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The affirmative action case wasn't binding for private institutions. I know that private colleges have been concerned about whether programs might come under legal challenges, and many of them have made adjustments on that basis. But did they also believe their minorities programs were unconstitutional?
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<p>Let's put it this way. The Michigan undergrad case (Gratz vs. Bollinger) was a handpicked case by several public policy legal advocate groups much as the NAACP used hand-picked cases during the Civil Rights Era. The plaintiff, Gratz, was located through an advertising campaign. While the Law School case, Grutter, upheld the principle of an exception to consitituional equal rights for limited use of affirmative action, Gratz shot down the undergrad admissions system for giving an arbitarary boost based solely on race. Renquists' majority opinion was carefully written to provide a road map for the public policy law groups to wage the next round of anti-affirmative action cases:</p>
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Because the Universitys use of race in its current freshman ad-missions policy is not narrowly tailored to achieve respondents asserted interest in diversity, the policy violates the Equal Protection Clause. For the reasons set forth in Grutter v. Bollinger, post, at 15 21, the Court has today rejected petitioners argument that diversity cannot constitute a compelling state interest. However, the Court finds that the Universitys current policy, which automatically distributes 20 points, or one-fifth of the points needed to guarantee ad-mission, to every single underrepresented minority applicant solely because of race, is not narrowly tailored to achieve educational diver-sity. In Bakke, Justice Powell explained his view that it would be permissible for a university to employ an admissions program in which race or ethnic background may be deemed a plus in a particular applicants file. 438 U. S., at 317. He emphasized, however, the importance of considering each particular applicant as an indi-vidual, assessing all of the qualities that individual possesses, and in turn, evaluating that individuals ability to contribute to the unique setting of higher education. The admissions program Justice Powell described did not contemplate that any single characteristic auto-matically ensured a specific and identifiable contribution to a universitys diversity. See id., at 315. The current LSA policy does not pro-vide the individualized consideration Justice Powell contemplated. The only consideration that accompanies the 20-point automatic dis-tribution to all applicants from underrepresented minorities is a factual review to determine whether an individual is a member of one of these minority groups.
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<p>Armed with this language, the Center for Equal Opportunity, spent last spring identifying programs that were solely based on race and threatening to file discrimination complaints with the Office of Civil Rights in the Department of Education which could, in turn, initiate legal action based on the fact that private colleges receive considerable federal funding, especially from the student aid program. Keep in mind that the current Executive Branch is strongly opposed to affirmative action.</p>
<p>Haverford received such a letter regarding the Tri-Co Summer program operated by Swarthmore, Bryn Mawr, and Haverford -- a program that has been closed to white students since its founding in the 1974. Legal council for all three schools concluded, with no doubt whatsoever, that the program would not survive a legal challenge. The fact that it was only open to students based on race was patently in violation of the new Gratz decision.</p>
<p>Here is what the President of Swarthmore said in a Student Council (SC) sponsored public forum on campus after the decision to open the Tri-Co program to white students was criticized by students:</p>
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Al Bloom: </p>
<p>I want to thank SC (student council) for organizing this. The best way to begin is to say why I think it's essential to open the program. I am responsible for this decision. As I heard more about the situation, and explored its legal implications, following consultation with the Deans and other presidents, I came to the decision for Swarthmore. The major factor is what would happen if we were sued by the Department of Education? The amount of money required to defend ourselves would likely be very substantial, and must be weighed against other priorities for our money. And is it likely we'd win? Our legal advice said no. The law as interpreted by the Supreme Court dictates that any program that confers advantage cannot be opened only to participants on the basis of race. So the only way to defend our current program would be to say either that it offers no advantage or that equivalent programs are offered to all students. If we were to lose, there could be various consequences, including serious financial consequences. We could be sued by the Department of Education for damages. We could be sued by any white student who was able to prove disadvantage, or lack of advantage. Potentially, federal financial aid could be at risk, in student aid, grants, loans, and research for faculty; legal penalties could be brought against individuals; and the courts could require the dismantling of Tri-Co. The Department of Education would investigate if there were advantages conferred based on race, opening the institution to very close examination; and there are a range of things that we do that could then be questioned. Moreover, I, our deans, and those at Bryn Mawr and Haverford, believe it would be positive educationally for white students to participate in the program. </p>
<p>70 colleges have opened programs out of fear of legal action, including Harvard, Yale, and Princeton. There have been no reports of success for challengers. When we practice ethical intelligence, we need to weigh all issues and liabilities at stake in deciding what is best for the institution. I can see why you're upset. I regret that. The way of informing you must have seemed arbitrary. We should have had this exact conversation before those letters went out. I wish we had. SC's letter was contentious and I see why we deserved that. Now let's put both our timing and Student Council's response behind us and move to the discussion we should have had.
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