past discrimination in its educational system, including discrimination
by local school systems or by private entities, that it has helped to perpetuate.
In either category, the remedy may be aimed at ongoing patterns and practices of exclusion or at
the lingering effects of prior discriminatory conduct. 11 The fact and legacy of general, historical
societal discrimination, however, is an insufficient basis for affirmative action. Similarly,
amorphous claims of discrimination in education that are not related to an institution's programs
are inadequate. 12
An institution should be able to identify with some precision the discrimination to be
remedied. In justifying remedial affirmative action based on the current effects of past
discrimination, an institution should be prepared to articulate how any current conditions that
limit educational opportunities by race or national origin are related to past discrimination. 13
It is not necessary for a court to make a judicial finding of discrimination before an
institution may undertake remedial measures. Rather, the institution must have a "strong basis in
evidence" for its conclusion that remedial action is necessary. 14 This evidence should approach
what the Supreme Court has called "a prima facie case of a constitutional or statutory violation"
of the rights of minorities. 15 For example, significant statistical disparities between the number
of minorities admitted to an institution and the percentage of minorities in the pool of qualified
applicants might permit an inference of discrimination that
would support the use of racial or ethnic criteria intended to
When a finding of prior
correct those disparities. In making this comparison, a
discrimination, whether by a
school may consider the pool of qualified students who
court, an agency, a legislative
actually apply for admission, and the larger pool of students
body, or the institution itself,
in areas from which applications may be drawn who would
rests on a strong basis of
meet the school's admissions standards. However, mere
evidence that the institution
underrepresentation of minorities compared to the
discriminated, the institution
percentage of minorities in the general population is an
may use narrowly tailored
insufficient predicate for affirmative action. 16
affirmative action measures to
remedy the discriminationit]. VI regulations require that an institution receiving federal
9
financial assistance that has previously discriminated take action to overcome the effects of that
prior discrimination. 17 Thus if a court, a federal agency, or a legislative or administrative body
has found that a covered institution has engaged in discrimination, that institution must take
steps to remedy that discrimination. The same obligation arises if the institution itself
determines that remedial action is necessary to correct the effects of past discrimination. When
a finding of prior discrimination, whether by a court, an agency, a legislative body, or the
institution itself, rests on a strong basis of evidence that the institution discriminated, the
institution may use narrowly tailored affirmative action measures to remedy the discrimination.
B. FIFTH CIRCUIT STANDARDS: REMEDIAL OBJECTIVES
In Hopwood V. Texas, the U.S. Court of Appeals for the Fifth Circuit held that the law
school at the University of Texas could not rely on past discrimination by other schools in the
Texas state system, including other schools at the University of Texas, as a predicate for
considering race in its admissions process. 18 Rather, in the view of the court, the law school's
constitutionally valid remedial interests extended no farther than redressing the effects of any
prior racial discrimination by the law school itself. "As a result, past discrimination in
education, other than at the law school, [could not] justify the present consideration of race in
law school admissions. This holding is binding precedent in the Fifth Circuit. Accordingly,
postsecondary institutions in Texas, Louisiana, and Mississippi cannot use discrimination by
other actors in the state's educational systems as a predicate for considering race or national
origin in admissions and financial aid. In addition, one "functionally separate unit" of an
institution, such as a medical school, cannot rely on past discrimination by other units in that
institution. 20 A particular school in those states must have a strong basis in evidence for
concluding that there exist present effects from discrimination for which that school itself is
responsible. However, if a state or institution of higher education has an obligation to remedy
state or institution-wide discrimination, Hopwood
does not prohibit the appropriate legislative or administrative body, or the governing body of the
institution, from using affirmative action to remedy that discrimination in its component
schools.
21
2. NON-REMEDIAL INTERESTS
A. DIVERSITY
In his landmark opinion in Bakke, Justice Powell stated that a university may have a
compelling interest in considering the race of applicants in its admissions process in order to
foster greater diversity among its student body. Such diversity brings a wider range of
perspectives to campus, which in turn contributes to a more robust exchange of ideas. This
exchange is a central mission of higher education and in keeping with the time-honored value of
academic freedom. Moreover, in the view of Justice Powell, the First Amendment protection of
10
academic freedom supports allowing a university to "make
its own judgments" regarding education, including the
The United States supports
selection of its student body.²² During the nearly two
Justice Powell's opinion a
decades since Bakke was decided, Justice Powell's opinion
correct statement of the law
has been relied on by both public and private institutions of
under the Constitution and
higher education throughout the United States in crafting
Title VI.
their admissions policies. It has also been relied on by
lower federal and state courts. 23 The United States supports
Justice Powell's opinion as a correct statement of the law under the Constitution and Title VI.
The United States has relied on Justice Powell's opinion as a basis for concluding that
affirmative action in higher education for purposes of achieving the educational benefits of
diversity does not violate Title VII, so long as the affirmative action plan meets the narrow
tailoring standards set out in that opinion.
In order for diversity to qualify as a compelling interest, an institution must seek a
further objective beyond the mere achievement of diversity itself. The Court has consistently
rejected "racial balancing" as a goal of affirmative action, because "[p]referring members of any
one group for no reason other than race or ethnic origin is discrimination for its own sake. ,,24
For example, in Bakke, Justice Powell stated that diversity in an institution's student body can
serve the further goal of enriching the academic experience, but found no compelling interest in
assuring that the student body had a specified percentage of particular minority groups or
reducing the deficit of minorities in the medical profession. Accordingly, an institution that
uses affirmative action to achieve diversity must have a sound educational objective for its
diversity program. A school must be able to support its claim that diversity provides
educational benefits and serves the school's educational objectives.
For example, in their Amici Curiae brief filed in the Piscataway case, a coalition
of educational organizations, representing a substantial portion of the higher
education community, presented to the Supreme Court social science research
and evidence of a consensus view among educators that campus diversity has a
measurable positive effect on educational outcomes and that diversity is essential
to the missions of colleges and universities. They stated: "Both kinds of
evidence support the conclusion that diversity improves education and advances
the goals of imparting knowledge where there was preconception, and fostering
mutual regard where there was hostile stereotype. ,,,26
B. OTHER NON-REMEDIAL INTERESTS
The Supreme Court has had little occasion to address other non-remedial objectives. In
his Bakke opinion, Justice Powell assumed that a state could have a compelling interest in
"improving the delivery of health-care services to communities currently underserved," but
11
concluded that the university had failed to prove that reserving sixteen percent of the seats in its
medical school class for minority students was either needed or geared to promote that goal. 27 It
is not clear whether a racial classification that was narrowly tailored to this interest could
survive strict scrutiny. 28 Whether other non-remedial interests can be sufficiently compelling to
justify the use of classifications based on race or national origin should be considered on a case-
by-case basis.
C. FIFTH CIRCUIT STANDARDS: NON-REMEDIAL INTERESTS
The United States believes that, as Justice Powell stated in Bakke, diversity may
constitute a compelling interest justifying the consideration of race in higher education.
However, in Hopwood, the U.S. Court of Appeals for the Fifth Circuit concluded that Justice
Powell's view that diversity is a compelling interest did not represent a majority opinion of the
Supreme Court in Bakke or in any subsequent decision of the Supreme Court. The Hopwood
court held that an institution's interest in diversity to enrich the academic experience cannot
satisfy strict scrutiny. That ruling is binding in the states of Texas, Louisiana and Mississippi.
Accordingly, institutions in those three states cannot use affirmative action to foster diversity
among their student body in order to enrich the academic experience.
Institutions in the Fifth Circuit should be aware that there is language in Hopwood that
suggests that remedying past wrongs is the only compelling state interest that can justify
classifications based on race.³⁰ However, the only non-remedial interest at issue in the case was
diversity, and it may be argued that the holding of Hopwood does not extend to other non-
remedial interests that were not before the panel. Hopwood itself noted that Justice Scalia has
suggested one possible non-remedial compelling interest "a social emergency rising to the
level of imminent danger to life and limb. ,,,,31 Because the case before it did not present such an
interest, the panel did not take a position on Justice Scalia's suggestion. Institutions in Texas,
Louisiana, and Mississippi may not use affirmative action to foster diversity in order to enrich
the academic experience and should consult with their counsel before using classifications based
on race or on national origin to further any non-remedial interest other than diversity.
B. NARROW TAILORING
In addition to advancing a compelling goal, any use of race must also be "narrowly
tailored." This ensures that race-based affirmative action is the product of careful deliberation,
not hasty decision making. It also ensures that such action is truly necessary and that less
intrusive, efficacious means to the end are unavailable.
The determination of whether a particular affirmative action program is narrowly
12
tailored is highly fact-specific. As applied by the courts, the factors that typically determine
whether a measure is narrowly tailored are the following: (I) whether the institution considered
race-neutral alternatives before resorting to race-conscious action; (ii) the scope and flexibility
of the affirmative action program, including whether the racial classification is subject to a
waiver; (iii) the manner in which race is used, that is, whether race determines eligibility for a
program or whether race is just one factor in the decision making process; (iv) the comparison
of any numerical targets to the percentage of qualified minorities in the applicant pool; (v) the
duration of the program and whether it is subject to periodic review; and (vi) the degree and type
of burden imposed on non-minorities by the program.
Before describing each of the components, two general points about the narrow tailoring
test deserve mention. First, it is unlikely that an affirmative action program must satisfy every
factor. A strong showing with respect to most of the factors may compensate for a weaker
showing with respect to others.
Second, all of the factors will not be relevant in every case. The objective of the
program may determine the applicability or weight to be given a factor, and factors may play
out differently in remedial programs than they will in non-remedial programs.
I. RACE-NEUTRAL ALTERNATIVES
Before resorting to race-conscious action, an institution should give serious
consideration to race-neutral alternatives, that is, measures that do not rely on race or national
origin as a factor in decision making. For example, the Supreme Court found that a preference
for minority-owned businesses was not narrowly tailored in part because the local government
did not consider other, race-neutral means to increase minority participation in contracting
before adopting race-conscious measures, such as targeted financial assistance for small or new
businesses.³²
In the context of higher education, an institution might consider the use of
socioeconomic, geographic or other criteria that do not include race or national
origin, or increasing efforts to solicit applications from students who have not
traditionally applied for admission, including minority students.
The Supreme Court has not specified the extent to which an institution must consider
race-neutral measures before resorting to race-conscious action. Justice Powell has suggested
that in a remedial setting, it is not necessary to use the "least restrictive means" where they
would not accomplish the desired ends as well,³³ and has described the narrow tailoring
requirement as ensuring that "[less] restrictive means" are used when they would promote the
objectives of a racial classification "about as well."34 Accordingly, an institution need not
exhaust race-neutral alternatives, but it must give them serious attention and must use them
13
where efficacious.
2. SCOPE OF PROGRAM, FLEXIBILITY AND WAIVERS
If an affirmative action program's scope exceeds that necessary to achieve the
compelling interest underlying the program, the program is not narrowly tailored. A program
need not be limited to the specific individuals who suffered the past discrimination. But a
program undertaken to remedy past discrimination against certain races should not include
preferences for other racial groups who did not experience that discrimination. For example, the
Supreme Court found that a set-aside program for minority contractors was not narrowly
tailored in part because the city's evidence of discrimination, all of which pertained to the
treatment of African Americans, did not provide a predicate for the program's preferences for
Aleuts, Asian Americans, and Hispanics. 35
Courts have looked favorably upon plans in which numerical targets are waived if there
are not enough qualified minority applicants.³⁶ In the context of government contracting, for
example, Congress permitted officials to waive a national goal of ten percent participation by
minority contractors if it was necessary given the unavailability of qualified minority contractors
in a particular area, or if a grantee demonstrated that his or her best efforts would not succeed in
achieving the target. 37 Waivers such as these ensure that a program is flexible, and are
especially important if the program uses a relatively rigid measure such as a quota or set-aside.
3. MANNER IN WHICH RACE IS USED
An integral part of the narrow tailoring requirement is the manner in which race is used.
Flexible programs are more likely to be narrowly tailored than programs with rigid
requirements. Thus programs in which certain admissions positions or financial aid awards are
open only to members of designated racial or ethnic groups are significantly less likely to satisfy
the narrow tailoring requirement than programs that merely consider race or national origin as
one of many factors and are open to all races and ethnic groups.
In this regard, two general principles are apparent with respect to admissions. First, set-
asides or quotas should not be used in an admissions program unless such measures are
absolutely essential to remedying discrimination and its effects. In addition, admissions
programs that rely on separate tracks or separate decision-making procedures that prevent a
comparison among applicants of different races and ethnic origins are also particularly
vulnerable to challenge. Second, where an institution considers race or national origin to foster
diversity for educational objectives, Justice Powell's opinion in Bakke indicates that the
program should give consideration to diversity characteristics in addition to race or national
origin, such as other life experiences, achievements, talents, interests, extracurricular activities,
economic disadvantages, and geographic background.³⁸
14
Two types of racial classifications are especially vulnerable to a challenge on the ground
that they are too rigid. First and foremost are affirmative action programs in which certain
admissions positions or financial aid awards are open only to members of designated racial or
ethnic groups. A good example is the medical admissions program that the court invalidated
in Bakke, which reserved sixteen percent of the positions in the entering class of the medical
school for members of racial and ethnic minority groups.⁴⁰
The second type of classification vulnerable to attack on flexibility grounds is a program
in which race or national origin is the sole or primary factor in determining eligibility -- for
example, a scholarship program reserved for minorities. A scholarship program reserved for
minorities may be distinguished from an admissions quota reserving a portion of seats in a class
for minorities, in that the burden imposed on non-minority students in the financial aid context -
- possibly receiving less aid -- is less severe than the burden imposed by an admissions program
-- not being admitted to the institution at all. But a scholarship program open only to minorities
is less flexible than a scholarship program in which race is one of many factors that determine
eligibility for the award. Under both the admissions set-aside and the minority scholarship
program, persons not within the designated categories are ineligible for certain benefits or
positions. This is not the case in programs where race or national origin is deemed a plus in
evaluating an applicant's file but does not insulate the applicant from comparison with all other
candidates for the available benefit. 41
For a detailed discussion of the standards that should be applied to minority scholarship
programs, institutions and their counsel should consult the Financial Aid Guidance, 59 Fed.
Reg. 8756 (1994).
4. COMPARISON OF NUMERICAL TARGETS TO THE QUALIFIED APPLICANT
POOL
When evaluating the use of a numerical goal in a remedial affirmative action program,
the Supreme Court has compared the numerical goal to the percentage of minorities in the
relevant labor market or industry. The Court has rejected a city's target of providing thirty
percent of its contracts to minority businesses where the target had been selected as roughly
halfway between one percent, the percentage of contracts previously awarded to African
American businesses, and fifty percent, the percentage of African Americans in Richmond's
population. What was required, the Court stated, was a target that was related to the percentage
of African Americans in the pool of qualified contractors, not the percentage in the general
population.⁴² Therefore, institutions that use numerical goals and targets therefore should select
a goal that is related to the percentage of minorities in the pool of qualified applicants. A school
may consider the pool of qualified students who actually apply for admission, and the larger
pool of students in areas from which applications are drawn who would meet the school's
admissions standards.
15
5. DURATION AND PERIODIC REVIEW
A particular affirmative action measure should remain in place only as long as it is
needed to achieve the compelling interest that it serves. A race-based classification is therefore
more likely to satisfy the narrow tailoring test if it has a definite end date or is subject to
meaningful periodic review in order to ascertain the continued need for the measure.⁴³
Reexamination of affirmative action programs also allows an institution to fine tune its
classification or discontinue it if warranted, which may allow the program to satisfy other
factors in the narrow tailoring test. The Office for Civil Rights recommends annual reviews to
ensure compliance with this aspect of the narrow tailoring requirements of Title VI.
6. BURDEN ON NON-MINORITIES
Affirmative action necessarily imposes some burden or disadvantage on persons who do
not belong to the racial or ethnic groups favored by the program's classifications. While some
burdens are acceptable, others may be too high. In general, a race-based classification that
"unsettle[s]
legitimate, firmly rooted expectation[s]" or imposes the "entire burden
on
particular individuals" crosses that line. 44 For example, if an institution terminated scholarships
that had been awarded to particular non-minority students in order to fund a scholarship
program for minority students, that might place too much of a burden on the affected non-
minority students to be considered narrowly tailored. Generally, the less severe and more
diffuse the impact on non-minority students, the more likely that a racial or ethnic classification
will address this factor satisfactorily.
For a more detailed discussion of narrow tailoring in the context of race-targeted
financial aid, see the Financial Aid Guidance, 59 Fed. Reg. 8756 (1994).
IV. CONCLUSION
Properly designed and conducted affirmative action programs in institutions of higher
education are permissible under the Constitution and Title VI. Any covered institution that uses
race or national origin as a basis for decision making should review its program to determine if
it comports with the strict scrutiny standard. Appended to this Guide is a nonexhaustive
checklist of questions that will aid institutions in collecting the information necessary to conduct
a thorough review. Because the questions are just a guide, no single answer or combination of
answers is necessarily dispositive as to the validity of any particular program.
16
ENDNOTES
. 42 U.S.C. 2000d (1994).
See 42 U.S.C. 2000d-4a(2)(A) (1994).
With respect to the kinds of race-conscious measures at issue in this Guide, the restrictions of Title VI and of the
Equal Protection Clause are coextensive. See Regents of the University of California V. Bakke, 438 U.S. 265, 284-87
(Powell, J.), id. at 328-55 (Brennan, J., joined by White, Marshall, and Blackmun, JJ.). For other purposes, however,
the requirements of Title VI and its implementing regulations are not completely coextensive with constitutional
requirements. See Guardians Assn.. V. Civil Service Comm'n of City of New York, 463 U.S. 582, 584, 589-93 (White,
J.)(1983)(in disparate impact case not involving affirmative action, Title VI can be violated without proof of the
discriminatory intent necessary to prove a constitutional violation); id. at 623-24 (Marshall, J., concurring); id. at 642-
45 (Stevens, J., joined by Brennan and Blackmun, JJ.).
.
Those regulations are located in 34 C.F.R. Part. 100 (1997).
Adarand, 515 U.S. at 235.
Adarand, 515 U.S. at 200.
438 U.S. 265 (1978).
.
See, e.g., City of Richmond V. J.A. Croson Co., 488 U.S. 469, 498-506 (1989); Shaw v. Hunt, 116 S. Ct. 1894,
1902-03 (1996).
438 U.S. 265, 311-15 (1978) (opinion of Powell, J.).
See Croson, 488 U.S. at 491-93 (plurality opinion); id. at 518-19 (Kennedy, J. concurring in part and concurring in
the judgment).
