Ruling in favor of Cheryl Hopwood and three other white students who had sued the law school at the University of Texas after their applications were rejected, the court barred the law school from using race in the admissions process. The use of race in decisions, the court wrote, "is no more rational on its own terms than would be choices based upon the physical size or blood type of applicants."
That ruling became law in Texas, Mississippi, and Louisiana. But most colleges in the rest of the country continue to use affirmative action, relying--albeit somewhat nervously--on the landmark 1978 Supreme Court decision, Regents of the University of California v. Bakke. In that case, brought by a white student who was denied admission to the UC-Davis medical school, the Court ruled that admissions officers could "take race into account" as one factor among many.
The next big court case in the ongoing debate over affirmative action in college admissions involves the University of Michigan. Two lawsuits brought by white students--one aimed at Michigan's undergraduate admissions policies, the other at its law school--charge that the university's use of racial preferences in admissions violates the 14th Amendment's Equal Protection Clause and the Civil Rights Act of 1964. Ohio is in the same federal appeals court circuit as Michigan, so any decision that affects the admissions process at Michigan may very well extend to Oberlin.
The question now is, on which side will the judges in Michigan fall?
A Plus Factor
"We are certainly watching the Michigan case with interest,"says Oberlin President Nancy Dye. "It's more relevant to Oberlin than the Hopwood decision. That was based on the practice of having separate and lower quantitative admissions thresholds for black and Latino student applicants. In the Michigan case, the plaintiffs are challenging practices that are much more closely related to what Oberlin does--race is one of many plus factors we consider in admissions, rather than a deciding or determinative factor."
Leo M. Romero '65, a professor and former dean of the University of New Mexico School of Law and a member of Oberlin's Board of Trustees, says the outcome of the Michigan case may determine whether Oberlin is forced to modify its policies in any way. "One of the concerns that I have as a trustee is making sure that the procedures adopted by Oberlin could be defensible if challenged."
At Michigan, he says, race seems to serve more as a plus factor rather than a deciding factor. "If the court came down with a decision saying that no affirmative action is permissible in higher education--that Bakke is no longer good law--that would be the worst case decision" for Oberlin, Romero says. "If they say that, the court doesn't even have to look at the way the program is put together.
"If the court decides that Bakke is still good law--and then examines the way that Michigan designed their program--then it's important to see what they say is acceptable. We'd have to compare what they say is acceptable with the procedures that Oberlin has."
Oberlin has not buried its head in the sand as affirmative action has come under attack. "The Board of Trustees has had some briefings on the litigations that are pending around the country, and we've had discussions about Oberlin's mission as part of our strategic planning exercises," says William L. Robinson '63, a visiting professor of law at the University of Maryland School of Law and an Oberlin trustee.
Robinson, who was dean at the University of the District of Columbia's law school for a decade, concedes that courts are subjecting affirmative-action policies to increasing scrutiny. Still, he believes the strongly worded decision in the Hopwood case will be the exception rather than the rule.
"The trend is toward parsing the details of race-conscious affirmative action programs very precisely--it's not just a trend of declaring programs unlawful," he says. "It may very well be that one plan would pass muster and another would not, based on the formation of the constitutional standard that the Court has recently adopted. The standard is one that has some flexibility."
Like most other institutions, Oberlin's College of Arts and Sciences uses SAT scores and high-school grades in deciding whom to admit. But its pool is small enough--it gets about 4,000 applications per year--that "we're able to look at every aspect of the application," according to Tammy Dowley-Blackman, director of multicultural recruitment partnerships in Oberlin's admissions office.
The institutions that have become embroiled in lawsuits over racial preferences have had policies that are at least somewhat mechanistic. For example, at the time the Hopwood lawsuit was filed, Texas' law school used an index that called for the "presumptive" admission of black students with scores on the LSAT below those of white students who were "presumptive" rejects.
Robert Scott '65, dean of the University of Virginia's law school, says that such simplistic admissions systems are appropriately condemned.
"You can only do it the hard way," he says. "If you're going to say that individual factors are important in assembling a class, then it's essential that you look at students individually."
As recently as eight years ago, Virginia's law school had a committee charged with recruiting and recommending the admission of black students. "We moved away from that for a variety of reasons," Scott says. "Now, we require that members of the admissions committee look not just for ethnicity, but also for also for evidence that an individual has overcome socioeconomic difficulties and hardships."
The undergraduate admissions system in place at Michigan in 1997, the year the lawsuits were filed (the system has since been changed slightly), also had some mechanistic elements--although nothing like the cutoffs at Texas' law school. A Michigan philosophy professor who opposes the school's affirmative action policies obtained--and subsequently made public--an internal document for undergraduate admissions officers which seems to make race the decisive factor in determining how some applicants with similar scores are treated. For example, a white applicant with a GPA of 3.2 and an SAT score of 1,000 was to be rejected, while a minority applicant with similar credentials was to be admitted, according to the document. Michigan officials described the grid as a guideline for admissions officers who would consider a variety of other factors.
During the summer of 1997, Republican state lawmakers began asking students who felt they had been discriminated against to come forward. The Center for Individual Rights, a non-profit legal organization that led the fight against Texas in Hopwood, plucked Jennifer Gratz, the lead plaintiff in the undergraduate admissions case, from a group of more than 50 students.
In the Bakke case, the justices found that colleges had a compelling interest to use race--in part because racial diversity leads to viewpoint diversity. But the judges in the Hopwood case rejected that reasoning. They noted that plaintiff Cheryl J. Hopwood--a 32-year-old wife raising a severely handicapped child--would have added diversity to the Texas law-school class even though she was white.
Officials at Michigan hope to make a better case for affirmative action. They are assembling new evidence that they hope will demonstrate why higher-education institutions have a compelling interest to use race.
The seminal text used to defend affirmative action has quickly become The Shape of the River: Long Term Consequences of Considering Race in College and University Admissions,released last year by Princeton University Press. The authors, William G. Bowen and Derek Bok, the former presidents of Princeton and Harvard, offer the most comprehensive look ever at how students who benefited from racial preferences have fared both during and after college. The authors studied more than 45,000 students who entered 28 selective colleges, including both Oberlin and Michigan, in 1976 or 1989.
The authors found that black students with the lowest SAT scores had the highest chance of graduating if they attended the most selective of the 28 colleges. They found that black graduates were more likely than white graduates to go on to become leaders of community, social-service, and professional organizations. And among the group that entered in 1989, the authors found that 88 percent of the black students and 56 percent of the white students "knew well" two or more students of another race.
Scott, the dean at Virginia's law school, believes that this mingling between students of different races is an invaluable educational tool. "It's just a fact in a heterogeneous society that different people will respond differently to external phenomena. Just look at the public events that have broken along ethnic or gender lines--Anita Hill, the O.J. Simpson trial. I don't know how you can be a good lawyer unless you are immersed in an environment in which there are people who don't think as you do."
Clayton Koppes, dean of Oberlin's College of Arts and Sciences, agrees, noting that students can learn almost as much from each other as they do in their classes. "The presence of a diverse student body enriches the education of all students enormously," he says. "If we have more diverse students, they bring a different perspective--they bring a real-life perspective to the classroom. That's one of the key things that happens in education--challenging the conventional perspectives that students bring with them, whatever those may be."
Moreover, white students are practically begging for such experiences, according to Koppes. "One of the things that has been underreported is that there are many students who are hungry for this diversity in their classroom--at Oberlin and elsewhere. They feel shortchanged if they don't have this.