UNIT 1 TEST ESSAYS - 4TH QUARTER /p>
CHAPTER 4 – CIVIL LIBERTIES CHAPTER 5 – CIVIL RIGHTS CHAPTER 16 – THE FEDERAL COURTS
1. Explain the process and politics involved in the selection of federal judges. Provide specifics on the steps and “political” concerns
during this process.
2. The Supreme Court has played a major role in the interpretation of due process rights guaranteed to any person accused of a crime
in our criminal justice system. Using your text and Woll readings, class presentations and the video presentation Gideon’s
Trumpet, explain the following:
(a) the steps involved in accepting cases to the Supreme Court docket.
(b) the steps involved in deciding cases on the Supreme Court docket.
(c) the specific due process rights involved in the Gideon case. (4th, 5th, 6th, 8th or 14th Amendment rights)
(d) the impact of the Court’s decision in Gideon’s case when comparing the 1st trial with the 2nd trial.
3. Using your text readings, class presentations and the video presentation Simple Justice, explain the impact and importance of the
Brown v. Board of Education decision with reference to the following:
(b) The role of the 14th Amendment
(c) the "strategy" and cases leading to the Brown decision
4. Explain the effect of the following on the application of the federal Bill of Rights to the States:
Provide two examples of incorporated rights along with the case that established them.
Provide two examples of rights not incorporated.
5. Explain the following concerning the two elements regarding religion and government contained in the 1st Amendment:
A. the “establishment clause” and the “Lemon Test” from Lemon v. Kurtzman (1971) along with two Supreme Court cases that illustrate how the Court deals with this clause
B. the “free exercise clause” and the distinction between “belief” and “practice” and “compelling interest” along with two Supreme Court cases that illustrate how the Court deals with this clause.
6. Many scholars and observers have argued that the ratification of the Fourteenth Amendment to the Constitution has become the
important act in all of
which provision of the Fourteenth Amendment was applied in each of the
following Supreme Court cases. For each
case, explain the significance of the decision in
Brown v. Board of Education of
- Baker v. Carr (1962)
Regents of the
which provision of the Fourteenth Amendment was applied in each of the
following Supreme Court cases. For each
case, explain the significance of the decision in
- Gideon v. Wainwright (1963)
7. Using your text and Woll readings, class presentations and web page articles, explain the impact of the following on the status of
(a) “equal opportunity” verses “equal results”
(b) Regents of the
(c) “reverse discrimination”
(d) Grutter v. Bollinger (2003) and Gratz v. Bollinger (2003)
(e) “alternative” actions and plans
KEY TERMS AND CONCEPTS
Bill of Rights: the first ten amendments to the Constitution.
Civil Liberties: legal and constitutional protections against government
infringement of political liberties and criminal rights.
Commercial Speech: communication in the form of advertising.
Cruel and unusual punishment: Eighth Amendment prohibits such punishment.
Eighth Amendment: forbids cruel and unusual punishment, although it does not
define this phrase.
Establishment clause: First Amendment prohibits government from establishing a
religion; is the basis for separation of church and state.
Exclusionary rule: prohibits government from including illegally obtained evidence
in a trial.
Fifth Amendment: prohibits government from forcing individuals to testify against
First Amendment: establishes freedom of religion, press, speech, and assembly.
Fourteenth Amendment: prohibits states from denying equal protection of the
Free exercise clause: government is prohibited in the First Amendment from
interfering in the practice of religion.
Incorporation Doctrine: legal concept under which the Supreme Court has
nationalized the Bill of Rights by making most of its provisions applicable to the
states through the Fourteenth Amendment.
Libel: publication of false or malicious statements that damage someone’s
Plea Bargaining: an actual bargain struck between the defendant’s lawyer and the
prosecutor to the effect that the defendant will plead guilty to a lesser crime (or
fewer crimes) in exchange for the state’s promise not to prosecute the defendant for
a more serious (or additional) crime.
Prior restraint: government instrument to prevent material from being published.
Probable cause: police must have a good reason to arrest someone.
Right to privacy: a contrived right from unstated liberties in the Bill of Rights.
Search warrant: written authorization from a court specifying the area to be
searched and what the police are searching for.
Self-incrimination: testifying against oneself.
Sixth Amendment: designed to protect individuals accused of crimes; includes the
right to counsel, the right to confront witnesses, and the right to a speedy and public
Symbolic Speech: political actions instead of words.
Unreasonable searches and seizures: obtaining evidence without a good reason.
Affirmative action: a policy designed to give special consideration to those
previously discriminated against.
Americans with Disabilities Act of 1990: strengthened protections of individuals
with disabilities by requiring employers and public facilities to make "reasonable
accommodations" and prohibiting employment discrimination against people with
Civil rights: extending citizenship rights to participate to those previously denied
Civil Rights Act of 1964: forbids discrimination in public accommodations and
Comparable worth: equal pay for equal worth.
Equal Protection of the Laws: provided by the Fourteenth Amendment mandating
that all people be protected by the law.
Equal Rights Amendment: proposal that equality of rights under the law not be
denied on the account of sex.
Fifteenth Amendment: provides the right to vote for blacks.
Fourteenth Amendment: prohibits states from denying equal protection of the laws.
Nineteenth Amendment: provides women with the right to vote.
Poll Taxes: taxes levied on the right to vote designed to hurt poor blacks.
Suffrage: the legal right to vote.
Thirteenth Amendment: abolished slavery and involuntary servitude.
Twenty-fourth Amendment: prohibited poll taxes in federal elections.
Voting Rights Act of 1965: a policy designed to reduce the barriers to voting for
those suffering discrimination.
White Primary: practice where only whites could vote in primaries.
Amicus Curiae briefs: friend of the court briefs by nonlitigants who wish to
influence the Court's decision by raising additional points of view and information
not contained by briefs prepared by litigants' attorneys.
Appellate jurisdiction: given to a court where cases are heard on appeal from a
Class action suits: cases which permit a small number of people to sue on behalf
of all other people similarly affected.
Courts of appeal: courts which have the power to review all final decisions of
district courts, except in instances requiring direct review by the Supreme Court.
District courts: the entry point for most federal litigation.
Judicial activism: theory that judges should make bolder policy decisions to
alleviate pressing needs, especially for those who are weak politically.
Judicial implementation: how and whether court decisions are translated into
Judicial restraint: theory that judges should play minimal role in policymaking
and leave policy decisions to the legislature.
Judicial review: the power of the courts to hold acts of Congress, and by
implication the executive, in violation of the Constitution.
Justiciable disputes: cases that can be settled by legal methods.
Opinion: a statement of the legal reasoning behind the decision.
Original intent: the theory that judges should determine the intent of the framers
and decide in line with their intent.
Original jurisdiction: given to a court where a case is first heard.
Political questions: conflicts between the president and Congress.
Precedent: the way similar cases have been handled in the past is used as a guide to
Senatorial courtesy: a tradition in which nominations for federal judicial positions
are not confirmed when opposed by a senator of the president's party from the state
in which the nominee is to serve or from the state of the nominee's residence.
Solicitor general: a presidential appointee who is in charge of the appellate court
litigation of the federal government.
Standing to sue: litigants must have serious interest (sustained direct and
substantial injury) from a party in a case.
Stare decisis: an earlier decision should hold for the case being considered.
Statutory construction: a procedure in which the legislature passes legislation that
clarifies existing laws so that the clarification has the effect of overturning the court's
Supreme Court: resolves disputes between and among states, maintains the
national supremacy of law, ensures uniformity in the interpretation of national laws.
to turn White House tapes over to the Courts.
The Campus Perspective on Affirmative Action
By Michelle Meyer, Medill News Service
When the Bruin Republicans at the
The student group charged black,
The group used the discriminatory prices to show the absurdity of using race in college admissions, said Andy Jones, a senior at UCLA and the Bruin Republicans chair, as reported in his school newspaper, The Daily Bruin.
"We wanted to show how affirmative action is racial division, not racial reconciliation," Jones said.
Students held similar bake sales on college campuses across the country, including the University of Richmond, the University of New Mexico, Stanford University and the University of Michigan —the center of the latest debate concerning affirmative action.
