Fighting Back the Chill

While the climate for students of color at public institutions in states where affirmative action has been curtailed is brisk, several neighboring private institutions are taking a ‘your-loss-is-our-gain' approach to the ‘opportunity.' 
Though they lament the growing movement to dismantle affirmative action programs, admissions directors at private institutions across the nation see a positive side to the current climate of legal challenges.
"We're kind of excited about the opportunity because we may be able to provide access and engage students of color and ethnic minorities in ways we haven't been able to in the past," says  Ken Cornell, director of undergraduate admissions at Seattle Pacific University. "We're not changing our selection criteria at all."
In two West Coast states, public higher education institutions have been forced to disregard race as a factor in admissions after the voter referendums Initiative 200 in Washington and Proposition 209 in California passed in 1998 and 1996, respectively. However, Seattle Pacific University and other private institutions in Washington and California aren't required to follow the new laws.
"Why would we change our policies?" notes Richard Vos, dean of admissions and financial aid at Claremont McKenna College. "We've always had a commitment to affirmative action, and now because some students perceive that the University of California system is perhaps not as welcoming as it was a few years ago, more students are now thinking of going to the private [colleges]. The UC's loss is our gain."
Claremont McKenna — located in Claremont, Calif., and part of the Claremont colleges complex — is a small institution, with just 274 students in 1998's entering freshman class. Yet its enrollment of Black students is up 100 percent since 1996 — from nine to 18 students. Black students comprised less than 4 percent of the entering class in 1996, when 9 percent of Black applicants were accepted. Thirteen percent of Black applicants were accepted last year, and they now comprise 6.5 percent of the freshman class.

The Hopwood Factor
While private colleges in California, Washington, and other states can sidestep the current anti-affirmative action campaign, the situation is trickier for private institutions in Texas, Louisiana, and Mississippi — which are subject to the 1996 Hopwood decision issued by the U.S. 5 Circuit Court of Appeals. That ruling, which held that the University of Texas Law School could not use race as a factor in admissions, also is considered to apply to private institutions which use federal funds.
"Because we receive state and federal aid, we are bound by federal court ruling," explains  Sandy Ware, dean of admissions at Texas Christian University (TCU). "Nobody wants to be the first private school test case, because you get tied up in court for years and it costs you a zillion dollars. Our legal counsel has told us that yes, we are by implication bound [by the Hopwood decision]."
Following Hopwood, the Texas attorney general interpreted the ruling to apply to financial aid procedures in addition to admissions. That has forced private institutions to make changes to scholarships that were intended specifically for certain ethnic or racial groups.
Rice University was in a quandary because some of its scholarship funds had come from donations specifically designated for use by minority students. For a year, the scholarship money was held while the university decided what to do. A task force reevaluated the university's admissions and financial-aid guidelines, and wrote a revised procedure directing the admissions committee to consider students' life experiences and community service activities in addition to quantitative measures of success.
"We took that policy and went to the donors or their estates and asked if they would consider reevaluating the criteria to include ours," says Dr. Roland B. Smith Jr., associate provost.
Last year, Rice also initiated the Barbara Jordan scholarship, named after the former Black congresswoman from Texas who rose to national prominence during the Watergate hearings in 1974 and died in 1996. The first group of recipients of the new $30,000 scholarships includes three Black, three Latino, and three White students.  Smith believes the scholarship helps to counter negative perceptions that may be associated with the educational climate in Texas.
"We felt that we were being pictured along with other schools in Texas, because of Hopwood, as not being a welcome environment," Smith explains. "What we've been trying to do is counter that perception, so this is one of the ways that we've countered it."
Smith says Rice experienced a drop in Black student applications following the Hopwood decision, but now the numbers are back up again. In 1997, the percentage of Black students in the entering freshman class dropped to 4 percent, from 8 percent in 1996. Last year, Black students comprised 6 percent of entering freshman.
TCU has likewise altered the criteria of its scholarships that were directed to minority students, but Ware worries that the result will be a less diverse student population.
