2004 Legal Update

Presentation to the 31st Annual National Conference on Collective Bargaining
National Center for the Study of Collective Bargaining in Higher Education & the Professions
Hunter College, The City University of New York
By Donna R. Euben, AAUP Counsel
April 19, 2004

This outline will highlight legal developments in higher education over the past year that may be of particular interest to higher education faculty members and administrators, including: (1) full-time faculty eligibility for private sector collective bargaining; (2) academic freedom and free speech; and (3) affirmative action.

I. Private Sector Full-Time Faculty Unionization

Since 1980, when the U.S. Supreme Court issued its decision in NLRB v. Yeshiva University, 444 U.S. 672 (1980), collective bargaining efforts under the National Labor Relations Act (NLRA) of full-time faculty at private colleges and universities have slowed to a trickle.

A. Unionization of Full-Time Faculty Under the NLRA

LeMoyne-Owen College: This post-Yeshiva case involves a faculty union of about 60 full-time faculty at a historically black college in Memphis, Tennessee. In the most recent ruling, the federal appellate court in the District of Columbia on February 10, 2004, remanded the case to the NLRB for further factual development and analysis. The issue, as always, is whether the faculty members at this particular institution are managerial.

In 2002 the National Labor Relation Board's Regional Director (RD) had found the faculty not to be managerial employees under Yeshiva because the professors "neither possess[ed] absolute control over any facet of the school's operations, nor effectively recommend[ed] policies affecting its administration." 25-RC-10120 (Aug. 6, 2002). The RD noted that in some instances the college president established "special committees" to bypass standing committees of faculty. The RD further observed that the dean called meetings and set agendas of the faculty assembly. Accordingly, the RD found that the "decision-making authority of the LeMoyne-Owen faculty is routine, lacking the breadth and the discretion" to categorize the faculty as managerial. The administration appealed the RD's opinion, and the Board summarily affirmed that decision, writing in a one-sentence order that the college had "raised no substantial issues warranting review." 25-RC-10120 (Sept. 4, 2002).

The administration again sought Board review, and the Board again denied review. 26-RC-8328 (Oct. 11, 2002). The administration refused to bargain, and the Board found the administration guilty of unfair labor practices, and ordered it to negotiate with the faculty union. 26-CA-20953 (Jan. 17, 2003). The administration sought judicial review of the Board's order, and the Board, in turn, sought judicial enforcement of its order.

The federal appellate court in 2004 found that "the Board has not provided any explanation—let alone an adequate one—of how its disposition is consistent with its contrary holdings in the post-Yeshiva cases that appear to have presented similar facts. The only opinion is that of the Regional Director, which did not discuss or even mention a single one of the precedents on which the college relied." The court admonished the Board, because it needed to "do more than simply ignore" the administration's arguments. Accordingly, the court remanded the case to the NLRB for further proceedings.

See also California School of Professional Psychology and California Federation of Teachers, Case No. 32-RC-5167 (Sept. 23, 2003) (ruling that "core faculty members" are not managerial employees under Yeshiva because, in part, the administration often "disregarded" faculty members' recommendations on academic policy and governance of institution or "bypassed the faculty altogether when making decisions on major academic and non-academic issues").

B. Private Religious Colleges and Universities

A 2002 decision by a federal appellate court made unionizing at private religious colleges and universities even more difficult for faculty.

University of Great Falls: A unanimous three-judge panel of the D.C. Circuit ruled that the NLRB lacked jurisdiction over the school because it was a religious institution. In so ruling, the court narrowly interpreted the U.S. Supreme Court decision, NLRB v. Catholic Bishop, 440 U.S. 490 (1979), to allow religious colleges and universities, in essence, to exempt themselves from NLRA coverage. The court ruled that the NLRB has no jurisdiction over an educational institution that "(a) holds itself out to the public as a religious institution; (b) is nonprofit; and (c) is religiously affiliated." To provide otherwise, opined the court, would allow the NLRB to "troll through the beliefs of the University. . . ." The court stated that requiring an institution to identify itself publicly as religious will be checked by the "market," because such identification will attract some students, and dissuade others. University of Great Falls v. NLRB, 278 F.3d 1335 (D.C. Cir. 2002).

