Supreme Court rulings confuse colleges and may imperil scholarships based on race
Table: Defending Diversity: One Law Firm’s Advice
Opinion: Closing the Nagging Gap in Minority AchievementBy PETER SCHMIDT
Chicago
The mood seemed more skittish than celebratory as college administrators gathered at a hotel here this month to discuss the future of affirmative action on their campuses.
Many higher-education leaders had declared victory when the U.S. Supreme Court ruled in June that colleges had a compelling interest in using race-conscious admissions policies to promote educational diversity. But since then, it has become clear to the college lawyers reviewing the Supreme Court’s opinions that other tough legal battles lie ahead.
For starters, legal experts say that colleges continue to run a very real risk of being sued if their admissions policies stray from the court’s guidance and give too much weight to race, lack a well-articulated educational justification, or resemble quotas by focusing too much on maintaining minority enrollments at certain levels.
Institutions may also face much bigger legal threats. Among the college officials on hand here and at similar gatherings held around the nation since June, the chief fear was that the Supreme Court may have opened the door to new legal assaults on race-exclusive scholarship and financial-aid programs, by holding that colleges must treat students as individuals, rather than as members of particular racial groups.
‘No Definitive Statement’
While race-conscious admissions policies are found at only a third of colleges -- generally, the most selective -- race-exclusive scholarship and financial-aid programs are ubiquitous, and legal challenges to them could have a huge effect on colleges and minority enrollments.
“At this point, there is no definitive statement as to how far the Supreme Court’s rulings will extend beyond admissions,” notes Carol L.J. Hustoles, Western Michigan University’s general counsel and vice president for legal affairs. Her institution does not consider race in admissions, but it does award minority scholarships.
“It would be ironic if the court rulings would hold that diversity is compelling in admissions, but not in financial aid,” she says.
Despite being heralded as landmark statements on affirmative action, the rulings have raised more questions than they have answered. Along with puzzling over the future of minority financial-aid programs, higher-education officials have been asking:
- Can colleges continue to operate programs specifically aimed at reaching out to minority students in high schools or at helping minority college students succeed academically?
- Might the courts now take a dim view of separate student housing or student organizations for members of specific racial and ethnic groups?
- If the educational benefits of a diverse student body justify considering race in admissions, do the educational benefits associated with a diverse faculty, staff, and administration justify giving some minority members an edge in employment decisions?
“It is going to be a while before we know a lot of things that we need to know,” Martin Michaelson, a lawyer with the Washington-based firm Hogan & Hartson, told the crowd assembled here by the American Council on Education. He projected that it might take two to five years before the federal courts can provide colleges with additional guidance.
Enforcement Plans
The U.S. Department of Education’s Office for Civil Rights could provide clarification on some issues by stating how it will interpret the Supreme Court’s rulings, and how it plans to enforce federal laws governing educational institutions.
Susan M. Aspey, the department’s deputy press secretary, said last week that officials there “are reviewing all of our guidance in light of the court’s decisions.” But some veteran observers of the agency expect it to avoid weighing in on politically volatile questions related to affirmative action before the November 2004 presidential election.
For now, the American Council on Education, the College Board, and some state higher-education agencies have been advising colleges to proceed cautiously.
“A lot of the decisions that will be made are, ultimately, political decisions,” Sheldon E. Steinbach, the ACE’s vice president and general counsel, told the crowd of about 75 college administrators gathered here.
He and other lawyers have been advising colleges that they need to weigh their commitments to diversity against real and potential legal limits, and to decide whether certain policies that could be challenged in court are “acceptable risks” given their benefits.
“It is not about necessarily pleasing everyone. It is about finding a middle ground,” says Arthur L. Coleman, who served as deputy assistant secretary in the Education Department’s civil-rights office under President Clinton and is now a lawyer in the Washington office of Nixon Peabody.
Most of the Supreme Court’s justices also seemed to have struggled to find a middle ground in the debate, which helps explain why the court’s opinions are so complicated. Adding to the confusion, there were two different cases before the court, and they resulted in very different outcomes, even though both involved similar lawsuits filed against the University of Michigan at Ann Arbor by rejected white applicants.
