Scrutinize This!: The Questionable Constitutionality of Gender-Conscious Admissions Policies Utilized by Public Universities

Abstract

Grutter set forth a number of factors that courts should consider when faced with the question of whether a university's race-conscious admissions policy is constitutional under the Equal Protection Clause.  Because the classification in Grutter was based on race, the Court applied strict scrutiny, which has been the traditional standard of review for racial classifications. Gender classifications traditionally have only merited an intermediate standard of review. Assuming the Court will eventually hear a challenge to a gender-conscious admissions policy, one question that arises is whether the Court should apply strict scrutiny, keeping in line with the standard applied in all race-based educational affirmative action cases, or whether the Court should apply the lower intermediate scrutiny standard, because the classification is based on gender rather than race. Regardless of the level of scrutiny applied, the Grutter factors may provide a helpful framework for determining the constitutionality of a gender-conscious admissions policy.

Part II of this Comment provides an overview of the potential causes of action available to a party who wishes to challenge a university's genderconscious admissions policy. This part also traces the evolution of the standard of judicial review for equal protection claims, provides a brief history of Supreme Court cases involving equal protection challenges to educational affirmative action policies, and reviews the current practice of genderbased affirmative action in the context of higher education. Part III discusses the various views on the appropriate standard of judicial review for the Court to apply when evaluating a challenged gender-conscious admissions policy. Part IV begins by asserting that the standard of scrutiny should be the same whether the gender-conscious policy is benefiting or burdening males or females. Part IV then suggests that the use of the Grutter factors may provide a helpful framework for the Court in deciding a future gender-based affirmative action case, as well as a helpful guide to universities in formulating a constitutional admissions policy. Part V concludes this Comment.