Preferential treatment: The varying constitutionality of private scholarship preferences at public universities

Minnesota Law Review

Volumn 85, Issue 5, 2001, Pages 1391-1435

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EID: 33750907351     PISSN: 00265535     EISSN: None     Source Type: Journal    
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References (221)

1. Nichole M. Christian, A.C.L.U. Sues Michigan, Citing Bias in Giving College Aid, N.Y. TIMES, June 28, 2000, at A16. This suit comes on the heels of Equal Protection challenges from rejected white applicants to the racial preferences in both the University of Michigan's undergraduate and law school admissions systems. See generally Grutter v. Bollinger, No. 97-CV-75928-DT, 2001 WL 293196, at *1 (E.D. Mich. Mar. 27, 2001); Gratz v. Bollinger, 122 F. Supp. 2d 811 (E.D. Mich. 2000).
2. Pearce Adams, Reverse Discrimination Suits Shelve Black Scholarship Aid at UGA, ATLANTA J.-CONST., July 3, 2000, at B6.
3. UW Faces the Race Question, WIS. ST. J., Aug. 29, 2000, at 9A.
4. For an account of the public controversy and legal battles surrounding Proposition 209, or the California Civil Rights Initiative, see D. Frank Vinik et al., Affirmative Action in College Admissions: Practical Advice to Public and Private Institutions for Dealing with the Changing Landscape, 26 J.C. & U.L. 395, 411-12 (2000) (quoting language from the amendment that would prohibit the state from granting "preferential treatment to [ ] any individual or group on the basis of race, sex, color, or national origin in the operation of public employment, public education, or public contracting").
5. For instance, Missouri Senate Bill 681 would nullify any law, executive order, policy or rule that uses race, sex, color, ethnicity or national origin as a criterion for either discriminating against or granting preferential treatment to any individual or group of persons." Steven E. Ehlmann, Another Approach to Racial Preferences, 54 WASH. U. J. URB. & CONTEMP. L. 93, 96 (1998);
6. see also Advisory Opinion to the Attorney General, Re: Amendment to Bar Government from Treating People Differently Based on Race in Public Education, 25 FLA. L. WEEKLY S546 (Fla. 2000) (rejecting proposed ballot initiative that would prohibit, inter alia, minority scholarships because its substantial effect on local government entities, combined with its effect on Florida's legislative and judicial branches, conflicts with provision in state constitution that requires initiatives to embrace but "one subject and matter").
7. See Vinik, supra note 4, at 395 (warning that no institution should be complacent in the rapidly changing arena of affirmative action).
8. A public university can administer private scholarships in one of two ways. It can do so on an ad hoc basis, accepting or rejecting funds as donations are made, or pursuant to a policy announcing that the university accepts and distributes scholarship donations from private entities. Neither method changes the nature of the state action, and so it is irrelevant which method a university actually chooses. (A university should, however, select a method that better allows it to act neutrally. See discussion infra Part I.B.1.) The university identifies eligible students according to the preferences of the donor and channels the funds to those students to apply against their tuition balances.
9. Indeed, many private organizations are not capable of administering the scholarships that they fund. William E. Thro, The Constitutional Problem of Race-Based Scholarships and a Practical Solution, 111 EDUC. L. REP. 625, 634 (1996). The existing administrative machinery of public universities can save private entities considerable expense by identifying beforehand students who, based upon information from application or matriculation forms, identify themselves as members of a particular racial, ethnic, or religious group.
10. See Carol M. Swain et al., Life After Bakke Where Whites and Blacks Agree: Public Support for Fairness in Educational Opportunities, 16 HARV. BLACKLETTER L.J. 147, 181 (2000) (noting that such scholarships can assist financially disadvantaged racial minorities who hope to matriculate at elite universities).
11. The Establishment Clause is located within the First Amendment, and it declares that "Congress shall make no law respecting an establishment of religion." U.S. CONST. amend. I.
12. Dogmatic reliance on precedent here would do little good because challenges to preference scholarships have in the past involved testamentary trusts naming the state as trustee. In those cases, the terms of the trust have restricted receipt of the scholarship funds to a certain group. See, e.g., Wachovia Bank & Trust Co. v. Buchanan, 346 F. Supp. 665, 666 (D.D.C. 1972) (restricting scholarships to "white boys and girls"); Trs. of the Univ. of Del. v. Gebelein, 420 A.2d 1191, 1193 (Del. Ch. 1980) (restricting scholarships to women); Bank of Del. v. Buckson, 255 A.2d 710, 712 (Del. Ch. 1969) (restricting scholarships to young white men residing in Wilmington, Delaware); Trammell v. Elliott, 199 S.E.2d 194, 197 (Ga. 1973) (restricting scholarships to "poor white boys and girls"); In re Certain Scholarship Funds, 575 A.2d 1325, 1326 (N.H. 1990) (restricting scholarships to "worthy protestant boy[s]"). Each deciding court found state action with minimal discussion because an agent of the state cannot act as trustee under a racially discriminatory private will. See Evans v. Newton, 382 U.S. 296, 298 (1966). Research has not uncovered any cases where the state simply offered to serve as a conduit through which private donors can distribute their scholarship funds.
13. The Fourteenth Amendment states, in relevant part, No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. U.S. CONST. amend. XTV, § 1.
14. The Equal Protection Clause applies equally to classifications based upon race or ethnicity. See Yick Wo v. Hopkins, 118 U.S. 356, 374 (1886) ("[H]ostility to . . . race and nationality . . . in the eye of the law is not justified.").
15. Several scholars have attempted to harmonize the religion clauses with the philosophically similar Equal Protection Clause. See, e.g., Alan E. Brownstein, Harmonizing the Heavenly and Earthly Spheres: The Fragmentation and Synthesis of Religion, Equality, and Speech in the Constitution, 51 OHIO ST. L.J. 89 (1990);
16. Daniel A. Crane, Faith, Reason, and Bare Animosity, 21 CAMPBELL L. REV. 125 (1999);
17. Michael A. Paulsen, Religion, Equality, and the Constitution: An Equal Protection Approach to Establishment Clause Adjudication, 61 NOTRE DAME L. REV. 311 (1986).
18. 438 U.S. 265 (1978).
19. 353 U.S. 230 (1957) (per curiam).
20. 347 U.S. 483 (1954).
21. See City Trusts, 353 U.S. at 231.
22. Bakke, 438 U.S. at 311-12.
23. Id. at 276.
24. Id. at 289.
25. Id. at 319-20.
26. Id. at 315.
27. Id. at 318. Race can only be one factor because [e]thnic diversity . . . is only one element in a range of factors a university may properly consider in attaining the goal of a heterogeneous student body. . . . The diversity that furthers a compelling state interest encompasses a far broader array of qualifications and characteristics of which racial or ethnic origin is but a single though important element. Petitioner's special admissions program, focused solely on ethnic diversity, would hinder rather than further attainment of genuine diversity. Id. at 314-15.
