The Issue Are proposed amendments to Rules 6C-6.001, 6C-6.002 and 6C-6.003, Florida Administrative Code, calling for language to be repealed and added, "invalid exercises of delegated legislative authority?" Section 120.52(8), Florida Statutes.
Findings Of Fact The Parties Petitioner, NAACP, Inc., individually and through its Florida Conference of Branches of NAACP, is a foreign not-for- profit corporation that has a certificate of authority to conduct its affairs in the State of Florida. Petitioner Mattie Garvin has not applied for admission to any state university within the State University System (SUS) for school year 2000-2001. The goal of Petitioner, Mattie Garvin, is to provide her son, Keith Garvin, with the best possible educational opportunities, a goal shared by many parents of the State of Florida. Petitioner, Keith Garvin, has not applied for freshman admission to any state university within the SUS. Petitioner, Keith Garvin, has not applied to any limited access program offered by any state university within the SUS. Petitioner Keith Garvin has not applied for admission to any preteacher education or teacher education pilot program at any state university within the SUS. Petitioners Keith Garvin and Mattie Garvin are members of the NAACP, but are not members of Florida Now. The Board of Education is a body corporate created by Article IX, Section 2 of the Florida Constitution, consisting of the Governor and members of the cabinet. The Board of Education is constitutionally mandated to supervise the system of public education as provided by law. Section 229.053, Florida Statutes (1999), designates the Board of Education as the chief policymaking and coordinating body of public education in Florida. With respect to the SUS, the Board of Education is required to approve all rules adopted by the Board of Regents before the rules are filed with the Department of State, and to exercise general supervision and control over the Board of Regents pursuant to Section 240.203, Florida Statutes (1999). The Board of Regents is a body corporate created by Section 240.205, Florida Statutes (1999), and is an agency of the State of Florida for purposes under Chapter 120, Florida Statutes (1999). The Board of Regents consists of the Commissioner of Education and 13 citizens of Florida who are selected from the state at large, and is representative of the geographical areas of the state. Programs Section 240.529(9), Florida Statutes (1999), authorizes universities to establish preteacher education and teacher education pilot programs to encourage promising minority students to prepare for a career in education. The programs shall be designed to recruit and provide additional academic, clinical, and counseling support for students who are potentially successful teacher education candidates but who may not meet teacher education program admission standards. Those programs may admit students who may not meet the requirements for entrance into an approved teacher education program. The establishment of preteacher education or teacher education pilot programs as described in Section 240.529, Florida Statutes (1999), is not mandatory. No SUS university currently offers a preteacher education and teacher education pilot program. Enrollment in preteacher education and teacher education pilot programs offered by state universities within the SUS is a separate process from freshman admission into a state university. Enrollment in limited access programs offered by state universities within the SUS is a separate process from freshman admission into a state university. Neither the Board of Regents nor any of the ten universities in the SUS has adopted a rule establishing an admissions quota. There is no provision in the existing rules of the Board of Regents which requires that public universities grant race or gender-based preferences in admissions. Case History On November 9, 1999, the Governor issued Executive Order 99-281, requesting that the Board of Regents implement a policy prohibiting the use of racial or gender set-asides, preferences, or quotas in admissions to all Florida institutions of higher education. The Board of Regents, at its November 18-19, 1999, meeting directed its staff to develop appropriate language to amend admission rules to prohibit the use of race, ethnicity, and gender-based preferences in the university admissions process, and to implement other policies outlined in the Governor's Equity in Education Plan. The Board of Regents published its "Notice of Rule Development" in the Florida Administrative Weekly on November 24, 1999. At the meeting of the Board of Regents held on December 9-10, 1999, the Board of Regents reviewed proposed language for the rule amendments and data that was presented in support of the rule amendments. On December 23, 1999, and February 4, 2000, the Board of Regents published its "Notice of Proposed Rulemaking" in the Florida Administrative Weekly. On February 3, 2000, the Agenda for the Board of Regents' February meeting was mailed to each Board of Regents member; this Agenda included over 145 pages of information on the Proposed Rule Amendments. At the Board of Regents' meeting held on February 17- 18, 2000, the Board of Regents heard comments from 78 members of the public regarding the proposed rule amendments. At the conclusion of the public comments, the presidents of each of the ten SUS universities also offered comments on the proposed rule amendments. At the Board of Regents meeting on February 17-18, 2000, the Board of Regents voted to approve the proposed rule amendments. The Board of Education approved the proposed rule amendments on February 22, 2000. On February 25, 2000, the Petitioners filed a Petition to Determine Invalidity of the Proposed Rule Amendments. By order dated March 30, 2000, the Florida National Organization of Women was granted leave to Intervene in support of the petition filed by the Petitioners. The Board of Regents has granted the Petition for Emergency Variance filed by the ten SUS universities on April 11, 2000. The universities were granted a variance from the portion of Rule 6C-6.002(3)(a), Florida Administrative Code, that requires entering freshman to possess four additional academic electives from five specific subject areas referenced in the rule, i.e., English, math, natural science, social science and foreign language. Gender In the 1998-99 academic year, 56.7 percent of the students enrolled in SUS universities were women. Other Facts: Standing NAACP The NAACP is chartered under laws in the State of New York. It has affiliates throughout the country. There are 39 state conferences. There is a Florida conference. The Florida conference, as other state conferences, is made up of local Adult Branches, Youth Councils, and College Chapters. Within the NAACP national office is a department of education. That department has the function of development of educational policy at the state and national level through affiliated units in the NAACP. NAACP, in pursuit of educational policy and in particular in relation to the desegregation of public education in elementary schools, secondary schools, undergraduate, and graduate studies in universities, is engaged in litigation. The Florida Conference State Convention takes up topics concerning education related to enrollment in colleges and universities. The Constitution and By-Laws for Branches of NAACP, Article I, Section 3, describes the purpose of its branches, to include: . . . to improve the . . . educational . . . status of minority groups: to eliminate racial prejudice; to keep the public aware of the adverse effects of racial discrimination; and to take lawful action to secure, its elimination, consistent with the efforts of the National Organization and in conformity with the Articles of Incorporation of the Association, its Constitution and By-Laws and as directed by the National Board of Directors. Article II, Section 1, establishes that "membership in the Branches shall include membership in the National Association." Under Article IV, Section 4, in that document, NAACP has a standing committee for education. Article IV, Section 5(d), refers to the education committee which shall, among other responsibilities, "(1) Seek to eliminate segregation and other discriminatory practices in public education; (2) Study local educational conditions affecting minority groups . . ." (Petitioners' Exhibit No. 18) NAACP has a Constitution for Youth Councils. Under Article I, Section 2, to that constitution, Youth Councils are subordinate units of the NAACP and are expected to coordinate their activities to achieve the aims and objectives of NAACP. Article I, Section 3, within the Constitution for Youth Councils states the purpose of the Youth Councils to, among other expectations, advance educational status of Black people and other minority groups. Article II, Section 1, identifies members in Youth Councils as persons under the age of 25. Those members of the Youth Council may become members of the Youth and College Division by accepting the terms of the Constitution of the NAACP. Membership in the Youth Council constitutes membership in the NAACP. The Constitution for Youth Councils, Article V, Section 4(f), establishes a standing committee for education. That committee is charged with the responsibility to, "(1) Seek to eliminate segregation or other discriminatory practices in public education; (2) Study local educational conditions affecting minority groups . . ." (Petitioners' Exhibit No. 19) NAACP has a Constitution for College Chapters. According to Article I, Section 2, the College Chapters are affiliated with NAACP and shall subscribe to the general policies and programs of NAACP. The College Chapters shall have as their purpose, among other goals and responsibilities, the improvement of educational status in minority groups, elimination of racial prejudice and assistance to the public in becoming aware of the adverse affects of racial discrimination. In accordance with Article II, Section 1, membership in the College Chapters pertains to persons under the age of 25. Membership in the College Chapters shall include membership in the NAACP. Article IV, Section 4(e), identifies a standing committee on education within the College Chapters charged with the study of educational conditions affecting Black people and other minority groups and in particular, charged to: Concern itself with educational practices on its own campus as well as other campuses. Be a center for popular education on the problems of Black students in the work of the NAACP. To work for the integration of students, faculty and non-teaching personnel; elimination of quota systems, particularly in medical, dental and engineering schools and to give attention to upgrading and granting tenure to professors. Seek to secure unprejudiced presentation in the teaching of materials pertaining to racial and other minority groups. . . . (Petitioners' Exhibit No. 20). NAACP has established State Youth and College Division By-Laws. Article I, Section 3, to the By-Laws states the objectives of a State Youth and College Division of NAACP to advance the educational status of Black people. Article II, Section 1, refers to membership partially composed of Youth Councils and College Chapters. Under Article IV (c), the By- Laws establish a standing committee on education charged to organize and study conditions affecting the education of Black people in Florida. (Petitioners' Exhibit No. 23) NAACP sponsors the Afro-Academic, Cultural, Technological and Scientific Olympics (Act-So). Act-So was designed to stimulate, promote, and encourage high academic and artistic achievement among Afro-American high school students. NAACP Branches throughout the country conduct annual local Act- So competitions in the sciences, the humanities, the performing arts, and the individual arts. The competition is for students in grades 9-12. Winners in local competitions then compete with winners from other cities in national Act-So finals. (Petitioners' Exhibit No. 21) Branches within NAACP work through the Back To School/Stay In School program to assist students who are "at risk" to remain enrolled in school. This program includes tutoring and mentoring. The Florida Conference in relation to the Youth and College Divisions brings representatives of colleges and universities to address students about the opportunities for attending college. Recently 13 colleges and universities sent representatives for this presentation. NAACP prepared a membership report for its members in Florida for the period February 1, 1999 through February 29, 2000. The report reflects the number of members in Adult Branches, Youth Councils, and College Chapters. In the reporting period there were 7,205 regular adult members, and there were 2,587 regular youth members, further divided into 1,835 Youth Council members and 602 College Chapter members, all categories having membership in NAACP. (Petitioners' Exhibit No. 22) The number of members in Youth Councils enrolled as high school students cannot be discerned from the report; however, it is estimated to be 70 percent to 80 percent of Youth Council membership. In its challenge, NAACP considers the term "preferences" to be a "negatively charged word" as used in the proposed rules amendments. It believes that the term is used to enflame passions and create prejudice against the use of affirmative action programs. It alleges that in prohibiting "preferences" programs benefiting minorities such as scholarships, tutoring, and recruitment will be negatively affected. NAACP has its greatest concern in the Board of Regents' choice to refer to "prohibition of preferences" in the proposed amendment to Rule 6C-6.003(5), Florida Administrative Code. Mattie Garvin and Keith Garvin: Mattie Garvin and Keith Garvin reside in Miami, Florida. Mattie Garvin is Keith Garvin's mother. Mattie Garvin and Keith Garvin are African-American. Both are members of NAACP. Keith Garvin is a minor; he is 15 years old, a tenth grader at Miami Lakes Senior High School, in Hialeah, Florida. To this point Keith Garvin has received his education in public school. He anticipates graduating in the year 2002. Keith Garvin has a 2.6 grade point average (GPA). He is unfamiliar with his class rank. (Respondents' Exhibit Nos. 98 and 99) Class rank is not determined until the twelfth grade. Keith Garvin plans to attend college. He has particular interest in attending Florida State University within the SUS. He has interests in computer engineering and computer programming as possible college majors. In addition to his school course work, Keith Garvin visits with a counselor to assist him in identifying his needs in the interest of attending college following graduation from high school. These sessions also involve the discussion of the Scholastic Aptitude Test (SAT), and overall study habits. Keith Garvin has taken the PSAT. His aggregate score was 1400, divided 700 in English and 700 in Math. For future reference concerning hypothetical admissions possibilities for Keith Garvin, information has been taken from the SUS Fact Book 1997-98. (Petitioners' Exhibit No. 40 Respondents' Exhibit No. 54) It shows that for the fall of 1997 regular admissions the average SAT score was 1150.7 and the average GPA was 3.6. In that term, the entering freshmen class at the University of Florida had an SAT score of 1242.1 and a 3.8 GPA. In that term, the Florida State University entering class had an SAT score of 1151.6 and 3.5 GPA. At the other end of the scale, the Florida Gulf Coast University entering freshmen class had an SAT score of 1047 and a 3.5 GPA. Keith Garvin participates in other activities aside from his education. He plays high school football, is involved with Future Business Leaders of America, as well as his membership in NAACP in the Miami Dade Youth Council. His NAACP Youth Council has approximately 500 members with approximately 80 percent of that membership attending high school. Mattie Garvin actively participates in the education of Keith Garvin and her other two children. She is committed to advancing the education of her children, and she intends to have her children attend college. Florida Now Florida Now is incorporated by the State of Florida. (Intervenor's Exhibit No. 1) As its Statement of Purpose, Florida Now indicates it [I]s to take action to bring women into full participation in the mainstream of American society now, exercising all privileges and responsibilities thereof in truly equal partnership with men. This includes, but is not limited to, equal rights and responsibilities in all aspects of . . . education . . .; and it includes freedom from discrimination because of race, ethnic origin, age, marital status, sexual preference/orientation, or parenthood. (Intervenor's Exhibit No. 2A) In its brochure, Florida Now describes its support for affirmative action, and equal opportunity for women and people of color. The brochure reflects that members of Florida Now are actively involved in issues relating to the full equality for women in society in relation to education and the stated opposition to discrimination in education. The brochure states the purpose as "we actively pursue the rights of girls and women to full and equal educational opportunities." Further, "we oppose discrimination or gender segregation." (Intervenor's Exhibit No. 2B) The National Organization of Women, Inc. (Now) has a number of resolutions that direct its members at the local and state level to monitor the circumstances of education for women of all colors to make certain that state university systems comply with federal law and the state and local laws concerning equity in education for women. Some of its members have established a scholarship for women in Florida to attend college in the state. There is particular concern about having women educated in non-traditional careers, to allow those women to earn more income. The organization has a concern about discrimination from the earliest educational experience for girls through the educational experience for women who attend college. The organization is concerned that guidance counselors not give women information that causes those students to be "trapped into womanly-type careers" that are underpaid. There are 36 chapters of Florida Now with approximately 6,000 members in Florida. Part of the membership is constituted of high school students, college students, and graduate students. Florida Now has both men and women as members. Members of Florida Now are parents who have students in high school who expect to attend the SUS. Members of Florida Now are parents who have children who attend the SUS. The number of Florida Now members who have children currently enrolled in Florida high schools was not established. The number of Florida Now members currently enrolled in undergraduate programs within the SUS was not established. The number of Florida Now members who have children currently enrolled in undergraduate programs in the SUS was not established. The number of Florida Now members currently enrolled in limited access programs within the SUS was not established. The Florida Now members currently enrolled in graduate or post-baccalaureate or professional programs in the SUS was not established. This information was not established because Florida NOW does not call upon its members to identify their places in the educational system. Florida Now Witnesses Maxene Tuchman is an Hispanic woman. She is a member of Florida Now. She is a senior at Palmetto Senior High School, in Miami, Florida. Her unweighted GPA is 3.8 and her weighted GPA is 4.2. Under the unweighted GPA the maximum is 4.0 and under the weighted GPA the maximum is 6.0. She is in the 27th percentile ranking of her class at Palmetto Senior High School. She attended the Design Architecture Senior High in Dade County before transferring to Palmetto Senior High School. Had she remained in that smaller school she would have been in the top 10 percent ranking by her estimate. Maxene Tuchman has participated in the National Honor Society and Social Science Honor Society, among other school activities. She has taken college courses at Miami Dade Community College. In pursuing admission to the SUS Maxene Tuchman received a combined score of 1120 on the SAT. Maxene Tuchman has been accepted to the University of Florida, Florida State University, and the University of South Florida, and New College within the SUS, together with a number of other universities outside that system. Information concerning Maxene Tuchman and her educational performance is found in Intervenor's Exhibit No. 4. Carla Denise Edwards came from an upper-middle-class background and attended the University of Pennsylvania at which she earned both bachelor's and master's degrees. Carla Denise Edwards is a member of Now. Carla Denise Edwards is a graduate student at the University of Florida. She is pursing a doctoral program in sociology. When she applied for admission to the program her Graduate Record Examination (GRE) score was 980. The minimum requirement for regular graduate admission was a GRE score of 1000. Because the program which she applied for was interested in bringing African-American women into that department she was accepted as a student and has excelled. The basis of admission for Carla Denise Edwards was in the interest of "diversifying" the department. Her initial admission was conditional. To be retained in the program, Carla Denise Edwards submitted additional writing materials and attended a minority enhancement program sponsored by the Board of Regents before commencing course work in the following term. Carla Denise Edwards maintains a 3.85 GPA out of a possible 4.0 GPA in her studies. She has won the College of Liberal Arts and Sciences Pre- Dissertation Award, the Graduate Student Teaching Award, and the Graduate Student Paper Award within her department. Information concerning Carla Denise Edwards' background in education is found in Intervenor's Exhibit No. 3. As a sociologist, Carla Denise Edwards explained her belief in the need for diversity in her discipline when dealing with the study of social groups and social organization and the importance of student diversity in her graduate program. Background: State of Florida/Office of Civil Rights (OCR) Consistent with Title VI of the Civil Rights Act of 1964, the State of Florida has committed itself to equal access and equal opportunity to all its citizens who pursue public higher education. Over time, these commitments have been formalized through agreements between the State of Florida and the Federal Government. To this end, a plan was established in February 1978, entitled Florida's Commitment to Equal Access and Equal Opportunity in Public Higher Education. This plan represented the agreement between the State of Florida and the United States Department of Health, Education, and Welfare, Office for Civil Rights. This commitment was in the interest of continuing efforts by the State of Florida to overcome