It began in March when the Education Department's Office for Civil Rights issued "Race-Neutral Alternatives in Postsecondary Education: Innovative Approaches to Diversity." The publication provides information on the various race-neutral programs that are being implemented around the country, without endorsing any particular one, the point being to make them more widely known and to encourage educators to consider them seriously, even to come up with new ones of their own.
In late April, the Office for Civil Rights followed up with a two-day conference in Miami attended by representatives of more than 100 colleges and universities, including Brown, Penn, Notre Dame, Baylor, Virginia Tech, Brigham Young, and Southern Methodist. Since then the office has continued to collect and distribute information on race-neutral alternatives.
The result has been to broaden discussion of this subject beyond where the Justice Department left it in its Michigan briefs. At issue in those cases are the undergraduate and law schools' race-based admissions policies. In arguing that the Constitution forbids "race-based policies when race-neutral alternatives are available," the Justice Department gave as examples of the latter the policies used by Texas, California, and Florida that guarantee admission to the highest-ranked students in each high school graduating class--the top 10 percent in Texas, the top 4 percent in California, and the top 20 percent in Florida.
Those policies--and their results so far--are spelled out in "Race-Neutral Alternatives in Postsecondary Education," and representatives of the three states discussed them in Miami. But the Office for Civil Rights is also publicizing socioeconomic affirmative action, which Texas, California, and Florida are using on a limited basis. Under this approach, as Richard Kahlenberg, author of "The Remedy: Class, Race, and Affirmative Action," explained during the conference, preferences are extended to students who have performed well academically despite having faced various social and economic obstacles. In determining socioeconomic disadvantage, admissions officers take into account, among other factors, parents' education, family income, family structure, and school quality.
Both the class-rank and socioeconomic approaches operate at the point where students seek admission. Yet it is widely recognized that many students need help much earlier in their schooling if they are to have the skills, resources, and abilities actually to compete for places in good colleges--and then succeed.
For this reason, the Office for Civil Rights is also drawing attention to "developmental" approaches--such as "partnerships" in which universities work with nearby low-performing elementary and secondary schools. The University of California, the University of Pennsylvania, the University of Vermont, and the University of Florida have partnerships with such schools. The partnerships take various forms, depending on the need. In some cases, the universities tutor and mentor students, and advise them about the courses they need to take to prepare for college. In other cases, they help schools devise curricula, train teachers, or even provide classroom instruction.
Another developmental approach involves the expansion of Advanced Placement courses. As "Race-Neutral Alternatives" points out, taking AP courses helps high school students in at least three ways: They may learn more because they are in more demanding courses; they may get higher GPAs as a result of taking AP courses, which sometimes carry extra points; and they may earn college credits. Unfortunately, many inner-city and rural high schools, if they offer AP courses at all, offer fewer than other high schools do. Texas and Florida have undertaken to change that, and the results so far are impressive. In Texas, student participation in AP courses has climbed by 57 percent since 1999, with most of the increase coming from schools that had never before offered such courses. And in Florida, the number of students in low-performing schools who are taking AP courses has increased from 4,000 to 7,000 in the past two years.
It's hard not to notice that most of the race-neutral alternatives the Department of Education is publicizing are found in Texas, California, and Florida. There is a reason for that: Those states were forced to abandon racial preferences--which meant, if they were to pursue diversity, they had to do so by race-neutral means. A court (the federal appeals court for the 5th Circuit) told Texas to quit using racial preferences. A majority of the people in California (voting for Proposition 209) told California to use them no more. And a savvy governor (Jeb Bush) employed an executive order to tell Florida that the era of racial preferences was over.
Education officials clearly believe that race-neutral approaches will eventually yield racial and ethnic diversity--meaning an integrated student body. The department doesn't contend, however, that this integration must be defined numerically. The Office for Civil Rights thus parts company with Michigan and other schools using race-based policies that require a "critical mass" of underrepresented students in a class if the educational benefits of diversity are to be secured. For Michigan, the chief educational benefit is supposed to be a transformation of the attitudes of all students, especially those in the majority. "Race-Neutral Alternatives" doesn't critique that idea of diversity--which is vigorously disputed in the Michigan litigation. Both Justice and Education have shied away from the issue, no doubt because President Bush has at times seemed to support diversity as a tool of social engineering. So a still broader conversation on diversity has been left for others to join. Soon enough, we'll know whether the Supreme Court has engaged it.
"Race-Neutral Alternatives" correctly notes that "any race-neutral program is unlikely to produce racial diversity with the precision that using race will"--meaning the precision achieved by a critical-mass quota. And some race-neutral alternatives have drawn criticism on grounds that they aren't really race-neutral. Class-rank and percentage plans in particular are said to be constitutionally dubious. They use race-neutral criteria, goes the argument, yet those criteria were chosen in order to favor certain groups--and disfavor others. But wherever one comes down on that issue, the class-rank plans at least have the merit of not treating individuals differently on account of their race.
The conversation the Education Department has begun is worth having precisely because it is past time that colleges and universities stopped treating applicants in a racially discriminatory manner. "We've spent a lot of time defining the present [preferential] system," said Gerald Reynolds, the assistant secretary for civil rights, during the Miami conference. "Why can't we spend time on this?" The nation will be able to spend a lot more time on race-neutral alternatives if the Court renders--as it should--an unambiguous judgment against racial preferences.
--Terry Eastland, for the Editors