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Taking Stock, Resuming Course

Taking Stock, Resuming CourseCourt’s endorsement of race has colleges affirming
admissions practices and revamping policiesBy Ronald RoachLast month’s U.S. Supreme Court decisions in the University of Michigan admissions cases brought forth both a collective sigh of relief and a celebratory spirit to thousands of college and university officials across the nation. After having confronted almost a decade of federal court litigation by opponents of race-conscious affirmative action, supporters began breathing a little easier knowing the use of race in higher education admissions survived legally, at least for the time being.
“It’s a green light for the use of race in higher education admissions,” says Beverly Ledbetter, the vice president and general counsel of Brown University in Providence, R.I. “The court has said that (race-conscious) affirmative action is an appropriate tool.”
Supporters of race-conscious policies found solace in the court’s decision in the University of Michigan undergraduate case ruling by virtue of the fact that only a handful of institutions are said to use a numerical points-based system similar to the one the court struck down. Instead, academic officials overwhelmingly reported that their schools rely on plans resembling what was upheld by the court in the University of Michigan law school.
“The Michigan undergraduate program is relatively unique and is not replicated by a significant number of schools,” according to Sheldon Steinbach, general counsel for the American Council on Education, a major association of U.S. universities.
Given that schools will have to jettison the purely mechanical, numerical points-based admissions systems, officials say a tougher test will rest with how to treat mixed programs that contain some form of points allocation for criteria, such as grades and test scores, yet leave out race or ethnicity in the initial calculations. The vulnerability of the mixed program surfaces when race and ethnicity eventually factor in as plusses for underrepresented minorities. 
Nevertheless, in the face of condemnations and threats by opponents of race-conscious affirmative action, academic officials have begun taking careful stock of their admissions policies. “The guidance given by the court makes the test a little narrower. There’s still some questions,” says Benjamin Rawlins, the general counsel of the Oregon University System.
Vowing to fight race-conscious affirmative action, opponents of race-conscious admissions have promised more litigation and campaigns to launch state-based voter initiatives to ban the use of race in academic admissions.
“It’s a painful decision. I think it sends the worst possible message,” says Dr. Shelby Steele, a research fellow at the Hoover Institution and an opponent of race-conscious affirmative action.
Steele says the failure of the court to abolish race-conscious affirmative action amounts to “colonial” treatment by guilt-ridden Whites of Blacks, Latinos and American Indians, who the establishment seemingly deems incapable of rising to the same set of standards as Whites and Asians.
“Whites and Asians get better and better at meeting those standards while Blacks and Latinos get worse because they’re not expected to meet them,” Steele says.   Clear Guidance?On Monday, June 23, the day of the Supreme Court’s affirmative action rulings, the mood at the annual national conference of the National Association of College and University Attorneys (NACUA) in Minneapolis turned from one of anticipation to one of elation and celebration, according to attendees.
“There was a feeling of relief and optimism that came over the NACUA members,” says Brown University’s Ledbetter.
As the body of private and university-employed lawyers on whom colleges and universities rely for legal advice, NACUA sponsored a special forum the next day on the court’s ruling so that members could begin studying the rulings’ contents. Rawlins, who moderated the forum, says it’s imperative for schools to begin immediate assessment of their admissions programs. In addition to moderating the special forum in Minneapolis, Rawlins of the Oregon system dashed off a memo to the presidents of his state’s public colleges, assuring them their admissions policies were sound.
“You have to read the two Michigan cases as one,” Rawlins says.
 For now, the rulings endorse and give greater strength to the rationale of diversity as a “compelling state interest,” a principle first outlined by Justice Lewis Powell in the landmark Bakke ruling in 1978, according to experts
For the past 25 years, Bakke has served as the legal foundation for the consideration of race at institutions as diverse as military academies, corporate boardrooms and higher education.
In the earlier ruling, a group of justices found unconstitutional a quota system that had excluded a White student from a California medical school. The court, however, allowed less rigid forms of affirmative action. Over time, Powell’s view on diversity as a compelling state interest came under withering legal and philosophical attacks by opponents of race-conscious affirmative action. In the Fifth Circuit Court of Appeals, federal judges overturned the diversity rationale in the 1996 Hopwood case, resulting in the ban of race-conscious affirmative action in Texas higher education.
Last month, the court found fault with Michigan’s point-based undergraduate screening system for applicants that automatically gave minorities a 20-point bonus out of a possible 150. By a 6 to 3 vote, the justices struck down the undergraduate admissions program, finding that it “violates the Equal Protection Clause of the Fourteenth Amendment.”
In contrast, the law school had used a less precise admissions formula but had in place a system where candidate applications underwent individual review by admissions staff. The plan did provide extra weight to Black, Latino and American Indian candidates. According to Justice Sandra Day O’Connor, the law school practices a “highly individualized, holistic review of each applicant’s file” in which race is a factor but not used in a “mechanical way.”
“In order to cultivate a set of leaders with legitimacy in the eyes of the citizenry, it is necessary that the path to leadership be visibly open to talented and qualified individuals of every race and ethnicity,” wrote Justice O’Connor in the law school opinion for the 5-4 majority.The Road AheadIn the coming weeks and months, it’s clear that schools will have to redesign their admissions programs so they won’t resemble the mechanistic formula like the Michigan undergraduate admissions process. The programs will have to provide individualized review of applications, according to experts.
Dr. Mary Sue Coleman, president of the University of Michigan, has promised to have a new admissions process by the fall that will begin handling an expected 25,000 applications for 5,000 freshmen slots. How a public flagship school, such as the University of Michigan, will design an admissions process that will provide individual review of its applications represents an unanswered question.
