Diversity or Division

RALEIGH — In June 2003, the Supreme Court heard two cases concerning racial preferences in Michigan higher education, Gratz v. Bollinger (on preferences used by the University of Michigan) and Grutter v. Bollinger (on preferences used by its Law School). The Court ruling against outright racial preferences in admissions while ruling in favor of considering race in admissions so long as it is used as only one of “pertinent elements of diversity.”

But the Court appeared to suggest that the constitutionality of considering race in admissions will sunset after a quarter century passed. The majority opinion held that, “We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.”

Given the Court’s failure to clarify the constitutionality of racial preferences, the issue continues to roil nationwide. For example, the University of Georgia, which currently has a race-neutral admissions process in accordance with an appeals court ruling, is now considering returning to racial preferences.

Since Fall 2002, the University of Georgia has not used race and other nonacademic factors in its admissions process. The other factors are place of residence, socioeconomic status, and legacy status (whether an applicant’s relative attended Georgia). At present, applications at UGA are weighed according to high-school grades in 16 core courses and standardized-test scores, with grades being given twice the weight of scores. Specially skilled applicants with aptitudes in such areas as art, music, computing, and athletics receive exceptions.

The university dropped use of those factors after the U.S. Court of Appeals for the 11th Circuit issued a ruling that struck down the university’s use of race as one of the factors it considered in deciding among applicants. UGA officials put efforts instead in recruiting minority students.

The Court’s ruling in Grutter, however, renewed interest in Georgia in returning to the use of race in the admissions process. Officials formed a Freshman Admissions Task Force to investigate the proposal. Recently, however, task force members had to announce that they could not solidify a plan to return to race-conscious admissions in time for the Fall 2005 semester. Task force chairman David Roberts, UGA history professor, told the Associated Press that while “we’d all like to see this done this year,” there was “no point in doing something that won’t hold up in court.”

In Michigan, lawyers filed a class-action lawsuit on behalf of thousands of white and Asian applicants who had been rejected by the University of Michigan while it was using the race-preference system that the Court struck down.

Also, on January 6, the Michigan Civil Rights Initiative announced that the MCRI had finished collecting signatures to place an amendment before voters that would end race and gender preferences in public institutions in Michigan. The MCRI announced that it had collected 508,202 signatures, well more than the required number of 317,757.

The American Association of Law Schools hotly debated race preferences at its winter meeting when a professor presented a study finding that preferences in law schools harmed black students. University of California at Los Angeles law professor Richard H. Sander opened a raucous debate when he presented his research, which was published in January in the Stanford Law Review. Sander found that race preferences brought in black students into schools in which they were more likely than their peers to struggle academically, causing them to drop out at higher rates or graduate with less hopes of passing the bar exam. Sander’s presentation attracted so much attention that a larger room had to be found to hold the crowd.

The Education Dept.’s Office of Civil Rights is involved in preference-related complaints in several states, including North Carolina. The OCR recently negotiated a settlement with Wisconsin officials to open a state scholarship program to all students, as opposed to only minority students. The OCR had investigated the program following a complaint about discrimination in the program filed in 2001. Because the scholarship program excluded certain applicants according to race, it appeared to Wisconsin Dept. of Public Instruction lawyers to violate part of the Court’s ruling in the Michigan cases, and Wisconsin chose to negotiate a settlement with the OCR rather than fight the complaint.

The Chronicle of Higher Education reported that the OCR also has opened an investigation into allegations that the University of Virginia discriminates against white applicants in admissions. Similar complaints have been lodged with the OCR against Virginia’s law school, the law school of the College of William and Mary, the University of Maryland’s School of Medicine, and North Carolina State University.

Jon Sanders is a policy analyst for the John W. Pope Center for Higher Education Policy in Raleigh.