43 Pages Posted: 27 May 2010
Although the 2003 Supreme Court decisions in Grutter v. Bollinger and Gratz v. Bollinger addressed the use of race in the admissions policies of colleges and universities, the Court failed to address the use of race in any higher education context outside of admissions, creating uncertainty as to how broadly the Court’s pronouncements could be applied, and encouraging legal challenges to policies outside of admissions that consider race. This article seeks to resolve some of the uncertainty by exploring the constitutionality of “minority-targeted aid” policies - financial aid policies that direct institutions to consider race when making award determinations, or limit aid eligibility to students from a particular race or ethnicity. This article argues that both race-conscious and race-exclusive aid programs are constitutional when properly conceptualized as enrollment management tools used to give effect to admissions decisions. Like the admissions process sanctioned in Grutter, race-conscious aid is viable because it provides each potential aid recipient with an individualized review process in which race is only one factor to consider. Race-exclusive aid is also viable because although race or ethnicity limits eligibility, the aid is motivated by the legitimate pursuit of a critical mass of minority students. Moreover, individualized review is still required, and there is no undue burden on non-minority candidates as long as the amount of aid does not exceed what is necessary for enrollment management aimed at a critical mass.
Suggested Citation: Suggested Citation
James, Osamudia R., Dog Wags Tail: The Continuing Viability of Minority-Targeted Aid in Higher Education. Indiana Law Journal, Vol. 85, pp. 851-892, 2010; University of Miami Legal Studies Research Paper No. 2010-17. Available at SSRN: https://ssrn.com/abstract=1614943