Transcript Legal Update: A Review of the Latest Cases Concerning

Legal Update: A Review of
the Latest Cases
Concerning Diversity
Gerard D. St. Ours
Associate General Counsel
The Johns Hopkins University
November 1, 2007
Review: Constitutional and Statutory
Limitations on Race-Conscious Action
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Equal Protection Clause
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Title VII
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provides that "no State shall… deny to any person
within its jurisdiction the equal protection of the
laws."
Prohibits discrimination in employment on the basis of
race, gender, religion and national orgin
Title VI
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Prohibits discrimination in any program that receives
federal funds
Strict Scrutiny and Narrow Tailoring
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“It is well established that when the government
distributes burdens or benefits on the basis of individual
racial classifications, that action is reviewed under strict
scrutiny. . . . ‘[R]acical classifications are simply too
perniciious to permit any but the most exact connection
between justification and classification.’” Parents
Involved in Community Schools v. Seattle School District
No. 1, 127 S.Ct. 2738, 2751-52 (2007).
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Remedial justification (remedying the effects of past
intentional discrimination)
Diversity
Brief Review of Grutter
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Supreme Court confirms that there is a
compelling interest in higher education to
expose students to “widely diverse people,
culture, ideas and viewpoints,” and this
interest permits universities to adopt
narrowly tailored race conscious programs
in admissions.
Grutter’s Take on Diversity
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Supreme Court Broadly Endorsed the Benefits
of Diversity
Justice O’Connor: The “benefits are not
theoretical but real . . . .”:
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Skills needed in today's marketplace can only be
developed through exposure to widely diverse people,
cultures, ideas, and viewpoints.
Education is the very foundation of good citizenship;
diffusion of knowledge and opportunity through
higher education must be accessible to all; effective
participation by members of all racial and ethnic
groups in the civic life of our Nation is essential if the
dream of one Nation, indivisible, is to be realized.
What does “diversity” mean in
Grutter?
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Diversity refers to a mix of diverse
backgrounds, cultures and life
experiences, of which race and ethnicity
are only two of several factors. Other
diversity factors may include geographic
origin, socioeconomic background,
exceptional talents, and academic and
non-academic interests.
Student Admissions
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Programs must be designed to ensure
individualized review of applicants and their
diversity attributes, which should include:
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Non-mechanical, full-file review of applicants;
Flexible review entailing consideration of “all
pertinent elements of diversity in light of the
particular qualifications of each applicant, and to
place them on the same footing for consideration,
although not necessarily according them the same
weight;” and
Protection against burdens on individuals who do not
benefit from the race-conscious policies.
Student Admissions
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Race/Ethnicity as a “plus factor”
No quotas or mechanized consideration or race
(Note in Gratz, the Supreme Court struck down
Michigan’s undergraduate admissions program
that awarded points based on race)
Universities must conduct periodic reviews of
their race-conscious programs. Programs should
include sunset provisions and/or require periodic
reviews to determine whether racial preferences
are still necessary to achieve student body
diversity.
Parents Involved in Community Schools v.
Seattle School District No. 1
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5-4 decision striking down race-based school
assignment programs in the Seattle and
Jefferson County, Kentucky school systems
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Chief Justice Roberts’ Plurality opinion
Justice Kennedy’s concurring opinion
Justice Breyer’s dissent
All claim to be the true legacy of Brown v. Board’
Both Seattle and Jefferson County sought to justified
their programs under a diversity rationale
The Seattle Plan
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10 public high schools; incoming freshmen can
rank their preferences. For any schools that are
“oversubscribed”, tiebreakers are employed.
The second tiebreaker depends on the racial
composition of the school and how that
compares to the white/nonwhite composition of
the overall school district student population.
If an oversubscribed school is not within 10% of
the school’s overall white/nonwhite balance, the
tiebreaker would be applied to assign students
whose race “will serve to bring the school into
balance.”
Jefferson County Plan
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Jefferson County (Louisville) had been under a court
order to desegregate from 1973 through 2000. After
court order had been dissolved, the county adopted a
student assignment plan. The plan requires that all
shools maintain a minimum black enrollment of 15%
(blacks make up 34% of the school district student
population). Students are classified as “black” or
“other”. At the elementary school level, students
entering the system may submit an application indicating
a first and second choice among the schools within their
cluster. Decisions on assignments and certain transfer
requests are based on available space within the schools
and the racial guidelines. A student whose race would
contribute to a school’s racial imbalance will not be
assigned to the school.
Chief Justice Roberts
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Places Grutter in context: higher education’s
interest in student body diversity
Contrasts Grutter:
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Students not considered as individuals
Exclusive consideration of race
Plans tied to specific racial demographics, rather than
“any pedagogic concept of the level of diversity
needed to obtain the asserted educational benefits.”
