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`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`92049706
`
`Defendant
`American University of Kuwait
`
`ROBERT W LUDWIG JR
`LUDWIG & ROBINSON PLLC
`1717 PENNSYLVANIA AVE NW STE 450
`WASHINGTON, DC 20006-4626
`UNITED STATES
`Email: rludwig@ludwigrobinson.com, jhousey@symbus.com
`Brief on Merits for Defendant
`
`Robert W. Ludwig
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`rludwig@ludwigrobinson.com
`
`/Robert W. Ludwig/
`
`06/06/2018
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`Exhs 1-2 to Housey Decl E.pdf(4924808 bytes )
`Exhs 3-4 to Housey Decl E.pdf(4202345 bytes )
`Exhs 5-9 to Housey Decl E.pdf(5558632 bytes )
`Exhs 10-16 to Housey Decl E.pdf(3666757 bytes )
`
`

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`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
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`AMERICAN UNIVERSITY
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`Petitioner,
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`V.
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`AMERICAN UNIVERSITY OF KUWAIT,
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`Registrant.
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`AMERICAN UNIVERSITY OF KUWAIT,
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`Counter-Petitioner,
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`V.
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`AMERICAN UNIVERSITY,
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`Counter-Registrant.
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`Cancellation No.
`92049706
`
`Reg. No. 3387226
`Mark: AUK AMERICAN
`UNIVERSITY
`OF KUWAIT
`Reg. Date: February 26, 2008
`
`Reg. No 2986715
`Mark: AMERICAN
`INTERNATIONAL
`UNIVERSITY
`Reg. Date Aug. 23, 2005
`Reg. No. 3559022
`Mark: A NEW AMERICAN
`UNIVERSITY
`Reg. Date: Jan. 06, 2009
`Reg. No. 4127891
`Mark: AMERICAN UNIVERSITY
`WASHINGTON COLLEGE OF
`LAW and Design
`Reg. Date: Apr. 17, 2012
`Reg. No. 4774583.
`Mark: AMERICAN UNIVERSITY
`Reg. Date: Jul. 21, 2015
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`EXHIBITS E1-E2 to
`
`DECLARATION “E” OF JANICE HOUSEY
`
`
`
`

`

`EXHIBIT E1
`
`THE ROLE OF THE
`AMERICAN UNIVERSITY
`
`FRANK H. T. RHODES
`
`Cornell University Press
`
`Ithaca & London
`
`

`

`Copyright c 2001 by Cornell University
`All rights reserved. Except for brief quotatioDS in a review, this
`must not be reproduced in any form
`book. or parts
`without permission in writing from the publisher. For information,
`address Cornell University Press, Sage House, .512 East State Street,
`
`Itha01, New York 14850.
`
`First published 2001 by Cornell University Press
`
`Pfinted in the United States of America
`
`Librruy ofCongms Catrlloging-in-Publicntion Data
`
`Rhodes, Frank Harold 'Irevor.
`
`The creation of the future : the role of the American university I
`
`Frank H.T. Rhodes.
`p.cm.
`Includes bibliographical references and index.
`ISBN o-8014-3937-X (cloth: alk. paper)
`1. Education, Higher-Aims and objectives-United States. z.
`Universities and colleges-United States.
`I. Title.
`
`LA22.7·4 .149 2001
`
`2001002.214
`
`to use environmentally
`Cornell UIIMrsity Press
`responsible suppliers and materials to the fullest extent possible in tile
`publishing of its books. Such materials include vegetable-based,
`law-VOC inks and acid-free papers that are recycled, totally
`
`chlorine-free, or partly composed of nonwood fibers. Books that
`bear the logo of the FSC (Forest Stewardship Council) use paper
`taken from forests that have been inspected and certified as meeting
`the highest standards for environmental and social responsibility.
`
`For further information, visit our website at
`
`www.cornellpress.cornell.edu.
`
`1 3 5 7 9
`
`Cloth printing
`
`