In December 2002, the U.S. Supreme Court
decided to hear cases concerning the use of racial preferences in admissions at
both the undergraduate and the law school at
Understandably, affirmative action is a contentious issue among college students across the country. The Court has not revisited affirmative action in higher education since 1978 when it struck down the use of quotas but left open the door to racial preferences in Regents of the University of California v. Bakke.
Dozens of universities, both public and
private, have filed friend of the court briefs in support of
Many students agreed with sophomore Ryan Wisnesky, who said, "Any judgment of a person based on the color of their skin is shallow and even racist," reported Sharif.
Piotr Kosicki said labeling students according to demographic classifications bolsters stereotypical assumptions. "Admissions officers are encouraged to indulge racist stereotypes rather than combat them; this is why affirmative action as a comprehensive policy is doomed to failure," he said.
Some students responded with apathy towards a system that is exclusive by nature. "The admissions process is completely subjective to begin with," a junior argued. "They have been given the authority to choose the best applicants. Universities have always been in the business of social engineering and they should be allowed to pursue this."
Stanford, like other universities located in
states that have banned racial preferences in higher education such as
In an attempt to gauge campus opinion, the staff at UCLA’s Daily Bruin, asked students about their feelings toward affirmative action in an informal online poll.
More than half of the 720 students who responded said they feel affirmative action is racist. Less than 12 percent found affirmative action "necessary and very valuable." More than 27 percent felt that "affirmative action had its time, but now the government should find new solutions."
Daily Texan at the
Staff writer Yvonne Lim reported that black enrollment at the school’s law school has fallen to four percent in 2002 without affirmative action, compared to 7.4 percent in 1995 with affirmative action. The number of Hispanics has dropped from 12.5 percent to 8 percent.
Meanwhile, students at schools that openly use racial preferences wrote editorials and letters to editors of school newspapers to debate an issue that seemed to bring out both sides in equal numbers. Opinion appeared to vary regardless of a school’s exclusivity or geographic location.
Students at southern schools, such as the
Daily Pennsylvanian at the
Several students posted dissenting arguments after an article about the school’s participation in a pro-affirmative action brief seemed to infer the majority of students supported race-based policies.
"I'm willing to wager that not one of the 259 Penn law students would withdraw from school giving his place to a minority student to expand diversity," wrote an anonymous alum. "Another example of liberal hypocrisy."
While Penn considers race in admissions, it
does not use a point system akin to the
"How much less is okay?" she asked.
Yale sophomore Theresa Nguyen wrote in the Yale Herald that the role of Asian Americans reveals one of the major defects in race-based admission policies. "In deciding what ethnicities have been historically discriminated against or socio-economically disadvantaged, universities will generally choose African Americans and Hispanics with little consideration for Asian Americans," she wrote. "Nor are other disadvantaged groups such as Arab Americans or Eastern European Americans factored into the equation."
Some students expressed a general approval
for the consideration of race in admissions, but a desire for a more subtle use
of racial preference than is evident in the point system employed by the
An editorial that appeared in The Oregon Daily Emerald, the student
newspaper of the
"The point bonuses at
Jon Patterson, a student at the
"Spotting certain minority students 20 points is really a very nice way of lowering the bar for them by 20 points," Patterson wrote. "Should (affirmative action) become an end in itself, regardless of the potential dangers of telling 18-year-old kids that 1/7 of their chances (for admittance) is determined by a thin layer of melanocytes in the epidermis?"
But at the
A Dream Denied Leads Woman to
Gratz's Rejection by U-Mich. Led Her to Fight Against Race-Conscious Admissions
Sunday, February 23, 2003; Page A01
"Totally crazy," says the 25-year-old, shaking her head.
The facts. In 1995, Gratz was a high school student with a 3.8 GPA, the
golden face of her yearbook when she applied to the
With her case now at the Supreme Court, Gratz has become the central figure in a sprawling ideological debate over affirmative action. It is her story that will challenge the fairness of race-conscious admissions programs: Gratz represents the white working-class striver passed over in the name of diversity.
"I can't tell you exactly how my life would be different, because I
wasn't given the opportunity," says Gratz, who left
Newly married, Gratz is sitting in the kitchen of her light-filled stucco house
in a planned community. It's the morning after Valentine's Day, when her
husband surprised her with homemade ravioli and a chocolate soufflé. A pair of
Betty Crocker cookbooks rest on the kitchen counter. Relaxed and polished,
Gratz is a benefactor of innate intelligence and careful coaching by those
whose cause she is championing. After six years as a plaintiff, she is still
handled with care: Her lawyers in
To some degree, Gratz was snapped into machinery that was churning before
she received her rejection letter. The battle began in 1978 when the Supreme
Court ruled in Regents of the University of California v. Bakke that
race could be used as a factor in admitting students but that quotas were
forbidden. In 1996, a federal appeals court in
In 1995, events were taking hold in
Gratz wasn't an activist or grass-roots warrior. She was a teenager whose
rejection by her dream school shook her confidence and sense of fairness. She
had spent years polishing her credentials for the
"We want to have a class that thinks about issues from different backgrounds," says Mary Sue Coleman, the university's president.
The notion galls Gratz. Atmospheres can't be "engineered," she says. Points for being a minority?
"That would be like me deciding, 'Hey, I want to feed the hungry but I don't have any means to do that, so I'm going to go rob a grocery store,' " she says. "It's still illegal, even though my intentions are good."
Gratz grew up 45 minutes away in
At Southgate Anderson High, she did it all: student government, National
Honor Society, science club, spirit club, cheerleader. In
Race was almost a nonissue at
"Jennifer did everything we asked her to do, and more," says a former assistant principal, Ron Dittmer. "I wouldn't ask any more of my own daughter."
Gratz was so confident that she'd make the cut at
It was an odd reaction for a 17-year-old. But Gratz said she suspected
something amiss, if not precisely that she'd been passed over because she was
white. "Everyone knew bits and pieces," she says, about the premium
She began her freshman year, commuting the 15-minute drive from her parents' home.
Around the same time, a
The documents showed that
One of the politicians was then-state Rep. Deborah Whyman, who called the
Center for Individual Rights, a conservative
"We laid out a game plan," says Whyman. "When it came down to
finding plaintiffs, I did it." She did talk radio shows and gave news
interviews about a possible lawsuit against
Gratz's parents saw a newspaper article and clipped it for their daughter,
who was working at a summer cheerleading camp but still living at home.
Immediately, Gratz knew she wanted to be part of some effort against
Whyman says she forwarded 200 names to CIR; the law firm's Curt Levey says
that only "six or seven" were ever seriously considered. One was
Gratz, who met with CIR attorneys at a Courtyard Marriott near the
The lawsuit was filed in October 1997 on behalf of Gratz and Patrick
Hamacher, another student wait-listed from
Gratz absorbed most of the heat. Walking out of the courthouse after her case had been sent to the U.S. Court of Appeals for the 6th Circuit, a protester screamed at Gratz, "racist bitch!"
"I'm exactly the opposite," she would later say. "I'm standing up and saying people should not be treated differently because of their skin color."
After Cohen's documents were made public,
"To assume a minority can't go to the
Gratz has been confronted with every angle of the argument. Aren't legacy points also a form of preference? "Four points," she says, not 20. Besides, minorities can also be legacies.
In a classroom setting, could a black student's viewpoints enrich a
discussion about racial profiling? "Everyone in the country views racial
profiling as wrong," Gratz says. "That's exactly what the
What about affirmative action acting as a remedy for society's past discriminatory practices? Her lawyer won't allow her to answer. "That's a policy question," says Levey.
As for her own life, Gratz says she decided not to transfer to
When Gratz first contemplated joining the lawsuit, friends cautioned her that prospective employers might not look favorably on her stance against affirmative action. But as time passed, she says, "I found just the opposite."
Gratz says she was sidetracked by a system that works against whites, but
she has made the best of her life. "I'm not an angry or bitter
person," she says, gently picking up one of her cats, Bandit. Gratz and
her husband, Rob Whyte, a 31-year-old software developer, recently honeymooned
"I'm proud of her," Whyte says, taking a break from installing a satellite dish on their roof on a Saturday morning. "She's standing up for something that a lot of us believe is the right thing."
