- The Washington Times - Monday, June 30, 2003

The new Supreme Court decision allowing public universities to choose students by race likely was the first shot in what will be a political war fought state by state.

While the ruling in the University of Michigan cases allowed states to have affirmative-action plans, it did not require them and warned that race-neutral alternatives must be tested first.

The decision did not reverse bans on race references in the constitutions of California and Washington, or the race-neutral program imposed in Florida by Republican Gov. Jeb Bush, who pledged to keep it.

Legislatures also could outlaw the programs or simply refuse to fund them, but analysts said political reality argues against that.

“Michigan must be first. We are very serious about doing an initiative in Michigan,” said Ward Connerly, chairman of the American Civil Rights Institute (ACRI) and architect of California’s Proposition 209, which banned race preferences in college admissions, government contracting and hiring.

Mr. Connerly, a member of the California Board of Regents, said yesterday he is committed to fighting “racialist mischief” nationwide, and will begin work next week for a state constitutional amendment to make Michigan join California and Washington as “race-free zones.”

“Michigan is the big tortilla here. Michigan changes the equation entirely. If the state that gave rise to these high-profile court decisions to use race preferences for the sake of diversity says we do not agree with the court, that would send a powerful message and others will follow,” Mr. Connerly said in an interview from Sacramento.

Former U.S. Solicitor General Drew S. Days III said initiatives against affirmative action are a legitimate response, without stating his own view.

“The tendency of people, even though it’s not accurate, is to think you have to do it even though it’s an option. That the Supreme Court says it’s constitutional doesn’t necessarily make it mandatory,” he said.

“There’s no reason that I can think of that would prevent states from having initiatives,” he said, calling them tests of “where does the political will and power lie?”

The 5-4 decision did nullify the 5th U.S. Circuit Court of Appeals Hopwood opinion barring Texas, Louisiana, and Mississippi from using preferences, and ends a court challenge to affirmative-action programs in Georgia’s public universities.

Since 70 percent of public universities admit virtually all students that meet defined academic standards, the fight will focus on the few hundred “highly selective” schools where rejection rates exceed 50 percent.

“This decision doesn’t say a state can’t ban affirmative action. This is not a requirement,” said Harvard professor Gary Orfield, co-director of Harvard’s Civil Rights Project, which advocates affirmative action.

“Initiatives to block the practice are acceptable, and it also would be possible for voters to insist that their state government follow Michigan’s lead,” Mr. Orfield said.

Terence Pell, president of the Center for Individual Rights, which financed the student lawsuit against the University of Michigan, emphasized that states make their own rules.

“It’s perfectly within a state’s power to judge college applicants by their achievements rather than by their skin color,” Mr. Pell said yesterday.

The Supreme Court cited as a race-neutral example the One Florida program that Mr. Bush imposed by executive order in 1999. The president’s brother vowed this week to keep his plan, which produced a freshman class that is 36.2 percent minority, and a class of graduate students that is 23.5 percent minority.

“We’re going to stay the course on race-neutral admissions and expand our programs to reach all Florida students who yearn for higher education,” Mr. Bush said.

“Good for him. It’s the right thing to do. It’s what nine out of 10 Americans support and it works,” Mr. Pell said.

President Bush opposed race preferences as Texas governor and during the presidential campaign, promoting a race-neutral guaranteed admission at the University of Texas to all graduates in the top 10 percent of their class.

Douglas Laycock, a University of Texas-Austin law professor who represented his school’s losing effort in Hopwood, agreed yesterday with Don Hale, university vice president for public affairs, who said the “top 10 percent” plan is not as successful as the national administration portrays it.

“Surely, we’ve tried it since 1997. It’s not reaching its goals. Nobody is satisfied with the numbers,” Mr. Hale said when asked why his school would so quickly return to race preferences.

“We don’t have a good substitute for affirmative action,” said UT-Austin President Larry R.. Faulkner.

Mr. Pell disagreed.

“If there’s any state that knows race-neutral plans work, it is Texas. Texas judges applicants by their achievements rather than skin color, and they know these systems work,” Mr. Pell said. “Any state that jumps immediately to race preferences is risking a quick legal challenge.”

Mr. Laycock said affirmative action would more readily be banned by initiative than by legislation, but recalled that Houston voters defeated a local initiative to bar race preferences in public contracts.

“There isn’t a legislative body in the nation that has the courage to do this,” Mr. Connerly said.

The Universities of Massachusetts and Illinois are among those using some kind of point system, and Ohio State University used a Michigan-like plan that allows 25 points for certain races to enroll the class of 6,200 that began orientation last Monday.

“We will take a look at our system and revise it to concur with the court’s ruling with an eye toward diversity,” said Ohio State spokeswoman Elizabeth Conlisk.

Mabel Freeman, who heads that admission process, said that her school put its point system on hold but said it gives greater weight to other factors than Michigan does. She said half the school’s minority students are selected solely by academic achievement in competition with all applicants.

“In all honesty, just like everyone else this week, we’ve stopped to look at what we did, at least through last week, and to decide where we go from here. We all understand the court has said that race is still a very legitimate consideration in college admissions,” Mrs. Freeman said.

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