- The Washington Times - Saturday, May 4, 2002

The state attorney general's office is telling Virginia state-funded colleges not to admit students on racial or ethnic grounds to make up for past discrimination.
"We are unaware of any facts or credible legal theory that would support the use of race-conscious programs for remedial purposes at any of Virginia's public institutions of higher education," State Solicitor William Hurd wrote in a private memo dated April 22.
"Circumstances today no longer support such programs and they must be discontinued as contrary to public law," he told admission officials, according to a copy of the memo obtained by the Center for Equal Opportunity, a nonprofit education group.
Timothy Murtaugh, spokesman for Republican Attorney General Jerry Kilgore, said the memo was not intended for public distribution.
"It's not [that it was] secret, that's not entirely accurate," Mr. Murtaugh said. "It was advice from an attorney to his clients, meaning the colleges and the universities. The attorney generally does not release that."
Gov. Mark R. Warner, a Democrat, would not comment on the admissions advice Mr. Kilgore's office dispensed.
Roger Clegg, the center's general counsel, said he was glad Mr. Kilgore shared his legal views with college officials. "Some think that those who use [race-based policies] are skating on thin ice. We think the ice is actually not there, that it is non-existent," he said.
Earlier this week, The Washington Times reported that black students with B-plus undergraduate grades and above-average scores on the standardized Law School Admission Test (LSAT) were 730 times more likely to be admitted to the University of Virginia's law school than an equally qualified white student, and 170 times more likely at the College of William and Mary, according to an analysis of 1999 admissions data.
"It is appalling to find such discrimination at public law schools, of all places," said Linda Chavez, president of the center, which compiled the report. Based in Northern Virginia, the center opposes affirmative-action practices.
Mr. Hurd did not rule out giving preference to racial groups for the purpose of increasing diversity at the schools. He did, however, put strict guidelines in place. Schools, for example, must prove that race-neutral policies will not work.
He warned that diversity-geared programs ultimately could face trouble.
"A diversity-based policy that purports to use a wide range of factors may still be held unconstitutional if it gives undue weight to race and ethnicity, or if the policy changes the outcome for a few applicants" he wrote. "Any diversity program that involves classifications on the basis of race must be open to all federally recognized minorities."
Mr. Murtaugh said the memo was written in response to a November 2001 report issued by the U.S. Department of Education that gave Virginia's colleges a "clean bill of health" meaning the school system is not discriminatory.
The Commonwealth had a history of segregation in schools, however, and many universities contacted the attorney general's office for advice on their admission practices, Mr. Murtaugh said.

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