Far from living in racial exile, Gratz says she is surrounded by diversity.
"I have co-workers from all over the place, from
Hanging in Gratz's closet is a
"I want you to know my wife is very excited to be standing
next to the
Asked if it's hard to think about minority students who walk the grounds of
© 2003 The Washington Post Company
Gratz, Jennifer & Hamacher, Patrick v. Bollinger, Lee, et al.
Appealed From: 6th Circuit Court of Appeals (May 14, 2002)
Oral Argument: April 1, 2003 (audio available)
Opinion Issued: 6-3 for Gratz (Rehnquist-June 23, 2003)
Subject: Affirmative action, racial preferences, equal protection
Question(s) presented: (1) Does the University of Michigan's use of racial preferences in undergraduate admissions violate the Equal Protection Clause of the 14th Amendment, Title VI of the Civil Rights Act of 1964 (42 U.S.C.2000d), or 42 U.S.C. 1981?
Early in her school years, Jennifer
Gratz knew she wanted to attend the
Already a Michigan Wolverine football fan, Gratz felt confident of her chances for admittance at the competitive university, where 5,000 students are selected from approximately 25,000 who apply annually.
Her application boasted other accomplishments. She was vice president of student council, a member of the national honor society, a class congress officer, member of the science club, cheerleader and a volunteer at a local senior center.
She was also the first person in her family to apply to college, a fact she was proud of.
Initially, Gratz applied only to the
But Gratz was denied admission. The rejection letter came in a thin envelope one day after school – after many weeks of anxiously checking the mailbox, Gratz said.
"I was devastated and embarrassed," Gratz said. "I knew right away that something was wrong."
In her opinion, Gratz had done everything she could to make myself herself an ideal candidate. But one thing stood in her way, she said: Gratz is white. "If I was a minority, I probably would have gotten in," she said.
Gratz said friends who are minorities were accepted to the university – individuals who, she claimed, had lower grades and test scores than she did.
Gratz knew the school practiced affirmative action in its admission procedures. When she received the rejection letter, she turned to her father, a retired policeman and asked, "Can we sue?"
With the Center for Individual Rights, Gratz brought suit in October 1997, claiming she was rejected from the university while less qualified minority applicants were admitted.
For example, members of "underrepresented" racial and ethnic minority groups – African Americans, Hispanics and Native Americans -- receive 20 points. Admissions staff can also award 20 points to scholarship athletes and socio-economically disadvantaged applicants. The provost can award another 20 points at his discretion.
Applicants can receive a range of points based on grades, test scores, essay, the state or country the applicant resides in, the quality of the high school and the difficulty of the curriculum. Children of alumni can earn four points and those who demonstrate significant personal achievement or leadership can earn up to five points.
In a system that awards up to 150 points, a student’s academic record is the most important factor. An applicant can receive up to 110 points for grades, test scores and other academic matters.
Admissions staff say there is no target number that determines whether an applicant will be admitted, but that the points system serves as a guide for the university’s rolling admissions policy.
Gratz’s lawyers say they have proved she would have been admitted had she been a minority, a fact the university does not dispute. In fact, in February 2001, U.S. District Judge Patrick Duggan ruled for Gratz, finding that the university was not justified "in using race as a factor in admissions to remedy the present effects of past discrimination."
Gratz’s case, combined with a similar case, Grutter v. Bolinger, which involves a white woman denied admission to the University of Michigan Law School, may be the most significant affirmative-action litigation in a generation.
The argument is compelling: When, if ever, should schools give preferential treatment to minorities, based solely on their race? It is a question that has elicited passionate responses from those on both sides, including President George Bush, who has denounced affirmative action in higher education.
In May 2002, the full array of the 6th Circuit Court of Appeals in
In its decision concerning the law school, the 6th Circuit called upon the most important U.S. Supreme Court ruling on affirmation action thus far, Regents of the
However, the justices also concluded that the use of race as a criterion in admissions decisions in higher education was constitutionally permissible. Universities have often used the opinion as a benchmark for affirmative action admission policies. But the decision has also been criticized for its ambiguity.
In reversing the district court, the 6th Circuit majority opinion drew a distinction between the admissions system employed at the
According to the majority,
In his majority opinion, Judge Boyce Martin, Jr. wrote that
According to university officials, a critical mass is a number sufficient to allow underrepresented minority students to contribute to classroom discussion without feeling isolated or like spokespersons for their race. It was not, officials said, a set number or percentage.
The lower court had also ruled that
"We don’t read Bakke and the Supreme Court’s subsequent decisions to require the
academic selectivity," Martin wrote. "An institution of higher education must consider
race-neutral alternatives, but it need not abandon its academic mission to
achieve absolute racial and ethnic neutrality."
Martin cited statistics estimating the school’s minority population would drop by more than 30 percent if the current consideration of race in admissions were abolished. He agreed with Justice Lewis Powell’s decision in Bakke that acknowledged the state’s legitimate interest in a properly devised admissions program involving the competitive consideration of race and ethnic origin.
In his dissent, Judge Danny Boggs characterized
According to Boggs, the 14th Amendment forbids the government from participating in "social engineering through explicit racial classifications." He argued achieving a diverse student body, as articulated by the
"Holding that, generally speaking, ‘diversity in education’ is a compelling state interest would not be terribly helpful," Boggs wrote. "After all, it is not clear what the term means."
Boggs stated that the law school doesn’t give an explanation of how it defines the groups to be favored. The law school, he wrote, must decide who is, and is not, an African-American, Hispanic, or Native American.
Boggs also argued that
"The combination of the Law School's thinly veiled references to…a ‘critical mass,’ and relatively consistent results in achieving a particular enrollment percentage, should convince us that the Law School's admissions scheme is functionally, and even nominally, indistinguishable from a quota system." Boggs wrote.
On Dec. 2, 2002, the U.S. Supreme Court granted certiorari in the case and limited review to the question noted above. The same day, the Court also accepted review in Grutter v. Bollinger, regarding the admissions policies at the
In a speech delivered days before the holiday celebrating the slain civil rights leader, Bush called the
"Students are being selected or rejected based primarily on the color of their skin," Bush said. "The motivation for such an admissions policy may be very good. But its result is discrimination and that discrimination is wrong."
In the amicus brief on behalf of the Bush administration, Solicitor General Theodore Olsen wrote, "This case demonstrates the pernicious consequences that result when public institutions deviate from the Court’s precedents by ignoring race neutral alternatives and employing race-based policies that amount to racial quotas."
Even if the Court agrees with the 6th Circuit majority that Michigan does not employ a quota system, the justices are still expected to decide if racial preferences used in the admission system violate the 14th Amendment.
"For our students to better understand the diverse country and world they inhabit, they must be immersed in a campus culture that allows them to study with, argue with and become friends with students who may be different from them," wrote Lee C. Bolinger, former University of Michigan president, dean of its law school, and current president of Columbia University.
The implications of the Court’s decision on higher education could be pervasive. Many legal experts agree that private universities and colleges would be bound because most receive some form of federal funding.
States such as
As for Gratz, who is now 25, the recent newlywed earned a degree in math from the
"I would have never imagined that I would be involved in a case before the Supreme Court against a big university," Gratz said.
She said many of her friends were surprised to learn of her lawsuit. Upon her rejection, she said she was too embarrassed to tell her friends that she was not accepted to
"I absolutely don’t have any doubts about what I’m doing," Gratz said. "My main goal is that
Grutter, Barbara v. Bollinger, Lee, et al.
Appealed From: 6th Circuit Court of Appeals (May 14, 2002)
Oral Argument: April 1, 2003 (audio available)
Opinion Issued: 5-4 for Bollinger (O'Connor-June 23, 2003)
Subject: Affirmative action, race, 14th Amendment
Question(s) presented: (1) Does the University of Michigan Law School's use of racial preferences in student admissions violate the Equal Protection Clause of the 14th Amendment, Title VI of the Civil Rights Act of 1964 (42 U.S.C> 2000d), or 42 U.S.C. 1981? (2) Should an appellate court required to apply strict scrutiny to governmental race-based preferences review de novo the district court's findings because the fact issues are "constitutional?"
