More than 30 years ago, UW-Madison committed itself to achieving equal educational opportunities for 'minority and educationally disadvantaged students' by devising admissions policies to attain these goals. Like many other colleges and universities across the country, UW-Madison attempted to both right past wrongs and enhance the diversity of its campus by employing policies and programs commonly known as affirmative action.
Today, UW-Madison is still using a form of affirmative action when admitting its students. The race of an applicant is one of the many factors, like test scores or extracurricular activities, considered when deciding whether a student is accepted.
UW-Madison legal counsel Pat Brady said the school's admission policy is supported by the 1978 U.S. Supreme Court decision in Regents of the University of California v. Bakke that justified using ethnic minority status as a consideration in admissions for the purpose of creating a more diverse student body.
But in recent years, what exactly 'consideration' means has become increasingly confusing and inconsistent.
While the University of Michigan's race-based undergraduate policies have been upheld by a federal appeals court, the law schools at the University of Michigan and the University of Texas have seen their race-based admission policies deemed unconstitutional.
And just last month, the University of Georgia's undergraduate admissions policy, which gave students of color extra points, was struck down as unlawful by a federal circuit court.
What these inconsistent rulings mean for affirmative-action policies in higher education is uncertain.
UW-Madison officials, however, are standing behind their admissions policies.
'We have reviewed the legal matters pertaining to our position, and we've been told by our legal counsel that we are in compliance,' said Jay L. Smith, president of the UW-System Board of Regents.
UW-Madison Chancellor John Wiley said what makes a school vulnerable is using quotas, formulas or rigid cutoffs, none of which this university uses, he said.
'I do not believe we are vulnerable that way. Yes, we consider race, but nobody is admitted just because of their racial background,' Wiley said.'[The University of Georgia case] does not and should not have an impact on our policies.'
Regent Fred Mohs disagrees. He said not only are the university's policies unconstitutional, but they also violate Wisconsin State Statute 36.12, which prohibits discrimination in college admissions.
'The legal ground is definitely murky. I believe the university's admission policies are tilting toward racial preferences,' Mohs said.
Milner Ball, a law professor at the University of Georgia, said the ruling on Georgia's undergraduate policies found them unconstitutional because students of color were given extra points over white applicants.
He said the policy at Georgia's law school, which he said he believes to be constitutional, uses a different method, in which race is just one of many factors in judging an applicant.
'Our law school performs exactly the way the circuit court suggested. If [UW-Madison] is similar, then I would assume it would be constitutional. ... But whether the Supreme Court thinks so is another question,' he said.
And that is just what many people are asking.
Many scholars and legal experts think it is time for the Supreme Court to resolve the inconsistent rulings regarding the 'race factor' in college admissions.
'The [Supreme Court] never explicitly decided what colleges can or cannot do. They need to give more clear guidance,' Ball said.
And closer to home, Mohs said he thinks UW needs to be more explicit in its explanation of current admission policies.
'No one knows how much of a factor race is. It's very, very vague. And no one will reveal that answer,' he said.
But admissions officers say there is no specific answer. Every year, the admissions office sorts through tens of thousands of applications by looking at factors such as test scores, rigor of courses, extracurricular activities and class rank. The first question they ask is if an applicant has a reasonable chance for academic success, which a majority of the applicants do, said Keith White, an assistant admissions director at UW-Madison. So, to pick the best students, admissions officers ask a second question: How does the applicant compare with the other students?
In a simplified example, White said if a first-chair trombone player applying to UW-Madison's School of Music is competing against another student with a higher ACT score and GPA, the trombone player could be admitted instead.
By the same token, a student of color could also be admitted above another student with a higher ACT score.
But White said that a student's race would only be considered along with the rest of his or her strengths. White said what admissions officers are looking for is an applicant's potential for academic success and ability to contribute to the university. He said a student would never be admitted just because of his or her race alone, just as the trombone player would never be admitted because of his or her musical talent alone.
'Race is just one of many factors. It is never the determining factor,' White said.
In light of current questions about UW-Madison and other universities' use of race in admissions, a Wisconsin Appeals Court ruled Aug. 30 that the UW System did not have to provide the Center for Equal Opportunity with any of its application records in a decision that deemed the files confidential under federal law, according to press reports.
An earlier ruling compelled the UW System to provide the records of the students who were not admitted but did not have to provide the information for those students who were allowed to matriculate at UW.
The CEO's J. Marshall Osborn, who had requested the records as part of a study on the effect of race and ethnicity on whom the UW System chooses to admit, sued the UW Board of Regents in an attempt to force it to provide this information.