`

`Acknowledgments, vii
`
`Introduction, xi
`
`Chapter 1. The Rise of the American University, 1
`
`Chapter 2 . The American Research University Today, 17
`
`Chapter 3. Transforming Professionalism, 30
`
`Chapter 4· Restoring Community, 45
`
`Chapter 5. Teaching as a Moral Vocation, 58
`
`Chapter 6. Undergraduate Education: Recapturing the Curriculum, 84
`
`Chapter 7· Professional and Graduate Education, 115
`
`Chapter 8. The Cost of Higher Education, 136
`
`Chapter 9· Research: A Public Trust, 162
`
`Chapter 10. Service as a Societal Obligation:
`
`From Farms to Corporate America to Inner Cities, 188
`
`Chapter n . Information Technology, 207
`
`Chapter 12. Governance and Leadership, 215
`
`Chapter 13. The New University, 229
`
`Appendix. A Protocol for Partnership, 245
`
`Notes,247
`
`Index,257
`
`

`

`The quality of life enjoyed by the people of the United States in the opening
`years of the new millennium rests in substantial part on the broad foundation
`
`provided by the American university during the twentieth century. Higher
`education has been the doorway to advancement and participation for
`countless citizens and dozens of immigrant groups. It has been the path to so(cid:173)
`
`cial attainment for millions from impoverished backgrounds, the generator
`of the nation's leaders in every area of life, the key to vastly improved profes(cid:173)
`sional services from health care to technology. It has been the foundation of
`growing national economic prosperity and manufacturing success, vast im(cid:173)
`provements in the products of agriculture and industry, and undreamed-of
`access to new means of communication. And beyond all those benefits, it has
`provided to successive generations the opportunity for meaningful careers,
`for service in a free society, and for access to the riches of human experience,
`aspiration, and achievement. For all its shortcomings, the American univer(cid:173)
`sity has been an unambiguous influence for good. To a degree unknown else(cid:173)
`
`where, it has educated a steadily growing proportion of the population and
`thus nurtured the democratic spirit and enlivened the nation. It has trained
`
`the workforce, enriched the individual experience, and enlightened public
`life. It has quickened the social conscience and empowered and inspired each
`
`rising generation.
`
`What accounts for the distinctive strength and singular contribution of
`
`the American university? How did it come into existence? What forces have
`shaped its development? How well is it situated to contribute to the future?
`Distant ancestors of institutions are as notoriously difficult to identify as
`those of organisms, and the precise origins of our own and other species in(cid:173)
`volve substantial speculation. Phylogenies become matters of strenuous con(cid:173)
`tention, and the precise age of any ancient lineage is often a matter of livdy
`
`

`

`2
`
`{CHAPTER ONB }
`
`debate. As with human origins, so it is with the American university. What is
`possible, with institutions as with humans, is to pick some conspicuous mile(cid:173)
`stones on the path of development, turning points on the long, unfolding
`journey to the present. Perhaps we might choose five universities to mark the
`path by which the modem American university came into being: Bologna,
`Harvard, Vtrginia, Cornell, and Johns Hopkins.
`Lying at the base of the Apennine foothills on the fertile plain between the
`Reno and Savena Rivers is an unassuming city, carrying its ancient history
`lightly under a facade of mellow brick. Its splendid pedestrian arcades, its tur(cid:173)
`rets and its towers (two of them leaning at perilous angles), its wealth of Re(cid:173)
`naissance and Baroque churches, its aristocratic palazws, and its spacious pi(cid:173)
`azzas all offer a gentle contrast to the bustle of a modem industrial city,
`producing everything from pasta to chemicals, sausages to shoes. It was here
`in the eleventh century that the Western university, represented by the Uni(cid:173)
`versity of Bologna, came into existence. Students from all over Europe came
`to Bologna, and by the middle of the twelfth century students are said to have
`numbered nearly ten thousand. The names and arms of those elected as rep(cid:173)
`resentatives of their nations are still preserved in the ceiling of one of the
`city's oldest buildings.
`The ancient university had no campus; it owned no buildings. It was a
`loose community of professors and students (a universitas magistorum et
`scholarium) with the professors often teaching in their own apartments, paid
`by the students lecture by lecture for their services. It was five hundred years
`before the University of Bologna had its own buildings. So Bologna, like other
`older universities, Was -
`to use modem jargon- a virtual learning commu(cid:173)
`nity, long before it was formally recognized as an educational institution. For(cid:173)
`mal recognition came first from the chancellor of the local cathedral, who li(cid:173)
`censed instruction outside the cloister, but in time the reigning pope or
`emperor recognized the older and more distinguished institutions as studia
`generale, whose graduates had the right to teach at any institution, without
`further examination.
`A flowering of legal studies in Bologna about the year 1000, spurred in part
`by legal disputes between the pope and the emperor, led to the rise of the uni(cid:173)
`versity. So studies in both canon and civil law flourished side by side with stu(cid:173)
`dent guilds- the Ultramontani and the Citramontani- protecting the in(cid:173)
`terests of their members, many from foreign lands and many of established
`position and mature years. By about 1200, faculties of medicine and philoso(cid:173)
`phy (the liberal arts) came into being, while theology followed later.
`Bologna is not the oldest university-like institution. Salerno, for example,
`
`

