• 06 November 2009

Toward Constitutional Minority Recruitment and Retention Programs: A Narrowly Tailored Approach

Ellison S. Ward

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The Supreme Court’s 2003 affirmative action decisions, Gratz v. Bollinger1 and Grutter v. Bollinger,2 were widely heralded as victories for proponents of affirmative action.  However, these opinions dealt with the use of race only in the highly specialized context of higher education admissions.  They said nothing about its use in other higher education programs, such as outreach and retention programs that are crucial to achieving diversity in higher education.  Minority students, especially African American and Latino students, face unique challenges in learning about, gaining access to, and completing higher education.  The limits placed by Gratz and Grutter (and by more recent state referenda) on universities’ ability to increase enrollment of these students by using race in admissions are actually quite stringent, compounding the problem.  Since universities are often not able to target racial minorities through admissions programs, their ability to reach out to students who would not otherwise apply and to help them overcome the substantial obstacles that lower their graduation rates is essential to the cultivation of diversity.

The importance of diversity in higher education cannot be overstated:  The Supreme Court has recognized diversity as one of the extremely limited number of compelling state interests that may justify race-based classifications under the Equal Protection Clause of the Fourteenth Amendment.  However, without explicit guidance from the Supreme Court, colleges have responded to pressure from anti-affirmative action groups by choosing to end or change their programs rather than push the constitutional boundaries of what may be done to improve the recruitment and retention of minority students.  This Note tries to discourage that reaction, arguing that colleges may, consistent with the Constitution, maintain race-exclusive and race-targeted3 recruitment and retention programs.

 
I.
The Grutter Standard in University Recruitment and Retention Programs

In many ways, recruitment and retention programs are an entirely separate means of achieving diversity from admissions programs—they address the quality of the educational experience available to particular students where admissions programs dispense specific seats in universities and colleges to minorities—and therefore demand an entirely separate framework for determining their constitutionality.4 However, the Supreme Court’s admissions decisions have been used to evaluate all diversity programs in higher education and are likely to continue to play an important role in any future consideration of recruitment and retention by the Court.  Thus, this Note evaluates recruitment and retention programs through the lens of Gratz and Grutter.

The Supreme Court has clearly stated, and repeatedly reaffirmed, that achieving diversity in higher education is a compelling state interest.  Thus, any analysis of minority recruitment and retention programs is likely to focus solely on whether the programs are narrowly tailored to achieving their express goal of diversity.  The Grutter standard for narrow tailoring requires that an admissions plan meet four criteria:  (1) Each applicant must be considered individually; (2) the university must first undertake a “serious, good faith consideration of workable race-neutral alternatives” for achieving diversity; (3) the program must “not unduly harm members of any racial group”; and (4) it “must be limited in time.”5

The fourth prong may be met with relative ease:  The college or university must simply commit to reevaluating the need for its programs periodically or create an automatic sunset provision for the programs.

To meet the second prong, a college or university first must show that it has considered race-neutral alternatives to programs utilizing race-based decisionmaking and has rejected them only because they are insufficient to achieve meaningful diversity or require the school to sacrifice academic quality.  Colleges can meet this requirement with respect to race-targeted or race-exclusive programs for minority recruitment and retention because, to be truly effective, such programs must explicitly identify, acknowledge, and target the problems that are unique to the minority experience in higher education.  Unlike admissions, where each candidate is fighting for a spot at a particular institution for which individuals of all races are qualified, recruitment and retention programs address factors and problems that are particular to certain minority students:  problems that cannot be rectified without acknowledgement of these unique circumstances.6 Thus, race-exclusive and race-targeted programs may be shown to be the only means of addressing these challenges.

The first and third prongs of the narrow tailoring analysis in Grutter require individualized consideration of applicants and avoidance of undue harm to any racial group.  This Note makes two arguments in the alternative regarding these prongs:  First, except in the context of financial aid, individualized consideration should not be a necessary element of a narrowly tailored recruitment or retention program because such programs do not cause undue harm to other racial groups.  Second, even if individualized consideration is deemed necessary, colleges may take several steps to incorporate individualized consideration into their programs and thus survive strict scrutiny.

