Harvard and Princeton Reinstate Admission Policies that Favor the Wealthy

Both Harvard and Princeton have announced that they are reinstating early admission programs, despite their admission in dropping the programs five years ago that such policies favor the wealthy, the Chronicle of Higher Education reports.

Both institutions announced their policy change on the same day. They said that going without early admission programs had put them at a disadvantage because other colleges that compete for the same students had not followed their lead in dumping such policies. (The University of Virginia had done so, but it reinstated early admissions last fall.)

As Richard Kahlenberg notes in a blog post about the change, research on early admission programs has found that the students who apply early-action are disproportionately economically advantaged and white.

Federal Investigation Finds Naval Academy Swatted Affirmative-Action Gadfly

The U.S. Office of Special Counsel has announced that its investigators found evidence that the U.S. Naval Academy punished an English professor for his public criticisms of its affirmative-action policies by denying him a pay raise.

In a press release announcing its conclusions, covered in depth by Peter Schmidt in a Chronicle of Higher Education article, the federal investigative office said the Naval Academy had agreed to a legal settlement with the professor, Bruce E. Fleming, thus avoiding litigation in the matter.

The terms of the settlement are confidential, but Mr. Fleming said he was happy with it--an assessment that suggests he got his raise.

Judge Rejects the Latest Legal Challenge to California's Proposition 209

A U.S. District Court judge in San Francisco has dismissed the latest lawsuit challenging California's Proposition 209 ban on the use of racial and ethnic preferences by public colleges and other state and local agencies.

As discussed in depth in the Chronicle of Higher Education, Judge Samuel Conti did not buy the plaintiff's argument that the legal landscape had changed significantly in the 13 years since the federal courts last upheld the ban passed by California in 1996.

The activist group that filed the latest California lawsuit, as well as a similar lawsuit challenging the preference ban adopted by Michigan's voters, had said its efforts in the court were motivated partly by a desire to throw a wrench into campaigns for similar referenda. Here, too, they appear to have been thwarted; about 60 percent of Arizona voters approved a preference ban there in last month's elections.

Arizona Vote Leaves Well Over 4 in 10 U.S. Hispanics in States with Affirmative Action Bans

With last month's adoption of Proposition 107 by Arizona voters, well over 4 in 10 Hispanic residents of the United States live in states where public colleges are banned from considering race or ethnicity in admission decisions.

Based on U.S. Census Bureau data from 2008, the most recent year for which the bureau offers detailed population estimates for individual states, about 43.6 percent of the nation's Hispanic residents reside in the six states that have such bans in effect: Arizona, California, Florida, Michigan, Nebraska, and Washington. Before Arizona joined the column of states with such prohibitions, about 39.4 percent of the nation's Hispanic residents lived in states where colleges could not consider race or ethnicity in deciding which applicants to admit.

Given the relatively small size of Arizona's black population, the state's adoption of Proposition 107, which passed with about 60 percent of the vote, did not significantly change the picture for blacks nationally. The share living in states where public colleges are legally barred from considering applicants' ethnicity or race rose only slightly, from about 18.2 percent to about 18.3 percent, based on 2008 Census numbers.

New Book Contains a History of Legacy Admissions Written by Peter Schmidt

Peter Schmidt has written a chapter on the history of legacy preferences at American colleges for the new book Affirmative Action for the Rich? Legacy Preferences in College Admissions, published by the Century Foundation.

The Century Foundation's description of the book says:

The use of race-based affirmative action in higher education has given rise to hundreds of books and law review articles, numerous court decisions, and several state initiatives to ban the practice. However, surprisingly little has been said or written or done to challenge a larger, longstanding "affirmative action" program that tends to benefit wealthy whites: legacy preferences for the children of alumni.

Affirmative Action for the Rich sketches the origins of legacy preferences, examines the philosophical issues they raise, outlines the extent of their use today, studies their impact on university fundraising, and reviews their implications for civil rights. In addition, the book outlines two new theories challenging the legality of legacy preferences, examines how a judge might review those claims, and assesses public policy options for curtailing alumni preferences.

The book includes chapters by Michael Lind of the New America Foundation; Peter Schmidt of the Chronicle of Higher Education; former Wall Street Journal reporter Daniel Golden; Chad Coffman of Winnemac Consulting, attorney Tara O'Neil, and student Brian Starr; John Brittain of the University of the District of Columbia Law School and attorney Eric Bloom; Carlton Larson of the University of California—Davis School of Law; attorneys Steve Shadowen and Sozi Tulante; Sixth Circuit Court Judge Boyce F. Martin Jr. and attorney Donya Khalili; and education writer Peter Sacks.

