[Congressional Record (Bound Edition), Volume 149 (2003), Part 1]
[Senate]
[Pages 1378-1380]
[From the U.S. Government Publishing Office, www.gpo.gov]




        PROMOTING DIVERSITY IN INSTITUTIONS OF HIGHER EDUCATION

  Mrs. CLINTON. Mr. President, I ask unanimous consent that the 
following letter to the President, regarding his Administration's 
decision to file a brief opposing the University of Michigan's use of 
affirmative action, be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:


                                                  U.S. Senate,

                                 Washington, DC, January 17, 2003.
     Hon. George W. Bush,
     President of the United States,
     Washington, DC.
       Dear Mr. President: On Wednesday, as your Administration 
     prepared to file its Supreme Court brief opposing the 
     University of Michigan's use of affirmative action to achieve 
     diversity in its student body, you reiterated your commitment 
     to increasing the number of minorities on college campuses. I 
     applaud this commitment, but do not believe that replacing 
     traditional affirmative action with ``race neutral'' percent 
     plans will fully accomplish our shared goal of promoting 
     diversity throughout our institutions of higher education. I 
     am especially concerned that such plans necessarily depend on 
     racial segregation in high schools and, further, that a Court 
     decision banning traditional affirmative action could trigger 
     a domino effect undermining our nation's anti-discrimination 
     laws.
       The Michigan cases are among the most important ever to 
     confront the Court since Brown v. Board of Education. Over 
     the past several decades, the story of American higher 
     education has been a story of gradually

[[Page 1379]]