28. See City of Richmond v. J.A. Croson Co., 488 U.S. 469, 493 (1989) ("Absent searching judicial inquiry into the justification for such race-based measures, there is simply no way of determining what classifications are 'benign' or 'remedial' and what classifications are in fact motivated by illegitimate notions of racial inferiority or simple racial politics."); Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 276 (1986).
29. See Wygant, 476 U.S. at 276 ("[A]s the basis for imposing discriminatory legal remedies that work against innocent people, societal discrimination is insufficient and overexpansive. In the absence of particularized findings, a court could uphold remedies that are ageless in their reach into the past, and timeless in their ability to affect the future.").
30. See J.A. Croson Co., 488 U.S. at 493 ("Classifications based on race carry a danger of stigmatic harm. Unless they are strictly reserved for remedial settings, they may in fact promote notions of racial inferiority and lead to a politics of racial hostility." (emphasis added)).
31. See Metro Broad., Inc. v. FCC, 497 U.S. 547, 612 (1990) (O'Connor, J., dissenting) ("Modern equal protection doctrine has recognized only one [compelling] interest: remedying the effects of racial discrimination."). Although a dissent, Justice O'Connor's opinion was joined by three additional justices who would find themselves in the majority in later Equal Protection cases.
32. Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 227 (1995) (overruling the intermediate scrutiny standard of review for benign racial classifications established in Metro Broadcasting and reinstating the notion established in J.A. Croson Co. that "all racial classifications . . . must be analyzed by a reviewing court under strict scrutiny. In other words, such classifications are constitutional only if they are narrowly tailored measures that further compelling government interests.").
33. See Hopwood v. Texas, 78 F.3d 932, 949 (5th Cir. 1996), reh'g en banc denied, 84 F.3d 720 (5th Cir. 1996), cert. denied, 518 U.S. 1033 (1996); Podberesky v. Kirwan, 38 F.3d 147, 153 (4th Cir. 1994).
34. Plaintiff Daniel Podberesky was ineligible to compete for the merit-based Banneker scholarship at the University of Maryland because he is not African-American. He met all of the other requirements. Podberesky, 38 F.3d at 152.
35. Id. at 153. The University cited four present effects of the past discrimination, the first of which was its poor reputation in the African-American community. Id. at 152. The court concluded that "mere knowledge of historical fact [of past discrimination] is not the kind of present effect that can justify a race-exclusive remedy." Id. at 154. The University also claimed that the hostile racial climate on campus justified its program. Id. at 152. The court again would have none of it, claiming that present incidents of hostility "do not necessarily implicate past discrimination on the part of the University, as opposed to present societal discrimination." Id. at 154. The University's last two claimed present effects were based on statistical evidence showing minority underrepresentation and rates of attrition. Id. at 152. The Fourth Circuit dismissed these on procedural grounds; in light of the conflicting evidence presented by Podberesky, summary judgment for the University was improper. Id. at 155-56.
36. See Thro, supra note 8, at 631 ("If a university that explicitly excluded African-Americans for many years cannot establish present day effects of past discrimination, then it seems unlikely that institutions that never explicitly excluded racial minorities can do so."); see also Kirk A. Kennedy, Race-Exclusive Scholarships: Constitutional Vel Non, 30 WAKE FOREST L. REV. 759, 771 (1995) (describing Podberesky "as an overwhelming repudiation of the university's race-based scholarship program").
37. The Fourth Circuit began its analysis by noting that it is difficult to determine whether a program is narrowly tailored to remedy past discrimination when the proof of present effects is so weak. Podberesky, 38 F.3d at 158. Factors to consider are any attempts at race-neutral alternatives, as well as whether the program furthers its claimed objective. Id. at 158. The court found no evidence that the University had attempted a race-neutral solution to the problems of underrepresentation and attrition. Id. at 161. Similarly, because of its availability to non-Maryland residents, the Banneker scholarship was not narrowly tailored to address the University's stated goal of increasing the enrollment of qualified African-American Maryland residents. Id. at 159. Thus, even if every fact in evidence favored the University, the court would not have upheld the program. See id. at 157-58.
38. See Hopwood, 78 F.3d at 948. The court stated that Bakke rests on a doctrinal limb, with little support from subsequent Equal Protection caselaw: "[T]here has been no indication from the Supreme Court, other than Justice PowelPs lonely opinion in Bakke, that the state's interest in diversity constitutes a compelling justification for governmental race-based discrimination. Subsequent Supreme Court caselaw strongly suggests, in fact, that it is not." Id. at 945.
39. See id. at 955.
40. See id. at 948-49.
41. See Thro, supra note 8, at 632.
42. See discussion infra Part II.A.1.
43. Confusion regarding the "true" holding of Bakke results from the fractured nature of the decision. Thus, courts have used the Supreme Court's guidance from Marks v. United States, 430 U.S. 188, 193 (1977), to assist in interpreting such decisions. See, e.g., Smith v. Univ. of Wash., Law School, 233 F.3d 1188, 1199 (9th Cir. 2000); Gratz v. Bollinger, 122 F. Supp. 2d 811, 819 (E.D. Mich. 2000); Johnson v. Bd. of Regents, 106 F. Supp. 2d 1362, 1368 (S.D. Ga. 2000). Under Marks, "When a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, 'the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds . . . .'" 430 U.S. at 193 (quoting Gregg v. Georgia, 428 U.S 153, 169 n.15 (1976)).
44. See Smith, 233 F.3d at 1201.
45. Gratz, 122 F. Supp. 2d at 820 ("While this Court does not necessarily agree with the Ninth Circuit's conclusion that Justice Powell's 'analysis is the narrowest footing upon which a race-conscious decision making process could stand,' this Court reaches the same ultimate conclusion as the Ninth Circuit . . . ." (quoting Smith, 233 F.3d at 1200) (footnote omitted)).
46. See Grutter v. Bollinger, No. 97-CV-75928-DT, 2001 WL 293196, at *23 (E.D. Mich. Mar. 27, 2001). The court could not conclude that Powell's opinion controlled because "while the Brennan group and Justice Powell agreed that race may be considered in admissions (hence the joinder of the Brennan group in Part V-C of Justice Powell's opinion), they disagreed entirely as to the reasons why (hence their failure to join Part IV-D)." Id. at *21. Thus, because Justice Powell's "diversity rationale" in Part IV-D garnered no additional support, the court held that Bakke as a whole "does not stand for the proposition that a university's desire to assemble a racially diverse student body is a compelling state interest." Id. at *23.
47. See Johnson, 106 F. Supp. 2d at 1369-71. The court stated that "Justice Powell's opinion regarding the compelling nature of student body diversity in university admissions is not binding precedent, although of course it carries some persuasive weight." Id. at 1369 (footnote omitted). The Johnson court further observed that "a majority of the Court has never formally announced whether diversity, particularly student diversity in higher education, does or does not reach that 'compelling' level." Id. at 1371.
48. Thro, supra note 8, at 633.
49. Podberesky v. Kirwan, 38 F.3d 147, 161 (4th Cir. 1994).
50. See id. at 158-59 (disagreeing with the lower court's conclusion that "high-achieving black students," regardless of Maryland residency, is an appropriate class to evaluate the success of the scholarship program).
