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Here’s a clip from Mark Levin’s argument posted at the Texaminer.

“Thus,

Gates’ new policy is entirely consistent with the Supreme Court’s rulings. In the University of

Michigan Law School case, the Law School defined “critical mass” in lower court proceedings as at

least ten percent combined black and Hispanic students. Texas A&M currently exceeds this threshold,

with 11 percent of its students being either black or Hispanic. While many wish this number were

higher, it is unclear whether A&M can resort to racial preferences under the Michigan decisions because

it has already achieved a “critical mass” using colorblind policies.” [Mark Levin texaminer.com

1/7/2004]

But Levin is wrong in fact and in principle. (see more below) Levin seems

to have overlooked the following sentence from Justice Sandra Day O’Connor’s majority opinion in

Grutter vs. Bollinger [p. 3 (c)]:

“Enrolling a “critical mass” of minority students

simply to assure some specified percentage of a particular group merely because of its race or ethnic

origin would be patently unconstitutional.”

Justice O’Connor goes on to

aruge:

“But the Law School defines its critical mass concept by reference to the

substantial, important, and laudable educational benefits that diversity
is designed to produce,

including cross-racial understanding and the breaking down of racial stereotypes. The Law School’s

claim is further bolstered by numerous expert studies and reports showing that such diversity promotes

learning outcomes and better prepares students for an increasingly diverse workforce, for society, and

for the legal profession. Major American businesses have made clear that the skills needed in today’s

increasingly global marketplace can only be developed through exposure to widely diverse people,

cultures, ideas, and viewpoints. High-ranking retired officers and civilian military leaders assert

that a highly qualified, racially diverse officer corps is essential to national security. Moreover,

because universities, and in particular, law schools, represent the training ground for a large number

of the Nation’s leaders, Sweatt v. Painter, 339 U. S. 629, 634, the path to leadership must be visibly

open to talented and qualified individuals of every race and ethnicity. Thus, the Law School has a

compelling interest in attaining a diverse student body. 15–21.

Note: Fortune 500

Companies filed briefs in defense of affirmative action before the Supreme Court.

So we

are pleased that Mr. Levin has pointed us in the direction of “critical mass” because, if the term is

to be used according to contemporary constitutional standards, it requires an intelligent discussion of

the educational value of diversity at the College Station campus. This discussion is so far not in

evidence.

But furthermore, Levin ignores also the historical situation of Texas higher

education, which is now pursuing desegregation under federal supervision.

Levin is wrong

about “critical mass” and he fails to consider “de-segregation”. But he’s popular with the

conservative crowd, which I am tempted to call reactionary and

racist.

January 10, 2004
Gates: This is just step in review
By JOHN

LeBAS
Bryan-College Station Eagle Staff Writer

Under fire from minority lawmakers

and civil rights groups, Texas A&M University on Friday abruptly ended a controversial legacy program

that for 14 years gave an edge to some applicants whose relatives had attended the

school.
[Graphic Caption: Eagle photo/Butch Ireland
Frank B. Ashley, Texas A&M University

acting assistant provost for enrollment, talks about the legacy program which university president

Robert Gates discontinued Friday Gates said A&M will no longer award points for legacy in the

admissions review process.]

President Robert Gates’ announcement Friday immediately

ended the only formalized legacy program among the state’s public universities. But he said his

decision was already in motion before critics stepped up pressure this week for A&M to end the

practice.

Several of those critics applauded the elimination of legacy, which they said

disadvantaged minorities applying to the once all-white university. But they continued pressing Gates

to allow consideration of race in admissions decisions to correct A&M’s poor record of minority

enrollment.

Gates said further use of legacy — which last fall helped 353 students who

didn’t qualify for automatic admission get into A&M — was inconsistent with the university’s new policy

to accept students only on merit.

While eliminating legacy removed that inconsistency

and will make the admissions process appear more equitable, the move probably won’t drastically affect

the ethnic makeup of incoming classes, he said.

“I’m an outsider, and I don’t believe

legacy has kept A&M from attracting a diverse class,” Gates told The Eagle on Friday. “The problem is

we’ve not been aggressive enough in recruiting minorities and convincing them to come.”

Several critics balked at the president’s contention that legacy admissions haven’t

pushed out more qualified minorities from the 45,000-student campus.

“We know that A&M

is a school that is built on traditions and talks about the A&M family and traditions as one of its

attributes. So, yes, it’s clear they wanted to keep [new students] in the bloodline,” said state Rep.

Garnet Coleman, D-Houston, who had called for legacy’s elimination. “The other outreach programs were

akin to looking for stepchildren.”