The NLRB General Counsel recently relied on Great Falls to advise that the Board lacked jurisdiction over teachers at the Oldenburg Academy of the Immaculate Conception, a Catholic college preparatory school for grades 9 through 12, because the Academy's purpose was "in substantial part" to promote religious faith. 2002 NLRB GCM LEXIS 56 (Sept. 24, 2002).

II. Academic Freedom and Free Speech Cases and Controversies

Various constituencies make claims to academic freedom and freedom of speech in the academic community. Consequently, even professors, lawyers and judges "are not always clear whose academic freedom is at stake." Robert M. O'Neil, Academic Freedom and the Constitution, 11 J.C. & U.L. 275, 281 (1984). The tension between institutional and individual academic freedom continues to play out in the judicial arena. Cases arise in a variety of postures, some of which will be explored below, including:

• claims of administrations against the State (the graduate assistant cases before the NLRB);
• claims of students against faculty and administrations (Axson-Flynn v. Johnson);
• claims of professors against administrations (Schrier v. University of Colorado);
• claims of students and faculty members together against administrations (Crue v. Aiken);
• claims of professors, administrations and students against the State (the Solomon Amendment cases).

A. Administrations v. State: The Graduate Assistant Cases

The NLRB is currently considering a number of graduate assistant (GA) cases in which college and university administrations assert that the unionization of GAs violates the institution's First Amendment right of academic freedom (and, of course, whether GA's are "employees" under the NLRA, an issue addressed by another panelist). With the recess appointment of Ronald Meisburg, the majority of the full Board has now been appointed by President Bush. NLRB Bulletin, "Ronald Meisburg Receives Recess Appointment from President Bush to Be NLRB Member." (Dec. 29, 2003) <www.nlrb.gov/nlrb/press/releases/bul_meisburg_dec2003.htm>.

In New York University, 332 N.L.R.B. No. 111 (2000), the Board held that certain graduate assistants at NYU were employees under the Act and, therefore, could choose to unionize. In so ruling, it rejected the administration's argument that to allow GA unionization under the NLRA violated the administration's right of academic freedom. The Board reasoned:

While mindful and respectful of the academic prerogatives of our Nation's great colleges and universities, we cannot say as a matter of law or policy that permitting graduate assistants to be considered employees entitled to the benefits of the Act will result in improper interference with the academic freedom of the institution they serve.

The Board found that the administration's concern about infringement of academic freedom because of graduate student unionization turned "largely on speculations," and that "[s]uch conjecture does not . . . establish infringement."

The AAUP filed an amicus brief on behalf of the graduate assistants, contending that the unionization of GAs would not violate NYU's institutional academic freedom, disrupt graduate student involvement in university governance, or interfere with the mentoring relationships between faculty members and their graduate students. The brief is available in .pdf format. In November 2000 the GAs voted for UAW representation.

The Board currently has under consideration a number of GA cases in which it may revisit its NYU decision. Most recently, in Trustees of the University of Pennsylvania, the Penn administration, like the administrations of Brown University, Columbia University and NYU, contended that the unionization of graduate students who are employees violates the academic freedom of institutions. In May 2003 the AAUP filed an amicus brief in support of the graduate assistants, arguing that the Board's decision in New York University was well reasoned and should not be revisited. The AAUP argued that: (1) the First Amendment does not immunize universities from the NLRA; (2) national AAUP policies on faculty and graduate student unionization, and local AAUP faculty bargaining experience, demonstrate that unionization is consistent with academic freedom; (3) graduate assistant unionization does not harm faculty-student mentoring relationships; and (4) institutional academic freedom concerns are best addressed through collective bargaining, not by determining whether graduate assistants are employees. In the brief the Association further contended that nothing in the Family Educational Rights and Privacy Act (FERPA) dictated denying GAs the protection of the NLRA, and that teaching as an academic requirement for GAs should not, on its own, preclude finding that GAs are employees. A copy of the Pennsylvania brief is available in .pdf format. This case, like the cases of Brown University, Columbia University, and Tufts University, is pending before the NLRB. The AAUP amicus briefs in Columbia and Brown are available in .pdf format.

