Affirmative Action Efforts Reconsidered

TACTICAL RETREAT: Many institutions, fearing lawsuits, will abandon their affirmative action programs, predicts NACME's George Campbell, Jr. Universities are feeling the impact of recently approved anti-affirmative action initiatives that ban the consideration of a student's race in admissions decisions. Medical schools have seen a dramatic decrease in minority enrollment; grad schools also have seen a noticeable decline. In hopes of maintaining diverse student bodies, many institutions-including the National Science Foundation-have turned to outreach programs to attract minority students. But the latest attacks on affirmative action have challenged the legality of such programs. Fearing lawsuits, many universities and public institutions are reconsidering using race as a factor in admissions and awards decisions. "Most universities have affirmative action programs which are carefully constructed and can withstand judicial scrutiny," notes George Campbell, Jr., president and CEO of the National Action Council for Minorities in Engineering Inc. "But as more cases go to court, more schools will end their programs as a preemptive measure against litigation." Most recently, NSF has come under fire for its Graduate Research Fellowship Program, which annually awards about 1,000 fellowships in science and engineering. Each year, NSF sets aside about 150 of those fellowships for minority students. In a lawsuit against NSF, the Center for Individual Rights (CIR), a legal advocacy group based in Washington, D.C., claims Travis Kidd, a graduate student in mathematics at Clemson University, was discriminated against when he was not allowed to apply for the fellowship because he was not a member of an underrepresented minority group. In a failed motion to dismiss the case on January 23, NSF General Counsel Lawrence Rudolph argued that Kidd's claim lacked merit because he was ineligible for the fellowship for race-neutral, academic reasons. U.S. District Court judges, however, denied Kidd's lawyers an injunction that would have halted the fellowship program and allowed Kidd to reapply. The case is expected to go to trial in the next year. CIR has been at the front of several other high-profile attacks on affirmative action. The National Institutes of Health and the U.S. Department of Agriculture (USDA), facing a lawsuit similar to NSF's, settled out of court with CIR in December. In this case, a white teenager claimed she was excluded because of her race from a summer outreach program designed to foster interest in careers in health and biomedicine. In the settlement, NIH and USDA agreed to stop using race as a criterion for participation in such programs. The University of Michigan also found itself a target in the battle over affirmative action in a suit filed in December. CIR lawyers claim in court documents that in 1995 and 1997, Michigan maintained separate admission standards for minority students and used race "not merely as a 'plus' factor . . . to attain a diverse student body" but as a "predominant factor . . . in determining admissions." Such a use of race has been declared discriminatory and illegal by the U.S. Supreme Court in Regents of the University of California v. Bakke. In a legal response to CIR's complaint, Michigan attorneys maintained that the admissions process, which is used in similar form by many other universities, is a fair and legal consideration of race. In November, CIR blocked an appeal for a U.S. Supreme Court review of Proposition 209, an initiative passed a year earlier by California voters to end affirmative action in the state. It expands the reach of the University of California (UC) Regents' 1995 ban, which prohibits the consideration of race in UC admissions and awards decisions. Proposition 209 extends the ban to other public universities and eliminates the consideration of race in government employment, contract, and financial aid decisions at the state and local level. TOP GUNS: UC-Berkeley's Paul Licht says Proposition 209 has made it more difficult to recruit highly qualified minority students. Paul Licht, dean of the division of biological sciences at UC-Berkeley, believes the new restrictions added by Proposition 209 will make it more difficult to attract top minority talent to UC programs. "If we cannot offer a nice financial aid package in a timely way to admitted minority students, we will no doubt lose them to other institutions," he says. Proposition 209 has made it more difficult for UC schools to comply with federal mandates for affirmative action, adds Licht. U.S. laws require minority recruitment programs and outreach efforts at graduate schools and other organizations receiving federal funds. "It is . . . a challenge to make every effort to admit minority students and women when, according to Proposition 209, ethnicity and gender cannot be a factor in admissions and fellowship decisions," he says. The 1995 mandate by the UC Regents to ban consideration of race in admissions took effect this fall at UC graduate schools. UC medical schools, which have aggressively encouraged minority applications in the past, were hit hardest by the mandate. Applications to UC medical schools from underrepresented groups (Native Americans, African Americans, and Mexican Americans) dove 21 percent, admissions fell 23 percent, and new enrollment slipped almost 3 percent for the fall semester. Native American students saw the greatest slip in admissions from 14 to 6. African American admissions declined by 24 percent from 62 to 47 and Chicano/Latino admissions fell 18 percent from 111 to 91. University officials speculate that applications slumped because students may have questioned whether UC was a hospitable environment for minorities. Affirmative action is one of the most debated and least understood public policies in the United States. It refers to any of a number of laws and policies that aim at increasing economic, social, and educational opportunity for historically underrepresented groups. Some critics of affirmative action say the policy gives unqualified students an unfair advantage in admissions and awards decision. But Barbara Hayashida, director of the graduate student diversity program of the division of biological sciences at the University of California, Berkeley, says affirmative action "is not an act of charity where programs bring in unqualified students and make heroic effort to bring them up to speed." At UC-Berkeley, only qualified students have been admitted under affirmative action and more of these minority students stayed in school, compared with nonminority students, she says. Over the years, U.S. courts and policymakers have taken a central role in defining the scope and limits of affirmative action. Following are some of the most significant executive measures and legal decisions. 