Overview of Constitutional Requirements In Race-Conscious Affirmative Action Policies In Education

Introduction

 
Almost all educational institutions are required to meet strict legal requirements when taking race into account in admissions, financial aid, student assignment, and other educational policy decisions.  These requirements arise from the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution, which applies to "state actors" such as public school districts and public institutions of higher learning, and Title VI of the Civil Rights Act of 1964, which applies to both public and private institutions that receive federal funds.
 
Based on U.S. Supreme Court rulings, both the Equal Protection Clause and Title VI require that race-conscious policies be subject to "strict scrutiny," which is a high standard of judicial review in which the courts carefully assess both the importance of the goals underlying a policy and the means by which those goals are attained.  A court evaluates whether the policy (1) serves a "compelling governmental interest," and (2) is "narrowly tailored" to satisfy that interest.  Strict scrutiny is used to test both "invidious" policies that discriminate against racial minorities and "benign" policies designed to benefit racial minorities.
 
The courts have also ruled that a "strong basis in evidence" is usually required to justify a race-conscious policy.  Although the term "strong basis in evidence" has not been clearly defined by the courts, it typically means that the governmental actor must provide more than a mere assertion of its interest and that a body of supporting evidence - which could include statistical evidence, policy evaluations, social science evidence, documentary evidence, or prior findings of discrimination - is available to justify the policy.