In Grutter v. Bollinger, the court voted 5 to 4 to uphold the admissions policies used by Michigan’s law school. Writing for the majority, Justice Sandra Day O’Connor strongly endorsed Michigan’s argument that the educational benefits of diversity justify the use of race-conscious admissions to enroll “a critical mass” of minority students. She held that the law school’s admissions policy was an acceptable means of producing diversity because it considered race as just one of several factors in evaluating each individual.
In its Gratz v. Bollinger ruling, handed down the same day, the court voted 6 to 3 to strike down the race-conscious admissions policy at Michigan’s undergraduate College of Literature, Science, and the Arts, which had awarded each black, Hispanic, and American Indian applicant a 20-point bonus on its 150-point scale. Writing for the Gratz majority, Chief Justice William H. Rehnquist said that the system was too formulaic and mechanistic, and treated whole groups of applicants differently based solely on their race, in violation of the Constitution’s equal-protection clause and Title VI of the Civil Rights Act of 1964.
Deep Into Diversity
When it comes to admissions, administrators of selective colleges generally seem confident of the legality of their current policies. After all, the definition of an acceptable race-conscious admissions policy laid out in the Grutter and Gratz majority opinions echoed the definition articulated by Justice Lewis F. Powell Jr. in the Supreme Court’s last ruling on the matter, the Regents of the University of California v. Bakke decision of 1978.
Because there had been some disagreement in the federal courts as to the continued relevance of Justice Powell’s Bakke opinion -- and, in particular, his conclusion that racially diverse college enrollments serve a compelling government interest -- the Grutter decision’s affirmation of his diversity rationale has prompted many college administrators to declare that race-conscious admissions policies are now on much firmer legal ground.
The strength of that sentiment was apparent this month at a separate meeting on the Michigan cases convened by the Illinois State Board of Higher Education.
“The State of Illinois is in a good position now to promote diversity in higher education and to capitalize on the Supreme Court’s decision,” Daniel J. LaVista, the board’s executive director, told the crowd of college administrators from throughout the state gathered at the University of Illinois at Urbana-Champaign.
“Now is the time to redouble our efforts,” said the campus’s chancellor, Nancy E. Cantor, who was formerly provost at the University of Michigan at Ann Arbor. She urged those present to promote racial diversity in all of their academic programs, even if doing so would cost substantial sums of money, and to create “learning environments that are welcoming and nonthreatening.”
In Illinois and elsewhere, however, lawyers have been warning college administrators that the Supreme Court’s latest decisions allow race-conscious admissions policies only for the sake of promoting diversity for educational reasons. The court has given colleges substantial leeway in deciding which race-conscious admissions policies serve educational purposes, but it also has made clear that such policies are likely to be struck down if they stray beyond promoting educational goals.
At the Urbana-Champaign meeting, Mr. Coleman urged those present to not even use the term “affirmative action,” which typically has referred to efforts to remedy past racial discrimination, and, he said, would be “a red flag” for potential legal challenges if used in admissions policies.
“You are not in the position of being social-justice police,” Mr. Coleman warned. “We are not fundamentally talking about affirmative action when we talk about diversity in higher education. Let’s get that concept embedded in how we think about these issues.”
Angelo N. Ancheta, legal director of the Civil Rights Project, a research organization based at Harvard University, cautioned the college officials gathered in Chicago not to use the term “underrepresented minority” in drafting their admissions policies. Otherwise, he said, colleges will imply that they seek to produce minority enrollments that reflect the general population -- a much different goal from the Michigan law school’s aim of having a “critical mass” of minority students, or enough for them to feel comfortable, and free to speak their minds.
“At its core, minority underrepresentation is not a concept that jibes very well with ‘critical mass,’” Mr. Ancheta said.
Many college administrators and lawyers say there is a need for much more research on the educational benefits of diversity and the “critical mass” concept.
Jerome A. Lucido, vice provost for enrollment management at the University of North Carolina at Chapel Hill, asks: “What is the best way to define educationally what is a critical mass? Does it differ for different populations? At what point does that notion fade away due to the changing of society from people who can easily be categorized as a single race to those who can be categorized as multiple races?”