     expanding opportunity for historically excluded or 
     marginalized groups. Anti-discrimination laws and financial 
     aid policies have opened the doors of higher education for 
     millions of minority students. But as you said on Wednesday, 
     ``We should not be satisfied with the current numbers of 
     minorities on America's college campuses. Much progress has 
     been made; much more is needed.''
       At the very top schools in this country, including 
     Michigan, significant racial diversity is largely 
     attributable to affirmative action. By traditional 
     affirmative action, I do not mean quotas, and neither does 
     the University of Michigan. I mean the use of race as one of 
     many factors--along with geography, socioeconomic status, and 
     other life-shaping attributes or experiences--to achieve an 
     educationally diverse student body. Michigan's affirmative 
     action policies work this way, and for 25 years such policies 
     have been constitutional, just as they are today.
       If our best colleges, law schools, and medical schools were 
     to end traditional affirmative action today, without adopting 
     any alternative, minority enrollments would drop by two-
     thirds or more. So a critical question, as you suggested, is 
     whether there are alternatives to traditional affirmative 
     action that might do as good a job--or better--at keeping the 
     doors of selective institutions open to qualified minority 
     students.
       You applauded the innovation of states that have adopted 
     ``percent plans'' guaranteeing college admission to top high 
     school graduates. I agree with you that after five years, the 
     Texas ``10 percent plan,'' where all students who graduate in 
     the top 10 percent of their high school class are guaranteed 
     admission to a state university of their choosing, has shown 
     some impressive results. After an initial drop in 1997, 
     minority enrollment at UT-Austin, one of the state's flagship 
     schools, has rebounded almost to the levels achieved under 
     traditional affirmative action.
       In addition, UT-Austin is now drawing students from a 
     larger number of high schools and from a wider geographic 
     area, a change that benefits white as well as minority 
     students. The entering class of 2000 included students from 
     135 schools that had not been represented there before 1996. 
     Those schools included predominantly minority, inner-city 
     schools as well as predominantly white, rural schools. And, 
     despite worries that 10-percenters from poor high schools 
     might not be prepared for the academic rigor of UT-Austin, 
     the most recent evidence is that 10-percenters of all races 
     are performing as well as other students who scored 200 or 
     300 points better on the SAT. Retention is generally higher 
     among 10-percenters than among other students.
       Notably, these results have occurred despite the fact that 
     average SAT scores--the often cited measure of merit among 
     opponents of traditional affirmative action--have decreased, 
     not increased, among 10-percenters and among black and 
     Hispanic students at UT-Austin. Like traditional affirmative 
     action, the 10 percent plan admits qualified students with 
     lower test scores over students with higher scores, 
     recognizing that test scores are not the ``be all and end 
     all'' of an applicant's merit, potential, or character.
       The early evidence is very encouraging, and I am cautiously 
     optimistic that for some schools, racial diversity can be 
     achieved through alternatives like this one. Even so, I think 
     it would be a mistake to shut the door on traditional 
     affirmative action and treat percent plans as a panacea for 
     increasing minority enrollments. While they hold promise, 
     they also come with pitfalls.
       As I am sure you are aware, Texas's other flagship 
     institution, Texas A&M-College Station, continues to struggle 
     with raising black and Hispanic enrollments, even under the 
     10 percent plan. California's 4 percent plan and Florida's 20 
     percent plan, though similar in concept, differ from the 
     Texas plan in one crucial respect: They do not guarantee top 
     graduates admission to a state university of their choosing. 
     As a result, minority enrollment in California has increased 
     at less selective schools like UC-Irvine and UC-Riverside, 
     but not at the most selective schools. Between 1997 and 2001, 
     the number of black freshmen dropped from 252 to 138 at UC-
     Berkeley and from 204 to 125 at UCLA. Florida's 20 percent 
     plan, after its first year, has kept minority enrollment in 
     the state system steady. But the flagship school, the 
     University of Florida, saw a 40 percent drop in black 
     enrollment and a 7.5 percent drop in Hispanic enrollment.
       My primary concern, however, is that the very success of 
     percent plans in enrolling substantial numbers of minority 
     students is entirely dependent on racial segregation at the 
     high school level.
       For the past 30 years, the Supreme Court has turned its 
     back on remedying inequality in elementary and secondary 
     schools based on race or income, even going so far as to say 
     that ``at least where wealth is involved, the Equal 
     Protection Clause does not require absolute equality or 
     precisely equal advantages.'' As a result, 50 years after 
     Brown, racial segregation is increasing in our public 
     schools. Seventy percent of black students now attend 
     predominantly minority schools, up from 63 percent in 1980. 
     Forty-six percent of Hispanic students in Texas, 42 percent 
     in California, and 59 percent in New York go to schools that 
     are 90 to 100 percent minority. And racially segregated 
     schools, except predominantly white schools, are almost 
     always schools with high poverty. The average black or 
     Hispanic student goes to school with more than twice as many 
     poor classmates as the average white student.
       Any policy of college access that is in tension with 
     efforts to integrate public schools cannot be the best 
     option. Instead of motivating improvement in poor and 
     segregated high schools, percent plans give minority parents 
     an incentive to keep their children in those schools, instead 
     of transferring them to integrated and more academically 
     competitive schools. And no parent should have to make a 
     trade-off between college access and high school quality.
       In fact, the Texas 10 percent plan exposes the depth of 
     inequality that can exist in a single state. Texas has 1,500 
     high schools. In the year 2000, nearly half the 7,600 
     freshman at UT-Austin came from 74 high schools, around 50 
     students per school. The other half came from 718 high 
     schools, roughly 5 students per school. Approximately 700 
     high schools sent no student to UT-Austin in 2000.
       Just as traditional affirmative action should never 
     distract us from the task of strengthening our elementary and 
     secondary schools, neither should percent plans. If we are 
     serious about expanding minority access to higher education, 
     then we should not only take a closer look at traditional 
     affirmative action and its alternatives; we should also fully 
     fund Title I and increase the maximum Pell Grant. The 10 
     percent plan will never reach students in the poorest schools 
     unless we commit the resources to turn those schools around 
     and make college more affordable. These are commitments we 
     should already be making to help the 90 percent of students 
     not covered by the 10 percent plan.
       Moreover, although percent plans have been somewhat 
     successful in sustaining minority enrollments at the 
     undergraduate level, none of them has proven effective at 
     graduate or professional schools. In 1995, for example, 
     before traditional affirmative action was eliminated at the 
     University of Texas Law School, 7.4 percent of first-year 
     students were black and 12.5 percent were Mexican-American. 
     But today, only 4 percent are black and 8 percent are 
     Mexican-American. Similarly, at UC-Berkeley's law school, 
     Boalt Hall, there were 14 blacks and 17 Hispanics in the 2001 
     entering class, down from 20 blacks and 28 Hispanics in 1996. 
     At UCLA Law School, the 10 blacks and 26 Hispanics in the 
     2001 entering class were substantially fewer than the 19 
     blacks and 45 Hispanics in 1996.
       Between 1997 and 2001, the number of blacks fell from 10 to 
     6 at UCLA Medical School and from 12 to 7 at UC-San Francisco 
     Medical School. In the MBA program at UC-Berkeley, there were 
     3 blacks and 5 Hispanics in the 2001 entering class, down 
     from 11 blacks and 15 Hispanics in 1996. And at UCLA, there 
     were 9 blacks and 13 Hispanics in the 2001 first-year MBA 
     class, compared to 13 blacks and 18 Hispanics in 1996.
       The fact is, at the graduate level, there are few options 
     for sustaining minority enrollments besides traditional 
     affirmative action. Percent plans will not achieve graduate 
     student diversity unless the undergraduate institutions they 
     draw from are segregated. And preferences for socioeconomic 
     disadvantage will not help very much. Although minorities are 
     more likely than whites to come from low-income backgrounds, 
     the vast majority of low-income people are still white.
       Finally, there is little if any evidence that percent plans 
     provide an effective substitute for traditional affirmative 
     action at our leading private institutions. Under Title VI of 
     the Civil Rights Act, virtually every private institution in 
     the country is subject to the same legal standards regarding 
     traditional affirmative action as public institutions. Any 
     Supreme Court decision finding traditional affirmative action 
     unconstitutional at public universities would likely end 
     affirmative action at private universities as well--with very 
     troubling results.
       It is one thing for Florida to guarantee top 20 percenters 
     admission to one of the state's 11 public universities, or 
     for the University of California to guarantee top 4 
     percenters admission to one of 10 campuses. But what about 
     schools like Harvard or Stanford or Columbia? Given how small 
     and selective these schools are, even a plan guaranteeing 
     admission to the top half of one percent of high school 
     graduates would not work, nor would it necessarily make good 
     sense.
       While some may think it odd to worry about racial diversity 
     at private schools, since our public university systems serve 
     far more students, these schools have long been regarded by 
     the American public--indeed, the world--as the very best of 
     what higher education can offer. And those schools generate a 
     disproportionate number of our nation's leaders in 
     government, business, and academia. As Justice Lewis Powell 
     said 25 years ago in the Bakke case, which featured Harvard's 
     affirmative action policy as the gold standard for selective 
     admissions: ``It is not too much to say that the Nation's 
     future depends upon leaders trained through wide exposure to 
     the ideas and mores of students as diverse as this Nation of 
     many peoples.''