"The problem that I think most private schools face in this regard is that historically and traditionally, private education has not been perceived as readily accessible to ethnic minorities," Ware explains. "So without the scholarships leading the way — where you can go out there and say, ‘We have scholarships for you. We want you on our campuses. We want you to help us develop a more diverse experience for every student.' — we don't get in the door, because the first question is, ‘Do you have scholarships?' or, ‘How much is it going to cost?'"
Ware says TCU hoped to attract more minority students while also obeying Hopwood by offering scholarships to first-generation, college-bound students. But the university found the strategy ineffective because so many White students also qualified as first-generation, college applicants.

A Firm Commitment
Ware and other private institution admissions directors worry that the effect of dismantling affirmative action will go beyond dissuading minority students from applying to certain universities in Texas, California, and Washington. They fear that many minority students will choose not to attend college at all.
"We recognized that it wasn't going to be the kids who were shut out of public institutions or who were dissuaded from going to public institutions who would choose us," says  Michael McKeon, dean of admissions at Seattle University, a private Jesuit institution. "We realized what would happen is that they would choose not to continue their education, and that's the thing that was so tragic."
For that reason, a coalition of independent Jesuit universities issued a statement endorsing affirmative action policies at the annual conference of the National Association for College Admission Counseling (NACAC). 
"We never entertained any thought of being anything but committed to affirmative action," he adds.
While Seattle University may attract more minority applicants now, McKeon believes that, overall, students are being hurt.
"I guess it's an opportunity for the private colleges and universities, but we're not taking any pleasure in it," he explains. "Our feeling is that it's unfortunate, because we believe students should have as much choice as possible."
In other states where affirmative action policies have not been challenged, the U.S. Supreme Court's 1978 Bakke decision — which outlawed racial quotas in admissions, but allowed race to be considered as one of many factors to achieve diversity — is still the law of the land. Many private college officials remain resolute in their commitment to affirmative action. Duke University is one example.
"As a private institution with a certain degree of flexibility, we're very comfortable with what we're doing and we think it's the right thing to do," says Christoph Guttentag, Duke's director of undergraduate admissions.
In contrast to declining minority enrollment at public universities in California and Texas, Guttentag says Duke is achieving a more diverse student body. Black students currently comprise 10 percent of the freshman class at Duke, and Latino students comprise
5 percent.
"We had a record number of African American and a record number of Latino students in our freshman class last year," he says.
Admissions directors in other states are equally unflinching in defending affirmative action.
"We're not being deterred by some of the noise that's surrounding the debate about affirmative action," says Wylie Mitchell, dean of admissions at Bates College in Maine. "We're still trying to pursue the most talented, most diverse, most interesting freshman class that we can recruit."
Recruiting an ethnically diverse class is a challenge for Bates because of the homogenous, mainly White population in Maine.
"We certainly are involved in recruiting heavily out-of-state, because the in-state population of students of color is really quite small, perhaps 3 to 4 percent of high school students in Maine," Mitchell explains. "We really have to work on recruiting elsewhere to fill a lot of our ambitions for a diverse class."
Many admissions directors note that they consider many factors besides the standard quantitative criteria — grade-point averages (GPAs) and SAT scores — in order to reach diversity goals in their student populations.
Debra Chermonte, director of admissions at Oberlin College in Ohio, says her staff considers such factors as whether the student's primary language at home is other than English.
Rice also uses language as a measure of diversity. The Texas school changed a requirement of a scholarship targeted to Latino students by directing it at students with Spanish language ability. In that way, the criterion is linguistic rather than ethnic or race-based.
Mills College in California takes into consideration that some applicants may be providing a type of community service in their own homes, such as helping care for younger siblings or an ailing grandparent.
"We want to give them the same kind of credit that we're going to give somebody else for working in a soup kitchen," notes Avis Hinkson, dean of admissions at Mills.

 The New Target?
