Diversity of college campuses is under siege in courts, warns legal scholar

By Linda Myers

Robin Lenhardt is counsel to a law firm that is building the case for diversity in college admissions in response to an anti-affirmative action court challenge to the University of Michigan Law School. The law school won Grutter v. Bolinger in appeals court last spring, but the case could be granted review by the U.S. Supreme Court as early as this fall. The outcome of a new ruling from the highest court has admissions officers concerned that diversity on colleges campuses across the country is being seriously threatened.

Robin Lenhardt, faculty fellow at Georgetown Law Center, speaks Sept. 13 in Myron Taylor Hall. Charles Harrington/University Photography

Lenhardt, who is a faculty fellow at Georgetown University Law Center, spoke about the Grutter case Sept. 13 in Myron Taylor Hall's Stein Mancuso Amphitheater. Her talk, "Admission, Race and the Courts: An Overview of Recent Affirmative Action Litigation," drew a crowd of Cornell admissions officers, staff members, law students and faculty. The event was part of the annual in-service training program for the admissions community sponsored by Cornell's Undergraduate Admissions Office.

Lenhardt began by praising admissions professionals for "improving the entire higher education landscape for all students" through their decisions to admit more women and minorities to college. But she cautioned that opponents, among them the Center for Individual Rights, which is backing the plaintiff in the Michigan Law School case, "see affirmative action as discrimination and have initiated a legal campaign against it using civil rights strategies." Such groups have already pushed for ballot propositions such as 209 in California, which caused African American enrollment at state colleges there to plummet from 9 percent to 2.5 percent.

"The stakes are high," said Lenhardt. If the court rules that race is not a valid factor in admissions decisions, it "could wreak havoc on admissions programs and change the face of higher education," she said.

The Supreme Court last weighed in on the issue of affirmative action in higher education admissions in 1978, when Justice Lewis Powell cast the deciding vote in the Regents of the University of California v. Bakke case. Powell's opinion stated that a school could not set aside a certain number of seats in its entering class to be filled by racial minorities, but race could be taken into account in admissions decisions as a means to achieve a diverse student group. Powell cited Harvard's policies as the model to follow, and admissions offices at colleges throughout the United States have since emulated them as a way to achieve more racially diverse campuses while adhering to the law.

In the Michigan law school case (one of two that university faces), "Our legal team has set out to prove that there are real educational benefits to diversity" for everyone, not just members of minority groups, said Lenhardt. The defense team is building its case on the findings of a team of experts, among them the dean of Harvard Law School and a University of Michigan psychologist, as well as supporting statistics.

Meanwhile, what can admissions officers do to ensure that they are not breaking the law in their decisions? Lenhardt suggested that schools and colleges conduct audits of their current admissions policies, preferably in conjunction with legal counsel. "Some things are not likely to be affected by a Supreme Court ruling," she said, for example, dual-track admissions policies, which are likely to remain impermissible.

Lenhardt advised the group to avoid race-specific scholarships and also called "risky with this court" programs that specifically aim to increase, say, the number of Latino or African American students attending a given institution. She recommended drafting admissions policies that take into account an institution's overall mission, involve faculty and identify their role in admissions.

In an engaged question-and-answer session, Lenhardt gave her own view that legacy programs, which give favored status to the applications of children, grandchildren and other descendants of alumni -- while not illegal -- "have a way of preserving racial discrimination in admissions."