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Why Race And Education Are Still Up In The Air

The Supreme Court takes another case on a messy issue
By Silla Brush

After years of fierce legal battles, college leaders nationwide let out a sigh of relief in 2003 when the Supreme Court upheld the use of racial preferences in college admissions. But for conservatives, the narrow 5-to-4 decision that summer in favor of the University of Michigan Law School was far from the end in their decades-long fight against affirmative action. Immediately, they began to gird for battle--again.

"My initial fear after those decisions were released was that the universities would be using race as a larger factor in admissions," says Jennifer Gratz, who won a parallel case 6 to 3 against the university, in which she alleged she was unjustly denied undergraduate admission because she is white. Two weeks after the ruling, Gratz and Ward Connerly, who has fought racial preferences across the country, vowed to campaign for a state ban on affirmative action in college admissions, government hiring, and contracting. The ban is set for the Michigan ballot box this fall, with polls showing it leading by a slim margin. "I've committed my life to this," Gratz says.

That initiative is just one of a series of challenges to the Supreme Court rulings that many said were a vague and unsatisfying compromise on one of the country's most contentious issues. That point was underscored last week when the high court--with a new cast of justices--decided to again take on the issue of racial preferences, this time in determining elementary and high school placements.

The split decision in the Michigan cases said an applicant's race could be one factor in admissions decisions, but the court gave no specifics as to how, and neither has the federal Education Department. Colleges are left to test on a case-by-case basis what is permissible. Nowhere has that tug of war been more combative than on the issue of race-specific scholarship and aid programs.

Half of the country's public research universities have such programs, estimates Travis Reindl, a policy expert at the American Association of State Colleges and Universities. The Center for Equal Opportunity, a conservative legal group, has sent roughly 200 letters to colleges challenging the programs.

Open aid. Fretting about lawsuits, many colleges have since altered the programs. Carnegie Mellon University, for example, modified a tuition-scholarship program designed for minority students. In January, the State University of New York changed the criteria for $6.8 million in fellowship and scholarship money that had been designed for black, Hispanic, and American Indian students. "We're not asking for the program to be shut down," says Roger Clegg, head of the Center for Equal Opportunity. "We just want it opened up to all students."

When colleges don't modify the programs on their own, Clegg has also sent complaints to the Education Department--about programs at Washington University in St. Louis and Pepperdine University, among other colleges--prompting several to change their programs, while others are in negotiations with the government. Southern Illinois University reached an agreement with the Justice Department in April to broaden three programs originally designed for minorities and women only.

For supporters of affirmative action, conservatives' tactics amount to intimidation, says Marc Morial, head of the National Urban League. He says some college presidents have "folded their tent" because of the challenges. "We see a risk-aversity," says Ted Shaw, head of the National Association for the Advancement of Colored People's Legal Defense and Educational Fund. "At some point we're going to have to stand and fight."

Partially in response to the legal battles, colleges have increased their efforts to encourage minorities to apply through organizations such as the YMCA and local churches, says Sheldon Steinbach, general counsel for the American Council on Education. There have been similar efforts to widen the applicant pool at the graduate level as well. At the University of Texas's "intellectual entrepreneurship" program, nearly half of undergraduates who signed up to learn about ways to use a graduate degree outside academe were minorities or first-generation college students, says Rick Cherwitz, the program's founder.

With the court set to take up affirmative action this fall, supporters and opponents will be eager to see whether the majority view will change with the confirmation of Chief Justice John Roberts and Justice Samuel Alito."They want to make a statement," anticipates Steinbach, who says the decision could have a broad effect on affirmative-action policies. But regardless of the outcome, both sides know the fight will continue.