51. 480 U.S. 149 (1987). The Paradise Court upheld a district court's plan to eradicate discrimination in the Alabama Department of Public Safety by promoting qualified black candidates to corporal until their proportion equaled the twenty-five percent minority labor pool. Id. at 185.
52. For instance, the correlation between race and poverty indicates that a scholarship distributed according to need would serve substantially the same purpose as one distributed along racial lines. See Thro, supra note 8, at 634.
53. See id. (remarking that most racial minority scholarships are also neither temporary nor flexible).
54. One commentator states, [The Supreme Court's] attitude about race and education as evidenced in its recent desegregation cases . . . evidences an unwillingness or an inability to recognize the fundamental values at issue. . . . I do not lhink the Court would be sensitive or receptive to a redefinition of diversity in education or of the role that minority-targeted scholarships should play in encouraging substantive diversity. Sean M. Scott, Justice Redefined: Minority-Targeted Scholarships and the Struggle Against Racial Oppression, 62 UMKC L. REV. 651, 670 (1994). Another commentator predicts that "the Supreme Court, with its current membership, is quite likely to reject the diversity rationale when it has occasion to revisit the issue of racial preferences in higher education." Swain et al., supra note 9, at 148.
55. See supra note 12.
56. See supra note 10.
57. Justice Harlan, speaking of the Establishment Clause, once remarked, "'Neutrality in its application . . . requires an equal protection mode of analysis.'" Paulsen, supra note 14, at 327 (quoting Walz v. Tax Comm'n, 397 U.S. 664, 696 (1970) (Harlan, J., concurring)). Twelve years later, the Court again indicated that Equal Protection analysis was proper in an Establishment Clause setting: "'[W]hen we are presented with a state law granting a denominational preference, our precedents demand that we treat the law as suspect and that we apply strict scrutiny in adjudging its constitutionality.'" Id. at 329 (quoting Larson v. Valente, 456 U.S. 228, 246 (1982)) (alteration in original).
58. See Brownstein, supra note 14, at 106 (noting that various religious groups have historically been subjected to disfavored treatment, such as Catholics, Mormons, Jews, and Quakers). The Supreme Court has identified "traditional indicia of suspectness," which many religious groups doubtless display, such as when a class is "saddled with such disabilities, or subjected to such a history of purposeful unequal treatment, or relegated to such a position of political powerlessness as to command extraordinary protection from the majoritarian political process." San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 28 (1973). The extent to which particular religious groups exhibit these "indicia" is subject to debate and is beyond the scope of this Note.
59. See Yick Wo v. Hopkins, 118 U.S. 356, 369 (1886); see also Brownstein, supra note 14, at 107-08 (noting that if northern European groups, who have generally received a more favorable reception in the United States, have status as a suspect class, then religious groups ought to be accorded the same protection).
60. See Paulsen, supra note 14, at 341. Paulsen states, A policy that on its face intends to have specific effects on religion calls attention to itself as a policy affecting a fundamental right and employing a classification that is, in terms of first amendment freedoms of religious exercise and nonexercise, highly suspicious. Presumptively, at least, classifications along religious lines have effects upon the exercise of religious liberty. . . . An official church, for example, is conclusively presumed to impair an individual's freedom to worship as he or she chooses. It follows from this presumption that religion is a 'suspect classification.' Id. (footnote omitted).
61. For instance, religious affiliation is not an immutable characteristic, unlike race or national origin. Brownstein, supra note 14, at 109. Religious exercise, however, is also protected by the First Amendment, and any law that would present an obstacle to such practice or that would require an adherent to abandon her religion would place an unconstitutional condition on the free exercise of religion. See Sherbert v. Verner, 374 U.S. 398, 404 (1963). Scholars have also advanced the argument that because religions are inherently competitive and conflicting, their protection is necessary. The existence of a certain race, for example, does not undermine the existence of other races, while religions intrinsically compete against one another. See Brownstein, supra note 14, at 110-11.
62. See Thro, supra note 8, at 635 (arguing that public universities can avoid legal problems by replacing racial criteria with race-neutral criteria such as poverty, single-parent households, English as a secondary language, etc.); infra note 72 and accompanying text.
63. See Kathleen M. Sullivan, After Affirmative Action, 59 OHIO ST. L.J. 1039, 1047 (1998) (noting that the race-neutral criteria in Texas's "ten-percent solution" - automatic admission for the top ten percent of state high school graduating classes - or the class-based preferences originated by UCLA Law School will present courts with opportunities to evaluate facially-neutral laws that disproportionately favor racial minorities).
64. 426 U.S. 229 (1976); see also Sullivan, supra note 60, at 1047 (noticing that a reverse Washington has not been decided by the Supreme Court).
65. Washington, 426 U.S. at 240.
66. See Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 271 n.21 (1977).
67. 403 U.S. 602 (1971).
68. Id. at 612-13.
69. See Crane, supra note 14, at 127 n.12 (citing numerous scholars who have noted that, while Lemon has not been overruled, it is highly unstable).
70. See, e.g., Santa Fe Indep. Sch. Dist. v. Doe, 120 S. Ct. 2266 (2000).
71. See, e.g., Tangipahoa Parish Bd. of Educ. v. Freiler, 120 S. Ct. 2706, 2707-08 (2000) (mem.). In Tangipahoa, the Supreme Court denied certiorari to a Fifth Circuit ruling that an in-school disclaimer labeling the scientific theory of evolution as such violated the Establishment Clause because it had the "principal or primary effect" of advancing religion. See id. at 2708 (Scalia, J., dissenting). The local school board had adopted a resolution that teaching material on the scientific theory of evolution be accompanied by a disclaimer that the goal of the lesson was to inform students of the scientific concept and not to "'dissuade the Biblical version of Creation or any other concept.'" Id. at 2707 (quoting the school board resolution). The board further noted that the purpose of the disclaimer was to encourage students to think critically in forming their own opinion on the origin of life. Id. The district court and the court of appeals agreed that the latter purpose was a sham. Id. Further, the Fifth Circuit held that the true purpose of the disclaimer was to "protect and maintain a particular religious viewpoint, namely belief in the Biblical version of creation.'" Id. at 2707-08 (quoting Tangipahoa Parish Bd. of Educ. v. Freiler, 185 F.3d 337, 346 (1999)). In his vigorous dissent, Justice Scalia again disapproved of the use of Lemon to decide the matter. Id. at 2708 (Scalia, J., dissenting). Moreover, Scalia could not see how a passing allusion to the Bible - offered as an "illustrative example" - could make the advancement of religion the principal or primary effect of the disclaimer, especially when the Board's avowed purpose was to encourage freedom of thought. Id.; see also Edwards v. Aguillard, 482 U.S. 578, 586-87 (1987) (rejecting the state's policy to teach "creation science" along with evolution in public schools, despite the state's vigorous denial that the policy was religiously motivated, because an examination of legislative history and sponsors' floor statements revealed that proffered religious purpose was not "sincere and not a sham"); Epperson v. Arkansas, 393 U.S. 97, 109 (1968) (striking down a state policy forbidding the teaching of evolution in public schools despite the state's purposeful removal of religious language from the statute).
