This week’s landmark Supreme Court decisions on affirmative action prompted state lawmakers in California and university officials in Washington, Texas and Georgia to start exploring the possibility of changing voter-mandated or court-ordered bans on using race as a factor in their school admissions policies.
Asserting that California’s 1996 initiative banning affirmative action as it applies to university admissions is unconstitutional, some Hispanic lawmakers in the state Assembly said Tuesday that they are discussing whether to create a ballot measure to reintroduce the practice of taking race into account in college admissions.
Expressing similar sentiments about Washington’s 1998 initiative banning race preference considerations in school admissions and other government programs, the dean of the University of Washington Law School is calling on state officials to re-examine the law.
Door-opening rulings
Officials at the University of Texas and the University of Georgia, whose appellate court-mandated bans on affirmative action were struck down by the Supreme Court decisions, say they will direct school lawyers to examine whether the rulings would allow them to reintroduce race into their admissions policies.
“This decision opens the door to taking race as one of many factors into account as one tries to build a diverse student body,” said Del Dunn, vice president for instruction at the University of Georgia. The school stopped using race in admissions after a federal appeals court struck down the program in August 2001.
“We will be looking to our legal advisers to tell us how [using race] can be done,” he added. “The university will be making a decision as to where we go next.”
In one ruling that supports the use of race as a tool to help schools diversify their campuses and another that declares as unconstitutional the awarding of points to achieve that, the decisions did little to end the debate on whether an applicant’s ethnic background is an appropriate factor in determining admissions.
With few parameters set on the role of race, Monday’s rulings on the University of Michigan’s admissions programs are open to widely varying interpretations by affirmative action’s opponents and supporters.
More court battles ahead
Both sides are declaring victory. About the only point the two sides agree on is that the court battles probably will continue for years.
“The likelihood of more litigation is the only thing we both can agree on,” said Edward Blum, senior fellow at the Center for Equal Opportunity, a think tank based in Sterling, Va., that opposes race-based admission programs.
The organization, in light of the Supreme Court decisions, will step up efforts to force schools, including St. Louis University and Virginia Tech, to ban scholarships designated solely for minority students, he said.
“Race-exclusive programs–whether in admissions, financial aid or academic enrichment–are very difficult to define in court,” Blum added.
Twenty-five years after the University of California vs. Bakke decision struck down quotas yet supported the use of race-conscious admissions programs, the Supreme Court issued a similarly ambiguous ruling.
On Monday, the high court ruled that the University of Michigan’s undergraduate admissions program is unconstitutional because it awards 20 points to underrepresented minorities–blacks, Hispanics and Native Americans. At the same time, justices ruled that the law school’s admission policy–using race as one of numerous factors–was acceptable.
“In order to cultivate a set of leaders with legitimacy in the eyes of the citizenry,” wrote Justice Sandra Day O’Connor, “it is necessary that the path to leadership be visibly open to talented and qualified individuals of every race and ethnicity.”
Opponents of affirmative action are pouncing on suggestions by justices that schools should look to the day, perhaps 25 years hence, when affirmative action no longer will be necessary and that they should work toward establishing “race-neutral” policies.
They said they will be looking to sue schools that fail to meet that criteria as well as those that keep using the number system.
“We will find schools not making good-faith efforts to apply the new standard and litigate against them,” said Curt Levey, an attorney for the Center for Individual Rights, which represented the three plaintiffs in the University of Michigan case.
“We will also look for schools falling back on the old ways and schools not moving toward race-neutral [direction],” he added.
Some higher education officials disagree with the opponents’ interpretation.
“I don’t see any such mandate [for race-neutral policies],” said Sheldon Steinbach, general counsel for the American Council on Education. “Schools can look at that, but there is no mandate.”
In light of affirmative action bans, universities in California, Washington, Texas and Georgia have tried to diversify their campuses by looking more at applicants from poor families and those who have overcome hardships in their lives.
O’Connor rapped percent plans
Moreover, The University of California introduced a so-called 4 percent plan, offering automatic admission to high school students across the state who graduate in the top 4 percent of their classes. The University of Texas has a similar program for high school students who graduate in the top 10 percent of their classes.
O’Connor criticized such percent programs, writing that they may prevent a university from “conducting the individualized assessments necessary to assemble a student body that is not just racially diverse but diverse along all the qualities valued by a university.”
At the University of Texas, enrollment of underrepresented minority undergraduates under the new program has exceeded the numbers before the affirmative action ban, but minority enrollment in graduate programs lags. In the University of California system, minority enrollment is higher under the new program. But enrollment of underrepresented minorities at the elite campuses of Berkeley and UCLA is still below the time when race could be considered as a factor in admissions.
“We think, given the Supreme Court decision, that Proposition 209 [the anti-affirmative action law] is unconstitutional,” said California Assemblyman Fabian Nunez, a Democrat.
If a lawsuit is not filed challenging the constitutionality of the ban on race-based admissions, Nunez said members of the Hispanic caucus may introduce legislation that would put the issue before voters.
Ward Connerly, the University of California regent who sponsored the initiative that ended racial and gender preference programs, said he believes voters still are overwhelmingly opposed to affirmative action.
“I am certain that this decision emboldens some preference advocates that 209 can be overturned, but I am very, very certain that voters have not changed their mind on racial preferences and [we] will fight tenaciously on any disturbance of 209,” Connerly said.