Although Peter Schmidt's contribution is a straightforward history, other chapters in the book make the case that legacy preferences should be abolished and the courts should strike them down as unconstitutional. The Century Foundation is hosting a forum on the book on September 22 at the National Press Club.

California's Proposition 209 Upheld By State's Supreme Court

As discussed at more length here in the Chronicle of Higher Education, the California Supreme Court has upheld that state's Proposition 209 ban on affirmative-action preferences, in a case involving public contracting by the city of San Francisco. In a 6-to-1 ruling, the state's highest court rejected San Francisco's argument that Proposition 209 violates the U.S. Constitution's Equal Protection Clause because it creates barriers for minority and female contractors that are not faced by other constituencies seeking favored treatment. The decision that left open the possibility that San Francisco can show its preferential contracting program is necessary to remedy discrimination.

Are Elite Colleges Biased Against Poor, White, Conservative Christians? Sorting Fact from Fiction

It has been a heady few weeks for those who pay attention to the admission policies and enrollments of the nation's elite colleges. First, several right-leaning opinion writers sounded alarms about new research purportedly showing that such institutions are culturally biased against applicants who are white, working-class, Christian, and denizens of rural, Republican-leaning states. A chorus of pundits then challenged such claims, with one, American Prospect columnist Monica Potts, asserting that whites "have a large advantage over people of color in almost every way possible in every area of life, regardless of income." Finally, apparently tired of the whole controversy, several others argued that the debate over fairness in admission to elite colleges is mainly the concern of self-absorbed, upper-middle-class whites, and a distraction from the nation's real educational problems.

Although most such arguments contained kernels of truth, one had so sift through an awful lot of overstatement and false assumption find them. What follows is a discussion of what the research on the subject actually says, and why it matters.

As discussed in detail here on a Chronicle of Higher Education blog on academic publishing, the book that was erroneously credited with providing the smoking gun of elite-college bias against working-class, Christian, red-state, white kids is No Longer Separate, Not Yet Equal: Race and Class in Elite College Admission and Campus Life. It was written by Thomas J. Espenshade, professor of sociology at Princeton University, and Alexandria Walton Radford, a research associate at the Washington-based consulting firm MPR Associates, based on their exhaustive analysis of federal data and of institutional records and student survey results from eight unnamed elite colleges.

Espenshade and Radford conclude in their book that coming from an economically disadvantaged background appears, in itself, to hurt a white student's chances of gaining admission to an elite private college. That's hardly news to anyone who follows such research. The likely explanation for much--or maybe even all--of the uphill climb faced by competitive low-income and working-class white applicants lies in the fact that they generally are denied any sort of admission preference, and they are competing for a finite number of freshman class seats against several populations for whom the bar is lowered. Confirming other research discussed at length in Color and Money, Espenshade and Radford found that such colleges show favoritism toward, for example, blacks and Hispanics, legacies, and graduates of prestigious high schools. By definition, white kids from humble backgrounds do not qualify for minority preferences. And, by virtue of their background, they are unlikely to be legacies, or to have graduated from expensive private high schools or from well-financed and well-regarded public high schools in wealthy communities. They may qualify for another type of admissions preferences widely used by colleges--preferences for recruited athletes. But here they often are hindered by inequities in high schools' athletic programs, as well as the challenges their families likely faced in financing their kids' involvement in sports that cannot be played at advanced levels without club memberships, travel, or expensive equipment. (See, for example, Chapter 5 of Dan Golden's The Price of Admission, titled "Title IX and the Rise of the Upper Class Athlete.")

Being unlikely to benefit from favoritism does not necessarily equate to being the target of outright bias, and Espenshade and Radford do not claim to have any evidence that elite private colleges are specifically biased against white students from humble backgrounds. That is not to say conclusively that no such bias exists. Color and Money summarizes research showing that faculty members disproportionately are the children of professionals, and that tenured faculty members and college administrators generally earn salaries that put them at or above the middle-class level. (Many college presidents and high-level administrators earn enough to be classified as nothing less than filthy rich.) But, while a lot of anecdotal evidence and qualitative research suggests that elite colleges can seem like unwelcoming environments to faculty members and students from the working class, there exists, at this point, no smoking gun showing that the institutions' systematic exclusion of many working-class students is based on cultural or political antipathy. It might well be the case, instead, that the backgrounds of many people at such institutions leave them without much sympathy for white people who are not as well off, or personally invested in the status quo and the belief (inscribed on many of Austria's community beer-drinking tables) that the people who belong there are the people who are there. Many college admissions officers characterize the problem as structural: They say they bend over backwards to recruit--and urge their institutions to admit--white kids from humble backgrounds, only to find many such applicants getting bumped out of the running to make room for admission candidates championed by the athletics director, the diversity office, and people using the admission process to do favors for college employees, donors, and the politically powerful.

