From stereotypes to solid ground: reframing the equal protection intermediate scrutiny standard and its application to gender-based college admissions policies.

• Author: Sacher, Lindsey E.

INTRODUCTION

In response to an increasingly female +student population on campuses across the country, many undergraduate admissions committees at both public and private institutions now give preference to male applicants. (1) Despite the apparent conflict between such policies and the Constitution's guarantee of equal protection, (2) few have generated full-blown legal challenges. (3) Aside from the difficulties associated with proving gender-based discrimination, perhaps one reason for the absence of equal-protection claims is the somewhat murky state of the law on gender-based discrimination under the Equal Protection Clause. While it is generally accepted that gender-based classifications must be evaluated under intermediate scrutiny, the Supreme Court's precedent provides lower courts with little guidance in applying that standard. (4)

Part of the reason for this confusion lies in the dominant role the concept of "stereotype" plays in the Court's intermediate scrutiny analysis. As this Comment illustrates, the Court has articulated its intermediate scrutiny standard in a way that makes "stereotype," a concept that remains ill-defined in the Court's jurisprudence, the deciding factor in its analysis. (5) While the Court has succeeded in articulating a relatively manageable intermediate scrutiny test in the First Amendment context for commercial speech, (6) its focus on stereotype has impeded its ability to do the same in the context of equal protection. This leaves lower courts and litigants seeking to defend or challenge gender-based classifications with little guidance on how to address questions that often prove critical in the equal-protection intermediate scrutiny analysis.

This Comment demonstrates that the Supreme Court's equal-protection jurisprudence is in fact less muddled than it initially appears. Rather, the Court's equal-protection intermediate scrutiny decisions reflect a reasoned application of the very same principles the Court articulates in the First Amendment intermediate scrutiny context, where the judicial discourse has not been dominated by the unmanageable concept of gender group "stereotypes." Thus, reframing the equal-protection intermediate scrutiny analysis in a way that corresponds to its First Amendment counterpart would be entirely consistent with the Court's prior precedent. Moreover, an understanding of the parallels between the two analyses explains away some of the perceived inconsistencies in the Court's equal-protection jurisprudence.

Part I briefly discusses the evolution and operation of gender-based admissions policies in higher education. Part II illustrates the development of the Court's equal protection jurisprudence, including the "anti-stereotyping principle" that dominates the Court's intermediate scrutiny analysis, and the problems associated with such reliance on "stereotypes" in judicial decision making. Part III demonstrates how the Court's focus on stereotypes has prevented it from fully articulating the analysis it has employed in cases addressing gender discrimination, and why the Court often seems to contradict itself from one case to the next. Parts IV illustrates the parallels between the Court's First Amendment and equal-protection intermediate scrutiny analyses, and demonstrate how viewing equal-protection intermediate scrutiny through the lens of First Amendment intermediate scrutiny explains many of the points of confusion and perceived inconsistencies in the Court's equal protection jurisprudence. Part V discusses how courts and litigants addressing a challenge to a gender-based admissions policies can use the Central Hudson factors to frame their arguments and conduct their analysis in a way that both clarifies the law and ensures that the constitutional guarantee of equal protection does not play second fiddle to changing societal perceptions.

1. GENDER-BASED ADMISSIONS POLICIES IN HIGHER EDUCATION

   Over the past four decades, women's enrollment in higher education has increased at rapid-fire rates. In 1980, approximately 50% of college students were female. (7) That percentage rose to 57% by 2006, and is expected to continue rising past 60%. (8) This increase reflects social trends that have been building for some time. According to observers of the educational system: young women are outperforming their male counterparts in terms of academic achievement. (9) At first glance, this increase in women's academic achievement and resulting increase in female admissions rates would be cause for celebration. But many university administrators fear that an increasingly high percentage of female students will negatively impact the ability of a university to attract applicants, which in turn

   will negatively affect a university's prestige. (10) The rationale for this belief is two-fold. On one hand, university admissions directors fear that males who perceive schools with a predominantly female population as "girls' schools," will be deterred from applying. (11) Conversely, school administrators fear that female applicants will be deterred by the lack of opportunities to interact with members of the opposite sex. (12)