B. Students v. Faculty & Administration: Axson-Flynn v. Johnson (University of Utah)

Christina Axson-Flynn is a former student at the University of Utah. She is also a member of the Church of Jesus Christ of Latter-Day Saints. Axson-Flynn had sued her university's theater department professors for having allegedly violated her right to free speech and free exercise of religion under the First Amendment by requiring, as part of the curriculum, that students perform in-class plays, despite Axson-Flynn's religious objections. As part of the theater department curriculum, the professors asserted that "it is an essential part of an actor's training to take on difficult roles, roles which sometime[s] make actors uncomfortable and challenge their perspective." The student alleged that she told the theater department before being accepted into the "Actor Training Program" that she refused to "take the name of God or Christ in vain" or use certain "offensive" words. After she was accepted into the program, she changed some words in assigned scripts for in-class performances so as to avoid using words she found offensive. Her professors warned her that she would not be able to change scripts in future assignments. Axson-Flynn dropped out of the special theater program, and sued her professors.

In August 2001 the district court ruled against the student. The court hypothesized that if the curriculum requirements were to constitute a First Amendment violation, "then a believer in 'creationism' could not be required to discuss and master the theory of evolution in a science class; a neo-Nazi could refuse to discuss, write or consider the Holocaust in a critical manner in a history class." <www.nysd.uscourts.gov/courtweb/pdf/D10utxc/01-08418.PDF>.

The AAUP filed an amicus brief in support of the professors and the university. In the brief the AAUP argued that: (1) seeking to hold professors liable for damages because they insist that students complete established course requirements contravenes settled principles of First Amendment faculty academic freedom; and (2) giving a high level of deference to academic judgments and requirements established by university faculty is proper. A copy of the brief is posted in .pdf format.

On February 3, 2004 the Tenth Circuit reversed the district court and remanded the case to the lower court. While the panel of three judges clearly embraced the notion that courts should defer to the professional judgment of faculty to determine what is pedagogically appropriate in the college classroom, the court ultimately concluded that "[v]iewing the evidence in a light most favorable to Axson-Flynn, . . . there is a genuine issue of material facts as to whether [the professors'] justification for the script adherence requirement was truly pedagogical or whether it was pretext for religious discrimination." The court did not explicitly recognize a separate right of academic freedom under the First Amendment. It nonetheless observed that the First Amendment must be applied carefully within the context of the university. Unfortunately, the court analyzed this case under the Hazelwood decision, which arose in the K-12 setting, and applied that analysis to curricular speech in colleges and universities.

C. Faculty & Administration v. State: The Solomon Amendment Cases

FAIR v. Rumsfeld: This case involves the Solomon Amendment, a federal law requiring that colleges and universities allow the military full access to recruiting on campus, even though the military does not comply with the institutions' policies against aiding any employer who discriminates on the basis of sexual orientation. The Solomon Amendment punishes universities with a loss of federal funding if the university, or any individual component thereof, excludes military recruiters from campus.

Many law schools restrict military recruiters from participating in their on-campus recruitment programs because the military's "don't ask, don't tell" policy on sexual orientation does not comply with the law schools' anti-discrimination policies. Because the Solomon Amendment puts the schools and their faculty in the position of violating their own policies regarding discrimination on the basis of sexual orientation, or risking the loss of millions of dollars in federal funding throughout the institution, a coalition of law schools came together as the Forum for Academic and Institutional Rights (FAIR) for the specific purpose of challenging this law. The plaintiffs argue that the Solomon Amendment violates their First Amendment rights to academic freedom, free speech, and freedom of association. Other individual law school cases making similar arguments are pending in different circuits around the country.

AAUP's brief to the Third Circuit argues that the Solomon Amendment violates concepts of academic freedom and shared governance by forcing law schools and their faculty to abandon mutual pedagogical principles of how to teach lessons of ethics, justice and civil rights. The brief noted that the anti-discrimination policies at the law schools were part of a considered pedagogical approach to teach by example, and that the Solomon Amendment's attempt to force law schools to aid military recruiters violated principles of academic freedom. The brief was filed January 12, 2004, and a copy of the brief is available in .pdf format. The case is pending before the Third Circuit.