`

`{ The Rise of the American University }
`
`3
`
`had a famed school of medicine at least as early as the ninth century. Centers
`of higher learning were associated with some of the larger mosques of the Is(cid:173)
`lamic world. But Bologna was the first to develop a comprehensive range of
`studies, balanced faculties, both professional and liberal arts, and perhaps the
`first to create student colleges and a deliberative assembly, presided over by a
`rector.
`The founding of Bologna was followed by a remarkable growth of univer(cid:173)
`among them Reggio nell'Emilia, Modena, Vi(cid:173)
`sities in other Italian cities -
`cenza, Padua, and Naples. Elsewhere, in
`places as Paris, Oxford, Cam(cid:173)
`bridge, Valladolid, Salamanca, Seville, Coimbra, Prague, Cracow, Vienna,
`Heidelberg, Cologne, Louvain, Leipzig, and St. Andrews, others followed. In a
`span of two centuries, the university came into being across the length and
`breadth of Europe.
`In 1636, the new institution reached North America, when the first Ameri(cid:173)
`can college was established in New Towne, Massachusetts, lying on the
`Charles River across from the city of Boston. It was in this same place, on July
`3, 1775, that Washington was to take command of the Continental army. The
`general court of the Massachusetts Colony voted £4oo to create a "schoale or
`colledge." 1Wo years later, the site of its founding was renamed "Cambridge:'
`in honor of the university
`many leaders of the colony had been edu(cid:173)
`cated. John Harvard, a Cambridge graduate and Puritan minister, left half of
`his estate (almost twice the sum of the colony's funding) and his library of
`260 books to the fledgling college. The purpose of Harvard's founders is
`touchingly summarized in their statement: "After God had carried us safe to
`New England, and we had builded our houses, provided necessaries for our
`liveli-hood, rear'd convenient places for Gods worship and settled the Civill
`Government; One of the next things we longed for, and looked after was to
`advance Learning and perpetuate it to Posterity; dreading to leave an illiterate
`Ministr}r to the Churches, when our present Ministers shall lie in the Dust:'1
`In 1642, Harvard awarded its first degrees- the degree of bachelor of arts(cid:173)
`to nine young men. The charter of 1650 established the college for "the ad(cid:173)
`vancement of all good literature, arts and the sciences" and "the education of
`the English and Indian youth . . . in knowledge and godlynes." It also pro(cid:173)
`vided for an independent, self-perpetuating corporation consisting of the
`president, treasurer, and five fellows to govern the college subject to confir(cid:173)
`mation by a board of overseers. This board, though at first jointly representa(cid:173)
`tive of the state and the church, later became a lay board, elected by the
`alumni body.
`The foundation of Harvard was followed by the creation of other colonial
`
`

