It's The LAW

Matrix: The Magazine for Leaders in Education, Oct, 2000 by Jennifer C. Patterson

Few topics engender more discussion or hotter debate in higher education than the use of affirmative action in admissions and hiring. Even the U.S. Supreme Court has historically been divided on the legality and proper use of affirmative--action plans, leaving colleges and universities to navigate these choppy waters with little certainty about how to avoid the potential legal problems.

From Admissions Policies To Funding, Changing Government Regulations and Legal Rulings Shape College Management

Other laws and regulations, such as The Americans with Disabilities Act and Title IX, also add to the complexity of the daily operation of college or university. And considering that regulations affecting colleges and universities are malleable--shaped by each new legislative session and each new court case, understanding the basics can go a long way toward making a campus operate more smoothly.

AFFIRMATIVE ACTION

The debate over affirmative action arises out of the equal protection clause of the U.S. Constitution. Douglas Kmiec, professor of law at the University of Notre Dame in South Bend, Ind., has studied these issues extensively.

"The command of equal protection means a government entity can't use race or gender as a basis for decision-making," he said. Clearly, this prohibits decisions that disfavor a given group. Questions arise, however, regarding programs designed to favor a particular group.

The legal debate began with the seminal Regents of the University of California v. Bakke case, in which a white student who was denied admission to the medical school at the University of California at Davis challenged the school's practice of setting aside a specific number of spots for minority candidates. The court ruled that Bakke had indeed been discriminated against, striking a blow to the school's allotment of set-asides.

However, the court was divided, and Justice Lewis Powell Jr., wrote an opinion that would cause ripples throughout higher education. Powell said that "race and gender could be a factor, but not dispositive. Most people still think this is pretty much the law," Kmiec said. However, he explained that "Bakke has never been overruled but has been eclipsed by decisions in non-university contexts."

Subsequent cases involving the awarding of contracts have struck down set-asides and established a two-part test by which affirmative-action plans are now judged. In order to institute an affirmative-action plan, institutions "must show prior discrimination in the program ... and the efforts must be narrowly constructed to remedy it," Kmiec said.

Twenty years of debate came to a head in 1996, when Hopwood v. Texas was considered by the 5th Circuit Court. By applying the two-part test to the racial and ethnic affirmative-action plan at the University of Texas School of Law in Austin, the court determined that diversity does not meet the standard of remediation, and the practice was struck down.

So, colleges that want to use some form of affirmative action in their practices are caught in a morass of legal and societal proscriptions. "The safest path is to be undiscriminatory," said Kmiec, but he noted that some institutions will want to take demographic background into account at some times. Therefore, there are other ways that this goal can be accomplished.

One such approach is being used in California. In the wake of Proposition 209, which bars the use of race in decision-making, some schools are using economic disadvantage as a way to add diversity to a program or entering class. This refocusing tends to increase diversity while remaining well within the bounds of current law.

For those Kmiec would call "more adventuresome," an attempt to satisfy the two-part test by providing a recital of prior discrimination could be successful. However, schools are understandably reluctant to admit that they have employed discriminatory practices, even in the past. And, Kmiec points out that "the court has never accepted prior societal discrimination" as a justification for affirmative-action programs.

The most aggressive stance would be to "take Justice Stephens at his word," Kmiec said, referring to John Paul Stephens' comment that the issue of using diversity as a goal of affirmative action is unresolved, and therefore not necessarily prohibited. However, Kmiec predicted that any such program that faced a challenge in front of the current Supreme Court would likely be struck down 5-4.

In the end, the most successful programs to increase diversity are those that are clear about their true goals and their commitment to the community with which they work. Kmiec cites a program from the University of Southern California through which the university is heavily involved in local magnet schools that serve a diverse population. The university demonstrates a commitment to the community, forms good relationships, and eventually enrolls a more diverse population.

THE AMERICANS WITH DISABILITIES ACT

The Americans with Disabilities Act of 1990 was adopted to protect all persons with disabilities in the United States. In many ways, the passage of the ADA changed very little for colleges and universities, which were already bound by the provisions of Section 504 of the Rehabilitation Act of 1973. For the purposes of the ADA, a "person with a disability" is defined as anyone with a physical or mental impairment that substantially limits one or more life activities.