the effects of past segregation in public higher education and to put in place an integrated and unitary system of higher education. The commitment included the provision of adequate opportunities and necessary support services to assist African- American students in addressing their educational needs and achieving their educational goals. (Petitioners' Exhibit No. 37) The State of Florida completed a higher education desegregation plan for the years 1978-1985, but its efforts of providing equal access to higher education continue to be the subject of an agreement between the State of Florida and the United States Department of Education, Office for Civil Rights (OCR). The present basis for OCR action is Title VI of the Civil Rights Act of 1964. As well, OCR has pursued its role in accordance with the decision in U.S. vs. Fordice, U.S. 112 S. Ct. 2727 (1992). The State of Florida and OCR entered into a partnership agreement in the interest of providing higher educational opportunities for minorities in the state in relation to access, enrollment, retention, and graduation of minority students. A document was prepared in 1998 entitled "Partnership Report and Commitments" describing the progress and future expectations in arrangements between the State of Florida and OCR. (Petitioners' Exhibit No. 2 and Respondents' Exhibit No. 8). This document in describing access for first-time-in- college (FTIC) enrollment, indicated that admission standards, in addition to considering an applicant's academic ability, might also consider creativity, talent, and character. It went on to state that there was an on-going goal to establish diversity in the composition of student population in public post-secondary institutions. It addressed the commitment to pursing alternative means for admitting students to the SUS, aside from the regular admissions process. In particular, it addressed admissions based upon persons having a satisfactory high school record and who had submitted appropriate evidence that the student could be expected to succeed academically once admitted to the university. Alternative means of admissions were described in the report as pertaining to persons who do not meet regular requirements for admission but who have important attributes or special talents, and who in the judgment of a faculty committee could be expected to succeed in performing academic work. The 1998 Report and Statement of Commitment also addressed limited access programs within the SUS. The discussion concerning those programs described how SUS policy required universities to develop Equal Opportunity Impact Studies to make certain that minorities and females are not negatively affected when limited access programs are established or modified. According to the report, in the event that negative impact is anticipated universities are expected to develop a corrective action plan. The 1998 Report and Statement of Commitment discussed access to graduate programs, recognizing the decentralized nature of those programs and the resulting variation in admissions criteria. The report described how students who did not meet stated criteria may be subject to admission as an exception under alternative admissions criteria when supported by faculty in the admissions request. The report described outreach to recruit minorities and the availability for financial incentives in recruiting minority students. The report gave examples of these pursuits. The future commitment under the 1998 partnership statement spoke of monitoring the SUS efforts on access and enrollment issues for minority students and, as needed, enhancement of outreach to increase enrollment of African- American and Hispanic students to reduce disparities in comparing the enrollment of those students to that of the majority. A future commitment was made to use of alternative admissions criteria to broaden the opportunities of students, to include minorities who attend the SUS. The partners stated the commitment to continue in efforts at retention and graduation of minority students. The 1998 Partnership Report and Commitments was made effective on July 16, 1998 by the Honorable Richard W. Reilly, Secretary of the United States Department of Education, following execution by Florida Governor Lawton Chiles on June 11, 1998. In 1999, the State of Florida and OCR prepared a "Partnership Agreement Interim Report" disseminated on December 29, 1999. (Respondents' Exhibit No. 69) The Civil Rights Partnership Agreement Interim Report was prepared in anticipation that Secretary Reilly and Florida Governor Jeb Bush would be apprised. The 1999 Interim Report made reference to the expectation that the commitments made in the 1998 agreement would be concluded in 2003. The 1999 Interim Report in its executive summary described the One Florida Initiative and the Equity in Education Plan component. The plan was explained in the report to include: The elimination of race, national origin, and sex in public university admission decisions; guarantee of admission to a public university to the 'Talented 20,' the top 20 percent of students in every Florida high school senior class who have completed 19 required credits; a $20 million increase in need-based financial aid; proposed funding to make the Preliminary Scholastic Achievement Tests available to all 10- graders to prepare them to test better in the 11th grade on the Scholastic Achievement Tests; increased availability of Advanced Placement classes at low performing secondary schools; a new partnership with the College Board to improve preparation for students in low-performing high schools; and, the creation of a Task Force to make recommendations of how to eliminate inequities within the K-12 education system. Those aspirations coincide with the Governor's Equity in Education Plan goals to be explained. The 1999 Interim Report included summary tables addressing ongoing commitments by the SUS. A table identified the anticipated change by the proposed rule amendments concerning alternative admissions criteria, proposed Rule 6C- 6.003(3)(c), by the process referred to as "Academic Profile Assessment," with a 10 percent limitation on FTIC admissions. A summary table also addressed access for minority graduate students, in relation to changes anticipated with the Governor's One Florida Initiative through the education component known as the "Equity in Education Plan." It was anticipated that each university would be held accountable for providing access to minority graduate students. SUS Existing Admission/Enrollment The SUS prepared a Fact Book for 1997-98. Among other statistics, Table 18 discusses a student headcount by part- time/full-time students for the fall 1997 in relation to gender, race, and level. The reference to level pertains to placement within the academic hierarchy. The statistics reflect aggregate student numbers in the SUS and numbers for the ten universities. More discreet demographic information is provided in the tables within the Fact Book concerning students and academic programs. (Petitioners' Exhibit No. 40 and Respondents' Exhibit No. 54) As revealed at Table 18, in the fall of 1997, 112,430 females were enrolled, and 96,848 males were enrolled in the SUS. Of these numbers 27,692 were African-American students; 28,555 were Hispanic students; 8,042 were Asian students; 717 were American Indian/Alaska native; and 130,566 were referred to as white. Other information was prepared by the SUS concerning headcount/enrollment by ethnic origin/race from the fall of 1990 to the fall of 1999. It provides SUS totals and totals concerning the various universities. It reflects percentages of enrollment by ethnic origin/race. Within the overall SUS, the fall of 1990, 9.64 percent of students enrolled in the SUS were African-American. In the fall of 1999, 14.02 percent of the students enrolled in the SUS were African-American. In the fall of 1990, 9.53 percent of the students enrolled in the SUS were Hispanic. In the fall of 1999, 14.23 percent of the students enrolled in the SUS were Hispanic. In the fall of 1990, 22.01 percent of all students enrolled in the SUS were described as minority. In the fall of 1999, 32.78 percent of all students enrolled in the SUS were described as minority. In the fall of 1990, 74.07 percent of all students enrolled in the SUS were described as white. In the fall of 1999, 62.40 percent of all students enrolled in the SUS were described as white. A further comparison shows that in the fall of 1990, 7.00 percent of the students enrolled at the University of North Florida were African-American. In the fall of 1999, 9.71 percent of the students enrolled at that university were African-American. In the fall of 1990, 2.35 percent of the students enrolled at the University of North Florida were Hispanic. In the fall of 1999, 3.58 percent of the students enrolled at that university were Hispanic. In the fall of 1990, 12.99 percent of the students enrolled were described as minority at the University of North Florida. In the fall of 1999, 18.49 percent of the students enrolled at the University of North Florida were described as minority. In the fall of 1990, 6.91 percent of the students enrolled at Florida State University were described as African- American. In the fall of 1999, 12.23 percent of the students enrolled at Florida State University were described as African- American. In the fall of 1990, 3.95 percent of the students enrolled at that university were described as Hispanic. In the fall of 1999, 7.19 percent of the students enrolled at that university were described as Hispanic. In describing overall minorities in the fall of 1990, 12.59 percent of students enrolled at Florida State University were in that category. In the fall of 1999, 22.32 percent of the students enrolled at that university were described as minority. (Respondents' Exhibit No. 21) In another report prepared by the Board of Regents, comparing the circumstances in 1994-95 to those in 1980-81, and at times in between, in 1994-95, men represented 46 percent of the total enrollment, a 4.8 percent decrease over the years. Women represented 54 percent of total enrollment in 1994-95, a 5.01 percent increase over the years. Whites represented 68 percent of total enrollment in 1994-95, a 12.2 percent decrease over the years. African-Americans represented 12.0 percent of total enrollment in 1994-95, a 2.6 percent increase over the years. Hispanics represented 12.4 percent of total enrollment in 1994-95, a 6.9 percent increase over the years. Asian and Pacific Islanders represented 3.7 percent of total enrollment in 1994-95, a 2.6 percent increase over the years. American Indians and Alaska Natives represented a 0.3 percent of total enrollment in 1994-95, a 0.1 percent increase over the years. (Petitioners' Exhibit No. 42). Statistics have been maintained in the SUS in relation to the overall system and the respective universities concerning alternative admissions. One document compares the experience of students regularly admitted and students admitted alternatively. On the subject of retention and graduation it shows that students regularly admitted tend to be retained and to graduate sooner and in higher numbers by percentage measurement. For example, the four-year retention rate for regular admissions in the 1989 cohort was 76.9 percent for regular admissions and 61.7 percent for alternative admissions. The four-year graduation rate for that cohort was 28.4 percent for regular admissions and 9.5 percent for alternative admissions. The six-year graduation rate for that cohort was 63.1 percent for regular admissions and 38.0 percent for alternative admissions. (Respondents' Exhibit No. 19) A more complete data set was described in a November 1998 report prepared by the SUS concerning alternative admissions to the SUS. It presents information commencing in the 1989-90 academic year and succeeding academic years through the 1997-98 reporting period. This report describes the reason why alternative admissions were necessary. (Petitioners' Exhibit No. 36) The report shows that in 1989-90, 14.5 percent of student admissions in the SUS were alternative admissions. In 1990-91, 15.3 percent of student admissions in the SUS were alternative admissions. The lowest number of alternative admissions in the data set was for 1992-93. In that year 11.9 percent were alternative admissions. In 1997-98 12.7 percent were alternative admissions. The November 1998 alternative admissions report for the academic year 1997-98 reflects the total of alternative admissions as 53.5 percent female and 46.5 percent male. That is as compared to the overall admissions to the SUS which was 56.4 percent female and 43.6 percent male. According to the November 1998 SUS report on alternative admissions, 61.4 percent of all admissions were non- minority and 38.6 percent were minority in the academic year 1997-98. Limited to alternative admissions, 33.3 percent were non-minorities and 66.7 percent were minorities. The description of non-minorities is in relation to "only white, non-Hispanic." The minorities referred to were described as African-Americans, Hispanics, Asian or Pacific Islanders, American Indians or Alaska natives, and non-resident aliens. In the academic year 1998-99 the number of alternative admissions to the SUS had fallen to 11.7 percent, the lowest number yet reported. In that reporting period 31.77 percent of the alternative admissions, representing 1,039 of the 27,977 overall students admitted to the SUS, were premised upon "diversity" as the alternative criterion for admission. This is contrasted with alternative admissions criteria described in the chart as fine arts, athlete, returning or non-traditional student (including veterans and military), recommendation, institutional mission, direct appeal, unique exception based on potential, first generation college student, non-exception and other. All universities within the SUS, save Florida Agricultural and Mechanical University (FAMU), had alternative admissions in the reporting period based upon diversity. Most alternative admissions for FAMU were related to the criterion described as "institutional mission," which constituted 27.86 percent of the overall alternative admissions in the SUS, totaling 911 students. (Petitioners' Exhibit No. 12) FAMU in its institutional alternative admissions practices, under Code "G," identified the criterion "institutional mission" as one basis for deciding admissions. The form used by FAMU notes that Code "G" constitutes "compliance with 1998 State of Florida agreement with the US Office of Civil Rights." (Petitioners' Exhibit No. 30) Another SUS report reflects that in the academic year 1997-98 in the SUS, 4,398 African-Americans were regularly admitted and 1,513 African-Americans were alternatively admitted. In that same year 3,446 Hispanics were regularly admitted and 451 Hispanics were alternatively admitted. In that year 15,094 students were regularly admitted as whites and 1,041 whites were alternatively admitted. This same report shows information in relation to academic year 1993-94 and intervening academic years leading to the academic year 1997-98. (Respondents' Exhibit No. 7) The SUS Limited Access Monitoring Report 1999 pertains to all limited access programs for the respective universities in the system. The report describes minimum admission standards and the reasons why the programs need limited access designation, based upon lack of resources, proficiency requirements for students, or accreditation requirements. This report does not reflect information about student applications, admissions, or enrollment. (Respondents' Exhibit No. 62) The Fact Book 1997-98, Table 23, reflects the academic degree programs' inventory for programs approved by the Board of Regents as of November 1998, to include an indication of the limited access programs for the respective universities. The degree programs are reported in major categories and sub- categories. Academic programs are further discussed in Table 27 in relation to the SUS and respective universities, in somewhat different terms. Table 27 sets out student headcount by race and sex for fall 1997. It cannot be ascertained from a reading of Table 23 and Table 27 the number of males and females and persons by race who participate in a discrete limited access program. The Fact Book 1997-98 reflects in Tables 30, 31, 32, and 33 baccalaureate degrees, master's degrees, doctoral degrees, and first professional degrees by academic discipline, with a report of numbers and percentages for race and sex. The depiction of gender numbers breaks those numbers down into categories of white, African-Americans, Hispanics, and others. The others refer to Asian or Pacific Islanders, American Indians, and Alaska Natives. The percentage factors describe the percentage of total degrees granted for females, African- Americans, and Hispanics. The data that has been referred to gives a glimpse of information on student demographics leading to the proposed amendments to the rules. University Rules: Non-discriminatory Practices Various universities in the SUS have rules in place which are designed to protect against discrimination in student admissions and/or to promote diversity in the student population. Rule 6C1-1.006, Florida Administrative Code, (Petitioners' Exhibit No. 43), a rule promulgated by the University of Florida states: 6C1-1.006 Non-Discriminatory Policy. The university shall actively promote equal opportunity policies and practices conforming to laws against discrimination. The University is committed to non- discrimination with respect to race, creed, color, religion, age, disability, sex, marital status, national origin, political opinions or affiliations, and veteran status as protected under the Vietnam Era Veterans' Readjustment Assistance Act. This commitment applies in all areas to students, faculty, administrative and Professional staff and Career Service personnel. The University realizes that it must continue to intensify its concern and devote itself to the elimination of conditions from which discrimination spring. In this respect the University accepts the responsibility for solving problems related to these matters. Accordingly, the University will continue to search for the most appropriate ways and means to provide an effective and enduring contribution to the improvement of these relationships. See 6C-5.103, Florida Administrative Code. (Emphasis supplied) Rule 6C3-2.015, Florida Administrative Code, (Petitioners' Exhibit No. 44), refers to the admissions at FAMU where it states: Admissions in general (a) Admission of students to Florida Agricultural and Mechanical University (FAMU) is within the jurisdiction of the University and subject to standards promulgated by the Board of Regents. In all admissions the University will give attention to the need to satisfy equal opportunity/affirmative action goals. (See 6C-6.002(3), Florida Administrative Code.) (Emphasis supplied) Rule 6C5-2.001, Florida Administrative Code (Petitioners' Exhibit No. 45), refers to the admissions requirements at Florida Atlantic University where it states: Florida Atlantic University (FAU) encourages applications from qualified applicants and is committed to non- discrimination regardless of race, creed, color, sex, ethnic origin, age or physical handicap. . . . * * * (2)(a) If the number of qualified applicants exceeds the number that the University is permitted to enroll admissions will be on selective basis. The selection process may include such factors as grades, test scores, educational objectives, class rank, pattern of courses completed, school recommendations, personal recommendations, and personal records. Priorities for admission will be as outlined in Rule 6C5- 2.004, Enrollment Priorities and Limitations. In addition, maximum numbers of credit hours allowed may be limited. Application of these criteria to prospective students will be made in such a way as to avoid reducing the proportion of minority students. Waiver of admission criteria up to the maximum allowed by the Board of Regents may be utilized for minority students. FAU is committed to realizing the goals established under the Equal Opportunity Plan of Florida (See Section 110.112, F.S. re Affirmative Action). (Emphasis supplied) Rule 6C7-2.001, Florida Administrative Code (Petitioners' Exhibit No. 46), refers to admissions requirements for the University of Central Florida where it states: Admissions (a) Admission of Students to UCF is within the jurisdiction of the University, but subject to the minimum standards adopted by the Board of Regents. (See 6C-6.001 FAC) In all admission activity, the University will give attention to the need to satisfy equal opportunity affirmative action goals. (Emphasis supplied) Rule 6C9-1.0025, Florida Administrative Code (Petitioners' Exhibit No. 47), refers to equal opportunity and affirmative action at the University of North Florida, where it states: Equal Opportunity -- The University will actively promote equal opportunity policies and practices which conform to all laws against discrimination and is committed to non-discrimination with respect to race, religion, age, political affiliation, handicap, sex, marital status, national origin and veteran status as protected under the Vietnam Era Veterans' Readjustment Assistance Act. This commitment applies in all areas with students, faculty, Administrative and Professional staff and Career Service personnel. This policy also applies to the University's procedures for the selection of contractors, suppliers of goods and services and to the use of University facilities. Affirmative Action in the Recruitment of Students, Faculty and Other Personnel -- The University is committed to the equalization of educational and employment opportunities by encouraging applications for qualified applicants of all cultural, racial, religious, and ethnic groups. The University shall issue an annual report on the status of the Affirmative Action Plan to the Board of Regents. (Emphasis supplied) University Admissions Policies (Diversity) The proof in this case provides examples concerning the manner in which universities actively pursue diversity in admissions policies. The law schools at the University of Florida and Florida State University consider race as a factor in admissions decisions. The Florida State University College of Law through its Bylaws, revised June 3, 1997, states its admissions standards at I.B.5.c.