See Adarand, 515 U.S. at 269-70 (Souter, J. dissenting); Cf. Fordice, 505 U.S. at 727-29 (state must eradicate
policies and practices traceable to prior de jure system that continue to foster segregation) .
See Croson, 488 U.S. at 499, 505.
See, e.g., Fordice, 505 U.S. at 730 n.4.
See Wygant V. Jackson Board of Educ., 476 U.S. 267, 277 (1986) (plurality opinion).
See Croson, 488 U.S. at 500.
Id. at 501-02, 509.
34 C.F.R. 100.3(b)(6)(I).
. 78 F.3d 932, 951 (5th Cir.), cert. denied, 116 S. Ct. 2581 (1996)
Id. at 954.
See id. at 951.
17
See id. at 954-55 (citing Fordice, 505 U.S. at 731-32).
Bakke, 438 U.S. at 311-14.
23. See Davis V. Halpern, 768 F. Supp. 968, 975-76 (E.D.N.Y. 1991); DeRonde V. Regents of the Univ. Of Calif.,
28 Cal.3d 575, 625 (1981); McDonald V. Hogness, 92 Wash.2d 31 (1979). But see Hopwood, 78 F.3d at 942
(concluding that Justice Powell's opinion did not represent the views of the majority of the Court)(see Fifth Circuit
Standards: Non-remedial Interests, below).
Bakke, 438 U.S. at 307 (Powell, J.) (reducing deficit of minorities in medical school and the medical profession);
see Croson, 488 U.S. at 507; Johnson V. Transportation Agency, 480 U.S. 616, 639 (1987).
See id. at 305, 307, 313. Similarly, in the law enforcement context, diversifying the ranks of officers may at times
serve vital public safety and operational needs, thereby enhancing the agency's ability to carry out its functions
effectively. See Barhold v. Rodriguez, 863 F.2d 233, 238 (2d Cir. 1988); Talbert V. City of Richmond, 648 F.2d
925, 931-32 (4th Cir. 1981), cert. denied, 454 U.S. 1145 (1982); Detroit Police Officers' Ass 'n V. Young, 608 F.2d
671, 695-96 (6th Cir. 1979), cert. denied, 452 U.S. 938 (1981); Baker V. City of St. Petersburg, 400 F.2d 294, 301
n.10 (5th Cir. 1968); cf. Wittmer V. Peters, 87 F.3d 916, 919 (7th Cir. 1996), cert. denied, 117 S. Ct. 949 (1997)
(upholding preference for a black lieutenant at a boot camp for young offenders based on the finding that the camp
would not achieve its rehabilitative mission absent the preference because 70% black inmate population unlikely to
accept military regimen with less than a 6% black security staff and no black lieutenants).
26. Brief Of Amici Curiae American Council On Education, Et Al. In Support Of Petitioner at 6, Board of
Education of the Township of Piscataway V. Taxman, No. 96-679 (Supreme Court) (On Writ of Certiorari).
Bakke, 438 U.S. at 310 (Powell, J.)
Justice Powell approvingly quoted the state court below, which had noted that there were more precise and
reliable ways to identify applicants who were genuinely interested in the medical problems of underserved
communities than race, namely, a demonstrated concern for the problem in the past and a declaration that practicing
in such a community was an applicant's primary professional goal. Id. at 310-11.
See Hopwood, 78 F.3d at 944, 948.
Id. at 944, 948.
Id. at 944 (quoting Croson, 488 U.S. at 521 (Scalia, J., concurring in judgment)).
Croson, 488 U.S. at 507.
See Fullilove V. Klutznick, 448 U.S. 448, 508 (Powell, J., concurring).
Wygant, 476 U.S. at 280 n.6 (plurality opinion of Powell, J.); cf. Billish V. City of Chicago, 989 F.2d 890, 894
(7th Cir.) (en banc) (Posner, J.) (in reviewing affirmative action measures, courts must be "sensitiv[e] to the
importance of avoiding racial criteria
whenever it is possible to do so, [as] Croson requires"), cert. denied, 510
U.S. 908 (1993).
Croson, 488 U.S. at 506.
See, e.g., United States V. Paradise, 480 U.S. 149, 177-78 (1986).
18
See Croson, 488 U.S. at 508 (discussing Fullilove, 448 U.S. at 488 (1980) (plurality opinion)).
See Bakke, 438 U.S. at 315 (Because "[t]he diversity that furthers a compelling state interest encompasses a far
broader array of qualifications and characteristics of which racial or ethnic origin is but a single though important
element," a program "focused solely on ethnic diversity would hinder rather than further attainment of genuine
diversity.") (Powell, J.)
39. In Podberesky V. Kirwan, 38 F.3d 147, 153 (4th Cir. 1994), cert. denied, 514 U.S. 1128 (1995), the U.S. Court
of Appeals for the Fourth Circuit sustained a constitutional challenge to a state university scholarship program open
only to African American students. Podberesky held that the university failed to provide sufficient factual support
that its challenged scholarship program was narrowly tailored to the asserted interest in remedying the present effects
of past discrimination. Institutions located in the Fourth Circuit, which includes the states of Virginia, Maryland,
North Carolina, and South Carolina, should review Podberesky, as that decision will guide the evaluation of the
remedial use of racial classifications in higher education in that circuit.
Bakke, 438 U.S. at 275.
See Bakke, 438 U.S. at 315-17; see also Johnson, 480 U.S. at 616 (upholding program that did not set aside any
positions for women).
See Croson, 488 U.S. at 507.
See Paradise, 480 U.S. at 178 (plurality opinion); Sheet Metal Workers, 478 U.S. at 487 (Powell, J., concurring);
Fullilove, 448 U.S. at 513 (Powell, J., concurring).
See Johnson, 480 U.S. at 638; Sheet Metal Workers, 478 U.S. at 488 (Powell, J., concurring).
19
ASSESSMENT WORKSHEET
About the Worksheet
The Worksheet is a starting point for colleges and universities to use in reviewing their
admissions and financial aid programs. The checkpoints are keyed to the legal discussion in the
Guide, which must be carefully considered in using the Worksheet.
Keep in mind that the Worksheet is designed to help institutions identify and
organize information relevant to the applicable legal standards, as discussed in
the Guide, but not every question necessarily will be relevant to each institution.
In addition, no single answer or combination of answers necessarily is dispositive
as to the validity of any particular program.
For the best use of this Worksheet, and the entire Outline, we encourage
institutions to consult with their legal counsel, and to contact the Office for Civil
Rights ("OCR") at the Department of Education, for assistance. A list of OCR
offices and staff available to assist you is included with this Outline.
The consideration of race or national origin in financial aid programs is covered by the same
legal standards as admissions although there are some questions that are discrete to each
program. The Worksheet covers admissions and financial aid programs separately, with cross
references between the two sections, to avoid repetition when the issues are the same.
1
ADMISSIONS WORKSHEET
How do the school's programs work?
CHECKPOINT(S)
BASELINE INFORMATION
1. If the institution has decided to consider race and national origin as
GUIDE,
factors in its admissions process, is the admissions process guided by
PP.
a written affirmative action plan? How are admissions structured?
For public institutions, is the consideration of race mandated or
authorized by legislation?
2. What standards guide admissions decisions and how does the admissions process
work? How and at what point in the admissions process is each admissions criterion
weighted and considered? Is each admissions criterion educationally justifiable and
closely related to the institution's mission? How and at what points are race or
national origin considered and weighted in admissions? How and at what point(s)
are minority students being admitted?
Is the consideration of race or national origin supported by a
compelling interest?
CHECKPOINT(S) COMPELLING INTEREST
3. Why does the program consider race or national origin in admissions?
GUIDE,
Is it intended to remedy discrimination, to foster diversity to achieve
PP.
an educational objective, or for some other purpose?
2
Does the college or university have a duty to remedy
discrimination on the basis of race or national origin?
CHECKPOINT(S) REMEDIAL PURPOSES
4. Are there facts that show discrimination? Is the program justified
GUIDE,
solely by reference to general societal discrimination, general
PP.
assertions of discrimination in education, or a statistical
underrepresentation of minorities as compared to their percentage of
the general population rather than the relevant pool of qualified applicants? Without
more, these are impermissible bases for affirmative action.
5. Has a court, legislative body, or agency made a finding that the institution has
discriminated against minorities? Is the institution the subject of a court
desegregation order or a legislative or administrative finding of unlawful
discrimination? Did the body making the finding have a strong basis in evidence for
its conclusion? Does the institution itself have a strong basis in evidence for
concluding that it has discriminated? If the institution is public, has a state or local
government made findings of discrimination within its jurisdiction, including
discrimination by private actors? Are there present effects of any such past
discrimination? Was the government, or is the government now, a passive participant
in that discrimination so as to perpetuate the exclusion? Did the institution help to
perpetuate that discrimination?
6. Identify the racial and ethnic composition (%African American, Hispanic, Asian-
American, American Indian, white) of the following groups: I) the institution's student
body; ii) the institution's qualified applicants; and iii) the pool of qualified potential
applicants from which the institution draws its students, for example, students
meeting the school's admission requirements living in the areas served by the
institution.
7. Based on the information above, is there underrepresentation at the school of
qualified students from particular races or national origins? If so, is the statistical
disparity significant?
8. What is the nature of the evidence? Is it statistical or based on written documents?
Are statistics based on comparisons to the general minority population, or are they
more sophisticated and focused? For example, do they attempt to identify the number
3
of qualified minorities in the applicant pool, or seek to explain what the number
would look like "but for" the exclusionary effects of discrimination? Is there
evidence on how discrimination has hampered minority opportunity in education, or
is the evidence simply based on generalized claims of societal discrimination? In
addition to any statistical or documentary evidence, are there persons who have
knowledge or other anecdotal evidence of discrimination?
9. Since the adoption of the program, have additional findings of discrimination been
made that could serve to justify the need for the program when it was adopted? If not,
can such evidence be assembled now? Is there new evidence that the remedial
program is no longer necessary?
10. Apart from any past findings or court orders, is there past discrimination affecting
admissions at that institution? Has the institution determined whether the effects of past
discrimination continue? If there have not been findings of past discrimination, is there a
strong basis in evidence to believe that there may be a current violation or the continuing
effects of past discrimination?
Is the institution seeking to achieve the educational benefits of
diversity?
CHECKPOINT(S)
DIVERSITY PURPOSES
11. Is affirmative action in admissions used to achieve the educational
GUIDE,
benefits of diversity? What is the institution's definition of diversity?
PP.
What are the institution's mission statements and how do they relate to its
diversity objectives?
12. The institution must articulate how achieving greater diversity would foster an
educational goal beyond diversity for diversity's sake. What are the educational benefits
of diversity at the institution? What are the bases for the educational benefits the
institution identifies?
13. Does diversity include factors other than race and national origin? If so, what factors?
Which admissions criterion or groups of criteria are related to the diversity goal? How is
each weighted and considered in the admissions process?
4
Is the use of race or national origin in remedial or diversity
programs narrowly tailored?
CHECKPOINT(S)
NEED FOR USE OF RACE OR NATIONAL ORIGIN AND
RACE/NATIONAL ORIGIN NEUTRAL ALTERNATIVES
14. If race or national origin is considered as a positive factor, has the
GUIDE,
institution made efforts to achieve its goals in race-neutral ways? If so,
PP.
what efforts were made and what were the results?
15. If race-neutral measures were not undertaken, why does the institution believe that
such efforts would be insufficient to serve its compelling interest without relying on race?
What was the nature and extent of the deliberation over any race-neutral alternatives?
Was there a judgment regarding the relative effectiveness of race-neutral alternatives and
race-conscious measures?
16. Does the college have data to show whether affirmative action is necessary? When
did the institution begin implementing its affirmative action program? Does the
institution have statistics or other evidence to show the effect of the program on
achievement of diversity objectives or remedying the effects of discrimination, e.g., data
regarding minority participation levels before and after affirmative action programs
began?
CHECKPOINT(S)
MANNER RACE OR NATIONAL ORIGIN IS USED,
FLEXIBILITY, AND POOL OF BENEFICIARIES
How does the college assess whether diversity has been achieved?
Does the admissions process incorporate numerical goals? By what
process were these goals derived? Do all or only some of the schools or
GUIDE,
programs have goals? If the program is remedial, are the goals related to
PP.
the percentage of minorities in the pool of qualified applicants, and do the
beneficiaries include people in racial or ethnic groups for whom there is
insufficient evidence of prior discrimination?
5
18. Are admissions decisions made through separate tracks, admissions committees, or
eligibility criteria defined on the basis of race or national origin? Does the program
establish fixed numerical set-asides? Is race an explicit requirement of eligibility for the
program? If there is no such factual requirement, does the program operate that way in
practice? Or is race just one of several factors -- a "plus" -- used in decision making?
Could the objectives of any program that uses race as a requirement for eligibility be
achieved through a more flexible use of race?
CHECKPOINT(S)
DURATION AND PERIODIC REVIEW OF THE USES OF
RACE OR NATIONAL ORIGIN
19. Is the program subject to periodic oversight, and if so, what is the
GUIDE,
nature of that oversight? Does the periodic review assess whether the
PP.
form or extent to which race or national origin is considered should be
modified in light of the outcomes of the affirmative action program? Has
the program ever been adjusted or modified in light of periodic review? What were the
results of the most recent review? Even if there was a compelling justification at the time
of adoption, that may not be the case today. In that regard, does the program have an end
date? Is there evidence of what might result if the racial classification were discontinued?
CHECKPOINT(S)
BURDEN ON NON-BENEFICIARIES
20. Does the institution periodically assess whether its consideration of
GUIDE,
race or national origin in admissions places an undue burden on students
PP.
not eligible for that consideration? What is the nature of the burden
imposed on persons who are not included in the racial or ethnic
classification established by the program? Does the program displace those persons from
existing positions or financial aid awards? What is the nature and extent of the impact
on non-beneficiaries in admissions? Does the impact of the program fall upon a
particular group or class of students, or is it more diffuse? What is the extent of other
opportunities outside of the program? Are persons who are not beneficiaries of the
program put at a significant competitive disadvantage as a result of the program?
6
STUDENT FINANCIAL AID WORKSHEET
CHECKPOINT(S)
INITIAL INFORMATION NEEDS
1. Is the institution's financial aid program guided by a written affirmative action
plan? How is the institution's financial aid process structured?
2. Does the institution's financial aid programs include the consideration of race or
national origin (as either an exclusive factor or as one among a number of
factors)? If so, how? Does the institution fund or administer "race-based
scholarships"? If so, what is the justification for each consideration of race or
national origin? Are the institution's reasons consistent with the Department's
race-targeted scholarship policy?
CHECKPOINT(S) FINANCIAL AID FOR DISADVANTAGED STUDENTS
3. Schools may target financial aid for disadvantaged students, e.g., students from
low-income families, or aid based on students' being in the first generation to
attend college or family income. Does the institution's definition of
"disadvantaged" used for participation in the program include any consideration of
race? If not, then the program is not a racial classification subject to strict
scrutiny. If yes, the program is subject to strict scrutiny and does not fit within
this principle.
CHECKPOINT(S)
COMPELLING INTERESTS
4. Why does the program consider race or national origin in financial aid decisions?
Is it intended to remedy discrimination, to foster diversity to achieve an
educational objective, or for some other purpose? If the use of race is intended to
"Rased-based scholarships" or "race-targeted aid" mean, for the purposes of this Guide, any
financial aid for which eligibility is limited to persons of a specific racial or ethnic background.
Each of the questions in this section on financial aid also are applicable to financial aid programs
where race or ethnicity are used only as a plus-factor in deciding awards. This section is based
upon the Department's 1994 race-targeted scholarships policy.
7
remedy discrimination, see checkpoints 4-10, above. If it is intended to foster
diversity to achieve an educational objective, see checkpoints 11-13, above.
CHECKPOINT(S) NARROW TAILORING OF REMEDIAL OR DIVERSITY
PROGRAMS
Are financial aid decisions that consider race or national origin narrowly tailored to
achieve their purpose? See checkpoints 14-20, above.
6. If race-based scholarships are awarded, how many does the institution award
annually? How many students at the institution, by race and national origin,
receive non-race-based financial aid, annually? What proportion of total financial
aid at the institution (institutional, state, local, Federal, private) is earmarked for
race-based scholarships? Does a comparison of the amount of race-targeted
financial aid provided to students to the total amount of aid provided to students
without regard to race or national origin show that the program places an undue
burden on other students who are not eligible for race-targeted aid?
CHECKPOINT(S)
PRIVATE GIFTS RESTRICTED BY RACE OR NATIONAL
ORIGIN
7. Are racial or other criteria attached by the donors to the award of any financial aid
funds?, If so, can the institution justify the use of race under any of the principles
of the OCR policy financial aid guidance?
8. Is any race-targeted aid received by the college's students provided directly to
students without involvement by the institution? If so, under the policy guidance,
Title VI does not apply. If the college makes privately provided race-targeted aid
part of its operations by getting involved in the offering or administration of the
aid (e.g., through selection of recipients, distribution of funds), can the college
justify the use of the aid under a diversity or remedial rationale?
8
p.'s, * 4 16
w3
EDUCATION OF DEPPRIT ATION
*
UNITED STATES of AMERICA
AFFIRMATIVE ACTION
ASSESSMENT OUTLINE
Postsecondary Admissions and Financial Aid
Programs
February 1998
UNITED STATES DEPARTMENT OF EDUCATION
OFFICE FOR CIVIL RIGHTS
ASSESSMENT OUTLINE
Contents
INTRODUCTION
OVERVIEW
GUIDE
Endnotes
WORKSHEETS
ADMISSIONS
STUDENT FINANCIAL AID
ATTACHMENTS
Department's Financial Aid Guidance
List of OCR Offices
box
?
INTRODUCTION
Properly designed and conducted affirmative action programs that consider race or
national origin in postsecondary admissions and financial aid decisions are permissible under
federal law. This guide is designed to help postsecondary institutions that have, or are
considering establishing, affirmative action programs assess whether those programs are
consistent with Title VI of the Civil Rights Act of 1964 and the Constitution. Institutions that
operate affirmative action programs should rigorously review those programs on a regular basis
to ensure that they continue to be necessary and that they are being conducted consistent with the
applicable legal standards.
As used in this Outline, the term "affirmative action" means the use or consideration of
race or national origin as a factor in admissions or in the award of financial aid. Because courts
have determined that recruitment and outreach programs designed to increase the number of
minorities in an institution's applicant pool typically should not be subject to heightened
constitutional scrutiny, this Outline should not be used to assess those types of programs. This
Outline also does not address programs undertaken pursuant to a court order.
