For example, in some of the boxes a white applicant, will be rejected out
of hand based just on grades and test scores, whereas a black applicant with
exactly the same grades and test scores will be passed on for full review and
probably acceptance. What you have are two admissions tracks that are set up
at the beginning of the admissions process, based almost exclusively on race.
One track is for white applicants and the other track is for black applicants.
That's a dual admissions system. That's exactly what Powell said was
Now what University of Michigan would say to that is that's just one
part of the process. Nothing is automatic.
I think that the university is extraordinarily misleading when they make
that claim. It is true that this is just one part of the admissions process,
but this is a key part of the admissions process. This is where the
applications are first opened up and routed in different directions. Later on
in the process, according to the University, if you survive this first cut,
counselors open the files and then do what's called a full file review. They
look at all of the attributes of each applicant--much as justice Powell
imagined should happen. But that happens only if you get over this first cut.
And the fact is at this first stage when that first cut is made, the cut is
made differently depending upon the race of the applicant. So I think it's
highly misleading to say that we're focusing on one part of the admissions
process. The fact that they may do it right at a later stage of the admissions
process doesn't change the fact that at this first stage, what they're doing is
illegal. And it makes a huge difference at this first stage, whether you ever
even make it to the second stage and have the opportunity to have your race
considered along with all of your other attributes. At this first stage, the
only thing that matters is your grades, your test scores, and your race. And
that's unfair. And it's illegal.
Are you saying there's no going back once the answer is "no"? Is this
the gate keeper?
This is the gate keeper. I mean, in this grid there are instructions given
to the clerks to reject certain applicants out of hand, based just on their
grades and test scores. Those students never get a second chance. They don't
get to have their race considered along with all their other attributes. For
them, race is the reason that they're rejected. It is certainly true that if
they survive that cut at a later stage, you know, race is considered along with
many other attributes. But if they don't survive that cut, they have to know
that the reason they didn't get into the University of Michigan was they had
the wrong skin color. That's exactly what justice Powell said should never
How did your lawsuit develop?
A professor of philosophy filed a freedom of information act request
several years ago and obtained a full set of documents, including the
instruction book and the internal policy documents that the admissions
department uses when they make their admissions decisions. And that's where
this grid comes from. It's an internal document that was obtained by CIR
through a freedom of information act request.
How did you find the specific plaintiff?
Once Professor Cohen received these documents, it was clear that Michigan
was violating the law. Then he wrote about his findings. And they were made
widely known. Several state legislators in Michigan got concerned about this,
and unfortunately in Michigan, the state legislature does not have control over
the academic program at the University of Michigan. So there was nothing they
could do. So they held a press conference and held up these grids. They also
said, if you think you're one of the students that's been discriminated against
illegally, send us your name. And we will send your information on to the
Center for Individual Rights. And as a result of that, we received the names
of 60 or 70 students. We reviewed their materials and ascertained that there
was a strong case to be made here. And, on the basis of that, we filed a
Some critics would say that this press conference basically advertised
for people to come to call to CIR.
We published two hand books, one for trustees and one for students. And
our thought was that a lot of admission systems like the Michigan one, are
clear violations of the law. At this point, I don't anticipate a great number
of additional lawsuits. We're certainly not looking for law suits. We
routinely get inquiries from people all over the country about this type of
situation. And we evaluate these inquiries as they come in. But we're not
looking to bring additional lawsuits. On the contrary, we're confident that
once the Michigan lawsuit is settled, a very clear message will be sent to the
higher education community. Then schools will start to reform their admissions
process on their own--without additional litigation.
I think the primary reason schools have dug in their heels about this is
that they're afraid, that if they get race out of the admissions process, they
will have a very small percentage of minority students. The prospect of that
intimidates them more than anything else. They'd rather have a lawsuit than
lose all their minority students. I think perceptions about this are changing
as a result of what's happening in California and Texas.
California and Texas were forced, one state by a court order and the other
state by proposition 209, to implement a race blind admissions system in all of
their public schools two years ago. And when this first happened, there was a
great fear that the schools in those states would be immediately
re-segregated--that there would be no black students. Well, as it's turned
out, that isn't the case. The first year of race blind admission, there was a
significant decline in minority enrollment at six of the flagship law and
medical schools. At the rest of the schools in those states, minority
enrollment was constant--and in some cases, increased significantly. A year
later, the second year after they converted to race blind admissions--even at
those six schools where there had been an initial drop--minority enrollment
What that suggests is that schools can have a race blind admissions system
and attract and enroll a respectable number of minority students. I think once
the rest of the country sees that that can happen, based on what's going on in
California and Texas, they will on their own dispense with the illegal racial
preferences that many of them are employing.
