Michigan: Who Really Won?

Colleges’ cautious reaction to the Supreme Court’s affirmative-action decisions may have snatched defeat from the jaws of victory

Table: Showing how minority enrollment has changed since the University of Michigan affirmative-action cases

Issues in depth: A collection of court documents, commentary, and news articles from The Chronicle about the Michigan affirmative-action cases

Forum: Read the transcript of an online discussion about whether college presidents, who appeared to win Supreme Court support for affirmative action in 2003, have since responded so defensively that they have turned victory into defeat.

Article: Affirmative Action, Relatively SpeakingBy JEFFREY SELINGO

When the U.S. Supreme Court handed down its landmark decision in 2003 backing the use of race in college admissions, the University of Texas at Austin and the University of Georgia took particular interest in the mechanics of the ruling.

At the time, both public universities were operating under federal-court orders prohibiting them from considering a student’s race in making admissions offers. With those decisions supplanted by the Supreme Court ruling, the institutions were free to return to race-conscious policies.

At Texas, the university president, Larry R. Faulkner, called a news conference within hours of the Supreme Court decision to announce that the institution would “fairly quickly” move to again consider race in admissions. The system it eventually put in place will be used for this fall’s incoming class, the first since 1996 to be admitted using affirmative action.

But at Georgia, the decision about whether to return to using race was more deliberate. Two campus committees are still studying the issue and are likely to make recommendations to the university’s president, Michael F. Adams, this spring. The earliest any changes can be put in place is for the freshmen class arriving in the fall of 2006.

What happened at Georgia and Texas is emblematic of the widely divergent reactions that higher education has had to the 2003 rulings in two cases involving the University of Michigan at Ann Arbor.

While college presidents were largely united in their public support of affirmative action in the months leading up to the oral arguments in the cases, their response to the decisions over the past year and a half has been much more guarded and, at times, defensive. The muted reaction is, in part, a result of the continuing legal efforts by a coalition of advocacy groups to eliminate race-based programs at colleges and of last November’s election, which swept a larger, and more conservative, Republican majority into Congress.

Nowhere has this cautious stance been more apparent than at the dozens of institutions, including Carnegie Mellon, Harvard, and Yale Universities, that have quietly opened a wide range of what were once exclusively minority scholarships and programs to students of any race. But it has also prevailed in admissions policies crafted in the wake of the Michigan decisions that have lessened the weight given to race or excluded the consideration of it altogether.

A few college leaders wonder just why it is that so many institutions are acting as if they lost the Michigan cases -- indeed, as if the Supreme Court had actually banned affirmative action.

“Higher education has not taken up the victory that I believe we won in the Supreme Court,” Nancy E. Cantor, the former provost at Michigan and now chancellor of Syracuse University, told her colleagues at a recent dinner of college presidents in New York City. “That’s something we all need to question why. I am worried about whether higher education will continue to be courageous.”

A Mixed Enrollment Picture

At the center of the debate are enrollment figures for black and Hispanic students in this year’s freshman class at the country’s top institutions, the first to be admitted after the Michigan decisions. A survey by The Chronicle of 29 colleges with competitive admissions found that a quarter of them, including Michigan and Georgia, saw the number of black and Hispanic freshmen decline this year compared with the fall of 2002.

The same survey, though, also found 11 colleges where the number of black and Hispanic students increased over 2002. At the other 11 institutions, the enrollment of only one of the two groups of students dropped. The mixed enrollment picture may indicate that it is too early to determine the long-term effects of the Michigan decisions, says David Ward, president of the American Council on Education.

“One- or two-year blips are regrettable, but not permanent,” Mr. Ward says. “I do think that, if over the next two or three years we see an aggregate decline, we will respond. It will unavoidably come to the forefront again.”

Two years ago the issue was at the forefront for the American Council on Education, which used its annual meeting in Washington to publicize higher education’s support for Michigan. Some 300 organizations filed more than 60 briefs with the Supreme Court backing the use of race in admissions decisions by Michigan, including a few dozen colleges and higher-education associations, nearly 70 Fortune 500 companies, and 29 former top-ranking officers and civilian leaders of the military.

“There was a sense that affirmative action was under attack,” Mr. Ward says. But after the decisions were handed down in June 2003, “we moved into a kind of post-Michigan phase where institutions acted locally.”

One reason for the local strategy, he says, is that it allowed colleges, particularly public institutions, to recognize the political realities they faced when it came to affirmative action in their communities and states. “People are trying to work quietly through the full potential of this victory, which [means] not being in everybody’s face,” Mr. Ward says.

Still, to some supporters of affirmative action, the lack of a sustained public campaign following the Supreme Court rulings to explain what they meant represented a lost opportunity to recruit minority students and gain support for race-based programs and scholarships. While the American Council on Education and other groups like the College Board sponsored a series of seminars to help college officials navigate the rulings, some were sparsely attended and one, in Atlanta, had to be canceled for lack of interest.

For some colleges, “other pressing issues took precedence,” says Mary Sue Coleman, Michigan’s president. “The response was not monolithic. I know that all institutions have not been assertive and aggressive, but I’m pleased with those who have.”

Perhaps the biggest failing by higher education in the immediate aftermath, affirmative-action proponents say, was not proclaiming victory loudly enough. Because there were two separate cases involved, the results were complicated for the public to digest. The court upheld the race-conscious admissions policies used by Michigan’s law school in one case, but in the other, the justices struck down the policy at Michigan’s main undergraduate school because it awarded each black, Hispanic, and American Indian applicant a 20-point bonus on its 150-point scale.

As a result, the bottom line of the court’s decisions -- that colleges can consider race as long as they consider each applicant individually -- got lost in the resulting discourse over race relations.

