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MADISON - Wisconsin Attorney General J.B. Van Hollen issued an informal legal opinion today concluding that the University of Wisconsin System freshman admissions policy adopted by the Board of Regents in February 2007 does not violate the statutory prohibition against the use of "tests based on race" in Wis. Stat. В 36.11(3)(a), but cautioned the UW System to ensure that each application for admission is given individualized consideration under the admissions policy in order to comply with federal constitutional requirements.
Regent Policy 07-01 provides that UW-System institutions may admit freshmen on the basis of factors in addition to academics and test scores, including whether an applicant is a member of an historically underrepresented racial or ethnic group. The informal opinion was issued in response to correspondence received from thirty-three state lawmakers who had expressed divergent views on the question.
Attorney General Van Hollen's opinion states that the language of Regent Policy 07-01 does not conflict with the language of Wis. Stat. В 36.11(3)(a). The Attorney General's opinion reasons that the term "test" has a special meaning in the law; namely, a standard that would disqualify applicants who do not satisfy the standard. Pursuant to this special legal meaning of the word "test," the statute prohibits UW-System institutions from using race to disqualify an applicant from admission. Regent Policy 07-01 requires an assessment of each applicant's academic ability, coupled with a flexible assessment of the applicant's talents and potential to contribute to and benefit from a diverse educational environment, and allows UW-System institutions to consider an applicant's race as one of many criteria that can be considered in making individualized admissions decisions.
Attorney General Van Hollen's opinion further concludes that Regent Policy 07-01 has the structural components of a constitutionally valid university admissions policy, but that UW-System must be very careful in applying any race-conscious college admissions policy if it is to comply with the equal protection requirements of the state and federal constitutions. The Attorney General's opinion evaluates Regent Policy 07-01 in light of the race-conscious admissions policies considered by the United State Supreme Court in Grutter v. Bollinger, 539 U.S. 306 (2003) and Gratz v. Bollinger, 539 U.S. 244 (2003), and in light of the race-conscious elementary and secondary school assignment policies recently addressed by the Court in Parents Involved in Community Schools v. Seattle School District No. 1, et al., 2007 WL 1836531 (June 28, 2007). The Attorney General's opinion concludes that in making admissions decisions under Regent Policy 07-01, academic factors must be the most important consideration, and that to the extent a UW-System institution takes an applicant's race into consideration as an "other consideration," it must do so on the basis of a holistic, individualized evaluation of the application, in order to continue to comply with the constitutional requirement of equal protection of the laws.
Finally, Attorney General Van Hollen's letter offers the resources of his office to assist the University of Wisconsin System and its member institutions to ensure that admissions are conducted in accordance with constitutional requirements.
A copy of Attorney General Van Hollen's informal opinion is attached.
Copies of the letters of Representatives Nass and Grigsby, co-signed by the other legislators, are also attached. Copies will also be posted at the DOJ website.
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