`

`4
`
`{ CHAPTER ONE}
`
`colleges. The student experience at these various colleges was remarkably
`similar, including compulsory attendance at the college chapd, pursuit of the
`classical curriculum, participation in the extracurricular literary societies
`(which encouraged debates, readings, lectures, and other activities), and the
`
`senior capstone course in moral philosophy- the "great glory" of the cur(cid:173)
`riculum- taught generally by the president
`.AJ; the young nation grew in numbers and expanded its frontiers, it faced a
`
`steadily growing need for both educated citizens and trained professionals,
`and public funding was contributed by a number of states - Vrrginia, North
`Carolina, and Michigan among them - t o meet this need.
`
`This led to the creation of public universities, funded largely by the states.
`
`The best known of these- though not the most typical- is the University
`of Virginia, founded by Thomas Jefferson at Charlottesville, in the shadow of
`
`the Blue Ridge Mountains. The campus echoes the Jeffersonian dream. Jeffer(cid:173)
`son planned every aspect of its development, choosing the site, planning the
`layout of the "academical village," designing the buildings, creating.the cur(cid:173)
`
`riculum, sdecting books for the library, appointing the founding faculty, and
`serving as the first rector. "Mr. Jefferson's University" was chartered in 1819,
`and opened in 1825 with eight members of the faculty. Forty years later, it was
`second only to Harvard in size.
`
`The University of Virginia had two distinctive features. Unlike other uni(cid:173)
`versities of its time, it had no religious affiliation and required no rdigi.ous as(cid:173)
`
`sent of its students.
`It also broke from the classical curriculum, which was then dominant, by
`creating eight schools, each headed by a professor: ancient languages, modem
`languages, anatomy and medicine, law, natural history, mathematics, natural
`philosophy, and moral philosophy. These schools, designed to grow as funds
`permitted, were later to be joined by commerce, diplomacy, and manu(cid:173)
`facture. This rich assortment of offerings was to allow an dective program of
`study, in contrast to the rigid requirements of other colleges. The architecture
`matched the curriculum, with each school housed in its own pavilion, with
`students living on the campus, "in watchful proximity'' to their professors'
`
`residences.
`For all its creativity, the University ofVirginia provided no model for other
`
`institutions. Its style was distinctive to the point of eccentricity. Jefferson had
`opposed the granting of degrees, for example, as "artificial embellishments,"
`and the baccalaureate degree was not offered until1868, although the univer(cid:173)
`sity awarded the M.D. degree in 1828 and the master of arts -its primary de(cid:173)
`gree- in 1831.
`
`

`

`{ The Rise of the American University I
`
`5
`
`But the massive growth of public funding of higher education began with
`the Morrill Act of 1862, signed into law by Abraham Lincoln, which provided
`grants of federal lands to the states for the establishment of public universi(cid:173)
`ties and colleges. These "land-grant colleges and universities" were to provide
`for "the liberal and practical education of the industrial classes in the several
`pursuits and professions of life."2 This act led to the creation in every state of
`a new kind of college that was distinctively American. Perhaps no university
`is more typical of the fusion of scholarly inspiration and worldly practicality,
`on the one hand, and of the joint power of private philanthropy and public
`expenditure, on the other, than Cornell University.
`Frederick Rudolph, in his magisterial book on the university curriculum,
`describes the impact of the founding of Cornell as follows:
`
`Cornell brought together in creative combination a number of dy(cid:173)
`namic ideas under circumstances that turned out to be incredibly produc(cid:173)
`tive .. . . Andrew D. White, its first president, and Ezra Cornell, who gave it
`his name, turned out to be the devdopers of the first American university
`and therefore the agents of revolutionary curricular reform ....
`Ezra Cornell, whose wealth and imagination allowed him to be Western
`Union's largest stockholder, turned these same assets into a few words that
`transformed the American college curriculum: "I would found an institu(cid:173)
`tion where any person can find instruction in any study." Andrew D.
`White, the universit}ls first president, translated a classical education at
`Yale, scholarly training in European universities, and experience on Henry
`Tappan's faculty at the University of Michigan into a resolution to create a
`American university.'
`
`So, with the founding of Cornell, a new kind of university came into exis(cid:173)
`tence. When Ezra Cornell spoke of"any person" he meant poor as well as rich,
`as he provided work and scholarships; women as well as men, as he built a
`women's college as an integral part of the university; "the whole colored race
`and the whole female sex," in White's words.4 Ezra Cornell was equally serious
`when he spoke of "any study:' leaping over the weary debate on the tradi(cid:173)
`tional classical curriculum in relation to more modern studies. Law and lan(cid:173)
`guages, agriculture and architecture, engineering and English jostled to(cid:173)
`gether, with the student encouraged to make informed choices within a range
`of nine "departments" broadly aimed at professional careers, while the divi(cid:173)
`sion of literature, science, and the arts allowed nonprofessional students five
`routes toward a general course of study. "Discipline comes:' White declared,
`"by studies which are loved, not by studies that are loathed:'s
`
`

