The public universities of California, Texas and Florida, whose "race-neutral" admissions policies were applauded by President Bush this week, are notable for their efforts to achieve the goals of affirmative action -- racial diversity -- without actually using affirmative action.
The president's endorsement means that they are sure to be studied closely as the issue returns to the U.S. Supreme Court.
Despite some variations in approach, all three states have tried to maintain, and ideally increase, the percentage of African American and Latino students on their campuses.
In fact, Bush's support for such systems might succeed in satisfying affirmative action opponents without alienating increasingly influential Latino voters and social moderates.
Some conservatives, such as University of California Regent Ward Connerly, worry that the new policies might amount to "back-door affirmative action." But supporters, such as Bush, who signed Texas' new admission policies into law as governor, say they are more equitable ways to achieve diversity without sacrificing excellence.
The admissions programs in California, Texas and Florida essentially take two approaches to maintain or increase diversity: They guarantee access to the top students in every high school, including those that are predominantly or entirely minority, or they recruit low-income and otherwise disadvantaged students, many of whom were presumed to be black or Latino.
The extent to which such "race-neutral" policies have succeeded is disputed. In general, they have maintained diversity in all but the most elite institutions. But those are the very institutions that attract the most attention and, perhaps more important, serve as pipelines to positions of power and influence.
So, for instance, the University of California has increased the percentage of admitted African American, Latino and Native American students from 18.8% in 1997 -- the last year of race-based policies -- to 19% in 2002. But at the system's most competitive campuses, UCLA and UC Berkeley, underrepresented minority enrollment has dropped and has yet to rebound. This is true especially at such prestigious institutions as Boalt Hall Law School at Berkeley.
UC Regent Tom Sayles, who like Connerly is African American, said he "liked the old model" -- meaning affirmative action that gives extra consideration to underrepresented minorities -- better than the university's current policies.
"I see the UC as a model in what we're doing, and we're doing the best we can," he said. "But I don't feel that what we have now has fully replaced the model we had before."
California voters banned race-based affirmative action in 1996 with the passage of Proposition 209. Texas and Florida, which have two of the largest public university systems in the nation after California's, also abolished affirmative action.
The University of California changed its admissions policies to guarantee enrollment to the top 4% of students at all California high schools. It also decided to consider personal qualities, such as leadership or a history of overcoming adversity, for all applicants.
The changes in Texas were prompted by a lawsuit. Texas' affirmative action program was ruled unconstitutional by the U.S. Court of Appeals in 1996.
The next year, then-Gov. George W. Bush signed into law the "Ten Percent Plan," which guaranteed that the top 10% of students in any Texas high school would be guaranteed admission to the University of Texas and Texas A&M; system.
In addition, the University of Texas launched a recruitment campaign aimed at encouraging African American and Latino students to apply. The result: Since scrapping its affirmative action program in 1996, the University of Texas system has seen a 15% increase in the number of black students and a 10% increase in Latinos. The number of white students has declined 2%.
But the story is not as simple as those figures make it appear. Minority enrollment in the most elite branches of the Texas system has declined, in some cases precipitously. The biggest gains have been at second-tier schools such as Prairie View A&M;, the University of Houston and Stephen F. Austin State University, where black and Latino enrollment has increased by as much as 90%.
By contrast, at the prestigious University of Texas-Austin, black enrollment has declined by 17% and Latino enrollment by 5%. White enrollment is largely unchanged. At Texas A&M;, black enrollment is down by 14%, Latino enrollment by 1%, and white enrollment has increased by 13%.
Among the most dramatic declines have been those at the University of Texas Law School, a traditional path to power and influence in Texas. There, said University of Texas spokesman Monty Jones, black enrollment dropped 58%, from 97 students in 1996, the year that affirmative action was overturned, to 41 in 2001, the last year for which numbers were available.
Florida, whose public universities do not have any elite institutions comparable to UC Berkeley or University of Texas-Austin, appears to have been the most successful at maintaining diversity. The "One Florida" plan, adopted by the Florida Legislature in 2000 and signed into law by Gov. Jeb Bush, guarantees spots at the University of Florida for the top 20% of all graduating high school classes. The plan also relies on efforts to identify disadvantaged students in high school and intensify efforts to prepare them for college.
On Thursday, Florida's attorney general filed a friend-of-the-court brief with the Supreme Court siding with the Bush administration and the plaintiff in the Michigan case. In it, the state noted that the percentage of incoming minority students in Florida's undergraduate colleges has remained steady at about 37% since the "race-neutral" policy was adopted in 1999.
The somewhat more selective University of Florida saw a decline in the first two years under the new policy, with African American enrollment declining from 10% to 7%. But Latino enrollment remained about even at 11%, and more recent figures show African American enrollment rising substantially.
The state's legal brief lays out the argument for scrapping affirmative action in favor of "race-neutral" policies. In fact, although the policies are legally race-neutral, the explicit goals are to achieve ethnic and racial diversity.
"Because of its ethnically and racially diverse population, Florida has an interest in promoting diversity in higher education, as well as in all other state programs, including state contracting and employment," the brief reads. "Florida can share with the court that through the use of race-neutral means, it has maintained a state university system that reflects the rich diversity of Florida's population."
The question raised by some conservatives is: At what point do "race-neutral" policies designed to increase diversity become affirmative action by another name?
"If they're doing it for sound educational reasons, that's fine," said Curt Levey, a spokesman for the Center for Individual Rights, the Washington-based legal foundation that represented the plaintiffs in both Texas' Hopwood case and in the University of Michigan case.
But from Levey's perspective, it is not fine to use recruitment and other policies to mask racial preferences.
"If a court of law finds that's what they're doing, they'll strike it down," he said.
It can be a fine line. Connerly, the architect of California's Proposition 209, said the states should not establish policies in lieu of affirmative action that are still aimed at achieving "a certain outcome on the basis of race." Such policies, he said, amount to "a distinction without a difference."
Still, he said, he recognizes the difficulty of erecting a truly equitable framework.
For many politicians, especially conservatives, the difficulty lies in finding a middle path. If there is widespread dissatisfaction with anything that can be defined as a "quota," there also is strong social backing for the ideal of diversity.
As governor of Texas, "George W. looked for some kind of waffle, a middle ground, and came up with the 10% plan," said Nicholas Lemann, author of "The Big Test: The Secret History of the American Meritocracy," a history of the SAT and college admissions. "In pure political terms, he turned out to be right."
Times staff writers Richard O'Reilly and Sandra Poindexter contributed to this report.