A federal appeals court last week barred the law school of the University of Texas from considering race in admitting students.
The ruling stunned college officials nationwide, because the appeals court declared that colleges could no longer use the Supreme Court’s 1978 decision in Regents of the University of California v. Bakke to justify using racial preferences to achieve a diverse student body.
The use of race in admissions, the appeals court said, “treats minorities as a group, rather than individuals.” The court went on to say that basing admissions decisions on the race of applicants “is no more rational on its own terms than would be choices based upon the physical size or blood type of applicants.”
The Texas ruling, by the U.S. Court of Appeals for the Fifth Circuit, is the latest in a recent string of court rulings and policy decisions that undermines the use of racial preferences. In May, the U.S. Court of Appeals for the Fourth Circuit invalidated a scholarship program for black students at the University of Maryland at College Park. In June, the Supreme Court’s decision in Adarand Constructors Inc. v. Pena limited the use of preferences based on race or ethnicity in federal programs. And the University of California Board of Regents voted in July to prohibit the use of racial and gender preferences in admissions and hiring.
Many educators said last week they were still trying to figure out the meaning of the latest ruling, and of the general backlash against affirmative action. But in Texas, the impact was immediate.
The day the decision was released, the University of Texas suspended for one week all pending admissions decisions for all programs in the 15-campus system. During that period, officials said they would try to decide whether to appeal the case to the U.S. Supreme Court, and how admissions policies will have to change while the appeals-court decision stands.
If the decision is upheld, Texas may not be the only university revamping its programs. “There is no doubt that there would have to be a profound sea change in the way public universities conduct admissions,” said Sheldon E. Steinbach, general counsel to the American Council on Education.
Others went even further, predicting that private colleges, too, would be unable to maintain admissions programs that give consideration to race and ethnicity.
Donald Jones, a professor of law at the University of Miami, said that without the protections of the Bakke decision, private and public colleges alike would be forced to end affirmative action.
Colleges, he said, would end up relying on measures, such as standardized-test scores, in which white students perform better, on average, than black and Hispanic students.
“You will have lily-white universities across the United States,” Mr. Jones said.
Robert M. Berdahl, president of the University of Texas at Austin, where the law school is based, predicted that the decision, if upheld, would lead to “the virtual resegregation of higher education.”
Although last week’s ruling was unanimous, one of the judges wrote a concurring opinion that was less sweeping in restricting the ability of colleges to use affirmative action in admissions.
Federal appeals-court rulings are law in the circuit in which they take place, and may be cited as precedent in other circuits. The Fifth Circuit includes Louisiana, Mississippi, and Texas.
The ruling came in a lawsuit brought by four white applicants to the Texas law school. They sued in 1992, after they had been denied admission even though they had achieved higher combinations of grade-point averages and Law School Admission Test scores than had minority applicants who were accepted. The university claimed that the plaintiffs were mediocre students who were using affirmative action as a scapegoat.
In a ruling in August 1994, a district-court judge upheld the university’s right to consider race and ethnicity as factors in admissions. However, he outlined limits on the use of affirmative action, saying, for example, that colleges could not have separate committees to evaluate minority and white applicants, and could not accept different minimum test scores or grade-point averages from minority and white students.
Last week’s ruling, however, said the Texas law school could not consider race in any way in its admissions process -- even as a “plus” that many competitive colleges say they assign to minority students.
Texas relied on two arguments to defend its use of affirmative action. First, it cited the Bakke ruling. But in the appeals court’s decision, Judge Jerry E. Smith cited a series of Supreme Court rulings since Bakke that have made it much more difficult to justify racial preferences. He also wrote that the premise that racial diversity leads to viewpoint diversity -- an argument made in the Bakke decision -- was false.
Such an argument, he wrote, is based on the assumption that “individuals possess characteristics by virtue of being a member of a certain racial group.”
Judge Smith added that affirmative action based on race overlooks the way non-racial or ethnic factors promote diversity. He noted, for instance, that one of the rejected applicants who sued Texas, Cheryl J. Hopwood, is a 32-year-old wife of a member of the Armed Forces and is raising a severely handicapped child. As such, the judge wrote, she would add diversity to the law school even though she is white.
The other main argument put forth by Texas in defense of affirmative action was the state’s past history of discriminating against black and Mexican-American students. But here the appeals court said the discrimination cited by the state was general, not specific to the law school. To justify affirmative action based on prior discrimination, the court said, the law school would have to show specific actions that it had taken against minority applicants -- something it failed to show.
The four rejected applicants who sued Texas were not talking to reporters last week. But Michael S. Greve, one of their legal advisers, said they were “very happy.”