1965: Affirmative action was born when President Lyndon B. Johnson argued that nondiscrimination laws were not enough to compensate for past racial injustice and that a more active role by the government was necessary. Through an executive order, Johnson mandated that federal contractors monitor their use of underrepresented minorities to ensure fair representation given the qualified labor pool. 1970: Following revelations of racism and sexism in the construction industry, President Richard M. Nixon introduced the use of timetables and employment goals to help contractors comply with federal affirmative action policies. 1978: Regents of the University of California v. Bakke marked the first major legal challenge to aggressive affirmative action programs. In this case, the Supreme Court ruled that the use of racial quotas and a separate admissions process for minority students by the School of Medicine at the University of California, Davis, was illegal. But the court did uphold the legality of flexible affirmative action goals and affirmed that race could be used as one among many criteria used in admissions or employment decisions. 1989: In City of Richmond v. J A. Croson Co., the U.S. Supreme Court first applied "strict scrutiny" to state and local "set-aside" programs, which reserved contracts and licenses for minorities. Under strict scrutiny, such programs could exist only if they were "narrowly tailored" to remedy proven discrimination. 1990: In Metro Broadcasting Inc. v. Federal Communications Commission, the court-citing a compelling government interest in "broadcast diversity"-affirmed the right of Congress to require a percentage of broadcasting licenses to be set aside for minorities. 1995: In Adarand Constructors v. Peña, the Supreme Court sent shock waves through the federal government when it first applied "strict scrutiny" to congressional "set-aside" programs. In the decision, the court demanded that all governmental programs employing racial distinctions "be subjected to detailed judicial inquiry" to ensure that no person's rights are violated. Following Adarand, most federal set-aside programs were reviewed. But based on Metro Broadcasting, many universities believed their affirmative action programs were protected because diversity remained a compelling state interest. 1996: In Hopwood v. State of Texas (1994), the Washington, D.C.-based Center for Individual Rights mounted the first successful attack on university admissions policies since Bakke in 1978. Two years later, the Fifth Circuit Court of Appeals denied the defendants an appeal of the lower court ruling. In the denial, the court declared that Bakke had little precedental value and that student diversity was not a compelling state interest.-S.P.H. UC doctoral programs in the sciences and other disciplines experienced less drastic declines in minority enrollment. Applications from African Americans declined by 8 percent in the last two years and admissions rates fell 10 percent in the same period. Although 2 percent more Native Americans have enrolled in the last two years, 8 percent fewer African Americans and 2 percent fewer Chicanos/Latinos joined the student ranks of UC. PYRRHIC VICTORY: Mary Ann Rankin notes that Hopwood did not affect minority enrollment in the natural sciences at UT-Austin. Licht reports difficulty in measuring the true impact on science departments of anti-affirmative action measures in California. "Looking at the numbers for 1997, we don't see the dramatic drop in applications that we saw in the professional schools," he says. "Nor were we likely to see in the numbers such provocative evidence of a negative or a positive effect because the pools of minority applications, admits, and matriculates have been small to begin with, and they fluctuate anyway from year to year due to a variety of factors." In 1997, the integrative biology department saw minority applications drop to eight from 17 in 1996. One minority student was admitted in 1997, compared with four in 1996. In the department of molecular and cell biology, 12 minority students were admitted and three matriculated. The effects of California's anti-affirmative action legislation on minority graduate enrollment were not nearly as harsh as some opponents of the measure had predicted, which shows that race-based preferences are not needed to ensure a diverse student body, according to Jennifer L. Nelson, executive director of the Sacramento, Calif.-based American Civil Rights Institute. For example, although African American admissions to UC medical schools declined by 10 percent in the last two years, the group actually saw a 4 percent gain from 1996 to 1997. "I think these recent increases are evidence of how universities can maintain diversity using a nondiscriminatory and fair admissions process," Nelson states. While Proposition 209 is limited to California, Hopwood v. State of Texas (1994) has set a lower court precedent that could affect affirmative action programs around the country. In the 1996 appeal of the case, a Texas federal court ruled that the creation and maintenance of a diverse student body was not a compelling state interest and therefore no longer grounds for using race in admissions decision. The ruling has made it more difficult for universities within the jurisdiction of the court to attract and enroll minority students. Immediately following Hopwood, the University of Texas (UT)-Austin saw a decline in minority applications, according to Theresa Sullivan, vice president and dean of graduate studies at UT-Austin. Despite this decline, she notes that a minority student's probability of being accepted into graduate school has not changed. Minority enrollment in natural sciences programs at UT-Austin has not declined since Hopwood, according to Mary Ann Sullivan, dean of the college of natural sciences at UT-Austin. However, Hopwood has limited the college's ability to offer special financial aid and fellowships to minorities. Texas public institutions revised their admissions policies in accord with the court decision in spring 1996. Under the new admissions standards, which rely less on standardized scores, the UT system's four medical schools increased minority enrollment. Charles B. Mullins, the