Dulling the Points
Only a few colleges besides Michigan have publicly acknowledged having admissions systems that give extra points to minority applicants, and it is those institutions that have responded to the Supreme Court’s rulings with the most urgency.
“Be wary of using a point system,” Mr. Ancheta told the college officials in Chicago. “If you advertise your point system, you are vulnerable to challenge.”
Michigan adopted a new undergraduate-admissions policy in August. Its new system does not use points and relies heavily on applicants’ responses to essay questions about their backgrounds to gauge how much they will contribute to diversity on the campus.
Ohio State University and the University of Massachusetts at Amherst dropped point-based undergraduate admissions policies this month, and, like Michigan, plan to rely partly on responses to essay questions to gauge how much applicants will contribute to diversity.
Mabel G. Freeman, Ohio State’s assistant vice president for undergraduate admissions, says administrators there “went back to the drawing board,” and ended up revising application forms, altering the admissions process, and making plans to hire new part-time employees to review individual applications.
Officials at UMass said that they were able to get by with minor technical changes in their admissions system, mainly because they had already revised it back in 1999 to put much less emphasis on race, in response to threats of litigation. Minority students generally account for about 15 to 17 percent of each entering freshman class, and “I don’t think we expect it to get out of this range,” says Bryan C. Harvey, the Amherst campus’s associate provost for planning and assessment. He cautioned, however, that the institution was entering “new territory,” and that its minority enrollments could change.
Peter Lange, provost of Duke University, says that one of his institution’s professional schools has changed its admissions policy in response to the Supreme Court’s decisions. He would not specify, however, which school had made the change.
For all the concern about their existing policies, few institutions are giving much thought to the most widely promoted alternatives to race-conscious admissions systems: Those that use income as a proxy for race, or “percent plans” that guarantee admission to the top students in each high school in a given state.
Rebecca R. Dixon, Northwestern University’s associate provost of university enrollment, says she has been discouraged from contemplating such policies because their effectiveness remains the subject of intense debate. “It is hard to know what would work,” she says.
Most colleges are in the beginning stages of responding to the Supreme Court’s rulings, partly because doing so can require extensive legal analyses -- not just of undergraduate admissions policies, but, in some cases, of the separate policies for dozens, even hundreds, of graduate programs or professional schools.
“A lot of preliminary discussions are still ongoing behind closed doors,” says Barmak Nassirian, a policy analyst for the American Association of Collegiate Registrars and Admissions Officers. As a rule, new admissions policies “are not unveiled before they are fully formed,” he notes. “Institutions need to develop them, test them, and figure out their likely impact on enrollments before they announce them.
So far, colleges’ efforts to review their policies have won tentative praise from the Center for Individual Rights, a Washington-based organization that helped represent the plaintiffs in the Michigan cases.
“Schools are at least talking as if they realize they need to make changes,” says Curt A. Levey, the center’s director of legal and public affairs. “Let’s give them a chance.”
Contemplating What’s Unsaid
The Supreme Court’s Grutter and Gratz rulings focused on admissions, and said little or nothing about the many other areas -- such as financial aid, recruiting, and employment -- where colleges often take race into account. Nevertheless, because lower courts are likely to apply the justices’ two new precedents to other areas of college operations, higher-education lawyers have no choice but to try to infer from the ruling how the broader legal picture has changed.
Many colleges were already under pressure to review the legality of race-exclusive scholarship, internship, fellowship, and academic-enrichment programs before the Michigan rulings came down. Since last year, two organizations that oppose affirmative action, the American Civil Rights Institute, based in Sacramento, Calif., and the Center for Equal Opportunity, based in Sterling, Va., have contacted dozens of colleges and threatened to file federal complaints if the institutions did not open the programs up to members of any race. About half of the colleges contacted by the groups have opened their programs, and the rest are being warned by the groups’ lawyers that the Grutter and Gratz decisions leave them even more legally vulnerable.
“The court said that, while race and ethnicity can be considered, there must be individual consideration,” says the Center for Equal Opportunity’s general counsel, Roger B. Clegg. “And any time you are told that your skin color is an absolute disqualification for participating in a program, there has not been individual consideration.”
