Anyone who fills out the application to Rutgers Law School in Newark must make a choice on Page 2.
Applicants are asked to check one of two boxes. If they check the first, the school will give most consideration to their numbers - grade-point averages and test scores. If they check the second, the school will give more weight to their "experiences and accomplishments" - a choice intended to benefit blacks and Hispanics.
But all applicants, no matter their race or ethnicity, can check that second box.
This is how Rutgers Law School, a bastion of affirmative action, tries to accomplish one of the most delicate tasks in higher education: Maintain minority enrollment of about one-third, without engendering the resentment of white applicants.
Rutgers' policy, which may be the only one of its kind in the country, hasn't attracted much attention so far. But this spring, deans across the country might be desperate for new ways to practice affirmative action.
In March, the U.S. Supreme Court will, for the first time since 1978, consider the issue of racial preferences in college admissions. The cases were brought by white applicants to the University of Michigan's undergraduate program and law school who, after being rejected, challenged the schools' policy of giving extra consideration to minority students.
If the court sides with the rejected applicants, most schools would have to change their admission policies. Rutgers Law School would have to make changes, too, because it still considers a person's race or ethnicity.
But the law school's affirmative action program, unlike Michigan's, doesn't depend on such overt preferences. By allowing applicants to deemphasize their grades and test scores in favor of other attributes, school officials believe their system would still lead to a diverse student body, even if the Supreme Court forces them to stop considering race or ethnicity.
Other schools, banned by courts or by statewide voter referendums from considering race or ethnicity, have adopted similar strategies. Instead of an explicit favoritism toward black and Hispanic students, they look for evidence that an applicant overcame economic or cultural disadvantages - an experience more common to black and Hispanic applicants.
What makes the law school's system unusual is that choice on Page 2, letting privileged, white applicants opt for the same "experiences and accomplishments" track that is supposed to favor minorities. In a sense, it's an affirmative action program open to all.
"I think my first reading was 'Why?'" said Oris Bryant, a 29-year-old who just completed his first semester. "But then it made sense to me. It gave everyone the same opportunity, as opposed to automatically being put in a pile based on other factors."
To the surprise of law school administrators and faculty, many white applicants from well-off families - including some with good grades and good test scores - have opted to be evaluated on their "non-numerical" attributes, says Paul L. Tractenberg, a professor at the school who devised the policy.
"We've heard a lot of positive feedback from students, who say, 'I like being able to choose. I feel empowered by being able to judge what's in my own interest,'" Tractenberg said.
When the school adopted the current system, it wasn't looking to put a new twist on affirmative action. It was simply trying to avoid a lawsuit.
For three decades, the school's racial and ethnic preferences were glaringly obvious. To ensure that it enrolled a substantial number of black and Hispanic students, minority applicants were evaluated in a different pool from white applicants, called the Minority Student Program. And the bar for them, in terms of grades and test scores, was significantly lower.
The school was defiantly proud of its double standard, saying it was the only way to diversify the state's clubby legal profession. After the U.S. Supreme Court forbade racial and ethnic quotas in 1978, the law school opened up the minority pool to disadvantaged white students.
But in 1996, a 60-year-old named William Maher, who is white, was rejected by the law school and filed a discrimination complaint with the U.S. Department of Education.
Federal lawyers concluded that Maher wasn't as qualified as all other students accepted that year, and they threw out his claim. But they also challenged Rutgers' two-track system, which they saw as a clear violation of the principle - established by the Supreme Court's 1978 decision on affirmative action in University of California vs. Bakke - that a school can't sort applicants into separate pools.
Some members of the Rutgers faculty, who set many policies at the school, disagreed that its admissions system was on shaky ground, pointing to the fact that the Minority Student Program was open to disadvantaged white students as well.
But enough professors weren't willing to take a chance. Even if the school could ultimately win in court, Tractenberg believed it should avoid such a battle.
"I felt we were going to lose if we got embroiled in a major lawsuit that distracted time and attention and resources for years," he said. "It would put a cloud over the program."
The faculty spent a year trying to come up with a new system that achieved the same results, while still staying on the right side of the law. The idea of giving every applicant a choice was a last-minute brainstorm of Tractenberg's, which came to him at a faculty meeting. Explaining it, however, was a problem - he had laryngitis.
"I had to write it out and have someone else present it," he recalled.
The policy could still run afoul of the Supreme Court's 1978 prohibition against separate pools of applicants. But by giving all students the choice of which pool to enter, the school might be able to argue its legality, said Arthur L. Coleman, who was a deputy assistant secretary in the Education Department's Office of Civil Rights in the Clinton administration.
"It's creative ... and it's untested," said Coleman, who now advises universities and states on affirmative action policies. "In certain ways, it actually is a more nuanced, more refined way of considering race, so to that extent it perhaps has a foundation for being sustained if it's ever reviewed by the federal government or a federal court."
Critics of affirmative action remain skeptical, and they say Rutgers' system won't be fair until it's purged of favoritism toward minorities.
"A person with a 3.0 whose mother made $15,000 a year and struggled washing floors to put him through college perhaps is a better candidate than someone who got a 3.5 who comes from Short Hills," said Assemblyman Michael P. Carroll, R-Morris, a 1983 graduate of the law school. "That's a perfectly reasonable thing to do. As long as it's absolutely 100 percent race-blind, ethnic-blind, and there are no code words to describe what the people are."
Rutgers, however, doesn't claim to be color-blind. Despite the school's novel admissions system, Dean Stuart L. Deutsch said the school still needs to consider applicants' race and ethnicity to maintain its diversity.
But Tractenberg says the school's admissions policy has eroded the resentment among white students that minority students were admitted under lower standards.
"The minority students weren't happy, because they felt they were being stigmatized," he said. "Now I think people don't know, and don't seem much to care, because half the white students here might be admitted on a primarily non-numerical basis."
It's hard to find a student at Rutgers Law School who is critical of the admissions policy. Many students view the "experiences and accomplishments" track as a way to trumpet work they had done after graduating from college.
Even those who chose to be judged by their grades and test scores think it's entirely legitimate that many of their classmates were admitted for other reasons.
"You're definitely not lowering the standard," said Regina Stefanelli, a white, first-year student from Pittsburgh. "These people have experience that outweighs my book learning."
