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New Focus on Affirmative Action
Ballot Measures Add to Debate on Continuation of Programs

By Elizabeth Williamson and Valerie Strauss
Washington Post Staff Writers
Friday, November 17, 2006

The number of minorities -- particularly black Americans -- winning government contracts and being admitted to public colleges and universities in California has dwindled since a ballot measure was passed 10 years ago outlawing preferential treatment for minorities in those areas, according to a study released yesterday.

The report comes as the longtime controversy over affirmative action is gaining new attention. Michigan voters last week adopted a constitutional amendment essentially taking the same action as California, and the American Bar Association is facing criticism from some groups for strengthening its diversity requirements for accreditation of law schools.

The study of California's Proposition 209 shows that it has had a major effect, according to Ellis Cose, who wrote the report for the Institute for Justice and Journalism at the University of Southern California's Annenberg School for Communication.

At the University of California's two flagships, the campuses in Berkeley and Los Angeles, the impact of Proposition 209 was immediate: The number of black and Hispanic freshmen admitted the year after the law took effect fell by half.

In California's transportation system, the report says, two-thirds of the minority contractors certified to do business with the state when the law went into effect have folded. "Once Proposition 209 passed, the contracts just dried up," Cose said.

The study comes after Michigan voters approved a ballot measure that aims, through a constitutional amendment, to bar public universities and state and local governments from discriminating or giving preferential treatment based on race, sex, color, ethnicity or national origin.

The vote shows that "there is a huge sense on the part of white voters that affirmative action needs to end," said Cose, an author and columnist for Newsweek. Although the national implication remains uncertain, "if this thing is put before states where there is a significant white majority, it's likely to pass," he said.

Michigan is a textbook example of what Cose calls the "chipping away of affirmative action," a process that began in the 1970s and gained political steam in the 1990s. In 1974, the Supreme Court rejected as a throwback to "separate but equal" a Detroit plan to bus city children to suburban schools. In 2003, the court ruled that a diverse student body was important enough to support race-conscious admissions at the University of Michigan's law school.

"The measure in Michigan, as did the measure in California, passed along very clearly racial lines," Cose said, showing that "even though jurists see a legitimate state interest in diversity voters, at least white voters don't."

Opponents to last week's ballot measure promise a legal battle, as do proponents. Although the Supreme Court has repeatedly ruled in favor of affirmative action programs, the court's written opinions have signaled for years that the programs' end may be near.

The question, the California report says, is whether Americans, decades after Jim Crow, still feel legally obligated to help boost people whose race puts them at an economic and educational disadvantage. Affirmative action opponents say special treatment based on race implies lesser treatment of others based on their majority status. So by addressing one injustice, they say, the programs commit another.

Because college admissions of minority students have slid nationwide in recent years, many admissions directors have changed their recruiting focus to identify not only minorities but low-income students, including whites.

"In the last couple of years, there has been a much more concerted effort to do this in a race-neutral way," said Lee Coffin, admissions dean at Tufts University in Massachusetts. "The poor white kid has a voice that needs to be heard, in addition to the kind of racial diversity we want to create."

University of Virginia Admissions Dean Jack Blackburn said his school has changed policies and part of its recruiting approach to find more needy applicants. "We realized that we are not providing access," he said. "We are not educating very many kids from low-income backgrounds. The numbers are shockingly low."

That, he said, was one key reason the university recently announced it was dropping its binding early-decision program.

Whether last week's elections -- which returned control of Congress to Democrats, who generally favor affirmative action -- will have an impact on such programs' future remains to be seen.

An important test could come next month, when the American Bar Association undergoes review of its authority to accredit university law schools. A Department of Education hearing, aimed at recertifying the ABA's Council of the Section on Legal Education and Admissions to the Bar as the official accrediting agency for law schools, is expected to be a forum for complaints.

The ABA recently rewrote a diversity standard for law schools, requiring more concrete action to promote a diverse faculty, staff and student body. The new standard drew fire from both sides of the debate: The Congressional Black Caucus did not think it went far enough, and the Bush administration's Commission on Civil Rights said this past summer that it went too far.

The National Association of Scholars has asked the Education Department not to renew the ABA's accrediting power if it does not eliminate all requirements of racial, ethnic and gender diversity from its accreditation standards.

Sources familiar with the issue said the department is divided over the question, with some administration political appointees sympathetic to that request.

Even if affirmative action were to disappear, "the universities are going to try very hard to admit a reasonable number of minority candidates," Cose said. "But they are inevitably going to see the numbers go down."

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