Court decision harks to UC's Bakke case: New affirmative action ruling could have profound impacts, but not at UC

The United States Supreme Court this week issued a complex, split decision on a pair of affirmative action cases involving the University of Michigan's admissions policy.

The high court upheld the university's use of race in law school admissions, but said the use of a point system that considers race in undergraduate admissions was unconstitutional. At stake was a landmark University of California ruling that has shaped college admissions for a quarter century. It is the first time the court has considered the matter since 1978, when it decided Regents of the University of California v. Bakke, a case that originated at UC Davis.

Once it is fully interpreted, the Michigan ruling could have a profound effect on race relations for generations to come and the future of affirmative action programs around the nation. But it may not change much in the way student admissions are handled at UC Davis. Race hasn't been a factor in UC admissions for almost a decade now. "It won't make any difference to us," says Faith Fitzgerald, a professor of internal medicine at UC Davis School of Medicine and former assistant dean of admissions and outreach.

"We've been individually reviewing student applications for years not based just on grades and test scores but also on the accomplishments of the applicants."

Bakke and constitutional clarity

In the early 1970s, Allan Bakke sued the UC Davis Medical School, after twice being denied admission. His lawsuit alleged he was a victim of its unconstitutional affirmative action policies. The Supreme Court issued a divided 5-4 ruling on June 28, 1978. Four justices ruled UC Davis had set up an unconstitutional quota system. Four justices ruled race could be used as one criterion in admissions. In a "grand compromise," Justice Lewis Powell ruled that while he thought Davis' program was unconstitutional, universities could still use race as one factor to achieve a diverse student body.

Powell's "diversity rationale" has been the practice ever since.

The Supreme Court reentered the fray this term by agreeing to review two suits joined as a single case challenging the constitutionality of affirmative action admission policies at the University of Michigan's law school (Grutter v. Bollinger) and undergraduate programs (Gratz v. Bollinger). At issue was whether the undergraduate program could award extra points to Latinos, African Americans and Native Americans -- groups typically identified for affirmative action -- and whether the law school program could seek a "critical mass" of students from these groups.

"It could have a huge impact because the current state of law on affirmative action is very confused," said Tobias Barrington Wolff, professor at the UC Davis School of Law and a visiting professor next year at Stanford University. Wolff, who studies constitutional law, expects that once the court's decision is fully interpreted, the ruling will result in some sort of "clear guidance" for lower courts on how to handle affirmative action cases and issues.

One of the reasons the Bakke case did not resolve the issue, he notes, is because it lacked a clear majority opinion. One key question for the justices to resolve, Wolff said, is whether a state institution, such as a university, has a "legitimate and compelling interest" in establishing diversity in its student population. The justices' decision may also have an impact upon the constitutionality of outreach programs, which aim to increase the numbers of minority students who apply for admission.

In the nation the result of this case will be dramatic, he said. But not necessarily at UC. "There are a lot of limitations on what California institutions can do to promote diversity or affirmative action. It's much less likely that what UC Davis does would be subject to a challenge under the federal constitution because the state already places dramatic restrictions on higher education in terms of recruiting for diversity," Wolff said.

A personal analysis

Since Bakke, said Fitzgerald, the UC Davis School of Medicine has "hand-reviewed" all its applications "not by any set of numbers" but based on the "accomplishments" and "dedication" of the candidates. The term "dedication," she said, refers to what the applicant has done in addition to his or her academics, including research, family care, travel, languages, community involvement, artistic talents and dedication to serving underprivileged populations. "We're looking for students who can engage our rigorous curriculum and who have shown themselves to be of good character," she said.

Fitzgerald, who came to UC Davis in 1980, recalled the man who started it all -- Allan Bakke, who was by then a third-year medical student. "He was a man who wanted to be a doctor," said Fitzgerald. "He wasn't seeking publicity. At first, many of his classmates shunned him. But he eventually gained their respect and admiration because he fully immersed himself in the program and did not look for media attention or anything. In the end, his classmates came to protect him from the media onslaught."