Added state Sen. Rodney Ellis, D-Houston:

“Unfortunately, abolishing the legacy program at Texas A&M doesn’t change the fact that the school is

82 percent Anglo, while the state is less than 50 percent white. This is just the first step in many

that are needed to correct the existing minority gap.”

Although A&M is known for

admitting multiple generations of Aggies from families, giving applicants points for legacy is a

relatively new practice.

Until the late 1980s, A&M essentially was an open-enrollment

campus and had enough room to admit all applicants who met academic guidelines, university officials

said.

When the incoming class ballooned to about 7,400 in 1987, many hopefuls were

turned away. That led to enrollment management and the beginning of a review process for applicants who

didn’t qualify for automatic entry.

A variety of criteria were added to evaluate the

review pool — among them such categories as extracurricular involvement, leadership and, starting in

1989, legacy. In recent years, review-pool applicants could earn up to four of a possible 100 points if

they had siblings, parents or other relatives who had attended A&M.

University officials

say most students who earn legacy points don’t need them to win admission because they have enough from

other categories.

In fact, Gates said Friday, 536 applicants last fall who did earn

legacy points ultimately didn’t make the cut. The vast majority of them were white, as were the 353 who

wouldn’t have gotten in without a legacy score.

None of the 10,000 applicants admitted

last fall got in solely because of legacy, Gates said. He and other university officials said students

always have had to meet minimum academic standards to be considered.

Still, the legacy

practice has given white students an unfair advantage, many minority critics contend, primarily because

blacks were not allowed into A&M until 1963.

“The legacy program has exacerbated a

discriminatory situation,” Texas NAACP President Gary Bledsoe said. “The legacy program does not

benefit [blacks] in the same way it’s benefited many others.”

Approaches

debated

Lawmakers and activists, white and nonwhite, have stepped up pressure in recent

years on Texas’ public universities to enroll more minorities. The change is needed, they say, to

ensure a high level of education for the state’s increasingly diverse population and to correct past

racial discrimination.

Last year, the University of Texas and numerous other public

schools said they would reinstitute affirmative action after the U.S. Supreme Court overturned the 1996

Hopwood ruling that banned it. A&M, however, would not reintroduce race as one of many admissions

criteria, Gates said in December.

Rather, the president said, the university will revamp

its admissions to a totally “merit-based” system and more aggressively recruit minorities. Among the

changes will be tougher standards for automatic acceptance and a requirement that applicants submit

essays on their backgrounds.

The new approach should help A&M find more qualified

students who can bring diversity to the campus, Gates said.

But the changes ramped up

pressure from affirmative action advocates that reached a crescendo this week with the legacy

debate.

“I would hope they would see we’re serious abut a merit-based process that takes

into account the whole person,” Gates said Friday of those critics.

Still, he said he is

concerned about more backlash because concrete results aren’t expected before the Fall 2005 incoming

class. A&M already is well into the admissions process for next fall, so the most recent round of

reforms — except for the legacy change — won’t affect this year’s applicants.

“There are

a number of things we’re doing to reverse the seven-year decline in the number of minorities,” he said,

referring to greater financial aid for low-income students and giving first-generation college

applicants more weight in the admissions process. “[But] everyone wants us to change it overnight.”

NAACP and Texas LULAC, both of which had threatened legal action to stop the legacy

program, still may consider lawsuits to try and force race back into the admissions process, officials

said.

Gates would not say whether threat of litigation will influence any future

decision on race in admissions, but he said A&M will reintroduce affirmative action should the state

Legislature insist. Several lawmakers, including Coleman and state Sen. Gonzalo Barrientos, D-Austin,

said they saw no need to legislate the matter but hoped A&M would do that on its

own.

Barrientos, who also had slammed the legacy program in recent days, was more

receptive than many of his colleagues of the legacy elimination as a step toward a more diverse

campus.

“I applaud Dr. Gates’ decision to remove the legacy program at this time,” said

Barrientos, whose daughter is an Aggie. “Now, as the father of an A&M graduate, we might be a bit

saddened that the program is scrapped; however, I think it’s the right move.”

But he

agreed with Gates that dropping lega
cy likely will have little affect on the ethnicity of the student

body.

State Rep. Fred Brown, meanwhile, had come out before in favor of legacy but on

Friday changed his tune. The College Station Republ
ican said he now thinks it was unfair to continue

the legacy practice but not consider race in admissions.

Texas A&M’s other local

representative in Austin, state Sen. Steve Ogden, could not be reached Friday.

Aggie

reaction mixed

It was difficult to immediately gauge the reaction of current students,

as Gates’ announcement came on a sleepy Friday before the start of spring classes. Several former

students contacted after the announcement reacted with surprise but were supportive, saying legacy

shouldn’t be used to score applicants if race isn’t.

