LGBT Self-Identification: New Affirmative Action Category for Colleges?

When Sandra Day O'Connor suggested an expiration date for the use of affirmative action in university admissions in 2003, her hope was that affirmative action would no longer be necessary in the future.

"We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today," the now-retired Justice O'Connor wrote in Grutter v. Bollinger.

But as two new university affirmative action cases make their way toward Supreme Court appeals, is another protected group emerging?

Elmhurst College, a private liberal arts school in Illinois, has added a sexual orientation self-identification category to its applications for 2012 admissions. The new question asked, “Would you consider yourself to be a member of the LGBT (lesbian, gay, bisexual, transgendered) community?” reports the Chicago Sun-Times.

Sexual orientation self-identification, like race, ethnicity, and religion, is optional, but self-identifying could benefit an applicant. Elmhurst College officials have indicated that the school is trying to increase diversity, and applicants with LGBT self-identification may be eligible for more scholarship money.

How does the addition of a self-identification category on the Elmhurst College application compare to the top college affirmative action cases in the circuit courts? In those two cases, Texas plaintiffs and the Michigan voters are trying to eliminate admissions considerations based on self-identification categories.

In Fisher v. University of Texas, two students are arguing that a University of Texas at Austin race-conscious admissions policy is unnecessary because Texas law provides a race-neutral requirement that graduates in the top 10 percent of their Texas high school receive automatic admission to any public university in the state; that policy has resulted in a diverse student population that exceeds the Grutter standards, according to The Washington Post.

The other case, Coalition to Defend Affirmative Act BAMN v. Regents of University of Michigan, is a challenge to a 2006 Michigan constitutional amendment banning affirmative action in college admissions.

We question whether other schools will copy the Elmhurst College application and create additional categories for self-identification as we move toward Justice O’Connor’s loose 2028 deadline. What do you think? Should colleges ask students to self-identify as LGBT on admissions applications?

Related Resources:

• Grutter v. Bollinger (FindLaw’s CaseLaw)
• 5th Cir Won’t Review UT Affirmative Action College Admissions
  (FindLaw’s Fifth Circuit blog)
• Justice Ginsburg Rights the Past at Ninth Circuit Judicial Conference (FindLaw’s Supreme Court blog)
• The Top 5: Our Picks for the Top 2010 Supreme Court Cases (FindLaw’s Supreme Court blog)
• Elmhurst College Application (Elmhurst College)