The battle for affirmative action: as higher education awaits a Supreme Court ruling, the debate over racial diversity rages on. (Cover Story).

Now it's in the hands of the court. As this issue of University Business goes to press, the fate of affirmative action in higher education is awaiting a ruling by the U.S. Supreme Court. The court's decision--that is, whether or not the University of Michigan's undergraduate and law school admissions policies violate the U.S. Constitution--could have long-lasting effects on admissions policies at dozens of selective colleges and universities, as well as on scholarship programs, university recruitment, and K-12 education policies. And it may ultimately play a role in how employees are recruited and hired in the corporate world.

The court is expected to deliver a ruling by late June, but after the April 1 hearing, even veteran court watchers, as well as sources contacted for this article, were left wondering how it will all turn out. The last time the court addressed affirmative action in higher education was in the landmark 1978 University of California v. Bakke case. Then, the court held that the use of race as a factor in higher education admissions--which forms the basis of U Michigan's policy--was constitutional But times, and external pressures, have changed over the last 25 years. Leading the charge against affirmative action are several conservative organizations with close ties to the Bush administration, including the Center for Individual Rights (CIR), the Center for Equal Opportunity (CEO), and the American Civil Rights Institute (ACRI). The CTR is representing Barbara Grutter, Jennifer Gratz, and Patrick Hamacher, three white students who claim they were denied admission in favor of less qualified minority applicants. The plaintiffs contend that the interest of promoting diversity is not sufficiently compelling to justify race as a determining factor in admissions.

The court may vote to uphold the Bakke decision or to overturn it. It may also modify that law or perhaps develop new standards for considering race in university admissions policies. Most observers agree that the nine-member court is closely divided, and the case could turn on one vote.

"Justice Sandra Day O'Connor's vote is the key," says Nathaniel Persily, a law professor at University of Pennsylvania. O'Connor's past affirmative action rulings show an ambivalence that reflects the feelings of society as a whole, he told University Business. "All the recent affirmative action rulings have been 5-4 decisions. While striking down affirmative action programs, particularly in employment, she has also allowed some exceptions to a general constitutional bar on affirmative action."

The question in the case currently before the court, Persily says, is whether the diversity rationale in education will be one of those exceptions that O'Connor is willing to make to the more general bar on affirmative action. "Although it's possible that the court will strike down the University of Michigan program," he adds, "it is also possible that Justice O'Connor will create a small exception that doesn't completely close the door on affirmative action in higher education."

Leading up to the hearing, a record 66 amicus briefs were filed supporting U Michigan's policy. More than 80 colleges and universities filed individual briefs or co-signed other briefs. They were joined by 83 briefs filed on behalf of Fortune 500 companies that expressed concern about the ability to compete globally without a diverse and racially conscious workforce. Significantly, a brief filed by a group of retired military officers--including General Norman Schwarzkopf and former members of the Joint Chiefs of Staff--sought to demonstrate how a reverse of affirmative action programs would be detrimental to the military. The group pointed to the many problems faced by the military during the Vietnam War, when the lack of high-ranking minority officers had caused deep racial tensions within the ranks.

These briefs do have an influence in some cases, Persity says, but perhaps not in this one. "This is not a difficult issue. It's only difficult to the degree that the principles are difficult. I think all the justices knew, going in, how they felt about this issue, and the facts and the arguments are likely not going to affect how they feel," he says.

Anatomy of an Admissions Policy

Ironically, the current admissions system at the University of Michigan was designed to address legal and constitutional concerns over the preceding policy, the Michigan Mandate. In 10 years, the Michigan Mandate helped the university boost minority enrollment from 8 to 14 percent. But by 1997, the school was under attack from groups that charged the Michigan Mandate gave preference to minority students. In response, then university President Lee Bollinger introduced the current plan, which features a point system--at the heart of the current debate.

The university receives nearly 25,000 applicants for 5,000 available undergraduate seats, so admissions officials utilize a point system to help bring that number down to a manageable size. Applications are reviewed and awarded points for various criteria; high-scoring applications are held for further consideration. Out of a total of 150 points, for example, 110 are given for academic achievement. Various point totals are then added, based on a number of criteria. For example, Michigan residents automatically get 10 points, plus an additional 6 points if they come from an underrepresented Michigan county. Children of alumni are awarded 8 points, while community service or work experience can earn applicants 5 points. But 20 points are awarded to an applicant who fits into one--but only one--of several categories: membership in a minority group, attendance at an economically disadvantaged or predominantly minority high school, or being a recruited athlete. (If the Supreme Court rules that minority applicants cannot get extra points, the other categories will, remain unaffected.)

The school, has defended its position by saying the system builds classes of students with diverse backgrounds. School officials concede that race does have an impact on admission decisions, but temper that remark by pointing out that the pool, of qualified minority applicants is comparatively small. Furthermore, Michigan contends, with race-blind admissions, minority enrollment at the university could fall by 80 percent. The system, then, is designed to create what the school. calls a "critical mass" of minority students.

