"Our policy is fully constitutional," echoed Lee Bollinger, president of the University of Michigan, whose law school is fighting a similar lawsuit charging it with discriminating against whites. "This is not the moment to back away."
In other words, buzz off.
That's right, courts and universities are at each other's throats, and once again the issue is race. If you are old enough to remember black-and-white TV, you saw the footage the last go-round: federal judges ordering all-white universities in the South to open their doors to blacks. But in the new millennium, the sides have flipped. Now the schools are the ones trying to usher in minority students with broad affirmative-action policies. And the courts--and, in California, voters and the regents--have been striking down those policies.
Each side in this legal tug-of-war is fighting for a deeply held principle. Backers of the recent rulings say the courts are ushering in a laudable "post-affirmative action" era--when people will be judged as individuals, not as members of groups. But opponents argue--as did many reparations advocates at the U.N. racism conference in South Africa last week--that the slave trade's effects have not yet been erased, and it is far too soon to consider dismantling programs designed to increase minorities' access to higher education.
What has academic administrators around the country so worried is that they know rulings like the UGA decision could dramatically change the racial makeup of their campuses. The Berkeley campus of the University of California saw this firsthand when it was forced by California's Proposition 209 to switch to race-blind admissions. Underrepresented minorities in the student body dropped sharply, from 25% to 11%. At the University of Texas School of Law, the number of black first-years fell to just four the year after the school was ordered to adopt race-blind admissions--from 38 the year before.
Universities are not openly defying the courts. In states where they have been ordered--as UGA was--to stop using formulas that give extra points to minority applicants, they have complied. But what they can do--and have done--is fight back with a range of new programs and policies designed to maintain minority enrollment while carefully walking the new legal lines set by the courts. No school has worked harder to do this than U.T.'s law school, which in 1996 was hit by a suit, Hopwood v. Texas; the ruling in that case removed race as a consideration in admissions.
The law school has since enlisted high-profile alumni such as Dallas mayor Ron Kirk and Texas secretary of state Henry Cuellar to write to minority applicants to encourage them to come. A Texas state senator talked airlines into donating tickets so out-of-state blacks can visit the campus. And although the school itself is prohibited from offering race-based scholarships, U.T. alumni have stepped in to help. Last year U.T.'s alumni association, the Texas Exes, gave nearly $400,000 in aid to 31 Hispanics, 28 blacks and one Native American. The payoff: black enrollment is up--to 16 this fall from the low of four the year after Hopwood.
The state of Texas responded to Hopwood with the now famous "top 10%" law that guarantees a place in the state university system to any student who graduates in the top 10% of his or her class. Because many Texas high schools are not well integrated, the top 10% in some schools is almost all minorities. U.T. officials have boosted the program's impact by offering scholarships to top percenters at 70 high schools in Dallas, Houston, San Antonio and other underrepresented--and heavily black and Latino--areas. Minority enrollment in the U.T. undergraduate program is actually higher today than before Hopwood rewrote the rules.
California's public colleges and universities have also been scrambling to blunt the impact of Proposition 209, passed in that state the same year as the Hopwood decision. In the wake of that new law, black enrollment plunged 17% systemwide in 1998 and more than 50% at the most selective campuses. But since then, minority enrollment has been on the upswing. Part of the reason: the 4% plan, California's version of Texas' 10% plan.
California's efforts to mitigate Proposition 209's impact may soon go even further. The state university system grabbed headlines recently by floating the idea of scrapping the SAT. But there is now a quieter proposal before the university's academic senate to take fewer students based solely on academic criteria such as grades and standardized tests (now 50% to 75% of the total) and more on a "holistic" assessment. The initiative's backers say the looser rules could help increase enrollment of underrepresented minorities who, as a group, fare less well on exams like the SAT. (U.C. officials deny that any of their actions are an attempt to do an end run around Proposition 209.)