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June 26, 2003

Pitt officials gratified by affirmative action decision

Pitt officials said they felt gratified, validated — and relieved — by the U.S. Supreme Court’s June 23 rulings upholding the right of universities to consider race as a factor in admissions while forbidding racial quotas.

The court ruled 5-4 to uphold a plan used by the University of Michigan’s law school to assure a diverse student body by seeking a “critical mass” of minority students. The law school undertakes a “highly individualized, holistic review of each applicant’s file” and counts race as only one factor among others, Justice Sandra Day O’Connor wrote in her majority opinion.

Creation of a diverse student body is a compelling state interest, she declared.

But in a second case, the court ruled 6-3 that Michigan’s system for admitting undergraduates involved a points-based formula that gave too much weight to race and was, therefore, unconstitutional.

In a June 23 statement, Pitt’s administration said: “We are gratified that in the two University of Michigan cases, the Supreme Court of the United States today has upheld the principle that a diverse student body is a compelling state interest — one that is protected and one that a university may seek to achieve in appropriate ways under the U.S. Constitution.”

The statement noted that Pitt, along with Carnegie Mellon and other research universities, filed a friend-of-the-court brief in the Michigan cases, supporting affirmative action. “We remain confident…that our programs seeking diversity in admissions comply with constitutional mandates,” the statement said.

Betsy A. Porter, Pitt director of Admissions and Financial Aid, told the University Times: “The Supreme Court’s decision regarding the University of Michigan law school was a validation of what we have been doing at least since I’ve been here [1978]. That is, race may be one factor, but not the paramount factor, in making admissions decisions. We have never assigned points for any criteria.”

While some universities (especially large, state systems inundated with undergraduate applications) initially review those applications electronically, each undergraduate application submitted to Pitt is reviewed by a committee of admissions professionals, said Porter. “A number of applications are reviewed two, three or four times,” she said, especially those of students on the borderline of meeting Pitt’s academic standards.

“Is it cumbersome and time-consuming? Absolutely,” said Porter. “But we’ve long believed that you can’t fairly assign points and ratings [in the admissions process]. Competition within different high schools, availability of courses, the percentage of a particular high school’s graduates going on to four-year colleges and universities — these kinds of factors are so complex that I don’t see how you could develop a workable automated admissions system, at least in my lifetime.”

Among the 2,925 students who had paid deposits as of last week to enroll at the Pittsburgh campus as freshmen next fall, 339 (11.6 percent) were African-American, said Porter — almost the exact percentage as last year at this time.

David Herring, dean of Pitt’s School of Law, said the Supreme Court’s decision in the Michigan law school case “is a victory for supporters of affirmative action and for what we have been doing at our school. The court left the door open to considering race in making admissions decisions without quantifying it or using quotas. That is exactly what we have done and what most institutions of higher education have done since the Bakke decision” of 1978, in which the Supreme Court permitted the use of race as one “plus factor” in admissions decisions.

Herring said he felt relieved by this week’s ruling on the Michigan law school policy. “It means that our own approach to admissions has survived the court’s review.”

Theoretically, Herring said, Pitt’s law school would choose an African-American applicant over an equally well-qualified white student in the interest of diversifying the study body — “although I’ve never come across a case where we’ve had two, precisely equal candidates,” the dean said.

He said the school expects to enroll about 40 minority students (at least half of them African-Americans) in this fall’s entering class of 240.

In her majority opinion, Justice O’Connor wrote: “We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.” But conservative groups probably won’t wait that long to resume fighting affirmative action, predicted Herring and John Parry, a constitutional law expert on Pitt’s law faculty.

Among conservatives, the litmus test for future Supreme Court appointees likely will include clearly stated opposition to affirmative action, suggested Parry. “In addition to asking nominees, ‘What do you think of abortion?’ it will now be, ‘What do you think of abortion and affirmative action?’” he said.

“Because the Supreme Court has still not clearly answered whether preferential treatment for certain races and ethnic groups is always permissible or never permissible, there is still legal territory left to fight over,” said Parry.

He concurred with an observation by Justice Antonin Scalia, who opposed both University of Michigan policies: Lower courts now will be asked to rule on whether a particular school’s affirmative action policy is closer to the acceptable one maintained by Michigan’s law school or to Michigan’s unconstitutional, quota-based system for undergraduates.

But for the U.S. Supreme Court itself to rule significantly on affirmative action, said Herring, “it would take a brand new case that would have to wind its way through the entire system and the Supreme Court would have to agree to take the case, which is highly unlikely since they only accept about 100 cases a year. The chances of this [week’s rulings] changing any time soon are minimal.”

What remains to be seen, according to Parry, is how private industry will seek to apply this week’s rulings.

“Let’s use PNC Bank as a possible example,” he said. “If PNC wanted to defend its affirmative action policy, it could cite the University of Michigan decisions in arguing that a diverse workforce is better for its workers, its customers and the larger community. They could note that the financial services industry has a history of discrimination both in employment and services, and that history must be addressed.

“Now, someone else could cite those same Michigan cases and say, ‘No, those focused on law schools and higher education in general, not financial institutions.’

“There’s enough material there to argue either way. Which is what keeps lawyers busy,” Parry said, with a laugh. “That’s why we have law schools.”

— Bruce Steele

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