"Critical mass is an educational concept and not a numerical, target," explains current U Michigan President Mary Sue Coleman. "Having a critical mass means having enough of any group to represent a spectrum of opinions. If you are the only minority student in the classroom, you bear the burden of representing your entire race. Critical mass is an aspiration, and we don't believe we have achieved it yet."

But, as was evidenced in the Supreme Court hearings last month, where affirmative action supporters see "critical mass," its opponents see "quotas." Justice Antonin Scalia, questioning U Michigan attorney Maureen Mahoney, wondered where the distinction lay. "Does it stop being a quota because it is somewhere between 8 and 12 percent, but it is a quota if it is 10 percent?" he asked. "Once you use that term 'critical mass" you're in quota land."

Mahoney responded, "If it was a fixed range that said there will be a minimum of 8 percent, come hell, or high water--no matter what the qualifications of these applicants look like, no matter what it is that the majority applicants could contribute to the benefits of diversity--then certainly that would be a quota, but that is not what occurred here."

Still, the difference runs far deeper than a numbers game, suggests Ginger Miller, an admissions consultant with Howard Greene and Associates (www.greenesguides.com). "There is a comfort level, to being with people who understand you; you don't have to explain things to them," maintains Miller, who is Chinese-American. "When you are in an unfamiliar environment, you feet uneasy, and you get homesick. That's true of all minority groups. When they feel homesick and hunger for, say, a certain food that they grew up with, they can go to a group of their own people and the others will identify with that and instantly understand what they mean. But a mixed group won't know what they are talking about. It's as simple as that. There are certain times of the year or seasons that are shared with other people of your cultural group."

The 'Percent Solution'

Proponents of race-neutral admissions policies have offered various alternative plans that they say are fair for all, and promote a diverse student body. Chief among those plans is the "10 Percent Plan" currently in use in Texas, and touted by the Bush administration as the best way to arrive at race-neutral admissions.

The plan works like this: Students finishing in the top 10 percent of their high school, graduating classes, from public or private schools, are automatically admitted to the Texas university of their choice. The Texas plan was created after an appeals court ruling banned affirmative action in a 1996 case known as Hopwood v. Texas. The Hopwood case was litigated by the Center for Individual Rights, and argued chiefly by Theodore Olsen, who, as solicitor general, also led the plaintiffs in last month's U Michigan hearing.

But not everyone agrees that such plans are the answer in Michigan or elsewhere--Michael. A. Olivas, for one. Olivas is the William B. Bates Distinguished Chair in Law at the University of Houston, and director of the school's Institute for Higher Education Law and Governance. Significantly, he is one of the authors of the Texas plan, yet he, too, filed an amicus brief siding with U Michigan's policy, on behalf of the Texas plan authors.

According to the brief, "Percent plans such as the one developed for students in Texas do not provide a more efficacious means for ensuring racial diversity in higher education. In our experience, no percentage plan is a complete substitute for race-sensitive admissions."

The problem is that there still exists a racial divide at the high school level, and there are wide differences in grades and test scores between white and minority students. In 1998, for example, African-American students in Texas comprised about 12 percent of the graduating high school class, yet they comprised about 6 percent of graduating students in the top 10 percent. What's more, after nearly five years, minority enrollments have not risen to preplan levels, which evidenced significant under-representation even then. "That Texas universities have not climbed back to pre-Hopwood levels is evidence that the plans cannot substitute for race [-conscious admissions]," Olivas wrote. While he still supports the plan on its limited merits, Olivas says it is not the alternative that President Bush and others believe it has become.

"I do not believe that the percent plans can work in all instances," Olivas told University Business. "But I do believe there are many things a college can do if it wishes to. The University of Texas has made it work, while Texas A&M University has not."

And, as perhaps a sign of dissent among the ranks, the Center for Equal Opportunity has already targeted these percent plans (which have variations in Florida and California) as race-based and unconstitutional.

As national attention is now focused on the Texas Plan, Texas legislators are proposing changes to it, including one measure that would extend the automatic admission to already overcrowded graduate and professional schools. A second bill would change the requirement from the top 10 percent of students, to those who had completed the state's more rigorous high school honors curriculum. (This, in response to the argument that students are taking easier courses in pursuit of the top-10-percent class standing.) A third proposal would strengthen the existing plan by mandating that high schools notify families when a child is graduating in the top 10 percent so that graduates can actually take advantage of an opportunity they may have been unaware of.

But Olivas insists the plan should stand on its own. "I have said to anyone who asks, that the 10 percent plan should not be changed, except for the possibility of the parental notification proposal," he says. "There is a new concern that the [seats awarded] are more than 50 percent of the freshmen class, and that is a legitimate concern. But I think anyone proposing changes has got the burden of proof."

