Month: October 2016

  • Art at the Capitol: By and For Coloradans

    By Gwynne Middleton

    If you’ve wandered the halls of the state Capitol basement recently, you’ve likely noticed visual art exhibits in the rotunda. Curious about these rotating art displays, I gumshoed my way to a conversation with Ruth Bruno, the liaison for Creative Colorado Industries, Inc.’s Creative Capitol program, to learn more about its role in showcasing Colorado artists at the Capitol.

    The brainchild of Colorado Creative Industries, Inc. (CCI), a division of the Colorado Office of Economic Development & International Trade, the Creative Capitol program started in 2008 to combat the dearth of new public art hung at the Capitol. Since Capitol public art projects are usually tied to the state’s Capitol Construction funds and 2008 was far from a banner year for the state’s budget, public art was not a top priority when it came to new Capitol Construction requests. With no new public art projects to manage, CCI started Creative Capitol to provide consistent access to art for Capitol visitors and staff. Funds for this program come from the CCI budget, avoiding a financial burden for the state during both fat and lean years.

    Bristlecone pine in the Mt. Goliath grove on Mt. Evans//"The Ancient One" by Jao van de Lagemaat
    “The Ancient One” by Jao van de Lagemaat // Bristlecone pine in the Mt. Goliath grove on Mt. Evans

    When asked how the Capitol and the general public benefit from the Creative Capitol program, Bruno explained that anyone who visits the Capitol to partake in the historic architecture and permanent art installations gets the added benefit of enjoying current works created by Colorado artists. For Bruno, providing this pro bono loaned artwork in our Capitol shows that the state not only champions art and arts programming but arts and arts programming by and for Coloradans: “[S]howcasing and supporting Colorado artists is one of the key goals of [CCI]. Artists benefit from the exposure and by having a place to show their art, and CCI benefits because we can highlight the work we do to the general public and also to Capitol staff and legislators.” This promotion of talented Front Range, as well as rural and mountain, artists reflects the artistic diversity in the Centennial State and offers legislators and other public officials an insiders’ perspective on the state they know and love.

    The Capitol staff’s response to these art exhibits has been overwhelmingly positive, with numerous requests for more art to improve the quality of their offices. Since 2014, Creative Capitol has been able to meet popular demand, expanding their venture beyond the Capitol basement rotunda, with works now hung in the Lieutenant Governor’s office and the Legislative Council offices, as well as in the nearby Legislative Services Building in the Joint Budget Committee Room on the third floor and in the Committee Hearing Rooms A and B on the first floor.

    If you’re in the Capitol in the next three months, be sure to stroll through the basement rotunda to view, “The Clear Creek Watershed through the Photographer’s Eye”, the newest local artist exhibit on display. A testament to the rare natural beauty of our home state, the high-quality images in this exhibit were chosen from entries in the Clear Creek Land Conservancy Annual Photography Contest, a competition calling for photographs taken in Colorado’s Clear Creek drainage basin that highlight the awe-inspiring natural areas running from the mouth of Clear Creek Canyon in Golden to the start of Clear Creek at the Continental Divide.

    For more information on Creative Capitol’s prior exhibits, click here.

  • Summary of 2016 Interim Committee Recommendations – Part 2 (of 2)

    by Kate Meyer

    The Legislative Council met October 14th, 2016, to review and approve bills recommended by interim study committees during the 2016 interim. The merits of each bill were not under consideration at this hearing; rather, the standard of review used by Legislative Council is whether the bills fit within the committees’ charges.

    Of the bills that LegiSource summarized in Part 1 of this two-part series, every bill was approved by the Legislative Council except Bills “A” and “E” of the Committee on Cost-benefit Analysis of Legalized Marijuana in Colorado.

    Below is a summary of the bills recommended by the remaining 2016 interim committees. Except where noted, the Legislative Council determined that the recommended bills fit within their respective committee charges and were passed out of Legislative Council.

    Legislative Oversight Committee for the Continuing Examination of the Treatment of Persons with Mental Illness in the Criminal and Juvenile Justice Systems

    The Legislative Oversight Committee for the Continuing Examination of the Treatment of Persons with Mental Illness in the Criminal and Juvenile Justice Systems is a statutorily created committee that meets both during the year and the interim.  It met four times in 2016.  This committee is unique in that it has an advisory task force, also created in statute.