72. See Edwards, 482 U.S. at 640 (Scalia, J., joined by Rehnquist, J., dissenting) (concluding that the abandonment of Lemon's purpose test would inject clarity and predictability into the Court's Establishment Clause analysis); Lynch v. Donnelly, 465 U.S. 668, 680 (1984) ("The Court has invalidated legislation or governmental action on the ground that a secular purpose was lacking, but only when it has concluded there was no question that the statute or activity was motivated wholly by religious considerations.").
73. See Mitchell v. Helms, 120 S. Ct. 2530, 2539-40 (2000) (Thomas, J., writing for four justices) (noting that the critical issues in cases of state aid to religious schools are whether the government is neutral and whether the aid to religion results from genuinely independent and private decisionmaking); Agostini v. Felton, 521 U.S. 203, 234 (1997) (articulating three "primary criteria" that the Court uses "to evaluate whether government aid has the effect of advancing religion: It does not result in governmental indoctrination; define its recipients by reference to religion; or create an excessive entanglement"). But cf. Simmons-Harris v. Zelman, 234 F.3d 945, 959 (6th Cir. 2000) (holding that facial neutrality "does not bring state action into compliance with the First Amendment" where public and private schools are required to "opt-in" to become eligible for aid initially given to parents and that when no public schools opt for eligibility, parents are not equally able to fund secular education because the majority of choices available are religious institutions).
74. See Sullivan, supra note 60, at 1046.
75. See Santa Fe, 120 S. Ct. at 2282 (holding that the mere enactment of a policy without implementation is sufficient for judicial review - and rejection); id. at 2278 (giving some deference to the state's asserted secular purposes, but reiterating the Court's duty to inquire into their sincerity); supra note 68 and accompanying text.
76. See supra note 63 and accompanying text.
77. 500 U.S. 614 (1991). The Supreme Court affirmed the Edmonson test in Georgia v. McCollum, 505 U.S. 42, 51 (1992).
78. 500 U.S. at 616-17.
79. Id. at 619.
80. Id. at 620 ("[G]overnmental authority may dominate an activity to such an extent that its participants must be deemed to act with the authority of the government and, as a result, be subject to constitutional constraints. This is the jurisprudence of state action . . . .").
81. 457 U.S. 922 (1982).
82. Edmonson, 500 U.S. at 620 (citing Lugar, 457 U.S. at 939-42).
83. Id. at 621.
84. Id. at 621-22.
85. Id. at 622 (citing Tulsa Prof'l Collection Servs., Inc. v. Pope, 485 U.S. 478, 486 (1988)).
86. Id.
87. Id. at 624.
88. See id. at 625-26.
89. The dissent criticized the majority's definition while conceding that the Court's decisions regarding private action-as-state action have not been consistent. Id. at 632 (O'Connor, J., dissenting). The majority ignored, for instance, the principle in Blum v. Yaretsky, 457 U.S. 991 (1982), that constitutional standards may only be invoked when the government is responsible for the private conduct. Id. at 1004. The government is not responsible when the exercise of a peremptory challenge rests wholly within the discretion of the private litigant. Edmonson, 500 U.S. at 632-33 (O'Connor, J., dissenting). Coexistent with the principle of state responsibility is the idea of coercion; when the private body is backed by the coercive power of the state, there is state action. Id. at 634-35 (citing Blum, 457 U.S. at 1004); see also discussion infra Part III.B. Furthermore, the private litigant is not acting with the assistance of the government when the government would provide judges and assemble and detain jurors even without the device of peremptory challenges. Edmonson, 500 U.S. at 634 (O'Connor, J., dissenting). The dissent then proceeded to distinguish the Court's prior cases holding that private conduct constituted state action. Shelley v. Kraemer, 334 U.S. 1 (1948), involved the judicial enforcement of racially discriminatory covenants; in other words, the Court compelled or coerced the discrimination. Edmonson, 500 U.S. at 635-36. Because the exercise of a peremptory challenge rests entirely with the private actor, the state compels nothing. Id. Even more persuasive, according to the Edmonson Court, see id. at 637, is Jackson v. Metropolitan Edison Co., 419 U.S. 345 (1974), which states, "Respondent's exercise of the choice allowed by state law where the initiative comes from it and not from the State, does not make its action in doing so 'state action' for purposes of the Fourteenth Amendment," 419 U.S. at 357 (footnote omitted). Lastly, the dissent notes that the majority mischaracterized the nature of traditional government functions. Only "core government activities," the exercise of which is "traditionally exclusively reserved to the State," will transmute private conduct into state action. Edmonson, 500 U.S. at 639-40 (O'Connor, J., dissenting).
90. Edmonson, 500 U.S. at 631.
91. Justice O'Connor cogently advanced this notion in her concurrence in Wallace v. Jaffree, 472 U.S. 38, 73-76 (1985) (O'Connor, J., concurring).
92. 120 S. Ct. 2266 (2000).
93. Id. at 2278 (quoting Wallace, 472 U.S. at 73-76 (O'Connor, J., concurring)).
94. See Paulsen, supra note 14, at 352 (noting that Justice O'Connor "has put the best light to date on the three prongs of Lemon").
95. Santa Fe, 120 S. Ct. at 2277.
96. Id. at 2278.
97. Brownstein, supra note 14, at 127 (analyzing Justice Kennedy's concurrence in Allegheny County v. ACLU, 492 U.S. 573, 597-600 (1989)).
98. 505 U.S. 577 (1992).
99. Crane, supra note 14, at 129 n.18.
100. See Santa Fe, 120 S. Ct. at 2280 ("Even if we regard every high school student's decision to attend a home football game as purely voluntary, we are nevertheless persuaded that the delivery of a pregame prayer has the improper effect of coercing those present to participate in an act of religious worship.").
101. Id. at 2282 ("[T]he simple enactment of this policy, with the purpose and perception of school endorsement of student prayer, was a constitutional violation. We need not wait for the inevitable to confirm and magnify the constitutional injury. . . . [Elven if no Santa Fe High School student were ever to offer a religious message, the [policy in question] fails a facial challenge because the attempt by the District to encourage prayer is also at issue.").
102. See supra note 64-67 and accompanying text.
103. See Santa Fe, 120 S. Ct. at 2281; supra notes 64-68, 72 and accompanying text.
104. Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 227 (1995).
105. Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 276 (1985).
106. If a court were to accept the state's interest in a diverse student body as compelling, it would have to explain and reconcile several other decisions to attain true legitimacy. Namely, the Supreme Court has written that racial classifications should be limited strictly to remedial settings. City of Richmond v. J.A. Croson Co., 488 U.S. 469, 493 (1988). Also, the Fifth Circuit in Hopwood v. Texas, 78 F.3d 932 (5th Cir. 1996), explicitly rejected the notion, id. at 945, and the Supreme Court denied certiorari, 518 U.S. 1033 (1996). Together, J.A. Croson Co. and Hopwood deliver potentially fatal blows to any court's decision to uphold a diverse student body as a compelling interest.