Where did those taking the conclusions of Espenshade and Radford a step further--and alleging bias against white, Christian, working-class, rural, red-state America--lay hands on their purported smoking gun? It was a finding by the two researchers that high levels of involvement in career-oriented extracurricular activities—such as the 4-H Clubs, Future Farmers of America, the ROTC, and co-op work programs—are all associated with lower admission odds.

Their book does not offer any explanation for the finding. In interviews with The Chronicle, the researchers pointed out that the types of activities they classified as "career-oriented" included Model United Nations, mock trial groups, and clubs for young entrepreneurs. Nevertheless, because their book left out those other activities and specifically cited the ROTC and farming-oriented organizations, it was seized upon as offering evidence that elite colleges are biased against applicants who love their country and come from the countryside. Although Espenshade and Radford did not examine the relative admissions prospects of students from different religious groups, their book also was cited as providing evidence that elite colleges discriminate against Christians.

Russell K. Neili, a lecturer in Princeton University's political science department, first argued the existence of such biases in a July 12 essay on the Manhattan Institute's blog, Minding the Campus. As part of a broader critique of affirmative action, Neili's essay said No Longer Separate, Not Yet Equal shows elite colleges are biased against participants in "Red State activities" in a way that is "truly shocking even to this hardened veteran of the campus ideological and cultural wars." The New York Times columnist Ross Douthat then spread the word with a July 18 New York Times essay titled "The Roots of White Anxiety." Patrick Buchanan got on board a day later with "Bias and Bigotry in Academia."

The columnists making such claims clearly touched a nerve. And, to be fair, Douthat was on to something in asserting that the political gap between the nation's elite and its working class is at least partly attributable to elite colleges' admission policies, and, in particular, the institutions' use of affirmative action. As Color and Money notes, many white people who lack the cash and connections to get their children an edge in elite college admissions perceive such institutions as biased against them. And, since the days of George Wallace, conservative politicians and pundits have been exploiting such suspicions by scapegoating affirmative-action preferences as the chief force keeping many white applicants out of elite colleges, even though such applicants are far more likely to lose their seat to an unqualified white kid who received favoritism than a minority beneficiary of racial or ethnic preferences. The writings of Neili, Douthat, and Buchanan--and the significant buzz they generated--can be seen as exhibit A in support of the argument, made in Color and Money and elsewhere, that support for affirmative action carries substantial political cost for liberals, making it harder for them to hold positions of power long and tackle the broader societal problems that leave many minority and lower-income students educationally disadvantaged.

Even if there was nothing in No Longer Separate, Not Yet Equal to support it, the assertion that elite colleges are biased against Christians was not entirely off the mark. There are, in fact, some Christian religions whose members once faced bias in applying to elite colleges, in many cases because their religions are associated with certain ethnic groups that were the victims of bias. (Think Irish, Italian, and Polish Catholics.) Up until about World War II, many of our nation's top colleges, especially those of the Ivy League, were dominated by old-money families that tended to be Congregationalist, Episcopalian, or Presbyterian, and, on a related note, could trace their lineage to northern European countries that played a key role in colonizing the United States, such as England and Holland. To retain their hold on America's top colleges, these populations persuaded the administrations of many such institutions to actively discriminate against certain populations--such as people who were Jewish, black, or Catholic--and in favor of certain populations with insider status, such as the children of alumni. Blatant anti-Semitism went out of fashion at such institutions after World War II. The civil rights movement, a desire to quell the rioting of the 60s, and corporate America's willingness to bestow money upon colleges that help diversify workforces all led to colleges to go from discriminating against black, Hispanic, and Native American applicants to actively favoring such populations in admission decisions. But legacy preferences and other policies that favored applicants with insider status remained largely in place, working to the benefit of those groups that had gotten through the door and the disadvantage of those groups that remained largely shut out. This--and the enormous correlation between wealth and preparation for college admissions--helps explain why some of the Christian populations that once dominated such institutions continue to account for a disproportionate share of their enrollments, while many of the Christian populations that historically were shut out of such institutions remain under-represented at them to this day. (For more on old-money Christian families, see this article on the Social Register.)

