Recent scrutiny over the use of racial factors in the University's admissions process reflects a larger national phenomenon -- the trend to adjust current affirmative action policies to dodge lawsuits, say university administrators across the nation.
The effect has been an adverse one, with the intellectual environment challenged and minority enrollment even dropping at some schools, said officials at several of the University's peer institutions in interviews with The Cavalier Daily. These universities include James Madison University, the University of Michigan, the University of Texas-Austin, the University of California-Berkeley and the University of North Carolina-Chapel Hill.
Despite the legacy of 1978's historic Supreme Court decision, The Regents of the University of California v. Bakke, in which the Court declared attracting a diverse group of students as justification for using race-based admissions, recent litigation in Michigan, Texas and California has sent shock waves through college admissions offices across America.
Bakke has been the basis of most college affirmative action programs, but cases like 1995's Hopwood v. Texas, in which a 5th Circuit panel held it was unconstitutional for the University of Texas-Austin Law School to consider the race of its applicants in admissions, has set the ball rolling for other legal action.
Similarly, the University of Michigan now faces litigation from two 1997 cases, Gratz v. Bollinger et. al and Grutter v. Bollinger, et. al. Both cases remain in the court system and challenge Michigan's use of race in its admissions process to the College of Literature, Science & the Arts.
Both the Gratz and Grutter cases were brought to court by disgruntled white applicants who were denied admission to Michigan. Both cases cite unfair racial admissions practices as the reason for the applicants' admissions denial.
In both cases, the Center for Individual Rights -- an organization that attacked the University's admissions policies last February -- is representing the plaintiffs with the Minneapolis law firm of Maslon, Edelman, Borman & Brand serving as lead counsel. CIR, a Washington D.C.-based public interest law firm, has been conducting a campaign of lawsuits aiming to dismantle affirmative action.
"We can pretty well see that the national trend is toward the elimination of affirmative action," said Bruce Walker, University of Texas-Austin's associate vice president for student affairs and director of admissions, in response to the wave of affirmative action criticisms from groups like the CIR.
As a result of the Hopwood decision, the University of Texas-Austin, like other public Texas universities, cannot use race as a consideration in its admissions process.
"The result has not only been a drop in enrolled [minority] students, but also a drop in the applicant pool," Walker said.
While the Texas decision resulted in the loss of all consideration of race in admissions processes, Michigan's fate has yet to be decided.
But Michigan Spokeswoman Julie Peterson said despite the controversies and pending litigation, Michigan will stand firmly behind its current admissions processes.
"We think the policies we have in place are really important to our university," Peterson said. "We intend to defend [our position in] the lawsuits vigorously -- and intend to defend them because we believe our policies are legal, effective and fair."
She said much national discussion has been centered around the "death of affirmative action." She added that people tend to say that instead of affirmative action, more outreach should be given to minority students by university recruiters.
"There has been a lot of national discussion about how schools should be doing more outreach, but we already do a good deal of that," she added. "But more outreach is not a solution."
Michigan has summer as well as school-year programs for high school-aged minority students and also provides special minority scholarships.
Peterson said Michigan has looked at "flagship" universities and their policies with great concern.
Flagship universities are those public universities such as the University of Texas-Austin that set the scene for policy-making across their state.
"Flagship minority enrollment has dropped precipitously, and we have been watching with concern," Peterson said. "We have put together research that shows that students that learn in racially diverse environments learn better."
Last year the University of California system eliminated race-based admissions policies with the implementation of Proposition 209, a referendum in the 1996 state elections that ended affirmative action in the state.
"We had a really sharp drop in minority students after 209," Laird said.
He said two years ago minority students represented 21.3 percent of Berkeley's student body. Last year, under Proposition 209, the population dropped 54 percent to 11.2 percent. He added that there was a slight increase this year, with minority students composing 14.1 percent of the population.
In response to the outlawing of affirmative action in admissions, Berkeley has had to get creative in attracting minority students.
Laird said Berkeley places heavy emphasis on minority recruitment by encouraging "very strong" students to apply. Berkeley also has complex "yield" activities designed to get admitted students to matriculate at Berkeley. He said such tactics have included personal phone calls, letters and on-campus receptions.
Despite Berkeley's vigilance in maintaining a diverse university, he said the aftermath of the cancellation of affirmative action has had adverse effects on Berkeley.
"The issue can really be damaging to a state and can polarize different segments of the state in ways that are hard to heal," he added.
On the east coast at the University of North Carolina-Chapel Hill -- a school many consider very similar to the University because of its public school prestige and southern history -- Jerry Lucido, associate provost and director of admissions, has been watching the affirmative action debate heat up recently.
"I have a concern that affirmative action policies have been misunderstood and attacked across the country," Lucido said.
"It concerns me that it could serve to reduce the aspirations of minority students who could be successful in our institution but feel the climate is not here," he said. "I worry about the chilling effect that this environment has on the aspirations of minority students."
Close to home
In February the CIR's crusade hit close to home when it launched an advertising campaign in 15 college newspapers with eye-catching ads reading, "Guilty By Admission: Nearly Every Elite College in America Violates the Law. Does Yours?"
The advertisement encouraged students to assess the admissions policies at their respective colleges and advertised their Web site where a handbook, "Racial Preferences in Higher Education: The Rights of College Students," was available for downloading.
"There is definitely a trend to move away from the illegal use of race in admissions," CIR Senior Counsel Terence Pell said.
Pell emphasized the difference between "affirmative action" and "illegal use of race" as a factor in college admissions.
"Affirmative action, as originally understood, involved a lot of effort to reach out to racial groups traditionally excluded from universities," he said. "Unfortunately, many universities have used race for two separate admissions processes and that is clearly illegal."
Although University officials have not buckled to CIR pressure, recent controversies have highlighted the need for closer examination of the admissions process.
Last month at a special committee meeting of the University's Board of Visitors, a proposal for a minority high school student summer program was laid on the table. The program would be available to qualified minority high school students and gear them for admissions to universities.
Some saw this as a step away from the current consideration of race in the admissions process.
At James Madison University, Affirmative Action Officer James Wadley said he has been looking at pending legal action in Michigan and the potential debate in Virginia with much concern.
"We are aware of the different court cases. Everybody's looking at what's happening in Michigan," Wadley said. "U.Va. is the flagship institution [for Virginia] -- they're the big shots -- whatever happens there will probably happen here."
If racial considerations in admissions policies end in the state, Wadley said JMU would pursue minority applicants more vigilantly.
But Karen Holt, the University's director of Equal Opportunity Programs, said she did not see the nation as necessarily straying from affirmative action policies.
"It hasn't been abandoned," Holt said. But "there are some things we need to look at"