AFFIRMATIVE ACTION
June 23, 2003

The Supreme Court narrowly found that states have a compelling interest in creating diverse student bodies at public universities, but that programs must be carefully structured.

 

Online NewsHour Special Report: Supreme Court Watch April 1, 2003: Analysis of the argument sessions for the two affirmative action cases before the Supreme Court Jan. 15, 2003: Experts discuss President Bush's entry into the affirmative action debate, calling a University of Michigan program unconstitutional December 3, 2002: Background on the two University of Michigan cases and a discussion of their significance June 28, 2002: Four constitutional law professors review key decisions from the last Supreme Court term June 27, 2002: The high court upholds the use of school vouchers. Oct. 31, 2001: A legal challenge to affirmative action at the Dept. of Transportation June 2, 2000: A proposal to end affirmative action in Florida April 1, 1998: The end of affirmative action at U.C. Berkeley Browse the NewsHour's coverage of law.   News for Students: Supreme Court Watch Gender Gap 101 The Big Nine Millennium Scholars     U.S. Supreme Court University of Michigan Law School Center for Individual Rights	MARGARET WARNER: And we get those reactions from the presidents of four publicly funded state universities who will be dealing firsthand with the impact of today's rulings: Mary Sue Coleman of the University of Michigan, obviously the party in this case; Larry Faulkner of the University of Texas, Daniel Mark Fogel of the University of Vermont, and Kermit Hall of Utah State University. Mr. Hall is also editor-in-chief of the "Oxford Companion to the Supreme Court." Welcome to you all. Ms. Coleman, beginning with you, pick up on Jim's discussion just now with Jan Greenburg. What did you as a university administrator take, what message did you take from the court about where the line is between what is permissible in promoting affirmative action and what is not?
	Mixed messages?
	MARY SUE COLEMAN: Well, I felt so good about the decisions today because we absolutely believe that this is a real affirming of the use of race in admissions, and in fact, in other programs that we have at the university. Clearly what the court was telling us is that they want us to use a more individualistic, holistic approach to reviewing applications for undergraduate students as we do for law school students. We are fully prepared to do that, to go back and modify our policies so that our undergraduate admissions looks more like the law school admissions. MARGARET WARNER: Dan Fogel, what was your interpretation? Do you think the message was clear, or do you think it was in any way a mixed message? DANIEL MARK FOGEL: I think the message was absolutely clear and very heartening. It's really a victory for students and for the nation that we can use race in a narrowly tailored way to pursue the compelling state interest in building diverse student bodies for the benefit of all students. We are very pleased with that decision. MARGARET WARNER: Mr. Faulkner, pick up on that. Add anything you'd like to to that, but also this question, even in Justice O'Connor's opinion, she was critical of the undergraduate program at the University of Michigan because race was a "decisive factor." Is it clear how you thread that line between being a factor and a decisive factor? LARRY FAULKNER: I think we have some things to learn about that, but the important thing of the case today was as stated that the court has for the first time in history affirmed the validity and the importance of diversity on our campuses and of procedures aimed at getting there. There's no question that the combination of decisions produced an overall result where procedure is important, technique is important. Some things are going to be allowed and some things will not. And I think we do have to spend a little time thinking about how we thread, through. At this university, we do have holistic admissions reviews, and I think it is possible for us to bring race into those in a permissible way. MARGARET WARNER: I want to get back to each of your individual cases. But finally, Mr. Hall, just your overall reaction to this decision, and again, for instance, Justice Scalia warned that he thought that this was to introduce a whole new flood of lawsuits, that he didn't think the line was that clear. How do you see that? KERMIT HALL: Well, I think in the first part it's obvious this is a victory for the autonomy and independence of American higher education. Justice O'Connor's made very clear that universities can as a matter of policy and as a matter of their academic independence use race as a way of promoting diversity. I think that's a very powerful outcome. I also think it's a little bit of a case where the baby is getting cut, but maybe not quite in half the way things turn out. It will, I think, will be obvious over time, but there's going to be a lot of sorting that goes into what constitutes critical mass, and what are, in fact, the appropriate procedures. But like the rest of the colleagues, I agree that this is really a signal moment. Diversity can be realized by the use of race, and for many colleges and universities, that will be significant. But it's also the case, as I believe, that given the admissions process of many universities that are basically open or moderately selective. In the end, it's much more important for highly selective institutions like the University of Michigan.