But those figures aren't true at Cal. They're not true at UCLA.
A big drop in minority enrollments--it typically is what happens at the
flagship schools in the first year following the implementation of race blind
admissions policies. And the reason for that is straightforward. Those
flagship schools typically place a great deal of emphasis on standardized test
scores in the admissions process. Like Michigan, those schools use
standardized tests as a screening device. And in the first year of converting
to race blind admissions, those schools often find that they are screening out
a lot of minority applicants because of their heavy use of standardized test
scores. What those schools typically do then is de-emphasize the weight that
they put on standardized test scores and increase the weight that they give to
other factors like grades, for example, or the particular circumstances that a
student might come from--if they've had to overcome disadvantage -- or if
they've had to work at a job while they're going to school. When schools,
de-emphasize the test scores a little bit and increase the weight given to
other factors, it turns out that minority enrollment bounces back.
Now, we'll have to see what happens at UCLA and Berkeley undergraduates.
They are now in the midst of their second year of admissions. There were news
stories out a week ago that it looked like minority applications were back up
and that minority enrollment might be back up too. But it's too soon to tell.
Frankly, you know, it may take a couple of years here for these schools to make
the adjustment. But there's no reason in principle why schools need to place
such a great emphasis on test scores. And it's clear that if they do
de-emphasize test scores, they can continue to enroll respectable numbers of
If those were the standards of merit, why are we suddenly abandoning
them in order to pursue diversity?
Well, it depends what you mean by academic merit. Test scores are one
measure of academic merit, and they are an important measure. But they are by
no means the only measure. In fact, test scores are only valuable in assessing
academic merit to the extent that you don't have other better or more reliable
information about an applicant. And what these schools have to do now is
collect other more reliable information about particular applicants. When they
learn what an applicant is really all about--have them write essay and in fact
read those essays--they have much better sources of information. Taken in
conjunction with the test scores, this can give them a much better picture of
future academic promise. And that's what schools have to do. They have to be
aggressive about tapping into other sources of information about applicants and
not simply relying on test scores.
Certainly they cannot use test scores simply as a screening device to
categorize applicants and shunt them off to a different path through the
admissions process. They cannot, as they do in Michigan, use test scores as a
way to throw applicants out of the admissions process altogether at the front
end, because they don't meet some magical, numerical cut off point. I think
everybody agrees that that wholesale use of test scores, to screen applicants,
does not allow a school to truly judge the academic potential of a particular
applicant. And that's what schools need to do.
What would you say about the Latino eligibility task forces
recommendation to get rid of the SAT?
I think the one point that I would make as a lawyer who litigates these
cases--the law doesn't tell them that they have to look at test scores or they
may not look at test scores. That's something that they can decide for
themselves--that a school can decide for itself based on its educational
mission. The only thing the law says--and more particular, the
Constitution--says, is they may not look at race. Or you may not use race to
categorize applicants. As long as they are not looking at race, there's a
whole range of things that they can and should look at.
Bob Laird, dean of admissions, at Cal, says he's not going to be able to
get those numbers back up without using race as a consideration.
The problem here isn't 209. The fundamental problem here is the disparity
in test scores. And that is something that we all need to address. They start
very early in life, but although they're significant and have been with us for
sometime, increasingly there are indications that there are ways to narrow that
gap. In fact, it was narrowing for a number of years--until the mid 80's--when
it reached a plateau. And the gap, you know, has not narrowed since then.
Researchers are looking at this question, and they've come up with a number
of very promising strategies for addressing that test score gap. And we need
to pursue those aggressively. But let's say that it takes ten years to
completely erase or narrow the test score gap, the question is, what are we
going to do in the mean time?
I think flagship schools like UCLA, and Berkeley need to look at their
educational mission. If their mission is to be an elite, flagship school that
competes with Harvard, Yale, Stanford and Princeton, then they are probably
going to continue to put emphasis on test scores. And that is probably going
to drive down their minority enrollment numbers. I don't think there's any
question about that, but I don't think it's inevitable that they have to put
that emphasis on test scores. And the law doesn't require it. But if that's
what they decide to do, then yes, I think one consequence is going to be lower
minority enrollment at those schools.
Now the question is, what is that going to mean to minority students? If
it meant that those minority students could not get a college education, then
that would be a bad thing. If it means that they will, instead of going to
UCLA or Berkeley, go to another highly ranked, California public school--maybe
not as highly ranked as Berkeley or UCLA, but nevertheless a very good
undergraduate school -- and if they do well there, and if in fact they graduate
in higher numbers--as some have suggested might happen--then that might be a
I think it's a very dynamic process. And I think it's very bad for people
on any side of this argument to prognosticate doom and gloom scenarios here.