If Affirmative Action Vanishes ...

It is unlikely, say observers, that the Supreme Court wile end affirmative action without offering some alternative to achieving diversity. And it is this broadly held belief that led former U.S. Solicitor General Walter E. Dellinger (in remarks uncharacteristic of prosecutorial predecessors) to criticize the plaintiffs' case as "one of the intellectually weakest briefs" he had ever seen.

Dellinger, now a Douglas B. Maggs Professor of Law at Duke University, told the Legal Times in April, the case "has a hole in the middle of it the size of Detroit. It's as if some pages fell out of the undergraduate brief on the way to the printer, and they were stuck back into the law school brief by mistake."

But, what would happen if affirmative action in higher education were to end? The result may well be devastating for graduate and professional schools. According to the Law School Admission Council (www.lsac.org), minority groups are already underrepresented in the legal profession. Clearly, they point out, the percentage of minority members in society is not adequately reflected in the percentage in the legal profession. And if race cannot be considered in applications, say lawyers for the U Michigan Law School, black and Hispanic representation in the legal field will decline to pre-affirmative action levels.

Currently, affirmative action bans are in place in CA, TX, FL, GA, and WA. A recent study conducted by the Journal of Blacks in Higher Education (www.jbhe.com) suggests that a nationwide ban on affirmative action will have a profoundly negative effect on black enrollment at highly selective colleges and universities.

"This proof lies in examining the enrollment status of blacks in states in which race-based affirmative action already has been outlawed," writes Theodore Cross, one of the authors of the study. "Here we have a wealth of information to show that black enrollments in the undergraduate programs at flagship state universities and at the top-ranked graduate programs at these schools dropped sharply, immediately after bans on affirmative action went into effect." Even as black participation in higher education increases nationwide, black enrollments at the top-tier schools in California and Texas, particularly, have not returned to pre-ban levels. And if all admissions decisions were based only on standardized tests and high school grades, says the study, the percentage of black students enrolled at the most selective schools would drop from its current level of 6 percent, to 2 percent or less.

Beyond the Court

Regardless of the Supreme Court decision, it seems certain that universities will not give up on the goal of achieving diversified student populations. But don't look for the battle to end with the justices' decision next month. The CEO, CIR, and ACRI have vowed to continue fighting for the end of affirmative action, and that has many schools worried. Rather than face a court challenge, some universities have already ended or modified race-conscious programs. Both Princeton University (NJ) and the Massachusetts Institute of Technology, for example, have modified summer transition programs that were previously restricted to black and other minority students, now opening them up to all students. School officials made the decision after they received letters from the CEO and the ACRI that threatened to file formal complaints to the Office of Civil Rights of the Education Department. Citing the legal risk and hoping to avoid confrontation, Iowa State University has followed suit.

In March, the governing board at Virginia Tech surprised everyone by overturning the school's race-sensitive policies in admissions and hiring without advance public notice or discussion. After numerous student protests and sharp criticism from Virginia Gov. Mark Warner, the school rescinded the rule in early April Some board members admitted that they acted hastily and without any guidance from a possible Supreme Court decision.

And U Michigan came under fire again last month when the Center for Equal Opportunity threatened another lawsuit over what it calls the school's racially exclusive academic and financial aid resource programs. Administrators said they would wait for guidance from the Supreme Court decision before making any changes to the programs.

A Question of Diversity

At the base of the argument, of course, is the question of diversity. Does diversity improve the educational experience on campuses? According to one study, published in the International Journal of Public Opinion Research (ijpor.oupjournals.org), the answer is no. A research team led by Stanley Rothman, Smith College (MA) Professor Emeritus of Government, surveyed more than 1,600 students and 2,400 faculty members at 140 IHEs. Survey participants were asked to evaluate the quality of education at their school, the academic preparations and work habits of the student body, and the state of race relations on campus. Results were correlated with the proportion of black students attending each institution, according to the National Center for Education Statistics (nces.ed.gov). "The findings failed to support the argument that enrollment diversity improves the education and racial milieu at American colleges and universities," wrote Rothman.

But others believe the diversity experience is one that defies measurement, and that schools will continue to try to achieve the ideal. "I don't think universities, or at least the very selective schools, will change how they do things," says Miller, at Greene and Associates. But universities must first overcome another problem that could defeat their very efforts to achieve workable diversity, she says. "The hardest thing for minority kids on campus is that they don't have role models," says Miller. "Colleges have done a better job using affirmative action to recruit students than they have to recruit and retain minority faculty." Ironically, many university committees require diverse representation, compelling what minority faculty members exist on campus to spread themselves thin, across committees. But when it comes to faculty and staff hiring practices, the same representation requirements are absent. "There simply has not been the same pressure for universities to declare their minority numbers of faculty and staff," Miller says. June's Supreme Court decision, in a trickle-down effect, may or may not impact these disparities as well.