Running for Cover
Fear and Paranoia Su rrounding Affirmative Action Lawsuits Unjustified, Experts Say
By Robin M. Bennefield
Two years ago, University of North Carolina System President Dr. Molly Broad, fresh from the California State System, requested a complete review of the use of race in the admissions policies of schools in the state system.
Then last spring, Dr. David Scott, chancellor of the University of Massachusetts-Amherst, announced that race would be de-emphasized in the campus admissions policy.
And just last month, the University of Virginia’s board of visitors stunned many in the higher education arena when it recommended an end to the use of race in the school’s admissions policy.
Are college administrators and governing boards erring on the side of caution or overreacting to the conservative legal and political climate suffocating diversity efforts at some public colleges and universities? It depends on whom you ask.
But the general consensus is that the wave of legal activity surrounding race-sensitive admissions policies has gotten everyone’s attention. Whether it means the end of affirmative action in higher education as we know it is yet to be determined, but increasingly campus administrators and governing boards want a front-row seat to the recruitment and admissions game.
“It’s the consequence of an unfortunate polemic,” Tom Ingram, president of the Association of Governing Boards of Colleges and Universities, says. “That [some colleges and universities] are reexamining race doesn’t mean that they will walk away from the spirit of affirmative action.
“What we have said is, ‘Let’s not overreact to the threat of litigation,'” Ingram says. “And we encourage boards not to be panicked by right-wing groups taking advantage of the conservative climate of the country at the moment.”
The current conservative climate drove the University of Virginia board to investigate the university’s use of race in admissions. A study earlier this year from the right-leaning Center for Equal Opportunity released data that showed that some of Virginia’s public universities — including UVA — favor Black applicants with lower standardized test scores over White applicants with higher scores.
Shortly after that report, the Center for Individual Rights, a conservative group that sued on behalf of plaintiffs in Hopwood, placed an advertisement in the Cavalier Daily to publicize its handbook on racial preferences for college and university trustees, which suggests that trustees can be held personally liable if they are aware of discriminatory practices at their institutions.
“UVA, like most good institutions, wants to comply with the law, and that’s what we are focused on doing,” says John Ackerly III, the university’s rector who formed the special committee to examine the school’s race policy.
Nothing to Fear but Fear Itself?
The problem is that by most accounts, the Center for Individual Rights’ claims are shaky at best. The 1978 Supreme Court ruling in University of California v. Bakke made the use of set-asides, also known as quotas, illegal but consideration of race in admissions legal across the states.
“Bakke, in spite of what the [5th U.S. Circuit Court of Appeals] or Hopwood says, is still the law of the land, which says that race can be used as one of myriad factors to pursue diversity in higher education,” says Ted Shaw, associate director-counsel of the NAACP Legal Defense Fund. “Institutions can still follow and ought to follow Bakke.”
As long as boards and administrators can look to Bakke as law, Shaw says, their fair use of race in admissions can act as a shield against suit.
Martin Michaelson, an attorney at the Hogan & Hartson law firm in Washington, D.C., has advised colleges and universities on affirmative action for years. He says trustees rarely are intimidated from doing what they believe is right.
“The threat of lawsuits has not been effective in the past,” Michaelson says.
But in recent years, the once-strong voice of the U.S. Supreme Court has been drowned out by the rumblings of the right and a declaration from the conservative-leaning 5th Circuit in New Orleans that Bakke is dead. Some in the higher education community are going further to sound its death knell by suggesting the removal of race from its admissions policies.
Beverly Ledbetter, vice president and general counsel at Brown University in Providence, R.I., says that the University of Virginia board’s concerns and others are not completely unfounded.
“The governing board’s role is to ensure the stability and progress of the institution, while looking out for academic standards, financial health and public reputation,” Ledbetter says. “The threat of lawsuits impact heavily on the latter two things. Lawsuits bring significant costs and can be very damaging in terms of reputation.”
Although public institutions are represented by the state Attorney General’s office, they may need to hire outside counsel to support their case, and if they lose, pay the legal and attorney fees of the other side.
