Coalition Letter Following Selected Court Decisions

September 13, 1995

Dear Colleague:

On behalf of the higher education associations listed below, we are writing to advise you on recent developments concerning affirmative action. In the past two months, a series of events has conspired to thrust this issue into the forefront of the national political debate, the outcome of which will have serious consequences for colleges and universities.

Over the past three decades, affirmative action has played a significant part in opening up employment opportunities for qualified women and minorities on college and university faculties and staffs, and in expanding educational opportunities for women and minority students. Such programs -- whether required by the federal government, as is the case in employment, or undertaken voluntarily by institutions, as is almost universally the case in admissions -- continue to be needed to expand equal opportunity and to help colleges and universities achieve their educational goals.

Despite recent legal setbacks and political controversies, affirmative action enjoys widespread support within higher education as a useful and important tool that helps colleges and universities achieve the goals of equal opportunity, educational quality, diversity, and inclusion. This support is underscored by the fact that the boards of directors of a number of the associations listed below recently passed resolutions strongly endorsing the continued use of affirmative action in hiring, contracting, and admissions. We are communicating that support to policy makers, and urge all higher education institutions, to the extent it is consistent with their missions, to maintain their efforts to expand opportunities for historically disadvantaged minorities and women of all races.

However, recent developments in the judicial, legislative, and executive branches at the federal level, at the University of California, and in the political arena have called into question the future viability of affirmative action.

Judicial Action

Adarand v. Peña
On June 12, the Supreme Court, in a 5-4 decision, ruled that federal affirmative action programs using race as a basis for preferential treatment are subject to "strict scrutiny" by the judiciary. Under this test, such programs are allowable only if they have a "compelling" reason for using racial classifications and are "narrowly tailored" to achieve their goals. While Adarand did not abolish the use of affirmative action in contracting -- in fact, the decision explicitly acknowledged that under some circumstances it may be justified -- it did establish a new hurdle for it to dear. Just how affirmative action programs can meet this test, the Court did not reveal.

For an excellent discussion of the ambiguities created by this decision, and its possible implications for colleges and universities, we refer you to an article by Martin Michaelson on the back page of the July 28 Chronicle of Higher Education. Obviously, until and unless federal affirmative action programs are changed or ended, higher education institutions that receive federal affirmative action programs are changed or ended, higher education institutions that receive federal grants, contracts, or student aid funds must continue to meet all applicable requirements in the areas of contracting and employment. In terms of admissions, we remain guided by the Bakke decision, which outlawed the use of quotas but embraced the consideration of race as one factor that could be used to help attain diversity in the student body.

Podberesky v. Kirwan
The Supreme Court in May refused to hear arguments in the case of Podberesky v. Kirwan, letting stand an appeals court ruling that the University of Maryland's Banneker minority scholarship program was unconstitutional.

Administration and Congressional Action

On July 19, President Clinton announced the results of the administration's review of federal affirmative action programs. While the president issued a ringing defense of affirmative action in his speech, he also proposed a number of steps to guarantee that such programs operate fairly and in keeping with their original objectives.

The president gave no indication that he planned changes in federal affirmative action requirements in the area of employment. Nor have we seen any indication that the administration plans to alter its stance on minority scholarships. Despite the judicial determination that Maryland's Banneker scholarship program was unconstitutional, the Department of Education's policy guidance, which holds that institutions may employ minority-targeted scholarships to remedy past discrimination or achieve diversity in the student body, remains in effect.

Senate Majority Leader Bob Dole has introduced legislation to end federal affirmative action programs, and similar legislation has been proposed in the House. In addition, some Republican House members may seek to attach anti-affirmative action amendments to various appropriations bills. We oppose any federal intervention which would arbitrarily eliminate those affirmative action programs which have ensured equal opportunity and access to qualified women and minorities.

University of California Board of Regents

On July 20, the University of California Board of Regents voted to change their policies on affirmative action in admissions, hiring, and contracting. The resolution approved by the board prohibits the university from using race, religion, sex, color, ethnicity, or national origin as a criterion for admission effective January 1, 1997. At the same time, it instructs the university to develop supplemental criteria, such as economic disadvantage or a poor social environment, that would be considered in the admissions process. In addition, it increases the share of students to be admitted "solely on the basis of academic achievement" -- i.e., class rankings and test scores -- from 40-60 percent to 50-75 percent.

In the areas of contracting and hiring, the regents extended to the UC system an executive order issued by Gov. Pete Wilson ending state affirmative action programs. However, the board also specified that its action would not prohibit the university from taking whatever actions are necessary to maintain eligibility for federal or state funds, including grants and contracts.

The action by the UC board creates several disturbing precedents. Through this decision, the governing board of one of the most multicultural universities in the most multicultural state in the nation has taken a significant step away from inclusiveness by rejecting the use of race, ethnicity, and gender as factors to assist in attaining diversity. If, as many suspect, the effect of the Regents' action will be to significantly diminish the diversity of UC's student body, faculty, and staff, this action may negatively affect the quality of education at those institutions. We are concerned that other colleges and universities might overreact to this decision.

Public opinion polls indicate that a majority of Americans oppose "preferences" based on race or gender. However, they also evidence strong public support for measures that guarantee fairness, and for special efforts to compensate for social and economic disadvantage. It is clear that we in higher education must do a better job of educating the public and policy makers about the importance of diversity and explaining how the procedures and standards we use in admissions and faculty hiring are critical to fostering equal opportunity and provide important educational benefits for all students.

Please be assured that we will monitor legislative, regulatory, and judicial developments on this front closely, and report to you on their implications for your institutions. In the meantime, if you have any questions or concerns, please feel free to contact any of the associations about them.

Sincerely,

Association of American Colleges and Universities
American Association of Collegiate Registrars and Admissions Officers
American Association of Community Colleges
American Association of State Colleges and Universities
American Council on Education
Association of American Law Schools
Association of American Medical Colleges
Association of Catholic Colleges and Universities
Association of Community College Trustees
Association of Jesuit Colleges and Universities
College and University Personnel Association
Council for Advancement and Support of Education
Hispanic Association of Colleges and Universities
National Association of College and University Business Officers
National Association of Independent Colleges and Universities
National Association of College Admission Counselors
National Association of State Universities and LandGrant Colleges
National Association of Student Financial Aid Administrators
National Association of Student Personnel Administrators
National Association for Equal Opportunity in Higher Education
National Association for Women in Education
The College Board
United Negro College Fund