Other cases challenging the Solomon Amendment are pending in federal district court, including cases involving Yale University (Burt v. Rumsfeld) and University of Pennsylvania (Burbank v. Rumsfeld). Copies of AAUP's amicus briefs in both these cases are available in .pdf format.

D. Faculty v. Administration: Schrier v. University of Colorado

Robert Schrier, M.D., is a tenured faculty member at the University of Colorado School of Medicine, and was chair of the department of medicine for over 20 years, until the administration removed him from that position in October 2002. Prior to his removal Dr. Schrier had publicly opposed a proposal and ultimate decision of the Board of Regents to move the medical school to another campus. He sued the administration, arguing, in part, this his removal as chair violated his First Amendment right of academic freedom, and seeking reinstatement. The district court rejected Dr. Schrier's legal claims. In particular, the court opined that Dr. Schrier's status as a university professor, who also served as department chair, entitled him to no rights distinctive from those of any other public employees. Dr. Schrier appealed the ruling to the Tenth Circuit. In December 2003, the AAUP filed an amicus brief in the case in which AAUP argues that a distinctive First Amendment right to academic freedom exists, and that to rule otherwise conflicts with U.S. Supreme Court precedent and other federal appellate courts, including the Tenth Circuit. A copy of the AAUP amicus brief is posted. The case is pending before the Tenth Circuit.

E. Faculty & Students v. Administration: Crue v. Aiken (University of Illinois-Champaign)

On February 14, 2003 Michael Aiken, former chancellor at the University of Illinois, appealed to the Seventh Circuit a lower court decision that enjoins the administration from enforcing its policy prohibiting students and faculty from communicating with prospective student athletes. Faculty and students at the University of Illinois who oppose the school's use of the Chief Illiniwek mascot contend, in part, that the mascot creates a hostile learning environment for Native American students and increases the difficulty of recruiting Native American students to the campus. They sued the school because they wish to contact prospective student athletes to make them aware of this controversy and, according to the lower court decision, "in some cases to ask the prospective students to consider whether or not they wish to participate in a program which is indifferent to racial injustice." The administration's policy provides that "no contacts are permitted with prospective student athletes . . . by University students, employees or others associated with the University without express authorization of the Director of Athletics or his designee."

The lower court found the administrative directive to be a prior restraint, and that "the ban imposes a significant burden on particular type of expressive activity and is at least to some degree content-based." Crue v. Aiken, 137 F. Supp. 2d 1076 (C.D. Ill. 2001)

On appeal, the administration argued that, on balance, its interests outweigh those of faculty members because the purpose of the faculty speech was to hurt the university and undermine the "effective operation of its athletic recruiting system." The administration also contended that is has an interest in protecting the privacy of "vulnerable" student athletes and upholding NCAA rules.

In October 2003 the national AAUP and University of Illinois-Champaign AAUP Chapter filed a joint amicus brief in support of the faculty's right to speak to prospective student athletes about the mascot. The brief focuses on the protections afforded to professors to speak out as citizens under the university's own regulations and the 1940 Statement of Principles on Academic Freedom and Tenure. In addition, the brief argues that the First Amendment rights of faculty outweigh the administration's interests. Oral argument was held in February 2004, and the case is pending before the Seventh Circuit.

III. Affirmative Action

A. The University of Michigan Affirmative Action Decisions

Gratz v. Bollinger; Grutter v. Bollinger: In these two closely watched cases, white students brought class-action challenges to affirmative action policies and practices in the admissions processes of the undergraduate and law schools of the University of Michigan. The white students alleged that the university discriminated against them by using different standards to admit students of different races. The undergraduate and law school programs both considered race as one among a number of factors in admissions. The AAUP filed amicus briefs in these cases, starting at the district court level, given the national importance of this litigation. The briefs emphasized the educational benefits of racial diversity in higher education among faculty and students, and urged the court to follow the 1978 U.S. Supreme Court Bakke decision.

On June 23, 2003 the U.S. Supreme Court finally issued its much awaited decisions in these two cases. The Court issued its Grutter decision first--a 5-4 decision written by Justice Sandra Day O'Connor. 539 U.S. 306 (2003). In it the Court endorsed Justice Powell's opinion in Regents of the University of California v. Bakke, finding diversity in higher education to be a compelling state interest and upholding the law school's admissions program. The Court noted the individuality of the review in the law school, and held that race can be considered as a "plus" factor in admissions if it is considered in the context of a "highly individualized, holistic review of each applicant's file, giving serious consideration to all the ways an applicant might contribute to a diverse educational environment."