In 1996, Barbara Grutter applied for
admission to the University of Michigan Law School in the academic year
1997-98. In applying, Grutter, a resident of the state, checked the box next to
"white," in response to a question that asked each applicant to
disclose his or her race.
After being placed on a "wait list," Grutter was apprised by the law school, in a letter dated June 25, 1997, that her application had been rejected.
Six months later, Grutter filed a class action suit in the Eastern District of Michigan at
By the time the district court issued its ruling on March 27, 2001, the case had become a cause celebre, with dozens of parties seeking to intervene or to offer "friend of the court" briefs. In finding for Grutter, the district court concluded that the law school’s "use of race as a factor in its admissions decisions is unconstitutional and a violation of Title VI of the 1964 Civil Rights Act." Judge Bernard Friedman concluded that the school's justification for using race — to assemble a racially diverse student population — is not a compelling state interest, and even if it were, the law school had not narrowly tailored its use of race to achieve that interest. The judge also rejected arguments that the leveling of the playing field between applicants of minority and non-minority races was necessary to achieve any compelling state interest.
On May 14, 2002, the 6th Circuit Court of Appeals issued its much-awaited opinion, upholding the law school’s admissions policies by a narrow 5-4 margin. Seven of the nine judges on the court put their own imprint on the decision, with all four dissenters writing something. At its core, the court was grappling with two perspectives; how to view the particulars of the carefully articulated admissions policies of the University of Michigan Law School and how to fit those policies into the precedent left behind by the 1978 U.S. Supreme Court opinion in Regents of the
The goal of the law school’s admission policy was "to admit a group of students who individually and collectively are among the most capable students applying to American law schools in a given year." The policy, which was adopted in 1992, also pursued "a mix of students with varying backgrounds and experiences who will respect and learn from each other."
Traits in the mix could include: "an Olympic gold medal, a Ph.D. in physics, the attainment of age 50 in a class that otherwise lacked anyone over 30, or the experience of having been a Vietnamese boat person," the policy said.
Furthermore, the school pursued affirmative action: "There is however, a commitment to one particular type of diversity that the school has long had and should continue," the policy said. "This commitment to racial and ethnic diversity with special reference to the inclusion of students from groups which have been historically discriminated against, like African-Americans, Hispanics and Native Americans, who without this commitment might not be represented in our student body in meaningful numbers."
To accomplish the law school’s goal of accepting a diverse group of individually and collectively the most capable students, the school looked at both hard and soft variables in its admission process, Judge Boyce Martin, Jr., wrote in the 6th Circuit’s lead opinion.
Hard variables used in the admission process consisted of a composite of an applicant’s Law School Admissions Test and undergraduate grade-point average, charted on a grid with standardized test scores on the horizontal axis and undergraduate grade-point average on the vertical axis, Martin wrote.
Soft variables used in the admission process included the "enthusiasm of the recommenders, the quality of the undergraduate institution, the quality of the essay, residency, leadership and work experience, unique talents or interests, and the areas of difficulty of undergraduate course selection," Martin continued.
Beyond the variables, the law school sometimes admitted students with low test scores, Martin wrote. The students admitted with low test scores generally fell into two categories: students with consistently poor standardized test performance in tandem with consistently outstanding academic records and students who "may help achieve that diversity which has the potential to enrich everyone’s education and thus make a law school class stronger than the sum of its parts," Martin wrote in citing the admission policy.
The law school didn’t set aside or reserve seats for under-represented minority students, Martin noted. To affectively pursue diversity, the law school sought a "critical mass" of minority students to "ensure that all students – minority and majority alike – will be able to enjoy the educational benefits of an academically diverse student body," Martin wrote.
Law School Dean Jeffrey Lehman had defined "critical mass" in trial testimony as having sufficient numbers such that under-represented minority students do not feel isolated or like spokespersons for their race, and do not feel uncomfortable discussing issues freely based on their personal experience, Martin added in his opinion.
Examination of grids of the law school’s admission data from 1995-2000 revealed that the relative odds of acceptance for Native American, African-American, Mexican-American, and Puerto Rican applicants were many times greater than for Caucasian applicants, Martin said in citing testimony from the unsuccessful applicant’s statistical expert.
Yet eliminating race as a factor in admission process would dramatically lower minority admissions, Martin added in citing testimony of the law school’s statistical expert. Without the consideration of race, under-represented minority students would have only constituted 4 percent of the entering class of 2000 instead of the actual enrollment of 14.5 percent, Martin concluded.
In viewing the law school’s policy against the 1978 Supreme Court opinion in Bakke, Martin observed that although Bakke prohibited the use of a quota system in race-conscious admissions as they existed at
However, as Powell ultimately concluded for the Supreme Court, the goal of achieving a diverse student body was a compelling interest of an institution of higher education, and a permissible example where race and ethnicity were used in the admission process, according to Powell’s majority opinion, was the Harvard admission plan.
At Harvard, "race or ethnicity was deemed a ‘plus’ but did not insulate a minority applicant form comparison with other applicants," Powell wrote in Bakke. The Harvard plan treated each applicant as an individual in the admissions process.
Furthermore, "The applicant who loses out on the last available seat to another candidate receiving a ‘plus’ on the basis of ethnic background will not have been foreclosed from all consideration for that seat simply because he was not the right color or had the wrong surname," Bakke read. Rather, denied admission "would mean only that his combines qualifications, which may have included similar nonobjective factors, did not outweigh those of the other applicant."
"A ‘plus’ program – unlike a quota – lacked a ‘facial intent to discriminate,’" Powell had written. "Emphasizing that the fine distinction between a ‘plus’ system and a quota system was both discernable and constitutionally significant, Powell recalled Justice Felix Frankfurter’s declaration that "[a] boundary line is none the worse for being narrow."
In the 6th Circuit’s lead opinion, Judge Martin recalled both.
In Bakke, Justice William Brennan had concurred in part and dissented in part with Powell’s lead opinion. In expressing support in Bakke for Harvard’s plan in the first footnote of his opinion, Brennan noted: "We also agree with Mr. Justice Powell that a plan like the ‘Harvard’ plan… is constitutional under our approach, at least so long as the use of race to achieve an integrated student body is necessitated by the lingering effects of past discrimination."
In Grutter, the District Court had concluded race-conscious admissions policies were only justifiable in circumstances where it remedies specific past discrimination, basing its ruling on the post-Bakke Supreme Court opinions, first in City of Richmond v. J.A. Croson Co. in 1989, then in Adarand Constructors, Inc. v. Pena six years after that.
Judge Martin criticized the District Court’s decision in his majority opinion: "Adopting the district court’s conclusion that the Law School could only justify race-conscious admissions decisions as a remedy for specific past discrimination would necessitate a finding that the Supreme Court has implicitly overruled Bakke," The Supreme Court alone retains the ability to overrule its decisions, Martin wrote.
Additionally, Martin found institutions of higher learning had been using the Supreme Court’s Bakke decision as a model for more than 20 years.
The 6th Circuit also found that Michigan’s law school had "drafted its admissions policy to comply with the Supreme Court’s opinion in Bakke," and from Bakke it could conclude a ‘plus’ system found at the University of Michigan’s Law School does not offend the Equal Protection Clause," Martin said in citing Justice Powell’s majority opinion in Bakke.
Since Bakke, the Supreme Court has done nothing to render this description of Justice Powell’s opinion any different than the ‘Law of the Land,’ Judge Eric Clay wrote in concurring with Martin. Clay wrote separately to speak to the "misrepresentations made by Judge Danny Boggs in his dissenting opinion."
In that dissent, Boggs questioned how applicable Bakke was to other cases: "Unfortunately, no policy other than the specific one utilized by UC Davis was before the Court," Boggs wrote. "We cannot come up with a ‘holding’ that is any more specific than that UC Davis’ plan (and all plans that absolutely reserve a specific number of seats for the racially favored) was unconstitutional, and that some type of racial preference may be constitutional."
Boggs was not willing to justify Michigan’s policies by looking to Bakke , "Even if student diversity were a compelling state interest, the law School’s admissions scheme could not be considered narrowly tailored to that interest."
