Dear Colleague:

As you know, the Supreme Court announced on July 1 that it would not review the decision of the U.S. Court of Appeals for the Fifth Circuit in Texas v. Hopwood. The denial of review does not carry the weight of a judicial precedent. We can only speculate about why the Court elected not to take the case. Two of the justices, in a brief opinion, noted that the challenged program had been abandoned, and thus the case was moot and the question of whether it is permissible, under the Constitution, to consider race or national origin in college admissions was not ripe for review. The other seven Supreme Court justices were publicly silent.

A three-judge panel of the Fifth Circuit (which covers Texas, Louisiana, and Mississippi) had found that certain admissions procedures of the University of Texas School of Law violated the equal protection clause of the 14th Amendment. In so finding, two of the judges said that promotion of diversity in a university student body by any reference to an applicant's race or ethnicity was improper. The two judges sought, in effect, to reverse the landmark 1978 ruling of the Supreme Court in Regents of the University of California v. Bakke. Bakke consistently has been read to allow some consideration of race and ethnicity, but did not permit the challenged set--aside of a particular number or class places for minority students.

The third Fifth Circuit judge, no doubt aware that the appeals court lacks authority to reverse the Supreme Court, observed that the Hopwood case did not require or warrant reinterpretation of Bakke. Previously, the district court in Hopwood had endorsed in principle the proper use of race and ethnicity to promote student diversity, in accordance with Bakke, but had rejected the challenged University of Texas program.

Our legal counsel has advised us that Bakke remains good law, and that the Fifth Circuit opinion applies only in the three states in that circuit. At the same time, he notes that recent Supreme Court decisions, such as Adarand v. Peña (1995), although not arising in the field of higher education, reflect a heightened skepticism by the divided Court about affirmative action. To be lawful, affirmative action programs generally must withstand "strict scrutiny" by the courts, a concept the judiciary has interpreted in various ways, albeit to date primarily in cases not involving higher education. Because affirmative action measures at many institutions involve a range of programs and activities that entail varying degrees of risk, he recommends that colleges and universities consult their own lawyers to obtain advice tailored to each institution's circumstances.

We commend to you two recent articles by Martin Michaelson: "Affirmative Action: Few Easy Answers," in the summer issue of Priorities, a publication of the Association of Governing Boards of Universities and Colleges, which summarizes affirmative action law, and "A Time to Increase Public Understanding of Affirmative Action," in the July 19 issue of The Chronicle of Higher Education.

Our associations remain strongly committed to appropriate steps that advance inclusion and pluralism in higher education. American campuses today feature more diverse student bodies and faculties than ever before, but much remains to be done if the door of opportunity is to be opened meaningfully to all sectors of society. We do not believe that now is the time to reverse or abandon the hard-won progress colleges and universities have made, nor that this is the time to proclaim that the promise of higher education is available adequately to all who are qualified.

The basic educational values of most colleges and universities call for efforts to achieve a diverse student body and faculty--and not only for the benefit of those who are underrepresented. All students benefit from an education in which diverse backgrounds, life experiences, and other relevant characteristics are brought to bear. Justice Powell's opinion in Bakke recognized that.

We will continue to monitor developments related to affirmative action, as well as how institutions respond to the challenge of diversity and inclusion. Please feel free to contact any associations if you need further information on this issue.

Sincerely,

Robert H. Atwell
President
American Council on Education

On behalf of the following associations:

American Association for Higher Education
American Association of Colleges and Universities
American Association of Colleges for Teacher Education
American Association of Colleges of Nursing
American Association of Collegiate Registrars and Admissions Officers
American Association of Community Colleges
American Association of State Colleges and Universities
American Association of University Professors
American Society for Engineering Education
Association of American Medical Colleges
Association of Community College Trustees
Association of Governing Boards of Universities and Colleges
Association of Jesuit Colleges and Universities
College and University Personnel Association
Council for Advancement and Support of Education
Council of Graduate Schools
Council of Independent Colleges
Educational Testing Service
Hispanic Association of Colleges and Universities
NAFSA: Association of International Educators
National Association for College Admission Counseling
National Association for Equal Opportunity in Higher Education
National Association of College and University Business Officers
National Association of Independent Colleges and Universities
National Association of State Universities and Land-Grant Colleges
National Association of Student Financial Aid Administrators
National Association of Student Personnel Administrators
National Association of Women in Education
National Collegiate Athletic Association
National University Continuing Education Association
The College Board
United Negro College Fund

| Making the Case for Affirmative Action | Threats to Affirmative Action |
| Affirmative Action Works | Answering the Critics | Legal Issues |
| What You Can Do | ACE and Affirmative Action |
| Acknowledgments |

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Last Modified: May 22, 2002