An observer might find the following sequence of events curious: The law school of the flagship campus of the UNC system files an amicus brief in a Supreme Court case dealing with a question in the field of public education. The case is decided largely to the law school’s liking. Yet, the UNC system as a whole, and several individual UNC campuses (e.g., UNC-Chapel Hill, UNC-Asheville, UNC-Wilmington, and Appalachian State) might be in violation of the Court’s ruling.
Assuming our observer believes that UNC’s administrators ought to respect the law, he might even go so far as to call such a situation hypocritical. If UNC wishes to avail itself of the constitutional process, it isn’t unreasonable to expect that it should abide by it as well.
Exactly such a situation appears to obtain in North Carolina regarding a recent landmark Supreme Court case in which the UNC School of Law did file an amicus brief – Grutter v. Bollinger. The problem is that North Carolina continues to allow race-based scholarships in violation of the law.
The gist of Grutter is this: student body “diversity” can be a compelling governmental interest, thereby overcoming the constitutional presumption against governmental action that is based upon race or ethnicity. But Grutter doesn’t give state governments or their universities a blank check to use racial preferences at will.
When academic institutions wish to bring about a more racially diverse student body, an applicant’s race may be only one factor of many to be considered. The Supreme Court is willing to accept admissions policies that “[engage] in [a] highly individualized, holistic review of each applicant’s file, giving serious consideration to all the ways an applicant might contribute to a diverse academic environment.”
The Court repeatedly emphasized the necessity of “individualized consideration.” If a school evaluates applicants “in a way that makes an applicant’s race or ethnicity the defining feature of his or her application,” it has acted illegally.
Finally, the Court made it clear that it’s unconstitutional to “insulate” minorities from competition from all other applicants, or to implement procedures that make minority status determinative in the admissions process. In short, race-conscious admissions policies may be constitutional, but race-based policies, are not.
This brings us back to the way UNC does business in admissions and financial aid. In a recent article in Campbell Law Review, Mark Spencer Williams, President of the Center for Higher Education Support Services, points out that the admissions practices at several UNC campuses are questionable. Furthermore, the state itself uses race-based policies in distributing financial aid to students.
Several UNC campuses, including UNC-Chapel Hill, UNC-Asheville, and Appalachian State, have defined “diversity” very broadly. Concepts that contribute to diversity, according to these schools, include sexual orientation or religious belief. However, these campuses do not ask an applicant about either one. This failure to do so makes it look as though these campuses do not care as much about a “holistic” concept of diversity as they say they do.
UNC-Wilmington has not adopted such broad definitions of diversity. On the contrary, UNC-Wilmington looks to historical, cultural, and socio-economic circumstances. UNC-W uses census data to make scholarship awards. But since the only census data that UNC-Wilmington can use are racial statistics, Williams concludes that “UNC-Wilmington has in effect defined diversity in terms of racial categories and financial need.” Doing so may cross the line between race-conscious and race-based policies.
What North Carolina itself does is impossible to hide. North Carolina currently sets aside roughly 10% of its consolidated scholarship funds ($745,000 of $7.5 million) expressly for Native American financial aid applicants. If this is not a special “diversity bonus” for acquiring financial aid, or an insulation of minorities from competition from other applicants, then nothing is.
As Williams notes, “this 10 percent set aside for Native Americans is no different than the 16 percent set aside (16 of 100 seats reserved) for minority applicants, found unconstitutional in Bakke.” Perhaps UNC believes that although the U.S. Constitution does not permit quotas or non-holistic review of applications for admissions purposes, it would permit such practices for financial aid applications.
Whatever UNC believes, it has a very good chance of finding out what the courts have to say about these issues. By continuing to use admission and financial aid policies that look to be race-based rather than merely race-conscious, the state is just begging for a lawsuit.
Timothy Ferguson is a third year student at UNC Law School. He wrote this article for the Pope Center of Higher Education.