"Between 1995 and 1998, the last four years for which we have data, the Law School consistently enrolled a number of under-represented minorities constituting 13.5 to 13.7 percent of the class enrolled," Boggs wrote. "I take no comfort in the statistically minor variations in minority enrolment," he said.
The 6th Circuit majority had emerged with the opposite conclusion: "We are satisfied that the Law School’s ‘critical mass’ is not the equivalent of a quota, because unlike Davis’s reservations of sixteen spots for minority candidates, the Law School has no fixed goal or target."
Boggs not only differed in his dissent, but described the law school’s commitment to diversity as "the primary problem."
"Whether viewed as a percentage or as an absolute number, the consistence in the minority student enrollment demonstrates that the Law School has for all practical purposes set aside a certain number of seats for minority students. The ‘critical mass’ therefore appears to be a euphemism for the quota system that Bakke explicitly prohibits," he wrote.
As Grutter sought review from the U.S. Supreme Court, numerous groups and institutions, including the State of Alabama, filed amicus briefs urging the Court to take the case.
On Dec. 2, 2002, the U.S. Supreme Court granted certiorari in the case, the same day as it accepted Gratz v. Bollinger, which addressed affirmative action in admission to the University of Michigan’s undergraduate program.
"Our law school prepares a group of highly talented students for leadership in the modern legal profession," Michigan Law School Dean Lehman said in a speech the day the Court accepted the case.
"We care about both the quality of the students we admit to our school and the quality of the education we provide them. An important aspect of that education derives from vibrant and challenging interactions among students inside and outside the classroom. Thus, in deciding whether to admit an applicant to the law school, we consider all available evidence of analytic ability and work ethic, as well as what difference an applicant's presence in the class would likely make to the overall student experience."
After the Court announced it was taking the case, hundreds of groups coalesced to add their friend of the Court briefs to the pile. The most notable was that of the United States, which filed its brief supporting Grutter on Jan. 16, 2003. The day before, President George W. Bush addressed the Nation to direct attention to the government’s action.
"At their core, the Michigan policies amount to a quota system that unfairly rewards or penalizes perspective students, based solely on their race," Bush said.
"Our Constitution makes it clear that people of all races must be treated equally under the law," Bush said. "Yet we know that our society has not fully achieved that ideal. Racial prejudice is a reality in America. It hurts many of our citizens. As a nation, as a government, as individuals, we must be vigilant in responding to prejudice wherever we find it. Yet, as we work to address the wrong of racial prejudice, we must not use means that create another wrong, and thus perpetuate our divisions.
"America is a diverse country, racially, economically, and ethnically. And our institutions of higher education should reflect our diversity," Bush added. "A college education should teach respect and understanding and goodwill. And these values are strengthened when students live and learn with people from many backgrounds. Yet quota systems that use race to include or exclude people from higher education and the opportunities it offers are divisive, unfair and impossible to square with the Constitution."
High Court To Review Race-Based Admissions
Michigan Claims Set Stage for Fight Over College Access
By Charles Lane
Washington Post Staff Writer
Tuesday, December 3, 2002; Page A01
The Supreme Court announced yesterday that it would decide whether race-conscious university admissions procedures intended to promote racial and ethnic diversity illegally discriminate against white applicants -- setting the stage for a historic battle at the court over access to American higher education.
At issue are claims by prospective students who say they were rejected by the University of Michigan's undergraduate program and law school because they are white. The applicants say Michigan uses admissions criteria that systematically shut out whites in favor of African Americans and other minorities with the same or lower grades and test scores.
But Michigan says its admissions process considers each applicant as an individual, factoring in race only as part of an effort to ensure all students the benefits of learning in an ethnically diverse environment.
It is a rationale invoked by hundreds of other colleges and universities, many of which say that without affirmative action, they would go back to being nearly all-white.
A high-profile Supreme Court case over race-based admissions could rekindle the wider political debate over affirmative action, which became a "wedge issue," pushing many white voters from Democratic to Republican ranks in the 1980s and '90s before receding in recent years.
The case is potentially sensitive for the Bush administration, whose core conservative supporters oppose affirmative action, but whose outreach efforts have targeted Hispanics and other minority voters.
Noting that "race is among the factors considered by virtually every selective college and university," Michigan President Mary Sue Coleman said, "[t]here is no effective substitute for the consideration of race as one of many factors in our admissions process. Other methods do not allow us to recruit a diverse student body while maintaining our consistently high academic standards."
In choosing applicants for admission, the university relies in part on charts ranking them by grades and test scores -- but uses separate charts for white and minority students.
"No matter how the majority rules, the court now can't help but make a historic decision," said Terence J. Pell, chief executive of the Washington-based Center for Individual Rights, a public-interest group that represents the white students in the litigation. "The court is clearly serving notice to all interested parties that high noon is fast approaching."
The Michigan issues "represent the most significant civil rights cases the Supreme Court will have decided in the last quarter-century," said Theodore Shaw, associate director-counsel of the NAACP Legal Defense and Educational Fund, which represents minority students at Michigan.
Shaw unsuccessfully urged the court to consider whether the Michigan policy is lawful both for diversity reasons and as a remedy for the lingering effects of past racial discrimination.
Specifically, the court will consider whether Michigan is violating Title VI of the Civil Rights Act, which bars racial discrimination by federally funded institutions, or the clause of the Constitution's 14th Amendment that guarantees equal treatment for all citizens under state law -- or both. Arguments will be held in March, and decisions are expected by July.
At the heart of the university admissions issue is the court's splintered ruling in the 1978 case of Allen Bakke, a white applicant who was denied admission to medical school at the University of California at Davis, which reserved 16 percent of its spots for minorities.
Four justices -- two of whom, Chief Justice William H. Rehnquist and Justice John Paul Stevens, are still on the court -- ruled that the quota violated Title VI. Four others said that even quotas could be constitutional if imposed to help minorities overcome discrimination.
The ninth vote in the Bakke case came from the late Justice Lewis F. Powell Jr., who wrote his own opinion agreeing that quotas were impermissible, but saying that the use of race as a "plus factor" in the pursuit of diversity could be allowed.
Since then, educational institutions have said that a majority of the justices in the Bakke case approved of some use of race and have relied on the Powell opinion's reasoning in fashioning admissions programs that look at applicants' race as well as other factors, such as grades and extracurricular interests.
But opponents of affirmative action in university admissions say Powell's opinion did not establish the court's holding. They are confident of victory now partly because, since Bakke, the court has taken a dim view of race-based affirmative action in other contexts.
Indeed, under Supreme Court precedent, Michigan must convince the court that diversity is a "compelling" objective -- and that its use of race is carefully designed to meet it.
Rehnquist, Justices Antonin Scalia, Anthony M. Kennedy and Clarence Thomas are considered the court's strongest opponents of affirmative action. Stevens, who has grown more liberal in his years on the bench, and Justices David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer are likely to be most sympathetic to Michigan's case.
As is so often the case, legal analysts say the probable swing vote belongs to Justice Sandra Day O'Connor.
The Michigan case represents the culmination of a series of lawsuits by white applicants who challenged the "diversity rationale," saying that it produces de facto quotas.
At issue now are two such challenges. The first is by Jennifer Gratz and Patrick Hamacher, who were denied admission as undergraduates in 1995 and 1997, respectively. Their lawyers note that, according to the chart used by Michigan's admissions officers, African American and Latino students with Gratz's grades and SAT scores were guaranteed a place in the class, but two out of three similarly situated whites were excluded.
The second case, brought by Barbara Grutter against Michigan's law school, alleges that she was denied admission under a system that, in the name of ensuring a "critical mass" of minority enrollment, created a de facto minority quota.
One U.S. district judge in Michigan upheld the undergraduate program, and another struck down the law school program.
The cases were appealed to the Cincinnati-based U.S. Court of Appeals for the 6th Circuit. In May, that court, bitterly divided, ruled 5 to 4 that the law school program was constitutional based on Powell's opinion in the Bakke case. That ruling differed from rulings by appeals courts in New Orleans and Atlanta and coincided with one by a San Francisco-based appeals court.