(14). to include an "applicant's contribution to a diverse academic environment in terms of race . . . ethnic background . . . ." This criterion is considered among numerous other criteria in deciding the outcome. Moreover, in Appendix II to the Statement of Admissions Requirements Florida State University, the College of Law Bylaws refer to "The Faculty Statement on Diversity" as follows: Diversity is essential to the mission and values of educational institutions. The bylaws of the Association of American Law Schools (AALS) require that member schools "seek to have a faculty, staff, and student body which are diverse with respect to race, color and sex." The purpose of such diversity is "to create an educational community that incorporates the different perspectives necessary to a more comprehensive understanding of the law and its impact on society" and "to produce a legal profession prepared to meet the needs of American society." Thus, the College of Law has a compelling interest in seeking actively to ensure a diverse student body. * * * Therefore, the recruitment and admission of persons from different racial and ethnic backgrounds is [sic] appropriate to enrich legal education and to make the learning experience more vibrant for both majority and minority students. (Petitioners' Exhibit No. 13) In the past Florida State University in considering admissions for undergraduate enrollment had assigned a plus (+) for applicants who were racial or ethnic minorities, specifically in the categories of African-American and Hispanic. Commencing with the classes for summer and fall of 2000, the university plan was to replace the race and ethnic plus (+) policy with consideration of socio/economic circumstances of applicants and other considerations such as fee waiver eligibility for minority admissions. As reported, in the summer of 1999, 89 African-American and 133 Hispanic students were admitted to the university. In the fall of 1999, 527 African- American and 557 Hispanic students were admitted to the university. By contrast for the summer of 2000, 177 African- American and 164 Hispanic students have been admitted. For the fall of 2000, 582 African-American and 570 Hispanic students have been admitted to the university. These are comparisons of information known at the end of January 2000 to the year before. In his remarks prepared February 2, 2000, Lawrence Abele, the Florida State University Provost commented that departments within the university responsible for graduate admissions had not changed anything in relation to the use of race as a factor for graduate admissions procedures for the summer or fall of 2000. According to Provost Abele, gender and national origin have not been used in the university admissions process. (Respondents' Exhibit No. 59) Minutes pertaining to the October 20, 1999, Florida State University Admissions Committee for undergraduate studies indicate the continuing practice to provide a plus (+) for minority status in admissions. The November 19, 1999, minutes for that committee show a change in policy removing the plus (+) indicator for race. The December 15, 1999 minutes for the committee indicated that applications and acceptances for all race and ethnic categories for fall and summer of 2000 had increased compared to 1999. The above changes in admissions policies of Florida State University anticipate the changes to admissions practices under the proposed rules. David R. Colburn, Provost of the University of Florida, prepared a memorandum on the removal of race and ethnicity as considerations in admissions practices for "summer B" and fall classes of 1999 at the university. (Petitioners' Exhibit No. 59) The memorandum stated: Attached is the review of this year's freshman class that was conducted by our Admissions Office. Where is says "Summer 99" that, of course, is the number we admitted and the number who enrolled. Where it says "Summer 00" that indicates the number who would have been admitted and the number who would have likely enrolled if race and ethnicity were removed as factors. The standard for the summer to be admitted to UF was 3.80; for the fall 4.20. We admitted in our freshmen classes every minority student who was in the top 20 and who applied to UF. Minority Admits with and without ethnic considerations African American Hispanic American Indian Admits Enrolls Admits Enrolls Admits Enrolls Summer 99 783 400 484 302 20 15 *Summer 99 134 87 258 144 8 7 Fall 99 546 211 1008 407 35 20 *Fall 99 329 117 847 348 24 4 Total 99 1329 611 1492 709 55 35 Total 00 11@ 463 204* 1105 492# 32 *56 African-Americans who were admitted for fall in '99 would not be admitted for fall '00 would be offered summer. If all enrolled, our total freshman African-American enrollment for academic year 2000 could reach as high as 260. #53 Hispanics who were admitted for fall '99 would not be admitted in fall '00 would be offered summer. If all enrolled out total freshman American Indian enrollment for academic year 2000 could reach as high as 545. @3 American Indians who were admitted for fall '99 would not be admitted in fall '00 would be offered summer. If all enrolled our total freshman American Indian enrollment for academic year 2000 could reach as high as 14. This memorandum demonstrates a considerable reduction in minority admissions and prospective enrollment for the academic year 2000 in the scenario portrayed when removing race and ethnic considerations. The FTIC admissions policy for the University of North Florida dated August 1998, sets forth enrollment goals for the university. (Respondents' Exhibit No. 82) It details the basis for admissions. It notes "no exceptions to the UNF admission policy will be made without approval from the Faculty Admissions Committee, the Provost and/or the Assistant Provost. No student who requires English and/or Reading remediation will be admitted. A minimum of 20 SAT I Verbal or 16 ACT Reading and English score are required." No mention is made concerning use of admission factors related to race or gender. The University of North Florida has instituted programs to assist students within the region served by the University who come from low socio-economic backgrounds. The intent is to allow those families to learn about access and opportunities for attending the University of North Florida or other universities and colleges. A pamphlet describes those pre-college programs. Through this outreach minority students, in particular African Americans, are encouraged to pursue formal education. (Respondents' Exhibit No. 84) Highlights of some of the programs described are as follows: UNF/Duval County Public School System Junior Horizons Program: This program is offered in local high schools which serve primarily students from low socio-economic families. All junior-level students are provided with "Countdown to College" information including the college prep high school courses and standardized tests required for admission, information about selecting a college, and paying for college. Over 1,200 students participate in this program each year. UNF and Duval/Clay County Public School System Minority Recognition Program: This annual event hosted by UNF recognizes outstanding minority students in 11th grade. Approximately 800 students are recognized each year. William Raines High School-Alliance for Education: Project Hope is a joint business partnership among UNF, Raines High School, and 20 Jacksonville businesses. These businesses provide career awareness programs and parent information sessions, student mentoring, and academic assistance. UNF/Duval County Public School SAT Preparation Programs: Free after-school SAT prep programs are offered at schools primarily economically disadvantaged students and in regional community centers. Since its inception in 1992, this program has served over 700 students. UNF/African-American Church SAT Programs: Since 1994, six churches have offered test prep programs with over 600 students participating. All churches reported that students benefited from these programs. Bethel Baptist Institutional Church and St. Paul A.M.E. are currently participating in this program. Pathways Program: The Pathways Scholarship Program primarily targets minority economically disadvantaged students (approximately ten million dollars in funding). Specific scholarship programs target the following high schools: William M. Raines, Andrew Jackson, Paxon School for Advanced Studies, Robert E. Lee, and Ribault. The David and Hicks Scholarship targets students living in Section 8, Habijax, and public and federal assisted housing projects. UNF currently has approximately 100 students receiving scholarships through this program. INROAD/UNF Sponsored Summer Overnight college Experience Program: Approximately 130 high school minority students spend four nights and five days on the campus of UNF. The program includes SAT preparation, college planning, and leadership training. These programs are designed to assist minorities in preparing to attend universities or colleges, without rewarding minority status when reviewing applications for admission to the University of North Florida. Assistance is given to minorities in college preparation. Special recognition is not provided when determining admissions. A chart was prepared which reflects ethnicity at the University of North Florida in the fall of 1989 compared to the fall of 1999. (Respondents' Exhibit No. 83) It depicts the following: Fall 1989 Fall 1999 White 87.3% 79.7% Black 6.9% 9.9%* Hispanic 2.0% 3.5%* Asian/ Pacific Islander 2.7% 4.8%* American Indian Alaskan Native .2% .3% Other .8% 1.8% *Total Minority 12.0% 18.6% 112. In promulgating the proposed amendments to the rules, the Board of Regents took into account the experience by the University of North Florida in its outreach and recruitment of minorities to attend the university, while disallowing special consideration in admissions decisions as a means to promote participation by minorities in formal education in the SUS. Against the background of specific policies in admissions pursued by the universities that have been described, together with data compiled by the SUS, and other sources, the Board of Regents has undertaken proposed amendments to Rules 6C- 6.001, 6C-6.002, and 6C-6.003, Florida Administrative Code. It removes "preferences" in the admissions process for applicants to the universities on the basis of race, national origin, or sex. The proposed amendments promote other approaches which the Board of Regents contends will continue "to advance opportunities for minorities and women" to receive formal education in the SUS. The Proposed Amendments: The Process On November 9, 1999, Governor Jeb Bush issued Executive Order No. 99-281 (Respondents' Exhibit No. 1), in which he declared: WHEREAS, the Florida Constitution provides that all natural persons, females and male alike, are equal before the law and that no person shall be deprived of any right because of race or national origin; and WHEREAS, Florida's government has a solemn obligation to respect and affirm these principles in its policies relating to employment, education and contracting; and WHEREAS, the use of racial and gender set- asides, preferences and quotas is generally inconsistent with the obligation of government to treat all individuals as equals without respect to race or gender; and WHEREAS, the use of racial and gender set- asides, preferences and quotas is considered divisive and unfair by the vast majority of Floridians, produces few, if any, long-term benefits for the intended beneficiaries, and is of questionable legality; and WHEREAS, the laudable goal of increasing diversity in Florida's government and institutions of Higher Education, and in the allocation of state contracts, can and should be realized without the use of racial and gender set-asides, preferences and quotas; and WHEREAS, the obligation of Florida's government to root out vestiges of discrimination can and should likewise be accomplished without resort to remedies involving the use of racial and gender set- asides, preferences and quotas. The Governor went on to make known his intentions through Section 1: Non-discrimination in Government Employment, Section 2: Non-discrimination in State Contracting and Section 3: Non-discrimination in Higher Education. Relevant to this cause Section 3: Non-discrimination in Higher Education stated: It is the policy of my Administration to support equal educational opportunities for all qualified Floridians, to prohibit discrimination in education because of race, gender, creed, color or national origin, and to promote the full realization of equal educational opportunities throughout the State. I hereby request that the Board of Regents implement a policy prohibiting the use of racial or gender set-asides, preferences or quotas in admissions to all Florida institutions of Higher Education, effective immediately. The Office of Policy and Budget is hereby ordered to develop an implementation strategy for all other aspects of my Equity in Education Plan by December 31, 1999. (Emphasis supplied) Given this charge the Board of Regents pursued a course leading to the proposed rules amendments in controversy. On November 9, 1999, Governor Bush in furtherance of the "One Florida Initiative" contemplated in the Executive Order released a document entitled, "Governor Bush's Equity in Education Plan." (Respondents' Exhibit No. 2) The plan describes efforts at expanding opportunities for students in low-performing secondary schools through: the implementation of the A+ Plan making the PSAT test available to all tenth graders establishment of a partnership with the College Board increasing availability in advanced placement courses targeting utilization of Florida's On-Line High School creation of post-secondary "opportunity alliances" a mentoring initiative, and the creation of an Equity in Education Opportunity Task Force. Details concerning the assistance to be provided the secondary school students is set forth in Respondents' Exhibit No. 2. Most relevant to this inquiry, the Governor's Equity in Education Plan contained an element setting forth the means for expanding diversity in state universities without race or ethnic-based preferences wherein it stated: Eliminate Race and Ethnicity as a Factor in Admissions Decisions. Florida's SUS is committed to diversity. However, diversity can be achieved without having to make race or ethnicity a factor in admissions decisions. State universities now rely on other race-neutral socio-economic factors in admissions decisions that can be indicative of race or ethnicity - factors such as income level, geography, special talents and whether an applicant is a first generation college student. Utilizing these factors without regard to race or ethnicity, Florida universities can continue to achieve the level of diversity desired, while providing a legally sound statewide policy of admissions. The Talented 20 Percent: In a further effort to bolster diversity - and to replace race and ethnic-based admissions policies with achievement-based admissions policies - Florida will create the Talented 20 program. This initiative will guarantee admissions to one of our state universities to the Top 20% of each graduating public high school class in Florida without regard to SAT or ACT scores, and boost need-based financial aid by 43% - a $20 million increase. By casting this broad net, students attending low performing schools or schools with heavy minority enrollment will see their chances for admissions improve, and Florida's commitment to diversity will continue. As a result of the Talented 20 program, approximately 1,200 additional minority high school graduates will be given the opportunity to attend a state university. We already know that 410 of these minority students are qualified now by virtue of completing the required college preparatory curriculum. The remaining 800 will be admitted if they can complete missing threshold credits prior to admission. We will not penalize high performers who might not otherwise qualify for university admissions because they attend low performing schools. The Board of Regents placed Governor Bush's Equity in Education Plan on its meeting agenda for November 18 and 19, 1999, for discussion. At this session Dr. Adam W. Herbert, SUS Chancellor, explained steps necessary to facilitate the Board's implementation of the Governor's education initiative. Dr. Herbert indicated that at a subsequent meeting the Board would have before it the proposed amendments to admissions rules designed to implement the Governor's program. Dr. Herbert explained that he intended to set forth key elements of the program to give further guidance to the Board staff. (Respondents' Exhibit No. 33) Board of Regents' Chairman Thomas F. Petway, III, acknowledged members of the public in attendance at the November 18 and 19, 1999 meeting and the Board's willingness to hear from those persons concerning the Governor's initiative calling for elimination of race and ethnicity as factors in admissions decisions. In particular, State Representative Denise Lee and State Senator Betty Holzendorf were recognized. Senator Holzendorf addressed the Board concerning her sentiments on issues of race as a factor in university admissions. She cautioned the Board of Regents against acting too quickly. Messrs. Jose Gonzalez and Jose Amaro who represented the University of Florida Hispanic Student Association spoke to the Board of Regents on this occasion, asking that the Board table consideration of the admissions issue pending the opportunity for students to see its impact. Others who addressed the Board of Regents on this occasion were Mr. Thane Gordon, a pre-med student at the University of Florida; Ms. Jennifer Lin, representing the U.F. Student Association; Mr. Cornelius Minor, II, president of FAMU's student government; Mr. Dev Gilrose, a student at the University of Florida; Ms. Kim Fedele, president of the student government of Florida State University; Mr. David Jarvic, Club Creole at the University of Florida; Mr. Gil Sanchez, University of Florida graduate; Mr. Issiah Rumlin, Jacksonville NAACP; Mr. Brent Gordon, president of student government of the University of Florida; and Ms. Jocelyn Moore, vice-president of student government of the University of Florida. United States Representative Corrine Brown addressed the Board of Regents at the November 1999 meeting. Representative Brown was concerned about the influence of the Governor's Executive Order related to the compliance agreement between the State of Florida and OCR previously described in these facts. She urged the Board of Regents to slow down the process concerning changes in the admissions policies. Representative Brown noted that she was joined in her remarks by United States Representatives Carrie Meek and Alcee Hastings. At the November 1999 meeting State of Florida Education Commissioner Tom Gallagher, as member of the Board of Regents, addressed the Board of Regents stating that the issue before the Board of Regents was to instruct the Chancellor and staff to work on expanding diversity. Regent McLin spoke to the need for more opportunity for input. Regent Henriques also addressed the need for further study. Chairman Petway then recognized Dr. Herbert for more extensive remarks. Those remarks are reported in the appendix to the index of minutes for the Board of Regents' meetings on November 18 and 19, 1999. They highlight the Governor's Plan calling for changes in admissions policies of the Board of Regents for undergraduate, graduate, and professional students. (Respondents' Exhibit No. 33) Commissioner Gallagher moved the Board of Regents to approve measures to: Support Governor Bush's 'One Florida' education initiatives of the 'Talented 20' Program and the elimination of race and ethnicity as a factor in admissions decisions. Authorize Chancellor Herbert and his staff to work collaboratively with the universities to: Modify a System and University Admissions standards consistent with the Governor's 'One Florida' initiative; Modify BOR and University rules which guide universities in their admissions policies and practices; Modify the SUS enrollment plan to accommodate additional students; Amend the Legislative Budget Request to incorporate additional lower level FTE; and Make other changes if necessary to be in compliance with the Governor's policy. The motion was seconded and eventually the Gallagher motion was approved as amended by Chairman Petway adding the phrase "action would be subject to final approval of the Board." During this session the Board of Regents entered into extensive discussion concerning changes to Board policy for university admissions. This discussion is reflected in Board of Regents' minutes for the November 18 and 19, 1999 meeting, pages 32 through 38. (Respondents' Exhibit No. 33) On December 9, 1999, a meeting was held between Dr. Herbert and the Council of University Presidents to discuss the "Talented 20" aspect of the Governor's Education Initiative. (Respondents' Exhibit No. 47) This discussion was supported by information available to the council members to include preliminary text to the proposed amendments to Rules 6C-6.001, 6C-6.002, and 6C-6.003. (Respondents' Exhibit No. 48) The Board of Regents met December 10, 1999, and considered the Governor's "One Florida" initiative pertaining to university admissions criteria. Extensive support and documentation on this subject provided the Regents for their meeting are reflected in appendices to the amended agenda. Included for consideration was the Executive Order 99-281, the Equity in Education Plan, data on distribution of FTIC students by ethnicity, high school enrollment projections, analysis of public high school graduates, graduates from low-performing schools, preliminary report of "Talented 20" (top 20 percent) Implementation Task Force, graduate and professional admissions, OCR correspondence, and a draft of proposed amendments to Rules 6C-6.001, 6C-6.002, and 6C-6.003. (Respondents' Exhibit No. 34) At the meeting Chancellor Herbert described the documentation as a series of data and related materials to be considered by the Board of Regents in formulating admissions criteria to implement the Governor's plan. (Respondents' Exhibit No. 38) During the December 10, 1999 meeting Mary-Anne Bestebreurtje, Corporate Secretary and Associate General Counsel for the Board of Regents, made a presentation concerning the rule promulgation process. She indicated that the Regents were to treat the session as a workshop to afford Board of Regents members the opportunity to "wordsmith" changes to the rule. The intent was for the rules amendments to be presented to the Board of Regents in a further session allowing comment and discussion by the public on January 21, 2000. At the December 1999 session Debi Gallay, Associate Vice Chancellor, Planning and Policy Analysis, described components of the "One Florida" initiative to include the end to racial preferences in admissions to the universities and the guarantee of admissions to students graduating in the top 20 percent of their respective school classes without regard for test scores, taken to mean SAT or ACT scores. Ms. Gallay reviewed materials in the agenda. Chancellor Herbert introduced Dr. Lynda Lewis, Assistant Provost at the University of North Florida, to the Board. Dr. Lewis headed the task force for implementation of the "Talented 20" Program, part of the process for ascertaining the best approaches for admitting the top 20 percent FTIC students. Dr. Lewis reported on task