The Federalist Society

Department of Education v. Academic Standards

Civil Rights Practice Group Newsletter - Volume 1, Issue 3, Fall 1997

December 1, 1997

Jennifer Nelson

On July 14, the U.S. Department of Education's Office of Civil Rights announced that it was beginning an investigation at the University of California's Boalt Hall (Berkeley), Davis and UCLA Law Schools to "determine whether the admissions policies and procedures currently in use at those schools violate Title VI and the implementing regulation." The investigation is the result of a complaint made last March by the Mexican-American Legal Defense and Educational Fund ("MALDEF"), the NAACP Legal Defense and Educational Fund, the California's Women's Law Center, Asian Pacific American Legal Center of Southern California, Equal Rights Advocates and La Raza Centro Legal.

Not surprisingly, the Clinton Administration's action has both political and policy motivations. From a policy perspective, President Clinton and his appointees are fundamentally committed to retaining racial and gender preferences. Appointees like Judith Winston, general counsel at the Department of Education, and Norma Cantu, the head of the Education Department's Office for Civil Rights, have proven to be tireless advocates of quotas, preferences and set-asides. The Clinton Administration decision to pursue the investigation is continued evidence that the Administration intends to use its bureaucratic powers to force state and local government agencies to continue using race and gender preferences-even in the face of court orders or voter initiatives to the contrary. From a political perspective, many anti-preference supporters believe the investigation is the President's way of paying back a debt to Jesse Jackson and the other "No on 209" campaign leaders. During the 209 campaign, Jackson and others pressed Clinton and his staff to help raise money for the anti-209 groups. The Clinton camp not only refused to help raise money, but the President would not campaign against 209 because he knew that the initiative was popular with California's voters and strong opposition on his part could jeopardize his ability to win those important electoral votes. While he voiced tepid opposition to the initiative as early as 1995, he did not give a major speech on his position until Halloween 1996 when it was clear that he was going to carry the Golden State. Even at that point, he never said that the initiative was unconstitutional, as his Department of Justice argues in its amicus curiae brief in support of the lawsuit against Prop. 209.

Supporters of Prop. 209 should not be surprised by the Administration's investigation, especially if they watched "Meet the Press" featuring Ward Connerly and Jesse Jackson the day after Clinton's race speech at UC San Diego. Jackson challenged Clinton to conduct the OCR investigation into UC's admissions process:

Jackson: "President Clinton must enforce the laws of equal opportunity. Even for California. I would hope that he contact the Office of Civil Rights, and the Department of Justice to investigate. If there are patterns of race and sex discrimination in any institution or in any state, they forfeit access to federal funds."

When Tim Russert asked if he was calling for cutting off federal funds, Jackson continued:

He [Clinton] believes there's discrimination there. He said it. And if he believes that, he must use his powers to act. The good tone was a good thing, but you will not close that gap just with a speech, indeed, a great speech."

The investigation has supporters of Prop. 209 angry - and some worried. There is speculation that the Regents will not stand by their decision to eliminate race-based admissions in the face of a threat of losing federal funding. Worse, it is possible that when Prop. 209 is implemented, the University could be exempt from the new law if federal funds are indeed withheld - which may be the Clinton Administration's and MALDEF et al.'s strategy.

Proposition 209's clause (e) reads: "Nothing in this section shall be interpreted as prohibiting action which must be taken to establish or maintain eligibility for any federal program, where ineligibility would result in a loss of federal funds to the state." This common sense provision was meant to eliminate the "No on 209" campaign's argument that the state would lose millions in federal funding if the initiative passed. The opposition to 209 and the Clinton Administration have apparently settled on this provision as a way to get around the new law, at least at the university level.

The investigation is not going unquestioned by Congressional leaders, or leaders in the Prop. 209 battle. Senators Mitch McConnell (R-KY) and Orrin Hatch (R-UT) co-authored a letter to Secretary of Education Richard Riley calling for an end to the investigation and asking the Department to provide an explanation of the legal and constitutional basis for its action. It is likely that the new nominee for Deputy Attorney General for Civil Rights, Bill Lann Lee, who incidentally heads the office of the NAACP Legal Defense Fund which signed onto the OCR complaint letter, will face questioning on this issue during his confirmation hearings this fall. Additionally, Prop. 209 proponent Ward Connerly sent a letter to the President criticizing the investigation.

But Prop. 209 supporters are not the only ones questioning the logic of the investigation. UCLA Law School Dean of Admissions, Michael Rappaport, an opponent of Prop. 209, said, "I hope...the federal government is not suggesting an academic institution can't use academic criteria when evaluating candidates for its academic programs." The Sacramento Bee, which also opposed Prop. 209, editorialized against the investigation under the headline, "Racial cynicism: Clinton probe of UC admissions ignores the law." "What next?" questions the Bee, "Will the Clinton administration also decide to investigate Cal and UCLA because their use of such criteria as scoring averages and rebounding prowess, which have worked to exclude whites, Asians and Hispanics from their basketball teams, are also racial discrimination?"

The OCR investigation is simply the next step in the anti-Prop. 209 forces' effort to reverse the voters' and the UC Regents' decisions and to reduce the weight given to test scores and grades in university admissions. Judith Winston wrote in a letter to the Los Angeles Times "...the complaint against UC that is the basis for the department's investigation did not ask the department to look into the removal of affirmative action as a possible violation of civil rights laws, but rather challenged aspects of the current admissions policy; for example, that it relies too heavily on standardized test scores." In a particularly circular passage, Winston goes on, "What I find particularly distressing is the implication in the [Times's] article [about the OCR investigation] that civil rights requirements and affirmative action, as practiced by this administration, are at odds with high academic standards. To the contrary, the department recognizes the appropriate, nondiscriminatory use of long-accepted academic criteria such as grades and test scores. The point of the current investigation is to determine whether California's procedures are valid and appropriate measures for assessing an applicant's academic promise." So, the President and his appointees profess to support the use of "appropriate" academic criteria, but believe that UC merit-based admissions process which relies on grades and test scores is somehow discriminatory.

The debate over racial preferences is entering a new phase. The pro-preferences, quotas and set-aside crowd will focus their efforts on eliminating merit-based criteria such as grades and test scores from the admissions process and instead focus on holistic characteristics such as ethnic dancing skills (part of a proposed list of alternative criteria for UCLA). Those of us fighting to eliminate racial and gender preferences will begin to focus the public's attention to education reform ideas, including school choice, as the answer to the declining number of black and Hispanic students at some public universities.

The Clinton administration has lost every important court case about preferences in recent years. They were wrong on the Adarand and Hopwood cases, and I have no doubt the courts will rule against their side in the Piscataway and Prop. 209 cases. When (not if) the Clinton administration rules against the University, the University and Attorney General Dan Lungren may sue. One glance at the Clinton track record in this area of the law should give them confidence of their ultimate success. Stay tuned - the Prop. 209 battle is not yet over in California.

Jennifer Nelson is the executive director of the American Civil Rights Institute and was the press secretary for the Proposition 209 campaign.


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