As a result of this disagreement, lawyers from the Center for Individual Rights appealed the law school case to the Supreme Court. But because the 6th Circuit has still not issued a ruling on the undergraduate case, they also asked the justices to hear it under a special provision of Supreme Court rules.
Michigan objected to hearing either case but told the court that if it agreed to hear the law school case, it should hear the undergraduate case because they are so closely related.
The cases are Grutter v. Bollinger, No. 02-241, and Gratz v. Bollinger, No. 02-516.
© 2002 The Washington Post Company
O'Connor Questions Foes of U-Michigan
Justice Seen as Holding Likely Swing Vote as Court Weighs Affirmative Action Cases
By Charles Lane
Washington Post Staff Writer
Wednesday, April 2, 2003; Page A01
A key member of the Supreme Court aimed a series of skeptical questions at opponents of race-conscious university admissions as the court heard oral arguments yesterday in the most important civil rights cases of the past quarter-century.
Justice Sandra Day O'Connor, widely viewed as holding the likely swing vote on an otherwise evenly divided court, seemed to take issue with the idea that University of Michigan admissions criteria intended to boost minority enrollment were necessarily to blame for the rejection of Barbara Grutter and other white students.
"How are we certain," she asked their attorney, "that there is an injury to your client that she wouldn't have experienced for other reasons?"
O'Connor said that their insistence on absolute color-blindness in admissions might be too inflexible. "You're speaking in absolutes, and it isn't quite that," she said. "I think we have given recognition to the use of race in a variety of settings."
Her remarks were among the most intriguing in a debate whose drama was commensurate with cases that could determine the consideration of race not only in college admissions but possibly in other realms as well.
As affirmative action faced its most important legal test since 1978, several thousand supporters of the concept rallied outside the Supreme Court building while the justices heard arguments in the two cases. Shortly after the arguments were completed, the court took the unusual step of making an audiotape of the proceedings publicly available. The last time the justices did that was in 2000, for the cases related to that year's presidential election.
At a time when the country's attention is occupied by the war in Iraq, several justices even implied that the country's national security might be affected by the outcome of the cases.
Two different admissions policies at the University of Michigan are at issue in the two cases that were argued yesterday, Grutter v. Bollinger, No. 02-241, and Gratz v. Bollinger, No. 02-516.
Grutter is a challenge to the university's law school admissions program, which gives African American, Latino and Native American applicants a loosely defined special consideration to ensure that there is a "critical mass" of such students in each new class.
Gratz is a challenge to the university's undergraduate admissions policy, which tries to ensure a "critical mass" of African American, Latino and Native American enrollments by giving such applicants an automatic 20-point bonus on the school's 150-point "selection index."
The university argues that its programs, which are similar to admissions policies at many other selective institutions, are designed to create educationally beneficial "diversity" in its student population. It says that this rationale was endorsed by the Supreme Court in the 1978 Bakke case.
In that case, the court ruled that universities could not set fixed numerical quotas for minority admissions as a remedy for past discrimination, but a separate opinion by Justice Lewis F. Powell Jr. left open the possibility that the schools could use race to achieve diversity in the hope of providing a better learning environment for all races, and universities have treated it as a binding precedent ever since.
Opponents of affirmative action contend that that position is far too vague and open-ended a notion to justify the violation of whites' clear constitutional right to equal treatment under the law. Admissions policies such as Michigan's are the practical equivalent of quotas, they argue.
Recent Supreme Court precedents have endorsed the notion that there is no constitutional distinction between racial discrimination intended to harm blacks and other minorities and programs intended to help them. Any racial classification, the court has held, must be carefully crafted to achieve a "compelling" government purpose, with the least possible harm to others' rights.
The Bush administration has attacked Michigan's programs on this "narrow tailoring" basis, arguing in a brief to the court that state universities must attempt race-neutral methods of ensuring diversity.
But until now, the court has not squarely revisited the issue of college and professional school admissions since Bakke.
The cases will affect affirmative action not only at state universities such as Michigan's but also private universities, since federal law forbids racial discrimination by institutions that receive federal funding, as most universities do.
National security considerations unexpectedly entered the debate yesterday when Justices Ruth Bader Ginsburg and John Paul Stevens, both clearly sympathetic to the Michigan program, pressed President Bush's solicitor general, Theodore B. Olson, to present his view on similar programs at the nation's military academies.
In a friend-of-the-court brief, retired Gen. H. Norman Schwarzkopf and other former top-ranking members of the armed forces argued that the fighting capability of the multiethnic U.S. military depends on minority officers produced through affirmative action at the service academies. Unstated, but obvious, was the broader context: the current battle for a Muslim country's liberation being waged by multiethnic U.S. Army and Marine platoons.
Speaking for an administration that both opposes the Michigan program and operates the service academies, Olson said that all institutions should seek race-neutral means to ensure diversity, playing down the officers' brief as "the opinion of certain individuals."
Ginsburg did not seem satisfied, noting that, by Olson's logic, the service academies' policies would be "illegal."
The opponents of affirmative action in the court scored points of their own.
Justice Antonin Scalia led Maureen Mahoney, a lawyer for the university, through an extended interrogation intended to show that the law school's "critical mass" policy -- which has produced minority enrollments ranging from 12 percent to 17 percent of the school's entering classes -- was just a euphemism for a quota. As Scalia put it, "once you use the terms 'critical mass,' you're in Quota Land."
"Your honor, what a quota is, under this court's cases, is a fixed number," Mahoney replied. "And there is no fixed number here."
That discussion gave way to what seemed to be O'Connor's most significant expression of concern about the Michigan policies. She noted that all previous affirmative action programs that the court has upheld were for a "fixed time period . . . you could see an end to it." In contrast, she said, Michigan seems to be advocating something open-ended.
"I don't think the court should conclude this is permanent," Mahoney answered, noting that educational institutions could conclude that there is no longer a need to use race-conscious admissions when minorities catch up with whites in grades and test scores, or when "we reach a point in society where the experience of being a minority no longer makes such a fundamental difference in their lives."
Perhaps sensing an opportunity to reinforce O'Connor's doubts, Scalia raised the same point later with John Payton, another lawyer for Michigan.
"When does all of this come to an end?" Scalia asked simply.
Payton acknowledged that "it was a surprise" that the gap between white and minority achievement has persisted so long after Bakke, creating what universities still consider a need for affirmative action 25 years later, but he added: "We're confident this is going to last for a finite period of time."
Payton, who is African American, spoke with evident emotion toward the end of his argument as he told the justices that diversity is crucial to ensure that students who would otherwise grow up in segregated surroundings can overcome stereotypes and "be able to do things together."
But Payton's effort was somewhat undercut by the court's only African American member, Clarence Thomas. Thomas asked Payton whether his view that diversity is crucial to a good education doesn't weaken the case for historically black colleges.
"Would the same arguments apply to them?" Thomas asked.
Payton said such institutions "do have diverse student bodies."
Decisions in the cases are expected by July.
© 2003 The Washington Post Company
Affirmative Action's Confusing Curriculum
Ruling Against University of Georgia's System Is Latest in Series of Conflicting Court Decisions
By Edward Walsh
Washington Post Staff Writer
Tuesday, September 4, 2001; Page A02
In the mid-1990s, officials at the University of Georgia thought they had devised a system to achieve two important goals: creating a more racially diverse student body at the state's major public university while remaining within the confines of the increasingly confusing legal guidelines governing affirmative action programs.
The key to the Georgia system was called the Total Student Index (TSI). Under it, students who were not automatically admitted on the basis of high school grades and standardized test scores, but who were close to qualifying, were assigned numerical scores based on about a dozen factors, such as whether they would be the first in their family to attend college. A high TSI score was often enough to pull the student into the incoming freshman class.
Race was only one of the TSI factors, but it carried the most weight, giving all nonwhite applicants a significant boost. But university officials reasoned that they were safely within the law because, in 1978, the swing vote on a divided Supreme Court said that attaining a diverse student body was a constitutionally permissible goal for colleges and universities, and that "ethnic diversity" was one element that school administrators could consider in pursuing that goal.
Last week, a three-judge federal appeals court panel in Atlanta told the University of Georgia officials that they were wrong.