force activities in relation to the process engaged in by the Board of Regents in considering amendments to admissions rules for freshmen. Representatives from the universities also attended the December 1999 meeting, to include some university presidents. These officials were allowed to enter into the discussion conducted by Board of Regents members and presenters. The particulars concerning the December 10, 1999 meeting to consider the "One Florida" initiative in relation to university admissions policies are found at pages 4 through 14 in the index of the minutes. (Respondents' Exhibit No. 38) In a related process, discussion of admissions pertaining to the "Talented 20" Program took place as agendaed for the January 11, 2000 meeting of the SUS Council of Academic Vice Presidents. (Respondents' Exhibit No. 49) On February 17 and 18, 2000, the Board of Regents met to consider proposed amendments to Rules 6C-6.001, 6C-6.002, and 6C-6.003, Florida Administrative Code. Following discussion and public comment, the Board of Regents voted in favor of amendments to the rules. The remarks of persons who testified at the meeting and discussion by Board of Regents members were reflected in the index of minutes at pages 21 through 33. Although not invited to be intricately involved in the rule development, representatives from NAACP and Now addressed the Board of Regents at its February 17th and 18th session. (Respondents' Exhibit No. 40) Persons who testified at this session included Congresswoman Corrine Brown, members of the Florida Legislature, and state university presidents. Details of the proposed amendments were discussed in this session and changes were made to the final text. On February 22, 2000, the Board of Education met, discussed and approved the proposed amendments offered by the Board of Regents to Rules 6C-6.001, 6C-6.002, and 6C-6.003, Florida Administrative Code. (Respondents' Exhibit No. 42) Before the vote was taken legislators, regents, educators, and others addressed the Board of Education. The Board of Education session approving the proposed amendments was transcribed. (Respondents' Exhibit No. 44) The Board of Regents' rule development within the SUS is a collaborative effort involving the Council of Academic Vice Presidents, comprised of Chief Academic Officers within the ten SUS institutions; the Council Presidents, comprised of the presidents of the SUS institutions; the Board of Regents and its staff; and ultimately the Board of Education. In promulgating the proposed rules amendments that collaborative process was carried out. The Rules: Proposed Amendments 6C-6.001 Admissions. Based on minimum standards adopted by the Board, through rule, the uUniversities shall establish the criteria by rule for the admission of students. In the admission of students, the universities shall take into consideration the applicant's academic ability, and may also consider creativity, talent, and character. If determined not to be in the best interest of the university to deny admission to admit an applicant because of past misconduct, the university may do so. The Board affirms its commitment to equal educational opportunity and to increasing student diversity in each of the state universities. (4)(3) Applicants denied admission shall be given notice of denial within a reasonable period of time following the decision. Upon the applicant's written request, the university shall provide the reasons for the rejection in writing. (5)(4) Each student accepted for admission shall, prior to registration, submit on a form, provided by the institution, a medical history signed by the student. Documentation of appropriate immunization for measles and rubella is required. Proof of immunization must be provided. This shall be a minimum requirement, and institutions may require in addition such other evidence of examination as they may determine necessary. Where physician examinations or certificates are required, they must be signed by a doctor of medicine or a doctor of osteopathy. The universities reserve the right to refuse registration to any student whose health record or report of medical examination indicates the existence of a condition which may be harmful to members of the university community. (6)(5) The universities may return to the applicant without action any application and fees received after the closing date for applications designated by each institution in its official calendar. (7)(6) False or fraudulent statements - In addition to any other penalties which may be imposed an individual may be denied admission or further registration, and the universities may invalidate college credit for work done by a student at an SUS institution and invalidate the degree based upon such credit if it finds that the applicant has made false or fraudulent or incomplete statements in his application, residence affidavit, or accompanying documents or statements in connection with, or supplemental to, his application for admission to, or graduation from one of the SUS institutions. (8)(7) Students may be required to have immunizations and to have undergone diagnostic procedures prior to registration. (9)(8) Each university shall provide registration opportunities for admitted transfer students that allow these students access to high demand courses comparable to that provided to native students. (10)(9) Each university shall provide orientation programs for first-time-in- college and transfer students. (11)(10) Enrollment limitations--The Board shall establish a plan for the enrollment of the SUS, consistent with the Strategic Master Plan. The Board shall recommend each budget cycle to the Legislature an enrollment plan in which each university's future State University System FTE enrollment shall be specified by level. The Board will establish an assigned FTE enrollment plan limit for each university for each fiscal period. This assigned FTE enrollment plan limit will be based upon the enrollment plan described in (a) and upon the funding decisions of the Legislature. This assigned FTE enrollment limit will constitute the maximum enrollment within five percent for that fiscal period. If actual student credit hours productivity exceeds funded enrollment, course enrollment in subsequent terms shall be controlled by the university and may be reduced by limiting admission of new students, limiting course loads of enrolled students and/or other measures as may be necessary to stay within funded enrollment levels. Each university shall establish, by rule, procedures and criteria to manage limit enrollments to meet to be within five percent (above and below) of planned enrollment established pursuant to (b) above. These rules shall not be inconsistent with Board rules. Programs at the University of Florida and the University of South Florida in the Health Centers receive separate appropriations from the Legislature; therefore, students enrolled in such programs will be excluded from the above enrollment limitations. Upper level programs registered as limited access programs with the Board and the Articulation Coordinating Committee (competitive admission due to limited space or other resources, or due to higher standards) and rules limiting enrollment as provided in (c) above shall observe the following guidelines in the selection of students for the spaces available in the program: There will be a documented justification for the program to be classified as limited access. This documentation should be submitted by the university requesting limited access to the Board for review and approval at least 6 months prior to the start of limiting access to the program. Annually, each university will reevaluate the need to continue to classify the program as limited access. The university will report to the Board by October 1 of each year a list of all limited access programs, the minimum admissions standards for each program, the reasons the program is designated as limited access, and a copy of the most recent review demonstrating the need for retention of limited access status. An annual report shall include for each limited access program the following categories, by race and gender: the number of applicants, the number of applicants granted admission, the number of applicants who are granted admission and enroll, the number of applicants denied admissions, and the number of applicants neither granted admission nor denied admission (no action taken). Each category shall be reported by type of student, including the following subcategories: native students (students who started at the university as first-time- in-college students with less than 12 semester hours of transfer credit), community college Associate in Arts degree transfer students, and all other students. Each category and subcategory shall further be reported according to the number of students who meet the minimum eligibility requirements for admission to the program and the number of students who do not meet the minimum eligibility requirements for admission to the program. Programs assigned limited access status will be reviewed by the Board in the course of its cyclical systemwide program review process. All criteria shall be approved by the Board and registered with the Articulation Coordinating Committee prior to implementation. Any criteria used to select students shall not discriminate against community college transfers with Associate in Arts degrees from Florida public community colleges in favor of SUS students who are applying for admission or plan to continue enrollment after the completion of 60 semester credits at the lower division level. Any criteria used to select students shall be appropriate indicators of academic ability, creativity or talent to perform required work within the program and of the potential for success. Any criteria used shall be publicized in catalogues, counseling manuals, and other appropriate publications in accordance with Rule 6A-10.024(14)(13), FAC, with sufficient time for prospective students to adjust programs to meet criteria. Where necessary to achieve established equal access enrollment goals, up to ten percent of the students may be admitted to a limited access program with different criteria. 6.7. Each university shall advise students who meet the minimum requirements for admission to the upper division of a state university, but are denied admission to limited access programs, of the availability of similar programs at other SUS institutions and the admissions requirements of such programs. 7.8. Associate in Arts degree graduates from Florida community colleges and university students who have successfully completed 60 or more credit hours of course work and met the requirements of Section 240.107, Florida Statutes, shall receive priority over out-of-state students for admission to limited access programs. The Board may declare certain degree programs as limited access programs, upon request by a university. In the case of programs for which prerequisite courses are required for admission, the prerequisites, and grades for the prerequisite courses determined acceptable by the program, by themselves, will not cause a program to be declared limited access. That is, if all the applicants completing the prerequisite courses, with any specified grade requirement, are admitted to the program, the program need not be designated a limited access program. Associate of Arts graduates from Florida public community colleges and universities who have not completed prerequisite courses for a given major shall be admitted to a university in order to complete those prerequisite courses, after which program admission can be determined. University degree programs may be declared as limited access programs for the following reasons: The number of students who have met all the requirements for admission to the university and to the program is in excess of available resources (examples are: space, equipment or other instructional facilities; clinical facilities; adequate faculty to meet acceptable student-faculty ratios; fiscal or other resource limitations). In the case of such programs, selection for admissions shall be competitive. The selection criteria shall be determined by the program, recognizing that the standards applied to the criteria may vary from term to term depending on the number of student spaces available and the quality of the applicant pool. The selection criteria shall be published in the university catalogue along with the standards used for admissions decisions at the time the catalogue is published. The program is of such a nature (normally in the fine or performing arts) that applicants must demonstrate through an audition or submission of a portfolio that they already have the minimum skills necessary for them to benefit from the program. The program is of such a nature that in order to demonstrate potential for success in the program, applicants must attain a grade point average (GPA) and/or other standard (e.g. standardized test scores) that are above those required for admission to the university offering the program. Note: teacher preparation programs are mandated by Section 240.529, F.S., to maintain certain admission requirements, and, therefore, will be classified and reported as limited access programs only if enrollment is limited for reasons (e.g. limited resources) that exceed statutory requirements. Teacher preparation programs will be monitored for compliance with requirements of Subsection 240.529(3), F.S., through a report which is separate from the limited access reports. When the institution has exceeded its upper-level FTE enrollment limit as assigned by the Legislature by more than five percent, programs which have not normally been designated as limited access programs may need to limit enrollment. If the institution's actual student credit hour productivity exceeds the institution's funded enrollment to this extent, the institution may take corrective actions in subsequent terms such as limiting admission of new students into upper level programs, limiting course loads of enrolled students and/or other measures as may be necessary to stay within funded enrollment levels. Florida community college Associate in Arts graduates and university students who have successfully completed 60 credit hours of course work and met the requirements of Section 240.107, Florida Statutes, shall receive priority for admission to such limited access programs over out-of-state and transfer students from private institutions. Specific Authority 240.209(1)(3)(r) F.S. Law Implemented 240.209(1)(3)(s), (4)(5)(a), 240.227(8), 240.233, 240.2097, 240.529, 240.271, F.S. History Formerly 6C-2.41, 11-18-70, Amended and Renumbered 12-17-74, Amended 1-6-76, 7- 13-77, 3-21-82, 12-13-83, 8-11-85, Formerly 6C-6.01, Amended 8-31-86, 4-9-87, 1-7-91, 9-15-91, 11-27-95, 8-12-96, . 6C-6.002 Entering Freshmen. Normally a diploma from a Florida public or regionally accredited high school, from an accredited out-of-state high school or if foreign, its equivalent, or a diploma pursuant to Section 229.814, Florida Statutes, shall be required for admission of beginning freshman students to a state university. Students admitted under acceleration mechanisms in accordance with Rule 6C-6.006 are exempted from this requirement. Students applying for admission will submit test scores from the Scholastic Assessment Test of the College Entrance Examination Board or from the American College Testing program. Students may be considered eligible for admission to any of the state universities in one each of the following three alternative ways, except as provided in subsection (4) below: A student applying for admission who has a satisfactory high school record, including at least a "B" average (3.0 on a 4.0 scale) in the required high school academic units normally offered in grades 9 through 12, and who submits other appropriate evidence that the student can be expected to carry out successful academic progress in the university, is academically eligible for admission to any of the universities. In computing the high school grade point average for purposes of admission to a state university, additional weights will be assigned to grades in Honors, International Baccalaureate, and Advanced Placement courses. The high school academic unit requirements are as follows: English1 4 Math 2 3 Natural Science3 3 Social Science4 3 Foreign Language5 2 Additional Academic Electives from the Above Five Subject Areas 4 TOTAL 19 1 Three of which must have included substantial writing requirements. 2 At the Algebra I and above levels. 3 Two of which must have included substantial laboratory requirements. 4 Includes: History, Civics, Political Science, Economics, Sociology, Psychology and Geography. 5 Both credits must be in the same language. (For the purposes of this admissions requirement, American sign language will be accepted in place of a foreign language). An alternative method for students to demonstrate equivalent foreign language competence by examination to meet admissions requirements is described in Rule 6C-6.004(1)(c). A student applying for admission who has less than a "B" average in the required academic units described in (a) above, must present a combination of high school GPA and admission test scores as indicated on the list below. Academic eligibility for admission will be determined according to the following Admissions Scale: If the High School GPA the SAT/Recentered SAT I*/ACT in the required academic Score must equal or exceed courses equals any entry the corresponding entry in the in this column, appropriate column below. Recentered GPA SAT SAT* ACT 2.0 1,050 1140 25 2.1 1,020 1110 24 2.2 990 1090 23 2.3 960 1060 22 2.4 930 1030 22 2.5 900 1010 21 2.6 890 1000 21 2.7 880 990 21 2.8 870 980 20 2.9 860 970 20 *SAT taken after March 1995 A student applying for admission who does not meet these requirements may be eligible for admission through a student profile assessment which considers additional factors, including but not limited to, the following: family educational background, socioeconomic status, graduate of a low performing high school, international baccalaureate program graduate, geographic location and special talents. These additional factors shall not include preferences in the admissions process for applicants on the basis of race, national origin or sex. The student bring to a university other important attributes or special talents and may be admitted if, in the judgment of an appropriate faculty committee, it is determined from appropriate evidence that the student can be expected to do successful academic work as defined by the institution to which the student applies. The number of first time in college students admitted through profile assessment at each university is determined by the Board: the system is limited each year to ten percent of the total system first-time-in-college-students. Changes in the portion of a university's entering freshmen admitted under this alternative, based upon a university validation study with a 50 percent probability of success in the first year, may be approved by the Board. However, the annual number of applicants enrolled at a university under profile assessment this alternative without the equivalent of two high school credits in foreign language must not exceed 5 percent of the total number of freshmen (students who had not completed their first year of college or university) who entered the university the prior year. Upon request by the president, the Board may approve a one year increase in a university's 5 percent limitation as long as the SUS as a whole maintains the 5 percent limit. Any freshman student admitted without meeting the foreign language requirement must earn 8 to 10 semester hours in a foreign language or American sign language, or demonstrate equivalent competence in either a foreign language as described in Rule 6C-6.004(1)(c) prior to completing 60 credit hours at the state university. The university will provide an individual learning plan for each student enrolled who does not meet the normal admissions requirements listed in Rules 6C-6.002(1) and 6C-6.002(3). The Board will review and will submit annual follow=up reports of the success of those students admitted under the profile assessment process. this alternative for Board review. In determining eligibility for admission, a university will provide for reasonable substitution for any requirement or high school unit distribution requirement for any student with a disability, as prescribed in Rule 6C-6.018. A student applying for admission who is participating in a non-traditional program must present credentials equivalent to those described in Rule 6C-6.002(3) as judged by the individual SUS institution to which the student has applied. A student whose educational program is not measured in Carnegie Units must present a test score of at least 1010 on the recentered SAT I, or the equivalent on the ACT, or the SAT taken prior to April, 1995. A student applying for admission who is a graduate of a public Florida high school, has completed nineteen required high school units as listed in Rule 6C-6.002(3)(a) and who ranks in the top 20% of his/her high school graduating class shall be admitted to a university in the SUS. The SUS will use class rank as determined by the Florida Department of Education. The Board reaffirms its Equal Educational Opportunity (EEO) commitments. Universities may utilize the above alternative admission methods to increase the enrollment of a diverse student body. The universities have the authority to adopt and promulgate rules which have the effect of increasing the standards for eligibility for admission, as listed in alternatives (3)(a) and (b) above, or to provide additional criteria in making admissions decisions. Changes to these institutional rules will be reviewed annually by the Board prior to September 1. Neither SUS nor individual university admissions criteria shall include preferences in the admissions process for applicants on the basis of race, national origin or sex. Specific Authority 240.209(1),(3)(r) F.S. Law Implemented 240.209(1), (4)(5)(a). 240.227(8), 240.115(4), 240.152, 240.233, 232.246 F.S. History - Formerly 6C-2.42, 11-18-70, Amended 5-27-74, Amended and Renumbered 12- 17-74, Amended 6-25-80, 3-21-82, 4-16-84, Formerly 6C-6.02, Amended 4-14-86, 4-20-87, 10-19-88, 1-23-90, 1-7-91, 9-15-91, 8-4-92, 5-17-95, 11-27-95, . 