   Additionally, observers believe that the problems associated with an increasingly "female" student body go beyond a decline in prestige and university ranking. As editorialist Richard Whitmire observed when interviewing students at James Madison University--a school with 61% female population--gender imbalance can facilitate what has been described as a "hookup culture" on campus. (13) College students report that in an environment where males are in the minority, women compete to attract male attention, while males take advantage of their "in demand" status, and in some cases even become sexual predators. (14) Thus, many university admissions officers across the country must decide between continuing to admit only the most qualified applicants, and risk the dangers associated with an unbalanced student body, or taking affirmative steps to ensure that an equal number of males and females are admitted.

   At University of North Carolina's Chapel Hill campus, for instance, trustees became alarmed upon learning that the school's incoming freshman class was comprised of 58% women, and suggested that the university create an "affirmative action" policy for male applicants. (15) The Board of Trustees at the University of Richmond instructed the admissions office to keep the male-female ratio at or below 45/55, according to a senior associate director of admissions at that school. (16) The University of Georgia went one step further, implementing an affirmative action policy that awarded additional points to male applicants. (17) Regardless of the specific methods utilized by schools instituting these policies, the results have become clear: universities are denying admission to female applicants in favor of less qualified males. (18)

   In 2009, the U.S. Commission on Civil Rights launched an investigation of 19 public and private institutions of higher education across the country. (19) The investigation aimed to determine the extent to which the named colleges and universities preferred male applicants in their admissions processes. (20) As the Commission can only make referrals and recommendations based on its findings, no legal consequences will flow directly from the Commission's investigation. (21) Nevertheless, a very real possibility exists that public universities found to discriminate on the basis of gender in their admissions policies will face potential lawsuits under the Equal Protection Clause. (22)

2. INTERMEDIATE SCRUTINY AND THE ANTISTEREOTYPING PRINCIPLE

   In cases brought under the Fourteenth Amendment's Equal Protection Clause, the Supreme Court applies different levels of judicial scrutiny depending on the nature of the classification at issue. (23) For a number of years, the Court only applied two levels of scrutiny: strict scrutiny and rational basis review. Under strict scrutiny, which the Court traditionally applied to classifications based on race, the classification must be "narrowly tailored" to serve a "compelling governmental interest." (24) The Court applies rational-basis review to all other classifications, requiring only a rational relationship between the classification and a legitimate government interest. (25)

   Prior to 1971, the Supreme Court had never struck down instances of discrimination on the basis of gender. (26) As the movement for women's rights gained speed, however, the Court began to recognize gender as a protected class. For several years, the Court equivocated over the proper level of scrutiny to apply in gender-discrimination cases. In Reed v. Reedy the Court's first decision striking down a gender-based classification, the Court applied rational-basis review to strike down a state statute granting preference to males as estate executors. (28) Several years later, the Court took the opposite approach in Frontiero v. Richardson, (29) striking down a gender-based policy under strict scrutiny. (30)

   Finally, in Craig v. Boren, (31) the Court announced a new, intermediate scrutiny standard. (32) The Court reasoned that intermediate scrutiny is more appropriate than strict scrutiny for gender-based classifications because differences between men and women may in some circumstances justify different treatment. (33) Unlike strict scrutiny, which recognizes that there are almost never "inherent differences" between different races to justify differential treatment, (34) the more lenient intermediate scrutiny standard leaves room for states to classify individuals based on gender when legitimate differences between the genders make it necessary to do so. (35) Intended to serve as a middle ground between strict scrutiny and rational basis, intermediate scrutiny requires that government demonstrate that a gender classification serves important government interests, and that the classification is...