107. See supra notes 32, 36 and accompanying text (noting that the Fourth and Fifth Circuits in Podberesky v. Kirwan, 38 F.3d 147, 155 (4th Cir. 1994) and Hopwood, respectively, searched vainly for present effects of past discrimination that might save the state's scholarship plans).
108. The Podberesky court apparently would require de jure discrimination. See 38 F.3d at 155. Thus, a racial group's historically low enrollment at a specific public university does not alone fulfill this requirement, absent a showing of intent, because many universities have experienced de facto segregation. Id. The discrimination is therefore more indicative of societal discrimination than specific past discrimination on the part of the university. See id.
109. See id. at 154. The court stated, For an articulated effect to justify the program, however, there must be a connection between the past discrimination and the effect. The district court recognized this and reasoned that there was a nexus because racial incidents have occurred with some frequency and regularity . . . since 1970, which is when the district court found that de facto segregation ended at the University . . . . The district court appears to have found the connection between the University's previous discriminatory acts and the present attitudes obvious, but we have not so found it. The frequency and regularity of the incidents, as well as claimed instances of backlash to remedial measures, do not necessarily implicate past discrimination on the part of the University, as opposed to present societal discrimination . . . . Id. (emphasis added) (citation omitted).
110. Id. at 155.
111. One commentator has noted, "If a university that explicitly excluded African-Americans for many years cannot establish present day effects of past discrimination, then it seems unlikely that institutions that never explicitly excluded racial minorities can do so." Thro, supra note 8, at 631.
112. See generally Smith v. Univ. of Wash., 233 F.3d 1188 (9th Cir. 2000); Gratz v. Bollinger, 122 F. Supp. 2d 811 (E.D. Mich. 2000).
113. See supra note 40 and accompanying text (quoting language from the Supreme Court about how to find the "true" judgment when there is no clear majority).
114. Smith, 233 F.3d at 1200.
115. See Gratz, 122 F. Supp. 2d at 820.
116. See id. at 820-21.
117. Id. at 831.
118. Johnson v. Bd. of Regents, 106 F. Supp. 2d 1362, 1368 (S.D. Ga. 2000).
119. See Gratz, 122 F. Supp. 2d at 821 ("Moreover, that section of Justice O'Connor's opinion in Croson that is most often cited for the proposition that race-based classifications must be 'strictly reserved for remedial settings' did not enjoy a majority of the Court." (quoting City of Richmond v. J.A. Croson Co., 488 U.S. 469, 493 (1989))). That Justice Powell's Bakke opinion was only a plurality did not stop the court from devoting an entire section of its opinion to his analysis. See id. at 818. The court gives no indication why J.A. Croson Co. is or should be given less weight. True, Bakke is specific to the context of higher education, but the unqualified language of J.A. Croson Co. is arguably relevant in any context.
120. See Grutter v. Bollinger, No. 97-CV-75928-DT, 2001 WL 293196, at *23-24 (E.D. Mich. Mar. 27, 2001) ("When read together, Adarand and Croson clearly indicate that racial classifications are unconstitutional unless they are intended to remedy carefully documented effects of past discrimination . . . . [U]nder the Supreme Court's post-Bakke decisions, [diversity in university admissions] is not a compelling state interest . . . .").
121. See Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 307-10 (1978).
122. See supra note 26 and accompanying text.
123. Gratz, 122 F. Supp. 2d at 822 (listing facts in support of the finding that student body diversity is a compelling interest). The court's inclusion of this fact is superfluous at best and unconstitutional at worst.
124. According to Justice Powell, borrowing language from Justice Frankfurter, "four essential freedoms" constitute "academic freedom," namely freedom "to determine for itself on academic grounds who may teach, what may be taught, how it shall be taught, and who may be admitted to study." Bakke, 438 U.S. at 312 (quoting Sweezy v. New Hampshire, 354 U.S. 234, 263 (1957) (Frankfurter, J., concurring)).
125. See id. at 311-12.
126. See Gratz, 122 F. Supp. 2d at 818.
127. See supra note 121 and accompanying text.
128. See Podberesky v. Kirwan, 38 F.3d 147, 158 (4th Cir. 1994) (noting that the court may consider possible race-neutral alternatives); Thro, supra note 8, at 633 (distilling four factors from caselaw considering the narrowly tailored requirement: (1) the availability of race-neutral remedies combined with the necessity of a race-based solution; (2) the flexibility and temporary nature of any race-based remedy; (3) the statistical correlation between the race-based remedy and the relevant population; and (4) additional preferences among minorities created by the race-based remedy).
129. For example, a public scholarship distributed on the basis of financial disadvantage would serve substantially the same purpose as one distributed along racial lines. See supra note 49 and accompanying text.
130. 426 U.S. 229, 240 (1976); see also supra notes 60-62 and accompanying text (noting that a reverse Washington has not yet been decided, though the legal basis for the claim certainly exists).
131. See Washington, 426 U.S. at 240.
132. See id. at 241.
133. See Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 271 n.21 (1977).
134. See discussion supra Part I.A.
135. Grutter v. Bollinger, No. 97-CV-75928-DT, 2001 WL 293196, at *25 (E.D. Mich. Mar. 27, 2001).
136. Id.
137. See id. at *26; Leslie Yalof Garfield, Squaring Affirmative Action Admissions Policies with Federal Judicial Guidelines: A Model for the Twenty-First Century, 22 J.C. & U.L. 895, 916 (1996); supra note 125 and accompanying text.
138. The university faces the threshold problem, of course, of increasing the number of African-American applications, not to mention admissions and matriculations. While the issues involved in this Note are present the moment the university adopts its goal, this discussion is limited to the problems associated with distributing financial aid scholarships to the specified minority group.
139. Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 295-97 (1978). Justice Powell wrote, The concepts of "majority" and "minority" necessarily reflect temporary arrangements and political judgments. . . . [T]he white "majority" itself is composed of various minority groups, most of which can lay claim to a history of prior discrimination at the hands of the State and private individuals. Not all of these groups can receive preferential treatment and corresponding judicial tolerance of distinctions drawn in terms of race and nationality, for then the only "majority" left would be a new minority of white Anglo-Saxon Protestants. There is no principled basis for deciding which groups would merit "heightened judicial solicitude" and which would not. Courts would be asked to evaluate the extent of the prejudice and consequent harm suffered by various minority groups. Those whose societal injury is thought to exceed some arbitrary level of tolerability then would be entitled to preferential classifications at the expense of individuals belonging to other groups. . . . As these preferences began to have their desired effect, and the consequences of past discrimination were undone, new judicial rankings would be necessary. The kind of variable sociological and political analysis necessary to produce such rankings simply does not lie within the judicial competence - even if they otherwise were politically feasible and socially desirable. Id. (footnote omitted).