What if we're talking decades and what if we do have the scenario in
which UC Berkeley and UCLA are very different looking campuses? What does it
say to the black and Latino kids in the state?
Well, these schools have to address seriously the question of what their
mission is as publicly funded institutions in the state of California. If the
tax payers want to create a school that's competitive with Harvard, Yale and
Princeton--well, that's one thing. And if those schools feel that in light of
that mission they have to place a great deal of emphasis on test scores, and
thereby screen out minority applicants, that is a decision they will have to
defend before the tax payers. But the law doesn't require that outcome.
That's a decision they make. It's perfectly open to those schools to
de-emphasize the test scores, look at other factors and thereby change the make
up of their class. This is a decision that they have to make in light of their
mission, and they have to defend to the tax payers of California, but for them
to say that the law requires that they obsess over test scores and thereby
screen out minority applicants is ludicrous. I think for them to throw up these
scare scenarios that it's going to be decades--possibly hundreds of years
before, the test gap narrows--is, I think, also ludicrous.
What Christopher Jenck's work shows--and the work he assembled in his
book--is that again, test scores are responsive. It's a very dynamic variable
that responds to a lot of different factors. And I don't think we should
conclude that it's impossible to narrow the test gap further. There are a lot
of different things that can be tried, and we should try all of them. What
looks difficult in 1999--three years from now, may look completely different. I
don't think we should prejudge this sort of thing. I think we need to move
aggressively on all fronts here.
Would you say that the trade off is not so much between de-emphasizing
test scores and diversity, but between choosing what kind of an institution
these places want to be?
Far too many people in too many institutions assume that test scores are
the be all and end all, the ultimate measure of academic excellence. And I
think we have to call that assumption into question. I think the only way that
we can get out of the box that we're in as far as racial preferences are
concerned is for schools to work through this obsession, It isn't just the
admissions departments or the admissions officials. It's the professors and
it's society at large, that measures the academic value of an institution by
the average test score of their student body.
That's what we've got to break through. We've got to understand that
academic merit, academic potential, the prestige of an institution, cannot be
quantified by standardized test scores. I think even the College Board rejects
that use of standardized test scores. And I think it's important. I think
anybody, who thinks about this seriously understands that we can't limit
ourselves in that way. Cal needs to think through their educational mission.
The idea they really need to think through is that their worth as an
institution can be measured by the average SAT score of their incoming class.
I think that's fundamentally mistaken. By the same token, I think it's
fundamentally mistaken to think that the academic promise of a particular
applicant is ever fully captured by his or her score on the SAT's. That is
also, I think, a myth that has to be punctured.
Let's go back to the lawsuit. You were saying that when you put out
these flyers you weren't seeking people to come to you to initiate law
Justice Powell's opinion has been with us for 20 years, and there's a real
question about whether Powell's opinion still represents the law. But let's
say for argument's sake that it does. The fact is a lot of schools are clearly
violating Powell's opinion. For example, like the University of Michigan, they
are using two admissions standards, one for black applicants, one for white
applicants. No serious person thinks that is permitted under the Constitution.
That was clearly stated 20 years ago in Powell's opinion. This is not some new
legal theory. This has been with us for a long time. And the schools
themselves accept that.
The fact is many of them violate Powell's opinion. We don't see the
purpose of litigating cases at every school. It's beyond argument that a dual
admissions system violates the Constitution. So we thought, let's put out a
handbook that explains Powell's opinion and explains the way schools typically
violate it. Put that handbook in the hands of trustees and students--two
groups, who for very different reasons, have a real interest in making sure
their school complies with the law. And let's see if we can start a meaningful
process of dialogue on college campuses to bring about the needed reforms
without the need for additional law suits. So that's what we did.
We placed an ad in a handful of student newspapers that said, nearly every
elite college in America violates the law. Does yours? To find out, call this
800 number, and get our handbook. And decide for yourself. I mean, that's
sort of the crucial point here. We're not looking for more law suits. We are
looking to put our handbook in the possession of people who can make use of
this information, namely the students and trustees. And that was our
So you said, all the way up the supreme court if that's what it takes.
Is that what you want?