In 1994, the U.S. Department of Education published guidance regarding its evaluation
under Title VI of an institution's consideration of race or national origin in the award of financial
aid. Nondiscrimination in Federally Assisted Programs; Title VI of the Civil Rights Act of 1964,
59 Fed. Reg. 8756 (1994) [hereinafter Financial Aid Guidance]. Institutions should consult that
guidance for a more specific discussion of affirmative action in financial aid decisions, including
an institution's involvement with privately donated race-restrictive funds. The Financial Aid
Guidance is included with this Outline and can be found on the Education Department's web site
at www.ed.gov.
This Self Assessment Outline consists of an Overview, a legal Guide, and a Worksheet.
The Overview highlights the Guide's comprehensive presentation of federal standards applicable
to affirmative action in admissions and financial aid. The Worksheet is included to aid
institutions in collecting the information necessary to conduct a thorough review of their
programs. The Worksheet is designed to help institutions identify and organize information
relevant to the legal standards discussed in the Guide, but not every question necessarily will be
relevant to each institution. In addition, no single answer or combination of answers will be
conclusive as to the validity of any particular program.
There is much uncertainty with respect to the law on affirmative action at this time. New
decisions, by the Supreme Court or lower courts, may significantly affect the standards governing
the appropriate consideration of race or national origin by educational institutions. An
institution's programs may also be affected by state law requirements, such as Proposition 209 in
California. We encourage institutions to consult with their counsel, and to contact the Office for
Civil Rights ("OCR") at the Department of Education, for technical assistance. A list of OCR
offices and staff available to assist you is included in this guidance.
1
ASSESSMENT OVERVIEW
Federal legal standards that apply to the consideration of race or national origin in higher
education arise from the Constitution and Title VI of the Civil Rights Act of 1964. This
summary is intended as a brief overview of the comprehensive legal discussion in the Guide,
which must be thoroughly considered in using the Assessment Outline.
I. COVERAGE OF THE OUTLINE
Public institutions that are part of a state's government are subject to the
Fourteenth Amendment of the Constitution. Public and private institutions
that receive federal financial assistance from the U.S. Department of
Education are subject to Title VI.
This Assessment Outline applies to admissions and financial aid programs
where race, color, or national origin is a factor in decision making. It
SEE GUIDE,
applies both to programs in which race or national origin is the sole factor
in a decision and to those in which race or national origin is one of many
factors considered. The Outline does not apply to admissions or financial
aid decisions made without regard to race or national origin.
The legal standards governing the use of race or national origin in awarding
financial aid are generally the same as those applicable to admissions
decisions. The Department has published guidance on the use of race or
national origin in financial aid programs, 59 Federal Register 8756 (1994)
(copy included with this Outline). The Financial Aid Guidance is also
available on the Department of Education's internet web site, www.ed.gov.
Institutions in the Fifth Circuit, should consult the Fifth Circuit Standards
sections of the Guide and the Hopwood decision for the appropriate
standards. Institutions in the Fourth Circuit, should consider the
Podberesky V. Kirwan decision, as described in the Guide.
2. CONSIDERATION OF RACE OR NATIONAL ORIGIN IS PERMISSIBLE WHEN
THE STRICT SCRUTINY TEST IS SATISFIED
Under the Constitution and Title VI of the Civil Rights Act of 1964 it is
permissible for colleges and universities to consider race or national origin
in making admissions decisions and in awarding financial aid provided
SEE GUIDE,
that they satisfy the legal test of "strict scrutiny."
1
To satisfy strict scrutiny, the institutional interest underlying an affirmative
action measure must be "compelling" and the measure must be "narrowly
tailored" to serve that interest.
3. REMEDYING DISCRIMINATION AND ACHIEVING CAMPUS DIVERSITY ARE
COMPELLING INTERESTS SUPPORTING CONSIDERATION OF RACE OR
NATIONAL ORIGIN
The compelling interest inquiry centers on "ends" and
asks why an institution is classifying individuals on the
basis of race or national origin.
SEE GUIDE,
Remedying the effects of past discrimination constitutes a
compelling interest that justifies the narrowly tailored use of race or
national origin in admissions or financial aid.
In his landmark opinion in Bakke, Justice Powell concluded that a
university may consider race in admissions to attain the educational
benefits of diversity where race or national origin is considered as one
factor among many.
REMEDIAL PURPOSES
The Title VI regulations require a recipient of federal funds that
has discriminated in violation of Title VI or its regulations to take
remedial action to overcome the effects of past discrimination.
A college that has been found to have
SEE GUIDE,
discriminated by a court or an administrative
agency like the U.S. Department of Education,
Office for Civil Rights, must take steps to remedy that
discrimination. A finding could also be made by a State or local
legislative body, as long as the body finding discrimination had a
strong basis in evidence identifying discrimination within its
jurisdiction for which remedial action is required.
2
Absent such formal findings by a court, agency or legislature, a
college may take race-conscious remedial action if it has a strong
basis in evidence for concluding that the affirmative action is
necessary to remedy the effects of its past discrimination and is
narrowly tailored to remedy that discrimination.
DIVERSITY PURPOSES
SEE GUIDE,
In Regents of the University of California v.
Bakke, Justice Powell concluded that achieving
the educational benefits of campus diversity is a compelling reason
for considering race or national origin in admissions in a narrowly
tailored way. According to Justice Powell's opinion, colleges may
seek diversity in admissions to fulfill their academic mission
through the "robust exchange of ideas" that flows from a diverse
student body. The United States supports Justice Powell's opinion
as a correct statement of the law under the Constitution and Title
VI.
Colleges and universities may justify the use of race or national
origin to achieve fundamental educational goals through campus
diversity. An institution must be able to support its claim that
diversity serves its educational objectives.
For the consideration of race and national origin in admissions to
be lawful under a diversity rationale, an institution's definition of
diversity must include characteristics in addition to race or
national origin. Such diversity characteristics may include other
life experiences, achievements, talents, interests, extracurricular
activities, economic disadvantages, geographic background, as
well as various others.
4. USES OF RACE OR NATIONAL ORIGIN MUST BE NARROWLY TAILORED
3
The narrow tailoring inquiry focuses on "means" and asks how the government is seeking to
meet the objective of the race or national origin-based classification. If an institution supports its
affirmative action program on remedial purposes or the attainment of diversity, the use of race or
national origin must be narrowly tailored to achieve its purposes.
Whether a college's consideration of race or national
SEE GUIDE,
origin meets the narrow tailoring requirements of Title VI
and the Constitution depends upon factors established by
federal case law.
CONSIDERATION OF RACE/NATIONAL ORIGIN- NEUTRAL ALTERNATIVES
AND THE NEED FOR THE USE OF RACE OR NATIONAL ORIGIN
A school's use of race should be necessary and
SEE GUIDE,
focused as narrowly as possible on the
achievement of the school's compelling interest,
for example, remedial or diversity objectives.
Before resorting to race-conscious action, it is important that an
institution consider seriously the use of race-neutral alternative
approaches (e.g., the use of recruitment or admissions criteria that
do not include race).
MANNER RACE OR NATIONAL ORIGIN IS USED, FLEXIBILITY, AND
POOL OF BENEFICIARIES
Set-asides or quotas should not be used unless
SEE GUIDE,
such measures are absolutely essential to
remedying discrimination and its effects. In
addition, admissions programs that rely on separate tracks or
separate decision-making procedures that prevent a comparison
among applicants of different races and ethnic origins are also
4
particularly vulnerable to challenge.
The use of classifications based on race or national origin should
be flexible. For example, the Supreme Court in United States V.
Paradise found that a race-conscious promotion requirement was
flexible in operation because it could be waived if no qualified
candidates were available.
Consideration of race or national origin as one factor among
several other admissions criteria in some circumstances may be
evidence of flexibility.
DURATION AND PERIODIC REVIEW
The duration of the use of a racial classification
SEE GUIDE,
should be no longer than is necessary to its
purpose. The classification should be periodically
reexamined to determine whether there is a continued need for its
use or whether it should be modified based on changing
circumstances.
OCR considers annual reviews the best practice to satisfy this
aspect of Title VI's narrow tailoring requirements.
BURDEN ON NON-BENEFICIARIES
Affirmative action necessarily imposes some
SEE GUIDE,
burden or disadvantage on persons who do not
belong to the racial or ethnic groups favored by
the program's classifications. While some burdens are acceptable,
others may be too high. In general, a race-based classification that
unsettles. legitimate, firmly rooted expectations or imposes the
entire burden on particular individuals crosses that line.
For example, if an institution terminated scholarships that had
been awarded to particular non-minority students in order to fund
a scholarship program for minority students, that might place too
much of a burden on the affected non-minority students to be
5
II
considered narrowly tailored.
Generally, the less severe and more diffuse the impact on non-
minority students, the more likely a classification based on race or
national origin will address this factor satisfactorily. It is not
necessary to show that no student's opportunity to be admitted has
been in any way diminished. Rather, the use of race or national
origin must not, overall, place an undue burden on students who
are not eligible for that consideration.
6
ASSESSMENT GUIDE
I.
WHEN IS AN INSTITUTION COVERED BY THE CONSTITUTION OR TITLE VI?
Both the Constitution and Title VI of the Civil Rights Act of 1964 may apply to an
institution's affirmative action programs. The Fourteenth Amendment to the United States
Constitution prohibits states from denying any person equal protection of the laws. Because they
are a part of state government, public colleges and universities are covered by the Fourteenth
Amendment.
Title VI provides that no person in the United States shall, on the ground of race, color, or
national origin, be excluded from participation in, be denied the benefits of, or be subjected to
discrimination under any program or activity receiving federal financial assistance. Any public
or private institution that receives financial assistance from the federal government is subject to
the requirements of Title VI. A public institution that receives federal financial assistance is
therefore covered by both the Constitution and Title VI. Title VI covers all of the operations of an
institution that receives federal financial assistance, including the institution's involvement in the
award of privately donated funds.² Title VI permits affirmative action measures that would satisfy
the requirements of the Fourteenth Amendment.³
The Office for Civil Rights at the Department of Education is responsible for enforcing the
requirements of Title VI at institutions receiving federal education funds. Institutions subject to
Title VI must abide by the provisions of the statute and comply with regulations promulgated by
the Office for Civil Rights.4
II.
WHEN DOES AN ADMISSIONS OR FINANCIAL AID PROGRAM USE A
CLASSIFICATION BASED ON RACE OR NATIONAL ORIGIN?
This Guide applies to admissions and financial aid programs that use criteria based on
race, color, or national origin as a factor in decision making. It applies both to programs in which
race or national origin is the sole factor underlying the institution's decision and to those in which
race or national origin is one of many factors considered. This Guide does not apply to
admissions decisions or financial aid awards that are based on race-neutral factors. For example,
the Guide would not apply to an institution's support for disadvantaged students through
admissions or financial aid, as long as the determination that a student is disadvantaged is not
7
based on race or national origin.
III.
COMPLIANCE WITH THE CONSTITUTION AND TITLE VI: STRICT SCRUTINY
The Supreme Court has determined that the Constitution requires that any government
program that uses race or national origin as a factor in decision making must satisfy "strict
scrutiny".⁵ As explained above, this same standard applies under Title VI to all schools receiving
federal funds. The strict scrutiny test is rigorous, but it is important to remember that affirmative
action programs are allowed under this standard as long as they meet the two prongs of the test.
To satisfy strict scrutiny, the institutional interest underlying an affirmative action measure must
be "compelling" and the measure must be "narrowly tailored" to serve that interest.⁶ The
compelling interest inquiry centers on "ends" and asks why an institution is classifying individuals
on the basis of race or national origin. The narrow tailoring inquiry focuses on "means" and asks
how the government is seeking to meet the objective of the race-based classification.
A. THE COMPELLING INTEREST
The Supreme Court has held, in the Regents of the University of California V. Bakke
decision, that a college or university may consider race in its admissions process.⁷ The interests
that may justify the consideration of race or national origin in higher education can be divided into
two broad categories: remedial interests and non-remedial interests. The Supreme Court
repeatedly has held that remedying the effects of past discrimination constitutes a compelling
interest.⁸ With respect to non-remedial interests, in his landmark opinion in Bakke, Justice
Powell concluded that a university may consider race in its admissions process in order to foster
diversity among its student body to further the university's educational objectives.⁹ The United
States supports Justice Powell's opinion as a correct statement of law under the Constitution and
Title VI.
The Court's decisions have not foreclosed the possibility that non-remedial interests other
than fostering diversity for educational purposes may also be compelling, but no such interest has
been recognized as compelling by the Supreme Court to date. Thus, there are substantial
questions as to whether and in what settings such other non-remedial objectives can constitute a
compelling interest.
1. REMEDYING THE EFFECTS OF DISCRIMINATION
A. GENERAL STANDARDS
Remedying the identified effects of past discrimination constitutes a compelling interest
that can support an institution's use of a classification based on race or national origin. This
8
discrimination could fall into two categories. First, an
Remedying the identified
institution can seek to remedy the effects of its own
effects of past
discrimination constitutes
discrimination. Second, the federal government or a state or
local government may seek to remedy the effects of
a compelling interest that
discrimination committed within its jurisdiction, including
can support an
discrimination committed by private actors, where the
institution's use of a
government becomes a passive participant in that conduct and
classification based on
thus helps to perpetuate a system of exclusion 10
race or national origin.
Thus, a public institution may, consistent with its authority, seek to remedy the
effects of past discr mination in its educational system, including discrimination
by local school systems or by private entities, that it has helped to perpetuate.
In either category, the remedy may be aimed at ongoing patterns and practices of exclusion or at
the lingering effects of prior discriminatory conduct. 11 The fact and legacy of general, historical
societal discrimination, however, is an insufficient basis for affirmative action. Similarly,
amorphous claims of discrimination in education that are not related to an institution's programs
are inadequate. 12
An institution should be able to identify with some precision the discrimination to be
remedied. In justifying remedial affirmative action based on the current effects of past
discrimination, an institution should be prepared to articulate how any current conditions that
limit educational opportunities by race or national origin are related to past discrimination. 13
It is not necessary for a court to make a judicial finding of discrimination before an
institution may undertake remedial measures. Rather, the institution must have a "strong basis in
evidence" for its conclusion that remedial action is necessary. 14 This evidence should approach
what the Supreme Court has called "a prima facie case of a constitutional or statutory violation"
of the rights of minorities. 15 For example, significant statistical disparities between the number
of minorities admitted to an institution and the percentage of minorities in the pool of qualified
applicants might permit an inference of discrimination that
would support the use of racial or ethnic criteria intended to
When a finding of prior
correct those disparities. In making this comparison, a
discrimination, whether by a
school may consider the pool of qualified students who
court, an agency, a legislative
actually apply for admission, and the larger pool of students
body, or the institution itself,
in areas from which applications may be drawn who would
rests on a strong basis of
meet the school's admissions standards. However, mere
evidence that the institution
underrepresentation of minorities compared to the
discriminated, the institution
percentage of minorities in the general population is an
may use narrowly tailored
insufficient predicate for affirmative action. 16
affirmative action measures to
remedy the discriminationtle VI regulations require that an institution receiving federal
9
financial assistance that has previously discriminated take action to overcome the effects of that
prior discrimination. 17 Thus if a court, a federal agency, or a legislative or administrative body
has found that a covered institution has engaged in discrimination, that institution must take
steps to remedy that discrimination. The same obligation arises if the institution itself
determines that remedial action is necessary to correct the effects of past discrimination. When
a finding of prior discrimination, whether by a court, an agency, a legislative body, or the
institution itself, rests on a strong basis of evidence that the institution discriminated, the
institution may use narrowly tailored affirmative action measures to remedy the discrimination.
B. FIFTH CIRCUIT STANDARDS: REMEDIAL OBJECTIVES
In Hopwood V. Texas, the U.S. Court of Appeals for the Fifth Circuit held that the law
school at the University of Texas could not rely on past discrimination by other schools in the
Texas state system, including other schools at the University of Texas, as a predicate for
considering race in its admissions process. 18 Rather, in the view of the court, the law school's
constitutionally valid remedial interests extended no farther than redressing the effects of any
prior racial discrimination by the law school itself. "As a result, past discrimination in
education, other than at the law school, [could not] justify the present consideration of race in
law school admissions. This holding is binding precedent in the Fifth Circuit. Accordingly,
postsecondary institutions in Texas, Louisiana, and Mississippi cannot use discrimination by
other actors in the state's educational systems as a predicate for considering race or national
origin in admissions and financial aid. In addition, one "functionally separate unit" of an
institution, such as a medical school, cannot rely on past discrimination by other units in that
institution. 20 A particular school in those states must have a strong basis in evidence for
concluding that there exist present effects from discrimination for which that school itself is
responsible. However, if a state or institution of higher education has an obligation to remedy
state or institution-wide discrimination, Hopwood
does not prohibit the appropriate legislative or administrative body, or the governing body of the
institution, from using affirmative action to remedy that discrimination in its component
schools.
21
2. NON-REMEDIAL INTERESTS
A. DIVERSITY
box?
In his landmark opinion in Bakke, Justice Powell stated that a university may have a
compelling interest in considering the race of applicants in its admissions process in order to
foster greater diversity among its student body. Such diversity brings a wider range of
perspectives to campus, which in turn contributes to a more robust exchange of ideas. This
exchange is a central mission of higher education and in keeping with the time-honored value of
academic freedom. Moreover, in the view of Justice Powell, the First Amendment protection of
10
academic freedom supports allowing a university to "make
its own judgments" regarding education, including the
The United States supports
selection of its student body.²² During the nearly two
Justice Powell's opinion as a
decades since Bakke was decided, Justice Powell's opinion
correct statement of the law
has been relied on by both public and private institutions of
under the Constitution and
higher education throughout the United States in crafting
Title VI.
their admissions policies. It has also been relied on by
lower federal and state courts.²³ The United States supports
Justice Powell's opinion as a correct statement of the law under the Constitution and Title VI.
The United States has relied on Justice Powell's opinion as a basis for concluding that
affirmative action in higher education for purposes of achieving the educational benefits of
diversity does not violate Title VII, SO long as the affirmative action plan meets the narrow
tailoring standards set out in that opinion.
