Affirmative action in higher education has not been hotly debated in this year’s election between Sen. John Kerry and President Bush, but officials say the winner will have a significant role in the controversial issue.

“It’s clear with Bush’s stand on affirmative action,” said Peter Kirsanow, a U.S. commissioner on civil rights and a law partner at Benesch, Friedlander, Coplan, and Aronoff in Cleveland. “He believes in the concept of vigorous outreach (to minorities) but is opposed to quotas. Kerry made it clear that he agrees with the status quo which would include the use of racial preferences at places like Michigan.”

Regardless of who wins the election, Kirsanow said affirmative action would not be immediately impacted, but the next president will make Supreme Court appointments probably along party lines.

“If the composition of the (Supreme) Court stays the same or tilts to conservatives if Bush gets re-elected, it is much more likely that a plaintiff will bring an action to the Supreme Court that will challenge affirmative action,” Kirsanow said. “If Kerry is elected, he will appoint justices to the Supreme Court that will be more favorable to the use of race as a factor in admissions. That will probably deter plaintiffs from challenging affirmative action in admissions.”

Kirsanow said the next president will replace at least two or as many as four new justices. He said a 90 percent chance exists that a minimum of two would be replaced.

“The biggest impact in this election is the person that is the next president is going to make appointments to the Supreme Court,” said Carrie Davis, a staff attorney for the Ohio American Civil Liberties Union. “They will appoint at least one and possibly as many as three.”

Davis said the justices most likely to retire in the near future are Chief Justice William Rehnquist, Associate Justice Sandra Day O’Connor and Associate Justice John Paul Stevens.

In a landmark affirmative action case, the U.S. Supreme Court ruled in June 2003 in two separate cases dealing with the use of race in admissions decisions at the University of Michigan. The court reached a 5-4 decision in the case of Grutter v. Bollinger et al., which upheld the University of Michigan’s law school admissions policy, ruling that race can be one of a number of determining factors used by colleges to obtain a diverse student body.

However, in the Gratz et al v. Bollinger case, a 6-3 decision also ruled that although race can be used as a factor, the University of Michigan’s automatic distribution of 20 points out of a possible 150 to underrepresented minority groups used in undergraduate admissions decisions in the College of Literature, Science, and the Arts, was unconstitutional. Large universities, including Ohio State, used a point system to make admission decisions.

Deborah Merritt, director of the John Glenn Institute at OSU and a professor at the Moritz College of Law, said there is an absence of affirmative action debate in the current campaign.

“I have not seen much discussion on affirmative action,” Merritt said. “There has been so much discussion on Iraq, the economy, jobs, healthcare. I’m not sure if much would change because there is very little affirmative action left in the world. There is none left in hiring and contracting, and it only exists in higher education.”

Merritt said she does not see affirmative action as something that will become a federal initiative. She said the outcome of the election might be a signal to the states to take a particular stance.

“It may have some impact based on the fact that Bush is more opposed to affirmative action, while Kerry is more supportive of the current role of affirmative action,” Merritt said.

Kerry has been a supporter of the use of affirmative action policies in university admissions.

“John Kerry is now and has always been strongly in favor of affirmative action,” said Missy Owens, a spokeswoman for the Kerry campaign in Ohio. “What he has said in the past was that we had to carry out affirmative action in a way that would make sure it survived. America’s diversity is a strength, not a weakness, and its not just colleges and universities that have come to realize that, businesses know it too.”

Dan Trevas, a spokesman for the Ohio Democratic Party, also said the party supports affirmative action.

“The Democratic Party has been supportive of the issue of affirmative action, and believes in the cause and in the value of it,” Trevas said. “I think it’s important to minority voters to know who stands up for treating minority students fairly. They want someone on their side and John Kerry is clearly on their side.

“The future (of affirmative action) is probably that there is a champion for it’s cause, a knowledge that those concerns will be addressed by the administration. I would think that complaints of violation of affirmative action would get a thorough evaluation by the Kerry administration.”

Trevas said affirmative action could be neglected by the Bush administration if the president is re-elected.

“The record of Bush is that African-American families are falling behind, Latino families are falling behind and the continual neglect does not bode well for this country,” Trevas said.

Bush campaign spokeswoman Sharon Castillo said the president believes in the concept of affirmative access as a way to achieve diversity in higher education as opposed to racial preferences or quotas.

“The president also believes that universities have a responsibility to create a system where education is more accessible to minorities and to those who are economically disadvantaged,” Castillo said. “He encourages race-neutral initiatives to increase racial diversity in higher education.

“It is certainly one of the issues of importance (in this election), closing the achievement gap between minority students and their peers,” Castillo said.

Kenneth Marcus, head of the Office for Civil Rights at the U.S. Department of Education, and the president have encouraged universities to use race-neutral alternatives in order to create diversity.

“Educational institutions are using a wide variety of approaches such as class-rank plans, socioeconomic preferences and recruitment and outreach plans to create a diverse student body,” said . “The most aggressive plans aim at developing a diverse applicant pool containing excellent candidates of all backgrounds who are equipped, by strong elementary and secondary preparation, not only to apply successfully to postsecondary institutions, but also to succeed.”

Kirsanow said race-neutral alternatives are effective in creating diversity in higher education.

“They have proven to be as effective, if not more so than the use of racial preferences,” Kirsanow said. “For example, the president of (the University of) Texas said that use of their race-neutral alternative was just as effective, if not more so than the use of racial preferences.”

Freeman said the race-neutral alternatives proposed by the U.S. Department of Education will not promote diversity on campuses.

“Race-neutral won’t get you there; nor will the Texas plan,” Freeman said, citing the University of Texas’ 10 percent plan, formulated while Bush was governor of Texas and which guarantees the top 10 percent of seniors in their class admission to state universities. “That will work if you have minority high schools. In Ohio there are very few, and the top percent doesn’t guarantee that you will have diversity. We really believe that you have to make race a factor on an individual basis to bring in a diverse class.”

Statistics show applications from black students at OSU are down 28 percent compared to one year ago with a 27-28 percent drop in general enrollment.

Elizabeth Conlisk, spokeswoman for OSU, said the reason for the reduction in applications from black students has to do with the University of Michigan Supreme Court decision.

“There is confusion as to what the decisio
n did and did not say,” Conlisk said. “What the court did say was that race was still a factor that could be considered in admissions. What they also said was they could not be so direct as to award points for minority status, and so I think there was a lot of confusion in several communities. News stories reported things very differently, and so there was confusion as to what the decision actually said.”

After the University of Michigan case was brought to courts in 2000, Merritt was chosen to lead a committee on affirmative action that predicted changes resulting from the decision. As a result, OSU changed its admissions process, adopting a holistic approach similar to that of smaller universities.

“One thing my committee looked at was the very fact that the litigation was going to have a chilling effect on minorities,” Merritt said. “Even minorities that would have been admitted weren’t applying. The litigation was discouraging them. No matter what happens, if affirmative action stays exactly the same, the minority community feels uncomfortable, feels unwelcome.”

“I think OSU has been working quite hard to combat that. They have been working on strategies to reach out to minority communities. We would have been further down if we hadn’t realized this danger and worked on it.”

Conlisk said OSU still enrolls the largest number of black students in the state and is in the top three for black enrollment in the Big Ten.

“This year we are able to go back to high schools with recruitment efforts,” said Dr. Mabel Freeman, vice president for undergraduate admissions. “We are serious about diversity and we will continue to make race a factor in admissions. Hopefully this year we will be back on track to where we were two years ago.”

For more information about affirmative action, visit www.affirmativeaction.org/.