	The impact on universities
	MARGARET WARNER: Mr. Fogel, from the University of Vermont, you are one of these highly selective public institutions. Explain to us how you go about your affirmative action program now and whether this ruling will make any difference. DANIEL MARK FOGEL: Our process is fully compliant with this decision and with Justice Powell's landmark finding in the "Bakke" case. We do a holistic review of our applicants. Race is one factor we consider among many others: Counselor's reports, letters of recommendation, extracurricular activities along with college board scores, grades, leadership and so on to build a diverse class for the benefit of all students. I think there's one element we haven't mentioned tonight, Margaret, and that is that the court said that a narrowly tailored remedy should be time limited and look forward to the day when we wouldn't need affirmative action. I think it behooves us now to work very hard over the next decades, keeping the tool of affirmative action in the tool chest to make sure that all students have equal access to very strong preparation for post-secondary education. MARGARET WARNER: That's right. Justice O'Connor wrote that she, in 25 years, she didn't think the court should have to revisit this. Ms. Coleman, at the University of Michigan, one of the arguments you all made to the court was that this holistic approach, that this reading every application individually, was just impractical for your undergraduate program because you have, what, 13,000 applicants for 3,800 places, a huge incoming freshman class. The court rejected that argument, just said that was not a defense. Is it? How are you going to go about... I mean, how much is it going to cost you? How much bigger an operation are you going to have to have if you want to take the same process you have at your much smaller law school class and apply it to the huge incoming freshman class? MARY SUE COLEMAN: We had a modified procedure where we did look at each application separately. We have more than 25,000 applications for 5,000 spots. What the court has said to us... we did use a screening procedure, which was the point system. We looked at many factors. We looked at socioeconomic status, special talents. We looked at whether or not students' parents or grandparents went to the university, we looked at geography. We looked at many, many different factors, but we did have the screening and point system. What we'll need to do now is focus more on the individualized, holistic look and not have the point system anymore. Clearly we'll probably be adding some admissions counselors. But we don't think it's impossible for us to do it. We will certainly be looking very, very carefully to make sure that we comply with what the court has told us, but I'm not at all concerned, and I think we'll have our new procedures in place by the fall. MARGARET WARNER: Mr. Hall, what's the impact likely to be at Utah State? KERMIT HALL: I think the impact is going to be very great at all. Our classes are pretty much determined, as is often the case with land grant universities, by basically open admissions. We do select out a few students who are clearly inadequately prepared. One of the pluses I think of all of this, however, is, as President Coleman indicates, that the entire admission process in higher education ought to be more attuned to individual characteristics and ought to be a little more sympathetic than just doing it by the numbers. In an interesting way, I think this is a good message for all of higher education as it sifts and sorts who should be given admission. But again, for our institution, it's interesting, but I don't think it's going to have much of an impact. MARGARET WARNER: By your description of your institution, you meant basically what? 80 85 percent of the students who apply do get in? KERMIT HALL: Yes, that's absolutely the case. Even the students who are not given immediate admission will be admitted in a subsequent semester, or they'll go on to do some work in a two-year college and then they'll come back to us. One of the interesting divisions here is really not over race per se, but in our state it's a division between rural and urban. Often the rural schools simply don't provide a level of preparation for students so that when they come to the university they're able to succeed. That's one of the variables that really works I think here in Utah.
