Last June, supporters of affirmative action declared victory when the
U.S. Supreme Court endorsed limited use of race in college
admissions. It was one of the court's highest-profile rulings of the
year and its first major foray into the realm of collegiate
affirmative action in 25 years.
Exactly 12 months later, that sense of vindication has faded.
Despite winning the battle over admissions, supporters of affirmative
action appear to be losing ground in the areas of financial aid and
minority outreach programs.Colleges in Virginia and nationwide are
quietly opening up scholarships previously restricted to black
students. Programs aimed at recruiting and retaining minorities have
been scrapped or broadened to include white students. And once again,
highly selective colleges with race-based programs are on the
"While we have secured that critical victory with regards to
diversity . . . there have been a series of attacks since the
decision by conservative, right-wing groups attempting to achieve
through threat what they could not achieve in the Michigan
case," said Lia Epperson, assistant counsel for the NAACP's
Legal Defense and Educational Fund.
In its June 23, 2003, rulings in what are known as the Grutter and
Gratz cases, the court endorsed the use of race as one of many
admissions factors to increase diversity on campus. In so doing, the
court majority reaffirmed the diversity argument in the landmark 1978
Bakke case. The court overwhelmingly rejected, however, a University
of Michigan policy that awarded applicants "points" on the
undergraduate admissions scale just for being black as well as quota
But the justices were conspicuously silent on race-based
scholarships and programs, leaving those weighty issues open to
interpretation by lower courts and the opposing sides.
"I think it's more complicated [today] because the decisions
were not clear," said Diane Schachterle, a spokeswoman for the
American Civil Rights Institute, a leading opponent of affirmative
action. "It remains muddied."
Based in California, the American Civil Rights Institute and its
East Coast collaborator, the Center for Equal Opportunity, are
capitalizing on that ambiguity.
Extrapolating from the court's rulings, the groups have sent letters
to dozens of colleges and universities nationwide warning them
against denying qualified white students access to scholarships and
programs offered to minorities.
The Center for Equal Opportunity, based in Sterling, Va., has filed
formal complaints with the federal Office for Civil Rights against a
handful of institutions - Virginia Tech, Pepperdine University and
Massachusetts Institute of Technology among them.
"Even though the proponents of racial preferences hailed the
Supreme Court decision . . . the fact of the matter is the use of
racial preferences remains very suspect," said Roger Clegg,
CEO's general counsel. "And schools that insist on using such
practices remain on the defensive."
Virginia Tech officials insist that the office of Attorney General
Jerry Kilgore was the driving force behind changes to minority
programs. Tech governing board members cited Kilgore's advice against
race-conscious policies as justification for their March 2003 vote to
end affirmative action in admissions, financial aid and hiring.
Although the board later relented to public pressure and reversed
that decision, Tech gradually has eliminated or opened up minority
scholarships and programs to all students, regardless of race.
"I don't think the CEO had anything to do with it," said
Tech spokesman Larry Hincker. "In our particular case, we're
following the advice of the attorney general."
Other schools in Virginia and elsewhere also are opting to play it
safe rather than risk a costly legal battle.
The College of William and Mary reconfigured one minority program
and has reviewed others since the Supreme Court ruling. Harvard and
Yale universities opened up summer programs for minorities. Amherst
College in Massachusetts, Pittsburgh's Carnegie Mellon University and
MIT also now admit white students to outreach programs created for
Black scholarships also have taken a hit.
In 2001, 40 percent of all public, four-year universities nationwide
administered scholarships restricted to specific racial or ethnic
groups, according to a survey by the National Association of Student
Financial Aid Administrators and The College Board. More recent
numbers are not available, but some schools - including Indiana
University and Washington University in St. Louis - have opened up
Kenneth Redd, director of research and policy analysis for NASFAA,
said many college officials would prefer to keep quiet about the
"Many institutions are afraid that if they announce sweeping
changes in their aid programs, it might lead to lawsuits or other
controversies on campus or in the media," Redd wrote in an
e-mail. While those programs typically enroll very few students,
changing them "could mean a lot symbolically to their campus
communities," he said.
The National Association for the Advancement of Colored People's
Epperson said that her organization often gets calls from colleges
and universities seeking guidance on such issues. She recommends that
every policy be examined individually and that, whenever possible,
race-blind criteria be incorporated. But she defended the need for
Ronald Krotoszynski, a professor and constitutional law scholar at
Washington and Lee University's School of Law, said that the Supreme
Court clearly wants lower courts to hash out the remaining issues. In
the meantime, institutions are left with "a lot of
guesswork," he said.
"It took the court 25 years to get from Bakke to the Grutter
and Gratz decisions, so I don't look for the court to return to
affirmative action in higher education any time soon,"