The ruling by the 11th U.S. Circuit Court of Appeals panel was the latest in a series of court decisions that have further muddled the issue of affirmative action in higher education. Two other federal appeals courts have addressed the question in recent years and they reached opposite conclusions, one upholding the use of race as a factor in admissions and the other rejecting it. The Supreme Court refused to review either decision.
Meanwhile, two federal district court judges have separately upheld the undergraduate admissions policy at the University of Michigan and struck down the law school admissions policy at the same school. Those rulings have been appealed and could eventually reach the Supreme Court.
Amid these confusing signals, colleges and universities have been reevaluating their admissions policies with an eye on the courts, said Sheldon E. Steinbach, general counsel of the American Council on Education.
"It does encompass some degree of gazing into a crystal ball," he said. "It is not clear what is clearly permissible. I think almost every major state system has gone through it to make sure they are not totally out of compliance."
Experts in higher education said variations of the University of Georgia admissions system are widely used at large, public universities across the country. One reason is that, unlike elite private universities, these public institutions lack the resources to review every student application individually. Instead, applicants are assigned numerical scores based on their grades, test scores and other factors, which often include race, to determine who qualifies for admission.
Barmak Nassirian, associate executive director of the American Association of Collegiate Registrars and Admissions Officers, said the big state schools have little choice. "You could keep the entire faculty reading applications all year and not get through them," he said.
The University of Georgia, which gets about 14,000 applications a year, made that argument before the appeals court. But writing for the unanimous three-judge panel, Judge Stanley Marcus said: "The rejoinder to this is obvious: If UGA wants to ensure diversity through its admissions decisions, and wants race to be part of that calculus, then it must be prepared to shoulder the burden of fully and fairly analyzing applicants as individuals and not merely as members of groups."
Marcus and the other judges ruled that the TSI system was a "rigid, mechanical approach" that did not meet the constitutional standard that any race-conscious policy must be "narrowly tailored" to achieve a permissible goal.
The Georgia ruling, as have some of the earlier federal court decisions, also called into question a central tenet of higher education affirmative action programs: whether attaining a diverse student body is a "compelling" state interest that would justify a race-conscious admissions policy. Higher education officials argue that it is.
"The debate has gotten so technical and high-stakes that what is getting lost is the concept of the education goals of the institutions," Nassirian said. "There really is an educational dimension to the basic task of putting [an incoming] class together that does involve some measure of diversity. You cannot have a major research institution of a state with a class that does not reflect the society around it."
The appeals court panel did not reject this argument but said that it remains an open question. The root of this legal dispute, the panel said, lies in the nature of the Supreme Court's 1978 Bakke decision, the case that is the foundation for higher education affirmative action programs.
In that decision, a five-justice majority struck down the use of a separate admissions system for minority applicants at the University of California at Davis medical school. But a different five-justice majority also reversed a California Supreme Court ruling that prohibited any consideration of race in admissions.
The late Justice Lewis F. Powell Jr. was the key vote in both majorities, and it is his opinion, saying that universities could consider race as one factor in seeking the "compelling" goal of a diverse student body, that the University of Georgia and others have relied on in devising affirmative action programs.
But the appeals court panel noted that no other justice joined in Powell's opinion. "We think it important to underscore that the constitutional viability of student body diversity as a compelling interest is an open question, and ultimately is one that, because of its great importance, warrants consideration by the Supreme Court," the panel said.
Legal and higher education experts agree that eventually the Supreme Court will have to revisit the issue to sort out the growing confusion over the meaning of the Bakke decision.
"Bakke is so controversial because it's very hard to tell how many justices were agreeing with Powell," said Ann D. Springer, associate counsel of the American Association of University Professors. "There is increasing disagreement over what it meant."
© 2001 The Washington Post Company
Universities Alter Recruiting
Race-Neutral Admission Tactics Found to Boost Diversity
By Michael A. Fletcher
Washington Post Staff Writer
Tuesday, December 3, 2002; Page A10
Immediately after a federal appeals court outlawed the University of Georgia's race-conscious affirmative action program last year, the school initiated a stepped-up plan for recruiting minority students.
The university opened two recruitment offices in heavily minority areas of the state. It brought groups of minority students and their parents in for campus visits. And it developed mailings directed at high-achieving minority high school students.
The effort paid off: 13 percent of this year's 4,300 freshmen were minorities, a slight increase over last year's total, when a race-conscious affirmative action program was still in effect.
The Georgia plan is among several alternatives for attracting minority students that colleges and universities have initiated amid the legal uncertainty surrounding affirmative action programs.
So far, the university recruitment strategies seem to be working. In 1999, minorities accounted for 28 percent of the nation's higher education enrollment, a substantial increase over 1990, when minorities made up 20 percent of the nation's higher education population. Similarly, the number of bachelor's degrees awarded to minorities more than doubled in the 1990s, according to the American Council on Education.
Many higher education officials expect that the U.S. Supreme Court, which decided yesterday to review the constitutionality of the University of Michigan's race-conscious admissions policy, will clarify the law when it rules next year.
In recent years, admissions policies that consider race as a factor in enrolling students have been outlawed in seven states -- Washington, California, Texas, Louisiana, Mississippi, Georgia and Florida -- leaving the nation with a patchwork quilt of practices regarding affirmative action in higher education.
"Right now, what we have is confusion," said Patricia Mendoza, a lawyer with the Mexican American Legal Defense and Educational Fund. "We have some jurisdictions where affirmative action has been outlawed, and others where it remains legal. In still other places, other measures have been implemented in an attempt to soften the impact of outlawing affirmative action on minorities."
As courts around the country have handed down conflicting opinions, most schools have continued with their race-conscious affirmative action programs. The legal guide for most of those programs is the 1978 ruling by a divided U.S. Supreme Court in the University of California Regents v. Bakke. That decision is widely interpreted by universities as allowing schools to consider an applicant's race as one of many factors in making an admissions decision.
In places where affirmative action has been struck down, universities are often pursuing strategies to bolster minority enrollment without explicitly choosing students because of their race. Instead, schools extend their outreach efforts or guarantee admission to students who graduate in the top tiers of their high school classes.
"Universities have begun to look into creative means, without using race as a specific criterion, to continue to seek a diverse student body," said Sheldon Steinbach, general counsel of the American Council on Education.
In Texas, for example, students are guaranteed a spot in the public university of their choice so long as they graduate in the top 10 percent of their high school class. California guarantees admission to students who graduate in the top 4 percent, while any Florida student who graduates in the top 20 percent of his class is guaranteed a seat at a public university.
These programs generally have proven successful in attracting students to undergraduate programs from the many schools that are predominantly black or Latino. After an initial decline in black and Hispanic enrollment, it rebounded at public universities in those states.
"The overall picture is that a number of race-neutral policies do work," said Curt Levey, director of legal and public affairs for the Center for Individual Rights, a public-interest law firm that has challenged affirmative action programs across the country. "The great irony is that it takes lawsuits or similar actions to get schools to do what they should have been doing all along."
Affirmative action proponents, however, say those policies are inadequate and do nothing to address diversity in graduate and professional schools. "There is no substitute for consciously and deliberately doing what you set out to do," said Theodore M. Shaw, associate director-counsel for the NAACP Legal Defense and Educational Fund.
Also, they said, many people do not realize that colleges routinely consider far more than standardized test scores and grades when admitting students. A student's special talents, where they live or whether their parents are alumni of a school can often have a bearing on admissions decisions.
If people knew that, they said, they would be less resentful of race-based admissions policies.
"On the face of it, it seems like only blacks and Latinos benefit from college admissions policies," said Godfrey J. Dillard, a lawyer representing a group of high school students and others who intervened in the University of Michigan case. "But, actually, many whites benefit from college admissions schemes."
© 2002 The Washington Post Company
More Minorities Enter University Of California
Saturday, April 6, 2002; Page A07
SAN DIEGO, April 5 -- For the first time since it abolished affirmative action, the University of California system has admitted more minority students than it did during the last days of its race-based admissions policies.
Of the 48,369 students admitted to this fall's freshman class, 19.1 percent were from Hispanic, black or American Indian backgrounds. That is up from 18.8 percent in 1997, the last year the public university system used race as a factor in admission.