Lookit's sometimes said that CIR is looking for a test case to take
to the Supreme Court. And that's not quite right. , To date, the US Courts of
Appeal have handed down very strong decisions in our favor. As long as they
continue to do that, there's no need to go to the Supreme Court. Frankly I
think that in some ways it's a good thing, to let this be worked out in the
different judicial circuits to allow a number of years to elapse between the
Hopwood decision in the fifth circuit, and whatever the supreme court might
ultimately say about this. In the mean time, that gives schools in California
and Texas the opportunity to try a number of different, race blind admissions
strategies -- for people to see how they work. I think there's a lot of
learning that has to take place here.
I think another factor here is that there's a lot of minority students who
have grown up--spent their whole lives--, expecting that they would be judged
according to various racial preferences. I think it's a little bit unfair to
suddenly take away that system of racial preferences, you know, everywhere, all
over the country. Although I think those types of racial preferences are
unconstitutional, I think it's useful to society to have this new regime fazed
in slowly over a number of years to give both applicants--minority
applicants--as well as schools time to adapt to a race blind environment. I
don't think that is a bad thing at all. And I think that's one thing that
distinguishes the sort of public interest litigation we do at CIR from the sort
of public interest litigation done by other public interest law firms--that
very often, try to get a single rule laid down by the Supreme Court and
immediately imposed in rubber stamp fashion all over the country. I don't
think that's necessarily the best use of the federal judiciary. It is
certainly a heavy handed and an oppressive use and sometimes leads to very
So in all of these suits, what is the guiding principle? What's the
guiding philosophy that joins Smith, Hopwood, and U.M.?
I think if you look at all of our cases together, there are two thingsthat
pop out and strike one. The first one is that as a factual matter, most
colleges and universities, have been highly misleading about the way they use
race in admissions. When we get into discovery and we find out the way race is
actually used, the way these admissions systems really work, it turns out that
in almost no case is race just one of many plus factors. It's very often the
case that race is the basis for two separate admissions standards. And I think
it's very important because I think our lawsuits have publicized what in fact
is going on behind the closed doors of the admissions offices at many of our
elite colleges. And I think it's important for the public to know exactly the
way race is being used.
I think the second, point that comes to mind on-- if you think about all
of our law suits together -- it's this: that there almost is no legitimate
basis for the use of race in admissions. It's true that Powell said that race
could be one of many factors to assemble a diverse class. But it's less and
less clear that race is a legitimate proxy for anything that colleges should be
looking at. As racial groups become more diverse within their group in terms of
political outlook and intellectual outlook, it's less and less clear that race
is relevant at all. And it's less and less clear that colleges have any
legitimate basis for taking race into account in any way in the admissions
process. That is certainly a position that we are urging on the courts. And
so far, the fifth circuit has agreed with us. And it remains to be seen
whether other circuits will come to that same conclusion as well.
Let's say that the Cal numbers are correct. That out of a class of
3,500 kids, instead of 200 black kids, you're still looking at 100 kids. This
hardly seems to be quotas.
Well, no. But I think what does seem to be the case at these schools is
they have a certain magic number in mind of the number of places they want to
fill with this or that racial group. It is not a hard and fast quota, but as
Powell said in his Bakke opinion, the difference between a quota and a goal is
illusory. The fact that the school has in the back of it's mind a certain
number of slots that they want to fill with minority students is just as
legally problematic as if they had a hard and fast quota. And that is the way
race is being used in these elite schools. Whether the number is two percent,
seven percent, or ten percent, doesn't matter. The fact is they have in the
back of their mind a certain number of seats that they're trying to fill with
minority applicants if they can find them. And that, in the eyes of the law,
is just as bad as a hard and fast quota. And that's what I think is legally
problematic about the way race is used at these schools.
It's truly discouraging and alarming that some of our most elite
institutions of higher education are so utterly disingenuous about they way
they use race. It really must make the judges in the court's despair of ever
trying to construct a reasonable middle ground here. It's frankly driving the
courts, I think, in the direction of just forbidding the use of race at all,
because they simply cannot trust institutions of higher education to use race
in the limited way that Powelll described in his opinion. And there's a good
reason for that. It's not that these universities are, are, are evil
lawbreakers. It's that they are faced with very real disparities in
standardized test scores. And any school that uses standardized tests heavily
in its admissions process has got to find a way around those disparities. And,
bureaucratically, the most convenient way to do that is through the illegal use
of racial preferences. And that's what's happened here. And I think the one
thing that is going to frame any further judicial action in this area is a
recognition that schools inevitably are going to be driven in the direction of
using race too heavily--to using race as the basis for two different admissions
standards, so long as there exists this disparity in standardized test scores.