140. See Grutter, 2001 WL 293196 at *26. The court quoted the University of Michigan Law School's 1992 admissions policy as singling out "'African Americans, Hispanics and Native Americans' as 'groups which have been historically discriminated against [and] who without this commitment might not be represented in our student body in meaningful numbers.'" Id. This criterion alone, however, could not explain why those three groups were chosen to the exclusion of others. "Certainly, other groups have also been subjected to discrimination, such as Arabs and southern and eastern Europeans to name but a few, yet the court heard nothing to suggest that the law school has concerned itself as to whether members of these groups are represented 'in meaningful numbers.'" Id. Implicating Bakke and the troublesome flexibility of the term "minority," the court noted that nothing prevented Michigan Law School "from enlarging, reducing, or shifting its list of preferred groups tomorrow without any reasoned basis or logical stopping point." Id. Thus, the resulting distinctions among racial or ethnic lines weighed against a finding of narrow tailoring.
141. See Sullivan, supra note 60, at 1042 (noting that the Texas program "virtually guarantees threshold levels of minority representation among college admittees").
142. 426 U.S. 229 (1976).
143. If the university's goal is to retain racial minorities, the ten percent solution supplies no criteria. Scholarships to the top ten percent of high school classes would benefit whites in proportion to their percentage of the population, and nonwhites in proportion to their percentage of the population. If the administration distributed the funds according to socioeconomic status, the possibility of a reverse Washington suit appears again. The university would thus depend on a court to carve out an explicit exception to Washington - a gamble, to be sure. A related but perhaps constitutionally viable solution is to allocate the scholarship funds according to the property values of the land within the school district whose students have been admitted under the ten percent solution. Public school funding was apportioned by property taxes, which were assessed against property values, in San Antonio Independent School District v. Rodriguez, 411 U.S. 1, 7-8 (1973). The Court, prior to its holding in Washington, upheld the scheme because "where wealth is involved, the Equal Protection Clause does not require absolute equality or precisely equal advantages." Id. at 24. Classifications based on property value were not suspect and thus were accorded rational basis review. See id. at 55. The breadth of Washington, holding that any showing of racially disproportionate impact establishes a prima facie case, may have overruled Rodriguez by necessary implication. If the funding scheme in Rodriguez disproportionately burdened minorities, the plaintiff class might have had a claim post-Washington. This is, however, unclear.
144. 353 U.S. 230 (1957).
145. See Kennedy, supra note 33, at 780 (concluding that City Trusts "is dispositive in situations where a state university administers a scholarship fund designated for students of one particular race").
146. See cases cited supra note 11. In these cases, the considerable issue of whether the distribution of private funds was state action was hardly discussed. See Wachovia Bank & Trust Co. v. Buchanan, 346 F. Supp. 665, 667 (D.D.C. 1972) (stating that the parties did not argue the state action issue); Trs. of the Univ. of Del. v. Gebelein, 420 A.2d 1191, 1193 (Del. Ch. 1980) (concluding in one sentence that state action is present); Trammell v. Elliot, 199 S.E.2d 194, 197 (Ga. 1973) (noting that the defendant, the state Attorney General representing the University System of Georgia, conceded the issue of state action).
147. City Trusts, 353 U.S. at 230-31.
148. Id. at 231 (citing Brown v. Bd. of Educ., 347 U.S. 483 (1954)).
149. The Court's entire resolution of the case, after presenting the facts that two African-Americans were denied admission, consists of the following: "Such discrimination is forbidden by the Fourteenth Amendment. Accordingly, the judgment of the Supreme Court of Pennsylvania is reversed and the cause is remanded . . . ." Id. at 231 (citation omitted).
150. See cases cited supra note 11.
151. The cy pres doctrine allows courts to reform the terms of a charitable trust, the performance of which has become illegal or impossible, so long as the reformation remains within the general charitable intent of the testator. See JOSEPH WILLIAM SINGER, PROPERTY LAW: RULES, POLICIES, AND PRACTICES 558-59 (2d ed. 1997).
152. Wachovia Bank & Trust Co. v. Buchanan, 346 F. Supp. 665, 665 (D.D.C. 1972); Trs. of the Univ. of Del. v. Gebelein, 420 A.2d 1191, 1192 (Del. Ch. 1980); Bank of Del. v. Buckson, 255 A.2d 710, 717 (Del. Ch. 1969); Trammell v. Elliot, 199 S.E.2d 194, 198 (Ga. 1973).
153. Cf. Santa Fe Indep. Sch. Dist. v. Doe, 120 S. Ct. 2266, 2275 (2000) (citing Lee v. Weisman, 505 U.S. 577, 587 (1992)) (holding that the government may not coerce anyone to participate in religion).
154. The trustee relationship, however, is still relevant because of the liability implications. If a trustee disobeys the terms of the trust, a lawsuit can obviously follow. If a public university wished to reject a private donation, and the donor's restrictions did not violate existing civil rights laws, the donor might have a cause of action rooted in the Free Speech Clause or the free association notion of the First Amendment. Free Speech concerns, however, outside of the Establishment or Equal Protection Clauses, are beyond the scope of this Note.
155. Washington v. Davis, 426 U.S. 229, 240 (1976).
156. See supra note 63 and accompanying text.
157. The law of wills and trusts varies by state, but the Restatement offers a definition of the equitable cy pres doctrine regarding reformation of a trust that requires performance of an illegal act: "[I]f the settlor manifested a more general intention to devote the property to charitable purposes, the trust will not fail but the court will direct the application of the property to some charitable purpose which falls within the general charitable intention of the settlor." RESTATEMENT (SECOND) OF TRUSTS § 399 (1959).
158. See supra note 7 (explaining the university's options but noting that the state involvement remains the same).
159. For the perils of state-made preferences, see discussion supra Parts I.A, II.A.
160. See supra Part I.B.2.
161. 500 U.S. 614 (1991).
162. See supra notes 75-85 and accompanying text (describing the Court's test for state action in Edmonson).
163. See supra Part I.B.2.a.
164. For the purposes of the following discussion, the terms "public university" and "state" shall be used synonymously. Because the public university is an organ of the state, any act by the university is an act by the state for constitutional purposes.
165. See supra note 8.
166. See supra note 79 and accompanying text.
167. See supra note 81 and accompanying text.
168. Edmonson, 500 U.S. at 622 (quoting Tulsa Prof. Collection Servs., Inc. v. Pope, 485 U.S. 478, 486 (1988)). The "administration" of the jury system includes the establishment of both the qualifications for jury service and the procedures by which jurors are selected. See id. According to the Court, the initial statutory or regulatory act, though performed only once, forever serves as government assistance sufficient to contribute to a finding of state action. The trial judge's oversight during voir dire also constitutes important government assistance. See id. at 623. While judges often choose to take a direct role in that process, the Court did not state that such positive involvement was necessary. See id. Therefore, even a judge who quietly monitors voir dire from the bench would still be providing "overt, significant assistance." With this lax standard, it becomes hard to imagine when the conduct of a state official is not "overt, significant assistance."
