Courts

Family North Carolina Magazine—Mar/Apr 2008

by Tami Fitzgerald

Sexual Identity a "Plus" at UNC Law School?
The UNC-CH School of Law has added a new question to its 2008 application for admission: “Do you self-identify as gay, lesbian, bisexual, transgender or queer?” What does such a question have to do with an applicant’s qualifications, you might ask? Two very different explanations have emerged from the UNC-CH School of Law.

An admissions counselor for the Law School stated that the question is new this year and that its intent is to “attract a well-balanced class of people,” because diversity “creates stimulating conversation and discussion in the classroom.” She asserted that asking applicants if they identify as “gay, lesbian, bisexual, transgender or queer” is just one more way of finding out about a person’s diverse interests and background, just like Law School Admissions Test scores, grades, undergraduate activities, work experience, and the personal statement. “We look for people who bring something different to the table. We take a comprehensive look at candidates,” the admissions counselor stated.

She also stated that the question is purely optional and that many applicants leave the answer blank. Another question on the application about ethnicity asks applicants to identify themselves as either Asian, Black, Native American, Mexican American, White, etc. and contains an explanation that the answer is, “voluntary: for Office of Civil Rights.” The question about “sexual orientation” and “gender identity,” however, does not state that it is “voluntary” or “optional,” leaving the appearance that an answer is required.

Another explanation for the question’s existence on the application has emerged from the Dean’s Office. In a statement issued on January 17, 2008, Dean John Charles Boger and Michael J. States, Assistant Dean for Admissions, explain:

In the spring of 2007, the Lambda Law Students Association, a student organization that seeks to educate people about the legal, political, and social issues facing the gay, lesbian, bisexual, and transgender community, requested the UNC School of Law to include a question on the Law School’s 2008 application form for admission, allowing applicants the opportunity to self-identify as gay, lesbian, bisexual, or transgender. The purpose of the question was to identify the UNC School of Law as a welcoming environment for these applicants, and to allow Lambda to contact admitted students who both self-identified and expressed a willingness to share this information with third parties.

Acceptance to the UNC School of Law is not influenced, positively or negatively, by an applicant’s sexual orientation. Additionally, in keeping with N.C.G.S. §132-1.1(f), the UNC School of Law has not and will never share information provided on an application for admission with any third parties without the express permission of the applicant(s).

The public records laws prohibit the law school from disclosing “personally identifiable information” on the applications to outside students groups, like Lambda Law Student Association (Lambda) without the student’s permission, and there is nothing on the application that grants permission for disclosure. This suggests that the law school may plan to subsequently obtain permission from students who identify themselves as “gay, lesbian, bisexual, transgender or queer” and forward this information to Lambda. Is the law school prepared to grant this same access to the law school application and subsequent cooperation to all other student groups that seek it? Equal access laws would seem to require it.

While the Dean’s office denies that an applicant’s admission into the UNC School of Law is influenced by the fact that an applicant self-identifies as, “gay, lesbian, bisexual, transgender or queer,” at least one UNC admissions counselor admits that an applicant who identifies with these categories may be more attractive because the applicant brings “something different to the table.”

Giving people who belong to an identifiable group of people an advantage or preference is commonly referred to as “affirmative action.” The term originates from an Executive Order issued by President John F. Kennedy in 1961 prohibiting government contractors from discriminating on the basis of race. In higher education, its practice often involves giving a “preference in admissions” on the basis of race, creed, color and national origin. While affirmative action is a common practice in admissions for racial minorities, it is not common for groups constituted merely on the basis of sexual behaviors or self-identification.

The controversy over racial preferences stems from the Fourteenth Amendment’s Equal Protection clause that prohibits the government from denying “to any person within its jurisdiction the equal protection of the laws.” Originally adopted just after the end of slavery, the Fourteenth Amendment’s purpose was to facilitate the movement of freed slaves into the mainstream of American society. Affirmative action was the means of achieving antidiscrimination and for remedying past inequities resulting from discrimination.

In 1978 the U.S. Supreme Court charted a new course for affirmative action in the case of Regents of the Univ. of Cal. v. Bakke. It considered the issue of racial preferences in medical school admissions and settled on a test for admissions policies that revolves around “strict scrutiny.” “Racial and ethnic distinctions are inherently suspect,” the Supreme Court reasoned, because: “The guarantee of equal protection cannot mean one thing when applied to one individual and something else when applied to a person of another color. If both are not accorded the same protection, then it is not equal.” The Court carefully crafted a test that allows racial preferences only if the policy is, “narrowly tailored to further compelling governmental interests.” The Court struck down quotas, separate admission tracks, and differential standards based on race.