In contrast, however, in the 6-to-3 Gratz decision, Justice O'Connor joined the opinion's author, Chief Justice William Rehnquist, and four other justices in striking down Michigan's undergraduate admissions program. <www.supremecourtus.gov/opinions/02pdf/02-516.pdf>. Importantly, the Gratz decision upheld the concept of affirmative action and diversity as a compelling state interest. But it also struck down Michigan's undergraduate admissions process, finding its award of 20 points out of 150 to underrepresented minority applicants solely because of race to be insufficiently "narrowly tailored to achieve the interest in educational diversity that respondents' claim justifies their program."

B. The Michigan Cases: What the Court Decided

The Court was faced with deciding (a) whether the educational benefits of diversity, and the need to defer to educators on educational judgments, constituted a sufficiently compelling state interest to justify racial preferences in admissions, and (b) if so, how such admissions plans could be constitutionally structured.

1. Diversity as Compelling Interest:

The Court concluded that diversity was a compelling state interest because of its educational benefits. This decision was supported, and clearly heavily influenced, by the wealth of social science research, data and experiential testimony provided by the university and its many amici.

a. The Court's decision was based on constitutional principles of academic freedom in higher education, and the deference given to the "educational judgment" of educators.

b. The Grutter majority opinion affirmed that "given the important purpose of public education and the expansive freedoms of speech and thought associated with the university environment, universities occupy a special niche in our constitutional tradition." Recognizing the Court's "tradition of giving a degree of deference to a university's academic decisions," Justice O'Connor went on to conclude that "good faith on the part of a university is presumed absent a showing to the contrary." Grutter, 123 S.Ct. at 2339

c. The Court specifically noted that "the Law School's educational judgment that such diversity is essential to its educational mission is one to which we defer," Grutter, 123 S.Ct. at 2339, and made clear that educational diversity must be the substantial motivating factor in any affirmative action admissions program.

d. The Court held that context matters and is important to finding diversity to be a compelling interest. The educational setting is different from other contexts, and the role of universities in preparing future generations of leaders, and in educating students to function in a diverse global economy played an important part in the Court's finding that diversity was a compelling interest.

(1) "[I]n order to cultivate a set of leaders with legitimacy in the eyes of the citizenry, it is necessary that the path to leadership be visibly open to talented and qualified individuals of every race and ethnicity." Grutter, 123 S.Ct. at 2363.

2. Narrow Tailoring:

The Court found Michigan's law school admissions program to be sufficiently narrowly tailored, even with its consideration of a critical mass, but struck down the undergraduate policy, which gave an automatic 20 points for race. The Court discussed many different elements of a sufficiently narrowly tailored policy:

a. Race may be considered as one of many "plus" factors.

b. The Court stressed the need for individualized review. The undergraduate admissions program of awarding points based on race was seen as not sufficiently individualized. All pertinent elements of diversity must be considered. The Court ruled out quotas or separate tracks for different applicants as impermissible approaches.

c. Numbers can be considered to some extent. The Law School's argument that it was necessary to enroll a "critical mass" of minority students (to achieve the educational benefits of diversity and to ensure that a few minority students did not end up being token representatives of their race) was seen as a flexible goal, not a quota. Having a reasonable goal of minority admissions numbers is permissible, so long as it does not automatically require anyone's admission or rejection.

d. While the Court endorsed the importance of considering race neutral alternative methods of achieving diversity, it did not require that every race neutral alternative be exhausted, as some had feared.

(1) Narrow tailoring requires "serious, good faith consideration of workable race-neutral alternatives that will achieve the diversity the university seeks." Grutter, 123 S.Ct. at 2345.

