In 2003, in its first ruling on affirmative action since 1978, the Supreme Court affirmed in its University of Michigan Law School decision that diversity in the classroom, in and of itself, is a compelling state interest that warrants special intervention. This fall, the court will hear two cases challenging affirmative action programs in secondary schools.

Researchers and administrators fear that in today's political climate, with challenges on the rise, the small gains that have been made in minority representation in science, technology, engineering, and math are under threat.

In recent years a number of reverse-discrimination lawsuits have been filed against "pipeline" programs designed to increase participation of minorities in the sciences. Earlier this year, for example, Southern Illinois University opened to all students three graduate fellowship programs previously reserved for women and minority students-including one NSF fellowship for graduate work in the sciences-after the Department of Justice threatened to sue.

"For both legal and policy reasons, decisions on who participates in a program should be made regardless of race or ethnicity," says Roger Clegg, president of the Center for Equal Opportunity in Sterling, Va. "It doesn't make sense to admit someone into a program simply because of their racial or ethnic background." The Center filed this complaint with the Justice Department. "I think politicians and the courts are starting to get that message," he adds.

But others say the United States is far from ready for race-blind admissions. "Many believe that our problems are long over, and the need for special efforts is past," says Shirley Malcom, head of the directorate for Education and Human Resources Programs at the American Association for the Advancement of Science in Washington, DC. "The data belie that."

The Department of Justice and the Department of Education's office of civil rights have been silent on interpretation of the Michigan ruling, offering only two papers on "race-neutral" approaches as alternatives to ensure schools are accessible to people from a wide variety of backgrounds. "We thought it [the Michigan case] was telling us that there could be no quotas, but you can in fact take the educational value of diversity into account when designing programs," says Malcom. "And yet, any program that looks like it is apparently benefiting one group is being systematically challenged." The result is a climate of intimidation in which supporters of diversity programs are not always confident of what is legally permissible, she says.

Clegg says the Center for Equal Opportunity had contacted about 200 colleges or universities about programs (in all disciplines, not just the sciences) that involved racial or ethnic preferences. "We don't want to end these programs, just open them up," he says. "There has to be a distinction drawn between racial and ethnic diversity and diversity of perspective, background, and experiences." He adds that once contacted, the overwhelming majority of universities have agreed to change their programs and avoid the possibility of a lawsuit.

Irelene Ricks, director of minority affairs at the American Society for Cell Biology, which has had strong outreach programs to involve women and minorities in cell biology for many years, says she has seen change in the works. "A lot of schools are changing the names of programs that were targeted at underrepresented minorities in the sciences to sound inclusive but vague," in the hopes of avoiding reverse-discrimination lawsuits.

Potentially complicating the situation, this fall the Supreme Court will hear two cases that address how much, if any, racial consideration should be given when determining which students are admitted to popular secondary schools. One of the questions they accepted for review is whether to reverse its earlier opinion on the Michigan case. While the secondary-school rulings are unlikely to affect university diversity and affirmative action programs directly, many observers are "surprised that the court took on affirmative action issues again," says Ann Springer, associate counsel for the American Association of University Professionals in Washington, DC.

In Congress, some legislators are taking steps to challenge affirmative action programs; others are proposing laws to support the programs while looking into broadening the definition of underrepresented minorities beyond ethnicity and gender. Accountability and measurement are strong themes for lawmakers on both sides of the issue.

Representative Steve King (R-Iowa) is concerned by what he sees as "secret policies" in which educational institutions have admissions preferences based on race, color, or national origin. He plans to introduce legislation that would require schools receiving federal funds to disclose their policies if they take racial or ethnic characteristics into account in admissions decisions.

Legislation by Senate Majority Leader Bill Frist (R-Tenn.) and Senator Edward Kennedy (D-Mass.) would restore funding to Healthcare Resources and Services Administration programs for groups traditionally underrepresented in the health professions, after the programs' budgets were slashed last year (see sidebar, page 12). The bill, which is targeted at eliminating ethnic disparities in health, would also authorize funding for programs to broaden the groups entering education programs in the health professions and enhance academic performance of underrepresented students.

"Education and training is a key piece of a comprehensive strategy to reduce healthcare disparities," says Elizabeth P. Hall, Frist's director of health policy. While the bill is clear on the need to reauthorize existing programs directed at minorities, Hall says, there is also room in the bill for regulators to define which populations are in need of outreach. "We don't want to diminish or take away from existing programs...[or] pit rural whites versus African-Americans," she says. "But we do want to acknowledge that efforts to reach out to underrepresented and underserved minorities may also engage us in reaching out more broadly" to groups such as rural whites, who may also have few role models in the sciences and face barriers in access to education and training.

Another key aspect of the bill may be in its request for outcomes data, says Hall. "Many of our federal programs are supposed to be collecting information on race and ethnicity," but this isn't always done and isn't always standardized, she says.

The bill asks funding agencies to collect information on the race, ethnicity, health disparity data, discipline of study, and intended geographic site of practice for applicants, students, and graduates of educational institutions that receive funding through this legislation. In addition, it directs NIH to monitor whether members of populations facing health disparities are represented among senior physicians and scientists of their own institutes, and among researchers receiving NIH funding. They are also directed, if appropriate, to carry out activities to increase such representation.

One senator has been investigating whether the Title IX provisions of the Education Act - better known for their role in increasing women's participation in sports - could be tapped to boost the numbers of women in math and the hard sciences. After a September 2005 report concluded that federal agencies did not keep adequate track of whether federal research grants at educational institutions are being fairly distributed among male and female applicants, as the Title IX law requires, Senator Ron Wyden (D-Ore.) introduced an amendment requiring granting agencies to establish a database of information on gender, race, scholastic background, and areas of discipline, as well as how much money is requested and awarded through the grant process. This amendment did not pass, but a later amendment did, and as a result NASA is beginning to perform such compliance reviews.

If such reviews were instituted more broadly, they would be "a welcome expansion of enforcement," says Jocelyn Samuels of the National Women's Law Center in Washington, DC. "The Michigan case validated the use of programs designed to increase women's representation in disciplines in which they have been traditionally underrepresented, as in the sciences," she says. "The conditions are right for Congress to take this up and make it an issue of concerted attention and legislative concern."

One African-American scientist fears that damage is already being done. "I'm sort of skeptical and nervous about where I see things going," says Earlene Armstrong, an entomologist at the University of Maryland in College Park. "Diversity is important in college and in the world...but it seems like we're not making much progress, and opportunities are diminishing, especially for the average student."