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A year after preferential treatment ban, little change on state’s campuses

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WASHINGTON – It’s been more than a year since Arizona voters banned preferential treatment in state services based on race, ethnicity and gender – but little has changed on the state’s university campuses in that time.

Undergraduate enrollment officials say they never considered race in the first place – others say the schools were never selective enough for race to make a difference – and that minority enrollment has actually increased slightly.

The state’s professional schools have seen a slight dip in minority enrollment, but say it’s too early to tell if it’s because of the law. In the meantime, they said they have found other ways to maintain a diverse class. And campus programs targeting specific groups still operate under their original intent to “serve an underrepresented population” but officials say they meet the new law.

“We, some time ago, took a look at all programs, services, selection process and the like to ensure there aren’t any concerns regarding participations or selections and involvement on the basis of race,” said James Rund, senior vice president of educational outreach and student services at Arizona State University. There are not, he said.

The university’s long-standing priority of “inclusivity” and its custom to not “limit enrollment or participation” made it fairly simple for ASU to comply, said Rund, who added he is confident the school is “in a safe harbor” under the new law.

“The goal of the legislation is to create equity and parity and we certainly don’t quarrel with that if that is the goal,” Rund said.

Proposition 107 passed with 60 percent of the 1.6 million votes cast in November 2010. It added a section to the Arizona Constitution to prohibit programs that grant “preferential treatment to or discriminate against any individual or group on the basis of race, sex, color, ethnicity or national origin in the operation of public employment, public education or public contracting.”

The measure’s sponsor, Rep. Steve Montenegro, R-Avondale, did not respond to repeated calls seeking comment on the impact of the measure.

For Arizona’s universities, complying with the law was easy: Officials said race, ethnicity and gender were never considered in undergraduate student admissions, even though schools are committed to having a diverse student body that reflects the state’s overall demographics.

“We want to be accessible,” Rund said. “We clearly want our student population to reflect the population of the state. We regard that as a high priority for the institution in every respect.”

But the man behind a similar 1996 California law challenged the notion that campuses should reflect the demographics of the overall state population or that universities should make that a priority. Ward Connerly, founder and president of the American Civil Rights Institute, said university demographics should not be representative of the state “anymore than you have equal representation on the basketball team or the football team.”

“People pursue different things based on individual treatment,” Connerly said. “Kids that are, quote, minorities are no different than any other set of kids. They want different things and their goals in life – they will vary.”

California universities saw a “dramatic drop in the number of underrepresented minorities” following the ban there because “there was an enormous academic performance gap between blacks and Native Americans and Hispanics,” Connerly said.

In Arizona, by contrast, overall undergraduate enrollment of minority students has slightly increased since the ban was implemented.

Connerly suggested that is due to the fact that Arizona schools were less selective to begin with. When a school is “not worried about having to choose between an A-minus student and a C-minus student,” it does not have to take race into account in admissions and would be less affected by a ban on preferential treatment.

“I don’t think Arizona’s universities have to be as selective as Berkeley and UCLA because the demand for admission is not as great,” Connerly said. But that does not lessen the need for a ban on preferential treatment, he said.

Before the law was passed, Arizona’s public law schools and its medical school did use race as a factor to create a diverse class of students.

“Race was considered, and validly so by the law,” said Shelli Soto, assistant vice provost and associate dean of admissions at the ASU Sandra Day O’Connor School of Law.

Her school, along with the University of Arizona’s James E. Rogers College of Law and its College of Medicine, were committed to reviews of prospective students that included academic performance, work experience, personal statements, family background, socioeconomic status, and, previously, ethnicity.

The admissions process has remained largely the same for those programs, but race and ethnicity information is no longer shared with the admissions review committee, officials said.

In the one class that has been admitted since the ban took effect, both law schools saw about a 3 percent drop in minority student enrollment while the medical school stayed the same. But it might be too early to tell if there will be a long-term effect on minority student enrollment, said James Kerwin, interim associate dean at the medical school.

“I don’t think there’s enough evidence to see if there’s been a change, but time may tell,” Kerwin said. “I hope we’ll continue to get a diverse student body and I think we will. We’re still committed to diversity, at the same time as we’re committed to following the mandate of Prop 107.”

Kerwin said the medical school had to change enrollment procedures “to some extent” and consider other factors that can still contribute to diversity – “socioeconomic status, coming from a rural environment, being a first-generation college student, being multilingual, overcoming barriers in the process of their education up until medical school, disabilities.”

“We don’t choose those because they would be more common in a certain race or ethnicity,” Kerwin said. “We chose them because it promotes diversity in the class and that we’re more likely to have students from different backgrounds.”

Paul Bender, a constitutional law professor and former dean of the ASU law school, said he does not think considering race or ethnicity to create a diverse class would be a violation of the ban on preferential treatment.

“They (Arizona voters) voted for something much narrower than that,” Bender said. “Don’t treat people badly, don’t discriminate. I think it ought to be read that way. There is no law in Arizona about what this means.”

It was not “just a chance thing” that the words “affirmative action” were not included in the language of the law, Bender said. Banning the use of enrollment policies that help create a diverse class would have failed at the ballot box, he said.

Arizona is not the only state that has followed California’s lead – Michigan, Nebraska, Oklahoma and Washington have similar laws banning preferential treatment and the Supreme Court said this spring that it will hear a University of Texas case where race was a considered factor in student admissions. But Arizona is the only one of those states making headlines for another racially tinged policy, the SB 1070 immigration-enforcement law considered by the Supreme Court last week.

ASU Vice Provost Delia Saenz and other university officials said even though the university’s day-to-day operations were not greatly affected by the ban on preferential treatment, it still brings negative publicity to the state.

“There was concern probably throughout the state in terms of perception of diversity and how they’re treated at different levels of government and education,” she said. “They raise eyebrows as to what the politics of Arizona are about.”

ASU and other institutions have to argue that “what happens at the state legislature doesn’t necessarily reflect the sentiments of everybody in the state,” Saenz said.

“Diversity is actually a driver of innovation and economic development,” she said. “(The ban) constrains the full use of human capital from all diverse backgrounds and tends to give the state more of a black eye.”