6C-6.003 Entering or Transferring Graduate Students and Post-baccalaureate Professional Students. Each applicant to a graduate degree program or to a post-baccalaureate professional program shall be required to meet minimum systemwide requirements. Each applicant to a graduate degree program or to a post-baccalaureate professional program must have a bachelor's degree or equivalent from a regionally accredited institution and meet at least one of the following criteria: Earned a "B" average or better in all work attempted while registered as an upper division student working for a baccalaureate degree, or A total Quantitative-Verbal Graduate Record Examination score of 1000 or higher or an equivalent score on an equivalent measure approved by the Board, or A graduate degree from a regionally accredited institution. Each applicant to a graduate program or a post-baccalaureate professional program shall be required to present his/her score on the Aptitude Test of the Graduate Record Examination, or an equivalent score on an equivalent measure approved by the Board. The university may waive this requirement in individual cases. Applicants denied admission shall be given notice of denial within a reasonable period of time following the decision. Upon the applicant's written request, the university shall provide the reasons for the rejection in writing. Applicants denied admission who meet the minimum systemwide standards may request reconsideration by written request to the university within thirty days of the date of denial. The request shall contain reasons why reconsideration is warranted. Each university shall establish the method for reconsideration by rule. The Board encourages each university to impose more restrictive admission requirements than the above established for post-baccalaureate programs. Effective for Fall of 2001 admissions, these requirements shall not include preferences in the admissions process for applicants on the basis of race, national origin or sex. These criteria shall be published, and the university catalog shall give notice where copies of such criteria may be obtained. In any academic year, up to 10 percent of the graduate students may be admitted as exceptions to these criteria. The university may develop criteria for students admitted as exceptions. Students who do not meet the systemwide criteria and who wish to enroll in courses but not degree programs at the post- baccalaureate level may enroll under the classification of special post-baccalaureate non-degree students. Universities wishing to admit special post-baccalaureate non- degree students to graduate degree programs after the students have satisfactorily completed a specified number of credits may do so provided that the number so admitted is included as part of the 10 percent exception, as defined in (6) above. Specific Authority 240.209(1),(3)(m), 240.233 F.S. Law Implemented 240.209(1),(3)(m) (4)(5)(a), 240.227(8), 240.233 F.S. History - Formerly 6C-2.43, 11-18-70, Amended 11-20-70, Amended and Renumbered 12-17-74, Amended 1-24-77, 2-28- 78, 10-17-78, 8-11-85, Formerly 6C- 6.03, . Challenged Provisions The Petitioners and the Intervenor challenge the portions of the proposed rules identified below. The proposed repeal of Rule 6C-6.001(10)(e)6 which states: Where necessary to achieve established equal access enrollment goals, up to ten percent of the students may be admitted to a limited access program with different criteria. The proposed addition to Rule 6C-6.002(3)(c) that states: These additional factors shall not include preferences in the admissions process for applicants on the basis of race. The proposed addition to Rule 6C-6.002(3)(c) that states: The number of first time in college students admitted through profile assessment at each university is determined by the Board; the system is limited each year to ten percent of the total system first-time-in college students. The proposed addition of a new Rule 6C- 6.002(5) that states: A student applying for admission who is a graduate of a public Florida high school, has completed nineteen (19) required high school units as listed in Rule 6C- 6.002(3)(a) and who ranks in the top 20% of his/her high school graduating class shall be admitted to a university in the SUS. The SUS will use class rank as determined by the Florida Department of Education. The proposed repeal of existing Rule 6C-6.002(5) that states: The Board reaffirms its Equal Educational Opportunity (EEO) commitments. Universities may utilize the above alternative admission methods to increase the enrollment of a diverse student body. The proposed addition of Rule 6C-6.002(7) that states: Neither State University System nor individual university admissions criteria shall include preferences in the admission process for applicants on the basis of race, national origin or sex. The addition to Rule 6C-6.003(5) that states: Effective for Fall, 2001 admissions, these requirements shall not include preferences in the admission process for applicants on the basis of race, national origin, or sex. Support and Rationale Early on, John Lee Winn, Coordinator for Education Policy, and Budget, Executive Office of the Governor, was involved in the "One Florida Initiative" related to education, as it pertains to the proposed rules on admissions. He looked at experiences in the states of California, Washington, and Texas where admissions policies had changed by virtue of voter ballot initiatives or court decision prohibiting consideration of race in admission decisions for applicants to public universities. The experiences in those states were examined to determine if similar changes in admissions practices in those jurisdictions in response to the prohibitions would be feasible in Florida. Mr. Winn also examined Florida Department of Education data concerning high school graduates, high school course work, GPAs for those students, the availability of college preparatory course work in Florida high schools, together with SUS admissions policies and practices. The data Mr. Winn reviewed for the other states concerned enrollment in the state university systems. In particular, Mr. Winn examined information concerning the "Talented 10" in Texas that allows the top 10 percent of students in Texas high schools to be accepted in Texas public universities with emphasis on the opportunities for minority students to be enrolled under that program. Mr. Winn was not alone in looking at the experiences in the other states. Additional persons who had input in the Florida effort to change admissions policies were involved. The information gathered from other states was through conversation with persons in those jurisdictions as well as exposure to data. This data collection and analysis took place in August, September, and October 1999. After the "One Florida Initiative" was announced on November 9, 1999, Mr. Winn and others continued to examine data from other places. (Respondents' Exhibit No. 13) In performing his analysis Mr. Winn was also cognizant of court actions in Georgia and Michigan concerning admissions issues in universities. Ultimately, Mr. Winn in the interest of the Governor, was concerned that Florida not experience the reductions in minority student enrollment in Florida's public universities that had occurred in the state university systems in California and Texas following voter ballot initiative and court decision respectively. The Texas court case is in reference to the University of Texas Law School, in Austin, Texas. The court disallowed the consideration of race in admissions decisions at the law school in Hopwood v. State of Texas, 78 F.3d 932 (5th Cir. 1996). The California voter initiative calling for race-blind admissions policies in the university system was in accordance with Proposition 209. Mr. Winn was also pursuing research concerning changes to the admissions policies for the Florida universities knowing that a ballot initiative in Florida was being attempted as a constitutional amendment that would influence admissions policies in the SUS. In trying to determine the existing use of race and gender in the SUS admissions process, Mr. Winn relied upon research by the Board of Regents staff. Mr. Winn looked into the experience at the University of North Florida when Chancellor Herbert served as the President of the institution. At that time, the approach described in the facts was promoted in which minority outreach and recruitment before deciding on admissions were emphasized. Race was not considered in admissions decisions. Mr. Winn, through information provided by the Board of Regents staff, determined that race was being considered in the admissions process, although not specifically required by rule of the Board of Regents or individual university rule. Nonetheless, as exemplified in the university rules referred to in the fact-finding, some university rules allow some consideration of race in admissions practices in promoting diversity in the student body at those universities. In addition, Rules 6C-6.001(10)(e)6, and 6C-6.002(5), Florida Administrative Code, as they currently exist, contemplate promotion of diversity. Mr. Winn in his research was unable to discover the Florida Statutes which specifically required the use of race or gender in the admissions process. The term Mr. Winn used to describe his research on the use of race or gender in the admissions process was "race or gender preferences." In his research, Mr. Winn, similar to the fact- finding here, discovered that universities were pursuing "non- rule policy" that took into account race or gender in admissions decisions. Mr. Winn pointed to attempts to improve the performance in the K-12 public school system, in particular for students in low-performing schools, as constituting the long- term solution for establishing diversity in higher education. This refers to the goals in the Governor's Equity in Education Plan. Mr. Winn found that typically the demographic characteristics in low-performing high schools in Florida, D and F schools, show that 70 percent of the student body in those schools were minority students. Information on the racial and ethnic composition of low-performing high schools in Florida is maintained by the Department of Education. (Respondents' Exhibit No. 16) Mr. Winn perceived a relationship between expanding opportunities in the low-performing schools as described in the Equity in Education Plan and changes to Board of Regents' admissions policies in the SUS. Mr. Winn in explaining the policy choice to implement the "Talented 20" program described the expectation that the number of students in D and F schools who would attend the SUS would increase from previous levels. A graph illustrates the previous experience taken from the Readiness For College, 1997- 1998 Florida Department of Education report. (Respondents' Exhibit No. 15) That exhibit shows the percentage of students in the 1997-1998 reporting period from D and F schools attending the SUS is much lower than 20 percent, closer to 10 percent. Mr. Winn identified attempts that would accompany implementation of the "Talented 20" program to provide need- based state financial aid. Mr. Winn made mention of previously existing financial aid programs such as Bright Futures and Federal Pell Grants as means to assist students admitted under the "Talented 20" program. Mr. Winn identified assumptions that with the advent of the "Talented 20" program, 400 minority students who did not meet regular admissions criteria could be admitted, with another prospective 1,200 admissions subject to the latter group's taking one or two courses to make them eligible. In his research, Mr. Winn became aware of the difference in graduation rates between students regularly admitted and those admitted by alternative means. Proposed changes to the alternative admissions Rule 6C-6.6002(3)(c), Florida Administrative Code, contemplate additional factors not articulated before, which Mr. Winn, from the policy perspective, cited as being indicators of the ability of students to perform in the university. Mr. Winn described the proposed 10 percent limitation of persons admitted under the alternative admissions provisions in Rule 6C-6.002(3)(c) as justified by the reduction in need for alternative admissions due to increases brought about through the "Talented 20" program, a new admissions program. There was also the concern that a number of universities within the system had high numbers of alternative admissions as a means to bolster enrollment. This occurrence was in a setting wherein the Legislature was concerned about the policy of admitting students who were not being successful in their academic endeavors. Mr. Winn described the policy explanation for postponing until the fall of 2001 proposed amendment to Rule 6C- 6.003, prohibiting "preferences in the admissions process for applicants on the basis of race, national origin, or sex." The postponement was needed to allow more study to be done in those programs at the graduate and post-baccalaureate professional level to "increase diversity in graduate programs," as Mr. Winn explains it. Ultimately Mr. Winn was persuaded that the experience of Chancellor Herbert, while president of the University of North Florida, is a predictor of the ability to promote diversity through the "One Florida" plan, including the rules amendments, without race as a factor. Mr. Winn described the lack of consideration of race in admissions at the same time Dr. Herbert embarked on an active recruitment and outreach effort, mentoring, financial need matching, and privately matched scholarships to bring about diversity. Leading to the promulgation of proposed amendments to the rules, Mr. Winn discussed pending changes to the admissions rules two or three times a week with the Board of Regents. Dr. George Russell Perkins, Board of Regents Director of Research and Policy Analysis, was charged with analyzing data from the Florida Department of Education to ascertain the impact of the "Talented 20" program. The data he analyzed also included information from the SUS. (Respondents' Exhibit No. 31) The process Dr. Perkins engaged in was one in which a student's unweighted GPA formed the basis for the analysis. Contrary to these assumptions, the Board of Regents anticipates resort to both weighted and unweighted GPA ranking, depending upon the school district, in applying proposed Rule 6C-6.002(5), Florida Administrative Code. That is, some school districts report weighted GPAs and some report only unweighted GPAs. Class rank under the proposed rule will be determined by the Department of Education in relation to the "Talented 20" program by taking the results of school district systems for ranking. Dr. Perkins recognizes this distinction and the possibility that weighted GPAs might change the relative ranking of students within a school, in the school districts where weighted GPA would be assigned in determining the eligibility for participation in the "Talented 20" program. An unweighted system for assigning GPA counts all the units earned regardless of the subject matter and the rigors of the courses. The weighted systems take into account the relative rigor of classes taken in assigning GPA. Weighted systems give a grade received in the college-preparatory curriculum greater value when compared to a less rigorous curriculum. In performing his analysis Dr. Perkins referred to data on all completers in public high schools in the academic year 1997-1998. This included 95,958 standard diplomas, 2,729 special education diplomas, and 1,541 GED diplomas. These students were tracked in accordance with admissions applications to the SUS for the Summer term 1998, Fall 1998, Spring 1999, and Fall 1999. Having in mind proposed Rule 6C-6.002(5), Dr. Perkins sought to hypothetically identify high school students graduating in the academic year 1997-1998, who would have benefited from the "Talented 20" program admissions opportunity. In addition to determining class rank, the analysis made by Dr. Perkins depended upon a student's complying with the 19 required high school academic units as specifically set forth in Rule 6C- 6.002(3)(a), Florida Administrative Code. That meant that additional academic electives must have been completed in the five specific subject areas identified in the rule. From the information gathered and considered Dr. Perkins created tables to depict the hypothetical influence of the "Talented 20" program in creating admissions opportunities. Tables 1 through 15 (Respondents' Exhibit No. 34, Appendix H). The tables below reflect the following: Table 1 Ethnicity Distribution of All Completers1 Public High School Graduates, 1997-98 Unweighted Ethnicity Completers Percent GPA African-Amer 21,325 21.28% 2.44 Asian 2,764 2.76% 3.06 Hispanic 14,409 14.38% 2.56 Native Indian 197 0.20% 2.84 Not Reported 190 0.19% 2.80 White 61,343 61.20% 2.81 Total 100,228 100.00% 2.70 1 Includes 95,958 standard, 2,729 special education and 1,541 GED diplomas Table 2 Ethnicity Distribution of All Completers Who Had 19 Required Academic Credits Unweighted Ethnicity Completers Percent GPA African-Amer 9,152 15.85% 2.73 Asian 2,065 3.58% 3.19 Hispanic 5,838 10.11% 2.87 Native Indian 127 0.22% 3.04 Not Reported 128 0.22% 3.01 White 40,445 70.03% 3.04 Total 57,755 100.00% 2.98 Table 3 Percentage of All Completers Who Had 19 Required Academic Credits Ethnicity Percent African-Amer 42.92% Asian 74.71% Hispanic 40.52% Native Indian 64.47% Not Reported 67.37% White 65.93% Total 57.62% Table 4 Ethnicity Distribution of Top Twenty Percent Who Did Not Have the 19 Required Academic Credits Unweighted Ethnicity Completers Percent GPA African-Amer 793 21.28% 2.98 Asian 152 4.08% 3.44 Hispanic 998 26.78% 3.20 Native Indian 9 0.24% 3.30 Not Reported 7 0.19% 3.06 White 1,768 47.44% 3.12 Total 3,727 100.00% 3.12 Table 5 Ethnicity Distribution of Top Twenty Percent Who Had the 19 Required Academic Credits1 Unweighted Ethnicity Completers Percent GPA African-Amer 1,525 9.41% 3.36 Asian 970 5.99% 3.61 Hispanic 1,557 9.61% 3.46 Native Indian 39 0.24% 3.59 Not Reported 44 0.27% 3.57 White 12,071 74.48% 3.59 Total 16,206 100.00% 3.56 1Includes 16,201 standard, 2 special education and 3 GED diplomas. Table 6 Ethnicity distribution of top Twenty Percent Who Had 19 Required Academic Credits OR Students Who Had at Least 2.9 GPA Over All Courses And Who Had 19 Required Academic Credits Unweighted Ethnicity Completers Percent GPA African-Amer 3,341 10.13% 3.21 Asian 1,494 4.53 3.45 Hispanic 2,848 8.63% 3.30 Native Indian 83 0.25% 3.35 Not Reported 81 0.25% 3.37 White 25,142 76.21% 3.36 Total 32,989 100.00% 3.34 Table 7 Unweighted GPA Distribution of Top Twenty Percent Who Had 19 Required Academic Credits Unweighted GPA Cumulative Range Number Percent Number Percent ========================================================= 4.0 517 3.19% 517 3.19% 3.90 - 3.99 1,187 7.32% 1,704 10.51% 3.80 - 3.89 1,515 9.35% 3,219 19.86% 3.70 - 3.79 1,812 11.18% 5,031 31.04% 3.60 - 3.69 2,296 14.17% 7,327 45.21% 3.50 - 3.59 2,598 16.03% 9,925 61.24% 3.40 - 3.49 2,221 13.70% 12,146 74.95% 3.30 - 3.39 1,732 10.69% 13,878 85.63% 3.20 - 3.29 1,082 6.68% 14,960 92.31% 3.10 - 3.19 610 3.76% 15,570 96.08% 3.00 - 3.09 356 2.20% 15,926 98.27% 2.90 - 2.99 160 0.99% 16,086 99.26% 2.90 120 0.74% 16,206 100.00% Note: This table is based on the GPA earned on all high school credits as opposed to the GPA on the 19 required credits as specified in the Board of Regents admissions rule. Data on the GPA on the required 19 credits were not immediately available. Table 8 Ethnicity Distribution of Top Twenty Percent Who Had 19 Required Academic credits Who Applied to an SUS Institution Unweighted Ethnicity Completers Percent GPA African-Amer 1,130 10.16% 3.38 Asian 752 6.76% 3.63 Hispanic 1,027 9.23% 3.48 Native Indian 25 0.22% 3.67 Not Reported 29 0.26% 3.61 White 8,163 73.37% 3.62 Total 11,126 100.00% 3.58 Table 9 Ethnicity Distribution of Top Twenty Percent Who Had 19 Required Academic Credits But Did Not apply to an SUS Institution Unweighted Ethnicity Completers Percent GPA African-Amer 395 7.78% 3.28 Asian 218 4.29% 3.56 Hispanic 530 10.43% 3.42 Native Indian 14 0.28% 3.45 Not Reported 15 0.30% 3.51 White 3,908 76.93% 3.54 Total 5,080 100.00% 3.51 Table 10 Ethnicity Distribution of Top Twenty Percent Who Had 19 Required Academic Credits Who applied to an SUS Institution Ethnicity And Completers Were Accepted Percent Unweighted GPA African-Amer 1,022 10.90% 3.38 Asian 631 6.73% 3.62 Hispanic 908 9.68% 3.46 Native Indian 21 0.22% 3.66 Not Reported 24 0.26% 3.58 White 6,773 72.21% 3.61 Total 9,379 100.00% 3.57 Table 11 Ethnicity Distribution of Top Twenty Percent Who Had 19 Required Academic Credits Who Applied to an SUS Institution And Registered for Classes Unweighted Ethnicity Completers Percent GPA African-Amer 843 10.62% 3.38 Asian 506 6.38% 3.60 Hispanic 709 8.93% 3.47 Native Indian 19 0.24% 3.65 Not Reported 22 0.28% 3.56 White 5,838 73.55% 3.61 Total 7,937 100.00% 3.57 Table 12 Ethnicity Distribution of Top Twenty Percent Who Had 19 Required Academic Credits Percentage of Those Who Applied Who Were Accepted Ethnicity Accepted_ Percentage African-Amer 1,022 90.44% Asian 631 83.91% Hispanic 908 88.41% Native Indian 21 84.00% Not Reported 24 82.76% White 6,773 82.97% Total 9,379 84.30% Table 13 Ethnicity Distribution of Top Twenty Percent Who had 19 Required Academic Credits Percentage of Those Who Were Accepted Who Subsequently Registered for Classes Ethnicity Enrolled Percentage African-Amer 843 82.49% Asian 506 80.19% Hispanic 709 78.08% Native Indian 19 90.48% Not Reported 22 91.67% White 5,838 86.20% Total 7,937 84.63% Table 14 Ethnicity Distribution of Top Twenty Percent Who had 19 Required Academic Credits Who Applied to an SUS Institution Were Accepted, Enrolled and Required Remediation Ethnicity Completers Percent of Total Unweighted of Enrolled GPA African-Amer 105 50.24% 12.46% 3.22 Asian 16 7.66% 3.16% 3.42 Hispanic 34 16.27% 4.80% 3.35 Native Indian 0 0.00% 0.00% N/A Not Reported 2 0.96% 9.09% 3.30 White 52 24.88% 0.89% 3.41 Total 209 100.00% 2.63% 3.30 Table 15 Ethnicity Distribution of Top Twenty Percent Who had 19 Required Academic Credits Who Applied to an SUS Institution Were Denied Admission Percent Unweighted Ethnicity Completers of Total of Applicants GPA African-Amer 22 12.57% 1.95% 3.20 Asian 10 5.71% 1.33% 3.47 Hispanic 13 7.43% 1.27% 3.42 Native Indian 0 0.00% 0.00% N/A Not Reported 0 0.00% 0.00% N/A White 130 74.29% 1.59% 3.44 Total 175 100.00% 1.57% 3.41 These tables were an integral part of the materials presented to the Board of Regents for its deliberations in considering the influence of the "Talented 20" program on university admissions. It is significant that the tables reflect not only the hypothetical opportunities for admission in accordance with the "Talented 20" program but indicate the actual experience of students who applied in the relevant periods. With this in mind, Table 8 compared with Table 10 reflects slight increases in the number of minorities, African-Americans and Hispanics, who would be hypothetically entitled to admission under the "Talented 20" program compared to the actual experience of application and acceptance. There would be 108 additional African-Americans and 119 additional Hispanics. Consideration is given to the explanation of increases for those minorities, in that those persons responsible for changes to the admissions policies contemplated by the rules amendments are persuaded that the "Talented 20" program will bring about significant future opportunities for minority admissions in those cohorts. Table 9 reflects 5,080 students in the hypothetical, among those 