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Rutgers School of Law in Newark, N.J., has created a new admissions system calculated to immunize its aggressive recruitment of minorities from reverse discrimination suits, and it looks like the strategy will work. The student selection process that went into effect in February makes it easier for the New Jersey school to recruit minority students without using overtly race-based criteria. Admissions director Anita Walton says applicants were given the option of being considered on one of two tracks: primarily on the basis of their test scores, or mainly on the basis of their life experiences, including the accomplishment of overcoming economic and educational disadvantages. Unstated by the school, but implicit in the change, the creation of the “life experience” track gives the school an opportunity to select students with backgrounds that are usually associated with members of minority groups, without picking them, per se, for being black, Hispanic, Native American or Asian-American. As a result, when the class of 2003 arrives in September, the school probably will maintain its current level of minority enrollment, roughly 30 percent of the student body, school officials say. Yet, Rutgers-Newark also will be a less likely candidate for an attack like the one that ended affirmative action at the University of Texas Law School, Hopwood v. Texas, 78 F.3d 932 (5th Cir. 1996). There is one downside. Putting its new system into place this winter delayed the processing of the 2,000 applications for the September class for up to six or seven weeks. Last week, some prospective students were still waiting to hear whether they have been accepted; Walton and Dean Stuart Deutsch say they don’t know how many. The system also appears to have created some uncertainty among applicants about how the track-selection process would affect their chances. In an interview on Thursday, Deutsch sought to minimize the effects of the changes on the prospective class of incoming students. Some delays may have been caused by the move to the school’s new building late last year, he says. Deutsch also says changes in the system were generated by more than fears of a constitutional challenge. “It’s not driven by Hopwood in the sense that we felt we were doing something improperly beforehand,” Deutsch says. But he also says the court cases and other attacks on affirmative action are “part of the context in which we are operating.” Deutsch has reason to be confident in his new system. Curt Levey, assistant director of the Center for Individual Rights — the Washington public interest firm behind Hopwood and other suits — says there are no plans to challenge schools with processes like Rutgers’, even though “we’ve probably gotten more complaints against Rutgers than any other school.” “You couldn’t challenge them facially,” even though the new system is “obviously intended to favor racial minorities,” Levey says. What did Rutgers change? Under the system in effect until this year, test scores and college grades were the chief criteria for admission, unless students elected to be considered for the Minority Student program, which has been in place since 1968. In recent years, the school has insisted that the MSP is for students from disadvantaged backgrounds, regardless of race. Applicants could enter the program if they could demonstrate a history of poverty or demonstrate that for other reasons they were educationally, culturally or socioeconomically disadvantaged. Even so, most MSP students are black or Hispanic, and the minority population at the school, in and out of MSP, is now 38 percent, Deutsch says. In Rutgers’ letter in February to applicants — most of whom had already sent in their forms — prospective students were told to select from various options. They could compete for admission with primary emphasis on test scores. Or they could have their application “based primarily on education and employment experiences, personal and academic accomplishments, community service, socio-economic background, extraordinary family circumstances and the contribution the applicant will make to the overall diversity in the school.” They also could elect to be considered for the MSP. Deutsch and Walton say a central element of the new system is a more labor-intensive process of reviewing applications. In the past, when students were selected as either MSP applicants or score-based candidates, one admissions officer was responsible for processing all applications and only one or two people, overall, read each submission. This year, three administrators and two faculty members read most of the files because the school hunted for special qualities beyond test scores. Walton and Deutsch say that even if students chose the “experiences and accomplishments” track, their test scores would be considered, too. The life experiences of applicants on the “test score” track would also be considered. In Hopwood, the Fifth Circuit ruled that race-based preferences in higher education are permissible only as a narrow remedy for the continuing effects of specific past discrimination — an exception clearly unemployable in defense of affirmative action at a diverse school like Rutgers. While Hopwood is the law only in the Fifth Circuit, it has spawned similar challenges, including a closely watched case against the University of Michigan. In addition, California and Washington have enacted statutes prohibiting affirmative action. And in Wessman v. Gittens, 160 F.3d 790 (1st Cir. 1998), a federal appeals court ruled that a quest for diversity itself could not justify minority representation beyond a low threshold. “This system is a system that meets every criteria that’s been expressed in Hopwood or in any other court cases,” Deutsch says. Asked whether he could have said the same about last year’s system, Deutsch paused noticeably before replying: “Probably, but with a little less certainty.” In recent years, the Law School Admissions Council, the umbrella group for law school admissions professionals, has initiated studies of ways to ensure diversity with Hopwood and its progeny in mind. In a report published in March, “New Models to Assure Diversity, Fairness, and Appropriate Test Use in Law School Admissions,” the council suggested several models of programs that could be used in a post-> Hopwood world. Deutsch and Walton say they were familiar with the models and also consulted with the NAACP Legal Defense Fund, which has served as an amicus for schools hit with reverse bias claims. Looking at what Rutgers did, “I think they’re smart,” says Kent Lollis, minority affairs assistant to the president of the Law School Admissions Council, which is best known for its administration of the Law School Aptitude Test. Lollis says the Rutgers Minority Student program had billed itself as a race-neutral program in recent years, “but now they’re trying to formalize it.” Deutsch says some of the impetus for change was a reverse bias complaint filed with the Office for Civil Rights of the U.S. Department of Education by a white applicant who claimed he came from a disadvantaged background but was rejected for the MSP. Deutsch says the complaint was dismissed on the administrative level, but because the details of the case are not public, it’s not clear how the new program meets the concerns raised by that complaint. In general, though, Deutsch says, “If OCR is going to be investigating us, we should look at ourselves and make sure we’re not doing anything improper.” He says he doesn’t think the new system took an inordinate amount of time or resulted in many delays in acceptances or denials, though Walton says the start of the review process was delayed for up to six or seven weeks. Deutsch says it’s possible that the rejection notices were late because sending such notices was lower on the list of the school’s priorities than sending acceptance notices, though it doesn’t necessarily follow that applicants who haven’t yet heard will be rejected. One applicant who hasn’t heard and therefore did not want to be identified says the process has been trying. This applicant, whose first choice is Rutgers, had to send a $1,500 deposit to a less desirable school because no notice was sent from Rutgers. If Rutgers eventually says yes, this applicant will choose the school but lose the deposit to the other institution. By this applicant’s reckoning, the track-election form sent in February would have been hard to fill out for students whose scores put them at the low end of Rutgers traditional LSAT acceptance range but who didn’t have startling life experiences. The top quarter of Rutgers’ classes tend to score 160 or above on the LSAT and the bottom quarter scores 151 or less, Walton says. “I didn’t know which track to put myself on,” the student says. Walton says that in the long run — and this is why the process is taking so long — everything about the applicants was evaluated no matter which track they elected. Deutsch says, “we haven’t gotten a lot of complaints.” “We want a class that is diverse and we want a class that has achieved both academically and in the real world and a class that reflects society,” he says.

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