169. The Edmonson Court had no reservations about using the term "traditional government function" in the context of the state action inquiry. Id. at 624-25. Yet, the Court jettisoned the same term in the context of state immunity in Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528 (1985). In fact, the Court found the term so "unworkable" that it explicitly overruled a prior case, National League of Cities v. Usery, 426 U.S. 833 (1976), that had made extensive use of the term. Garcia, 469 U.S. at 531. In the nine years between those two opinions, the Garcia Court noted that "this Court itself has made little headway in defining the scope of the governmental functions" encompassed in the term. Id. at 539.
170. Edmonson, 500 U.S. at 624-25 ("If a government confers on a private body the power to choose the government's employees or officials, the private body will be bound by the constitutional mandate of race neutrality.").
171. See id. at 628. As the Court noted, Few places are a more real expression of the constitutional authority of the government than a courtroom, where the law itself unfolds . . . . Race discrimination within the courtroom raises serious questions as to the fairness of the proceedings conducted there. Racial bias mars the integrity of the judicial system and prevents the idea of democratic government from becoming a reality. Id.
172. 347 U.S. 483 (1954).
173. See supra notes 88-93 and accompanying text. The "reasonable observer" test entered the constitutional fray in 1985. The Court continues to apply the test, doing so most recently in Santa Fe Independent School District v. Doe, 120 S. Ct. 2266 (2000). It is inappropriate to look first at Agostini v. Felton, 521 U.S. 203 (1997), because its test presumes the existence of state action as a threshold matter. The principles of the "state-aid-to-religion" cases are certainly helpful, but they are not directly transferable when the existence of state action remains in doubt.
174. Santa Fe, 120 S. Ct. at 2278.
175. 403 U.S. 602 (1971).
176. See supra note 91 and accompanying text (noting that the "reasonable observer" test makes the Lemon inquiry much more manageable).
177. See Bowen v. Kendrick, 487 U.S. 589, 602 (1988). In facial challenges, where courts do not have the luxury of consulting actual applications of the policy, a court must consider its purpose. On that logic, the Court in Santa Fe disregarded the district's argument that the football prayer policy "cannot be invalidated on the basis of some 'possibility or even likelihood' of an unconstitutional application." 120 S. Ct. at 2281 (quoting Brief for Petitioner at 17).
178. Lemon, 403 U.S. at 612.
179. Wallace v. Jaffree, 472 U.S. 38, 75 (1985) (O'Connor, J., concurring).
180. See cases cited supra note 68 (listing cases where state's denial of religious motive and proffer of valid secular purpose provided no immunity from the courts).
181. The university should obviously choose its words wisely and avoid the "smoking gun" that destroyed the district's chances in Santa Fe. In that case, the school had "candidly" titled its regulation, "Prayer at Football Games." Santa Fe, 120 S. Ct. at 2279. Even ostensibly benign religious references should be avoided. See Tangipahoa Parish Bd. of Educ. v. Freiler, 120 S. Ct. 2706, 2708 (2000) (mem.) (Scalia, J., dissenting) (striking down a school board policy that referred to "the Biblical version of Creation or any other concept"); Edwards v. Aguillard, 482 U.S. 578, 586-87 (1987) (rejecting the state's policy of teaching "creation science" along with evolution in public schools). See generally Wallace, 472 U.S. 38 (striking down a policy for a moment of silence or prayer at local public schools while noting that most "moment of silence" laws are constitutional).
182. See Witters v. Wash. Dept. of Servs. for the Blind, 474 U.S. 481, 488 (1986) (upholding a neutral state aid program where any ultimate funding of religious education results solely from the choices of private actors). Additionally, although the recipient may have received the funds because of a religious affiliation, she cannot expend them on religious education because she is enrolled in the public university that identified her for eligibility for those funds. Thus, even assuming that courts would deem it state aid, the public university's distribution of the private funds serves as an "effective means of guaranteeing" that the aid will be used for secular purposes. Comm. for Pub. Educ. & Religious Liberty v. Nyquist, 413 U.S. 756, 786 (1976) (striking down state aid to parents of children in private schools because of the lack of such a guarantee).
183. 38 F.3d 147 (4th Cir. 1994).
184. 78 F.3d 932 (5th Cir. 1996); see also supra notes 30-38 and accompanying text.
185. See, e.g., supra notes 2-3 and accompanying text.
186. Cf. Agostini v. Felton, 521 U.S. 203, 234 (1997) (finding no advancement of religion when government aid does not result in government indoctrination, when aid recipients are not defined by reference to religion, and when there is no excessive entanglement); see also supra notes 173-79 and accompanying text (advising that the text of the university's policy should not and need not contain references to religion in order to be fully effective).
187. Cf. Agostini, 521 U.S. at 235 (holding that sectarian school students meet neutral eligibility criteria for generally available education funds); Zobrest v. Catalina Foothills Sch. Dist, 509 U.S. 1, 8 (1993) (finding no Establishment violation if a government program neutrally provides benefits to a broad class of citizens because the indirect aid to religion results only because of a private decision). Were the policy to authorize or even contemplate private scholarships for only one religious group, there would presumably be an Establishment violation so blatant that it would not even be worthy of certiorari. See Tangipahoa Parish Bd. of Educ. v. Freiler, 120 S. Ct. 2706, 2708 (2000) (mem.) (Scalia, J., dissenting) (referring to the appellate court's notice that "the 'Biblical version of Creation" [was] the only alternative theory explicitly referenced in the disclaimer").
188. See Edwards v. Aguillard, 482 U.S. 578, 586-87 (1987).
189. But cf. supra note 68 and accompanying text (noting cases where courts invalidated policies despite purposeful removal of religious language and because of isolated floor comments of a statute's legislative sponsor).
190. See cases cited supra note 184. Furthermore, even if a court were to classify the scholarships as government aid, the program would not run afoul of the three criteria used by the Supreme Court to evaluate whether such aid has the effect of advancing religion. See Agostini, 521 U.S. at 234. Namely, a scholarship program would not result in government indoctrination because students would apply the private funds only at public universities; the policy itself would not define recipients of private scholarship aid by reference to religion; and identification of qualified students and distribution of the funds do not create an excessive entanglement because the state's discretion is limited to the requests of the donor. See infra notes 191-92 and accompanying text.
191. See, e.g., Santa Fe Indep. Sch. Dist. v. Doe, 120 S. Ct. 2266, 2272-73 (2000) (reviewing a policy that allowed one student to give a prayer over the loudspeaker before school football games and concluding that such a policy necessarily favors one religion or means of worship over others); Tangipahoa, 120 S. Ct at 2707-08 (Scalia, J., dissenting) (affirming the decision that invalidated the policy because it "protect[s] and maintain[s] a particular religious viewpoint"); Lee v. Weisman, 505 U.S. 577, 587 (1992) (invalidating a policy that would allow a rabbi to deliver prayer at a middle school commencement); see also Agostini, 521 U.S. at 234 (holding that a neutral eligibility criteria that did not define recipients of federal aid with respect to religion satisfies the Establishment Clause); Zobrest, 509 U.S. at 10-12 (upholding the state's provision of sign language interpreter to deaf student at a Roman Catholic high school because the benefit was available to all deaf students and did not inculcate religion); Witters v. Wash. Dep't of Servs. for the Blind, 474 U.S. 481, 488 (1986) (quoting Comm. for Pub. Educ. & Religious Liberty v. Nyquist, 413 U.S. 756, 782-83 n.38 (1973)) (allowing the state to issue a tuition grant to a blind student who wished to attend a Christian college and holding that there was no Establishment violation because
192. See Lemon v. Kurtzman, 403 U.S. 602, 612-13 (1971) (prohibiting a policy with a secular purpose from having the primary effect of either advancing or inhibiting religion).