In order for diversity to qualify as a compelling interest, an institution must seek a
further objective beyond the mere achievement of diversity itself. The Court has consistently
rejected "racial balancing" as a goal of affirmative action, because "[p]referring members of any
one group for no reason other than race or ethnic origin is discrimination for its own sake. ,,,24
For example, in Bakke, Justice Powell stated that diversity in an institution's student body can
serve the further goal of enriching the academic experience, but found no compelling interest in
assuring that the student body had a specified percentage of particular minority groups or
reducing the deficit of minorities in the medical profession.² Accordingly, an institution that
uses affirmative action to achieve diversity must have a sound educational objective for its
diversity program. A school must be able to support its claim that diversity provides
educational benefits and serves the school's educational objectives.
For example, in their Amici Curiae brief filed in the Piscataway case, a coalition
of educational organizations, representing a substantial portion of the higher
education community, presented to the Supreme Court social science research
and evidence of a consensus view among educators that campus diversity has a
measurable positive effect on educational outcomes and that diversity is essential
to the missions of colleges and universities. They stated: "Both kinds of
evidence support the conclusion that diversity improves education and advances
the goals of imparting knowledge where there was preconception, and fostering
mutual regard where there was hostile stereotype."
B. OTHER NON-REMEDIAL INTERESTS
The Supreme Court has had little occasion to address other non-remedial objectives. In
his Bakke opinion, Justice Powell assumed that a state could have a compelling interest in
"improving the delivery of health-care services to communities currently underserved," but
11
concluded that the university had failed to prove that reserving sixteen percent of the seats in its
medical school class for minority students was either needed or geared to promote that goal. 27 It
is not clear whether a racial classification that was narrowly tailored to this interest could
survive strict scrutiny. 28 Whether other non-remedial interests can be sufficiently compelling to
justify the use of classifications based on race or national origin should be considered on a case-
by-case basis.
C. FIFTH CIRCUIT STANDARDS: NON-REMEDIAL INTERESTS
The United States believes that, as Justice Powell stated in Bakke, diversity may
constitute a compelling interest justifying the consideration of race in higher education.
However, in Hopwood, the U.S. Court of Appeals for the Fifth Circuit concluded that Justice
Powell's view that diversity is a compelling interest did not represent a majority opinion of the
Supreme Court in Bakke or in any subsequent decision of the Supreme Court. The Hopwood
court held that an institution's interest in diversity to enrich the academic experience cannot
satisfy strict scrutiny. 29 That ruling is binding in the states of Texas, Louisiana and Mississippi.
Accordingly, institutions in those three states cannot use affirmative action to foster diversity
among their student body in order to enrich the academic experience.
Institutions in the Fifth Circuit should be aware that there is language in Hopwood that
suggests that remedying past wrongs is the only compelling state interest that can justify
classifications based on race. 30 However, the only non-remedial interest at issue in the case was
diversity, and it may be argued that the holding of Hopwood does not extend to other non-
remedial interests that were not before the panel. Hopwood itself noted that Justice Scalia has
suggested one possible non-remedial compelling interest "a social emergency rising to the
level of imminent danger to life and limb. ,,,,31 Because the case before it did not present such an
interest, the panel did not take a position on Justice Scalia's suggestion. Institutions in Texas,
Louisiana, and Mississippi may not use affirmative action to foster diversity in order to enrich
the academic experience and should consult with their counsel before using classifications based
on race or on national origin to further any non-remedial interest other than diversity.
B. NARROW TAILORING
In addition to advancing a compelling goal, any use of race must also be "narrowly
tailored." This ensures that race-based affirmative action is the product of careful deliberation,
not hasty decision making. It also ensures that such action is truly necessary and that less
intrusive, efficacious means to the end are unavailable.
The determination of whether a particular affirmative action program is narrowly
12
tailored is highly fact-specific. As applied by the courts, the factors that typically determine
whether a measure is narrowly tailored are the following: (I) whether the institution considered
race-neutral alternatives before resorting to race-conscious action; (ii) the scope and flexibility
of the affirmative action program, including whether the racial classification is subject to a
waiver; (iii) the manner in which race is used, that is, whether race determines eligibility for a
program or whether race is just one factor in the decision making process; (iv) the comparison
of any numerical targets to the percentage of qualified minorities in the applicant pool; (v) the
duration of the program and whether it is subject to periodic review; and (vi) the degree and type
of burden imposed on non-minorities by the program.
Before describing each of the components, two general points about the narrow tailoring
test deserve mention. First, it is unlikely that an affirmative action program must satisfy every
factor. A strong showing with respect to most of the factors may compensate for a weaker
showing with respect to others.
Second, all of the factors will not be relevant in every case. The objective of the
program may determine the applicability or weight to be given a factor, and factors may play
out differently in remedial programs than they will in non-remedial programs.
1. RACE-NEUTRAL ALTERNATIVES
Before resorting to race-conscious action, an institution should give serious
consideration to race-neutral alternatives, that is, measures that do not rely on race or national
origin as a factor in decision making. For example, the Supreme Court found that a preference
for minority-owned businesses was not narrowly tailored in part because the local government
did not consider other, race-neutral means to increase minority participation in contracting
before adopting race-conscious measures, such as targeted financial assistance for small or new
businesses.³²
admissions
as
neutral
In the context of higher education an institution might consider the use of
socioeconomic, geographic or other criteria that do not include race or national
origin, or increasing efforts to solicit applications from students who have not
traditionally applied for admission, including minority students.
The Supreme Court has not specified the extent to which an institution must consider
race-neutral measures before resorting to race-conscious action. Justice Powell has suggested
that in a remedial setting, it is not necessary to use the "least restrictive means" where they
would not accomplish the desired ends as well,³³ and has described the narrow tailoring
requirement as ensuring that "[less] restrictive means" are used when they would promote the
objectives of a racial classification "about as well."34 Accordingly, an institution need not
exhaust race-neutral alternatives, but it must give them serious attention and must use them
13
where efficacious.
2. SCOPE OF PROGRAM, FLEXIBILITY AND WAIVERS
If an affirmative action program's scope exceeds that necessary to achieve the
compelling interest underlying the program, the program is not narrowly tailored. A program
need not be limited to the specific individuals who suffered the past discrimination. But a
program undertaken to remedy past discrimination against certain races should not include
preferences for other racial groups who did not experience that discrimination. For example, the
Supreme Court found that a set-aside program for minority contractors was not narrowly
tailored in part because the city's evidence of discrimination, all of which pertained to the
treatment of African Americans, did not provide a predicate for the program's preferences for
Aleuts, Asian Americans, and Hispanics. 35
Courts have looked favorably upon plans in which numerical targets are waived if there
are not enough qualified minority applicants.³⁶ In the context of government contracting, for
example, Congress permitted officials to waive a national goal of ten percent participation by
minority contractors if it was necessary given the unavailability of qualified minority contractors
in a particular area, or if a grantee demonstrated that his or her best efforts would not succeed in
achieving the target. 37 Waivers such as these ensure that a program is flexible, and are
especially important if the program uses a relatively rigid measure such as a quota or set-aside.
3. MANNER IN WHICH RACE IS USED
An integral part of the narrow tailoring requirement is the manner in which race is used.
Flexible programs are more likely to be narrowly tailored than programs with rigid
requirements. Thus programs in which certain admissions positions or financial aid awards are
open only to members of designated racial or ethnic groups are significantly less likely to satisfy
the narrow tailoring requirement than programs that merely consider race or national origin as
one of many factors and are open to all races and ethnic groups.
In this regard, two general principles are apparent with respect to admissions. First, set-
asides or quotas should not be used in an admissions program unless such measures are
absolutely essential to remedying discrimination and its effects. In addition, admissions
programs that rely on separate tracks or separate decision-making procedures that prevent a
comparison among applicants of different races and ethnic origins are also particularly
vulnerable to challenge. Second, where an institution considers race or national origin to foster
diversity for educational objectives, Justice Powell's opinion in Bakke indicates that the
program should give consideration to diversity characteristics in addition to race or national
origin, such as other life experiences, achievements, talents, interests, extracurricular activities,
] boy?
economic disadvantages, and geographic background.³⁸
14
Two types of racial classifications are especially vulnerable to a challenge on the ground
that they are too rigid. First and foremost are affirmative action programs in which certain
admissions positions or financial aid awards are open only to members of designated racial or
ethnic groups. A good example is the medical admissions program that the court invalidated
in Bakke, which reserved sixteen percent of the positions in the entering class of the medical
school for members of racial and ethnic minority groups.⁴⁰
The second type of classification vulnerable to attack on flexibility grounds is a program
in which race or national origin is the sole or primary factor in determining eligibility -- for
example, a scholarship program reserved for minorities. A scholarship program reserved for
minorities may be distinguished from an admissions quota reserving a portion of seats in a class
for minorities, in that the burden imposed on non-minority students in the financial aid context -
- possibly receiving less aid -- is less severe than the burden imposed by an admissions program
-- not being admitted to the institution at all. But a scholarship program open only to minorities
is less flexible than a scholarship program in which race is one of many factors that determine
eligibility for the award. Under both the admissions set-aside and the minority scholarship
program, persons not within the designated categories are ineligible for certain benefits or
positions. This is not the case in programs where race or national origin is deemed a plus in
evaluating an applicant's file but does not insulate the applicant from comparison with all other
candidates for the available benefit.⁴¹
For a detailed discussion of the standards that should be applied to minority scholarship
programs, institutions and their counsel should consult the Financial Aid Guidance, 59 Fed.
Reg. 8756 (1994).
4. COMPARISON OF NUMERICAL TARGETS TO THE QUALIFIED APPLICANT
POOL
When evaluating the use of a numerical goal in a remedial affirmative action program,
the Supreme Court has compared the numerical goal to the percentage of minorities in the
relevant labor market or industry. The Court has rejected a city's target of providing thirty
percent of its contracts to minority businesses where the target had been selected as roughly
halfway between one percent, the percentage of contracts previously awarded to African
American businesses, and fifty percent, the percentage of African Americans in Richmond's
population. What was required, the Court stated, was a target that was related to the percentage
of African Americans in the pool of qualified contractors, not the percentage in the general
population.⁴² Therefore, institutions that use numerical goals and targets therefore should select
a goal that is related to the percentage of minorities in the pool of qualified applicants. A school
may consider the pool of qualified students who actually apply for admission, and the larger
pool of students in areas from which applications are drawn who would meet the school's
admissions standards.
15
5. DURATION AND PERIODIC REVIEW
A particular affirmative action measure should remain in place only as long as it is
needed to achieve the compelling interest that it serves. A race-based classification is therefore
i
more likely to satisfy the narrow tailoring test if it has a definite end date or is subject to
meaningful periodic review in order to ascertain the continued need for the measure.⁴³
Reexamination of affirmative action programs also allows an institution to fine tune its
classification or discontinue it if warranted, which may allow the program to satisfy other
factors in the narrow tailoring test. The Office for Civil Rights recommends annual reviews to
ensure compliance with this aspect of the narrow tailoring requirements of Title VI.
6. BURDEN ON NON-MINORITIES
Affirmative action necessarily imposes some burden or disadvantage on persons who do
not belong to the racial or ethnic groups favored by the program's classifications. While some
burdens are acceptable, others may be too high. In general, a race-based classification that
?
"unsettle[s]
legitimate, firmly rooted expectation[s]" or imposes the "entire burden
on
particular individuals" crosses that line. 44 For example, if an institution terminated scholarships
that had been awarded to particular non-minority students in order to fund a scholarship
program for minority students, that might place too much of a burden on the affected non-
minority students to be considered narrowly tailored. Generally, the less severe and more
diffuse the impact on non-minority students, the more likely that a racial or ethnic classification
will address this factor satisfactorily.
For a more detailed discussion of narrow tailoring in the context of race-targeted
financial aid, see the Financial Aid Guidance, 59 Fed. Reg. 8756 (1994).
IV. CONCLUSION
Properly designed and conducted affirmative action programs in institutions of higher
education are permissible under the Constitution and Title VI. Any covered institution that uses
race or national origin as a basis for decision making should review its program to determine if
it comports with the strict scrutiny standard. Appended to this Guide is a nonexhaustive
checklist of questions that will aid institutions in collecting the information necessary to conduct
a thorough review. Because the questions are just a guide, no single answer or combination of
answers is necessarily dispositive as to the validity of any particular program.
16
ENDNOTES
42 U.S.C. 2000d (1994).
See 42 U.S.C. 2000d-4a(2)(A) (1994).
With respect to the kinds of race-conscious measures at issue in this Guide, the restrictions of Title VI and of the
Equal Protection Clause are coextensive. See Regents of the University of California V. Bakke, 438 U.S. 265, 284-87
(Powell, J.), id. at 328-55 (Brennan, J., joined by White, Marshall, and Blackmun, JJ.). For other purposes, however,
the requirements of Title VI and its implementing regulations are not completely coextensive with constitutional
requirements. See Guardians Assn.. V. Civil Service Comm 'n of City of New York, 463 U.S. 582, 584, 589-93 (White,
J.)(1983) (in disparate impact case not involving affirmative action, Title VI can be violated without proof of the
discriminatory intent necessary to prove a constitutional violation); id. at 623-24 (Marshall, J., concurring); id. at 642-
45 (Stevens, J., joined by Brennan and Blackmun, JJ.).
Those regulations are located in 34 C.F.R. Part. 100 (1997).
Adarand, 515 U.S. at 235.
Adarand, 515 U.S. at 200.
438 U.S. 265 (1978).
See, e.g., City of Richmond V. J.A. Croson Co., 488 U.S. 469, 498-506 (1989); Shaw V. Hunt, 116 S. Ct. 1894,
1902-03 (1996).
438 U.S. 265, 311-15 (1978) (opinion of Powell, J.).
See Croson, 488 U.S. at 491-93 (plurality opinion); id. at 518-19 (Kennedy, J. concurring in part and concurring in
the judgment).
See Adarand, 515 U.S. at 269-70 (Souter, J. dissenting); Cf. Fordice, 505 U.S. at 727-29 (state must eradicate
policies and practices traceable to prior de jure system that continue to foster segregation)
.
See Croson, 488 U.S. at 499, 505.
See, e.g., Fordice, 505 U.S. at 730 n.4.
See Wygant V. Jackson Board of Educ., 476 U.S. 267, 277 (1986) (plurality opinion).
See Croson, 488 U.S. at 500.
Id. at 501-02, 509.
34 C.F.R. 100.3(b)(6)(I).
78 F.3d 932, 951 (5th Cir.), cert. denied, 116 S. Ct. 2581 (1996)
Id. at 954.
See id. at 951.
17
See id. at 954-55 (citing Fordice, 505 U.S. at 731-32).
Bakke, 438 U.S. at 311-14.
23. See Davis V. Halpern, 768 F. Supp. 968, 975-76 (E.D.N.Y. 1991); DeRonde V. Regents of the Univ. Of Calif.,
28 Cal.3d 575, 625 (1981); McDonald V. Hogness, 92 Wash.2d 31 (1979). But see Hopwood, 78 F.3d at 942
(concluding that Justice Powell's opinion did not represent the views of the majority of the Court)(see Fifth Circuit
Standards: Non-remedial Interests, below).
Bakke, 438 U.S. at 307 (Powell, J.) (reducing deficit of minorities in medical school and the medical profession);
see Croson, 488 U.S. at 507; Johnson V. Transportation Agency, 480 U.S. 616, 639 (1987).
See id. at 305, 307, 313. Similarly, in the law enforcement context, diversifying the ranks of officers may at times
serve vital public safety and operational needs, thereby enhancing the agency's ability to carry out its functions
effectively. See Barhold V. Rodriguez, 863 F.2d 233, 238 (2d Cir. 1988); Talbert V. City of Richmond, 648 F.2d
925, 931-32 (4th Cir. 1981), cert. denied, 454 U.S. 1145 (1982); Detroit Police Officers' Ass 'n V. Young, 608 F.2d
671, 695-96 (6th Cir. 1979), cert. denied, 452 U.S. 938 (1981); Baker V. City of St. Petersburg, 400 F.2d 294, 301
n. 10 (5th Cir. 1968); cf. Wittmer V. Peters, 87 F.3d 916, 919 (7th Cir. 1996), cert. denied, 117 S. Ct. 949 (1997)
(upholding preference for a black lieutenant at a boot camp for young offenders based on the finding that the camp
would not achieve its rehabilitative mission absent the preference because 70% black inmate population unlikely to
accept military regimen with less than a 6% black security staff and no black lieutenants).
26. Brief Of Amici Curiae American Council On Education, Et Al. In Support Of Petitioner at 6, Board of
Education of the Township of Piscataway V. Taxman, No. 96-679 (Supreme Court) (On Writ of Certiorari).
Bakke, 438 U.S. at 310 (Powell, J.)
Justice Powell approvingly quoted the state court below, which had noted that there were more precise and
reliable ways to identify applicants who were genuinely interested in the medical problems of underserved
communities than race, namely, a demonstrated concern for the problem in the past and a declaration that practicing
in such a community was an applicant's primary professional goal. Id. at 310-11.
See Hopwood, 78 F.3d at 944, 948.
Id. at 944, 948.
Id. at 944 (quoting Croson, 488 U.S. at 521 (Scalia, J., concurring in judgment)).
Croson, 488 U.S. at 507.
See Fullilove V. Klutznick, 448 U.S. 448, 508 (Powell, J., concurring).
Wygant, 476 U.S. at 280 n.6 (plurality opinion of Powell, J.); cf. Billish V. City of Chicago, 989 F.2d 890, 894
(7th Cir.) (en banc) (Posner, J.) (in reviewing affirmative action measures, courts must be "sensitiv[e] to the
importance of avoiding racial criteria
whenever it is possible to do so, [as] Croson requires"), cert. denied, 510
U.S. 908 (1993).
Croson, 488 U.S. at 506.
See, e.g., United States V. Paradise, 480 U.S. 149, 177-78 (1986).
18
See Croson, 488 U.S. at 508 (discussing Fullilove, 448 U.S. at 488 (1980) (plurality opinion)).
See Bakke, 438 U.S. at 315 (Because "[t]he diversity that furthers a compelling state interest encompasses a far
broader array of qualifications and characteristics of which racial or ethnic origin is but a single though important
element," a program "focused solely on ethnic diversity would hinder rather than further attainment of genuine
diversity.") (Powell, J.)
39. In Podberesky V. Kirwan, 38 F.3d 147, 153 (4th Cir. 1994), cert. denied, 514 U.S. 1128 (1995), the U.S. Court
of Appeals for the Fourth Circuit sustained a constitutional challenge to a state university scholarship program open
only to African American students. Podberesky held that the university failed to provide sufficient factual support
that its challenged scholarship program was narrowly tailored to the asserted interest in remedying the present effects
of past discrimination. Institutions located in the Fourth Circuit, which includes the states of Virginia, Maryland,
North Carolina, and South Carolina, should review Podberesky, as that decision will guide the evaluation of the
remedial use of racial classifications in higher education in that circuit.