The assertion that elite colleges are biased against politically conservative students provides interesting food for thought. Certainly, college faculties generally have been shown to a larger percentages of liberals and Democrats in their midst than American society in general. One can imagine your typical Ivy League admissions committee reacting coldly to an applicant who rejects the theory of evolution and thinks any gay professors or students on campus are bound for hell. But there is no research showing that politically conservative students are disadvantaged in the admissions process, and certainly no evidence of deliberate decisions by elite colleges to screen them out of the applicant pool. If one wants to use "red" state residency as a proxy for political conservatism, Espenshade and Radford's research actually might provide evidence of favoritism toward such students. They found that coming from such "red" states as Alabama, Montana, and Utah actually appears to give applicants to elite colleges an advantage, because such colleges receive relatively few applications from those states and like to boast that their entering freshman classes are so geographically diverse they represent every state in the union. Given, however, that it is entirely possible to find expensive private schools and liberal families in any state in the union, it seems like folly to assume an applicant's political leanings or socioeconomic backgrounds based on their state of residence.

Espenshade and Radford were able to clarify what their book said in radio interviews and in articles published in Newsweek , Time, and elsewhere. Douthat, to his credit, gave the two researchers an opportunity to respond in a blog post. And a host of other bloggers jumped in to help set the record straight on what the research by Espenshade and Radford actually found.

Those seeking to refute Douthat, Neili, et. al. were themselves sometimes guilty of overreaching, however.

Take, for example, the assertion by Monica Potts of the American Prospect that whites "have a large advantage over people of color in almost every way possible in every area of life, regardless of income." While race in itself plays a role in determining educational opportunity, and race and class status are often interrelated due to current discrimination and the residual effects of discrimination in the past, the truth is that socioeconomic status is a bigger shaper of educational destinies than race these days. Anthony Carnevale and Jeff Strohl, of Georgetown University's Center on Education and the Workforce, attempt to quantify the influences of race and class on one's college admissions prospects through research presented in the new book Rewarding Strivers: Helping Low-Income Students Succeed in College. Their analysis found that being black, in itself, was associated with an average loss of 56 out of 1600 possible points on the combined verbal and math portions of the SAT. The gap between the poorest and wealthiest SAT takers, by contrast, was more than 780 points. Given such data, the notion that the child of two black Park Avenue physicians faces longer odds than a white child raised in Appalachian poverty is at least a little absurd.

More commonly, people have argued that low-income whites are under-represented at elite colleges simply because they are unqualified for admission or fail to apply. It certainly is true that many white people of modest means are not well prepared for elite colleges, and research has, indeed, shown that those who are prepared for admission to such colleges are less likely to apply to them than other students from wealthier backgrounds. But the research by Espenshade and Radford looked at students in the applicant pool and controlled for academic qualification in reaching the conclusion that low-income white students are less likely to gain admission. In focusing on low-income students who both applied and were qualified, they show the argument that such students are held back solely by a lack of initiative or academic ability to be both a lie and a slur.

Finally, several pundits made the argument that the entire debate over the influence of affirmative action and other preferences on elite college admissions is a distraction from the nation's real educational problems, the product of angst by a self-absorbed white upper-middle class. Heather Horn of The Atlantic offered a solid roundup of essays making such arguments.

Polls discussed in Color and Money do, indeed, suggest that whites in the upper-middle-class are more preoccupied with elite college admissions, and more likely to oppose affirmative action, than white people who are flat-out wealthy or of modest means. And, indeed, there is no question that the nation has many other educational and social problems it can be focused on, and probably needs to tackle if it is to bring about major improvement in access to elite colleges for all segments of society.