193. See Santo Fe, 120 S. Ct. at 2278.
194. Lemon, 403 U.S. at 612-13. Agostini, decided in 1997, also prohibits excessive entanglement with religion in the distribution of generally available government aid. 521 U.S. at 234.
195. Paulsen, supra note 14, at 349-50 (arguing that the excessive entanglement prong should be streamlined to require only a "least entangling means" because once a program is neutral in purpose and effect, and therefore proper under Lemon's first two prongs, "'excessive entanglement' means that the institutions of church and state are more entangled than they need to be in order for government to accomplish its otherwise legitimate purposes in the program or policy at issue").
196. See supra notes 94-100 and accompanying text.
197. See, e.g., Slum v. Yaretsky, 457 U.S. 991, 1004 (1982) (finding state action when the private body is backed by the coercive power of the state); Shelley v. Kramer, 334 U.S. 1, 19 (1948) (finding state action when judicial enforcement of racially discriminatory covenants compels or coerces the discrimination).
198. Santo Fe, 120 S. Ct. at 2280.
199. Id. (quoting Lee v. Weisman, 505 U.S. 577, 594 (1992)).
200. A different issue is presented when the state coerces or creates financial incentives for students to obtain a sectarian education. See Witters v. Wash. Dep't of Servs. for the Blind, 474 U.S. 481, 488 (1986) (upholding state aid program where recipients could equally expend funds on secular education). Here, however, the state is creating an incentive to provide its own university, which does not provide a sectarian education.
201. See Lynch v. Donnelly, 465 U.S. 668, 688 (1984) (O'Connor, J., concurring) ("Endorsement sends a message to nonadherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community.").
202. See Santa Fe, 120 S. Ct. at 2280 (discussing pressure toward conformity as strongest in matters of social convention, of which local community football games is one).
203. This stands in stark contrast to the football game in Santa Fe, where the choice to attend was only ostensibly voluntary. Id. Once social pressure coerced the students into the stands, the state then subjected them to a student-led prayer over the loudspeaker. Id. at 2271-72, 2280. In this sense, they constituted a captive audience. See id. at 2280. By distributing a scholarship according to private religious preference, the state relegates no student captive to religious indoctrination.
204. 500 U.S. 614 (1991).
205. See supra note 79 and accompanying text.
206. See supra notes 81-83 and accompanying text.
207. Edmonson, 500 U.S. at 622.
208. See, e.g., Boy Scouts of Am. v. Dale, 120 S. Ct. 2446, 2453-54 (2000) (holding that the Boy Scouts is a private club that can legally exclude homosexuals from membership if necessary to protect its right to expressive association).
209. 500 U.S. at 634 (O'Connor, J., dissenting).
210. Id. at 634-35 (quoting Blum v. Yaretsky, 457 U.S. 991, 1004 (1982)). The importance of coercion in Equal Protection cases dates back to Shelley v. Kraemer, 334 U.S. 1 (1948), where the Court refused to enforce racially restrictive covenants that operated to exclude African-Americans from certain parcels of land: "It is clear that but for the active intervention of state courts, supported by the full panoply of state power, petitioners would have been free to occupy the properties in question without restraint." Id. at 19. Private citizens cannot use "the full coercive power of government" to deny "rights of property available to other members of the community." Id. Shelley indicates that coercion is present when the state is the but-for cause of the alleged constitutional deprivation - there, the denial on the basis of race of property rights held by all members of the community. See id. When the public university agrees to distribute private scholarship funds, those concerns are not present. First, the private funds are not available to all members of the community. They belong to the donor, who may keep or distribute them according to her wishes. Second, the state is not an integral link in the potentially discriminatory process. In Shelley, the restrictive covenants were words on paper whose only power arose from their enforcement by the state. Id. With private scholarship funds, state intervention arises due to mere administrative convenience. There are no legal constraints on the donor to use the public university, and there are other means by which the donor may accomplish his objectives, for example, distributing the funds himself.
211. See supra notes 94-100 and accompanying text.
212. See Santa Fe Indep. Sch. Dist. v. Doe, 120 S. Ct. 2266, 2280 (2000).
213. Compare Blum, 457 U.S. at 1004 (Equal Protection), and Jackson v. Metro. Edison. Co., 419 U.S. 345, 357 (1974) (Equal Protection), with Agostini v. Felton, 521 U.S. 203, 234 (1997) (Establishment), Zobrest v. Catalina Foothills Sch. Dist., 509 U.S. 1, 8 (1993) (Establishment), Witters v. Wash. Dep't of Servs. for the Blind, 474 U.S. 481, 481 (1986) (Establishment), and Mueller v. Allen, 463 U.S. 388, 397 (1983) (Establishment).
214. See Zobrest, 509 U.S. at 10 (noting that neutral eligibility criteria can ensure that the presence of state aid in a religious school is a result of a "private decision"that cannot "be attributed to state decisionmaking"); Witters, 474 U.S. at 486-87 (comparing a generally available grant to blind student who spent it at a religious college to the state's paycheck to an employee who donated funds to a church; in both instances, the money benefits the religious causes "only as a result of the genuinely independent and private choices" of private actors); Mueller, 463 U.S. at 399 ("Where, as here, aid to parochial schools is available only as a result of decisions of individual parents no 'imprimatur of state approval' can be deemed to have been conferred on any particular religion, or on religion generally." (quoting Widmar v. Vincent, 454 U.S. 263, 274 (1981)).
215. See Edmonson, 500 U.S. at 637. The Court stated, "Approval by a [state entity] . . . where [the entity] has not put its own weight on the side of the proposed practice by ordering it, does not transmute a practice . . . into 'state action.' . . . Respondent's exercise of the choice allowed by state law where the initiative comes from it and from the State, does not make its action in doing so 'state action' for purposes of the Fourteenth Amendment." Id. (quoting Jackson, 419 U.S. at 357); see also Evans v. Newton, 382 U.S. 296, 306 (1966) (pointing out that when a statute "depart[s] from a policy of strict neutrality in matters of private discrimination," it "involve [s] the State in the private choice as to convert the infected private discrimination into state action subject to the Fourteenth Amendment").
216. See supra note 207 and accompanying text.
217. See discussion supra Part III.B.
218. See Shelley v. Kramer, 334 U.S. 1, 19 (1948).
219. The state cannot advance religion by providing incentives for students to study at its public university. See discussion supra Part III.B.
220. See discussion supra Part III.B (arguing that, were the university to ascertain the degree of a student's religious beliefs, there would be excessive entanglement in violation of Lemon and its progeny).
221. For an examination of the hostile treatment that courts are according certain state-made preferences, see discussion supra Part I.A.