Truth and consequences: in the Michigan aftermath, the real fight begins as local institutions work to apply the Supreme Court ruling to meet their campuses' individual needs and/or restrictions - Special reports: focus on diversity

Black Issues in Higher Education, Sept 25, 2003 by Kendra Hamilton

Months prior to the U.S. Supreme Court decision in the University of Michigan affirmative action cases, anti-affirmative action forces had begun contesting scholarship programs, "transitional" programs, and various "early identification" research, mentoring and tutorial programs aimed at minorities. Despite race-conscious admissions being upheld in the Michigan law school decision, the assault on race-conscious programs has continued unabated, portending anything but a long struggle 'ahead for the inclusion of underrepresented minorities in the nation's most competitive four-year colleges and universities.

The Center for Equal Opportunity (CEO), based in Sterling, Va., which bills itself as "the only think tank devoted exclusively to the promotion of colorblind equal opportunity and racial harmony," has emerged as the pre-eminent combatant against race-conscious outreach and admissions policies in the post Michigan era.

"We've sent out letters to a substantial list of colleges and universities challenging them on the programs we consider to be in flagrant violation of the Supreme Court's decisions," says Linda Chavez, president of the CEO and former director of the U.S. Civil Rights Commission. Indeed, the number, according to CEO general counsel Roger Clegg is up to around 35.

"We maintain that nothing in those decisions suggests that the Constitution permits segregated programs, programs that exclude people on the basis of race," Chavez adds.

Meanwhile, Rice University president Dr. Malcolm Gillis stirred outrage--and prompted a complaint to the U.S. Department of Education's Office for Civil Rights by the CEO--after he told the Houston Chronicle on Aug. 19 "to the extent the (University of Michigan) decision allows us to go back to considering race as one factor in admissions, we will be doing exactly that."

While the CEO has been accused of jumping the gun--Rice general counsel Richard Zansitis responded that he believed it was "premature for the center to be criticizing us for something we haven't done yet"--its action signals the seriousness with which conservative activist groups like the CEO, Ward Connerly's Sacramento-based American Civil Rights Institute and the D.C.-based Center for Individual Rights regard these matters in this post-Michigan environment.

Yes, the U.S. Supreme Court has spoken--though hardly with a untied voice, observers on both sides of the debate note. Yes, the majority opinion upheld Justice Lewis Powell's doctrine, that diversity was a "compelling" state interest for institutions of higher education. Yes, that decision may even, as some in Texas are arguing, have invalidated the 1996 Hopwood decision, which denied the Powell doctrine in outlawing 'all forms of race preference with the 5th Circuit's purview.

But, cautions Beverly Ledbetter, vice president and general counsel for Brown University, "Many people (who) are seeing Grutter as a win for affirmative action ... have not paid as much attention to the terms and conditions under which one may sustain a program."

The most important of those terms and conditions, Ledbetter explains, is the "narrowly tailoring" requirement. That is to say, institutions must have explored, though not necessarily exhausted, race-neutral alternatives in crafting their programs; when race is considered, it must be done as part of a "holistic," individualized review of the applicant pool; the programs must achieve the desired level of diversity while doing the least amount of harm possible to the non-targeted population; and they must be limited in time.

Ledbetter stuns matters up succinctly: "Both parties won, and both had sobering moments" when the high court ruled in the Grutter and Gratz cases. Every institution must now make a critical, individually tailored examination of their programs, she explains.

THE PHASE OUT

The Center for Equal Opportunity's letters, the first of which went out to specific schools three months before the high court ruled on the University of Michigan's law school and undergraduate admissions policies--landed with a mighty splash in the quiet backwater that these relatively low-profile minority outreach programs inhabit. And the ripples are still being felt.

After initially protesting that their programs were in compliance with the law, both Princeton and the Massachusetts Institute of Technology either phased programs out or opened them up to all students (see Black Issues, March 13). Iowa State University and the University of Delaware quickly followed suit, as did the University of Virginia, though first specifying the action came not as a result of the CEO's letter but in response to an internal review.

At Virginia Polytechnic Institute and State University, the board of visitors, acting with the blessing of a Republican state attorney general, passed a resolution ending consideration of race and gender in admissions, hiring and financial aid. In April, alter protests from faculty, students, alumni and the Democratic Virginia governor, the board rescinded the resolution, announcing instead that the university was forming a committee to study its programs and create race-neutral alternatives where needed (see Black Issues, April 10). The CEO responded by filing a complaint with the U.S. Department of Education's Office for Civil Rights.