 
II.
Recruitment and Retention Programs Without Individualized Consideration

In Grutter, the Supreme Court wrote that “in the context of its individualized inquiry into the possible diversity contributions of all applicants, the Law School’s race-conscious admissions program does not unduly harm nonminority applicants.”7 In other words, individualized consideration was the element of the admissions program that satisfied the requirement that there be no undue burden on nonminority students as a result of race-based decisionmaking.  In this way, individualized consideration can be read not as a separate, independent requirement, but as merely one way of satisfying the “no harm” requirement.  Because recruitment and retention programs do not place an undue burden on nonminority applicants even absent individualized consideration, individualized consideration should not be separately necessary in order for these programs to be sufficiently narrowly tailored.

Unlike admissions decisions, which allocate limited spots within a college or university, outreach and retention programs are designed to address specific problems that are in many ways unique to minority students.  While these programs allocate a distinct benefit to minorities, such as academic assistance or mentoring, they do not deny a benefit to any other racial group.  They do not simply apportion limited resources to minority students over nonminorities but rather create necessary resources to ensure those minority students arrive and remain at their institutions.  These programs leave nonminorities in the same position that they would have been in absent such programs.  Thus, these programs inherently satisfy the “no harm” requirement even if they do not involve individualized consideration.

 
III.
Modifying Recruitment and Retention Programs To Incorporate Individualized Consideration

Schools that do not wish to argue that recruitment and retention programs do not require individualized consideration may, in the alternative, incorporate individualized consideration into such programs.  Race-targeted programs are much more likely to be able to incorporate individualized consideration than race-exclusive ones.  Many programs—such as mentoring, academic, summer bridge, counseling, and financial aid programs—may easily be designed so that entry to participation mirrors the admissions program approved by the Court in Grutter.  However, in contrast with admissions programs—where institutions must consider all the facets of diversity necessary to create an optimal class of admitted students—recruitment and retention programs consider whether an individual student faces particular challenges that make him or her less likely to enroll or persist in school.  Thus, even with individualized consideration, these programs are likely to be highly targeted toward minority students and may thus achieve their intended objectives.

 
Conclusion

Absent explicit guidance from the Supreme Court, colleges may be wary of standing up to pressure from affirmative action opponents who seek to end all race-conscious programs in higher education.  However, given the extremely important role such programs play in improving the racial diversity of institutions of higher education—especially as state initiatives and the Supreme Court’s admissions decisions have limited the extent to which admissions can be used to achieve diversity—colleges should consider carefully whether there are ways of demonstrating that their current programs are narrowly tailored to achieve diversity or, alternatively, tailoring their programs to the existing guidance provided by the Supreme Court.  Though many schools may be reluctant to gamble on the likelihood that the Court will approve their programs, the vital need for race-conscious recruitment and retention programs justifies the aggressive design of these programs to achieve maximum impact while complying with the Equal Protection Clause.dingbat

 

Acknowledgments:

Copyright © 2009 New York University Law Review.

Ellison S. Ward received her J.D. from New York University School of Law.

This Legal Workshop Editorial is based on her Student Note: Ellison S. Ward, Toward Constitutional Minority Recruitment and Retention Programs: A Narrowly Tailored Approach, 84 N.Y.U. L. REV. 609 (2009).

  1. 539 U.S. 244 (2003).
  2. 539 U.S. 306 (2003).
  3. Race-exclusive programs are open only to selected candidates of a particular race; race-conscious programs are open to students of all races, with race being one of several factors in allowing participation. The term race-targeted also refers to race-conscious programs, but generally indicates that the programs are explicitly tailored to meet the needs of minority students, even though they are open to nonminority students.
  4. Recruitment programs take a variety of forms, including visits to local schools, college fairs, individual contacts, and on-campus recruiting weekends. Retention programs likewise take a variety of forms, including tutoring programs, mentoring programs, summer bridge and other academic programs, and academic and job counseling.
  5. Grutter, 539 U.S. at 334-43.
  6. For example, minority students have been shown to face issues of bias, perceived bias, and stereotype threat in the classroom. Therefore, tutoring or other academic programs that simply mirror a typical classroom experience will not address these challenges; classes taught by minority professors or filled exclusively with minority students may do so.
  7. Grutter, 539 U.S. at 341.

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