Another program under scrutiny is the medical school at the University of Illinois-Chicago (UIC), which has earned a national reputation for graduating significant numbers of Black and Latino physicians. At UIC’s medical school, one of the largest in the nation, roughly 4,500 students apply for 300 spots annually, according to officials. Twenty percent of the school’s 1,200 students are estimated to be minorities.
 With an admissions process that shares some similarities with that of the University of Michigan’s, students need 76 points for admission. Successful applicants, however, first must reach a cutoff of 60 points, which is determined by a formula based on grades, medical entrance exam scores, and the strength of a student’s pre-med program, according to Jorge Girotti, director of admissions.
 For minority students making the 60-point mark but not reaching 76, race can then play a role in the admissions process. Students from underrepresented minority groups automatically get 13 points, along with points granted to students who agree to practice in a rural area, according to officials.
“Everything we’ve been doing up to now we have to look at,” UIC spokesman Mark Rosati told the Chicago Sun-Times. “Certainly we are going to be looking at the admissions policies in medicine and nursing closely, reviewing the Supreme Court decision, and making any and all changes we need to get into compliance.”
At the Oregon University System, which admits roughly 9,000 freshmen to seven campuses each year, the system has long given applicants an individualized review of their applications. Rawlins says that while a few institutions are likely to have admissions programs like Michigan’s undergraduate program, it’s likely that some schools have plans that combine numerical systems with that of the individualized review. There also will be questions as to whether those with the purely numerical systems will be able to adopt a combination of individualized review with numerical points-based components, he notes.
“There’s a gray area for schools that have a hybrid of processes in their admissions programs,” says Angelo Ancheta, the legal director of the Harvard Civil Rights Project.
Earlier this month, Ancheta was writing and editing a memo on behalf of the Civil Rights Project that was to be posted on the Internet and distributed by mail to university officials around the nation. The memo is a legal analysis of the Michigan cases intended to help officials understand the meaning of the decisions.
Ancheta says that even if an admissions program is partly a numerical points system and does not allow race and ethnicity to be part of those numerical calculations such a hybrid program still might be challenged. “It could be a little bit risky,” he says.Reversing CourseAt the University of Texas in Austin, officials plan to revise admissions policies to include race as a factor after their lawyers finish reviewing the high court’s ruling. Texas was the first state in the nation to end race-conscious admissions and scholarships after an appellate court ruled unconstitutional the old admissions process at UT’s law school in the 1996 Hopwood case.
Officials hope to revamp the admissions policy in time to consider race among students wanting to start at UT in 2004, says Don Hale, vice president for public affairs.
 In recent years, the university had tried to make up for race by increasing its outreach to high schools in heavily Black and Latino areas. The state also passed the “Top Ten percent” law, which guarantees admissions to students graduating in the top 10 percent of their high school class. But minority enrollment at UT still lags behind the diversity of Texas’ population.
“Clearly, we’re pleased by the court ruling, but I don’t think anybody here is declaring victory,” Hale says. “We’ve never been satisfied with the percentage of Black students here.”
UT officials hope state lawmakers pass a measure capping the number of students who can be admitted under the Top Ten percent law so that a “holistic” review of applications can still be used for a “significant” number of students who aren’t in the top 10 percent, but still have outstanding grades and accomplishments, Hale says. This fall semester, 69 percent of UT’s freshman class is expected to be composed of “Top Ten percent” students, and could jump to 90 percent in the next few years, Hale says.
In the legislative session that ended in June, a lawmaker filibustered and killed a measure that would have placed a cap on the law. The next session isn’t until January 2005, but state law allows Gov. Rick Perry to call a special session on topics he deems worthy. As an example, Perry has convened a special session on the racially charged issue of redrawing congressional districts.
Hale calls a freshman class of 50 percent to 60 percent Top Ten percent students “much more workable” for UT.
At UT’s law school, officials also hope to start using race as an admissions factor when considering applicants for 2004, says associate dean Douglas Laycock.
In the wake of the Hopwood ruling, UT drew publicity when in the fall of 1997, its class of first-year students under race-blind admissions had only four Blacks, just under 1 percent. The Top Ten percent law helped only undergraduate admissions, so law school officials established pre-law institutes at the UT system’s undergraduate schools in cities such as San Antonio and El Paso, where Hispanic enrollment is high. In fact, officials from schools outside Texas, such as the University of California-Berkeley, have modeled programs after UT’s after affirmative action was banned there. However, UT officials haven’t been able to come up with a “Black equivalent” of such a program, Laycock says.
“We’re glad to be able to consider race again,” Laycock says. “These backdoor programs are either something so closely connected to race anyway, that they are a sham, or they bring us students who are not necessarily the best academically prepared.”
This fall semester, UT law officials expect a record 16.6 percent of its first-year class to be Hispanic. Meanwhile, 3.9 percent will be Black, Laycock says. In 1995, before the Hopwood ruling, 12.5 percent of its entering class was Hispanic and 7.4 percent were Black.
In other states where race-conscious affirmative action has been banned, there’s been discussion by community activists, legislators and public college officials to re-establish the use of race in public college and university admissions. Though current Florida Gov. Jeb Bush pushed through by executive order the One Florida plan, which eliminated race-conscious admissions but established a top 20 percent admissions plan, community leaders and a few elected officials have expressed interest in filing a lawsuit to challenge the Bush program.
In California, state legislators are investigating means by which officials can maneuver around the state law established by Proposition 209 to re-establish race-conscious admissions in California’s higher education system. The passage of Proposition 209 banned race-conscious admissions policies.
And in Georgia where a federal district court outlawed race-conscious admissions in public colleges and universities, University of Georgia officials are exploring legal options to determine whether race-conscious affirmative action can be resurrected. 
— Lydia Lum contributed to this report.

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