Campus admissions

For undergraduate freshman, the UC system has developed a number of programs aimed at reaching out to underrepresented minorities. But as Wolff says, limitations exist on how much can be done, and yet this strict approach means the UC system probably won't need to worry about significant changes in admissions policies.

"Because California passed Proposition 209, an adverse ruling will not directly impact us in the way we manage admissions," said Yvonne Marsh, assistant vice chancellor for enrollment services and student affairs.

"However, my concern is, that once again, a negative ruling might be interpreted as an unwillingness by highly selective institutions such as UC Davis, to provide access to historically underrepresented students. UC has been working very hard to counter that perception."

Once an institution with affirmative action, UC eliminated race as a criterion in admissions for the fall class of 1998. This followed Proposi-tion 209, passed by the state in 1996, which prohibited any racial preference to be acknowledged in all state-funded agencies; and an earlier reso-lution passed by UC regents in 1995 -- Standing Policies 1 and 2. SP-1 and SP-2 banned the consideration of gender and race in university admissions and employment, respectively.

The university then saw enrollment of underrepresented students plummet at all campuses, including UC Davis. "We haven't made up the ground yet," Marsh said.

Since then, she said, the university has enacted a number of strategies to enhance preparation of students from low-income and educationally disadvantaged backgrounds. These efforts include expanded outreach to students and educational partnerships with K-12 schools, expansion of admissions criteria that the university employs to define academic achievement, guaranteeing admission to the top 4 percent of graduates from every high school, implementing a system to comprehensively review applications from all eligible students, and enhanced outreach to community college students.

This fall, Marsh said, UC will establish a dual admissions program that will allow another path to UC by offering admissions both to a UC campus and a community college for those high school students on the path to UC eligibility, "but not quite there," Marsh said.

Community colleges are often more reflective of the ethnic diversity of the state, and with additional support and encouragement more of these students may be likely to enroll at UC, she said. Applications, she noted, represent those who applied for admission, whereas enrollees are those who earned and accepted admission offers. In 1995, 16.1 percent of UC Davis' freshman class applications came from underrepresented students. That number dipped to 13.4 percent by 1999, but rose to 15.4 percent by 2002.

Marsh said applications for those students for fall 2003 admissions are 16.2 percent and "finally returning to the 1995 level." However, enrolled underrepresented minorities fell from 17.9 percent in 1995 to 12.1 percent in 2002. It is too soon to provide figures for fall 2003 enrollments, she said, though preliminary estimates show gains for some of the groups.

Concern about trends

Up-and-down trends are why Adela De la Torre, director and professor of Chicana/o stud-ies, is concerned about the potential effect of the Supreme Court ruling on Michigan policy.

"I'm not as optimistic as others," she said. "One of the big problems is that we have already seen an adverse impact on admissions for underrepresented students. Some may interpret the court's ruling in a way that gives them impetus to challenge the types of outreach programs that UC has developed in recent years. While these are not explicitly targeting minority students, one might argue that they are doing so, in effect."

De la Torre noted that in the time since race was eliminated as an admissions factor, while some rebounds in enrollment have taken place at some UC campuses, minority enrollments are still declining at UCLA and UC Berkeley. She also said underrepresented student numbers are declining in UC's professional and graduate schools.

The way she sees it, affirmative action is not a "radical" program. "I disagree with those who say it's a form of preferential treatment. In affirmative action policy, ethnic background or race is simply one of a set of soft variables that can be used in consideration with others."

De la Torre said other criteria, such as leadership and legacy issues, are other examples of "soft" variables widely used in admissions that are not concrete or quantitative enough to measure; and they draw little if any criticism the way affirmative action does.

Politics and history

Edmond Costantini, professor emeritus of political science, says the ruling may not clear up the affirmative action debate. The Rehnquist court takes a "minimalist" strategy in its decision-making, he said. "Instead of grandiose pronouncements, they often deal on the margins of the issues."