Bakke, 438 U.S. at 275.
See Bakke, 438 U.S. at 315-17; see also Johnson, 480 U.S. at 616 (upholding program that did not set aside any
positions for women).
See Croson, 488 U.S. at 507.
See Paradise, 480 U.S. at 178 (plurality opinion); Sheet Metal Workers, 478 U.S. at 487 (Powell, J., concurring);
Fullilove, 448 U.S. at 513 (Powell, J., concurring).
See Johnson, 480 U.S. at 638; Sheet Metal Workers, 478 U.S. at 488 (Powell, J., concurring).
19
ASSESSMENT WORKSHEET
About the Worksheet
The Worksheet is a starting point for colleges and universities to use in reviewing their
admissions and financial aid programs. The checkpoints are keyed to the legal discussion in the
Guide, which must be carefully considered in using the Worksheet.
Keep in mind that the Worksheet is designed to help institutions identify and
organize information relevant to the applicable legal standards, as discussed in
the Guide, but not every question necessarily will be relevant to each institution.
In addition, no single answer or combination of answers necessarily is dispositive
as to the validity of any particular program.
For the best use of this Worksheet, and the entire Outline, we encourage
institutions to consult with their legal counsel, and to contact the Office for Civil
Rights ("OCR") at the Department of Education, for assistance. A list of OCR
offices and staff available to assist you is included with this Outline.
The consideration of race or national origin in financial aid programs is covered by the same
legal standards as admissions although there are some questions that are discrete to each
program. The Worksheet covers admissions and financial aid programs separately, with cross
references between the two sections, to avoid repetition when the issues are the same.
1
ADMISSIONS WORKSHEET
How do the school's programs work?
CHECKPOINT(S)
BASELINE INFORMATION
1. If the institution has decided to consider race and national origin as
GUIDE,
factors in its admissions process, is the admissions process guided by
PP.
a written affirmative action plan? How are admissions structured?
For public institutions, is the consideration of race mandated or
authorized by legislation?
2. What standards guide admissions decisions and how does the admissions process
work? How and at what point in the admissions process is each admissions criterion
weighted and considered? Is each admissions criterion educationally justifiable and
closely related to the institution's mission? How and at what points are race or
national origin considered and weighted in admissions? How and at what point(s)
are minority students being admitted?
Is the consideration of race or national origin supported by a
compelling interest?
CHECKPOINT(S) COMPELLING INTEREST
3. Why does the program consider race or national origin in admissions?
GUIDE,
Is it intended to remedy discrimination, to foster diversity to achieve
PP.
an educational objective, or for some other purpose?
2
Does the college or university have a duty to remedy
discrimination on the basis of race or national origin?
CHECKPOINT(S) REMEDIAL PURPOSES
4. Are there facts that show discrimination? Is the program justified
GUIDE,
solely by reference to general societal discrimination, general
assertions of discrimination in education, or a statistical
PP.
underrepresentation of minorities as compared to their percentage of
the general population rather than the relevant pool of qualified applicants? Without
] Ital
more, these are impermissible bases for affirmative action.
5. Has a court, legislative body, or agency made a finding that the institution has
discriminated against minorities? Is the institution the subject of a court
desegregation order or a legislative or administrative finding of unlawful
discrimination? Did the body making the finding have a strong basis in evidence for
its conclusion? Does the institution itself have a strong basis in evidence for
concluding that it has discriminated? If the institution is public, has a state or local
government made findings of discrimination within its jurisdiction, including
discrimination by private actors? Are there present effects of any such past
discrimination? Was the government, or is the government now, a passive participant
in that discrimination so as to perpetuate the exclusion? Did the institution help to
perpetuate that discrimination?
6. Identify the racial and ethnic composition (%African American, Hispanic, Asian-
American, American Indian, white) of the following groups: I) the institution's student
body; ii) the institution's qualified applicants; and iii) the pool of qualified potential
applicants from which the institution draws its students, for example, students
meeting the school's admission requirements living in the areas served by the
institution.
7. Based on the information above, is there underrepresentation at the school of
qualified students from particular races or national origins? If so, is the statistical
disparity significant?
8. What is the nature of the evidence? Is it statistical or based on written documents?
Are statistics based on comparisons to the general minority population, or are they
more sophisticated and focused? For example, do they attempt to identify the number
3
of qualified minorities in the applicant pool, or seek to explain what the number
would look like "but for" the exclusionary effects of discrimination? Is there
evidence on how discrimination has hampered minority opportunity in education, or
is the evidence simply based on generalized claims of societal discrimination? In
addition to any statistical or documentary evidence, are there persons who have
knowledge or other anecdotal evidence of discrimination?
9. Since the adoption of the program, have additional findings of discrimination been
made that could serve to justify the need for the program when it was adopted? If not,
can such evidence be assembled now? Is there new evidence that the remedial
program is no longer necessary?
10. Apart from any past findings or court orders, is there past discrimination affecting
admissions at that institution? Has the institution determined whether the effects of past
discrimination continue? If there have not been findings of past discrimination, is there a
strong basis in evidence to believe that there may be a current violation or the continuing
effects of past discrimination?
Is the institution seeking to achieve the educational benefits of
diversity?
CHECKPOINT(S) DIVERSITY PURPOSES
11. Is affirmative action in admissions used to achieve the educational
GUIDE,
benefits of diversity? What is the institution's definition of diversity?
PP.
What are the institution's mission statements and how do they relate to its
diversity objectives?
12. The institution must articulate how achieving greater diversity would foster an
educational goal beyond diversity for diversity's sake. What are the educational benefits
of diversity at the institution? What are the bases for the educational benefits the
institution identifies?
13. Does diversity include factors other than race and national origin? If so, what factors?
Which admissions criterion or groups of criteria are related to the diversity goal? How is
each weighted and considered in the admissions process?
4
Is the use of race or national origin in remedial or diversity
programs narrowly tailored?
CHECKPOINT(S)
NEED FOR USE OF RACE OR NATIONAL ORIGIN AND
RACE/NATIONAL ORIGIN NEUTRAL ALTERNATIVES
14. If race or national origin is considered as a positive factor, has the
GUIDE,
institution made efforts to achieve its goals in race-neutral ways? If so,
PP.
what efforts were made and what were the results?
15. If race-neutral measures were not undertaken, why does the institution believe that
such efforts would be insufficient to serve its compelling interest without relying on race?
What was the nature and extent of the deliberation over any race-neutral alternatives?
Was there a judgment regarding the relative effectiveness of race-neutral alternatives and
race-conscious measures?
16. Does the college have data to show whether affirmative action is necessary? When
did the institution begin implementing its affirmative action program? Does the
institution have statistics or other evidence to show the effect of the program on
achievement of diversity objectives or remedying the effects of discrimination, e.g., data
regarding minority participation levels before and after affirmative action programs
began?
CHECKPOINT(S)
MANNER RACE OR NATIONAL ORIGIN IS USED,
FLEXIBILITY, AND POOL OF BENEFICIARIES
How does the college assess whether diversity has been achieved?
Does the admissions process incorporate numerical goals? By what
process were these goals derived? Do all or only some of the schools or
GUIDE,
programs have goals? If the program is remedial, are the goals related to
PP.
the percentage of minorities in the pool of qualified applicants, and do the
beneficiaries include people in racial or ethnic groups for whom there is
insufficient evidence of prior discrimination?
5
18. Are admissions decisions made through separate tracks, admissions committees, or
eligibility criteria defined on the basis of race or national origin? Does the program
establish fixed numerical set-asides? Is race an explicit requirement of eligibility for the
program? If there is no such factual requirement, does the program operate that way in
practice? Or is race just one of several factors -- a "plus" -- used in decision making?
Could the objectives of any program that uses race as a requirement for eligibility be
achieved through a more flexible use of race?
CHECKPOINT(S) DURATION AND PERIODIC REVIEW OF THE USES OF
RACE OR NATIONAL ORIGIN
19. Is the program subject to periodic oversight, and if so, what is the
GUIDE,
nature of that oversight? Does the periodic review assess whether the
PP.
form or extent to which race or national origin is considered should be
modified in light of the outcomes of the affirmative action program? Has
the program ever been adjusted or modified in light of periodic review? What were the
results of the most recent review? Even if there was a compelling justification at the time
of adoption, that may not be the case today. In that regard, does the program have an end
date? Is there evidence of what might result if the racial classification were discontinued?
CHECKPOINT(S)
BURDEN ON NON-BENEFICIARIES
20. Does the institution periodically assess whether its consideration of
GUIDE,
race or national origin in admissions places an undue burden on students
PP.
not eligible for that consideration? What is the nature of the burden
imposed on persons who are not included in the racial or ethnic
classification established by the program? Does the program displace those persons from
existing positions or financial aid awards? What is the nature and extent of the impact
on non-beneficiaries in admissions? Does the impact of the program fall upon a
particular group or class of students, or is it more diffuse? What is the extent of other
opportunities outside of the program? Are persons who are not beneficiaries of the
program put at a significant competitive disadvantage as a result of the program?
6
STUDENT FINANCIAL AID WORKSHEET
CHECKPOINT(S)
INITIAL INFORMATION NEEDS
1. Is the institution's financial aid program guided by a written affirmative action
plan? How is the institution's financial aid process structured?
2. Does the institution's financial aid programs include the consideration of race or
national origin (as either an exclusive factor or as one among a number of
factors)? If so, how? Does the institution fund or administer "race-based
scholarships"? If so, what is the justification for each consideration of race or
national origin? Are the institution's reasons consistent with the Department's
race-targeted scholarship policy?
CHECKPOINT(S) FINANCIAL AID FOR DISADVANTAGED STUDENTS
3. Schools may target financial aid for disadvantaged students, e.g., students from
low-income families, or aid based on students' being in the first generation to
attend college or family income. Does the institution's definition of
"disadvantaged" used for participation in the program include any consideration of
race? If not, then the program is not a racial classification subject to strict
scrutiny. If yes, the program is subject to strict scrutiny and does not fit within
this principle.
CHECKPOINT(S) COMPELLING INTERESTS
4. Why does the program consider race or national origin in financial aid decisions?
Is it intended to remedy discrimination, to foster diversity to achieve an
educational objective, or for some other purpose? If the use of race is intended to
"Rased-based scholarships" or "race-targeted aid" mean, for the purposes of this Guide, any
financial aid for which eligibility is limited to persons of a specific racial or ethnic background.
Each of the questions in this section on financial aid also are applicable to financial aid programs
where race or ethnicity are used only as a plus-factor in deciding awards. This section is based
upon the Department's 1994 race-targeted scholarships policy.
7
remedy discrimination, see checkpoints 4-10, above. If it is intended to foster
diversity to achieve an educational objective, see checkpoints 11-13, above.
CHECKPOINT(S) NARROW TAILORING OF REMEDIAL OR DIVERSITY
PROGRAMS
Are financial aid decisions that consider race or national origin narrowly tailored to
achieve their purpose? See checkpoints 14-20, above.
6. If race-based scholarships are awarded, how many does the institution award
annually? How many students at the institution, by race and national origin,
receive non-race-based financial aid, annually? What proportion of total financial
aid at the institution (institutional, state, local, Federal, private) is earmarked for
race-based scholarships? Does a comparison of the amount of race-targeted
financial aid provided to students to the total amount of aid provided to students
without regard to race or national origin show that the program places an undue
burden on other students who are not eligible for race-targeted aid?
CHECKPOINT(S)
PRIVATE GIFTS RESTRICTED BY RACE OR NATIONAL
ORIGIN
7. Are racial or other criteria attached by the donors to the award of any financial aid
funds?, If so, can the institution justify the use of race under any of the principles
of the OCR policy financial aid guidance?
8. Is any race-targeted aid received by the college's students provided directly to
students without involvement by the institution? If so, under the policy guidance,
Title VI does not apply. If the college makes privately provided race-targeted aid
part of its operations by getting involved in the offering or administration of the
aid (e.g., through selection of recipients, distribution of funds), can the college
justify the use of the aid under a diversity or remedial rationale?
8
Is the use of race or national
origin narrowly tailored?
FEB-03-98 TUE 11:07 AM
CHECKPOINT(S) Burden on Non-Beneficiaries
20. Does the institution periodically assess whether its consideration of race or
national origin in admissions places an undue burden on students not eligible for
that consideration? What is the nature of the burden imposed on persons who
are not included in the racial or ethnic classification established by the program?
Does the program displace those persons from existing positions or financial aid
awards? What is the nature and extent of the impact on non-beneficiaries in
admissions? Does the impact of the program fall upon a particular group or
class of students, or is it more diffuse? What is the extent of other opportunities
FAX NO. 312 35
outside of the program? Are persons who are not beneficiaries of the program
put at a significant competitive disadvantage as a result of the program?
P.03/09
Office for Civil Rights
12
FEB-03-98 TUE 11:07 AM
WORKSHEET
STUDENT FINANCIAL AID
FAX NO. 312 35
P.04/09
Office for Civil Rights
13
Baseline Information
FEB-03-98 TUE 11:07 AM
CHECKPOINT(S)
1. Is the institution's financial aid program guided by a written affirmative action
plan? How is the institution's financial aid process structured?
2. Does the institution's financial aid programs include the consideration of race
or national origin (as either an exclusive factor or as one among a number of
factors)? If so, how? Does the institution fund or administer "race-based
scholarships"? If so, what is the justification for each consideration of race or
FAX NO. 312 35
national origin? Are the institution's reasons consistent with the Department's
race-targeted scholarship policy?
P.05/09
Office for Civil Rights
14
Financial Aid for Disadvantaged
Students
FEB-03-98 TUE 11:08 AM
CHECKPOINT(S)
3. Schools may target financial aid for disadvantaged students, e.g., students
from low-income families, or aid based on students' being in the first generation
to attend college or family income. Does the institution's definition of
"disadvantaged" used for participation in the program include any consideration
of race? If not, then the program is not a racial classification subject to strict
scrutiny. If yes, the program is subject to strict scrutiny and does not fit within
this principle.
FAX NO. 312 35
P.06/09
Office for Civil Rights
15
Compelling Interests
FEB-03-98 TUE 11:08 AM
CHECKPOINT(S)
4. Why does the program consider race or national origin in financial aid
decisions? Is it intended to remedy discrimination, to foster diversity to achieve
an educational objective, or for some other purpose? If the use of race is
intended to remedy discrimination, see Admissions checkpoints 4-10, above. If
it is intended to foster diversity to achieve an educational objective, see
Admissions checkpoints 11-13, above.
FAX NO. 312 35
P.07/09
Office for Civil Rights
16
Narrow Tailoring of Remedial or
Diversity Programs
FEB-03-98 TUE 11:08 AM
CHECKPOINT(S)
Are financial aid decisions that consider race or national origin narrowly tailored to
achieve their purpose? See Admissions checkpoints 14-20, above.
6. If race-based scholarships are awarded, how many does the institution award
annually? How many students at the institution, by race and national origin,
receive non-race-based financial aid, annually? What proportion of total financial
aid at the institution (institutional, state, local, Federal, private) is earmarked for
FAX NO. 312 35
race-based scholarships? Does a comparison of the amount of race-targeted
financial aid provided to students to the total amount of aid provided to students
without regard to race or national origin show that the program places an undue
burden on other students who are not eligible for race-targeted aid?
P.08/09
Office for Civil Rights
17
Private Gifts Restricted by Race
or National Origin
FEB-03-98 TUE 11:09 AM
CHECKPOINT(S)
7. Are racial or other criteria attached by the donors to the award of any
financial aid funds?, If so, can the institution justify the use of race under any of
the principles of the OCR policy financial aid guidance?
8. Is any race-targeted aid received by the college's students provided directly
to students without involvement by the institution? If so, under the policy
guidance, Title VI does not apply. If the college makes privately provided race-
FAX NO. 312 35
targeted aid part of its operations by getting involved in the offering or
administration of the aid (e.g., through selection of recipients, distribution of
funds), can the college justify the use of the aid under a diversity or remedial
rationale?
P. P.09/09
Office for Civil Rights
18
FEB-03-98 TUE 10:55 AM
FAX NO. 312 35
P. 01/19
PLEASE DELIVER TO DAWN CHIRWA AND BILL
KINCAID, ASAP.
NOTE TO DAWN CHIRWA AND BILL KINCAID
Re: Handouts for OCR Workshop/ACE Conference
The attached handouts track the worksheet in the current
affirmative action package. We will present the questions
through overheads that summarize the handouts in bullet form.
We would like to get handouts to ACE for printing by
Wednesday. Please call me, (312) 886 8360 or Art, (202) 205
9703.
Thanks for your help.
John p Fry
2/3/98
FEB-03-98 TUE 10:55 AM
ASSESSMENT WORKSHEET
ADMISSIONS and STUDENT
FAX NO. 312 35
FINANCIAL AID
P.02/19
Office for Civil Rights
1
FEB-03-98 TUE 10:55 AM
WORKSHEET
ADMISSIONS
FAX NO. 312 35
P.03/19
Office for Civil Rights
2
How does the school's
admissions process work?
FEB-03-98 TUE 10:56 AM
CHECKPOINT(S) Baseline Information
1. If the institution considers race and national origin as factors in its admissions
process, are admissions guided by a written affirmative action plan? How are
admissions structured? For public institutions, is the consideration of race
mandated or authorized by legislation?
2. What standards guide admissions decisions and how does the admissions
process work? How and at what point in the admissions process is each
FAX NO. 312 35
admissions criterion weighted and considered? Is each admissions criterion
educationally justifiable and closely related to the institution's mission? How and
at what points are race or national origin considered and weighted in
admissions? How and at what point(s) are minority students being admitted?
P. P.04/19
Office for Civil Rights
3
Is there a compelling reason to
consider race or national origin ?
FEB-03-98 TUE 10:56 AM
CHECKPOINT(S) Compelling Interest
3. Why does the program consider race or national origin in admissions? Is it
intended to remedy discrimination, to foster diversity to achieve an educational
objective, or for some other purpose?
FAX NO. 312 35
P.05/19
Office for Civil Rights
4
Is there a duty to remedy
discrimination and its effects?
FEB-03-98 TUE 10:56 AM
CHECKPOINT(S) Remedial purposes
4. Are there facts that show discrimination? Is the program justified solely by
reference to general societal discrimination, general assertions of discrimination
in education, or a statistical underrepresentation of minorities as compared to
their percentage of the general population rather than the relevant pool of
qualified applicants? Without more, these are impermissible bases for
affirmative action.
