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What is legal and what is not legal when using affirmative action in admissions and in administering financial aid programs? The decisions this past summer by the U.S. Supreme Court in the University of Michigan Law School and the undergraduate College of Literature, Science and the Arts cases addressed the legality in the context of two specific programs. The cases provided some guidance to the higher education community about what is and is not legal, but clear do's and don’ts are unlikely to present until the lower courts have a chance to put their own spin on a particular set of facts.

The Court addressed two questions. First, is diversity a compelling state interest, which justifies using race as a factor in admissions policies? Second, is the policy narrowly tailored to meet the compelling interest? The holdings of the Court in the two cases are equally applicable to both public and private universities, as discrimination that violates the Equal Protection Clause of the Fourteenth Amendment committed by an institution that accepts federal funds also constitutes a violation of Title VI of the Civil Rights Act of 1964.

The case in which the Court upheld the use of affirmative action was Grutter v. Bollinger. [1] The Grutter case involved the University of Michigan Law School admissions practices. The University of Michigan Law School is a very selective school that receives more than 3,500 applications for 350 spaces for the first year class.

The Law School was sued in December of 1997 by an unsuccessful applicant, Barbara Grutter, a white Michigan resident who applied to the Law School in 1996 with a 3.8 grad point average and a 161 LSAT score. The Petitioner alleged the University of Michigan Law School discriminated against her on the basis of race in violation of the Fourteenth Amendment, Title VI of the Civil Rights Act of 1964, and 42 U.S.C. § 1981.

The Petitioner further alleged that the Law School admissions policy used race as a predominant factor, giving applicants of minority groups a much greater chance at admission. The Law School defended the use of race on the grounds of the educational benefits that flow from a diverse student body.

The Law School admissions policy did not define diversity solely in terms of racial and ethnic status. The policy quoted many possible bases for diversity admissions, including those who have lived abroad, are fluent in several languages, have overcome personal adversity and family hardship, have exceptional records of community service, or have had successful careers in other fields. The facts showed that the Law School gave substantial weight to diversity factors besides race. It should also be noted that the University of Michigan had an extremely well developed factual predicate for the use of diversity.

"The Law School’s educational judgment that such diversity is essential to its educational mission is one to which we defer." The Court also noted good faith on the part of the institution should be presumed.

What did the Court like about the Law School policy? Key to the upholding of the admissions policy was the finding that "the Law School engages in 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." [2] No quotas were used and no automatic points were assigned on the basis of race.

In contrast, the Court in Gratz v. Bollinger [3]ruled that the admissions policy used by the University of Michigan in admitting undergraduates to the College of Literature, Science and the Arts was unconstitutional. The Court stated:

The Court finds that the University’s current policy, which automatically distributes 20 points, or one-fifth of the points needed to guarantee admission, to every single “underrepresented minority” applicant solely because of race, is not narrowly tailored to achieve educational diversity.

The Court also found the fact that the individualized review only occurred after distribution of the automatic points to be flawed.

In response to the Court's decision, the University of Michigan issued new undergraduate admissions policies and procedures, which can be found online at http://www.admissions.umich.edu/process/.

Constitutional scholars earn their pay by reading through many pages of text and subtle variations in tone by different justices and daring to issue concrete guidelines that can be followed by those seeking to implement the law in real world situations. In the Michigan cases there were 13 different opinions authored by the justices in the two cases. Many constitutional scholars have weighed in on these two cases. CUA is lucky to have one of those brave constitutional scholars on it's own campus, Professor William Kaplin of the Columbus School of Law. Professor Kaplin is best known in the higher education community for having written The Law of Higher Education: A Comprehensive Guide to the Legal Implications of Administrative Decision Making (3^rd Edition with Barbara Lee). Kaplin also has a forthcoming book called American Constitutional Law: An Overview, Analysis and Synthesis which will be available from the Carolina Academic Press in early 2004.

Professor Kaplin recently offered a series of tips for schools seeking to review their affirmative action plans or develop new ones. The following is our summary of Professor Kaplin’s tips.

[1] 123 S.Ct. 2325 (2003)

[2] Id. at 2343.

3] Gratz v. Bollinger, 123 S. Ct. 2411 (2003)

The CUA Office of Disability Support Services sponsored a fascinating presentation on Oct. 9^th as part of the celebration of Disability Awareness Month. The speaker was William "Skip" Stahl. Mr. Stahl is a Co-Founder of The Center for Applied Special Technology (CAST), which is based in Wakefield, Massachusetts. CAST is a non-profit organization using technology to expand opportunities for all people, especially those with disabilities.

Many may be familiar with the principles of universal design as applied in architecture, which is the design of environments to be usable by all people, to the greatest extent possible, without the need for adaptation or specialized design. The concept of universal design in learning is adopted from the architectural model, and seeks to provide a framework for educational change that incorporates new technology and new knowledge about how people learn to enhance learning for all students. Universal design in learning applies the idea of built-in flexibility to the educational curriculum, and supports the idea of improved access to information not only in the classroom, but in all phases of learning. While the main focus is on students with disabilities, the rewards and benefits flow to all students.

How can an educational offering benefit both students with and without disabilities? Here is an example. The other day I clicked on to the MIT Open Courseware Web Page. This initiative is an open educational resource for faculty, staff and self learners. With computer access you can click on a web page and work through course materials that are used in the teaching of MIT's undergraduate and graduate subjects. My son is a high school senior taking Physics, and I wanted to show him the MIT web page. I clicked the offering Physics I, Fall 2002. The lecture notes were posted in PDF and handwritten. As soon as I saw the crabbed handwritten lecture notes, I realized my son would not have the patience to work through any of the material. Although my son has no disability, the illegible handwriting presented a learning barrier.

As for those students with vision impairments who must use a machine readable version of text online, the notes are completely inaccessible, as they are posted in PDF format, which is simply a picture of the text and cannot be "read" by those technologies available for the visually impaired. Even typed lecture notes posted in PDF are inaccessible to the blind, as auditory access cannot be obtained from an image only file such as PDF.

CAST is a resource for educators who are interested in removing this type of barrier to learning. At the October 9^th CUA lecture, Mr. Stahl demonstrated software that allows the user to move between Braille and plain text, American Sign Language and English, or between English and Spanish with the click of a mouse.

Simple concepts used by professors in teaching courses will enhance learning not just for students with disabilities, but for all students. Mr. Stahl made this point by posting a plain black and white syllabus for a college course, and then a color and bolded (using only colors without bolding as well, can inhibit access for those who are color blind) syllabus with hyperlinks to the course material in digital format. The syllabus was organized by content. While the colored and interactive syllabus was more accessible to those students with learning disabilities, it clearly enhances accessibility for all students.

Another example of benefits for the general population that flows from material targeted for those with disabilities is the growth in high quality closed captioning on television. While the initial target population was the deaf community, studies have shown that the general population also uses closed captioning. The highest percent of users were sports bars, and married couples watching TV in bed while one member of the couple sleeps.

To find out more about how to use digital technology to enhance access for all of your students, visit the CAST web page. Bonnie McClellan of the Office of Disability Support Services is available to consult with individual professors about implementing universal design concepts in the classroom. A video copy of the CAST presentation is also available from the Office of Disability Support Services.