Yet while private universities are trying to abide by state and federal restrictions regarding admissions and financial aid, it seems only a matter of time before the growing anti-affirmative action fervor will reach their campuses.
Last month, the Center for Individual Rights (CIR) in Washington, D.C., began publishing advertisements in 15 college newspapers condemning "unlawful racial preferences" and urging students to examine whether their college is breaking the law on race and admissions. The ads are directed at both public and private colleges — including Columbia, Dartmouth, Duke, Rutgers, and University of Chicago — and offer students a free handbook on the topic (see story, pg. 51).
Terry Pell, senior counsel at the CIR, a conservative public policy law firm, says no one should infer that the colleges chosen are violating the law. They were selected simply because they represent a wide range of different types of institutions.
Yet the move to challenge private institutions' recruitment practices is new.
"This is just as much an issue for private schools as it is for public schools," Pell explains. "Our view is that the private universities that receive federal funds are bound by Title VI [of the Civil Rights Act]. The nondiscrimination requirement in Title VI has been repeatedly held by courts to be identical to the 14th Amendment's equal protection clause. In our view, recipients of federal funds are bound by [U.S. Supreme Court Justice Lewis] Powell's decision interpreting the 14th Amendment, just as much as publicly funded schools."
Pell says the evidence that private colleges are violating Title VI is both quantitative and anecdotal. He refers to the book, The Shape of the River, by Derek Bok and Dr. William Bowen, which asserts the benefits of affirmative action policies.
"What we took from Bok and Bowen is that race is a big factor and that it's being used largely to boost minority enrollment," Pell explains. "That's what many other defenders of affirmative action have said in the last six months or year — that the real goal is to boost minority enrollment, and that's a good thing. Automatically, that raises a legal problem."
Pell says using racial preferences with the goal of boosting minority enrollment directly violates Justice Powell's ruling in the Bakke case and the 14th Amendment to the Constitution.
Meanwhile, he recognizes that colleges are commonly considering factors beyond GPA and SAT scores in admissions decisions, and has no argument with that.
"But whatever they look at has to be applied across the board, and not applied in a segregated way," he says, "with one set of standards or factors for one racial group and another set of standards or factors for another racial group."
Defenders of affirmative action worry that in spite of efforts to stay within the limits of the law and broaden elements of admissions evaluation, America may lose potential college
students because of the rhetoric surrounding this debate.
"I think it's entirely conceivable that we will inadvertently discourage a generation of students from even continuing education," Ware warns. "I think that is the most terrifying aspect of all — especially in Texas and California — where in a few more years, the demographics are going to shift so much.
"I don't think people are looking at what the cost of this is going to be to the nation," she adds.
"I think it's ironic and distressing that [CIR] would now begin to focus on private institutions," says Olati Johnson, assistant counsel at NAACP Legal Defense and Educational Fund Inc. "This is new, and very surprising. Before they just concentrated on public institutions. They were resistant to the notion of government regulating what private actors did."
Johnson says that until now, CIR has taken a civil libertarian approach that would have been inconsistent with challenging the policies of private institutions. She adds that her organization doesn't want to be in a reactionary mode, continually having to defend against legal challenges to affirmative action, but it's difficult to avoid that considering CIR's influence and momentum.
"CIR has a lot of resources and it is focusing them on what it perceives to be a civil rights problem. But our organizations still do a lot of work to maintain opportunities for African Americans and other minorities, in primary and secondary education and in higher education, that are proactive."
She cites as an example her organization's participation in bringing the lawsuit against the University of California Regents this month by a group of students alleging discriminatory practices in UC-Berkeley's admissions process.
"There is some public antipathy to affirmative action, but I think it's mostly because people are not informed about what affirmative action really means," she notes, reflecting an opinion shared by some college admissions directors.
"There is sort of a public perception that CIR is trying to advance that affirmative action really harms White people.... I think when it's cast that way, people buy into it, but the converse is true — it really grants opportunities to minorities, but also benefits society at large as a result."