`

`6
`
`{ CHAPTER ONE }
`
`"In walking away from choice and embracing all alternatives, White made
`an American decision consistent with Ezra Cornell's democratic intentions
`and the imprecise, but clear obligations of the Act of
`Rudolph wrote.
`"Practical vocationalism, scientific research, applied technology, classical
`learning, and university scholarship all found a welcome."6 "The Cornell cur(cid:173)
`riculum brought into imaginative balance the openness of American society,
`the temporary nature of its directions and opportunities; it multiplied truth
`into truths, a limited few professions into an endless number of new self(cid:173)
`respecting ways of moving into the middle class."7
`Ezra Cornell and Andrew Dickson White insisted on one other concept;
`their university was to be nonsectarian, with a board of trustees in which
`members of no one denomination should have a majority. So Cornell was to
`become hospitable to all religious persuasions, but committed to no one de(cid:173)
`nomination.
`To the Morrill Act of 1862, two other pieces of federal legislation were later
`added: the Hatch Act of 1887 provided federal funds for research and experi(cid:173)
`ment stations, while the Smith-Lever Act of 1914 provided additional funds
`for extension programs, designed to bring to their communities the benefits
`of new campus-based research.
`But when Cornell was founded, there was precious little research to ex(cid:173)
`tend. The universities of the mid-nineteenth century were teaching institu(cid:173)
`tions, in which scholarship, though prized, was generally understood to mean
`high competence in one's field, whether in theory or in practice. In contrast,
`the German universities of this period became centers of research and gradu(cid:173)
`ate study, spurred on, to some extent, by industry's need for technical and sci(cid:173)
`entific research. Many of the professors of America's new universities had
`schools, and, almost im(cid:173)
`themselves been students in these German
`perceptibly, the Germanic scholarly influence, and the new knowledge it cre(cid:173)
`ated, seeped into the American curriculum.
`"The consequences," Rudolph observed wryly, "have generally been appro(cid:173)
`priately described as both profoundly inventive and overwhelmingly destruc(cid:173)
`tive."8 They were inventive because they led to an explosion of knowledge in
`every :field. They were destructive because they undermined the reigning as(cid:173)
`sumptions of the unity of the traditional liberal arts and sciences and weak(cid:173)
`ened the centrality of humane learning. Specialization, professionalization,
`and narrow inquiry were all very well for the European undergraduate, prod(cid:173)
`uct of the demanding gymnasium, but they "left the college, the society's
`repository of liberal values and humane learning, crippled and confused."9
`Just how far this was a problem is shown by our fifth landmark, Johns
`
`

`

`{ TheRiseoftheAmerican University }
`
`7
`
`Hopkins in Baltimore, Maryland It was Baltimore's importance as a port and
`center of communication that led indirectly to its distinctive contribution to
`the growth of the American university. Its excellent harbor had long made
`Baltimore a leading shipping center, while its position on the National Road
`
`contributed to its early eighteenth-century growth. But the completion of the
`Erie Canal threatened its prosperity, and a group of wealthy local investors
`chartered the Baltimore & Ohio Railroad- the first public U.S. railroad(cid:173)
`to strengthen its access to the west. Among these investors was Johns Hopkins
`(1795-1873), who gave his fortune of $7 million and his name to a new univer(cid:173)
`sity. Johns Hopkins's first president, Daniel Coit Gilman, made advanced
`scholarship, scientific research, and graduate study the university's main pur(cid:173)
`
`it also included an undergraduate college. The Hopkins model
`pose,
`-
`serious scholarship, graduate study, the Ph.D. degree, the specialized aca(cid:173)
`
`demic major and expansive minor, a pervasive spirit of inquiry and an
`earnestness of purpose that went with i t - soon influenced the new univer(cid:173)
`sities and aspiring colleges, both private and public.
`"The presidents of state universities ... knew that they could not be uni(cid:173)
`versities in reality until the spirit of Johns Hopkins had become as pervasive
`
`as that of Cornell," concluded Rudolph. 10 Opened to great acclaim in 1876,
`
`Hopkins in its preoccupation with research served as the model for a number
`of other embryonic universities- Oark University, Catholic University of
`America, and the University of Chicago among them. But though total im(cid:173)
`mersion in research to the exclusion of substantial concern for the well-being
`of undergraduate students and professional studies proved an unsuccessful
`recipe, Hopkins's great contribution to the development of the American
`
`university was to inject a spirit of advanced study, serious inquiry, and schol(cid:173)
`arly emphasis into the Cornell model of wide access, expansive scholarly and
`professional programs, and institutional autonomy. Its influence remains
`
`strong today.
`By the final quarter of the nineteenth century the general form of the
`American university had taken shape. It had become a learning community
`
`with a largely residential campus, embracing both a college of liberal arts and
`sciences and graduate and professional schools, devoted to both teaching and
`research, committed to widening access and expanding public service. That
`structure continues into the twenty-first century.
`The contemporary American university, however, is a distinctive product
`of the twentieth century and especially of the last fifty years. There are several
`particular trends that have altered the shape, though not the structure, of the
`
`university.
`
`