Mr. Greve, executive director of the Center for Individual Rights, said that if the Texas decision stands, he would find it “hard to believe” that any college could continue to take race and ethnicity into account in admissions decisions. “Because of the decision’s clarity and its decisive and assertive tone, everyone has to immediately sit up and take notice. This makes it much easier for reverse-discrimination plaintiffs. The standards are now clear.”
Mr. Greve acknowledged that a short-term effect of following the court’s ruling was likely to be a decline in the percentage of black and Hispanic students at many colleges. But, he said, “I think one of the beneficial effects of this is that if this holding sticks, which I hope it will, it will at long last force us to focus on the source of the lamentable dearth of highly qualified minority applicants: the poor preparation they receive in the public schools.”
Carl Cohen, a professor of philosophy at the University of Michigan and author of Naked Racial Preference: The Case Against Affirmative Action (Madison Books), also predicted that the decision could help minority students. He said a common complaint of minority students at Michigan and elsewhere is that faculty members and white students assume that they are ill-suited for work at the university.
That assumption is untrue in many cases, Mr. Cohen said, but the existence of affirmative action encourages it. “While this decision may have an adverse impact on the number of minority students on campus, it may have a very positive impact on the nature of race relations on campus,” he said.
Mr. Steinbach, of the American Council on Education, said colleges should not overreact to the decision. “Remember, it ain’t over till it’s over. This case is the law of the land in three states. We do not have a final determination on this issue, and Bakke is still good law in 47 states.”
Even if colleges are forced to abandon the use of race in admissions, he said, other practices could be used to help minority students. For instance, he said, colleges could legally state that they want to favor students who have been economically disadvantaged -- a category that would include many minority applicants.
This time of year is the most intense period for admissions offices at selective colleges. As a result, many of the admissions officials contacted last week said they knew only as much about the Texas ruling as they had gleaned from newspaper stories and daily reports on the Internet from The Chronicle of Higher Education. Still, they were taken aback.
“It’s an incredibly stupid decision,” said John A. Blackburn, dean of admissions at the University of Virginia. “All of us are dazed, wondering, ‘What does it mean?’”
Several administrators at public institutions said they did not believe that the ruling would affect their institutions -- either because they admit virtually all students who apply, or because they do not consider race in admissions.
“We don’t use ethnicity as a criterion for admission to the university,” said Barbara Balz, director of enrollment services and registrar at Oregon State University. “We attempt to recruit students of color to apply for admission, but we don’t evaluate their applications” based on their race.
Officials at several private colleges said their institutions would be little affected by the Texas ruling, because their admissions processes are highly subjective.
Jean H. Fetter, a former admissions dean at Stanford University who is now an aide to its president, said the Texas law school had run into trouble because it categorically admitted black students with much lower grades and test scores than some of the whites it rejected. Such comparisons could not be made at Stanford, she said, because the university has no set criteria for admitting a student.
“It’s a very subjective process, and it gives the dean of admissions quite a lot of latitude,” she said.
While many admissions officials sought to distinguish their own policies from those at Texas, some acknowledged that the sweeping nature of the Fifth Circuit ruling would force them to reassess how they admit students.
“If a highly restrictive view of how race can be taken into account in college admissions were to become law of the land -- a view that would be more restrictive for race than for many other factors -- yes, I think it would significantly change the way college admissions is practiced,” said Christophe Guttentag, director of undergraduate admissions at Duke University.
Mr. Guttentag and other admissions officials passionately defended the need for colleges to craft a diverse class of students, and to do so by considering many things other than pure academic merit.
“People picture admissions as a process that is or should be driven only by quantifiable academic factors,” he said. “But that’s not the case. What we are doing in undergraduate admissions, among many other things, is creating a community in which students will learn not just about academics but about life.
“And people learn more from people who are somewhat different from them than they do from people who are exactly the same.”
Mr. Guttentag acknowledged the appeals court’s argument that diversity can be achieved by mixing students who possess many different attributes besides race. “But to a large extent in this country now,” he said, “race defines the experiences you have, growing up. I think it would be foolish for us to ignore that those experiences shape our students in very real ways.”
James J. Scannell, vice-president for enrollments, placement, alumni relations, and development at the University of Rochester, said he believed that colleges would fight for diversity as a legitimate goal. Much is at stake for them, he said, in the Texas ruling.
“The immediate response is, Wow! The big losers are going to be the historically disadvantaged, underrepresented students on our campuses,” he said. “Yes, that would affect them directly. But I would argue that everyone on our campuses would lose a great deal, also.”
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