(NAME-MCE) Advice on Affirmative Action - American Council on Education

[Anselmo Villanueva]

The American Council on Education has issued a paper with
advice<http://www.acenet.edu/AM/Template.cfm?Section=HENA&CONTENTID=23641&TEMPLATE=/CM/ContentDisplay.cfm>for
colleges on issued raised by a Supreme Court decision this year that
limited the use of race in school assignment in elementary and secondary
school systems. While the ACE paper notes that the Supreme Court did not bar
the use of affirmative action in college admissions, the council's analysis
notes that the justices appeared skeptical about some ways that race might
be used in educational decisions. Specifically, the council urged colleges
to make sure that they have considered race-neutral alternatives, that the
use of race is linked to institutional missions, and that colleges not rely
on the need for "critical mass" of minority students.

Complete story below.  For related stories, go to:

http://www.acenet.edu/AM/Template.cfm?Section=HENA&CONTENTID=23641&TEMPLATE=/CM/ContentDisplay.cfm

To download complete paper, go to:

http://www.acenet.edu/AM/Template.cfm?Section=Legal_Issues_and_Policy_Briefs2&CONTENTID=23636&TEMPLATE=/CM/ContentDisplay.cfm

New Paper Outlines Lessons Learned from Recent Supreme Court Decision on
Affirmative Action in K-12 Schools Sept. 11, 2007

The American Council on Education (ACE) has released a paper evaluating the
implications for higher education of the recent Supreme Court decision
regarding race- and ethnicity-conscious admissions policies in K-12 public
schools.

In two closely-watched cases, the Supreme Court
ruled<http://scotusblog.files.wordpress.com/2007/06/05-908.pdf>on June
28 that public school districts may not use race and ethnicity as
the predominant consideration in school assignment programs designed to
promote diversity. In a 5-4 decision that combined the two cases *Parents
Involved in Community Schools v. Seattle School District No. 1* and *Meredith
v. Jefferson County Board of Education*, the Court set a difficult standard
for "narrow tailoring" of such policies in the future but did not completely
rule out diversity as a compelling state interest  in K-12 public education.

The new ACE paper points out that the most important implication of the K-12
cases is that the Supreme Court's 2003 ruling in *Grutter v.
Bollinger<http://www.supremecourtus.gov/opinions/02pdf/02-241.pdf>
* "remains controlling law" for colleges and universities.

The decision in *Grutter v. Bollinger* upheld the affirmative action
admissions policy of the University of Michigan Law School. In the court's
ruling, Justice Sandra Day O'Connor's majority opinion held that the United
States Constitution "does not prohibit the law school's narrowly tailored
use of race in admissions decisions to further a compelling interest in
obtaining the educational benefits that flow from a diverse student body."

"Since *Seattle* and *Louisville* were the first consideration of principles
taken from the 2003 University of Michigan cases, we have given the Court's
decision a careful reading to analyze its impact on how colleges and
universities use race as an aspect of diversity," said Ada Meloy, ACE's
general counsel. "We remain cautiously optimistic that *Grutter* survives
the change in Supreme Court membership."

Distinguishing the K-12 decision from its seemingly contrary decision
in *Grutter
v. Bollinger*, the Court noted that unlike the admissions plan it upheld in
*Grutter*, "the plans here 'do not provide for a meaningful individualized
review of applicants' but instead rely on racial classifications in a
'nonindividualized, mechanical' way."

However, the ACE paper outlines, there are lessons to be learned for
colleges and universities in these  latest decisions, including:

   1. *Diversity is still a legitimate factor to consider in making
   admissions decisions*. Colleges and universities will need to ensure
   that, if they are seeking to admit a diverse student body, they have both a
   clear mission with a definition of diversity and a process for reviewing
   applications to implement that mission.
   2. *Individualized and holistic review of applications*. Colleges and
   universities need to make admissions decisions based on whether the totality
   of an application indicates that the applicant contributes to the school's
   diversity goals, its overall mission, and its educational objectives.
   3. *Considerations of race must yield results*. Although the Court
   does not explicitly state a college or university must achieve results if it
   is going to consider race, the implication of the Court's reasoning is that
   results matter (and those results probably have to be more than minimal).
   4. *Caution regarding "critical mass."* The skepticism toward the use
   of numerical goals or broad ranges expressed by the Court in the
   cases suggests that institutions should use the concept of "critical mass"
   carefully and base it upon the educational benefits the institution seeks to
   obtain from enrolling a diverse student body.
   5. *Race-neutral alternatives must be considered*. A college or
   university that wishes to create a diverse student body must seriously
   consider non-race-conscious means first. If those means do not accomplish
   the institution's goal, the institution may then consider race to a limited
   degree.
   6. *Sense of institution's mission.* A college or university must have
   a strong sense of its mission and educational objectives and the role, if
   any, diversity plays in achieving both.

To download the full paper, see the  ACE
website<http://www.acenet.edu/AM/Template.cfm?Section=Legal_Issues_and_Policy_Briefs2&CONTENTID=23636&TEMPLATE=/CM/ContentDisplay.cfm>.
Also read ACE's "friend of the court"
brief<http://www.acenet.edu/AM/Template.cfm?Section=Search&template=/CM/ContentDisplay.cfm&ContentID=18586>filed
in October 2006 in support of the Seattle and Louisville school
districts.