Nevertheless, there are many, very good reasons why all Americans, and not just members of the upper-middle-class, should be worried about the lack of socioeconomic diversity in our top colleges. Here are just a few:

• The lack of socioeconomic diversity at elite colleges and the nation's broader educational and social problems are interconnected. The former is caused largely the latter. It is entirely possible to be concerned about both issues, and we would do a lot to improve education broadly if we tried to ensure more young people from middle- or lower-income communities were prepared to go to top colleges.
• Top colleges play a huge role in determining the composition of our nation's leadership class, and the vast majority of Americans who are not rich are poorly served by a leadership class whose members come from wealthy backgrounds, went to college insulated from the rest of society, and are completely out of touch with middle- and working-class America's concerns.
• On a related note, shutting the non-wealthy out from elite colleges and the leadership class is a recipe for social unrest. Let us not forget that those who devised college affirmative-action preferences in the late 60s did so largely because a large number of the nation's cities were burning, and they believed that giving black Americans more access to elite colleges would send a signal to African Americans, generally, that they did not need to resort to rioting and other forms of violence to break down the barriers to their advancement.

On a final note, one has to wonder how many of the pundits who see no problem with the lack of socioeconomic diversity in elite colleges are themselves the products of such institutions, and have a self-interest in preserving admissions policies that worked in their favor and stand to favor their own children. Are they, perhaps, a little like the Wizard of Oz, in that they know recognize how much they stand to lose if others go snooping around behind the curtain surrounding elite college admissions, and see the mechanisms by which this nation's elite gains its power?

New Research on Diversity Yields Surprising Findings

The success of minority college students and students' perceptions of race relations on their campuses are influenced by factors that actually have little direct connection with ethnicity or race, according to a new set of studies discussed in a recent Chronicle of Higher Education article.

Among the studies, all published in the spring issue of New Directions for Institutional Research:

• An analysis of University of California student survey data that concludes that students' choice of academic major plays a greater role than their race in determining how much discrimination they perceive on campus. Moreover, having large numbers of racially and culturally sensitive students might paradoxically cause a campus's reputation for tolerance to suffer, because such students are more likely to perceive and report bigotry around them.
• Another study, unusual in that it focuses on a campus where white students are outnumbered, concluded that high minority enrollments do not necessarily lead to increased perceptions of tolerance. At the public university that the study focused on, the share of all students on the campus who reported occasionally or frequently witnessing one or more forms of insensitive behavior rose as the institution became more diverse, with the increase being driven partly by increases in both the number of minority students responding to the survey and in the share of minority students reporting such behavior.
• A third study, examining the educational progress of freshmen at several institutions, concludes that first-generation college students experience some events on the campus differently than do other students. For example, they appear not to reap the same educational gains from out-of-classroom interactions with faculty members as do their peers with at least one college-educated parent, perhaps because the first-generation students may be somewhat rattled and put off by such interactions, which leave their peers feeling more intellectually engaged, the Chronicle article says.
  

Ed Dept.'s Civil Rights Chief Signals New Approach to Race

The Education Department's Office for Civil Rights is reviewing its approach to complaints of anti-Semitism and its guidance to colleges on race-conscious admission policies and gender equity in athletics, the office's chief, Russlynn H. Ali, told The Chronicle this month in an exclusive interview.

The Chronicle story also reports:

The Obama administration's intent to be much more supportive of race-conscious admissions than the Bush administration became clear last month, when top lawyers from the Education and Justice Departments joined in submitting a friend-of-the-court brief on behalf of the University of Texas at Austin in a lawsuit pending in the U.S. Court of Appeals for the Fifth Circuit. The brief reinforces the university's defense of its race-conscious admission policies.

Whereas the Bush administration had sided against the University of Michigan in a Supreme Court case challenging that institution's consideration of applicants' race, the brief the Obama administration lawyers filed last month strongly endorsed Texas's argument that only race-conscious admissions policies would provide it with sufficient levels of diversity to reap the educational benefits it sought.

"In view of the importance of diversity in educational institutions," the brief said, "the United States, through the Departments of Education and Justice, supports the efforts of school systems and postsecondary educational institutions that wish to develop admission polices that endeavor to achieve the educational benefits of diversity" in accordance with the Supreme Court ruling upholding Michigan's consideration of race.

Affirmative-Action Scholars Denied Access to California Bar Data

A California state judge has rejected a bid by two researchers examining affirmative action to gain access to California Bar Association data on the long-term success of law-school graduates.

As reported in The Chronicle of Higher Education, Judge Curtis E.A. Karnow of the California Superior Court for San Francisco County ruled last month that the state bar is not legally obliged to release the data sought by Richard H. Sander, a professor of law at the University of California at Los Angeles, and Joe Hicks, a former governor of the California state bar. The judge held that the researchers' argument for access to the data under public-records laws relied on a definition of "public document" that was overly broad, and could be interpreted as covering judges' rough notes, grand-jury transcripts, and other documents that the courts have long held to be exempt.