395 African-Americans and 530 Hispanics who would be entitled to admission under the "Talented 20" program, but who did not apply to the SUS. The reasons for not applying under preexisting admissions procedures were not explained in the hearing record. How many similarly situated students might apply in the future should the proposed amendment creating the "Talented 20" program be allowed is uncertain. As Dr. Perkins describes it, Table 9 reflects the opportunity for the "Talented 20" program to bring additional students into the SUS; however, no attempt has been made to predict how many students might take advantage of the opportunity for admission. Dr. Perkins did establish that the "Talented 20" program would create potential opportunities for students in low performing schools, schools graded D and F, who met requirements for the program to be admitted, assuming compliance with the 19 required academic credits and top 20 percent. Exercising the hypothetical in relation to the 1997-1998 class 1,842 graduates from D and F schools would have the opportunity for admissions under the proposed rule. (Respondents' Exhibit No. 34, I-1) Substantial numbers of those students in D and F schools in that academic year were minorities. Unlike the portrayal of the application process identified in the "Talented 20" program, proposed Rule 6C- 6.002(5), no increases are foreseen in African-American and Hispanic minorities under the "student profile assessment" admissions policy described in proposed Rule 6C-6.002(3)(c). In the latter process the system is limited to 10 percent of total FTIC students. This reflects a reduction in the absolute numbers of alternative admissions by history, most of whom have traditionally been minority admissions. The prohibition against consideration of race and national origin in a setting where race and ethnicity have played a role in alternative admissions, as already described, creates a change in the outcome. The possibility exists that minority groups might suffer further reductions in numbers of minority students admitted pursuant to this rule as a result of competition with all applicants. The effect is tempered in recognition that factors such as family educational background, socio-economic status, and graduate of a low-performing high school, would assist minorities as much, or perhaps more, than others in their application for admission. When Dr. Lewis worked for then-president Herbert at the University of North Florida, she was charged with overseeing enrollment services at the university. She pursued admissions policies at the university consistent with Dr. Herbert's expectations by not referring to race at the point in time when students were admitted. All students were treated the same. The emphasis for increasing diversity was directed to activities prior to the point when a student's application was being considered in competition with other applicants, regardless of race. These pre-collegiate programs associated with outreach and recruitment have been discussed and are basically comparable to the ideas contemplated for the SUS under the Governor's Equity in Education Plan for expanding opportunities for students in low performing schools. Based upon her association with the University of North Florida admissions activities, Dr. Herbert called upon Dr Lewis to chair the "Talented 20" Task Force. Dr. Lewis accepted that responsibility in recognition that the program would be pursued in conjunction with a "profile assessment" method of alternative admissions. The "Talented 20" Task Force formed was constituted of university representatives and representatives from public schools in Florida. University students were invited to be members of the task force. Board of Regents staff, Department of Education staff, and persons from the Florida Community College system were also invited. Within this group were admissions personnel from the universities, guidance personnel from the high schools, and persons responsible for financial aid to benefit university students. Teams were established to consider issues promoted by the "Talented 20" program. Efforts by the "Talented 20" Task Force eventuated in a report of recommendations dated December 8 and 9, 1999. (Respondents' Exhibit No. 70) That report was provided to Chancellor Herbert. It was highlighted by recommendations that identification of the "Talented 20" students be made at the seventh semester in high school, creation of a "Talented 20" office within the Board of Regents to assist in dealing with problems of admissions to the universities under the plan, and calculation of GPA premised upon the ranking process already in place in the school districts. These recommendations were made known to the Board of Regents at its December 9 and 10, 1999 meeting, and were discussed by Dr. Lewis at that meeting, together with an explanation of the function of the "Talented 20" Task Force. As envisioned through the process leading to rule adoption, the proposed "Talented 20" admissions standards do not require SAT and ACT tests. This deletion is perceived by proponents of the program as having the potential to benefit students. According to Dr. Lewis, within her knowledge, recently 86 students in D-rated schools in Jacksonville would be eligible for admissions under the "Talented 20" program, proposed rule 6C-6.002(5), without having taken SAT or ACT tests. Dr. Judith G. Hample, Vice Chancellor for Planning Budgeting and Policy Analysis, Board of Regents had principal responsibility for developing the proposed rules. She was assigned that obligation by Dr. Herbert. The rule development was with the knowledge that universities were considering race and ethnicity as factors in admissions. No such policies were being pursued in relation to gender. No proof at hearing demonstrated that gender was being considered as a factor in either aiding or hindering admissions. Certain data available to Dr. Hample and staff lent credence to the statements by university personnel that race and ethnicity were considered in admissions. Data consisted of the alternative admissions statement from the SUS November 1998. (Petitioners' Exhibit No. 36) The universities reported on their alternative admissions under the preexisting rule. Approximately one-third of those students were described as admitted for reason of "diversity." Diversity was taken by Dr. Hample and her staff to mean consideration for admission based on race or ethnicity, in some cases. Dr. Hample and her staff observed universities reporting that extra points were given for race, such as University of Florida 0.6 points and Florida State one point when considering applications for admissions. In performing her duties, Dr. Hample took her lead from the Governor's Equity in Education Plan, the components for improving the education received by high school students and admissions practices for universities. In the latter category, the two major considerations were first, the prohibition of race, ethnicity, or sex as factors in admissions and second, creation of the "Talented 20" program. The "Talented 20" program allows admission to a university in the SUS without guaranteeing the choice of a particular university. Dr. Hample conducted research on the question of whether there was a requirement that race or gender be considered in admissions practices, not whether those practices were allowed. Given the demographics for minorities and females entering the 1999 fall term in the SUS, approximately 38 percent and 57 precent respectively, Dr. Hample and staff felt that this was a reasonable performance in meeting the educational needs for those groups, and it would be a reasonable and sound educational policy to implement amendments calling for elimination of race, ethnicity, or sex in undergraduate admissions. This conclusion was reached with a view toward the past performance in the State of Florida in which desegregation orders had been entered under federal law to increase the number of minorities and women in the university student population. Dr. Hample and staff wanted to make certain that there was no present evidence of past discrimination that needed to be addressed, as it influenced the rights of minorities and women to receive a public education. In preparing the draft language for the proposed amendments to the rules Dr. Hample was unconvinced, and remains so today, that there are any present effects of past discrimination in the admissions practices of the SUS. Nothing presented in the hearing created a different impression. As Dr. Hample explains, the proposed amendments to Rule 6C-6.0002(3)(c), establishing factors for student "profile assessment" in alternative admissions were not designed solely to capture minorities in the admissions process, although as previously found some factors described in the proposed rule might be especially beneficial to minorities. The 10 percent limitation in alternative admissions under proposed Rule 6C-6.0002(3)(c), had its origins before the Governor announced his Equity in Education Plan, according to Dr. Hample. As she explained, the State of Florida relies on community colleges to educate the majority of students coming out of high schools. Given the expectation that those students will then transfer for their final two years to a four-year college, the Legislature has invested in the two systems, lower division education (community colleges) and upper division education (universities). The Legislature has expressed concern that universities not use alternative admissions as a means to expand their student populations. As Dr. Hample understood, the Legislature was worried that FTIC students were being admitted who did not meet all entrance requirements and had to undergo remediation to succeed in their educational pursuits at the university, students more appropriately placed in community colleges. These concerns and the desire to remove race and gender as a factor in admissions influenced the Board of Regents' decision to limit the number of alternative admissions under the proposed rule. Dr. Hample in drafting the proposed language to the rules amendments did not proceed with the expectation that the changes would affect scholarship awards, outreach programs, enrichment programs, and the like, offered through the SUS. Dr. Hample understands that the university admissions rules as they exist and are intended for amendment involve the process of reviewing a student's application to determine whether the student is accepted or denied admission to the university solely. This is an appropriate reading of the preexisting rules and the proposed amendments. Any assistance or consideration given to prospective applicants for admission to the universities, or students enrolled in the universities, by way of scholarships, outreach programs, recruitment, enrichment programs, financial aid, or similar assistance upon grounds of race, ethnicity, or gender, to promote diversity, is not the subject of the admissions rules as they now exist or would exist with the amendments. Those practices are not at issue in this proceeding. Dr. Hample, who authored the language which prohibits "preferences," interprets that word to mean that universities should not give advantage to one student over another in reviewing a student's application through consideration of race or ethnicity or gender as a factor. The giving of extra points in the evaluation process involved with admissions constitutes such advantage. This interpretation is a reasonable and appropriate reading limited to the admissions process per se. Rule 6C-6.001(10)(e)6, Florida Administrative Code, is subject to repeal. The limited access programs described in that provision are upper level programs. To this point universities have not identified criteria to the Board of Regents for approval which would establish up to 10 percent of admissions to the limited access programs with different criteria in the interest of establishing equal access enrollment goals. Rule 6C-6.0001(10)(e)2, Florida Administrative Code. As Dr. Hample discovered, in practice, some universities were considering race in admissions to limited access programs without the formality of Board approval. Dr. Hample does not view retention of Rule 6C-6.001(10)(e)6 as necessary at present, given the basic opportunity for universities to establish limited criteria, taken to mean under other provisions within Rule 6C-6.001(10)(e), Florida Administrative Code. By her analysis of the data Dr. Hample was persuaded that minorities and women already have sufficient access to limited access programs. How those persons gained access is less apparent. Dr. Hample concedes that there is a link between Rule 6C- 6.001(10)(e)6, Florida Administrative Code, in the establishment of the 10 percent equal access enrollment opportunity under different criteria and the Florida/OCR Partnership Agreement 1998. At page 7, there is a description of the 1983 adoption of a policy to apply a 10 percent admissions exception to the limited access programs to benefit minorities and others in admissions to those programs. (Petitioners' Exhibit No. 2 and Respondents' Exhibit No. 68) Dr. Hample explains that the prohibition against preferences in the admissions process for applicants on the basis of race, national origin, or sex, effective fall of 2001 in proposed rule 6C-6.003(5) was intended to establish consistency for admissions at any level in the SUS. The review that Dr. Hample and her staff performed pointed out that in the graduate and post-baccalaureate professional programs, much attention had been paid to diversity, so much so, that the demographics for minorities in those programs exceeds the demographic breakdown for minorities in the overall state population. In the research Dr. Hample and her staff performed did not have detailed information as to all graduate and professional programs and their respective criteria for admissions. Postponement of the prohibition against consideration of race, national origin, or sex until 2001 recognizes the decentralized nature of those programs at the graduate and professional level, institution-to-institution and within the institution themselves, as to criteria used for admissions decisions and the need to prepare for the change. Dr. Hample points to the belief that the "Talented 20" program, in its terms, does not require SAT or ACT tests to be admitted. In her analysis this is a significant consideration in dealing with students from D and F schools who are not always encouraged to take those tests but would still comply with proposed rule 6C-6.002(5). In preparing proposed amendments to the rules, Dr. Hample discovered that not all universities were requiring compliance with the selection of four electives from the listed subject area within Rule 6C-6.002(3)(a), Florida Administrative Code, when considering student admissions. This dilemma was caused by university admissions offices using information from a high school guidance counseling manual that was less rigorous in establishing the curriculum for high school students compared to the Rule. This led to students being admitted to the universities without rule compliance in the electives, about 60 percent of all students. The problem was addressed when the 10 universities petitioned the Board of Regents for a variance from the requirement in Rule 6C-6.002(3)(a), Florida Administrative Code, for entering freshmen to possess four additional academic electives in the five subject areas. The petition in accordance with Section 120.542, Florida Statues, was submitted on April 11, 2000. (Respondents' Exhibit No. 45) It requested relief from compliance until summer of 2003. On April 21, 2000, an order was entered granting the Petition. (Respondents' Exhibit No. 46) By these arrangements the counseling information could form the basis for compliance with Rule 6C-6.002(3)(a), Florida Administrative Code, with the expectation that counseling information would be modified to reflect the literal requirements in the Rule concerning compliance with electives by students seeking admission for summer of 2003. The variance for the electives changed the expectation in proposed rule 6C-6.002(5), the "Talented 20" program, in that the proposed rule relies upon the requirements in Rule 6C-6.002(3)(a), Florida Administrative Code, pertaining to the four electives. As envisioned by the rule adoption process, until the summer of 2003, students who would be admitted under proposed rule 6C-6.002(5), would receive the same treatment as students admitted under Rule 6C-6.002(3)(a), Florida Administrative Code. OCR AWARENESS From the inception the Board of Regents made OCR aware of the Governor's Executive Order 99-281 and Equity in Education Plan by copies provided on November 10, 1999. This was followed by correspondence on November 23, 1999, from Chancellor Herbert directed to Ms. Norma V. Cantu, Assistant Secretary for Civil Rights, U.S. Department of Education, and Suong Mai Cavalli, Chief Civil Rights Attorney, U.S. Department of Education, explaining the further development of those initiatives through the Chancellor's presentation to the Board of Regents on November 19, 1999. (Respondents' Exhibit No. 135B). On December 7, 1999, a meeting was held between the Board of Regents staff, the Governor's office, and OCR. On January 14, 2000, Gary S. Walker, Director Atlanta Office for Civil Rights, Southern Division, United States Department of Education, wrote Chancellor Herbert to express the preliminary assessment which OCR had concerning the Governor's Executive Order and Equity in Education Plan, with emphasis on the implementation of the "Talented 20" program, profile assessment and graduate and professional admissions contemplated by the proposed amendments to the admissions rules. This preliminary assessment indicated that the Executive Order and Equity in Education Plan could be reconciled with the partnership commitments between Florida and OCR expanding access for minority students to higher education. (Respondents' Exhibit No. 60) On February 18, 2000, Director Walker wrote to Chancellor Herbert commenting on the need to meet to discuss how the State of Florida intended to ensure the goals of the partnership commitments would be met for the undergraduate and graduate level students, with the adoption of the proposed rules changes. (Respondents' Exhibit No. 61) Topics to be discussed in the meeting, among others, would be: 1. The impact of the 19-course credit requirements for college admission on minority students; 2. plans for ensuring access for minority students to the "Flagship Institutions" in Florida; and 3. graduate and professional school admissions. On March 3, 2000, before the meeting was held, Mr. Walker sent correspondence to Ms. Regina E. Sofer, Chairperson, Florida/OCR Partnership Team, State University System of Florida, reference Monitoring- Florida/United State Office for Civil Rights Partnership Commitments Interim Report 1999. (Respondents' Exhibit No. 63A) The March 3, 2000, correspondence from Mr. Walker to Ms. Sofer established a list of subjects to be discussed at the upcoming meeting between Florida officials and OCR officials. Although not exhaustive, the list mentioned the following subjects: How the 19 course credit requirements for college admissions will impact on minority students? How the SUS will ensure access for minority students to the Flagship Institutions in Florida? How will capping the profile assessments student admissions at 10% affect those students who may have been admitted previously under the Alternative Admission standards? How will the SUS seek to maintain an increased minority enrollment in the graduate/professional schools within the SUS? How will the "Talented 20" students be distributed among the SUS institutions? What kinds of information OCR will need concerning the implementation of the new admissions rules in the time table for providing this information. On March 8, 2000, Ms. Sofer wrote to Ms. Cavalli to confirm the upcoming March 2000 meeting to be held between Florida officials and OCR representatives. The subject matter to be considered, according to the correspondence was: 1. the impact of the 19-course credit requirements for college admission on minority students; 2. plans for ensuring access to minority students to the Flagship Institutions in Florida; and graduate and professional school admissions. (Respondents' Exhibit No. 64) The March 2000 meeting between the Board of Regents staff and OCR took place. That meeting was not followed by further written comment from OCR concerning the proposed amendments. Critique Dr. Barbara Newell was recognized as an expert in university admissions and affirmative action. Dr. Newell has had an extensive career as educator and administrator. Dr. Newell served as SUS chancellor in the years 1981-1985. Dr. Newell correctly criticizes the admissions policy in proposed rule 6C-6.002(5), in which the SUS relies upon the Florida Department of Education to determine class rank for participation in the program. She offers her opinion realizing that the Department of Education at the inception intends to rely upon the class-ranking systems in the various school districts which employ weighted and unweighted grading systems. Dr. Newell expressed concerns about the "unevenness, unreasonableness and unfairness" for students between schools, taken to mean between school districts, where a course in physics compared to a course in physical education is a non- equivalent measurement of academic achievement. In her opinion, Dr. Newell thinks that the process should be as transparent as possible when considering the basis for admissions under the "Talented 20" program and that the citizenry expects equitable treatment of people with similar track records, taken to mean measuring student performance under similar grading systems. Program Enrollment By Gender As pointed out by Florida Now, in SUS programs such as mathematics, computer and information sciences, and engineering, a noticeable disparity exists between male and female enrollment. Female numbers at every academic level, bachelor's, master's, and doctoral degree programs reflect this disparity. Substantially more males than females participate in those programs. This is not reflected in the overall experience within the SUS. No proof was offered that the explanation for the disparities in the select programs pointed out by Florida Now is premised upon discrimination in admissions practices that penalizes females. House Bill 1567 Pending a decision in this case the Legislature made significant amendments to Sections 240.209, 240.227, and 240.33, Florida Statutes, when it passed House Bill 1567. That act took effect July 1, 2000. It creates legal consequences for the Board of Regents in adopting the proposed amendments to the rules. It changes the outcome in some of the assumptions made by the Board about the manner in which the proposed amendments would be allowed to function. Its effect is discussed in the conclusions of law.
