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photo of terence pell
TERENCE pell: He is senior counsel at the Center for Individual Rights (CIR), the law firm that is suing the University of Michigan over its undergraduate affirmative action policies. CIR represented Cheryl Hopwood in the Hopwood v. Texas lawsuit, which in 1996 led the Court of Appeals for the Fifth Circuit to rule that the University of Texas law school could not take race into consideration in admitting students.
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CIR is suing the University of Michigan law school. You say Michigan had a dual admission track. What do you mean by that?

The University of Michigan employs two different admission standards. One for minority applicants and another very different standard for non-minority applicants. That's what we mean by a dual admission system.

Universities are allowed to take race into consideration. What's so different about the University of Michigan? Aren't they conforming to the law?

Well, it's one thing to take race into account when you're evaluating a particular applicant. So that among the many things you might look at an applicant's file is at where he went to school, his special talents, any kind of disadvantage that he or she has had to overcome. And, as part of an overall picture of an applicant, you might take into account their race or ethnicity. That's one way. And that's what Powell said was okay in the Bakke decision.

What the University of Michigan does is use race in a wholesale way, not to evaluate particular applicants, but to categorize or screen applicants by racial groups. That use of race, Powell said, could never be constitutional, and that's what Michigan is doing. They're using race well beyond the limited way that Powell said you could use race.

Do you have proof that there's a dual track?

Well, I think the University of Michigan undergraduate program is one of the clearest examples of a dual admissions system anywhere in the country. When applications come into the admissions office, clerks open the envelopes and they look at three things--grades, test scores, and race. And then they compare those three factors with a grid that the admissions office gives them, that's published, that's available. And on that grid, there are grades along one side, test scores along the other. And the clerk looks in the box where the two come together. And in the box, there are two codes. One code is for white applicants. And the other code is for black applicants. And in some of those boxes, those codes tell the clerk to do very different things.

It's clear that those tests do measure something, so it's not right to argue that 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 and relevant to academic performance. 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 illegal.

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 happen.

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 lawsuit.

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 bounced back.

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 minority applicants.

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 good thing.

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 suits?

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 objective.

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 unintended consequences.

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 institutions.

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 that.

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 run?

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.

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