March Madness Brings News of Widening Black-White Gap in Players' Graduation Rates

Although the black members of the basketball teams of colleges represented in the NCAA Division I Men's Basketball Tournament appear to be doing slightly better academically than they did in the past, the gap between their graduation rate and the graduation rate of white players on those teams has grown, according to a new report.

The report by the The Institute for Diversity and Ethics in Sport (TIDES) at the University of Central Florida says 84 percent of white and 56 percent of black basketball players at those colleges graduate--a 6 percentage-point increase for white basketball players and a 2 percentage-point increase for black players over last year's study.

Utah Drive for Preference Ban Stalls in Legislature

An effort to amend Utah's state constitution to ban the use of affirmative-action preferences by public colleges and state and local agencies has been put off a year after meeting resistance in the state legislature.

As reported in the Salt Lake Tribune, the backers of the proposed amendment were just shy of getting enough legislative votes to put the measure on the ballot this fall. They needed 50 votes in the state House of Representatives, but, as a result of four Republicans representatives' refusal to join other GOP members in supporting the bill, they appeared to have just 49 votes locked down as lawmakers wrapped up their 2010 session..

Legislative leaders have agreed to study the issue, and it appears likely the measure will come up again next year.

Obama Administration Announces New Effort to Enforce Civil Rights in Education

As reported here in The Chronicle of Higher Education, the Obama administration pledged this week to expand enforcement of civil-rights laws in education. At a press conference held in Selma, Ala., on the 45th anniversary of the historic civil-rights march there, Education Secretary Arne Duncan said the Education Department's Office for Civil Rights "has not been as vigilant as it should have been" over the past decade, and plans to undertake investigations at six colleges and 30 school districts to determine whether they are complying with the law.

The assistant secretary for civil rights, Russlynn H. Ali, angered conservatives by saying the department would start using "disparate-impact" analysis, which attempts to prove discrimination not through direct evidence of racist acts, but through numerical data showing that policies have a disproportionate impact on certain groups of people. The approach is controversial because numerical gaps in educational participation often can be linked to factors other than deliberate discrimination, such as gaps in educational preparation linked to culture, immigrant status, or socioeconomic class.

The U.S. Supreme Court barred the use of disparate-impact analysis as the basis of private lawsuits against federally supported state agencies in a 2001 decision. The majority opinion, written by Justice Antonin Scalia, said the civil-rights law at issue in the case, Title VI of the Civil Rights Act of 1964, does not specifically give private citizens the right to sue to ensure that its provisions are enforced. As discussed at length in Color and Money, the Clinton administration came under intense criticism for--and eventually abandoned--proposed regulations warning college admissions offices not to rely too heavily on standardized tests that were thought to be biased against minority students or women based on disparate-impact analysis.

California Preference Ban Challenged in Bid to Thwart Similar Measures

An activist group has filed a federal lawsuit challenging California's Proposition 209 ban on affirmative-action preferences in a bid to keep similar measures from being passed elsewhere.

As reportered by Color and Money author Peter Schmidt in The Chronicle of Higher Education, the lawsuit argues that the California measure, adopted by that state's voters in 1996, violates the Equal Protection Clause of the U.S. Constitution by placing a distinct set of legal hurdles in front of minority groups seeking to increase their representation on the university system's campuses. The group behind the lawsuit--the Coalition to Defend Affirmative Action, Integration, and Immigrant Rights and Fight for Equality by Any Means Necessary--is seeking through the lawsuit not just to get the California measure overturned, but to raise questions about the legality of similar measures that will be on the ballot in Arizona, and perhaps Utah, this fall.

A similar legal challenge to Proposition 209 failed in 1997, but the lawyers behind the new lawsuit say the legal landscape has changed enough since then that they feel they have a good chance of prevailing this time around.

Sandra Day O'Connor Accused of Hedging on Her Grutter Decision

When the U.S. Supreme Court issued its landmark 2003 decision upholding race-conscious college admissions as constitutional, the controlling opinion said that the educational benefits of diversity had been proven by research but the majority of justices did not think colleges would need to use racial preferences to achieve diverse enrollments 25 years down the road.

