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July 23, 2007
Edited by Gary Orfield, Patricia Marin, Stella M. Flores and Liliana M. Garces.
Foreword by Gary
Orfield
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The right of universities to take race-conscious action to diversify their student bodies rested for a quarter century on a U.S. Supreme Court decision in the 1978 Bakke case, which left almost no one satisfied and many conservatives convinced that an increasingly conservative Supreme Court would outlaw affirmative action. After a huge national mobilization over two crucial cases against the University of Michigan which were decided in 2003, Grutter v. Bollinger and Gratz v. Bollinger, it seemed likely that the surprisingly positive decision from the Court’s majority in Grutter would set a relatively clear path for the next quarter century. . . .
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The United States Supreme Court’s landmark 2003 decisions in Grutter v. Bollinger and Gratz v. Bollinger firmly established that university admissions policies which are designed to promote student body diversity and which employ race in a carefully crafted selection process can withstand constitutional challenge. The Supreme Court ruled that the creation of a diverse student body is a compelling governmental interest that can justify the flexible and modest use of race in admissions decisions. By upholding the diversity interest under the “strict scrutiny” test applied to race-conscious policies challenged under the federal constitution’s equal protection clause, the Court issued an imprimatur on the use of race in a variety of diversity-based policies outside of admissions, including outreach and recruitment, financial aid and employment, and support and retention programs. . . .
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In 2003, the United States Supreme Court issued landmark opinions in the University of Michigan affirmative action cases. The Court resolved the pivotal uncertainty that had plagued selective universities’ admissions policies for the past quarter century—whether student body diversity is a sufficiently weighty interest to justify an affirmative action program. In holding that student body diversity may constitute a compelling state interest, the Supreme Court placed affirmative action policies in higher education on much firmer constitutional footing. . . .
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A study of legal challenges to race-conscious programs in higher education reveals that institutions appear to be responding to negative publicity and the threat of litigation without fully considering how current social science research and case law support their efforts. Indeed, the threat of litigation is based on arguments that contradict official policy and misinterpret U.S. Supreme Court holdings. Institutions that seek to increase diversity in their student body should continue to defend their efforts, and additional research can be conducted to assist them. . . .
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Affirmative action policies in higher education have come under increasing scrutiny and opposition over the last decade as evidenced by statewide initiatives (e.g., I-200 in Washington, Proposition 209 in California, Proposal 2 in Michigan), appellate court decisions (e.g., 4th Circuit Court in Podberesky v. Kirwan, 5th Circuit Court in Hopwood v. Texas), race-neutral policy responses (e.g., Top Ten Percent Plan in Texas, Eligibility in the Local Context in California), and two U.S. Supreme Court decisions in 2003 (Grutter v. Bollinger; Gratz v. Bollinger). This policy dynamic has created the most varied set of state policies in recent history, affecting primarily campuses that apply selective admissions criteria to admit their entering classes of students. It is important to note that these changes are occurring at the same time that America is experiencing a changing demographic landscape that portends continuing discussions of merit, equality, and access as issues in the forefront of social and political debate. . . .
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In June 2003, affirmative action proponents lauded the U.S. Supreme Court’s decisions in Gratz v. Bollinger and Grutter v. Bollinger, the latter of which upheld the diversity rationale in Regents of the University of California v. Bakke (1978) and allowed colleges and universities to continue using race both carefully and flexibly as a “plus” factor in admissions. Her majority opinion in Grutter notwithstanding, Justice O’Connor urged admissions officials at the University of Michigan Law School and elsewhere to adopt colorblind programs expeditiously while studying the race-blind “experiments” in California and Washington where voters had previously dismantled affirmative action programs. Three years later, Justice O’Connor’s prescience was realized when Michigan voters passed Proposal 2 in November 2006 thus ending race- and gender-based preferences in education, employment, and contracting in the state. . . .
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The Meyerhoff Scholars Program at University of Maryland, Baltimore County (UMBC) was developed in 1988 in response to the low levels of performance of well-qualified African American science, technology, engineering and mathematics (STEM) majors, with a special interest in enhancing the performance of African American males. Baltimore philanthropists Robert and Jane Meyerhoff provided initial program funding, and have continued to contribute over the years. Other funding has come from national agencies, foundations, corporations, and individual donors. The program developers, led by UMBC’s then Vice-Provost (and since 1992 UMBC’s president), sought to develop a comprehensive, multi-component program that addressed the broad range of factors linked to minority student STEM success (cf. Maton & Hrabowski, 2004) . . . .
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The 1990s brought to an end race-conscious affirmative action in higher education admissions in both California (as a result of SP-1 and Proposition 209) and Texas (because of the Fifth Circuit’s decision in Hopwood v. Texas). However, the “race-neutral” policies, practices, and results of those adopted by these states have been mixed. The number of African American and Latino students at the University of California (UC) dropped precipitously and now, a decade later, is still below 1995 levels. Texas adopted the Top Ten Percent Plan (TTPP), and the University of Texas at Austin (UT) now has more minority students than ever. In addition to increasing the number of Black and Latino students, TTPP has increased the geographic diversity of UT undergraduates (Montejano, 2003). . . . \
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The Gratz and Grutter decisions did not settle issues related to the legality of race-conscious strategies for outreach and student aid (Ancheta, 2006; Banks, 2006; both are chapters in this volume). Programs that are race exclusive may be especially vulnerable, although there still may be a sound basis for defense. Changes in college prices resulting from the decline in federal need-based grant aid (Advisory Committee on Student Financial Assistance, 2002), the rise of state merit programs (Heller & Marin, 2002), and the emergence of targeted, market-oriented grant aid as tools in institutional enrollment management (McPherson & Schapiro, 1997) have increased inequality in the opportunity to enroll in college across racial groups since 1980 (St. John, 2003). This condition has only been partially mitigated by race-conscious aid programs; however, the extent to which the legal challenges to race-conscious aid awards as targeted forms of grant aid, actually dismantle these programs, it will be increasingly important to adapt other forms of aid (including other merit and targeted aid programs) to ensure diversity in enrollment in institutions whose missions align with this goal. . . .
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