Equal Opportunity in Virginia Higher Education

Thank you, Mr. Chairman, for the opportunity to testify here today. My statement will take only five minutes of the committee’s time today, but I ask that my entire statement be made a part of the record.

My name is Edward Blum and I am a visiting fellow at the American Enterprise Institute in Washington, DC where I study civil rights policy issues. Additionally, I serve as a senior fellow at the Center for Equal Opportunity based in Sterling, Virginia where I have concentrated in civil rights policy and legal issues having to do with primary, secondary and higher education.

In 2003, the US Supreme Court handed down opinions in two related cases from the Univ. of Michigan. In Grutter v. Bollinger--the law school case, and Gratz v. Bollinger--the undergraduate case, the Court ruled that the use of racial preferences to achieve a "diverse" student body was a "compelling state interest." This compelling interest the Court said, allows a university to give certain applicants who otherwise might not be represented in the student body a preference if they are say, African-American, Hispanic, or Native-American. By enrolling a critical mass of these underrepresented minority students, the Court concluded that a school’s student body and overall learning environment would benefit.

In both cases however, the Court tried to limit the degree to which these preferences could extend by noting that the thumb on the admissions scales couldn’t be too heavy; and, in fact, before any weight at all could be given to student’s race or ethnicity, a school must first attempt to achieve diversity using race-neutral methods. In the Grutter decision, the Court found that the racial preferences were acceptably insignificant, while in Gratz, they found them to be too substantial. Both cases were decided by 5 to 4 majorities.

These cases have generated much confusion in the higher education community. Specifically, how much weight can be given to an applicant’s race in the admissions process? And how does a school know if it has crossed the line from a "narrowly tailored" permissible racial preference to an impermissible racial quota? In truth, no one knows the answer to that since the opinions don’t set out clear guidelines and standards for colleges and universities to follow.

Regardless of the Court’s split over what constitutes a quota and what does not, there is a need for colleges and universities to formally disclose the manner and extent to which they grant preferences based on race and ethnicity. Virginia Senate Bill 581 will begin to accomplish this. However, it is my opinion that the bill needs to be expanded to include the following language:


The governing bodies of the public institutions of higher education shall annually disclose all factors, and the weight given them, used in admission decisions such as, but not limited to, geographic diversity, academic achievement, race and national origin (including specific documentation that their consideration is narrowly tailored to a compelling government interest), religion, or extracurricular activities.


When schools have one set of admission standards for some races and another, lower one for others--as inevitably happens when a school is trying to admit more from some groups and, therefore, fewer from others--disparities necessarily follow.

Let me give you an example of this. Using the Freedom of Information Act, The Center for Equal Opportunity gathered official admissions data in 1999 from the University of Virginia to measure the extent UVA was using racial preferences. We found that a hypothetical student who happened to be Asian or white who scored 600 on both the verbal and quantitative sections of the SAT and graduated in the twentieth percentile of his high school class had only a 10-percent chance of admission. However, those same scores and grades for a black student produced a 92-percent chance of admission.

This disparity seems far too wide to fall within the Supreme Court’s guidelines. In all fairness, UVa may have changed their admissions guidelines since this study was conducted. But in any event Senate Bill 581 will make it easier for every citizen of Virginia to monitor the use of racial preferences in the admissions process so that it stays within the boundaries set out by the Supreme Court.

I respectfully offer the following findings for your consideration:

Citizens and taxpayers of the State of Virginia have a right to know whether its public institutions of higher education are treating student applications differently depending on the students’ race, color, ethnicity, or national origin, and, if so, the way in which these factors are weighed and the consequences to the students themselves of doing so. Moreover, the United States Supreme Court has recently set out limitations on such considerations of race, color, ethnicity, and national origin, and it is part of the oversight duty of the State Legislature to ensure that those limitations are being observed and the State is not exposed to expensive litigation.

Section 1. Every academic year, each public institution of higher education shall provide to the State Legislature a report regarding its student admissions process, and this report shall be made publicly available.

Section 2. This report shall begin with a statement of whether race, color, ethnicity, or national origin is considered in the student admissions process (if different departments within the institution have separate admission processes and consider race, color, ethnicity, and national origin differently, then the report shall provide the information required by this report for each department separately).

Section 3. If race, color, ethnicity, or national origin is considered in the student admission process, then the public institution of higher education shall also provide the following information:

(a) the groups for which membership is considered a plus factor or a minus factor and, in addition, how membership in a group is determined for individual students;
(b) how group membership is considered, including the weight given to such consideration and whether targets, goals, or quotas are used;
(c) why group membership is considered (including the determination of the critical-mass level and relationship to the particular institution’s educational mission with respect to the diversity rationale);
(d) what consideration has been given to neutral alternatives as a means for achieving the same goals for which group membership is considered;
(e) how frequently the need to consider group membership is reassessed and how that reassessment is conducted;
(f) factors other than race, color, ethnicity, or national origin that are collected in the admissions process. Where those factors include grades or class rank in high school, scores on standardized tests (including the ACT and SAT), legacy status, sex, state residency, or other quantifiable criteria, then all raw admissions data for applicants regarding these factors, along with the applicants’ race, color, ethnicity, and national origin and the admissions decision made by the school regarding that applicant, shall accompany the report in computer-readable form, with the name of individual students redacted but with appropriate links, so that it is possible for the Legislature or other interested persons to determine through statistical analysis the weight being given to race, color, ethnicity, and national origin relative to other factors; and
(g) analysis--and also the underlying data needed to perform an analysis--of whether there is a correlation (i) between membership in a group favored on account of race, color, ethnicity, or national origin and the likelihood of enrollment in a remediation program, relative to membership in other groups; (ii) between such membership and graduation rates, relative to membership in other groups; and (iii) between such membership and the likelihood of defaulting on education loans, relative to membership in other groups.

Section 4. Nothing herein shall be construed as authorizing, allowing, requiring, or permitting the use of preferences or discrimination based on race, color, or national origin.

Edward Blum is a Visiting Fellow in Social and Political Studies at AEI.

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