The most recent landmark cases on racial preferences dealt with the admissions policies at the University of Michigan, both in its undergraduate program (Gratz v. Bollinger) and in its law school program (Grutter v. Bollinger). The U.S. Supreme Court decided in Gratz that Michigan’s undergraduate admissions program was unconstitutional because it used a formulaic approach, consisting of a point system to rate students and awarding additional points to minorities. Because the undergraduate program did not provide the “individualized consideration” of applicants, it violated the Fourteenth Amendment’s Equal Protection Clause.

The Court upheld the law school admissions policy in Grutter, however, ruling that, “the Equal Protection Clause does not prohibit the law school’s narrowly tailored use of race in admissions decisions to further a compelling interest in obtaining the educational benefits that flow from a diverse student body.” While the Court condemned the use of quotas or point systems that insulate certain races from being compared with all other applicants, it did allow race to be used as a “plus” factor. “A ‘plus’ factor in university admissions ... must remain flexible enough to ensure that each applicant is evaluated as an individual and not in a way that makes an applicant’s race or ethnicity the defining feature of his or her application. The importance of this individualized consideration in the context of a race-conscious admissions program is paramount,” the Court found.

The University of Michigan’s policy correctly considered race as one factor among many others, including a personal statement, letters of recommendation, an essay describing how the applicant would contribute to law-school life and diversity, the applicant’s undergraduate grade-point average, and the applicant’s LSAT score. Finding that diversity in academic settings constitutes a compelling government interest, the Court said: “Here, the Law School engages in a highly individualized, holistic review of each applicant’s file, giving serious consideration to all the ways an applicant might contribute to a diverse educational environment.”

The language the UNC-CH Admissions Counselor used in defending UNC-CH School of Law’s application question about an applicant’s identity as, “gay, lesbian, bisexual, transgender or queer,” is alarmingly similar to the Supreme Court’s language in Grutter. She emphasized the question’s ability to help achieve a “diverse” student body. While, the Supreme Court has not previously allowed “sexual orientation” or “gender identity” as preferences in admissions, UNC-CH may be positioning itself to argue that, under Grutter, student body diversity is a compelling state interest that can justify the use of “sexual orientation” and “gender identity” in law school admissions.

There is no federal or state law that requires or authorizes UNC-CH School of Law admissions officials to grant preferences on the basis of one’s identity as “gay, lesbian, bisexual, transgender or queer” during the admissions process. The Civil Rights Act of 1964 only protects persons with the immutable characteristics of race, sex, and national origin from discrimination in programs receiving federal aid; nothing in its terms requires special treatment for persons who self-identify as “gay, lesbian, bisexual, transgender or queer,” an identification based on a chosen behavior, not an immutable characteristic.

A survey of applications for other law schools in the State (Duke, Wake Forest, N.C. Central, Campbell and Elon) confirms that UNC-CH School of Law is the only law school asking this question. While several of the other law schools (Wake Forest, Campbell and Elon) ask questions about how a student’s background and experiences might bring diversity to the student body, those questions state they are optional and do not specifically ask about an applicant’s “sexual orientation” or “gender identity.”

UNC-CH School of Law’s Admission Policy states that applicants are evaluated on the basis of many factors including “likelihood of contribution to educational environment.” Factors influencing an applicant’s ability to “make a contribution to the diversity of viewpoints and perspectives among students” include “educational, economic, social and family background; geographic or regional origin; disability or handicap; ethnic identification or race, veteran status, gender and age.” The policy does not specifically recognize self-identification as “gay, lesbian, bisexual, transgender or queer” as a factor impacting admissions, although it would allow such a practice generally. Then why is the question on the application?

The are only two logical reasons for the new question on UNC-CH School of Law’s application for admission: either the law school seeks to grant a preference in admissions on the basis of applicants self-identifying as “gay, lesbian, bisexual, transgender or queer,” or the law school simply feels it is important to use the application as a means of identifying potential members for a pro-homosexual student organization. Neither option is appropriate, especially for a publicly funded law school.

Tami L. Fitzgerald is staff attorney with the North Carolina Family Policy Council.