UC Affirmative Action Halt May Clash With U.S. Law

A top Clinton administration official says the University of California may have violated federal civil rights law by dropping its affirmative action rules and relying on test scores and grades as a basis for selecting new students.

The law forbids not just different treatment of blacks and Latinos, but use of standards that have “a discriminatory effect” on minorities, Judith Winston, the Education Department’s general counsel, said in an interview. “Particular race-neutral criteria [such as tests] can have a discriminatory effect” on black and Latino applicants, she said, given that minority students as a group tend to score lower on standardized exams.

Winston declined to comment directly on a complaint filed with the federal government that challenges the UC system’s decision to end its affirmative action program for student admissions. But her remarks Thursday indicated that the administration’s view of the law is closely aligned with the position taken by the Mexican American Legal Defense Fund, the NAACP Legal Defense Fund and other groups that filed the complaint.

The complaint, filed in March, said the use of strict academic standards violates federal law because it “results in substantial exclusion of qualified minority applicants.”

In response, the Education Department announced two weeks ago that it had begun an official investigation of the UC law schools at Berkeley, Los Angeles and Davis because of sharp drop-offs in the number of minority students admitted.

The University of California as a whole receives more than $1.1 billion in federal funds. In theory, the Education Department could cut off those funds if the UC system is found to violate civil rights law.

President Clinton has urged his legal advisors “to use federal law to the maximum extent” to promote diversity, and the Education Department’s lawyers have taken the lead.

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A spokesman for Gov. Pete Wilson called Winston’s statements “shocking.”

“It turns civil rights law on its head” to say a “colorblind admissions policy” is discriminatory, said spokesman Sean Walsh. “In essence, the Education Department and the Clinton administration are still arguing for discrimination and quotas.”

A UCLA official also said he was taken aback by Winston’s comments.

“That sounds frightening,” said Michael Rappaport, dean of admissions at the UCLA Law School. “I hope that neither the federal government nor MALDEF is suggesting an academic institution can’t use academic criteria when evaluating candidates for its academic program.”

The dispute was triggered by the 1995 vote of the UC Board of Regents barring the use of race, ethnicity or gender as criteria for admitting students. That policy took effect this year in the graduate programs, including the three law schools. Admissions officials now rely mostly on measures of academic merit in selecting applicants, but Rappaport said they also gave some preference to applicants who came from low-income families or had an otherwise disadvantaged background.

As a result of the new standards, the UCLA Law School said it admitted 80% fewer black students and 35% fewer Latinos to this fall’s incoming class. Boalt Hall at Berkeley may have no black students in its fall class because none of the 14 black students who were admitted have so far said they would enroll.

Federal civil rights law says schools and colleges that receive federal funds may not subject any person “to discrimination . . . on the ground of race, color or national origin.” In the past, the Supreme Court has said that means individuals may not be treated differently because of their race or ethnic background.

But in some employment cases, the court has gone further and said a seemingly neutral standard can be illegal if it has a “disparate impact” or “discriminatory effect” on minorities or women. For example, some police and fire departments were forced to drop minimum height and weight rules because they were judged to unfairly exclude women.

These employment-law standards generally have not been used in the education area. But the comments by Winston, a Clinton appointee, made it clear that her office believes that in enforcing civil rights laws for colleges and universities, the “discriminatory effect” of using test scores and grades to determine admission must be evaluated.

She added that to justify the use of academic standards that exclude most minorities, school officials would have to prove “those are the best measures” for selecting students and “there are no other nondiscriminatory alternatives available.”

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Two lawyers who have fought on opposite sides of an affirmative action battle said they doubt that approach would be upheld by the Supreme Court.

“She is voicing a theory that does not have support in the courts,” said University of Texas Law School professor Samuel Issacharoff, a defender of affirmative action. “I’m not aware of any legal support for the idea that would say the Harvard Law School, for example, cannot accept only the cream of the crop if doing so would have an impact on a minority group.”

Terence Pell, an attorney for the Center for Individual Rights in Washington, which opposes affirmative action, agreed. “It’s a real stretch on their part,” he said.