Chatter on Aggie-related Internet

message boards — which often gives a rough measure of such opinions — showed a mix of support and

disappointment.

Gates said he was prepared for a flood of e-mails on the subject and

that he hopes most Aggies see this as the “next logical step” in a new approach to picking the A&M

student body.

“My guess is that a lot of former students don’t really appreciate how

little impact legacy has had on the process in the real world,” he said. “If the reality is that legacy

helped 300 get in, the perception of some Aggies is probably that it’s 3,000.”

He added

that A&M officials will continue to encourage students from Aggie families to apply for

admission.

Gates said he discussed the legacy decision with the A&M System Board of

Regents and members were supportive. Several regents — including Chairman Lowry Mays and Vice Chairman

Erle Nye, both A&M graduates — could not be reached for comment Friday afternoon.

The

president said he took responsibility for “negative publicity” suffered by A&M since he unveiled the

admissions changes in December. He said removal of legacy should have been done then.

“Today’s announcement brings greater consistency and equity to our admissions decision-making process,”

a statement he released Friday read. “We will continue our review.”

© 2000 – 2004 The

Bryan – College Station Eagle

Posted

on Sat, Jan. 10, 2004
Fort Worth Star Telegram

Texas A&M will drop legacy

program
The Associated Press

COLLEGE STATION – Texas A&M University’s president

said Friday that the school will no longer give preference to applicants whose parents or grandparents

were graduates.
A group of state lawmakers criticized the legacy program Wednesday, and

representatives of state civil rights groups indicated that they would sue the school if the policy

didn’t change.

A&M President Robert Gates told The Associated Press that the threat of

litigation played no role in his decision to eliminate the policy immediately, although criticism was a

factor in the timing.

“What I’ve seen in the media this week certainly reinforced the

belief that I had to act quickly,” Gates said. “But I’d say the train was already out of the

station.”

Gates said that he initially believed the university had more time to deal

with the legacy program, which was recognized in November as a problem, and that he takes full

responsibility for any negative publicity for A&M.

Gates said that the policy played

less of a role in admissions than many believed and that university officials would continue to

encourage students from Aggie families to apply.

“But, after consultation with each of

the Texas A&M University System regents, I have decided that, effective immediately, Texas A&M will no

longer award points for legacy in the admissions review process,” he said in a

statement.

Prior affiliation with the university should not be part of an admissions

process based on individual merit and potential contribution, he said.

Some faculty

leaders had also said it was time to revoke the policy, which had been a formal part of admissions

since 1989.

Typically, anywhere from 1,650 to more than 2,000 applicants a year received

legacy points, usually four points on a 100-point scale that also takes into account such factors as

class rank, test scores, extracurricular activities and community service.

The school

acknowledged last year that more than 300 students were accepted through the legacy program who would

not have qualified otherwise. The president of the state National Association for the Advancement of

Colored People called the program discriminatory because blacks did not attend Texas A&M until 1963,

making minority applicants less likely to have parents or grandparents who graduated from

A&M.

Last fall, 82 percent of A&M’s undergraduates were Anglo, 2 percent were black, 9

percent were Hispanic, and 3 percent were Asian-American.

Gates has promised lawmakers

that he will lead a charge to increase minority enrollment. Gates said he had intended that the legacy

program be addressed in a review of admissions policy.

A&M was the state’s only public

school with a legacy program to boost alumni support.

Meanwhile, the University of Texas

at Austin is considering an admissions policy that would include race as a factor in selecting students

in an effort to boost minority enrollment — a move allowed by a U.S. Supreme Court ruling in

2003.

“This is a win for every student whose parents didn’t attend A&M,”

said state Rep. Garnet Coleman, D-Houston. “But I’m disappointed that race and ethnicity have not

been reinstated as one of many factors in the admissions process.”[Todd Ackerman chron.com Jan. 9,

2004, 10:40PM]

“We know that A&M is a school that is built on traditions and talks

about the A&M family and traditions as one of its attributes. So, yes, it’s clear they wanted to keep

[new students] in the bloodline,” said state Rep. Garnet Coleman, D-Houston, who had called for

legacy’s elimination. “The other outreach programs were akin to looking for stepchildren.”[John LeBas

theeagle.com January 10, 2004]

The same sentiment was voiced by state Sen. Rodney Ellis, D-

Houston, who said “most right-thinking people still should be appalled because A&M is so

overwhelmingly white and is not using one of the tools — the consideration of race in admissions —

that could help it diversify;” and by Bledsoe, who said A&M has taken “a small step in the right

direction, but eliminating the program won’t repair the wrong done.”
[Todd Ackerman chron.com Jan.

9, 2004, 10:40PM]