UT system executive vice chancellor for health affairs, attributes recent increases in minority enrollment at the medical schools to an admissions policy that focuses less on test scores and more on factors such as leadership and communications skills. In January, 50 acceptance offers were extended to African Americans, a 72 percent increase over 29 made in 1996. Hispanic applicants improved their acceptance rate by 31 percent as 144 offers were made by the medical school. Increases in undergraduate minority enrollment at UT-Austin also count as proof that universities can maintain a diverse student body despite bans on affirmative action, according to Bruce Walker, UT-Austin director of admissions and associate vice president for student affairs. Following Hopwood, UT-Austin modified its undergraduate admissions policy to rely less on standardized test scores and class rank in determining the academic potential of the prospective students. More weight is now given to student "résumés." Instead of considering the race of an applicant, the UT-Austin undergraduate admissions process includes "an adversity index" in which students are recognized for overcoming socioeconomic disadvantages and other barriers to achievement. "The application process now is much more labor-intensive than before," Walker says. "A little creativity and a lot of work have helped us maintain diversity after Hopwood." Statistics show minority freshman enrollment increasing at UT-Austin in fall 1997. Freshman enrollment for African Americans edged up from 162 in fall 1996 to 163 in fall 1997. Hispanic freshman enrollment jumped 4 percent, from 772 to 807, while Native American enrollment posted a gain of 22 percent from 27 to 33. But Walker notes that Hopwood had a major impact on summer outreach programs, where minority enrollment declined by more than 50 percent as affirmative action in financial aid ended. While acknowledging that Hopwood did not touch off a plummet in minority enrollment, Campbell notes that 1997 figures for the UT system show shrinking minority representation. For example, in 1996, African Americans constituted 2.9 percent of the new freshman class. In 1997, that share fell to 2.4 percent. "While the predicted effects of Hopwood were ominous, it's true that the exodus of minorities from UT schools has not yet been massive." Campbell concedes. "However, when you consider that underrepresented minorities comprise 44 percent of the college-age population in Texas, their shrinking presence on campus is chilling," he adds. SECONDARY SOURCES: Nicholas Spitzer is hopeful UC-San Diego's outreach programs will produce a new generation of top students in science. Following the lead of Texas universities, many UC schools have turned to other tactics to ensure a diverse student population. Because Proposition 209 prohibits the use of race as a qualification for participation in education programs, universities have begun to focus outreach efforts on socially and economically disadvantaged neighborhoods and school districts, according to Nicholas C. Spitzer, a professor of biology at UC-San Diego and cochairman of a task force to improve outreach programs. The task force recently approved measures that could help many underrepresented students prepare for, and get admitted to, UC schools, according to Spitzer. In addition to strengthening existing outreach programs to inner-city children, UC- San Diego will create a charter middle and high school on campus and develop education partnerships with local schools. "We're at the point where we have to stop debating the ethics of Proposition 209 and begin to find solutions," Spitzer says. "Whether you believe in affirmative action or not, the fact remains that we need find ways of increasing educational opportunity for underrepresented groups." UC also is considering revisions to admissions policy that would make test scores and grade averages smaller factors in decisions, according to Licht. State Sen. Theresa Hughes (D-Calif.) has proposed legislation that would require UC to admit the top 12.5 percent of students graduating from each California public school. One plan at UC-Berkeley even has officials contemplating the elimination of standardized test scores from the admissions process. "With legal and public opinion turned against affirmative action, I think it is important that universities look for more accurate indicators of a student's potential [than test scores]," Campbell says. "But we need to be careful that any new admissions qualifications put in place really correlate with academic performance." David R. Burgess, chairman of the department of biological sciences at the University of Pittsburgh and author of a study on minority enrollment in biomedical graduate programs, says low minority enrollment in graduate departments nationwide shows that affirmative action cannot be abandoned yet. He has documented the displacement of minority students by foreign students in biomedical graduate education and suggests that affirmative action is needed to help remedy the situation (D.R. Burgess, Journal of NIH Research, 9[4]:17-21, 1996). Most science departments in graduate schools have their own admissions committees, which may or may not be dedicated to increasing minority enrollment, he says. "Sadly, the statistics show that most graduate departments, left to their own designs, have shown little interest in minority students," Burgess explains. Although American-born minorities held 12 percent of all bachelor's degrees awarded in science and engineering by 1993, they represented just over 7 percent of graduate enrollment in science and engineering programs. "Many members of admissions committees will tell you minority representation in science is a problem of supply-too few qualified undergraduates," Burgess says. "While the undergraduate pipeline may not be a torrent, there is a supply which has not been utilized." Burgess says research departments must carefully reevaluate their admissions process. He notes that many talented students, especially minorities, enter the academic pipeline through community colleges and lesser state universities. "Schools which service minorities and other disadvantaged students often lack the resources and equipment that would put them at the cutting edge of science. But that doesn't mean that these students are less talented, less intelligent, and less likely to succeed in careers in science if given the opportunity."

Affirmative Action Efforts Reconsidered

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