What’s Fair?

JMU’s Alger Has Seen Affirmative-Action Issue From The Inside

Posted: June 21, 2013

HARRISONBURG — It wasn’t her test scores or grade point average that prevented Abigail Fisher from getting into the University of Texas at Austin, the complainant in a current U.S. Supreme Court case claims.

Fisher argues that it was because she is white that her application wound up in the rejection pile.

And whether that’s fair — that the school considers race, among other factors, as part of its admissions policy — could be decided as soon as Monday.

If the court rules in favor of Fisher, it could override a 2003 decision involving the University of Michigan’s affirmative action policy.

In the Michigan case, Gratz v. Bollinger, Jennifer Gratz similarly claimed that she was turned away because of that school’s admissions policy.

For James Madison University President Jonathan Alger, who argued the University of Michigan case as its assistant general counsel, the latest ruling is much anticipated.

“Part of the question [in the Fisher case] is, is diversity still a compelling interest in higher education?” said Alger, who successfully argued on behalf of the University of Michigan, allowing the school to continue to use race as one of several factors in undergraduate admissions.

Alger officially took over as president of JMU last July.

“I think there are concerns that some people have that the court will change its mind on that issue, even though it was only 10 years ago that a majority held by Justice [Sandra Day] O’Connor said that, ‘Yes, we do believe diversity has educational value,’” he said. “My own view is that the value of precedent matters here, among other things.”

When Alger became assistant general counsel at Michigan in 2000, he found himself in the “right place at the right time.” Soon after starting, he was asked to step in for another attorney on that case as well as on another, Grutter v. Bollinger, which challenged the law school’s use of race in admissions. Bollinger refers to Lee Bollinger, the former UM president, who was named the defendant in both cases.

“It was not too long after I got there that things really heated up and it became clear that this was going to be my primary focus,” said Alger, now considered a national expert on affirmative action.

While striking down an affirmative-action point system once used at the undergraduate level, the high court ruled in the Michigan cases that the university’s undergraduate programs and law school could take race into consideration during the admissions process.

Alger continues to follow the debate on the issue as it unfolds.

“First of all, these are education issues [and] it’s important to remind ourselves what these cases were really based on was educational mission,” said Alger, who said that diversifying America’s campuses benefits all students.

Further, taking race into consideration evens the playing field for students who may not have had the opportunities available in wealthier school districts or who don’t come from privileged backgrounds, he said.

“If you think about having all of these students who don’t get a good [high school] education and don’t have access to higher education or graduate school, but who might have the capability, then you’re denying your country its most important asset,” he said.

But not everyone agrees with Alger and his reasoning.

A poll completed by CNN and released Thursday showed that those surveyed were generally opposed to affirmative action, with nearly 7 in 10 Americans saying they were against college admissions programs that give preferences to minority applicants. Fewer than 30 percent were in favor of such policies.

The debate has been going on for a long time, with one of the most notable early cases taking place in 1978. In the University of California v. Bakke, the Supreme Court ruled that race could be considered in admissions, but that “there should be compelling governmental interest in using race” and that the programs should be “narrowly tailored to achieve that interest.”

Because the University of California Medical School at Davis allotted a certain number of spaces in the groups it admitted, the court ruled it was unconstitutional because it involved a quota.

In the Michigan cases, the court determined that the school’s policies were “narrowly tailored” and therefore constitutional.

Alger said he’s unsure whether Fisher v. University of Texas would follow in the footsteps of the Bakke or Gratz and Grutter rulings.

“I don’t know how the court is going to come out, but I think they do of course need to be aware that colleges in good faith relied on their guidance in 2003 to design programs that met the court’s parameters and that’s what colleges have been doing,” he said. “We’re still certainly at the place where we don’t have equality of opportunity and we still need to make efforts to get there.”

In addition to the Fisher case, another piece of the puzzle is a 2006 ballot initiative in Michigan called Proposal 2.

Following the 2003 Gratz and Grutter rulings, Michigan voters approved Prop 2, which amends the state’s constitution to ban public institutions from giving preferential treatment to applicants based on race, gender, color, ethnicity or national origin. The proposal applies to public education, public employment and public contracting.

The University of Michigan has complied with that law since it took effect in December 2006, but now the Supreme Court is scheduled to hear arguments about whether that proposal violates the U.S. Constitution. That decision, however, won’t be made until the high court’s next term, which runs October through June.

To Alger, the ongoing debate over affirmative action and the topic of diversity as an educational ideal remain pivotal issues for higher education and society at large.

“We know that SAT scores correspond very highly with family wealth and socioeconomic [circumstances]. Even grade point averages, a lot of them are weighted based on how many AP courses your division offered,” he said. “What might appear on the surface to be neutral affective criteria really are not.

“We’re trying to create a rich learning environment where everybody has a role to play and everybody has something to learn. I would like to see colleges and universities still have the altitude and the ability to use their best educational judgment and fashion admissions policies that make sense for them.”

Contact Emily Sharrer at 574-6286 or esharrer@dnronline.com

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