(i.e. not narrowly tailored)
Bogeyman is “racial balancing” - - the fatal flaw of
both plans.
Plans use of race have minimal effect on results; this
suggests that non-racial means would be effective
Justice Kennedy: The 5th Vote
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Joins in the decision to strike down the Seattle and Kentucky plans,
but notes:
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The school systems identified a compelling diversity interest;
Disagrees with the Chief Justice’s postulate that the “way to stop
discrimination on the basis of race is to stop discriminating on the basis
of race.” Kennedy: “Fifty years of experience since [Brown v. Board]
should teach us that the problem before us defies so easy a solution.”
Rejects notion that schools cannot address “de facto” segregation:
“The decision today should not prevent school districts from continuing
the important work of bringing students together of different racial,
ethnic and economic backgrounds. Due to a variety of factors - - some
influenced by government, some not - - neighborhoods in our
communities do not reflect the diversity of our Nation as a whole.
Those entrusted with directing our public schools can bring to bear the
creativity of experts, parents, administrators and other concerned
citizens to find a way to achieve the compelling interests they face
without resorting to widesperad governmental allocation of benefits and
burdens on the basis of racial classifications.”
More from Justice Kennedy
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Indicates that diverse school enrollments and
reduction of the potentially harmful effects of
racial isolation are compelling interests.
However, the programs’ blunt distinction
between white/non-white (or white and “other”)
do not correlate closely with advancing the goal
of diversity. Further, in their design and
operation, the plans had features that were
imprecise and ambiguous and therefore could
not withstand strict scrutiny - - a failure of
narrow tailoring.
Still more Kennedy!
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Things school boards can do, according to Justice
Kennedy:
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“School boards may pursue the goal of bringing together
students of diverse backgrounds and races through other means,
including strategic site selection of new schools; drawing
attendance zones with general recognition of the demographics
of neighborhoods; allocating resources for special programs;
recruiting students and faculty in a targeted fashion; and
tracking enrollments, performance, and other statistics by race.
These mechanisms are race-conscious but do not lead to
different treatment based on a classification that tells
each student he or she is to be defined by race, so it is
unlikely any of them would demand strict scrutiny to be
found permissible.”
Race can also be used as a “component” under Grutter where
the school system finds that doing so is necessary in evaluating
school needs. Presumably, strict scrutiny would apply.
Justice Breyer’s dissent
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Would de-emphasizes the distinction between de jure
and de facto - - looks to broad historical context
Seemingly less onerous application of strict scrutiny and
deference to local school boards
Not hung up on “racial balancing” vs. “diversity”. Breyer
identifies the interest as “Integration” and sees three
essential elements: (1) historical and remedial: setting
right the consequences of prior conditions of
segregation; (2) educational: overcoming the adverse
effects produced by highly segregated schools; (3)
democratic: producing an educational environment that
reflects the “pluralistic society” in which our children live
- - so that we can be one Nation.
For what it’s worth
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Kennedy does not support Breyer’s looser
interpretation of strict scrutiny; however,
he seems ready to vote with the
dissenters in Parents Involved if the
program clearly defines diversity goals and
can show how the race-conscious means it
applies are necessary and correlate
precisely with achieving those goals.
Application of Diversity to
Employment?
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Grutter’s broad rationale presents some
intriguing open questions, particularly for higher
education institutions.
Kennedy’s reference to “targeted” recruiting
However, Title VII’s prohibition on racial
discrimination calls into question any
employment decision that takes race into
consideration. The S. Ct. has permitted raceconscious affirmative action only on narrow
grounds where there is a “manifest imbalance”
between the employer’s work force and the
available labor pool.
“Operational Need” as Justification for RaceConscious Diversity Initiatives
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Petit v. City of Chicago, 352 F.3d 1111 (7th Cir. 2003):
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Lomack v. City of Newark, 463 F.3d 303 (3d Cir. 2006).
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Applies Grutter in upholding Chicago’s race-conscious promotion plan
for police officers (standardization of test results by race). “[A] visible
presence of minorities in supervisory positions is critcal to effective
policing in a racially diverse city . . . because supervisors set the tone
for the department.” Also, diversity is necessary for: earning the
community’s trust, a key component of effective police work.
Rejects race-based assignment and transfer plan for city fire
department. Grutter’s recognition of educational benefits of diversity
not relevant to the fire department’s mission, and, unlike police work,
court finds no operational need for diversity to accomplish the mission
of fighting fires.
Both cases handed down before Parents Involved. Leaves open the
question of how broadly the operational need rationale could be
applied in other contexts, such as faculty employment.
Q & A/Discussion