Meanwhile, the NAACP Legal Defense and Educational Fund has been contacting colleges to urge them to retain their programs, and to offer them help in fighting off any legal challenges.
“All of the pressure, all of the heat, should not come from the other side,” says the defense fund’s associate director, Theodore M. Shaw.
Colleges are particularly concerned about protecting their race-exclusive scholarship and financial-aid programs, which often play a vital role in their efforts to recruit and enroll minority students.
The Supreme Court’s decisions made no direct reference to such programs, and the question of their legality has long been a source of confusion and debate. The federal government’s two main statements on the matter seemed in conflict: The U.S. Court of Appeals for the Fourth Circuit had struck down a scholarship program for black students at the University of Maryland at College Park in 1994, but guidelines issued by the Education Department that same year said that colleges could use race-exclusive scholarships to promote diversity or remedy past discrimination.
Some college administrators have hailed Justice O’Connor’s endorsement of diversity as providing added justification for minority scholarships. But many college lawyers express a more nuanced view, arguing that the Grutter and Gratz decisions have placed programs that consider race as one of several factors on more solid legal ground, while leaving programs that are restricted to members of particular minority groups more vulnerable than before.
“I don’t think we know yet how those are going to be viewed,” says Beth A. Harris, vice president and general counsel for the University of Chicago.
The Education Department has “no plans at this time” to revise its 1994 guidelines on minority scholarships, Ms. Aspey, the agency’s spokeswoman, said.
But, because the 1994 guidelines represent only the department’s interpretation of the law, and are not binding, complying with them may not shield colleges from litigation. So, until the law governing minority scholarship and aid programs becomes clearer, many colleges are taking the precautionary step of transferring the financing and control of such programs to their private foundations.
“If we use donated money as opposed to state money, I don’t think we are going to have any problems at all,” says Steven L. Adams, Illinois State University’s assistant vice president for enrollment management and academic services.
In general, college officials appear much more confident of the legality of outreach and recruiting efforts targeted at high-school students from specific racial and ethnic groups, mainly, they say, because it is hard to argue that those who do not benefit are somehow harmed.
Among the other legal questions that many college administrators would like to see answered is whether Justice O’Connor’s endorsement of the educational benefits of race-conscious admissions policies can be similarly used by colleges to justify race-conscious employment practices. “When you are talking to professors and deans, they see this as one issue,” observes Jon W. Fuller, who tracks legal issues as a senior fellow for the National Association of Independent Colleges and Universities.
Some college officials also note that the majority opinion in Grutter made repeated references to the need to ensure that various professions, and society’s leadership positions, are open to members of every race. While hesitant to base policies on that idea, they are at least wondering whether the Supreme Court may have opened the door for race-conscious policies that seek to ensure minority members access to various fields -- an entirely different rationale than promoting educational diversity or remedying past discrimination.
“That is absolutely where the debate is going,” contends Utah State University’s president, Kermit L. Hall.
Mr. Ancheta of Harvard’s Civil Rights Project says that many of the minority-rights advocates that he works with have been urging colleges to “err on the side of caution” in responding to the Michigan decisions, out of a fear that any additional court rulings against colleges could lead to new setbacks for affirmative action.
“You basically have a good case coming out of the Supreme Court, and you don’t want to mess with it,” Mr. Ancheta says.
DEFENDING DIVERSITY: ONE LAW FIRM’S ADVICE
One law firm with a large higher-education practice, Nixon Peabody, recommends that colleges take the following steps in response to the Supreme Court’s latest rulings on affirmative action in admissions:
- Inventory all policies related to race, ethnicity, and diversity, including those in the areas of admissions, financial aid, outreach, recruitment, and employment.
- Set up a strategic-planning team, with representatives of different disciplines, to evaluate such policies now and in the future.
- Be able to justify such policies by showing how they serve diversity-related educational goals.
- Consider race-neutral alternatives rigorously.
- Don’t consider race any more than necessary.
- Make sure that admissions processes look at individual applicants in a flexible and holistic manner.
SOURCE: Nixon Peabody
http://chronicle.com Section: Government & Politics Volume 50, Issue 9, Page A22