`

`8
`
`{ CHAPTER ONB }
`
`The university has seen a deliberate growth in social inclusiveness, with a
`
`major expansion in the proportion of the traditional college-age population
`attending college and a more recent but rapid increase in lifdong learning,
`including both continuing professional education and distance learning.
`
`There has been a growth in number and size of institutions to accommo(cid:173)
`
`date this growing student enrollment and the differentiation of institutional
`style to respond to differing educational needs and opportunities.
`The university has seen increasing intellectual inclusiveness, with growing
`
`professionalism both in the "established professions" such as law, medicine,
`and engineering and in new ones such as architecture, city planning, and
`business, as well as the specialization and growing professionalization of the
`
`traditional disciplines.
`Finally, universities have experienced the disproportionate expansion of
`science and the science-based professions, supported by infusion of federal
`
`funding for research, and their growing influence in shaping the culture of
`
`the campus.
`I discuss professionalism and science in Chapters 2 and 3. In this chapter, I
`want to explore the impact of increased student access and institutional
`
`growth.
`The colonial college, large in aspiration but small in size and modest in the
`range of its curriculum, was unambiguous in its educational pwpose, selec(cid:173)
`tive in its admissions, and homogeneous in its student body. Its aim was typ(cid:173)
`i1ied by that of Yale: that "Youth may be instructed in the Arts and Sciences
`who thorough the blessing of Almighty God may be fitted for Publick em(cid:173)
`ployment both in Church and Civil State." Its membership was predomi(cid:173)
`nantly white, male, and Protestant.
`The subsequent history of higher education is one of larger purpose,
`steadily expanding access, and growing inclusiveness. The Morrill Act estab(cid:173)
`lished new land-grant universities to educate "the industrial classes." Institu(cid:173)
`tions like Cornell wdcomed the rich and poor of both sexes and all races and
`with contemporary European universities, this was
`religions. In
`an extraordinary degree of inclusiveness. Yet women and nonwhites re(cid:173)
`mained a rarity and small minority on the university campus. It would take
`another half century before dramatic increases in inclusiveness would take
`place.
`In 1900, only 237,592 men and women attended college, about 4 percent of
`the college-age population. By 1940, total enrollment had reached 1.5 million,
`about 12 percent of the college-age population. The passage of the G.I. Bill at
`
`the end ofWorld War II represented a national decision to extend the benefits
`
`

