Wesleyan University: Statement on Supreme Court Affirmative Action Decision

July 24, 2003

The Supreme Court's June 23 rulings in two cases challenging affirmative action substantially reaffirm the diversity efforts undertaken by Wesleyan and other selective schools and protect present admission policies, according to legal experts and University officials.

"The Court found that diversity is a compelling state interest and that race can be a factor in admissions," said Ted Shaw '76, associate director and counsel of the NAACP Legal Defense and Educational Fund Inc., who both served as lead counsel for Black and Latino students in the University of Michigan undergraduate case and helped author the law school's admission policy. "The Court rejected arguments that institutions cannot employ programs targeted at minorities."

The Court upheld the University of Michigan Law School's affirmative action procedures 5-4 in the Grutter case and rejected the undergraduate college's procedures 6-3 in the Gratz case. However, the law school case was the one that most closely reflected the admission policies of Wesleyan and other schools, which consider race and ethnic background more subjectively in the context of the "whole candidate" or "whole file" being considered, rather than in formulaic or quantitative terms. This approach—developed in part to ensure adherence to guiding principles established by the Supreme Court in the Bakke case 25 years ago—has now been affirmed in Grutter. By contrast, the Gratz ruling finds that Michigan's use of a point formula in weighing race and ethnicity as a factor in admission decisions was not narrowly tailored to achieve the goal of a diverse student body.

"The undergraduate case simply means that institutions must structure their programs properly," Shaw said. "As long as we continue to operate as we have been—giving applications individualized consideration, without separate pools for minority candidates, without quotas for certain groups—we are in good shape. These rulings really represent an all-out victory for Wesleyan and for schools that practice affirmative action as we do."

Numerous parties, including college and university groups and associations, filed amicus briefs with the Court in the affirmative action cases. A brief filed by Amherst, Wesleyan and 25 other schools was one of a handful cited in the opinions, and the only brief of any undergraduate institutions cited, according to Charles H. Sims, an attorney with Proskauer Rose in New York City, who drafted the brief. According to Sims, Justice Sandra Day O'Connor's opinion for the Court in the Grutter case establishes several legal underpinnings for present admission policies at the amici schools:

• Policies aimed at obtaining "the educational benefits that flow from a diverse student body" are permissible, if properly drawn; the Court deferred to the educational judgment of Michigan, and other universities and colleges, that this was a proper, indeed, compelling interest for educational institutions to pursue.
• First Amendment interests support that deference to the educational judgments of educational institutions, and courts should assume that institutions are pursuing those goals in good faith, absent evidence to the contrary.
• Neither institutions of higher education nor other important institutions (such as the military) should have to choose between excellence and diversity; to the contrary, it is vital that they "remain both diverse and selective."
• "In order to cultivate a set of leaders with legitimacy in the eyes of the citizenry, it is necessary that the path to leadership be visibly open to talented and qualified individuals of every race and ethnicity."
• Race-conscious admissions programs may not use quotas or consider race in a "mechanical" way. Colleges and universities "cannot establish quotas for members of certain racial groups or put members of those groups on separate admissions tracks." A quota is "a program in which a certain fixed number or proportion of opportunities are 'reserved exclusively for certain minority groups.'" Furthermore, the admission process cannot insulate applicants who belong to certain racial or ethnic groups from the competition.
• The schools may, however, consider race or ethnicity more flexibly, treating race and ethnicity as a "plus" factor and in an individualized fashion when considering each and every applicant. This would also permit giving greater weight to race than other factors for the purpose of achieving student body diversity.
• Attention to numbers "does not transform a flexible admissions system into a rigid quota. Moreover, the Court found there could be no quota even in theory where "between 1993 and 2000, the number of African-American, Latino, and Native American students in each class at the Law School varied from 13.5 to 20.1 percent."
• Applicants must be evaluated as individuals. Race or ethnicity may not be the defining feature in the application.
• There should be a holistic review of each applicant's file, considering all the ways an applicant could contribute to a diverse education environment. There should be no automatic acceptance or rejection based on any single "soft" variable, particularly race. There should be no predetermined award or bonus based on race or ethnicity.
• All factors that may contribute to the diversity of the student body should be meaningfully considered alongside race in the admissions decisions. The Court found it significant that the Law School gives "substantial weight to diversity factors besides race," including a range of talents, qualities and experiences.
• There needs to be a good faith consideration of workable race-neutral means to achieving diversity. However, narrowly tailored does not require exhaustion of every conceivable race neutral alternative.

Both Shaw and Sims expect further challenges to affirmative action. The Court's decisions did not address certain related practices that could be challenged, such as dedicated scholarships and pre-admission "enrichment" programs. Moreover, the fact that affirmative action is held to be constitutional by the Supreme Court does not preclude state initiatives, such as those in California and Texas, that limit the efforts of colleges and universities within their jurisdictions. "Still, with all the support for affirmative action in the amici briefs," Shaw said, "the work of our opponents will be much harder than it was before." And in the meantime, Justice O'Connor's opinion for the Court in Grutter is "a strong victory" for Wesleyan's policies, Sims said, and an important protection for the foreseeable future.

Said Wesleyan President Douglas J. Bennet: "I am pleased and not surprised by this legal affirmation of our approach to affirmative action in admission. We look forward to furthering Wesleyan's historic commitment to the principles of diversity in liberal education and full access to higher education for students from all backgrounds. We will continue admitting students in the same holistic, highly individualized manner we have undertaken for decades, which has served this community and the society so well."

wesleyan university
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