	The effect on the Texas school system
	MARGARET WARNER: Now, Mr. Faulkner, of course at Texas, that is one of these elite state universities, and you all, in response to an appeals court ruling several years ago, established that struck down race-based admissions, you established this new policy. Explain that briefly and whether this ruling will have any effect on that. LARRY FAULKNER: Well, the ruling will have a big effect on us, because Texas, since the "Hopwood" decision of 1996, has been operating in a sharply enforced race-neutral environment. It's been illegal for us to consider race in any decision relating to admission. This decision today puts us on the same basis as the rest of the country, so it's a big change for us. MARGARET WARNER: But you have this program in which the top 10 percent of any... in any high school in Texas, if they want to come to you UT at Austin, they can. Would that continue? LARRY FAULKNER: That's correct. That's not a program of ours. It's a state law. State law in Texas mandates that any student graduating in the top 10 percent of a high school class is guaranteed admission to his or her choice of public institution. That law will remain on the books, and it will be part of the scene going forward. There will be some interesting interactions between affirmative action policies and the continuation of top 10 percent law. MARGARET WARNER: Do you see taking this decision now in a way that you could, for instance, reinstitute affirmative action policy, let's say, in admissions to your graduate schools, your law school and so on? LARRY FAULKNER: Well, I think the law or, excuse me, the court decision today allows us to reinstitute affirmative action in graduate and professional programs as well as in undergraduate programs as long as we do it in a way that's compatible with the way the court staked out. The graduate and professional program areas are particularly pressing for us. We've done some good things with the top 10 percent law at the undergraduate level, and in fact, have built representation among minorities here at UT. That exceeds in several dimensions what we were able to do previously. So there's been some plus there, but the graduate and professional areas are ones where we have not been able to institute alternative approaches that even approach what we were able to do with affirmative action, so it would I think particularly pressing for us to get on with reinstituting those procedures in those domains.
	The ripple effects for institutions
	MARGARET WARNER: Ms. Coleman, this decision technically only applies to publicly funded universities and colleges, but I know all you university presidents know one another. Do you think this will have a ripple effect on private colleges and universities as well? MARY SUE COLEMAN: I absolutely do because of other provisions in federal law. If any university receives federal funds, then they're going to be subject to these same provisions. So we believe that this ruling is extraordinarily important not only for public universities, but also for private universities. I also believe that the way the court ruled today, that is, upholding the use of race in admissions, also will have profound effects on keeping our financial aid programs that are helping minority students, on some of our mentorship programs and outreach programs. So I think the ripple effects are far greater than in the admissions process. And that's why it's so exciting and such a wonderful decision for us today. MARGARET WARNER: Mr. Fogel, your thoughts on the wider ripple effect beyond universities like yours. DANIEL MARK FOGEL: Well, I agree with President Coleman. I certainly want to congratulate her and her colleagues for having carried this torch for higher education and for society at large. It will affect a broad domain for both public and private institutions beyond the admissions process. As I said before, I think the challenge for us in the decades ahead will be to make sure that all students have an opportunity to be well prepared for post- secondary education. MARGARET WARNER: Mr. Hall, go back to a point you made earlier and just explain to us just a little more, though. You wrote in a piece recently that the idea that this decision was going to "change the face of public higher ed" was simply not true. You had some interesting statistics about really how few universities are in this elite tier represented by your colleagues here on this panel. KERMIT HALL: Yes, well, it is the case that about 75 percent or so of all American students, college students enter based on either open admissions or moderately or modestly selective basis. I think the implications of that are important, because what's going to happen is I think my colleagues emphasized, but as Justice Scalia pointed out very clearly, what's going to happen is that the focus is going to change to financial aid. It's going to change to programs that have historically excluded all but minorities in terms of being prepared to go into higher education, so I think that's going to be the new battlefield. And the extent to which this concept of critical mass can be applied I think will be very, very interesting. It is clear to me that the big hurdle for all of American higher education is the cost, and with it the financial aid to support students to be able to get what is increasingly a private good but one that depends very much on a strong level of public support. Unfortunately what we've seen over the last decade or so is an erosion of that public support, and the privatization of this good, and I think let us only hope that one of the results of this is to pull us back to a much stronger public commitment in supporting all students who want to get into higher education. MARGARET WARNER: Kermit Hall and presidents all, thank you very much.