The University of California at San Diego saw the greatest leap in admissions of minority students, from 11.5 percent last year to 14.4 percent in 2002.
Critics of affirmative action embraced the figures as proof that race has no place in the admissions process.
"I don't mean to gloat, but I told you so," said Ward Connerly, a UC regent, who is black. "We've been saying for a long time that these kids don't need any special treatment to get into the UC system."
Others said the historical disadvantages that minorities experience need to be weighed.
"Minority students are more likely to have parents who suffered housing and education discrimination and are at a disadvantage," said Delaine Eastin, the California superintendent of public instruction. "Today we're still at a place where we can document discrimination. I still think it's a relevant factor to consider."
Despite the gains for the system as a whole, the number of minority students admitted to UC's most competitive campuses has not rebounded to the same extent.
At UCLA, for example, there are more black and Hispanic students in the freshman class than last year, but its total number of minority admissions, 1,675, is below the 2,010 the campus accepted in 1997.
UC-Berkeley and UC-Irvine also have not returned to levels before the ban.
© 2002 The Washington Post Company
Texas Colleges' Diversity Plan May Be New Model
By Lee Hockstader
Washington Post Staff Writer
Monday, November 4, 2002; Page A01
AUSTIN -- Jazmin Padron arrived in Texas three years ago, a bright-eyed Mexican teenager with little English and no thought of attending college. A top high school student, she's now all but assured admission to the University of Texas at Austin.
Davin Hunt always assumed he'd go to college, and no wonder -- his parents and 20 of his cousins attended UT-Austin, and virtually all the students at his rich, almost uniformly white high school near Dallas go on to higher education, many of them to top colleges. But Hunt, whose grades don't quite make the top 10 percent of his class, may not be joining the family's Longhorn tradition.
Beyond their Texas residency and sunny dispositions, Padron and Hunt have little in common. But both are busy adapting their calculations about the future to accommodate a five-year-old state law under which the top 10 percent of every high school's graduating seniors are automatically eligible for admission to public universities in Texas.
Now, as the U.S. Supreme Court weighs whether to rule on the constitutionality of affirmative action in college admissions, Texas's law is being scrutinized as a model that could replace the explicitly race-based admissions criteria that have been a feature of public education for decades. Following the Texas law, which first applied to high school seniors graduating in 1998, Florida and California adopted percentage plans for admission to state-funded colleges, and other states are watching Texas's experience closely.
It came after a federal appeals court in 1996 threw out the University of Texas Law School's affirmative action program, saying admission officers could no longer consider race when picking students. African American and Hispanic student enrollments plummeted.
State lawmakers swiftly enacted the 10 percent law, intending to ensure continued diversity at public universities without inviting further constitutional challenges. As long as neighborhoods and the state's 1,800 or so high schools remained largely segregated by race, significant numbers of African American and Hispanic students would be guaranteed places at public universities. Conservatives who never liked explicitly race-based admissions criteria found little to object to in the meritocratic gloss of the new law.
To university officials, who openly regret the death of affirmative action, the 10 percent law is a way to achieve its goals without adopting the means -- "You're doing it without doing it," said Mark Yudof, chancellor of the University of Texas's 180,000-student system. "It's a benign effort to achieve a certain sort of social justice. . . . We don't want a permanent underclass in America."
For Padron, the Mexican immigrant who is now a senior at a middle-class high school in Austin, the 10 percent rule has removed most of the anxiety associated with college applications. A top student and promising dancer, she found out a few weeks ago that she was guaranteed admission to any state-funded university she liked, including the flagship campus of UT-Austin. "I couldn't believe it," she said, grinning. She plans to go, and would be the first in her family to attend college.
For Hunt, a senior at the ultra-competitive Highland Park High School in suburban Dallas, the Texas law has clouded his prospects. Although he is a good student, active in student government and sports, his grades are not in the very top tier. That may have harmed his chances at getting into his first choice, UT-Austin's business program, which is largely filled with top 10 percenters -- some of them students with lower SAT scores from less competitive schools. Although his overall strong record may yet win him a spot in some other program at UT-Austin, he's thinking about leaving the state for college.
He said he didn't begrudge minority students such as Padron their guaranteed admission to state-funded universities, even though he faces much tougher academic challenges and may score far higher on standardized tests such as the SAT. Many minority high-achievers are "doing it on their own, independently," he said. The 10 percent law is "still fair, though it's reverse discrimination. So it's a kind of oxymoron."
At Highland Park, considered among the best, richest and most competitive public high schools in the nation, the 10 percent law has intensified what students and faculty describe as an already unhealthy tendency toward grade-grubbing, cheating, standardized-test coaching and choosing classes known for dispensing easy A's. Choir has become an inordinately popular course selection.
"Everything is just GPA, GPA, GPA," said Natalie Fogiel, a Highland Park senior just outside the top 10 percent of her class. "The focus is on grades rather than experience."
The law's effect on the student body makeup at UT-Austin has been subtle. Overall, the proportion of top 10 percent students in the freshman class has edged up to 53 percent in the current first-year class, from 46 percent in 1997, just before the law took effect.
After the initial, sharp drop in minority enrollment following the appeals court's decision, the 10 percent law has helped the numbers of African American and Hispanic freshmen recover approximately to their previous levels. More than 14 percent of this year's entering class is Hispanic; about 3.5 percent is black.
Still, those numbers fall well short of the overall minority population in Texas, which is about 30 percent Hispanic and 12 percent black. The primary beneficiary of the new rule has been Asian Americans, who are enrolling at UT-Austin and other state-supported schools at levels disproportionate to their numbers in the state. Of this year's freshman class at UT-Austin, nearly 15 percent are Asian Americans, although they constitute scarcely 2.7 percent of the state's population.
University officials acknowledge they have failed to attract anything approaching representative numbers of blacks and other groups that have traditionally not produced college-bound students. About 700 high schools across the state, many of them predominantly minority, are still not sending any graduating seniors to UT-Austin. And many black graduates, including those at the top of their class and automatically eligible for admission, don't even apply to state-funded universities in Texas.
At L.G. Pinkston High School in Dallas, split almost evenly between African Americans and Hispanics, nearly a third of the graduates go on to college, but very few of the blacks go to state-supported colleges and virtually none go to the best of them, UT-Austin. The principal, J. Leonard Wright, has nudged the best students toward higher education by introducing advanced placement classes and free college test preparation courses. But he said he urges the cream of the crop to go to traditionally black colleges, where he believes they will feel more comfortable than at the predominantly white University of Texas.
Undric Hamilton, a black senior at Pinkston near the top of his class, picked up on that theme. He plans to go to college, but not UT. Black students "feel more comfortable" at traditionally black schools, he said. "I'd rather be a name than a number."
"We haven't solved that," said Bruce Walker, admissions director for UT-Austin, which received about 22,000 applications last year for its freshman class of nearly 8,000.
He said one group excluded in many instances by the law is blacks from
middle-class and suburban high schools ranked just below the highest 10 percent
of their class. Before the federal appellate court decision, the university's
affirmative action policy allowed for those students to be admitted. Now,
In some cases, top minority students never consider going to college. In other cases, tuition and fees -- even the $40 application fee -- are just too high. To sweep in promising minority students, the university has taken steps that seem a lot like affirmative action, albeit under a different name. The full scholarship Longhorn Scholars program targets 70 low-income high schools whose graduates have not attended UT-Austin in the past; about 85 percent of the Longhorn Scholars are black or Hispanic.
All 300 Longhorn Scholars in this year's freshman class are top 10 percenters, but their average combined SAT scores are around 900, about 200 points below the average of other freshmen. Yet with extensive help from the university -- special counseling and mentoring programs, classes with top professors, interdisciplinary courses -- Longhorn students are performing as well as and in many cases better than their classmates.
"These kids are in very rough classes, but they're getting lots of guidance and support," said Lucia Gilbert, vice provost in charge of the program.
Other university officials have pronounced themselves more or less satisfied with the new system, while continuing to rue the passing of affirmative action. "There's no perfect admissions system," said Yudof, the chancellor. "But 10 percent is pretty good."
© 2002 The Washington Post Company
by Borgna Brunner
November 9, 2006
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