`

`{ The Rise of the American University }
`
`9
`
`of a college education to a greater proportion of the population, offering sup(cid:173)
`port to returning veterans, and thus giving a major boost to college atten(cid:173)
`dance. By 1998, a record 67 percent of the graduating high school seniors were
`enrolled in college, most of them as full-time students at four-year institu(cid:173)
`tions.
`But inclusiveness involved more than attendance ratios. Thirty years ago,
`universities set out to make their campuses look more like America. It was a
`mission supported, monitored, and overseen by federal and state govern(cid:173)
`ments on the basis of widespread agreement on this threefold premise: edu(cid:173)
`cation provides a foundation for personal growth, professional training, and
`social mobility; women and minority groups have been historically under(cid:173)
`represented on college campuses and in professional arid leadership roles in
`society; and universities should pursue affirmative policies to recruit these
`groups and so remedy past underrepresentation.
`Although the concept of affirmative action is now the topic of litigation
`and lively public debate, the striking growth in numbers of women and pre(cid:173)
`viously underrepresented minorities in both higher education and public life
`is evidence of the success of this venture. Also notable are the growing pres(cid:173)
`ence of students from families oflower income levels and the growth in num(cid:173)
`bers of female and minority faculty. Until recently, university admissions
`were guided by the Bakke case, a 5-4 decision of the Supreme Court that pro(cid:173)
`hibited discrimination by race, but allowed race to be used as one positive cri(cid:173)
`terion, among others, in college admissions.
`The future of affirmative action is unclear. The rejection by California vot(cid:173)
`ers of racial preferences (Proposition 209), the prohibition by the University
`of California Board of Regents of their use in admissions, and the recent Hop(cid:173)
`wood court decision concerning admissions to the University of Texas have
`had a profound effect on universities in those states. In the first year following
`the Texas and California decisions, there was a precipitous decline in minor(cid:173)
`ity student applications and enrollment. In the law school of the University of
`Texas at Austin, for example, once a significant source of black graduates, the
`number of new black students enrolling in 1997-98 plunged to zero. At Cali(cid:173)
`fornia's flagship public universities - Berkeley and the University of Califor(cid:173)
`nia at Los Angeles -
`admission levels of underrepresented minorities are
`down substantially from pre-Proposition 209 levels. As of 1999, they were
`down 44 percent at Berkeley and 36 percent at UCLA. 11
`Several alternatives to traditional affirmative action programs are now be(cid:173)
`ing suggested. Some argue for the use of nonracial "class-based" criteria in
`admissions, assuming that this could still produce enrollments that resemble
`
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`

`10
`
`{ CHAPTBR. ONB }
`
`current college levels of racial diversity, since black and :ijispanic students are
`three times as likely to come from low-income families. What such arguments
`overlook, however, is that these minority students represent only a small mi(cid:173)
`nority of the low-income population and that many minority students
`achieve relatively low SAT scores. This would mean that to retain anything
`approaching present minority enrollment levels, a very large intake of low(cid:173)
`income students would be required, thus further limiting access for middle(cid:173)
`and upper-income students. Others have urged the use of geographic origin
`zip code- as an admissions criterion, but this may involve similar prob(cid:173)
`-
`lems.
`
`The impasse here is real, and the implications are serious. California vot(cid:173)
`ers' rejection of affirmative action and the judicial rejection of racially based
`admissions criteria in other states are both clear. But equally clear is the need
`
`for access to the ranks of the professional workforce for all Americans as a
`foundation both for a comprehensive and effective educational setting and
`for a harmonious and just society. As yet, no simple numerical criteria seem
`capable of providing this.
`Fortunately, an alternative admissions model exists. If each student appli(cid:173)
`cant is treated as an individual- rather than as a racial representative or a
`
`disembodied numerical test score- and admission is based on considera(cid:173)
`tion of essays, class ranking, teacher and counselor reports, civic and
`munity service, leadership, extracurricular activities, socioeconomic back(cid:173)
`ground, and other factors, race may still be taken into account, as one factor
`among others. Where this is done, numbers of black and Hispanic students
`continue to increase or hold steady.
`
`Consider one example. For the Cornell University Medical College class of
`
`2000, there were 7,602 applications for 100 places. The faculty conducted 1,339
`interviews, and the class finally selected contained 24 black and Hispanic stu(cid:173)
`dents. That number was achieved without quotas or set-asides, without ad(cid:173)
`mitting the unqualified or the uncommitted. It was achieved by considering
`each individual as an individual, representing a range of abilities, skills, expe(cid:173)
`rience, backgrounds, and characteristics- of which race can legitimately be
`considered to be one among others.
`In large public universities, where student numbers make such personal
`interviews difficult, new programs that offer blanket admission to the top 10
`or 20 percent of all graduating seniors of all high schools, whatever their test
`scores, seem at first glance to offer encouraging results. These programs have
`
`liabilities, as well as benefits. They leave untouched, for example, the impor(cid:173)
`tant issue of admissions to graduate and professional programs. They typi-
`
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`{ The Rise of the American University }
`
`11
`
`cally guarantee admission to only one of the various state colleges and uni(cid:173)
`versities, with a conseque