Constitutional Requirements for Affirmative Action In Higher Education Admissions And Financial Aid

Race-conscious affirmative action programs in higher education are subject to "strict scrutiny," which is the highest standard of review used by the courts to evaluate a policy's constitutionality.  The courts employ a two-part test:  First, does the policy serve a "compelling governmental interest"?  This means that the underlying goal of the policy must be especially important and must be supported by sufficient evidence.  Second, is the policy "narrowly tailored" to satisfy that interest?  This means that, among other things, the policy is necessary to achieve the compelling interest and there are no race-neutral or less burdensome alternatives that could achieve the same interest.  The different elements of the strict scrutiny test are discussed below.

Compelling Interests
 
Institutions of higher education have advanced two types of compelling interests to justify their race-conscious admissions and financial aid policies:  
 

• promoting educational diversity

• remedying the present effects of past discrimination  

 
These interests are not mutually exclusive, and some schools articulate both interests as justifications for their race-conscious programs.  A "strong basis in evidence" is usually required to justify a compelling interest in race-based affirmative action cases, although it is not clear from the case law what types of evidence are necessary or sufficient to satisfy the "strong basis in evidence" requirement.