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Truth and Consequences

Truth and ConsequencesIn the Michigan aftermath, the real fight begins as local institutions work to apply the Supreme Court ruling to meet their campuses’ individual needs and/or restrictionsBy Kendra HamiltonMonths prior to the U.S. Supreme Court decision in the University of Michigan affirmative action cases, anti-affirmative action forces had begun contesting scholarship programs, “transitional” programs, and various “early identification” research, mentoring and tutorial programs aimed at minorities. Despite race-conscious admissions being upheld in the Michigan law school decision, the assault on race-conscious programs has continued unabated, portending anything but a long struggle ahead for the inclusion of underrepresented minorities in the nation’s most competitive four-year colleges and universities.
The Center for Equal Opportunity (CEO), based in Sterling, Va., which bills itself as “the only think tank devoted exclusively to the promotion of color-blind equal opportunity and racial harmony,” has emerged as the pre-eminent combatant against race-conscious outreach and admissions policies in the post-Michigan era.
“We’ve sent out letters to a substantial list of colleges and universities challenging them on the programs we consider to be in flagrant violation of the Supreme Court’s decisions,” says Linda Chavez, president of the CEO and former director of the U.S. Civil Rights Commission. Indeed, the number, according to CEO general counsel Roger Clegg is up to around 35.
“We maintain that nothing in those decisions suggests that the Constitution permits segregated programs, programs that exclude people on the basis of race,” Chavez adds.
Meanwhile, Rice University president Dr. Malcolm Gillis stirred outrage — and prompted a complaint to the U.S. Department of Education’s Office for Civil Rights by the CEO — after he told the Houston Chronicle on Aug. 19 “to the extent the (University of Michigan) decision allows us to go back to considering race as one factor in admissions, we will be doing exactly that.”
While the CEO has been accused of jumping the gun — Rice general counsel Richard Zansitis responded that he believed it was “premature for the center to be criticizing us for something we haven’t done yet” — its action signals the seriousness with which conservative activist groups like the CEO, Ward Connerly’s Sacramento-based American Civil Rights Institute and the D.C.-based Center for Individual Rights regard these matters in this post-Michigan environment.
Yes, the U.S. Supreme Court has spoken — though hardly with a unified voice, observers on both sides of the debate note. Yes, the majority opinion upheld Justice Lewis Powell’s doctrine, that diversity was a “compelling” state interest for institutions of higher education. Yes, that decision may even, as some in Texas are arguing, have invalidated the 1996 Hopwood decision, which denied the Powell doctrine in outlawing all forms of race preference within the 5th Circuit’s purview.
But, cautions Beverly Ledbetter, vice president and general counsel for Brown University, “Many people (who) are seeing Grutter as a win for affirmative action … have not paid as much attention to the terms and conditions under which one may sustain a program.”
The most important of those terms and conditions, Ledbetter explains, is the “narrowly tailoring” requirement. That is to say, institutions must have explored, though not necessarily exhausted, race-neutral alternatives in crafting their programs; when race is considered, it must be done as part of a “holistic,” individualized review of the applicant pool; the programs must achieve the desired level of diversity while doing the least amount of harm possible to the non-targeted population; and they must be limited in time.
Ledbetter sums matters up succinctly: “Both parties won, and both had sobering moments” when the high court ruled in the Grutter and Gratz cases. Every institution must now make a critical, individually tailored examination of their programs, she explains.The Phase Out
The Center for Equal Opportunity’s letters, the first of which went out to specific schools three months before the high court ruled on the University of Michigan’s law school and undergraduate admissions policies — landed with a mighty splash in the quiet backwater that these relatively low-profile minority outreach programs inhabit. And the ripples are still being felt.
After initially protesting that their programs were in compliance with the law, both Princeton and the Massachusetts Institute of Technology either phased programs out or opened them up to all students (see Black Issues, March 13). Iowa State University and the University of Delaware quickly followed suit, as did the University of Virginia, though first specifying the action came not as a result of the CEO’s letter but in response to an internal review.
At Virginia Polytechnic Institute and State University, the board of visitors, acting with the blessing of a Republican state attorney general, passed a resolution ending consideration of race and gender in admissions, hiring and financial aid. In April, after protests from faculty, students, alumni and the Democratic Virginia governor, the board rescinded the resolution, announcing instead that the university was forming a committee to study its programs and create race-neutral alternatives where needed (see Black Issues, April 10). The CEO responded by filing a complaint with the U.S. Department of Education’s Office for Civil Rights.
Published reports say upward of a dozen schools have been cast into similar turmoil over their admissions and outreach policies. Some have made program adjustments; other institutions have been defiant. The University of Missouri-Columbia and St. Louis University, for example, told the Associated Press that their programs are “consistent with current law” (see Black Issues, March 13).