John Payton, an attorney at the Washington, D.C., firm of Wilmer, Cutler & Pickering that is representing the University of Michigan, puts it this way: “If Blacks could have sued the school board members in 1955, they would have quit or desegregated.”
But schools like the University of Virginia are not poor, Payton points out. Their worry is not really over costs, but over politics.
Dr. M. Rick Turner, dean of African American affairs at UVA, believes the board’s concern for the university’s image and money are just a cover for its lack of commitment to diversity.
“We must do like Michigan has done and be brave enough to accept the challenge and say diversity is what we want,” Turner says. “We can’t back down from that. If it is costly then we will pay. If an institution is raising a billion dollars then what’s the problem?”
Shaw agrees saying that he has a problem with universities taking a similar tact.
“Universities get sued every day. If an institution believes that it is correct in the position that it is taking, then you don’t hear any concern for the costs,” Shaw says. “I think that is a weak excuse. If they think the cost of keeping the doors open to African American and Latino students is too expensive because they’ll have to defend that value in a lawsuit, then it’s not an important value to that institution.”
According to several attorneys representing universities, damages had never been awarded in a discrimination case against a university until Hopwood, where the federal judge presiding over the case awarded a nominal $1 to the plaintiffs.
The reason is that most discrimination cases ask that the institution change its behavior. The Center for Individual Rights, in its reverse-discrimination cases, has adopted the new tact of suing for damages — some say to scare schools into eliminating affirmative action.
But others suggest that reviewing one’s admissions policy is a good way to be sure an institution is following the letter of the law.
“It seems to me that if someone is using policies to achieve certain means that may be illegal, they’d be well advised to stop,” says Dick Robinson chief attorney for the University of North Carolina system, which found all 16 of its campuses in compliance with the current law under Bakke after its review in 1997.
Robinson notes that the use of affirmative action efforts for outreach and to pursue non-traditional students and publicizing programs to achieve that objective are all safe from legal challenge.
“Just don’t take any short cuts,” Robinson says.
Short cuts, according to Payton, are separate admissions procedures and quotas, illegal under Bakke, and exactly why the four White students who sued the University of Texas in the Hopwood case won.
But somehow the Hopwood decision has become a replacement for Bakke and lead to what some are calling a knee-jerk reaction to race in admissions on the part of some administrators and boards.
Reviews of admissions policies are “not an overreaction in a time where the answers aren’t evident. The law is dynamic and changing. The problem is that no one wants to be at the forefront of the change in a positive way,” Ledbetter says.
Turner believes that some of this is at work at UVA. He sees the board’s call to remove race from admissions considerations as a demonstration of political allegiance to Virginia’s Republican governor, Jim Gilmore.
“Many of the board members are entrenched in their stance, and the governor is entrenched. I think it is wrong and shows that they are uncommitted to diversity,” Turner says. “I also think there is some ignorance involved in this, an ignorance that is prevalent among many to the right.”
Who’s Counting and How?
Many assume colleges and universities are using a racial diversity-by-the-numbers approach to admissions and if public institutions want to avoid closer scrutiny from conservative groups like the Center for Individual Rights and the Center for Equal Opportunity, Ledbetter advises a broader strategy.
“What is only being considered are the numerical indicators and racial or ethnic identity. No other factors are considered,” Ledbetter says. “These indicators are seen as the appropriate standards by those who are challenging affirmative action efforts. But there needs to be a mix of factors considered to get a mix of students represented.”
Ledbetter also points out that Brown, a selective, private university has the luxury of an above-average student applicant pool that is also very diverse, which means that the university can achieve the goal of diversity without concern of admitting so-called unqualified students.
But publics face a different challenge in that they have a smaller applicant pool of highly qualified students to begin with and that group may also not be as diverse, which leads to the debate over scores and who is more qualified.
The College Board reports that only 4.8 and 3.7 percent of Black males and females, respectively, scored a 1,200 or above on the SAT— and many of those students, 40 and 42 percent, select private universities while 32 and 24 percent select publics.