Costantini said the Rehnquist court is "highly divided" on controversial issues including affirmative action. A clear Supreme Court rejection of affirmative action could rally its supporters and unite them on a wider set of civil rights issues -- a scenario the Bush Administration might not prefer going into an election year, he said. "I think Karl Rove (Bush's key political advisor) would prefer that some middle ground be found on this issue."

The alliterative combination of words, "affirmative action," first surfaced March 6, 1961, in an executive order by President John F. Kennedy. The order required companies seeking government contracts to take affirmative action to treat their employees equally.

It appeared next in a speech by President Lyndon Johnson on July 2, 1964, defining the concept, and again that September in an executive order enforcing affirmative action for the first time. Jim Crow laws still existed, and the order came in the same year as the landmark Civil Rights Act of 1964. The order was expanded in 1969, and the Civil Rights Act was amended in 1972, requiring schools and government to seek more minorities.

Affirmative action advocates believe it is the only way to offset past years of segregation and is essential to the future of democracy. Opponents of affirmative action say that racial preference in university admissions furthers race victimization, particularly against whites. In 2001, UC regents made a gesture to restore the university's "welcome mat" to minority applicants by rescinding SP-1 and SP-2. Symbolically important, the effort was legally hindered by Proposition 209.

Issuing a 'cautionary tale'

Supporters of affirmative action like De La Torre say the court must allow universities to maintain race-based admissions practices because racial diversity improves students' education. "We also have to ask ourselves," De La Torre said: "What alternative to diversity do we have? The truth is we don't have an alternative."

Since Bakke, lower-court judges have reached widely varying conclusions about what that decision meant and what race-conscious admissions policies, if any, it allowed.

This March, Supreme Court justices heard oral arguments in both Michigan cases, and on April 20, UC President Richard Atkinson published an op-ed piece on affirmative action in the Washington Post. His piece called California a "cautionary tale," and he warned the court about the consequences of getting rid of affirmative action.

Atkinson said he is concerned that the university "is not doing a good enough job" representing the state's increasingly diverse graduating high school classes. Falling enrollment of underrepresented students became more troubling as California's high school graduating classes became more diverse, he wrote. "Our experience to date shows that if race cannot be factored into admissions decisions at all, the ethnic diversity of an elite public institution such as the University of California may fall well behind that of the state it serves."

Benefits of Bakke

The irony of the Bakke decision is that it made the medical school admissions process more comprehensive and arguably "more equitable" for everyone, said Roberto Paez, an analyst for the UC Davis Health System who helped screen medical school applications in the late 1980s and early '90s.

"The admissions process at the medical school has evolved to allow for a lot more selectivity," Paez said. "More variables are taken into account now than ever before."

Paez, who also served as a special assistant to Chancellor Vanderhoef and Provost Bob Grey on affirmative action and diversity, recalled that the medical school class entering in 1993 was comprised of about one-third or so under-represented minorities, the most ever for the school. Critics of affirmative action pointed out that the 1993 class included considerably fewer whites than typical. That viewpoint may have put political pressure on the university system to continue modifying its admissions policies, he said.

"Bakke forced schools to rethink the link between academics and character, and so we tried different matrices to see what would work," Paez said. "Ultimately, what UC Davis and other schools were looking at was what makes for a good physician."

As the Michigan case is interpreted, schools might simply have to reorganize themselves to address the same constraints California has faced, he said.

"This doesn't have to be a bad thing, and in fact could result in something more viable, more meaningful," Paez said, noting: "My experience working in the area of disadvantaged student development is that unless an impetus for change exists, it generally won't happen."

(Editor's note: A report about UC admissions since Proposition 209 is available at www.ucop.edu/sas/publish/aa_final2.pdf.)

Media Resources

Clifton B. Parker, Dateline, (530) 752-1932, cparker@ucdavis.edu

Clifton B. Parker, (530) 752-1932, cparker@ucdavis.edu

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