A. Scope of the Issue
Under the recent Meredith Supreme Court decision, there will likely be more cases brought before the Court concerning race and education in an attempt to invalidate educational policies that are not satisfactorily "race neutral." The Meredith decision, building in part on prior cases, puts race-based scholarships and admissions procedures in higher education at risk. Specific language in the majority opinion adheres to race neutral, color blind rhetoric, which in turn does not comport with higher education admissions procedures regarding either the use of race as a factor or the granting of scholarships designated specifically for minorities.
B. Defining Minority
The term "minority" in the context of race is commonly used to refer to anyone who is nonwhite; it is a blanket term for African Americans, Hispanics, Asians, Native Americans, et cetera. It is insufficient to group all minorities together as if their history and experiences are the same. The focus of this note will primarily be on the African American minority group. Historically, there is some commonality in how these various groups have been oppressed; thus, a note focusing specifically on one minority group can still be instructive as applied to others.
C. Purpose of the Note
This note suggests that a race neutral policy employs a strategic rhetoric with a discernable pattern that has particularly harmful implications in the context of higher education. It focuses specifically on the Meredith decision and its implications for future court decisions involving race and higher education. Also, this note examines the likelihood of a future reexamination of Gratz and Grutter, which currently control the standard of review for policies utilizing race in higher education.
Lastly, this note proposes that the education and legal communities support a standard which mandates that race be used as a factor in admissions procedures and protects the designation of scholarship monies for minorities. Such a plan would likely not pass the strict standard of review advocated by Meredith. But under a more deferential standard of review that gives preference to state and university determinations, mandated use of race in admissions and scholarships designations would pass constitutional muster.
II. EXPLANATION AND ANALYSIS
A. The Current Standard
Meredith states that racial classifications are only permissible when there is the strictest connection between the classification and the justification, that the Constitution and our laws are color blind, and that "reverse discrimination" will not end societal discrimination.1 Meredith somewhat reaffirms other cases such as Gratz, Grutter, and Bakke dealing with race and higher education, which, taken together, propose that race may be considered as one of many factors to maintain a specific definition of diversity on college campuses, but only if such plan is narrowly tailored to obtain a specific interest and includes a reasonable termination point.2
In addition, the Department of Education (DOE) dictates guidelines for race-exclusive scholarships. Permissible indicators are: (1) the scholarship is implemented to remedy past discrimination; (2) the scholarship is enacted by Congress; or (3) the scholarship is privately funded and does not limit scholarship opportunities for other students.3 The DOE has also applied the standards for admission, such as the race as "one factor" rule set forth in Bakke, to financial aid policies.4
B. Problems with Meredith, Gratz & Grutier & Other Alternatives
Judicial standards articulated in Meredith create too high a barrier for race-based admissions practices in a society where racism has transformed from overt to covert. There are multiple problems with the standard of review and the rationale in Meredith resulting in a flawed and inadequate standard for addressing the use of racial quotas in education. …