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       The bottom line, then, is that although percent plans and 
     other approaches may hold promise for some institutions, they 
     are not effective substitutes for traditional affirmative 
     action at all institutions. There is no ``one-size-fits-all'' 
     alternative to traditional affirmative action that works at 
     every school, in every system, in every state. I agree with 
     you, Mr. President, that we need to take a closer look at 
     ways to achieve diversity besides traditional affirmative 
     action. But I do not agree that we should foreclose 
     traditional affirmative action as an option for pursuing 
     diversity where the alternatives do not work.
       Finally, let me mention two additional concerns. First, no 
     one doubts that the percent plans in Texas, Florida, and 
     California were designed to achieve exactly what traditional 
     affirmative action was designed to achieve, namely, increased 
     opportunity for qualified minority students. And the 
     barometer of success has been whether these plans are keeping 
     minority enrollments at levels achieved under traditional 
     affirmative action. Where percent plans have been judged 
     successful-at UT-Austin, for example-they have lowered, not 
     raised, average SAT scores among former beneficiaries of 
     traditional affirmative action. The fact is that percent 
     plans, in their motivation, design, and effect, look a lot 
     like traditional affirmative action. If the Court agrees with 
     your Administration that traditional affirmative action is 
     unconstitutional, aren't percent plans simply the next shoe 
     to drop? If we accept the constitutionality, and sometimes 
     the wisdom, of percent plans, then logic and law dictate that 
     we also accept the constitutionality and wisdom of 
     affirmative action
       This is especially true for public universities like 
     Michigan that strive to serve a student body representative 
     of the taxpayers who support the system. As you said 
     yesterday, ``America is a diverse country, racially, 
     economically, and ethnically. And our institutions of higher 
     education should reflect our diversity.'' I see nothing wrong 
     with a public university doing directly what Texas, 
     California, and Florida have been forced to do indirectly, 
     indeed what we have applauded them for doing.
       Second, I am very concerned about the unintended 
     consequences of making a constitutional distinction between 
     percent plans and traditional affirmative action. If 
     admissions policies must be scrubbed clean of race, then 
     shouldn't they also be scrubbed clean of gender? Women have 
     made great strides in higher education, but they continue to 
     lag behind men in areas like engineering and computer 
     science. In fact, women are awarded 25 percent of doctoral 
     degrees in math and the physical sciences, and only 15 
     percent of doctorates in engineering. Percent plans cannot 
     solve these problems of gender inequality, just as they 
     cannot solve every problem of racial inequality. But percent 
     plans teach us what supporters of traditional affirmative 
     action have long known: that there are considerations 
     important to the distribution of educational opportunity in 
     America other than a standardized test score.
       Traditional affirmative action, whether based on race or 
     gender, stands or falls on similar logic. And if traditional 
     affirmative action falls, I worry it is only a small step to 
     rolling back our most basic antidiscrimination laws, like 
     Title VII and Title IX. Given unconscious stereotypes and 
     structural inequalities that persist in our society, there is 
     a very fine line between taking deliberate steps to ensure 
     access to higher education for minorities and women, and 
     protecting them from unlawful discrimination.
       Mr. President, I urge you to carefully consider the 
     implications of eliminating traditional affirmative action in 
     the absence of alternatives that effectively promote, and do 
     not work against, diversity and integration in all of our 
     public high schools, colleges, and graduate programs. And I 
     urge you to consider the consequences your Administration's 
     position may have for the vigorous enforcement of our 
     nation's anti-discrimination laws.
           Sincerely yours,
     Hillary Rodham Clinton.

                          ____________________