In a new essay discussed here in The Chronicle of Higher Education, retired Justice Sandra Day O'Connor revisits the majority opinion she wrote in that case, Grutter v. Bollinger, involving the University of Michigan's Law School. What she has to say in her new essay has stirred anger in many of the critics of affirmative action who lamented the Grutter decision. She seems both to characterize the research underlying the majority opinion as "speculative" and to say that the court really did not mean anything with its talk of racial preferences ending a quarter century down the road.

Lawyers on all side of the affirmative action debate stress that it is the court's opinion itself, and not the subsequent musings of a retired justice, that will serve as precedent for the lower courts and likely help shape any later Supreme Court discussions of the issue. Still, the exact meaning of Supreme Court rulings often is hotly debated in subsequent legal battles, as evident when the justices hearing the Grutter case sparred over the exact meaning of the majority opinion that Justice Lewis Powell wrote the last time the high court considered such admissions preferences, in the Bakke decision of 1978. Justice O'Connor's new essay makes the meaning of two elements of her 2003 opinion seem a lot more ambiguous than had widely been assumed.

The Chronicle article, available to nonsubscribers, offers more on her essay and the reactions it has stirred.

U. of Minnesota Remains Under Fire for Plan to Promote Sensitivity Among Teachers

The University of Minnesota-Twin Cities has come under heavy fire from conservative pundits and a prominent free-speech advocacy group over a task force's plan to ensure that graduates of its teacher training program are culturally sensitive.

As reported in a Chronicle of Higher Education article, the plan by a faculty panel called the Race, Culture, Class, and Gender Task Group is chock full of language that pushes conservative buttons, including a call for prospective teachers to"be able to discuss their own histories and current thinking drawing on notions of white privilege, hegemonic masculinity, heteronormativity, and internalized oppression."

Some of its critics have themselves turned to fairly strong language, with one local radio host alleging that the education school is "one step away from advocating gas chambers for conservatives." Using much more measured language, the Foundation for Individual Rights in Education has said the changes called for by the plan would violate the U.S. Constitution by imposing ideological requirements on students at the education school.

Jean K. Quam, dean of the university's College of Education and Human Development, has stressed that the plan simply represents a set of ideas that the university has yet to act upon. Its basic goal, she says, is simply to ensure that tomorrow's teachers are equipped to handle the many forms of diversity they are likely to encounter in classrooms.

Federal Appeals Court Hears Challenge to Affirmative Action Preference Bans

A three-judge panel of the U.S. Court of Appeals for the Sixth Circuit heard oral arguments last month in a legal challenge to the ban on affirmative-action preferences adopted by Michigan voters in 2006.

The case involves two lawsuits that have been consolidated into one. One of the two was filed on behalf of students, faculty members, and prospective applicants to Michigan's public universities, with the plaintiffs' legal team including lawyers from the NAACP Legal Defense and Educational Fund, the Detroit branch of the NAACP, and the American Civil Liberties Union. The other lawsuit was brought by the Coalition to Defend Affirmative Action, Integration, and Immigrant Rights and Fight for Equality by Any Means Necessary, an activist group, known as BAMN, that played a significant role in fighting both Michigan's Proposal 2 and California's Proposition 209.

As discussed in depth here in The Chronicle of Higher Education, the plaintiffs appear to stand a good chance of success, at least initially. Two of the three judges handling the case at this level--Ransey Guy Cole Jr. and Martha Craig Daughtrey--are nominees of President Bill Clinton who have liberal reputations and were members of the Sixth Circuit majority that upheld the Michigan law school's policies in Grutter. The third member of the panel, Judge Julia Smith Gibbons, was nominated by President George W. Bush but has a reputation as one of the court's more moderate Republican nominees.

How the plaintiffs will fare in the long run is another matter. Regardless of how it rules, the three-judge panel's decision is almost certain to be appealed to the full Sixth Circuit, whose membership tilts conservative.

Both of the joined lawsuits argue that the Michigan measure discriminates against minorities by leaving them uniquely burdened in the political process. While other Michigan constituencies, such as Upper Peninsula residents, can seek greater access to universities by merely appealing to officials of those institutions to favor them, minority residents who seek the reinstatement of race-conscious admissions policies to gain greater access must first pull off the difficult feat of getting voters in that predominantly white state to repeal its preference ban.

Naval Academy Accused of Illegally Retaliating Against Affirmative Action Critic

As reported at length today in an article in The Chronicle of Higher Education, the U.S. Naval Academy has been accused by one of its professors of illegally retaliating against him for publicly alleging its affirmative-action policies violate the law.