5. Has a court, legislative body, or agency made a finding that the institution has
discriminated against minorities? Is the institution the subject of a court
desegregation order or a legislative or administrative finding of unlawful
FAX NO. 312 35
discrimination? Did the body making the finding have a strong basis in evidence
for its conclusion? Does the institution itself have a strong basis in evidence for
concluding that it has discriminated? If the institution is public, has a state or
local government made findings of discrimination within its jurisdiction, including
discrimination by private actors? Are there present effects of any such past
discrimination? Was the government, or is the government now, a passive
participant in that discrimination so as to perpetuate the exclusion? Did the
institution help to perpetuate that discrimination?
P.06/19
Office for Civil Rights
5
Is there a duty to remedy
discrimination and its effects?
FEB-03-98 TUE 10:57 AM
6. Identify the racial and ethnic composition (%African American, Hispanic,
Asian-American, American Indian, white) of: i) the institution's student body; ii)
the institution's qualified applicants; and iii) the pool of qualified potential
applicants from which the institution draws its students, for example, students
meeting the school's admission requirements living in the areas served by the
institution.
7. Based on the answers to item 6, is there underrepresentation at the school of
qualified students from particular races or national origins? If so, is the
statistical disparity significant?
8. What is the nature of the evidence? Is it statistical or based on written
FAX NO. 312 35
documents? Are statistics based on comparisons to the general minority
population, or are they more sophisticated and focused? For example, do they
identify the number of qualified minorities in the applicant pool, or explain what
the number would be "but for" the exclusionary effects of discrimination? Is
there evidence that discrimination has hampered minority opportunity in
education, or is the evidence simply based on generalized claims of societal
discrimination? In addition to any statistical or documentary evidence, are there
persons who have knowledge or other anecdotal evidence of discrimination?
P.07/19
Office for Civil Rights
6
Is there a duty to remedy
discrimination and its effects?
FEB-03-98 TUE 10:57 AM
9. Since the adoption of the program, have additional findings of discrimination
been made that could serve to justify the need for the program when it was
adopted? If not, can such evidence be assembled now? Is there new evidence
that the remedial program is no longer necessary?
10. Apart from any past findings or court orders, is there past discrimination
affecting admissions at that institution? Has the institution determined whether
the effects of past discrimination continue? If there have not been findings of
past discrimination, is there a strong basis in evidence to believe that there may
be a current violation or the continuing effects of past discrimination?
FAX NO. 312 35
P.08/19
Office for Civil Rights
7
Is the school pursuing the
educational benefits of diversity?
FEB-03-98 TUE 10:58 AM
CHECKPOINT(S) Diversity purposes
11. Is affirmative action in admissions used to achieve the educational benefits
of diversity? What is the institution's definition of diversity? What are the
institution's mission statements and how do they relate to its diversity
objectives?
12. The institution must articulate how achieving greater diversity would foster
an educational goal beyond diversity for diversity's sake. What are the
FAX NO. 312 35
educational benefits of diversity at the institution? What are the bases for the
educational benefits the institution identifies?
13. Does diversity include factors other than race and national origin? If so,
what factors? Which admissions criterion or groups of criteria are related to the
diversity goal? How is each weighted and considered in the admissions
process?
P.09/19
Office for Civil Rights
8
Is the use of race or national
origin narrowly tailored?
FEB-03-98 TUE 10:58 AM
CHECKPOINTS Need for Use of Race/ National Origin:Race-Neutral Alternatives
14. If race or national origin is considered as a positive factor, has the institution
made efforts to achieve its goals in race-neutral ways? If so, what efforts were
made and what were the results?
15. If race-neutral measures were not undertaken, why does the institution
believe that such efforts would be insufficient to serve its compelling interest
without relying on race? What was the nature and extent of the deliberation
over any race-neutral alternatives? Was there a judgment regarding the relative
effectiveness of race-neutral alternatives and race-conscious measures?
FAX NO. 312 35
16. Does the college have data to show whether affirmative action is necessary?
When did the institution begin implementing its affirmative action program?
Does the institution have statistics or other evidence to show the effect of the
program on achievement of diversity objectives or remedying the effects of
discrimination, e.g., data regarding minority participation levels before and after
affirmative action programs began?
P. 10/19
Office for Civil Rights
9
Is the use of race or national
origin narrowly tailored?
FEB-03-98 TUE 11:06 AM
CHECKPOINT(S) Manner Race or National Origin is Used, Flexibility, and Pool of
Beneficiaries
17. How does the college assess whether diversity has been achieved? Does
the admissions process incorporate numerical goals? By what process were
these goals derived? Do all or only some of the schools or programs have
goals? If the program is remedial, are the goals related to the percentage of
minorities in the pool of qualified applicants, and do the beneficiaries include
people in racial or ethnic groups for whom there is insufficient evidence of prior
discrimination?
18. Are admissions decisions made through separate tracks, admissions
FAX NO. 312 35
committees, or eligibility criteria defined on the basis of race or national origin?
Does the program establish fixed numerical set-asides? Is race an explicit
requirement of eligibility for the program? If there is no such factual
requirement, does the program operate that way in practice? Or is race just one
of several factors -- a "plus" used in decision making? Could the objectives of
any program that uses race as a requirement for eligibility be achieved through a
more flexible use of race?
P.01/09
Office for Civil Rights
10
Is the use of race or national
origin narrowly tailored?
FEB-03-98 TUE 11:06 AM
CHECKPOINT(S) Duration and Periodic Review of the Uses of Race or National
Origin
19. Is the program subject to periodic oversight, and if so, what is the nature of
that oversight? Does the periodic review assess whether the form or extent to
which race or national origin is considered should be modified in light of the
outcomes of the affirmative action program? Has the program ever been
adjusted or modified in light of periodic review? What were the results of the
most recent review? Even if there was a compelling justification at the time of
adoption, that may not be the case today. In that regard, does the program
FAX NO. 312 35
have an end date? Is there evidence of what might result if the racial
classification were discontinued?
P.02/09
Office for Civil Rights
11
OF EDICATION EDU CATION
*
UNITED STATES of AMERICA
AFFIRMATIVE ACTION
ASSESSMENT OUTLINE
Postsecondary Admissions and Financial Aid
Programs
February 1998
UNITED STATES DEPARTMENT OF EDUCATION
OFFICE FOR CIVIL RIGHTS
ASSESSMENT OUTLINE
Contents
INTRODUCTION
OVERVIEW
GUIDE
Endnotes
WORKSHEETS
ADMISSIONS
STUDENT FINANCIAL AID
ATTACHMENTS
Department's Financial Aid Guidance
List of OCR Offices
INTRODUCTION
Properly designed and conducted affirmative action programs that consider race or
national origin in postsecondary admissions and financial aid decisions are permissible under
federal law. This guide is designed to help postsecondary institutions that have, or are
considering establishing, affirmative action programs assess whether those programs are
consistent with Title VI of the Civil Rights Act of 1964 and the Constitution. Institutions that
operate affirmative action programs should rigorously review those programs on a regular basis
to ensure that they continue to be necessary and that they are being conducted consistent with the
applicable legal standards.
As used in this Outline, the term "affirmative action" means the use or consideration of
race or national origin as a factor in admissions or in the award of financial aid. Because
recruitment and outreach programs designed to increase the number of minorities in an
institution's applicant pool raise distinct questions and typically should not be subject to
heightened constitutional scrutiny, this guide should not be used to assess those types of
programs. This Outline also does not address programs undertaken pursuant to a court order.
In 1994, the U.S. Department of Education published guidance regarding its evaluation
under Title VI of an institution's consideration of race or national origin in the award of financial
aid. Nondiscrimination in Federally Assisted Programs; Title VI of the Civil Rights Act of 1964,
59 Fed. Reg. 8756 (1994) [hereinafter Financial Aid Guidance]. Institutions should consult that
guidance for a more specific discussion of affirmative action in financial aid decisions, including
an institution's involvement with privately donated race-restrictive funds. The Financial Aid
Guidance is included with this Outline and can be found on the Education Department's web site
at www.ed.gov.
This Self Assessment Outline consists of an Overview, a legal Guide, and a Worksheet.
The Overview highlights the Guide's comprehensive presentation of federal standards applicable
to affirmative action in admissions and financial aid. The Worksheet is included to aid
institutions in collecting the information necessary to conduct a thorough review of their
programs. The Worksheet is designed to help institutions identify and organize information
relevant to the legal standards discussed in the Guide, but not every question necessarily will be
relevant to each institution. In addition, no single answer or combination of answers will be
conclusive as to the validity of any particular program.
There is much uncertainty with respect to the law on affirmative action at this time. New
decisions, by the Supreme Court or lower courts, may significantly affect the standards governing
the appropriate consideration of race or national origin by educational institutions. An
institution's programs may also be affected by state law requirements, such as Proposition 209 in
California. We encourage institutions to consult with their counsel, and to contact the Office for
Civil Rights ("OCR") at the Department of Education, for assistance. A list of OCR offices and
staff available to assist you is included in this guidance.
1
ASSESSMENT OVERVIEW
Federal legal standards that apply to the consideration of race or national origin in higher
education arise from the Constitution and Title VI of the Civil Rights Act of 1964. This
summary is intended as a brief overview of the comprehensive legal discussion in the Guide,
which must be thoroughly considered in using the Assessment Outline.
I. COVERAGE OF THE OUTLINE
Public institutions that are part of a state's government are subject to the
Fourteenth Amendment of the Constitution. Public and private institutions
that receive federal financial assistance from the U.S. Department of
Education are subject to Title VI.
This Assessment Outline applies to admissions and financial aid programs
where race, color, or national origin is a factor in decision making. It
SEE GUIDE
applies both to programs in which race or national origin is the sole factor
in a decision and to those in which race or national origin is one of many
factors considered. The Outline does not apply to admissions or financial
aid decisions made without regard to race or national origin.
The legal standards governing the use of race or national origin in awarding
financial aid are generally the same as those applicable to admissions
decisions. The Department has published guidance on the use of race or
national origin in financial aid programs, 59 Federal Register 8756 (1994)
(copy included with this Outline). The Financial Aid Guidance is also
available on the Department of Education's internet web site, www.ed.gov.
2. CONSIDERATION OF RACE OR NATIONAL ORIGIN IS PERMISSIBLE WHEN
THE STRICT SCRUTINY TEST IS SATISFIED
Under the Constitution and Title VI of the Civil Rights Act of 1964 it is
permissible for colleges and universities to consider race or national origin
in making admissions decisions and in awarding financial aid provided
that they satisfy the legal test of "strict scrutiny."
SEE GUIDE
To satisfy strict scrutiny, the institutional interest underlying an affirmative
action measure must be "compelling" and the measure must be "narrowly
tailored" to serve that interest.
1
3. REMEDYING DISCRIMINATION AND ACHIEVING CAMPUS DIVERSITY ARE
COMPELLING INTERESTS SUPPORTING CONSIDERATION OF RACE OR
NATIONAL ORIGIN
The compelling interest inquiry centers on "ends" and asks why an
institution is classifying individuals on the basis of race or national origin.
SEE GUIDE,
Remedying the effects of past discrimination constitutes a compelling
interest that justifies the narrowly tailored use of race or national origin in
admissions or financial aid.
In his landmark opinion in Bakke, Justice Powell concluded that a
university may consider race in admissions to attain the educational
benefits of diversity where race or national origin is considered as one
factor among many.
REMEDIAL PURPOSES
The Title VI regulations require a recipient of federal funds that
has discriminated in violation of Title VI or its regulations to take
remedial action to overcome the effects of past discrimination.
SEE GUIDE
A college that has been found to have discriminated by a court or
an administrative agency like the U.S. Department of Education,
Office for Civil Rights, must take steps to remedy that
discrimination. A finding could also be made by a State or local
legislative body, as long as the body finding discrimination had a
strong basis in evidence identifying discrimination within its
jurisdiction for which remedial action is required.
Absent such formal findings by a court, agency or legislature, a
college may take race-conscious remedial action if it has a strong
basis in evidence for concluding that the affirmative action is
necessary to remedy the effects of its past discrimination and is
narrowly tailored to remedy that discrimination.
2
DIVERSITY PURPOSES
SEE GUIDE
In Regents of the University of California V. Bakke, Justice Powell
concluded that achieving the educational benefits of campus
diversity is a compelling reason for considering race or national
origin in admissions in a narrowly tailored way. According to
Justice Powell's opinion, colleges may seek diversity in admissions
to fulfill their academic mission through the "robust exchange of
ideas" that flows from a diverse student body. The United States
supports Justice Powell's opinion as a correct statement of the law
under the Constitution and Title VI.
Colleges and universities may justify the use of race or national
origin to achieve fundamental educational goals through campus
diversity. An institution must be able to support its claim that
diversity serves its educational objectives.
For the consideration of race and national origin in admissions to
be lawful under a diversity rationale, an institution's definition of
diversity must include characteristics in addition to race or
national origin. Such diversity characteristics may include other
life experiences, achievements, talents, interests, extracurricular
activities, economic disadvantages, geographic background, as
well as various others.
4. USES OF RACE OR NATIONAL ORIGIN MUST BE NARROWLY TAILORED
The narrow tailoring inquiry focuses on "means" and asks how the government is seeking to
meet the objective of the race or national origin-based classification. If an institution supports its
affirmative action program on remedial purposes or the attainment of diversity, the use of race or
national origin must be narrowly tailored to achieve its purposes.
Whether a college's consideration of race or national origin meets the
SEE GUIDE
narrow tailoring requirements of Title VI and the Constitution depends
upon factors established by federal case law.
3
CONSIDERATION OF RACE/NATIONAL ORIGIN- NEUTRAL ALTERNATIVES
AND THE NEED FOR THE USE OF RACE OR NATIONAL ORIGIN
A school's use of race should be necessary and focused as narrowly
SEE GUIDE
as possible on the achievement of the school's compelling interest,
for example, remedial or diversity objectives.
Before resorting to race-conscious action, it is important that an
institution consider seriously the use of race-neutral alternative
approaches (e.g., the use of recruitment or admissions criteria that
do not include race).
MANNER RACE OR NATIONAL ORIGIN IS USED, FLEXIBILITY, AND
POOL OF BENEFICIARIES
Set-asides or quotas should not be used unless such measures are
SEE GUIDE
absolutely essential to remedying discrimination and its effects. In
addition, admissions programs that rely on separate tracks or
separate decision-making procedures that prevent a comparison
among applicants of different races and ethnic origins are also
particularly vulnerable to challenge.
The use of classifications based on race or national origin should
be flexible. For example, the Supreme Court in United States v.
Paradise found that a race-conscious promotion requirement was
flexible in operation because it could be waived if no qualified
candidates were available.
Consideration of race or national origin as one factor among
several other admissions criteria in some circumstances may be
evidence of flexibility.
DURATION AND PERIODIC REVIEW
4
The duration of the use of a racial classification should be no
SEE GUIDE,
longer than is necessary to its purpose. The classification should be
periodically reexamined to determine whether there is a continued
need for its use or whether it should be modified based on
changing circumstances.
OCR considers annual reviews the best practice to satisfy this
aspect of Title VI's narrow tailoring requirements.
BURDEN ON NON-BENEFICIARIES
Affirmative action necessarily imposes some burden or
SEE GUIDE
disadvantage on persons who do not belong to the racial or ethnic
groups favored by the program's classifications. While some
burdens are acceptable, others may be too high. In general, a race-
based classification that unsettles. legitimate, firmly rooted
expectations or imposes the entire burden on particular individuals
crosses that line.
For example, if an institution terminated scholarships that had
been awarded to particular non-minority students in order to fund
a scholarship program for minority students, that might place too
much of a burden on the affected non-minority students to be
considered narrowly tailored.
Generally, the less severe and more diffuse the impact on non-
minority students, the more likely a classification based on race or
national origin will address this factor satisfactorily. It is not
necessary to show that no student's opportunity to be admitted has
been in any way diminished. Rather, the use of race or national
origin must not, overall, place an undue burden on students who
are not eligible for that consideration.
5
NOTES
If your institution is in the Fifth Circuit, remember to consult the Fifth Circuit Standards
sections of the Guide and the Hopwood decision for the appropriate standards.
If your institution is in the Fourth Circuit, remember to consult the Podberesky V. Kirwan
decision as described in the Guide.
6
ASSESSMENT GUIDE
I.
WHEN is AN INSTITUTION COVERED BY THE CONSTITUTION OR TITLE VI?
Both the Constitution and Title VI of the Civil Rights Act of 1964 may apply to an
institution's affirmative action programs. The Fourteenth Amendment to the United States
Constitution prohibits states from denying any person equal protection of the laws. Because they
are a part of state government, public colleges and universities are covered by the Fourteenth
Amendment.
Title VI provides that no person in the United States shall, on the ground of race, color, or
national origin, be excluded from participation in, be denied the benefits of, or be subjected to
discrimination under any program or activity receiving federal financial assistance. 1 Any public
or private institution that receives financial assistance from the federal government is subject to
the requirements of Title VI. A public institution that receives federal financial assistance is
therefore covered by both the Constitution and Title VI. Title VI covers all of the operations of an
institution that receives federal financial assistance, including the institution's involvement in the
award of privately donated funds. 2 Title VI permits affirmative action measures that would satisfy
the requirements of the Fourteenth Amendment.³
The Office for Civil Rights at the Department of Education is responsible for enforcing the
requirements of Title VI at institutions receiving federal education funds. Institutions subject to
Title VI must abide by the provisions of the statute and comply with regulations promulgated by
the Office for Civil Rights.⁴
II.
WHEN DOES AN ADMISSIONS OR FINANCIAL AID PROGRAM USE A
CLASSIFICATION BASED ON RACE OR NATIONAL ORIGIN?
This Guide applies to admissions and financial aid programs that use criteria based on
race, color, or national origin as a factor in decision making. It applies both to programs in which
race or national origin is the sole factor underlying the institution's decision and to those in which
race or national origin is one of many factors considered. This Guide does not apply to
admissions decisions or financial aid awards that are based on race-neutral factors. For example,
the Guide would not apply to an institution's support for disadvantaged students through
admissions or financial aid, as long as the determination that a student is disadvantaged is not
based on race or national origin.
1
III.
COMPLIANCE WITH THE CONSTITUTION AND TITLE VI: STRICT SCRUTINY
The Supreme Court has determined that the Constitution requires that any government
program that uses race or national origin as a factor in decision making must satisfy "strict
scrutiny". As explained above, this same standard applies under Title VI to all schools receiving
federal funds. To satisfy strict scrutiny, the institutional interest underlying an affirmative action
measure must be "compelling" and the measure must be "narrowly tailored" to serve that interest.
