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Constitutionality Checklist

Diversity – What is Constitutional and What is Unconstitutional

From Preserving Diversity in Higher Education: A Manual on Admissions Policies and Procedures After the University of Michigan Decisions, Bingham McCutchen LLP, Morrison & Foerster LLP, and Heller Ehrman White & McAuliffe LLP (2004) (hereinafter the “Diversity Manual”)

What Is Constitutional:

  • Assigning a “plus” to the race of a candidate when it contributes to the diversity of the class
  • Weighing race as heavily — or even more heavily — than other qualities if it contributes to the diversity of the class, but not so much as to guarantee admission
  • Considering race after weighing several additional qualities of the candidate, as long as the consideration of race does not guarantee admission
  • Striving for a flexible “critical mass” or variable goal of admitted minorities
  • Conducting a full comparison of the candidate’s qualities — including his or her race — with those of other candidates
  • Keeping and referring to the demographic composition of the admitted class to evaluate the status of goals or critical masses

What Is Unconstitutional:

  • Always giving a “plus” to a candidate’s race with no consideration of how it contributes to diversity
  • Weighing race regardless of whether it contributes to the diversity of the class
  • Basing a decision on race without any consideration or assessment of other qualities of the candidate
  • Basing admissions decisions on attaining a predetermined, rigid number of minorities
  • Insulating a candidate based on his or her race and making an admissions decision without comparison to the general applicant pool
  • Relying on the demographic composition of the admitted class to determine whether a particular student is admitted or rejected