Bruce E. Fleming, a civilian who works at the academy as a professor of English, says he has filed a federal whistleblower complaint alleging that top administrators there denied him a deserved merit-pay raise in retaliation for his criticisms of the institution's minority admissions policies. Mr. Fleming drew widespread media attention after arguing in an editorial published in a local newspaper that the academy essentially operates a separate, less-demanding admissions track for minority applicants, in violation of legal guidelines set forth by the U.S. Supreme Court.

Mr. Fleming's complaint he was not given a deserved raise is not simply a matter of having a different subjective asssessment than top academy officials of his worth. He is claiming that his colleagues and department chair recommended him for a substantial raise, and higher-ups disregarded normal procedures--and his solid performance review and high performance ranking among his colleagues--to avoid giving him any raise at all.

The Naval Academy, which has denied Mr. Fleming's past criticisms of its admissions policies, is not commenting on his allegations of retaliation, saying that as a matter of policy it does not discuss such personnel matters.

Plaintiffs in Lawsuit Against U. of Texas Take Their Case to the Fifth Circuit

The plaintiffs in a lawsuit challenging the revival of race-conscious admissions policy at the University of Texas at Austin have taken their case to the U.S. Court of Appeals for the Fifth Circuit.

A terse formal notice of appeal filed in the Fifth Circuit Court this month says simply that the two plaintiffs--white students that the university had rejected--are appealing the August 17 decision by U.S. District Court Judge Sam Sparks to throw out their challenge to the university's admissions policy. Lawyers for the two students are expected to file briefs giving their reasoning for the appeal in the coming weeks.

As discussed in greater depth in an article in The Chronicle of Higher Education, Judge Sparks held in his August 17 ruling that he was dismissing the lawsuit because the university's race-conscious policy was narrowly tailored to achieve a compelling government interest, and therefore constitutional. The lawsuit argues that the university should not be allowed to return to considering applicants' race because it already has in place a race-neutral means of achieving diversity on campus, a requirement under state law that it admit any Texas student in the top 10 percent of his or her high school class.

Lawyers for the students had been characterizing Judge Sparks as unfriendly to their side since May of 2008, when he refused to order the university to re-evaluate the two students' application in a race-neutral manner based on his belief that they had little chance of prevailing. The Fifth Circuit appeals court, by contrast, in 1996 issued one of the harshest judicial denunciations of race-conscious admissions produced by a federal court so far, its Hopwood decision striking down race-conscious admissions at the University of Texas law school with language repudiating the idea that such admissions were constitutionally justified by the diversity they produced. As recounted in detail in Color and Money, Texas lawmakers adopted the 10-percent law in response to the Hopwood ruling, which was subsequently overturned by the U.S. Supreme Court's 2003 Grutter decision upholding the diversity rationale for such policies (but holding that race-neutral alternatives must be considered.)

The so-called "Texas Ten Percent Law" was watered down somewhat in May, when state lawmakers voted to cap the number of students automatically admitted to UT-Austin under it at 75 percent of each entering freshman class. If the challenge to race-conscious admissions prevails, state lawmakers will likely come under renewed pressure to preserve the 10-percent law. That measure is widely supported by many black, Hispanic, and rural legislators, but it is strongly opposed by many representatives of wealthy suburbs where competition from others from privileged backgrounds makes it harder for students to rank in the top tenth of their classes.

New Study Appears Likely to Complicate the Debate Over Legacy Admissions

A new study of alumni of a selective research university concludes that families can feel inclined to donate to such institutions for reasons that extend well beyond simply trying to increase the likelihood of their children getting in.

Having a child approaching college age does appear to make alumni predisposed toward generosity toward their alma maters: The probability of alumni's making gifts increased by 12.9 percentage points if a child of theirs attended, and those gifts were about 48 percent larger than the ones given by alumni without family connections.

But other family ties also appeared to influence giving, in ways that could not easily be attributed to a desire to secure an applicant an advantage. Having a parent, aunt or uncle, or mother-in-law or father-in-law who graduated from the same institution all appeared to make alumni significantly more likely to donate, and those with a sibling who attended the same college, while no more likely than others to donate, tended on average donate more.

See the Chronicle of Higher Education Web site for a full summary of the study by Jonathan Meer, a Stanford University doctoral student who recently accepted a position as an assistant professor of economics at Texas A&M University at College Station, and Harvey S. Rosen, a professor of economics and business policy at Princeton University and co-director of Princeton's Center for Economic Policy Studies.