The compelling interest inquiry centers on "ends" and asks why an institution is classifying
individuals on the basis of race or national origin. The narrow tailoring inquiry focuses on
"means" and asks how the government is seeking to meet the objective of the race-based
classification.
A. THE COMPELLING INTEREST
The Supreme Court has held, in the Regents of the University of California V. Bakke
decision, that a college or university may consider race in its admissions process.⁷ The interests
that may justify the consideration of race or national origin in higher education can be divided into
two broad categories: remedial interests and non-remedial interests. The Supreme Court
repeatedly has held that remedying the effects of past discrimination constitutes a compelling
interest.⁸ In his landmark opinion in Bakke, Justice Powell concluded that a university may
consider race in its admissions process in order to foster diversity among its student body to
further the university's educational objectives.⁹ The United States supports Justice Powell's
opinion as a correct statement of law under the Constitution and Title VI.
The Court's decisions have not foreclosed the possibility that non-remedial interests other
than fostering diversity for educational purposes may also be compelling, but no such interest has
been recognized as compelling by the Supreme Court to date. Thus, there are substantial
questions as to whether and in what settings such other non-remedial objectives can constitute a
compelling interest.
I. REMEDYING THE EFFECTS OF DISCRIMINATION
Remedying the identified
A. GENERAL STANDARDS
effects of past
discrimination constitutes
Remedying the identified effects of past discrimination
a compelling interest that
constitutes a compelling interest that can support an institution's
can support an
use of a classification based on race or national origin. This
institution's use of a
discrimination could fall into two categories. First, an institution
classification based on
can seek to remedy the effects of its own discrimination. Second,
race or national origin.
the federal government or a state or local government may seek to
2
remedy the effects of discrimination committed within its jurisdiction, including discrimination
committed by private actors, where the government becomes a passive participant in that conduct
and thus helps to perpetuate a system of exclusion. 10
Thus, a public institution may, consistent with its authority, seek to remedy the effects of
past discrimination in its educational system, including discrimination by local school
systems or by private entities, that it has helped to perpetuate.
In either category, the remedy may be aimed at ongoing patterns and practices of exclusion or at
the lingering effects of prior discriminatory conduct. 11 The fact and legacy of general, historical
societal discrimination, however, is an insufficient basis for affirmative action. Similarly,
amorphous claims of discrimination in education that are not related to an institution's programs
are inadequate. 12
An institution should be able to identify with some precision the discrimination to be
remedied. In justifying remedial affirmative action based on the current effects of past
discrimination, an institution should be prepared to articulate how any current conditions that
limit educational opportunities by race or national origin are related to past discrimination. 13
It is not necessary for a court to make a judicial finding of discrimination before an
institution may undertake remedial measures. Rather, the institution must have a "strong basis in
evidence" for its conclusion that remedial action is necessary. 14 This evidence should approach
what the Supreme Court has called "a prima facie case of a constitutional or statutory violation"
of the rights of minorities. 15 For example, significant statistical disparities between the number
of minorities admitted to an institution and the percentage of minorities in the pool of qualified
applicants might permit an inference of discrimination that would support the use of racial or
ethnic criteria intended to correct those disparities. In making this comparison, a school may
consider the pool of qualified students who actually apply for admission, and the larger pool of
students in areas from which applications may be drawn who would meet the school's
admissions standards. However, mere underrepresentation of minorities compared to the
percentage of minorities in the general population is an
insufficient predicate for affirmative action. 16
When a finding of prior
discrimination, whether by a
The Title VI regulations require that an institution
court, an agency, a legislative
receiving federal financial assistance that has previously
body, or the institution itself,
discriminated take action to overcome the effects of that prior
rests on a strong basis of
discrimination. 17 Thus if a court, a federal agency, or a
evidence that the institution
legislative or administrative body has found that a covered
discriminated, the institution
institution has engaged in discrimination, that institution
may use narrowly tailored
must take steps to remedy that discrimination. The same
affirmative action measures to
obligation arises if the institution itself determines that
remedy the discrimination.
remedial action is necessary to correct the effects of past
3
Does the college or university have a duty to remedy
discrimination on the basis of race or national origin?
CHECKPOINT(S) REMEDIAL PURPOSES
4. Are there facts that show discrimination? Is the program justified solely by reference
GUIDE,
to general societal discrimination, general assertions of discrimination in education, or
PP
a statistical underrepresentation of minorities as compared to their percentage of the
general population rather than the relevant pool of qualified applicants? Without
more, these are impermissible bases for affirmative action.
5. Has a court, legislative body, or agency made a finding that the institution has
discriminated against minorities? Is the institution the subject of a court
desegregation order or a legislative or administrative finding of unlawful
discrimination? Did the body making the finding have a strong basis in evidence for
its conclusion? Does the institution itself have a strong basis in evidence for
concluding that it has discriminated? If the institution is public, has a state or local
government made findings of discrimination within its jurisdiction, including
discrimination by private actors? Are there present effects of any such past
discrimination? Was the government, or is the government now, a passive participant
in that discrimination so as to perpetuate the exclusion? Did the institution help to
perpetuate that discrimination?
6. Identify the racial and ethnic composition (%African American, Hispanic, Asian-
American, American Indian, white) of the following groups: I) the institution's student
body; ii) the institution's qualified applicants; and iii) the pool of qualified potential
applicants from which the institution draws its students, for example, students
meeting the school's admission requirements living in the areas served by the
institution.
7. Based on the information above, is there underrepresentation at the school of
qualified students from particular races or national origins? If so, is the statistical
disparity significant?
8. What is the nature of the evidence? Is it statistical or based on written documents?
Are statistics based on comparisons to the general minority population, or are they
more sophisticated and focused? For example, do they attempt to identify the number
of qualified minorities in the applicant pool, or seek to explain what the number
would look like "but for" the exclusionary effects of discrimination? Is there
evidence on how discrimination has hampered minority opportunity in education, or
3
is the evidence simply based on generalized claims of societal discrimination? In
addition to any statistical or documentary evidence, are there persons who have
knowledge or other anecdotal evidence of discrimination?
9. Since the adoption of the program, have additional findings of discrimination been
made that could serve to justify the need for the program when it was adopted? If not,
can such evidence be assembled now? Is there new evidence that the remedial
program is no longer necessary?
10. Apart from any past findings or court orders, is there past discrimination affecting
admissions at that institution? Has the institution determined whether the effects of past
discrimination continue? If there have not been findings of past discrimination, is there a
strong basis in evidence to believe that there may be a current violation or the continuing
effects of past discrimination?
Is the institution seeking to achieve the educational benefits of
diversity?
CHECKPOINT(S) DIVERSITY PURPOSES
11. Is affirmative action in admissions used to achieve the educational benefits of
GUIDE
diversity? What is the institution's definition of diversity? What are the institution's
PP
mission statements and how do they relate to its diversity objectives?
12. The institution must articulate how achieving greater diversity would foster an
educational goal beyond diversity for diversity's sake. What are the educational benefits
of diversity at the institution? What are the bases for the educational benefits the
institution identifies?
13. Does diversity include factors other than race and national origin? If so, what factors?
Which admissions criterion or groups of criteria are related to the diversity goal? How is
each weighted and considered in the admissions process?
4
Is the use of race or national origin in remedial or diversity
programs narrowly tailored?
CHECKPOINT(S)
NEED FOR USE OF RACE OR NATIONAL ORIGIN AND
RACE/NATIONAL ORIGIN NEUTRAL ALTERNATIVES
14. If race or national origin is considered as a positive factor, has the institution made
GUIDE,
efforts to achieve its goals in race-neutral ways? If so, what efforts were made and what
PP
were the results?
15. If race-neutral measures were not undertaken, why does the institution believe that
such efforts would be insufficient to serve its compelling interest without relying on race?
What was the nature and extent of the deliberation over any race-neutral alternatives?
Was there a judgment regarding the relative effectiveness of race-neutral alternatives and
race-conscious measures?
16. Does the college have data to show whether affirmative action is necessary? When
did the institution begin implementing its affirmative action program? Does the
institution have statistics or other evidence to show the effect of the program on
achievement of diversity objectives or remedying the effects of discrimination, e.g., data
regarding minority participation levels before and after affirmative action programs
began?
CHECKPOINT(S)
MANNER RACE OR NATIONAL ORIGIN IS USED,
FLEXIBILITY, AND POOL OF BENEFICIARIES
How does the college assess whether diversity has been achieved? Does the
admissions process incorporate numerical goals? By what process were these goals
GUIDE
derived? Do all or only some of the schools or programs have goals? If the program is
PP
remedial, are the goals related to the percentage of minorities in the pool of qualified
applicants, and do the beneficiaries include people in racial or ethnic groups for whom
there is insufficient evidence of prior discrimination?
18. Are admissions decisions made through separate tracks, admissions committees, or
eligibility criteria defined on the basis of race or national origin? Does the program
establish fixed numerical set-asides? Is race an explicit requirement of eligibility for the
program? If there is no such factual requirement, does the program operate that way in
5
practice? Or is race just one of several factors -- a "plus" -- used in decision making?
Could the objectives of any program that uses race as a requirement for eligibility be
achieved through a more flexible use of race?
CHECKPOINT(S) DURATION AND PERIODIC REVIEW OF THE USES OF
RACE OR NATIONAL ORIGIN
19. Is the program subject to periodic oversight, and if so, what is the nature of that
GUIDE
oversight? Does the periodic review assess whether the form or extent to which race or
PP
national origin is considered should be modified in light of the outcomes of the
affirmative action program? Has the program ever been adjusted or modified in light of
periodic review? What were the results of the most recent review? Even if there was a
compelling justification at the time of adoption, that may not be the case today. In that
regard, does the program have an end date? Is there evidence of what might result if the
racial classification were discontinued?
CHECKPOINT(S) BURDEN ON NON-BENEFICIARIES
20. Does the institution periodically assess whether its consideration of race or national
GUIDE
origin in admissions places an undue burden on students not eligible for that
PR
consideration? What is the nature of the burden imposed on persons who are not
included in the racial or ethnic classification established by the program? Does the
program displace those persons from existing positions or financial aid awards? What is
the nature and extent of the impact on non-beneficiaries in admissions? Does the impact
of the program fall upon a particular group or class of students, or is it more diffuse?
What is the extent of other opportunities outside of the program? Are persons who are
not beneficiaries of the program put at a significant competitive disadvantage as a result
of the program?
6
STUDENT FINANCIAL AID WORKSHEET
CHECKPOINT(S) INITIAL INFORMATION NEEDS
1. Is the institution's financial aid program guided by a written affirmative action
plan? How is the institution's financial aid process structured?
2. Does the institution's financial aid programs include the consideration of race or
national origin (as either an exclusive factor or as one among a number of
factors)? If so, how? Does the institution fund or administer "race-based
scholarships"? If so, what is the justification for each consideration of race or
national origin? Are the institution's reasons consistent with the Department's
race-targeted scholarship policy?
CHECKPOINT(S) FINANCIAL AID FOR DISADVANTAGED STUDENTS
3. Schools may target financial aid for disadvantaged students, e.g., students from
low-income families, or aid based on students' being in the first generation to
attend college or family income. Does the institution's definition of
"disadvantaged" used for participation in the program include any consideration of
race? If not, then the program is not a racial classification subject to strict
scrutiny. If yes, the program is subject to strict scrutiny and does not fit within
this principle.
CHECKPOINT(S) COMPELLING INTERESTS
4. Why does the program consider race or national origin in financial aid decisions?
Is it intended to remedy discrimination, to foster diversity to achieve an
educational objective, or for some other purpose? If the use of race is intended to
remedy discrimination, see checkpoints 4-10, above. If it is intended to foster
diversity to achieve an educational objective, see checkpoints 11-13, above.
"Rased-based scholarships" or "race-targeted aid" mean, for the purposes of this Guide, any
financial aid for which eligibility is limited to persons of a specific racial or ethnic background.
Each of the questions in this section on financial aid also are applicable to financial aid programs
where race or ethnicity are used only as a plus-factor in deciding awards. This section is based
upon the Department's 1994 race-targeted scholarships policy.
7
CHECKPOINT(S)
NARROW TAILORING OF REMEDIAL OR DIVERSITY
PROGRAMS
Are financial aid decisions that consider race or national origin narrowly tailored to
achieve their purpose? See checkpoints 14-20, above.
6. If race-based scholarships are awarded, how many does the institution award
annually? How many students at the institution, by race and national origin,
receive non-race-based financial aid, annually? What proportion of total financial
aid at the institution (institutional, state, local, Federal, private) is earmarked for
race-based scholarships? Does a comparison of the amount of race-targeted
financial aid provided to students to the total amount of aid provided to students
without regard to race or national origin show that the program places an undue
burden on other students who are not eligible for race-targeted aid?
CHECKPOINT(S) PRIVATE GIFTS RESTRICTED BY RACE OR NATIONAL
ORIGIN
7. Are racial or other criteria attached by the donors to the award of any financial aid
funds?, If so, can the institution justify the use of race under any of the principles
of the OCR policy financial aid guidance?
8. Is any race-targeted aid received by the college's students provided directly to
students without involvement by the institution? If so, under the policy guidance,
Title VI does not apply. If the college makes privately provided race-targeted aid
part of its operations by getting involved in the offering or administration of the
aid (e.g., through selection of recipients, distribution of funds), can the college
justify the use of the aid under a diversity or remedial rationale?
8
discrimination. When a finding of prior discrimination, whether by a court, an agency, a
legislative body, or the institution itself, rests on a strong basis of evidence that the institution
discriminated, the institution may use narrowly tailored affirmative action measures to remedy
the discrimination.
B. FIFTH CIRCUIT STANDARDS REMEDIAL OBJECTIVES
In Hopwood V. Texas, the U.S. Court of Appeals for the Fifth Circuit held that the law
school at the University of Texas could not rely on past discrimination by other schools in the
Texas state system, including other schools at the University of Texas, as a predicate for
considering race in its admissions process. 18 Rather, in the view of the court, the law school's
constitutionally valid remedial interests extended no farther than redressing the effects of any
prior racial discrimination by the law school itself. "As a result, past discrimination in
education, other than at the law school, [could not] justify the present consideration of race in
law school admissions." This holding is binding precedent in the Fifth Circuit. Accordingly,
postsecondary institutions in Texas, Louisiana, and Mississippi cannot use discrimination by
other actors in the state's educational systems as a predicate for considering race or national
origin in admissions and financial aid. In addition, one "functionally separate unit" of an
institution, such as a medical school, cannot rely on past discrimination by other units in that
institution 20 A particular school in those states must have a strong basis in evidence for
concluding that there exist present effects from discrimination for which that school itself is
responsible. However, if a state or institution of higher education has an obligation to remedy
state or institution-wide discrimination, Hopwood
does not prohibit the appropriate legislative or administrative body, or the governing body of the
institution, from using affirmative action to remedy that discrimination in its component
schools.
21
2. NON-REMEDIAL INTERESTS
A. DIVERSITY
In his landmark opinion in Bakke, Justice Powell stated that a university may have a
compelling interest in considering the race of applicants in its admissions process in order to
foster greater diversity among its student body. Such
diversity brings a wider range of perspectives to campus,
The United States supports
which in turn contributes to a more robust exchange of ideas.
Justice Powell's opinion as a
This exchange is a central mission of higher education and in
correct statement of the law
keeping with the time-honored value of academic freedom.
under the Constitution and
Moreover, in the view of Justice Powell, the First
Title VI.
Amendment protection of academic freedom supports
allowing a university to "make its own judgments" regarding
education, including the selection of its student body.22 The United States supports Justice
4
Powell's opinion as a correct statement of the law under the Constitution and Title VI.2³
In order for diversity to qualify as a compelling interest, an institution must seek a
further objective beyond the mere achievement of diversity itself. The Court has consistently
rejected "racial balancing" as a goal of affirmative action, because "[p]referring members of any
one group for no reason other than race or ethnic origin is discrimination for its own sake."24
For example, in Bakke, Justice Powell stated that diversity in an institution's student body can
serve the further goal of enriching the academic experience, but found no compelling interest in
assuring that the student body had a specified percentage of particular minority groups or
reducing the deficit of minorities in the medical profession.²⁵ Accordingly, an institution that
uses affirmative action to achieve diversity must have a sound educational objective for its
diversity program. A school must be able to support its claim that diversity provides
educational benefits and serves the school's educational objectives.
For example, in their Amici Curiae bried filed in the Piscataway case, a
coalition of educational organizations, representing a substantial portion of the
higher education community, presented to the Supreme Court social science
research and evidence of a consensus view among educators that campus
diversity has a measurable positive effect on educational outcomes and that
diversity is essential to the missions of colleges and universities. They stated:
"Both kinds of evidence support the conclusion that diversity improves education
and advances the goals of imparting knowledge where there was preconception,
and fostering mutual regard where there was hostile stereotype."
B. OTHER NON-REMEDIAL INTERESTS
The Supreme Court has had little occasion to address other non-remedial objectives. In
his Bakke opinion, Justice Powell assumed that a state could have a compelling interest in
"improving the delivery of health-care services to communities currently underserved," but
concluded that the university had failed to prove that reserving sixteen percent of the seats in its
medical school class for minority students was either needed or geared to promote that goal. 27 It
is not clear whether a racial classification that was narrowly tailored to this interest could
survive strict scrutiny.28 Whether other non-remedial interests can be sufficiently compelling to
justify the use of classifications based on race or national origin should be considered on a case-
by-case basis.
C. FIFTH CIRCUIT STANDARDS: NON-REMEDIAL INTERESTS
5
The United States believes that, as Justice Powell stated in Bakke, diversity may
constitute a compelling interest justifying the consideration of race in higher education.
However, in Hopwood, the U.S. Court of Appeals for the Fifth Circuit concluded that Justice
Powell's view that diversity is a compelling interest did not represent a majority opinion of the
Supreme Court in Bakke or in any subsequent decision of the Supreme Court. The Hopwood
court held that an institution's interest in diversity to enrich the academic experience cannot
satisfy strict scrutiny. That ruling is binding in the states of Texas, Louisiana and Mississippi.
Accordingly, institutions in those three states cannot use affirmative action to foster diversity
among their student body in order to enrich the academic experience.