“The great danger as I see it for institutions will be the impulse to look at other schools — say, looking to Princeton or MIT — for cues on what you should be doing on your campus. Schools cannot assume their programs are inadequate nor can they assume they’re adequate because other schools have or have not phased their programs out,” Ledbetter says. And the costs — both of performing the program review and adding staff to ensure individualized applicant review — are likely to be substantial.
The CEO’s Chavez agrees that institutions are facing a serious challenge. “We say beware of any Supreme Court decision that uses words like ‘holistic’ or ‘penumbra’ or any of these pseudo-scientific terms. Our view is that undergraduate schools are going to have a very tough time. The standard (set by the high court) is one that’s very tough to meet.”
Tough or not, college officials claim they welcome the task — and they’re grateful for what guidance the high court did offer. “The Supreme Court has actually reaffirmed — at least for Virginia Tech — the direction we should be pursuing,” says Dr. Benjamin Dixon, vice president of multicultural affairs.
“The court has clearly said there is a benefit that accrues directly from having a population that’s diverse in terms of race, ethnicity, gender, disability,” Dixon adds, and that’s been helpful to Tech officials in their own internal review. Indeed, thus far, he says, “no more than a half dozen” or so of the 60 programs the CEO alleged to be discriminatory have been found to have problem areas.
The review, of course, is ongoing, he says, and “we continue to respond to the attorney general’s office and to the Office for Civil Rights.” But Dixon adds, “I’m coming around to the notion that, whatever the public view of the problem is, however it develops, we’re not going to solve anything as a society simply by looking to the courts.”
Dixon believes that higher education has to take the lead in sponsoring a broad-based public conversation on “best practices” in diversity.
“We in higher education know intuitively that some practices are more effective than others. And we know some (race-neutral) initiatives offered around the country have not been proven to be as effective as what we’ve been doing in the past.”
Thus, universities need to start doing what they do best, Dixon says. “Let’s sponsor research on the concept of race neutral” — that is to say, double-blind studies directly comparing race-neutral and race-affirmative alternatives — “because, if you don’t, you’re buying the notion that affirmative action done in a focused, targeted way is automatically wrong from a legal point of view and race neutral is automatically right. And these are things that have not been proven.”A Moot Point
There are many institutions for which such questions are moot. The high court’s decisions will have little or no impact, for example, in Georgia and California — to name two states.
“Our context is that we lost a suit in August of 2001 that forbid us to take race into account in any way. That was very costly for us — to be involved in a series of suits and a consent decree,” says Dr. Del Dunn, vice president for instruction at the University of Georgia. “So we’re very aware, with the various (anti-affirmative action) groups reacting to the Michigan decisions, that we’re going to continue to be under a microscope.”
Georgia’s numbers are still down, but they appear to be rebounding from the loss of affirmative action as a tool in the application process. African American students were about 6 percent of the student body in 2000; last year, they crept back to 4.8 percent, and this year they may be above 5 percent. Even more importantly, the retention rate among African Americans from freshman to sophomore year is 97 percent, Dunn comments, noting that the retention rate among all students is 93 percent.
That’s good news, to be sure, for it looks as if Georgia will be operating in a race-neutral environment for the foreseeable future.
As will the California university systems. Proposition “209 puts a particular lens or sieve on any program that we have. The Michigan decision doesn’t remove that,” says Richard Black, assistant chancellor for admissions and enrollment at the University of California-Berkeley.
Following 209, California greatly expanded its outreach programs.
“However, along with that expansion came the requirement that the programs had to be race neutral,” Black notes. “So there was good news for us in that we were serving more students, but the growth in underrepresented students was more modest, and the Michigan decision does not change that.”
Nor does Black see much hope that the court’s limited endorsement of diversity will encourage a renaissance in race-conscious outreach — at least not in California.
“The current budget climate in California is bleak, and outreach programs have been curtailed. For example, we have had programs in middle schools since 1998, and we’re having to curtail those programs because of the budget reductions.
“Now we have some other programs that are privately funded; we have federal programs. And they are not affected by the current state cutbacks, but budget cutbacks are causing us to reduce programs rather than the more liberal atmosphere in the wake of the Michigan decision facilitating an expansion.”
So, while, as Dunn notes, “the case does provide more clarity. It definitively establishes a legal basis for ‘limited consideration of race,’ and we no longer have to prove the advantage to diversity within the classroom.” It also appears that the race-neutral concept is here to stay, especially in view of the fact that the high court has issued what Dixon called a “sunset” on affirmative action.
Given what she calls the “confused” nature of the court’s ruling, Chavez says, “I think there will continue to be challenges, and I’m hoping (affirmative action) won’t last another 25 years.”
But Ledbetter disagrees. “I think it will hold for a significant period of time and, during that time, we’ll see decisions that will further clarify what is and is not possible. I foresee lots of little battles about whether people have acted properly under the law.”

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