The Issue The issues in this case are (a) whether Respondent committed fraud in seeking to obtain funds from the McKay Scholarship Program, thereby warranting Petitioner's summary suspension of payments to Respondent; and (b) whether Petitioner should revoke Respondent's participation in the McKay Scholarship program for failing to comply with applicable laws.
Findings Of Fact Respondent Muskateer's Academy, Inc. ("MAI") is a Florida corporation that, at all times relevant to this case, operated a private school known as Muskateer's Academy ("Muskateer's"). MAI was closely held by Erick and Jacqueline Cermeno, a married couple. Together, they ran the school, holding (and sometimes swapping) various titles of importance, such as "principal" and "superintendent," which signified their supervisory roles. Located in Hialeah, Florida, Muskateer's served mainly at-risk students who, for one reason or another, were unable or unlikely to succeed in the public school system. On paper, the school's tuition was quite steep. The undersigned infers, however, that few parents, if any, actually paid the "sticker price" for tuition and other expenses that Respondent reported to the Florida Department of Education ("Department") in its student fee schedules, which charges totaled $24,000 per year, per child. Rather, the undersigned infers that, for most students at least, Respondent agreed to accept as payment in full whatever amount was available annually for a particular student under the John M. McKay Scholarships for Students With Disabilities Program ("McKay Scholarship Program"). Respondent operated two separate high schools at Muskateer's. One was a "regular," four-year high school that followed the traditional model, where instructors taught various academic subjects to classes of students, who attended classes for the purpose of learning academic subjects from their teachers. In this high school, tests were given periodically, as a means of measuring the students' mastery of the material. The other program was an "accelerated" high school where each student worked individually, at his own pace. Teachers played a relatively small part in this program, doing little but overseeing the "testing room" in which the students took tests——their primary scholastic activity. Students received course credit for passing tests.1 At the relevant times, there were three or four teachers at Muskateer's. To be a teacher there, a person did not need a bachelor's degree. Instead, MAI was willing to hire individuals having some type of educational background, preferably including at least 40 college credits, more or less. One of the teachers at Muskateer's was Amneris Mesa, whose brother, O. F., attended the school for some period of time. As will be seen, O. F. is one of the key figures in the instant dispute. In August 2006, the Department's Office of Independent Education and Parental Choice ("Choice Office") received a complaint about Muskateer's, the gravamen of which was that MAI was continuing to receive funds under the McKay Scholarship Program for former students who had stopped attending the school. The Choice Office, which administers the McKay Scholarship Program, referred the complaint to the Department's Office of Inspector General ("OIG") for investigation. The OIG's investigation led to the discovery of evidence sufficient to persuade the Commissioner of Education ("Commissioner") that MAI had engaged in fraudulent activity with regard to the McKay Scholarship Program. Consequently, on November 1, 2006, the Commissioner issued an Administrative Complaint against MAI, which charged MAI with fraud and other violations of the laws governing the McKay Scholarship Program. At the same time, the Commissioner immediately suspended all payments to MAI under the McKay Scholarship Program. Being thus cut off from its primary source of revenue, MAI closed Muskateer's on November 18, 2006. As of the final hearing, the school had not reopened. The Commissioner's present case against MAI hinges on allegations that, to induce the payment of funds under the McKay Scholarship Program, the company falsely represented to the Department that three students——O. F., N. P., and C. M.——had "reenrolled" at Muskateer's for the 2006-07 school year, when in fact two of them (O. F. and N. P.) previously had graduated, and the third (C. M.) had dropped out midway through the preceding school year. MAI disputes these allegations, and hence the focus of the hearing largely was on whether the three individuals in question had attended Muskateer's during the 2006-07 school year. Before addressing the contested factual issues, however, a brief examination of the McKay Scholarship Program is in order, to provide context for the findings of fact that will follow. The McKay Scholarship Program affords a disabled student the option of attending a different public school from the one to which he is assigned, or, if he is eligible, the opportunity to receive a scholarship to defray the cost of attending a private school of choice. Once awarded, a McKay scholarship remains in force until the student returns to a public school, graduates, or turns 22, whichever first occurs; provided, however, that he does not drop out, which would render the student ineligible for the scholarship, at least during the period of non-enrollment. To participate in the McKay Scholarship Program, a private school must meet certain conditions as well. Inasmuch as the Commissioner has alleged that MAI failed to comply with some conditions of continued eligibility, the relevant ones will be discussed in greater detail below. For the moment, however, it is sufficient to note that McKay scholarship funding is potentially available to most private schools operating lawfully in the state, for the program is designed to be inclusive in this regard. A private school that wants to participate in the McKay Scholarship Program must notify the Department of its interest and submit information demonstrating compliance with the eligibility requirements. This information——and other data necessary to secure the disbursement of scholarship funds——must be transmitted to the Department electronically, through forms available online to registered users, at a secure website maintained by the Department. To access this site, a private school must first obtain a unique code and establish a confidential password, both of which must be entered correctly in order to logon to the Department's secure web page. If the parent of an eligible student chooses the private school option and secures a place for his child at the private school of choice, then the parent must notify the Department of his decision before the child begins attending the private school. After receiving such notice, the Department verifies the student's enrollment in the private school, obtains from the private school a schedule of the tuition and fees, and receives from the student's school district a "matrix of services" reflecting the student's special educational needs. The maximum amount of the McKay scholarship for a particular student is the lesser of (a) the "calculated amount" (which is roughly equal to the estimated cost of educating the student in the public school to which he is assigned) or (b) the actual amount of the private school's tuition and fees.2 The amount of the student's scholarship is deducted from his public school district's total funding entitlement.3 McKay scholarship payments are made in four equal amounts during the school year to which the scholarship applies. The payment dates are September 1, November 1, February 1, and April 1. Payments are made by warrant payable to the student's parent. The Department mails each warrant to the private school of the parent's choice. The parent is required restrictively to endorse the warrant, authorizing the funds to be deposited only in the private school's account.4 To remain eligible for the McKay scholarship, the student must have regular and direct contact with his teacher(s) at the private school's physical location. Thus, ahead of each payment (after the initial payment), the private school must verify, through the Department's secure, password-protected website, that the student continues to be enrolled in, and to attend, the private school. It is in connection with this ongoing duty to verify continued enrollment and attendance at the private school that MAI is alleged to have engaged in fraudulent activity, namely, reporting to the Department that O. F., N. P., and C. M. were still enrolled in, and attending, Muskateer's when, in fact, they were not. The undersigned will now turn to these allegations, which lie at the heart of this matter. But first: It must be acknowledged that the evidence is in conflict concerning the historical facts relevant to the allegations of fraudulent activity. Given the evidential conflicts, the undersigned supposes that reasonable people might disagree about what happened here. Ultimately, however, it falls to the undersigned, rather than a group of hypothetical "reasonable people," to resolve the evidential conflicts and settle the disputed issues of material fact. Thus, to the extent that any finding below (or herein) is inconsistent with the testimony of one witness or another, or with some documentary evidence, the finding reflects a rejection of all such inconsistent testimony and evidence (none of which was overlooked, disregarded, or ignored) in favor of proof that the undersigned deemed, in the exercise of his prerogatives as the fact-finder, to be more believable and hence entitled to greater weight. O. F. In January 2006, halfway through the 2005-06 school year, O. F. was enrolled as a student of Muskateer's. He began attending the accelerated high school on January 26, 2006. At the same time, his sister, Ms. Mesa, started working for MAI as a teacher in the regular high school. About five months later, O. F. graduated from Muskateer's. O. F. participated in a graduation ceremony on June 3, 2006, and, according to the transcript maintained in his student file, O. F. was awarded a diploma or certificate on that date. The transcript notwithstanding, it is undisputed that O. F. did not actually receive his diploma until several months after his graduation date. MAI contends that it withheld O. F.'s diploma because he had not finished all the tests necessary for graduation. The undersigned finds, however, that the evidence is insufficient to support a finding that O. F. had not finished his degree requirements as of June 3, 2006; indeed, the greater weight of the persuasive evidence is to the contrary. Accordingly, MAI's assertion that O. F. did not graduate from high school at the end of the 2005-06 school year is rejected. On May 26, 2006, MAI reported to the Department, through the Department's secure, password-protected website, that O. F. had reenrolled in Muskateer's for the 2006-07 school year, and that he would resume attending the school on July 1, 2006. On the same date and in the same manner, MAI reported that O. F.'s tuition and fees for the upcoming school year would total $24,000. These representations were made for the purpose of obtaining funds from the McKay Scholarship Program. The foregoing representations regarding O. F.'s reenrollment in Muskateer's for the 2006-07 school year were false. Moreover, the greater weight of the evidence persuades the undersigned that, more likely than not, the individuals responsible for making these representations——namely Mr. And Mrs. Cermeno——actually knew that the representations were false, or they recklessly disregarded the truth or falsity of the matters asserted.5 Despite having graduated, O. F. returned to Muskateer's on three or four occasions in September and October 2006, at which times he took a few tests that he had previously taken and passed. This happened because the Cermenos refused to give O. F. his diploma unless he retook these tests——a condition that was repeated both to O. F.'s mother and his sister (the teacher).6 The undersigned infers that, more likely than not, the Cermenos used the threat of withholding O. F.'s diploma as a means of coercing his "attendance" at Muskateer's during the 2006-07 school year, to create plausible deniability in the event the charge were brought (as it was) that MAI had fraudulently sought to obtain McKay scholarship funds for O. F. At any rate, post-graduation "attendance" such as O. F.'s——to retake exams for no apparent legitimate reason——is not the kind of regular attendance that would support the reasonable inference that the student had enrolled for the 2006-07 school year.7 N. P. N. P. enrolled in Muskateer's on May 3, 2004, and began attending classes in the accelerated high school on August 16, 2004. He graduated (at least in the ceremonial sense) at the end of the 2004-05 school year but never received a diploma. N. P. testified that he never returned to Muskateer's as a student after he (ceremonially) graduated. In other words, N. P. claims that he was not a student of Muskateer's during either the 2005-06 school year or the 2006-07 school year. N. P.'s testimony in this regard is corroborated by the testimony of his aunt (and legal guardian), Altagracia Moreta. Additionally, N. P.'s testimony is corroborated by the absence of well-kept, reliable documentation——such as enrollment registers and attendance records——attesting to his ongoing attendance at Muskateer's after the 2004-05 school year. The undersigned considers the lack of such documentation to be a telling fact. Consequently, although there is conflicting evidence, the undersigned finds that, more likely than not, N. P. did not attend Muskateer's during the 2005-06 and 2006-07 school years, as he testified. On May 4, 2005, MAI reported to the Department, through the Department's secure, password-protected website, that N. P. had reenrolled in Muskateer's for the 2005-06 school year, and that he would resume attending the school on August 8, 2005. On the same date and in the same manner, MAI reported that N. P.'s tuition and fees for the 2005-06 school year would total $24,000. These representations were made for the purpose of obtaining funds from the McKay Scholarship Program. On May 26, 2006, MAI reported to the Department, through the Department's secure, password-protected website, that N. P. had reenrolled in Muskateer's for the 2006-07 school year, and that he would resume attending the school on July 1, 2006. On the same date and in the same manner, MAI reported that N. P.'s tuition and fees for the 2006-07 school year would total $24,000. These representations were made for the purpose of obtaining funds from the McKay Scholarship Program. The foregoing representations regarding N. P.'s reenrollment in Muskateer's for the 2005-06 and 2006-07 school year were false. Moreover, the greater weight of the evidence persuades the undersigned that, more likely than not, the individuals responsible for making these representations——namely Mr. And Mrs. Cermeno——actually knew that these representations were false, or they recklessly disregarded the truth or falsity of the matters asserted. C. M. In July 2004, C. M. registered to attend Muskateer's. He began attending the accelerated high school on August 16, 2004. C. M. testified at hearing (via deposition) that he continued to attend Muskateer's while this proceeding was pending, having been in class there as recently as "yesterday" (January 17, 2007). C. M. did not know what courses he was currently taking or how many other students currently were attending Muskateer's. (Recall that Muskateer's closed its doors on November 18, 2006, and, as of the final hearing, had not reopened).8 Whatever credibility C. M. still possessed after giving testimony such as that just described was shredded when Petitioner impeached him with a prior inconsistent (actually, contradictory) statement. On August 22, 2006, C. M. told the OIG's investigator that he had stopped attending Muskateer's in December 2005 and never returned. The investigator made an audio recording of C. M.'s statement, which was received in evidence, but C. M. was not under oath at the time he gave the statement. The undersigned finds that C. M. is not a believable witness, and his testimony, being unreliable and unpersuasive, is given no weight.9 The documents in C. M.'s disorderly (and seemingly incomplete) student file are likewise insufficient to establish, to the required degree of persuasiveness (namely, that the fact is more likely true than not), the dates on which C. M. attended Muskateer's as an enrolled student. The bottom line is that the evidence is insufficient to permit the undersigned to make a finding as to when (or whether) C. M. stopped attending Muskateer's (prior to its closure on November 18, 2006).10 Lacking sufficient proof regarding the dates during which C. M. attended Muskateer's as a duly enrolled student, it is impossible to determine whether MAI engaged in any fraudulent activity with regard to C. M. Determinations of Ultimate Fact The greater weight of the evidence establishes that, to induce the state to disburse McKay scholarship funds for the benefit of O. F., MAI engaged in fraudulent activity, to wit: MAI intentionally reported to the Department that O. F. had reenrolled in Muskateer's for the 2006-07 school year, while either (a) knowing that this representation of material fact was false or (b) recklessly disregarding the truth or falsity of this material representation, which was, in fact, false. The greater weight of the evidence establishes that, to induce the state to disburse McKay scholarship funds for the benefit of N. P., MAI engaged in fraudulent activity, to wit: MAI intentionally reported to the Department, on separate occasions, that N. P. had reenrolled in Muskateer's for the 2005-06 and 2006-07 school years, while either (a) knowing that these representations of material fact were false or (b) recklessly disregarding the truth or falsity of these material representations, which were, in fact, false. The greater weight of the evidence is insufficient to establish that MAI engaged in fraudulent activity in connection with its efforts to obtain McKay scholarship funds for the benefit of C. M. The greater weight of the evidence establishes that, by failing to keep and maintain complete and orderly records of enrollment and attendance, MAI failed to meet its obligation under Section 1002.39(8)(a), Florida Statutes, to comply with all of the requirements set forth in Section 1002.421, which mandates that private schools participating in the McKay Scholarship Program must, among other things, conform to all the requirements outlined in Section 1002.42, Florida Statutes, including Section 1002.42(4), which directs that private schools must prepare and keep attendance records in accordance with the provisions of Section 1003.23(2), Florida Statutes.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commissioner enter a final order (a) suspending payment of McKay Scholarship funds to MAI in connection with the 2006-07 school year (b) revoking MAI's participation in the McKay Scholarship Program. DONE AND ENTERED this 2nd day of April, 2007, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of April, 2007.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a Final Order dismissing the Petition for Administrative Hearing filed in this proceeding. DONE and ENTERED this 26th day of April, 1989, in Tallahassee, Florida. DIANE CLEAVINGER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Filed with the Clerk of the Division of Administrative Hearings this 26th day of April, 1989. COPIES FURNISHED: Sam Power, Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Karen 0. Emmanuel Emmanuel, Sheppard and Condon 30 South Spring Street Pensacola, Florida 32596 Carl B. Morstadt Chief Counsel of Medicaid 1317 Winewood Boulevard Building 6, Room 233 Tallahassee, Florida 32399-0700
The Issue Whether Respondent violated the Florida Civil Rights Act of 1992, as alleged in the Charge of Discrimination filed by Petitioner on February 5, 2001.