(2) But, colleges and universities need not "choose between maintaining a reputation for excellence or fulfilling a commitment to provide educational opportunities to members of all racial groups." Grutter, 123 S.Ct. at 2344

(3) The Court also recognized that percentage plans—plans that attempt to achieve diversity by mandating admission of the top x percent of the high school class in every state high school—are flawed in many ways and may not themselves be race neutral.

e. Admissions programs must be flexible and consider how each applicant can contribute to diversity in order to be individualized, and to reduce the burden on non-minority students. The Court spoke against limiting the broad range of qualities and experiences that may be considered valuable contributions to student body diversity. The administrative burden of such flexibility and individualized review is seen as irrelevant to the constitutionality of the program.

f. The Court also stated an expectation that affirmative action programs will not be needed in 25 years, and that programs in effect now should be time limited.

C. Institutional Responses to Gratz and Grutter

Those that do consider race, or wish to consider it in their admissions policies, have responded to the Michigan decisions in a number of ways.

1. According to the National Association for College Admissions Counseling (NACAC), only about one-third of colleges and universities consider race or ethnicity as a factor in admissions decisions. "Relatively Few Colleges Use Race in Admissions Decisions, Survey Finds," The Chronicle of Higher Education (CHE) (Oct. 2, 2003). However, 74 percent pledge a commitment to diversity in their mission statement and use recruiting tools to try to attract a more diverse student body. Id. The survey is available at <www.nacac.com/downloads/diversityreport.pdf>.

2. Institutions that engage in an individualized review of student admissions files, an approach that was upheld by the Supreme Court in Grutter, have recommitted to their student admissions programs. See, e.g., "New Jersey Colleges Are Relieved Their Policies Got a Passing Grade," Star-Ledger, June 24, 2003 (noting that Princeton, Rutgers and Richard Stockton College "breathed a big sigh of relief . . . that [the Court] in large part backed the way they admit their students.")

3. Those institutions with automatic point systems, similar to the one struck down in Gratz, are revising their programs to ensure that they employ a "holistic, individualized approach" to application review. See, e.g., "UMass and Ohio State U. Say They Will Stop Awarding Extra Points to Minority Applicants," CHE (Oct. 10, 2003). Many are now reporting, however, that they are seeing a significant drop in minority applications with the new admissions process. See, e.g., "U-M Loses Minority Applicants," The Detroit News (Feb. 10, 2004); "Fewer Blacks Apply to OSU," Mansfield News Journal (March 12, 2004).

4. Other colleges and universities, especially those in jurisdictions whose federal appellate court decisions were overturned by the Michigan cases, are now considering reintroducing race conscious admissions programs. "Decisions May Prompt Return of Race-Conscious Admissions at Some Colleges," CHE (July 4, 2003). Institutions in these states must now deal with changing past policies and practices and other effects of having been under differing state law for many years.

For example, institutions in Texas were governed by the 5th Circuit's Hopwood decision, one of the first conclusively to strike down affirmative action. The University of Texas now is considering reinstating race conscious admissions. "UT Plans for Affirmative Action," San Antonio Express News (Dec. 2, 2003). This effort is further complicated by the fact that Texas now has a 10 percent plan in effect—begun in an attempt to counter the effects of Hopwood—that has led to overcrowding and to concerns that the top 10 percent of Texas high school students guaranteed admission will soon take up almost all available slots. "10 Percent Law Not Doing Good Job at UT-Austin," Austin American Statesman (May 25, 2003). Similarly, University of Georgia officials are considering reinstituting race-conscious admissions after abandoning them when the 11th Circuit struck down Georgia's admissions policy. "UGA Faculty Leaders Say Race Should Play Role in Admissions," The Ledger-Enquirer (Mar. 19, 2004).

5. Others—some within the same states, like Texas A&M—are taking the opposite approach, and deciding not to consider race. See, e.g., "Lawmakers Demand University Set Minority Enrollment Goals," Houston Chronicle (Dec. 8, 2003); "Texas A&M Defies Trend, Won't Use Race as Admissions Factor," Houston Chronicle (Dec. 4, 2003).

