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Diversity in Education
September 19, 2007
Author(s): Anita L. Pelletier

Diversity is a common theme in 21st century American society, the theory being that diverse backgrounds and cultures bring different viewpoints, that once shared and considered, work to the betterment of all. Recently, however, the United States Supreme Court reviewed for the first time voluntary efforts to diversify public schools. The decision was not a clear victory for any side of the issue, and has many questioning whether efforts to achieve diversity in education are still constitutional.
by Anita Pelletier
Originally published in Business Strategies, September 2007. Reproduced by permission.

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Diversity is a common theme in 21st century American society, the theory being that diverse backgrounds and cultures bring different viewpoints, that once shared and considered, work to the betterment of all. Recently, however, the United States Supreme Court reviewed for the first time voluntary efforts to diversify public schools. The decision was not a clear victory for any side of the issue, and has many questioning whether efforts to achieve diversity in education are still constitutional.
by Anita Pelletier
Originally published in Business Strategies, September 2007. Reproduced by permission.

Diversity is a common theme in 21st century American society, the theory being that diverse backgrounds and cultures bring different viewpoints, that once shared and considered, work to the betterment of all. A recent United States Supreme Court decision, however, has many questioning whether efforts to achieve diversity in education are still constitutional.

To many, diversity is looked upon as a tool that is necessary for the continued well being of America as it embraces a competitive global economy. Education is a cornerstone of succeeding in such economy with educational institutions bearing a heavy burden to prepare students for an environment that is at least as challenging as any time in history. Because colleges and universities create their own learning environments geared toward workplace competence, the belief is that diversity should play an important role in education.

In 2003, the Supreme Court agreed that achieving diversity in higher education is a compelling state interest. However, the manner in which it is achieved must be narrowly tailored to accomplish the desired result of a diverse student body with race being only one element in a range of factors considered in attaining diversity.

Specifically, in the cases of Grutter and Gratz, the high Court upheld a process by which the University of Michigan conducted an individualized review of admission applications that considered many different factors, of which race was but one. In upholding this process, the Court noted that it was flexible enough to achieve diversity without focusing entirely on an applicant’s race. However, the Court struck down an admission plan that admitted students on a points system. Points were awarded for a variety of factors including high school grades and extra curricular activities with all underrepresented minority applicants automatically receiving 20 points. The Court held that the system was not narrowly tailored enough to be constitutional because of the automatic awarding of points based on race. Taken together, these 2003 decisions clearly indicated the Court’s acknowledgement that diversity in higher education was a legitimate goal if pursued appropriately.

In Parents Involved in Community Schools v. Seattle School District No. 1, et. al., (June 28, 2007), the Court reviewed for the first time voluntary efforts to diversify public schools. The decision was not a clear victory for any side of the issue.

Chief Justice Roberts distinguished between the need for diversity in the post-secondary environment against that in elementary and secondary schools, limiting the application of the Michigan cases.

Justice Kennedy countered that “diversity depending on its meaning and definition, is a compelling educational goal a school district may pursue” to bring together students of diverse backgrounds and races through other means.

The dissenting justices disagreed with the outcome of the case, but agreed with many of the suggestions made by Justice Kennedy.

It is very clear from this decision that the Supreme Court is a long way from reaching unanimity on this subject but seems to provide that:

  • For institutions of higher learning, race can be one of a number of factors that can be considered in individualized decisions intended to contribute to student body diversity.
  • Plans designed to increase diversity should use a broad definition of diversity (race, gender, geography, culture, abilities, viewpoints, etc.).
  • School districts may pursue the goal of diversity by strategic site selection of new schools, considering neighborhood demographics when determining attendance areas, establishing special programs, targeting recruitment of students and faculty, and tracking enrollments and other statistics by race.

In sum, the Court’s decision does not strike a death knell for voluntary diversity initiatives in public schools or other educational institutions. However, the key to successful, lawful, diversity initiatives will be to structure them carefully to utilize a variety of means and individualized determinations to achieve the desired result and meet the standards required by this new case, as well the Court’s 2003 Grutter and Gratz decisions.


The foregoing has been prepared for the general information of clients and friends of the firm. It is not meant to provide legal advice with respect to any specific matter and should not be acted upon without professional counsel. If you have any questions or require any further information regarding these or other related matters, please contact your regular Nixon Peabody LLP representative. This material may be considered advertising under certain rules of professional conduct.