“The way this was reported in the local communities told African-American students that this decision was a way to exclude them,” says Karen A. Holbrook, president of Ohio State University, where the number of black freshmen dropped to 393 last fall from 572 in 2002. “We celebrated the victory, but our message -- that this would allow us to use race in some ways -- just didn’t get across.”

The Next Wave

The absence of a coordinated effort among colleges after the Michigan decisions were handed down also seemed to leave many campuses unprepared for what was to come next: another wave of attacks on affirmative action.

For years, higher-education leaders had been waiting for the Supreme Court to clarify conflicting federal-court rulings on race-conscious admissions. Although the Michigan decisions failed to provide the clear direction that some of them had hoped for, many thought it would be years until another challenge came along.

But even as college lawyers combed through the decisions trying to figure out what kind of admissions system would pass legal muster, the network of conservative advocacy groups that supported the white plaintiffs in the Michigan cases continued to press on.

Within weeks, Ward Connerly, who led successful campaigns to ban racial and ethnic preferences in California and Washington State in the 1990s, announced a similar effort in Michigan. Meanwhile, two groups that oppose racial preferences, the Center for Equal Opportunity and the American Civil Rights Institute, which is led by Mr. Connerly, cited the Supreme Court opinions in letters they sent to colleges threatening to file complaints with the Education Department’s Office for Civil Rights if the institutions continued to operate race-exclusive programs.

The groups have found a sympathetic ear at the Office for Civil Rights, which has been more forceful in looking into racial-discrimination complaints than during the Clinton administration. Two of the most recent additions to its staff, Hans Brader and Curt A. Levey, worked at the Center for Individual Rights, which helped represent the Michigan plaintiffs. The agency is already investigating the University of Virginia for possible discrimination against white undergraduate applicants, and has been asked by the Center for Equal Opportunity to look into similar allegations involving North Carolina State University, the University of Maryland at Baltimore’s School of Medicine, and the law schools at the University of Virginia and the College of William and Mary (The Chronicle, December 17, 2004).

“We hoped that the government and these foundations would back off, and obviously they are not,” says Mr. Ward, of the American Council on Education. “The people opposed to affirmative action are being aggressive. They are not lying down.”

But Roger B. Clegg, general counsel at the Center for Equal Opportunity, says his organization is only playing a watchdog role in its efforts to make sure that colleges comply with the law. What’s more, he says, the Supreme Court ruled that race-conscious admissions policies are allowed, not that they are required. “The object now for colleges should not be to use preferences right up to the line where they are permitted,” Mr. Clegg says.

That line is not always clear, though, say higher-education lawyers, because the Supreme Court did not endorse a single admissions method in its mixed decisions.

“The court gave some fairly extensive guidance, but didn’t answer every question,” says Martin Michaelson, a Washington lawyer who advises colleges on affirmative action. “The issue for institutions has not been one of whether diversity is a good goal, but the means to achieve it. Some of the means involve more risk than others. And an institution’s appetite for risk varies.”

A Mixed Picture

The few colleges that quickly overhauled their admissions policies in the wake of the Michigan decisions saw the first results of those changes in last fall’s freshmen class. For officials at Michigan and Ohio State -- both of which replaced a system that awarded extra points to minority applicants with one that required essays -- the news was not good.

In its freshmen class of 6,040, Michigan enrolled 350 black students, the smallest in 15 years and down from 443 in 2002. The number of Hispanic students also dropped to 264 from 305 in 2002. Not only did Ohio State see its enrollment of black freshmen fall, but the number of Hispanic freshmen also dropped by 8.3 percent to 165 out of a freshman class of nearly 6,000.

Both Michigan and Ohio State blame the decline partly on the changes in their application process, particularly students’ hesitancy to write essays. As a result, for this fall’s freshman application, Ohio State dropped two of the four essays required last year. It is also bringing to campus college counselors from selected Ohio high schools, as well as 80 minority high-school students to teach them how to prepare good college applications.

“I’d be very surprised if we don’t see an increase this year,” says Ms. Holbrook, Ohio State’s president.

At the University of Texas at Austin, officials hope that the change they made in their admissions system for this fall will build upon the recent success they have had in attracting minority students after several down years following the federal-court ban on affirmative action there in 1996. The change for this fall allows the university to consider an applicant’s race as part of a broad range of personal characteristics, such as captain of the football team or Eagle Scout.

That will come in addition to what the university and the state have already been doing to increase minority enrollment, namely outreach efforts with high schools that have traditionally not sent many students to the Austin campus and the guarantee of automatic admission to the top 10 percent of each high-school graduating class in the state.

“Our greatest challenge will be managing people’s expectations,” says Bruce Walker, director of admissions. “There are those who think that we’re using race so all of our problems are going to be solved. But we were using affirmative action prior to 1996 and even then we were not where we needed to be.”

What worries Ms. Cantor, the Syracuse chancellor and former Michigan provost, is that colleges are “getting lost” in the narrow procedural questions posed by the Supreme Court decisions by focusing too much of their energy on admissions procedures and enrollment numbers. Rather, she says, what colleges need to do is “take the broad educational points of those cases” and develop a comprehensive diversity plan.

The time is short, she adds, noting that Justice Sandra Day O’Connor at the end of her opinion in the Michigan law-school case warned that the Supreme Court expects that 25 years from now racial preferences will no longer be necessary.

“What really needs to happen is that every major institution in this country has to be fired up to make this front and center,” Ms. Cantor says. “We have to see it as our responsibility to maintain and foster the commitment to diversity.”

http://chronicle.com Section: Government & Politics Volume 51, Issue 19, Page A21