Institutions in the Fifth Circuit should be aware that there is language in Hopwood that
suggests that remedying past wrongs is the only compelling state interest that can justify
classifications based on race. 30 However, the only non-remedial interest at issue in the case was
diversity, and it may be argued that the holding of Hopwood does not extend to other non-
remedial interests that were not before the panel. Hopwood itself noted that Justice Scalia has
suggested one possible non-remedial compelling interest "a social emergency rising to the
level of imminent danger to life and limb.""31 Because the case before it did not present such an
interest, the panel did not take a position on Justice Scalia's suggestion. Institutions in Texas,
Louisiana, and Mississippi should consult with their counsel before using classifications based
on race or on national origin to further any non-remedial interest other than diversity, and cannot
use affirmative action to foster diversity in order to enrich the academic experience.
B. NARROW TAILORING
In addition to advancing a compelling goal, any use of race must also be "narrowly
tailored." This ensures that race-based affirmative action is the product of careful deliberation,
not hasty decision making. It also ensures that such action is truly necessary and that less
intrusive, efficacious means to the end are unavailable.
The determination of whether a particular affirmative action program is narrowly
tailored is highly fact-specific. As applied by the courts, the factors that typically determine
whether a measure is narrowly tailored are the following: (i) whether the institution considered
race-neutral alternatives before resorting to race-conscious action; (ii) the scope and flexibility
of the affirmative action program, including whether the racial classification is subject to a
waiver; (iii) the manner in which race is used, that is, whether race determines eligibility for a
program or whether race is just one factor in the decision making process; (iv) the comparison
of any numerical targets to the percentage of qualified minorities in the applicant pool; (v) the
duration of the program and whether it is subject to periodic review; and (vi) the degree and type
of burden imposed on non-minorities by the program.
Before describing each of the components, two general points about the narrow tailoring
6
test deserve mention. First, it is unlikely that an affirmative action program must satisfy every
factor. A strong showing with respect to most of the factors may compensate for a weaker
showing with respect to others.
Second, all of the factors will not be relevant in every case. The objective of the
program may determine the applicability or weight to be given a factor, and factors may play
out differently in remedial programs than they will in non-remedial programs.
1.
RACE-NEUTRAL ALTERNATIVES
Before resorting to race-conscious action, an institution should give serious
consideration to race-neutral alternatives, that is, measures that do not rely on race or national
origin as a factor in decision making. For example, the Supreme Court found that a preference
for minority-owned businesses was not narrowly tailored in part because the local government
did not consider other, race-neutral means to increase minority participation in contracting
before adopting race-conscious measures, such as targeted financial assistance for small or new
businesses.
32
In the context of higher education, an institution might consider the use of
socioeconomic criteria that do not include race or national origin, or increasing
efforts to solicit applications from students who have not traditionally applied for
admission, including minority students.
The Supreme Court has not specified the extent to which an institution must consider
race-neutral measures before resorting to race-conscious action. Justice Powell has suggested
that in a remedial setting, it is not necessary to use the "least restrictive means" where they
would not accomplish the desired ends as well,³³ and has described the narrow tailoring
requirement as ensuring that "[less] restrictive means" are used when they would promote the
objectives of a racial classification "about as well." Accordingly, an institution need not
exhaust race-neutral alternatives, but it must give them serious attention and must use them
where efficacious.
2. SCOPE OF PROGRAM. FLEXIBILITY AND WAIVERS
If an affirmative action program's scope exceeds that necessary to achieve the
compelling interest underlying the program, the program is not narrowly tailored. A program
need not be limited to the specific individuals who suffered the past discrimination. But a
program undertaken to remedy past discrimination against certain races should not include
preferences for other racial groups who did not experience that discrimination. For example, the
Supreme Court found that a set-aside program for minority contractors was not narrowly
tailored in part because the city's evidence of discrimination, all of which pertained to the
7
treatment of African Americans, did not provide a predicate for the program's preferences for
Aleuts, Asian Americans, and Hispanics.
Courts have looked favorably upon plans in which numerical targets are waived if there
are not enough qualified minority applicants.³⁶ In the context of government contracting, for
example, Congress permitted officials to waive a national goal of ten percent participation by
minority contractors if it was necessary given the unavailability of qualified minority contractors
in a particular area, or if a grantee demonstrated that his or her best efforts would not succeed in
achieving the target.³⁷ Waivers such as these ensure that a program is flexible, and are
especially important if the program uses a relatively rigid measure such as a quota or set-aside.
3. MANNER IN WHICH RACE IS USED
An integral part of the narrow tailoring requirement is the manner in which race is used.
Flexible programs are more likely to be narrowly tailored than programs with rigid
requirements. Thus programs in which certain admissions positions or financial aid awards are
open only to members of designated racial or ethnic groups are significantly less likely to satisfy
the narrow tailoring requirement than programs that merely consider race or national origin as
one of many factors and are open to all races and ethnic groups.
In this regard, two general principles are apparent with respect to admissions. First, set-
asides or quotas should not be used in an admissions program unless such measures are
absolutely essential to remedying discrimination and its effects. In addition, admissions
programs that rely on separate tracks or separate decision-making procedures that prevent a
comparison among applicants of different races and ethnic origins are also particularly
vulnerable to challenge. Second, where an institution considers race or national origin to foster
diversity for educational objectives, Justice Powell's opinion in Bakke indicates that the
program should give consideration to diversity characteristics in addition to race or national
origin, such as other life experiences, achievements, talents, interests, extracurricular activities,
economic disadvantages, and geographic background.38
Two types of racial classifications are especially vulnerable to a challenge on the ground
that they are too rigid. First and foremost are affirmative action programs in which a specific
percentage of positions or financial aid is set aside for minorities. A good example is the
medical admissions program that the court invalidated in Bakke, which reserved sixteen percent
of the positions in the entering class of the medical school for members of racial and ethnic
minority groups. 39
The second type of classification vulnerable to attack on flexibility grounds is a program
in which race or national origin is the sole or primary factor in determining eligibility -- for
example, a scholarship program reserved for minorities. A scholarship program reserved for
minorities may be distinguished from an admissions quota reserving a portion of seats in a class
8
for minorities, in that the burden imposed on non-minority students in the financial aid context -
- possibly receiving less aid -- is less severe than the burden imposed by an admissions program
-- not being admitted to the institution at all. But a scholarship program open only to minorities
is less flexible than a scholarship program in which race is one of many factors that determine
eligibility for the award. Under both the admissions set-aside and the minority scholarship
program, persons not within the designated categories are ineligible for certain benefits or
positions. This is not the case in programs where race or national origin is deemed a plus in
evaluating an applicant's file but does not insulate the applicant from comparison with all other
candidates for the available benefit.⁴⁰
For a detailed discussion of the standards that should be applied to minority scholarship
programs, institutions and their counsel should consult the Financial Aid Guidance, 59 Fed.
Reg. 8756 (1994).
4. COMPARISON OF NUMERICAL TARGETS TO THE QUALIFIED APPLICANT
POOL
Where an affirmative action program is justified on remedial grounds, the Supreme
Court has compared any numerical goal to the percentage of minorities in the relevant labor
market or industry. The Court rejected a city's target of providing thirty percent of its contracts
to minority businesses where the target had been selected as roughly halfway between one
percent, the percentage of contracts previously awarded to African American businesses, and
fifty percent, the percentage of African Americans in Richmond's population. What was
required, the Court stated, was a target that was related to the percentage of African Americans
in the pool of qualified contractors, not the percentage in the general population.⁴¹ Institutions
that use numerical goals and targets therefore should select a goal that is related to the
percentage of minorities in the pool of qualified applicants. A school may consider the pool of
qualified students who actually apply for admission, and the larger pool of students in areas
from which applications are drawn who would meet the school's admissions standards.
5. DURATION AND PERIODIC REVIEW
A particular affirmative action measure should remain in place only as long as it is
needed to achieve the compelling interest that it serves. A race-based classification is therefore
more likely to satisfy the narrow tailoring test if it has a definite end date or is subject to
meaningful periodic review in order to ascertain the continued need for the measure.42
Reexamination of affirmative action programs also allows an institution to fine tune its
classification or discontinue it if warranted, which may allow the program to satisfy other
factors in the narrow tailoring test. The Office for Civil Rights recommends annual reviews to
ensure compliance with this aspect of the narrow tailoring requirements of Title VI.
9
6. BURDEN ON NON-MINORITIES
Affirmative action necessarily imposes some burden or disadvantage on persons who do
not belong to the racial or ethnic groups favored by the program's classifications. While some
burdens are acceptable, others may be too high. In general, a race-based classification that
"unsettle[s]
legitimate, firmly rooted expectation[s]" or imposes the "entire burden
on
particular individuals" crosses that line. 43 For example, if an institution terminated scholarships
that had been awarded to particular non-minority students in order to fund a scholarship
program for minority students, that might place too much of a burden on the affected non-
minority students to be considered narrowly tailored. Generally, the less severe and more
diffuse the impact on non-minority students, the more likely that a racial or ethnic classification
will address this factor satisfactorily.
For a more detailed discussion of narrow tailoring in the context of race-targeted
financial aid, see the Financial Aid Guidance, 59 Fed. Reg. 8756 (1994).
IV. CONCLUSION
Any covered institution that uses race or national origin as a basis for decision making
should review its program to determine if it comports with the strict scrutiny standard.
Appended to this Guide is a nonexhaustive checklist of questions that will aid institutions in
collecting the information necessary to conduct a thorough review. Because the questions are
just a guide, no single answer or combination of answers is necessarily dispositive as to the
validity of any particular program.
10
ENDNOTES
1. 42 U.S.C. 2000d (1994).
2. See 42 U.S.C. 2000d-4a(2)(A) (1994).
3. With respect to the kinds of race-conscious measures at issue in this Guide, the restrictions of Title VI and of the
Equal Protection Clause are coextensive. See Regents of the University of California V. Bakke, 438 U.S. 265, 284-
87 (Powell, J.), id. at 328-55 (Brennan, J., joined by White, Marshall, and Blackmun, JJ.). For other purposes,
however, the requirements of Title VI and its implementing regulations are not completely coextensive with
constitutional requirements. See Guardians Assn.. v. Civil Service Comm'n of City of New York, 463 U.S. 582, 584,
589-93 (White, J.)(1983) (in disparate impact case not involving affirmative action, Title VI can be violated without
proof of the discriminatory intent necessary to prove a constitutional violation); id. at 623-24 (Marshall, J.,
concurring); id. at 642-45 (Stevens, J., joined by Brennan and Blackmun, JJ.).
4. Those regulations are located in 34 C.F.R. Part. 100 (1997).
5. Adarand, 515 U.S. at 235.
6. Adarand, 515 U.S. at 200.
7. 438 U.S. 265 (1978).
8. See, e.g., City of Richmond V. J.A. Croson Co., 488 U.S. 469, 498-506 (1989); Shaw V. Hunt, 116 S. Ct. 1894,
1902-03 (1996).
9. 438 U.S. 265, 311-15 (1978) (opinion of Powell, J.).
10. See Croson, 488 U.S. at 491-93 (plurality opinion); id. at 518-19 (Kennedy, J. concurring in part and concurring
in the judgment).
11. See Adarand, 515 U.S. at 269-70 (Souter, J. dissenting); Cf. Fordice, 505 U.S. at 727-29 (state must eradicate
policies and practices traceable to prior de jure system that continue to foster segregation).
12. See Croson, 488 U.S. at 499, 505.
13. See, e.g., Fordice, 505 U.S. at 730 n.4.
14. See Wygant v. Jackson Board of Educ., 476 U.S. 267, 277 (1986) (plurality opinion).
15. See Croson, 488 U.S. at 500.
16. Id at 501-02, 509.
17. 34 C.F.R. 100.3(b)(6)(I).
18. 78 F.3d 932, 951 (5th Cir.), cert. denied, 116 S. Ct. 2581 (1996)
19. Id. at 954.
20. See id. at 951.
11
21. See id. at 954-55 (citing Fordice, 505 U.S. at 731-32).
22. Bakke, 438 U.S. at 311-14.
23. In Metro Broadcasting, Inc. V. FCC, 497 U.S. 547 (1990), the Court applied intermediate scrutiny to a
preference for minority-owned broadcasters and held that exposing the nation to diverse perspectives in broadcasting
was an important governmental interest. The Court thus did not consider whether the government's interest in
seeking diversity in broadcasting was compelling. Adarand overruled Metro Broadcasting insofar as it held that
benign race-based action by the federal government is subject to intermediate scrutiny, but did not address whether
diversity in broadcasting can be a compelling, as opposed to important, interest.
24. Bakke, 438 U.S. at 307 (Powell, J.) (reducing deficit of minorities in medical school and the medical
profession); see Croson, 488 U.S. at 507; Johnson V. Transportation Agency, 480 U.S. 616, 639 (1987).
25. See id. at 305, 307, 313. Similarly, in the law enforcement context, diversifying the ranks of officers may at
times serve vital public safety and operational needs, thereby enhancing the agency's ability to carry out its functions
effectively. See Barhold v. Rodriguez, 863 F.2d 233, 238 (2d Cir. 1988); Talbert V. City of Richmond, 648 F.2d
925, 931-32 (4th Cir. 1981), cert. denied, 454 U.S. 1145 (1982); Detroit Police Officers' Ass'n V. Young, 608 F.2d
671, 695-96 (6th Cir. 1979), cert. denied. 452 U.S. 938 (1981); Baker V. City of St. Petersburg, 400 F.2d 294, 301
n.10 (5th Cir. 1968); cf. Wittmer v. Peters, 87 F.3d 916, 919 (7th Cir. 1996), cert. denied, 117 S. Ct. 949 (1997)
(upholding preference for a black lieutenant at a boot camp for young offenders based on the finding that the camp
would not achieve its rehabilitative mission absent the preference because 70% black inmate population unlikely to
accept military regimen with less than a 6% black security staff and no black lieutenants).
26. Brief Of Amici Curiae American Council On Education, Et Al. In Support Of Petitioner at 6, Board of
Education of the Township of Piscataway V. Taxman, No. 96-679 (Supreme Court) (On Writ of Certiorari).
27. Bakke, 438 U.S. at 310 (Powell, J.)
28. Justice Powell approvingly quoted the state court below, which had noted that there were more precise and
reliable ways to identify applicants who were genuinely interested in the medical problems of underserved
communities than race, namely, a demonstrated concern for the problem in the past and a declaration that practicing
in such a community was an applicant's primary professional goal. Id. at 310-11.
29. See Hopwood, 78 F.3d at 944, 948.
30. Id. at 944, 948.
31. Id. at 944 (quoting Croson, 488 U.S. at 521 (Scalia, J., concurring in judgment)).
32. Croson, 488 U.S. at 507.
33. See Fullilove V. Klutznick, 448 U.S. 448, 508 (Powell, J., concurring).
34. Wygant, 476 U.S. at 280 n.6 (plurality opinion of Powell, J.); cf. Billish v. City of Chicago, 989 F.2d 890, 894
(7th Cir.) (en banc) (Posner, J.) (in reviewing affirmative action measures, courts must be "sensitiv[e] to the
importance of avoiding racial criteria
whenever it is possible to do so, [as] Croson requires"), cert. denied, 510
U.S. 908 (1993).
35. Croson, 488 U.S. at 506.
36. See, e.g., United States V. Paradise, 480 U.S. 149, 177-78 (1986).
12
37. See Croson, 488 U.S. at 508 (discussing Fullilove, 448 U.S. at 488 (1980) (plurality opinion)).
38. See Bakke, 438 U.S. at 315 (Because "[t]he diversity that furthers a compelling state interest encompasses a far
broader array of qualifications and characteristics of which racial or ethnic origin is but a single though important
element," a program "focused solely on ethnic diversity would hinder rather than further attainment of genuine
diversity.") (Powell, J.)
39. Bakke, 438 U.S. at 275.
40. See Bakke, 438 U.S. at 315-17; see also Johnson, 480 U.S. at 616 (upholding program that did not set aside any
positions for women).
41. See Croson, 488 U.S. at 507.
42. See Paradise, 480 U.S. at 178 (plurality opinion); Sheet Metal Workers, 478 U.S. at 487 (Powell, J.,
concurring); Fullilove, 448 U.S. at 513 (Powell, J., concurring).
43. See Johnson, 480 U.S. at 638; Sheet Metal Workers, 478 U.S. at 488 (Powell, J., concurring).
13
OF EDUC ATION
Office for Civil Rights
UNITED STATES or AMBIO
Fax Transmittal
To: Pau lundaid
Organization: Domestic Policy Counsel
Phone Number:
Fax Number: 456-2857
Number of Pages (excluding cover page) :
Date:
From:
Art Coleman
Deputy Assistant Secretary
Phone Number: 202-205-5557
Fax Number:
202-205-5381
Message:
RCP
at 500
Cook forward to talle,
If there are transmission problems, please call Millie Palmer at
202-205-5557.
COLLED
NGTE TO BILL KINCAID, DAWN CHIRWA, RICHARD JEROME
Re: Assessment Outline
We have revised the self assessment package in response to Bill's suggestions. The
package is now an Outline, comprising an Overview, a Guide (the legal memo), and
a Worksheet (the checkpoints).
Please flag the presentation of Bakke on pages 2 and 5. The Guide reflects the
discussion of Bakke the Department of Education believes appropriate and
necessary. Our version omits from p. 5 of the Guide a sentence that was provided
by DoJ after we discussed our concerns:
While no majority opinion for the Supreme Court has squarely addressed
when a non-remedial objective may constitute a compelling interest that can
justify the use of narrowly tailored race-conscious measures, the United
States supports Justice Powell's opinion as a correct statement of the law
under the Constitution and Title VI.
To ensure that colleges understand that there is an issue about the legal weight of
Powell's opinion, we added the Fifth Circuit's rejection of Powell -- as not writing
for a majority-- to the Hopwood section, on pages 5-6.
Our position is that the scope of the holding in Bakke and the effect to be given
Justice Powell's opinion on diversity are issues on which differing interpretations
are reasonably possible. From discussions with attorneys representing two
universities in federal litigation on diversity issues, we know that the
authoritativeness of Powell's opinion and the extent of the holding in Bakke will be
litigated. Counsel in these pending cases and higher education groups representing
a substantial majority of colleges and universities in the country will have major
legal concerns about the "no majority opinion" language. In addition to affecting
the defense of pending law suits, including this language in materials designed to
support lawful practices may tend to discourage colleges and universities from
pursuing diversity in a lawful manner. We believe that the United States has no
compelling need to weigh in on this unresolved issue at this time.
In response to Bill's suggestions, we added some text boxes with key excerpts from
the Guide. We also added, on page 5 a reference to the educational benefits of
diversity claimed by ACE et al. in their amici brief in Piscataway.
We look forward to completing the vetting process and issuing assessment
materials that will meet a widespread need for information.