6. Institutions are also under increasing pressure to reevaluate their other admissions practices, which, while not overtly race conscious, have an effect on diversity.

a. Legacy Admissions: Offering preference to children of alumni often results in preferences for majority applicants, whose parents are much more likely to have attended college. Some institutions are therefore considering abolishing legacy systems, even though such systems provide benefits in fund raising and alumni loyalty. Those not considering race in their admissions criteria, like Texas A&M, are under particular political pressure to eliminate programs like legacies. See, e.g., "Texas A&M Ends Alumni-Based Preferences for Applicants, to Assure 'Consistency' in Admissions," CHE (Jan. 12, 2004).

b. Standardized Tests: Studies showing that standardized tests carry a racial bias have led other schools to reevaluate their reliance on tests like the SAT and PSAT. See, e.g., "Calls to Eliminate SAT Requirement May Reshape Debate on Affirmative Action," CHE (Mar. 2, 2001); Nettles, Perna & Mellett, "Race and Testing in College Admissions," in Chilling Admissions: The Affirmative Action Crisis and the Search for Alternatives, The Civil Rights Project, Harvard University (Orfield and Miller, eds. 1998).

7. Most colleges and universities are also continuing and some increasing recruiting and outreach efforts. This type of approach has generally been seen as the safest, most effective way to increase the diversity of applicants. See, e.g., "KU Recruiters Seek Out More Minority Applicants," Lawrence Journal World (Feb. 23, 2004); "A&M Initiative Aims to Attract Minorities," The Bryan-College Station Eagle (Mar. 9, 2004).

But see Hi-Voltage Wire Works v. City of San Jose, 24 Cal.4th 537 (2000): This California state court case questioned programs that disseminated information based solely on race as violative of Proposition 209, the California state law restricting affirmative action. The court encouraged efforts to increase minority and women's participation in government programs, but make clear that it would not uphold such efforts if they were targeted solely on the basis of race or gender.

D. The Legal and Political Future of Affirmative Action

1. Legal Practices Still Vary By State

a. State laws remain in place. The Michigan decisions do not invalidate individual state laws restricting affirmative action. See, e.g., "University Offers Rare Peek Into Admissions Process," The Daily Californian (Nov. 13, 2003) (discussing efforts to diversify the student body at the University of California at Berkeley, despite state law prohibiting consideration of race in admissions). Such laws are in place in California (California Proposition 209, Cal. Const. Art. I, §31); Florida (One Florida Initiative, Fla. Admin. Code Ann. R. 6C-6.002(7)); and Washington (Washington State Initiative 200, Wash. Rev. Code. Ann. Ch. 49.60, notes).

b. Other states may not have restrictive laws, but were covered by appellate court decisions invalidating affirmative action made before the Supreme Court decisions. The Michigan decisions do override these lower court decisions, and thus previous restrictions are lifted.

2. The Litigation Storm:

Justice Scalia, in his dissent in Grutter, discussed the rash of litigation likely to result from these decisions (essentially providing a road map for future challenges). It is clear that opponents of affirmative action will be making every effort to continue to use the court system to attack both the legal underpinnings and the practical application of affirmative action.

a. Smith v. Univ. of Washington: This case at the University of Washington continues to wind its way through the courts. Originally brought in 1997, this claim alleges that a white woman was denied entry to the university's law school and that less qualified minority applicants were admitted over her because of the University's affirmative action policies. In 1998 voters approved a state initiative to ban race-conscious affirmative action in the public sector, and the University announced that it was taking steps to suspend the consideration of race and gender in admissions. The federal district court then held that the state initiative made much of the case moot, but that a remaining discrimination claim should be decided based on principles enunciated in the Supreme Court's 1978 Bakke decision. The decision was appealed to the Ninth Circuit, which issued a ruling upholding the district court's decision. When the Supreme Court denied the petition for certiorari, the case went back down to the district court for a decision under the law of Bakke. In 2002, the district court concluded that the law school's admissions policies during the years in question (1994, 1995, 1996) were consistent with Bakke, and therefore constitutional. That decision was appealed to the Ninth Circuit again, and that Court heard arguments February 11, 2004. The admissions standards in question are from long before the Michigan cases, and state law still bars the University from considering race in admissions, but the case is still being closely watched because it is the first appellate case to address the issue since Gratz and Grutter.

b. Post-Michigan Litigation

(1) Open Records Laws: The National Association of Scholars (NAS), CIR and others have also begun a campaign to use open records laws to challenge public colleges admission policies, issuing dozens of public records requests asking a range of questions about the colleges consideration of race neutral alternatives, weight given to race and ethnicity, data on the selection process, etc. See, e.g., "NAS Affiliates Seek Admissions Data in Twenty States," Press Release, <www.nas.org>; "Foes of Affirmative Action Push Colleges to Reveal Policies on Race Conscious Admissions," CHE, March 23, 2004.