The University of Virginia has done its part to attract these high-achieving Black students. This past fall, 10 percent of the entering class was African American and better than 25 percent of the campus population is made up of underrepresented students.
The school buys mailing lists of top-performing Black high school students from The College Board and A Better Chance. Even still, there is more than a 180-point difference in the scores of Black students and White freshman at UVA this fall, but only a 2 percent gap in the six-year graduation rates of those groups graduating in 1997. The four-year graduation rate for Black and White students that year was the same at 81 percent.
In fact, African American students at UVA have the highest six-year graduation rate of any public university at 90 percent.
“There will always be gaps in SAT scores and it is natural given the disparities throughout the educational system,” UVA’s Turner says. “It will only stop when we stop giving preference to Whites with privilege.”
Jerry Lucido, associate provost and director of admissions at the University of North Carolina-Chapel Hill, agrees that there is a big problem with perception of who’s getting in to the nation’s elite public institutions.
“Some think that there is a clear objective cut to get in and that minorities are getting an advantage,” Lucido says. “But there is a much deeper quality of applicant and there are facts in an applicant’s background that can suggest their ability to succeed or not succeed.”
For instance, Lucido notes that African American applicants who are involved in many extracurricular activities are usually very successful at UNC.
“Their rating in extracurriculars is more predictive than that among other groups of students. That’s something subjective but it is proven and that is what Chapel Hill begins to look for among African American applicants.”
The admissions review at the University of North Carolina reached a different conclusion than those at the University of Virginia and the University of Massachusetts.
The North Carolina schools held firm to their use of race in admissions, while Massachusetts and Virginia suggested a reduction or removal of its use. Students and faculty of color expressed similar feelings of betrayal at all three campuses when diversity policies were reviewed.
Without immediate threat of legal challenge, proponents of affirmative action at both campuses felt that administrators exhibited an irrational fear of media and attention-grabbing lawsuits and huge legal fees.
The impact was demoralizing for faculty and students of color with their credentials coming into question. Administrators in support of the use of race worried about the ability to recruit students of color with their institutions’ commitment to diversity so shaky.
Last March, many Massachusetts faculty and students were outraged when their chancellor announced a reduced consideration of race in admissions, calling the retreat cowardly. The university predicted that minority enrollment would plummet to 13 percent from 19 percent at the time of the policy change.
This fall, minority enrollment did drop — but to 16 percent. The campus community is still holding “teach-ins” on diversity and affirmative action to continue awareness.
Virginia President John Casteen stands by its race-sensitive admissions policy, despite the UVA board’s opposing view. With no official vote on the matter and pressure from the local NAACP, many on campus are hoping the board will change its mind.
In the University of North Carolina system, some feared a move away from affirmative action would signal a return to the days of segregation.
Jamie Merisotis, president of the Institute for Higher Education Policy, says there is more hope for affirmative action in admissions among higher education’s administrators post-Hopwood and pre-Michigan.
Last month, the 6th U.S. Circuit Court of Appeals granted minority students at the University of Michigan permission to defend the university’s use of affirmative action in reverse-discrimination lawsuits against the institution.
The president of the University of Georgia recently followed Michigan’s lead and made a strong statement of support for the continued use of race — but the elimination of gender —as a factor in its admissions policy, which has faced some legal challenges.
“While there are a few situations like UVA and UNC, there are a lot of institutions that have rallied behind the Michigan case and they are waiting to see what happens with that,” Merisotis says. “Higher education is playing a game of keeping cases from the Supreme Court and there is fear that when a case makes the Supreme Court it would be a challenge to overall diversity policies.”
But before a case even reaches the Supreme Court, the damage may already be done at some public universities. When asked if she would recommend the University of Virginia to a prospective student given the current climate, one third-year student said:
“If you’d asked me a month ago, I’d have said sure. But if the board comes down with this change in policy, then we will see a drop in enrollment like we saw at Berkeley. Minorities and women don’t want to be in a place where they are not wanted.”
© Copyright 2005 by DiverseEducation.com