That's the engine that's driving everybody here. And I think courts are now
coming to the realization that if they're going to get meaningful reform,
they've got to take race off the table altogether and force these schools to
find other ways, other than standardized tests, to evaluate applicants.
What Hopwood was coming out and saying was, we want color blind
admissions. But we don't have a color blind society.
I don't think anybody disagrees or disputes the proposition that we don't
live in a color blind society. Of course we don't. The question though is not
whether society is color blind, but whether the government, in making official
decisions and handing out benefits--like admission to elite
institutions--whether the government should be color blind. And I think the
Constitution is fairly clear on this. And the Supreme Court has interpreted
the Constitution in a fairly clear way over the years. Which is that to the
maximum extent possible race will not be a factor in government decision
making. The government may not favor this, that, or the other racial group, no
matter, how good or beneficent its motives might be in a particular case. And I
think that legal principle is established beyond argument. I think the only
open question is what are the narrow particular compelling circumstances that
sometimes justify the use of race by government. And the whole debate is about
whether there is a compelling reason for the government to prefer students of
one racial group--I mean applicants of one racial group--in the admissions
process of state universities, rather than applicants of another racial group.
And I think the answer increasingly is, no, there is not a compelling interest
that justifies the government use of race in admitting applicants to public
The number of applications to elite schools so far exceeds the number of
available slots.Have we become a country totally focused on these institutions
as the pathways to privilege?
I think one of the reasons that this issue has become so sensitive is that
college admissions has become much more competitive in the last 20 years. It's
one thing to be turned down from a highly competitive school if you just don't
happen to stack up with the many, many other qualified applicants with whom you
are competing. And it's quite a different thing to be turned down because you
happen to have the wrong skin color. That's unconstitutional.
How did CIR start?
We were started about ten years ago with a seed grant from five
conservative foundations, because frankly nobody had ever tried this before.
And it worked. CIR brought some very significant cases early on and got some
tremendous results. As a consequence of that, we have attracted money from a
variety of funding sources, some of them conservative foundations but more
recently from family foundations and from individual contributors. So, at this
point, we receive our funds from a variety of different sources-- well beyond
the conservative foundations that funded us in the beginning.
Is the SAT the culprit?
In many ways, the SAT is the root problem here. It's the engine that's
driving all of this. It's why we're having this conversation today. If there
weren't those gaps in the SAT scores between different racial groups, colleges
wouldn't be using race the way they do in admissions. And we wouldn't be
having this conversation. But it's complex.
It's clear that those tests do measure something, and so it's not right to
argue that, well, we should get rid of the SAT and the problem will go away.
The problem will still be there. These tests are an effective measure of a
certain type of conceptual thinking that is important in colleges and is
important and relevant to academic performance. There's no question about
But I will say that colleges have tended to misuse the SAT. They've used
it bureaucratically to categorize applicants--to screen applicants. They've
used it in place of other more avoid more reliable information. And that's not
helping anybody. And I think that use of the SAT is, in very many ways, the
culprit here. It needs to be reformed. At the same time, I think as a society,
we need to take seriously the gaps in standardized test scores and look to ways
that we might narrow those gaps through a reform of elementary and secondary
education, for starters.
What you're doing in the end is going to be beneficial in the long
I don't think there's any question that for too long we've avoided the sort
of fundamental reforms that we need to make to elementary and secondary
education. We know that elementary and secondary education fails far too many
minority students. The way we fixed that up till now was through this
Band-Aid. When minority students apply to college, we create a separate lower
admissions standard for them, so that we never really have to deal with this
earlier failure of elementary and secondary schools to serve minority students.
It's time--I think--to take that Band-Aid away and to focus on the real job of
improving elementary and secondary education for minority students. Although
it's not the purpose for our law suits, it's possibly one good result of
bringing these law suits.
I think admissions departments have, you know, a real job to do here. I
think if as they move away from the SAT and it becomes less easy to justify
particular admissions decisions by pointing to a magic number--of course it's
harder to justify those decisions. It's less bureaucratic. And it's more
subjective. And yes, it's probably more controversial. But that's exactly the
debate admissions committees should be having with professors and
administrators. They should be willing to make the case for a kid, you know,
with a combined score of 400 but who has some just unbelievable aspect of his
background that shows real academic promise. They should be willing to step up
to the plate and say--look, this kid has a lot of things going for him. Maybe
he doesn't have the standardized test scores. But he's got this other thing.
And we're willing to give him a chance. And you the professors, and you the
administrators, should be willing to give him a chance too.
who got in? |
the race issue |
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history of the sat
the screening process |
test score gap |
getting in to berkeley |
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