(2) Targeted Minority Programs: CIR and other anti-affirmative action groups have also made clear that they will be targeting special programs like financial aid programs aimed at minorities, outreach programs at the high school level, recruitment and preparatory programs for college and graduate and professional schools, mentorship programs, summer enrichment programs, targeted scholarships, etc.

3. Legislative Attacks

a. Ward Connerly, architect of Proposition 209 in California, is pursuing a referendum in Michigan seeking to abolish affirmative action in the state. Mary Wiltenberg, "Affirmative Action Brews Anew in Michigan," The Christian Science Monitor (Jan. 20, 2004); "Foes of Affirmative Action in Michigan Plan to take Their Battle to the Ballot," CHE (July 9, 2003). In late March, a state judge ruled that the petition's wording, banning "preferential treatment" on the basis of race, sex, color, ethnicity or national origin, violated state election law because it did not make clear that the proposal altered existing law and was in direct conflict with constitutional anti-discrimination protections. "Michigan Judge Rules Against Foes of Preferences Based on Race," New York Times (Mar. 27, 2004); "Drive to Put Affirmative Action on Ballot in Michigan Hits a Snag in State Court," CHE (Mar. 29, 2004).

b. There have been indications of similar political action being planned in Arizona, Colorado, Missouri, North Dakota, Oregon, South Dakota and Utah, and there are probably others. "Affirmative Action in Higher Education After Grutter v. Bollinger and Gratz v. Bollinger," American Council on Education (Sept. 2003) <www.acenet.edu/washington/affirmative_action/2003/MichWP.pdf>.

c. Washington State legislators recently killed the governor's attempt to overturn State Initiative 200, refusing to move it out of committee. "Bill to Restore Affirmative Action in Washington State Appears Dead—For Now," CHE (Feb. 9, 2004).

d. There was also an effort made to block affirmative action indirectly, by preventing government entities in California from gathering, compiling or publishing data concerning race and ethnicity. California voters defeated this initiative. See, e.g. "California Upheaval," CHE (Oct. 17, 2003); Erwin Chemerinsky, "Why California's Racial Privacy Initiative is Unconstitutional," CNN.com (Aug. 22, 2003). <www.cnn.com/2003/LAW/08/22/findlaw.analysis.chemerinsky.race>.

4. Government Response

a. 1994 Guidelines issued by the Department of Education's Office of Civil Rights (OCR) allowing race conscious financial aid and scholarship programs are still in place. However, current leaders of OCR issued a statement saying that programs that use race or national origin as the sole eligibility criteria are "generally . . . extremely difficult to defend." "Not Just for Minority Students Anymore," CHE (Mar. 19, 2004).

b. OCR has received many complaints from conservative groups attacking minority programs and is reportedly investigating such programs at a number of colleges. "Not Just for Minority Students Anymore," CHE (Mar. 19, 2004); "Colleges Cut Back Minority Programs After Court Rulings," The Wall Street Journal (WSJ) (Dec. 30, 2003).

c. In March 2004 OCR issued another report on "race neutral" alternatives in education. The report does not discuss the cases in any detail, but notes only that the decisions show that education leaders are committed to diversity, that the Supreme Court "affirmed its importance," and that the Supreme Court "agreed that colleges needed to undertake serious, good-faith consideration of workable race-neutral alternatives that will achieve the diversity the university seeks before turning to consideration of race in their admissions decisions." It then catalogs efforts by colleges and universities, including class-rank plans, recruitment centers in historically underrepresented areas, partnerships with local high schools, etc. The report is available at <www.ed.gov/about/offices/list/ocr/edlite-raceneutralreport2.html>.

For an excellent and current overview of affirmative action legal issues, see Ann D. Springer, "What Now? The Michigan Cases and The Future of Affirmative Action in Higher Education" (April 2004), which will soon be posted.

Updated 8/06