AFFIRMATIVE ACTION POLICIES SHOULD BE CREATED WITH CARE, LAW PROFESSOR SAYS

FAYETTEVILLE, Ark. - Recent cases challenging university affirmative action policies mean that many institutions should rethink both the reasons for such programs and how they implement them, a University of Arkansas law professor contends.

Upon reviewing recent cases, like Hopwood v. Texas and Gratz v. Bollinger that challenge the University of Texas and University of Michigan affirmative action policies, and studying the social sciences literature, Mark Killenbeck, Wylie H. Davis Professor of Law, concludes that affirmative action programs are justified and legally defensible only if they are implemented for sound educational reasons.

Killenbeck wrote his recent findings in "Pushing Things Up To Their First Principles: Reflections On The Values of Affirmative Action," published in the most recent issue of the "California Law Review."

"If you are going to take race into account, you should show that diversity benefits students, and is not simply a political expedient," Killenbeck said.

The social science literature now available seems to show that a diverse environment creates an advantageous learning platform for all students, Killenbeck said.

Many institutions, however, have gone about creating diversity in the wrong way, he said. In the race to increase their numbers of minority students, some universities have taken affirmative action mandates and built unconstitutional entitlement programs that favor one race over another.

"Institutions want results. You are deemed a success or failure depending upon your results," he said.

In his review, Killenbeck names six "first principles" that institutions should follow when forming constitutionally sound affirmative action policies: honesty, openness, reasoned and sound policies, comprehensive solutions, steadfast adherence to principles and patience.

Institutions should be honest about the myriad components that comprise admissions, including but not limited to academic merit. Does the applicant play football? Does he or she play in the band? Are they the sons or daughters of alumni? All these factors come into play. Race, ethnicity and socioeconomic background have their place among these aspects, and institutions must explain the complexities of an admissions process that values the entire person, not simply his or her grades, test scores or race.

Policies should be open so that people know what is being done at the institution, Killenbeck said. In the case of Hopwood v. Texas, the two-tiered admissions policy was generally unknown even to many on-campus faculty members, Killenbeck said.

Affirmative action policies should be based on evidence that such actions will help the educational environment. By doing so, colleges and universities can make a sound argument for continuing those policies.

Killenbeck argues that affirmative action cannot start when students walk through the college gates. Many poor minorities need help just getting through high school. Universities should use their expertise to give juveniles an academic boost whenever possible, he said.

Finally, institutions must acknowledge that their policies will take time to be implemented successfully. This means they should not be changed midstream just to make the numbers look good. Universities must have patience when implementing affirmative action practices and realize that they will be effective in the long haul, Killenbeck said.

"An appropriate admissions policy will assess the academic and other merits of each individual applicant within the context provided by the character and needs of the institution itself and the overall pool of applicants," Killenbeck writes in the "Review."

Institutions need to be implementing these policies now before they are forced to change them in court.

"Sooner or later, this issue will come before the Supreme Court," Killenbeck said. "And when it does, the best case for sustaining such programs will be one predicated on educational values and positive evidence about the ways in which a diverse learning environment helps all students."