Findings Of Fact In the fall of 1999, Respondent, North Florida Community College (NFCC), advertised for candidates for the position of Vice President for Academic and Student Affairs. Respondent advertised to fill this position by placing an advertisement in local newspapers, as well as in Gainesville, Florida. Additionally, an advertisement for this position was placed in the Affirmative Action Register, which is a publication for minorities, as well as in the Chronicle of Higher Education. The advertisement did not specify a salary and specified an application deadline of November 9, 1999. The position vacancy advertisement included the following: Qualifications include: an earned doctorate from an accredited institution of higher education; at least five years of successful progressively responsible administrative experience in academic programs, preferably at a community college; some previous experience in teaching at the postsecondary level; and/or experience as a counselor or administrator for student services functions, this latter qualification being preferable. Experience in the Florida Community College System is a plus. William Hunter is the Human Resources Director for NFCC. Mr. Hunter was responsible for placing the advertisements for the Vice President's position in the various publications. He is also responsible for ensuring that search committees are appointed, communicating with applicants, determining salaries to be offered to individual candidates based upon an established procedure, and offering positions by telephone to those persons selected. A search committee was appointed by the President of NFCC, Dr. Grissom. There were five members of the selection committee, including Clyde Alexander, NFCC's Athletic Director and Equity Coordinator. Mr. Alexander is African-American. Initially, 51 persons applied for the position. The selection committee narrowed the list of applicants from 51 to eight semi-finalists. Mr. Hunter was instructed to notify each semi-finalist that he/she was selected. He notified each of the semi- finalists by telephone and coordinated interview dates. Mr. Hunter sent a letter to each semi-finalist. The letters informed the candidates of their selection as a semi-finalist, confirmed their interview date and time, and advised them that NFCC would be paying for the travel expenses to Madison, Florida, for the interviews. The letters to the semi-finalists also stated that the salary range was $45,000 to $75,000 per year, "depending on experience." The salary range was established by the college's Board of Trustees. Petitioner is an African-American male. Petitioner was selected as a semi-finalist. Also among the semi-finalists were Dr. Barry Weinberg and Dr. Thomas Eaves, both white males. Interviews were conducted between December 1 and December 9, 1999. Each of the semi-finalists was given a tour of the campus and had an opportunity to meet with various college officials, as well as the President and members of the search committee. After the interviews of the semi-finalists were completed, the selection committee provided a list of finalists to the President.1/ The first choice of the selection committee was Dr. Barry Weinberg, who at that time was employed as Vice President for College Advancement at Rockingham Community College in Wentworth, North Carolina. Dr. Weinberg holds a Bachelor of Science in Education from State University of New York at New Paltz; a Master of Science in Student Personnel Services (Higher Education Administration) from State University of New York at Albany; a Certificate of Continuing Studies in Applied Behavioral Sciences from Johns Hopkins University; and a Doctor of Education in Higher Education Administration from Vanderbilt University. Mr. Hunter offered the position to Dr. Weinberg pursuant to instructions from President Grissom. Despite the letter which informed the semi-finalists that the top of the salary range was $75,000, Mr. Hunter was informed by the President that no applicant could be offered more than $70,000 per year because of a budget shortfall. The salary to be offered to an applicant was based on the application of an established formula to the applicant's experience as follows: subtracting the minimum salary from the maximum salary in the published salary range for the position; dividing that number by (30) to arrive at a multiplier; multiplying the applicant's years of relevant experience (after subtracting the years of experience required to qualify for the position) by the multiplier; and adding the result to the minimum salary in the range. The multiplier for the Vice President's position was $1,000. In applying the salary formula to Dr. Weinberg, Mr. Hunter determined that he had 29 years of relevant experience. He then subtracted the five years required experience, resulting in Dr. Weinberg having credit for 24 years of relevant experience, for purposes of the salary formula. The 24 years of experience was multiplied by $1,000 and added to the published base salary of $45,000. This resulted in the initial starting salary to be offered to Dr. Weinberg to be $69,000. Mr. Hunter had authority from President Grissom to add an additional amount of $2,500 per year in order to attract a candidate, provided that no candidate was offered more than $70,000 per year. Dr. Weinberg did not accept the initial offer of $69,000. Mr. Hunter then offered $70,000, which was ultimately rejected by Dr. Weinberg. Pursuant to direction from President Grissom, Mr. Hunter then offered the job to Petitioner. Petitioner holds a Bachelor's degree in Business Administration from Culver- Stockton College; a Master of Science in Guidance Counseling from University of Nevada; a Doctorate in Counselor Education from the University of Iowa; and holds a certificate from Harvard University in the Management Development Program. Mr. Hunter applied the salary formula by determining that Petitioner had 21 years of relevant experience. He subtracted the five required years of experience resulting in 16 years of relevant experience. After multiplying 16 by $1,000 and adding that to the minimum salary of $45,000, Mr. Hunter offered $61,000.00 to Petitioner. When Petitioner did not accept the offer, he increased the offer to $62,500. Although he was authorized to offer him $63,500, it was Mr. Hunter's understanding, after a telephone conversation with Petitioner, that Petitioner would not accept the job for less than $82,000. Therefore, Mr. Hunter did not bother offering the additional $1,000 to Petitioner. In any event, whether or not Mr. Hunter offered $63,500 to Petitioner, he was not authorized to offer $70,000 to Petitioner, as had been offered to Dr. Weinberg, because of the application of the salary formula to Petitioner. Pursuant to instruction from Dr. Grissom, Mr. Hunter next offered the position to Dr. Thomas Eaves. Dr. Eaves holds a doctorate and lesser degrees from North Carolina State University, and has teaching and related research experience at numerous universities. Mr. Hunter applied the salary formula and determined that Dr. Eaves should be offered $67,000. Mr. Hunter was authorized by the President to an additional $500.00 on top of the $2,5000 salary "sweetener" because the college had been turned down twice. Mr. Hunter called Dr. Eaves and initially offered him $67,000. Ultimately, Mr. Hunter increased the offer to $70,000, which was accepted by Dr. Eaves. Petitioner left Virginia Commonwealth University in July 2001 to work at West Chester University where he is Dean of Undergraduate Studies and Student Support Services. His starting salary at West Chester University was $84,500. His current salary, which was effective July 1, 2002, is $88,500. If Petitioner had accepted the position at NFCC for $63,500, he would have received a five percent pay increase in 2000 to $66,675 per year. However, because of a college-wide salary freeze which has been in place since 2000, Petitioner would not have received any further salary increases.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Florida Commission on Human Relations enter a final order dismissing Petitioner's Charge of Discrimination. DONE AND ENTERED this 13th day of October, 2003, in Tallahassee, Leon County, Florida. S BARBARA J. STAROS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of October, 2003.
The Issue The issue in this case is whether Petitioner properly and timely re-enrolled students from her private school so they would be eligible for McKay Scholarship Program payments from the Department of Education.
Findings Of Fact FACES is a private school which has participated in the McKay Scholarship Program since 2005. FACES is owned by Tori Wilson and Toni Ranier, who are sisters. Wilson and Ranier are both actively involved in the School as teachers and administrators. FACES caters to children with autism or autistic-related conditions. It is the duty of the School to re-enroll its students into the McKay Scholarship Program each year in order for them to be eligible to receive McKay Scholarship payments from the Department. McKay Scholarships afford disabled students an opportunity to receive funds to defray the costs of attending private schools, such as FACES. The State of Florida, Department of Education, administers the McKay Scholarship Program through its Office of Independent Education and Parental Choice. For the 2009-2010 school year, there were 12 students to be enrolled at the School. Due to certain disabilities, each of the students was eligible to receive a McKay Scholarship. FACES relies upon the scholarships to fund the cost of operating the School. In some instances, FACES accepts the McKay Scholarship funds for a student as the sole payment for that student's attendance, even though the scholarship is not equal to the cost of educating the student. In such instances, the School will allow the student's parent to provide some sort of alternative payment. That might be in the form of buying provisions needed by the School, e.g., paper products, food, and school supplies, etc; or the School might allow the parent to provide volunteer in-kind services, such as, cleaning, helping with classroom activities, etc. Each year Wilson would log on to the Department website in order to re-enroll her students. (Each returning student would have to be re-enrolled every year. At the same time, any student who was not returning would be withdrawn using the same process.) The process involved creating a Master Fee Schedule and, then, plugging each student's scholarship information into their individual fee schedule. For example, some students may be in need of tutoring services for which additional scholarship funds are available. Others may need a summer program or some technology assistance. Once the Master Fee Schedule was completed, the school could then enter the individual students into the system. The Department established definite guidelines to be followed by schools wishing to enroll students for scholarship purposes. For the 2009-2010 school year, all students had to be re-enrolled no later than August 2, 2009 (a Sunday). The re-enrollment process could have begun as early as April 10, 2009, for that school year. That is, any school could have re-enrolled its students as early as April 10, 2009, but not later than August 2, 2009. On July 13, 2009, Wilson accessed the Department website to re-enroll her students. She had been through the process each of the past four years and was generally familiar with how it worked. However, on that date, when she logged in using her school Code No. 4809 and password (FACES 5525), she experienced problems. Wilson sent a request to the Department website for a new password, which was sent to her via email within a short time. Using the new password, FACES 101, Wilson was able to log on to the website. The first screen Wilson opened contained the normal directive (accompanied by a red exclamation mark) to "Please complete a Fee Schedule Update for the 2009-2010 School Year." But when Wilson clicked on the Update Fee Schedule link, she was only given the option to update the 2008-2009 school year, rather than the upcoming school year (2009-2010). After encountering this problem, Wilson called an undisclosed person at the Department to find out what was going on with the system. She was presumably told that the system had a glitch of some sort, that if no changes to the fee schedule were being made, she could use the previous year's schedule to do re-enrollment or that she could try the process again later. This statement was not corroborated, however. The Department provided contrary evidence saying that other schools had done their re-enrollments on the same day (July 13, 2009) and time that Wilson was experiencing trouble. One school had experienced some problems saving individual fee schedules for four students, but had not experienced problems re-enrolling students. Wilson does not have any records concerning her phone call to the Department due to the fact that she changed telephone providers, and records from the prior provider were not available. Wilson possesses a printout from her computer showing her browser history for July 13, 2009. It is clear that Wilson accessed the Department website on that date. There are a number of references to the re-enrollment portion of the Department's website, including the "student_enroll.asp" and the "student_enroll1.asp," "student_enroll3.asp," and "student_withdraw.asp" URL address segments. Each of those asps is part of the enrollment process, but unless the entire process is completed, those intermediate steps will not effectuate a student enrollment. Wilson believes she was able to "submit" each of her re-enrollments for students on that date, resulting in a prompt saying, "the student has been successfully enrolled, would you like to enroll another student." However, the Department's IT experts opine that it is impossible to have received that prompt without having gone through the entire enrollment process. Department computer logs indicate that Wilson did not click on the link required to save the Master Fee Schedule, a prerequisite to enrolling students for the 2009-2010 school year. Thus, while Wilson may believe she was properly enrolling her students, computer records indicate she did not actually accomplish her goal on that date. On July 20, 2009, Wilson logged on to the website again to see if she could complete the Master Fee Schedule and get her students re-enrolled. She attempted to log on using her new password, FACES 101, but was not able to do so. She finally logged on using her old password, FACES 5525, the same one she had been using for four years. When she was logged on to the website, she was able to update the Master Fee Schedule. She did not attempt to re-enroll her students at that time, because she believed they had already been re-enrolled on July 13, 2009. Unfortunately, she did not check to verify the enrollment on July 20, 2009. Wilson believes she completed the entire enrollment process for her students on July 13 and 20, 2009. Her testimony is entirely credible as to that belief, but she has no corroborating verification of the facts. The Department computer logs indicate that the enrollment process had begun, but had not been completed. The Department sent out an email on July 31, 2009, to a number of schools who had McKay Scholarship students. The email advised the schools that as of the date of the email, "Our records indicate that one or more McKay Scholarship students enrolled in your school during the 2008-2009 school year has not been re-enrolled for the 2009-2010 school year. McKay students must be re-enrolled by August 2, 2009, in order to be eligible for a first period scholarship payment on September 1st." The email was sent to HAPPYFACES@BELLSOUTH.NET, which was FACES' email address of record at the Department as of the date of the email. FACES had actually stopped using that email address regularly in April or May of 2009, but did not notify the Department of that fact until some time later. However, as of July 2009, when the email was sent out, FACES was still using the address as a contact source for parents of potential new students. It was, therefore, still being used for some purpose. FACES' contention that it did not receive the July 31, 2009, email is not credible. Based upon the changes FACES was going through with its communications systems at that time, however, it is very possible the email was never accessed by Wilson. On August 5, 2009, Wilson logged on to the website to withdraw a student, only to find that none of her students' re-enrollments (which she verily believed to have been accomplished previously) appeared on the website. She immediately sent an email to the Department regional manager (Hyle) assigned to her geographic area. The email advised Hyle about the students not showing up as re-enrolled and inquired about receiving payments for those students. Hyle told her that other schools were having problems as well (although that statement was not true),1 asked Wilson to send him information concerning her students, and said he would speak to his supervisor. Several exchanges between Wilson and Hyde ensued. Thereafter, Wilson received an email from Laura Harrison, director of the scholarship programs, saying the information submitted by Wilson was not sufficient to establish re-enrollment of the students at FACES. Harrison reiterated what Wilson had already heard from other persons within the Department, i.e., the evidence shows a visit to the website to change her password on July 13, 2009, but no re-enrollment of students was accomplished on that date. Following notification to Wilson that the student enrollment was deemed untimely by the Department, there were three disturbing events: First, the Department erroneously advised Wilson that FACES did not have a current fire inspection; in fact, FACES did. Second, the Department erroneously advised FACES that it did not have a current health certificate; in fact, FACES did. Third, the Department took several months to issue its final agency action (despite requests by FACES' attorney) so that FACES could challenge the decision. These events reflect unfavorably on the Department, but do not affect the outcome of this case. They are noted only because they were raised by Wilson as part of her case-in-chief. The Department's database analyst and web application developer established the following facts: Wilson logged on to the Department website on July 13, 2009, using IP address 70.152.251.108 with school code 4809; On that same date, other schools logged into the website and made student changes, including re-enrollment and withdrawals; Wilson, on behalf of FACES, did attempt to engage in the re-enrollment process on that date, starting at 6:54 p.m; There were a number of entries by FACES on that date, but none of the entries went beyond phase three of the enrollment process, identified as reenroll3.asp by the server; Wilson logged on to the Department website again on July 20, 2009, on behalf of FACES; The server log shows that other schools logged in on that same date and at the same time; FACES completed its Master Fee Schedule on that date beginning at 2:52 p.m., but upon completing the schedule, FACES logged out of the website; FACES logged on to the Department website on August 5, 2009, at 11:24 a.m., at 4:36 p.m., at 6:15 p.m., and at 7:40 p.m; Other users logged on to the website at the same time FACES was on-line; FACES re-enrolled its students on that date, although it was three days after the deadline for doing so; and The re-enrollment of students by Wilson on August 5, 2009, ultimately, resulted in a computer code called "studentenroll=true" at 3:25 p.m. Clearly, no matter what Wilson attempted to do on July 13, 2009, regarding the enrollment of her students, she did not fully accomplish that task. The computer records and testimony of the Department's witnesses are clear and unequivocal. The enrollment process was not completed prior to the deadline of August 2, 2009. FACES school does not generate a surplus of income from which it might operate without the McKay Scholarships. Loss of the scholarships would be a significant financial strain on the School. Both Wilson and Ranier appear willing to suffer financial shortfalls in order to keep the School running, but cannot do so without scholarship funds. However, due to the technical failure to meet the enrollment deadline, FACES does not appear to be entitled to the scholarships for the 2009-2010 school year. Despite the findings herein, it is abundantly clear that Wilson's testimony was honest and sincere. She was simply mistaken concerning the completion of her enrollment process.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by Respondent, Dr. Eric Smith, as Commissioner of Education, denying the claim by Petitioner, FACES Private School, for the September 2009 McKay Scholarship Program awards. DONE AND ENTERED this 23rd day of September, 2010, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd day of September, 2010.