    The task force is directed to examine the identification, diagnosis, and treatment of persons with mental illness who are involved in the criminal and juvenile justice systems. This includes the examination of liability, safety, and cost as they relate to these issues. The task force met monthly throughout the year and reported its findings to the legislative committee. In 2016, the task force updated the oversight committee on the following topics:

    • Housing for a person with a mental illness after his or her release from the criminal or juvenile justice system;
    • Medication consistency, delivery, and availability; and
    • Juvenile competency and restoration services.

    The committee is responsible for overseeing the task force and recommending legislative changes, either on its own or at the suggestion of the task force. At its meeting on Aug. 22, 2016, the committee voted to draft six bills, two of which were not recommended to the Legislative Council. That left these four bills:

    Bill A allows different state agencies to accept public or private money to provide ongoing, permanent staff assistance for the task force.

    Bill B increases medication consistency for persons with mental illness who are involved at some capacity with the criminal or juvenile justice systems. This would involve the use of an agreed upon medication formulary, use of a pharmaceutical-cooperative purchasing entity for cost savings, and the development of processes by which basic patient-specific medication and treatment information can be shared between mental health and justice providers.

    Bill C is related to increasing access to competency restoration services for juveniles and adults, including establishing the Office of Behavioral Health in the Department of Human Services as the entity responsible for the oversight of restoration education and the coordination of competency restoration services.

    Bill D provides vouchers and additional housing resources for individuals with mental illnesses who are being released from incarceration.

    For the full text of the above bills, please visit the MICJS Legislative Oversight Committee’s website by clicking here. For questions concerning the legislation, please contact Jane Ritter.

    Transportation Legislation Review Committee

    The Transportation Legislation Review Committee toured south-central Colorado from Alamosa to Antonito. Several projects were visited, including one where a steel grate covers a hole in a bridge. The committee also learned about the Cumbres and Toltec Scenic Railroad.

    The TLRC met twice during the interim at the Capitol. On both occasions, the committee heard from regulators, stakeholders, and other experts on a variety of transportation-related issues. The committee voted to draft six bills, but Representative Jon Becker withdrew one of his requests in order to allow every bill to be heard. The committee approved the following five bills:

    Bill A requires the TLRC to meet five times before November 15, 2017, once in each geographic quadrant of the state and once in the Denver metropolitan area. The meeting must make available the 2016 research study of changes to the state transportation commission districts since the boundaries of the districts were last redrawn in 1991 and offer opportunities to the public to express opinions regarding whether the districts should be modified. The committee may consider the availability of remote testimony from a single geographic quadrant of the state or from the Denver metropolitan area.

    Bill B increases the minimum weight for classification as a commercial vehicle for equipment purposes from 10,001 pounds to 16,001 pounds unless the vehicle is registered for use in interstate commerce. With respect to those vehicles used in commerce between 10,001 and 16,000 pounds, the chief of the Colorado state patrol may adopt rules to annually inspect these vehicles; enforce all requirements for the securing of loads in commercial vehicles; and enforce all requirements for the use of coupling devices.

    Bill C, which did not pass out of Legislative Council, concerned infrastructure funding. Specifically, the bill would have:

    • Authorized new transportation revenue anticipation notes (TRANs) after the final payments of principal and interest on TRANs authorized by voters in 1999 are made;
    • Repealed a requirement that the state treasurer make conditional transfers of a specified percentage of total general fund revenues from the general fund to the capital construction fund and the highway users tax fund (HUTF) for state fiscal years 2017-18, 2018-19, and 2019-20;
    • Required the state transportation commission to submit a ballot question to the voters of the state at the November 2017 statewide election, which, if approved, would authorize the executive director to issue additional TRANs in a maximum principal amount of $3.5 billion and with a maximum repayment cost of $5.5 billion once; required the proceeds to be used only for the 42 projects that are on the current priority list when the question is submitted to the electors; and specified additional transportation project contract award process requirements and limitations for a project to be funded; and
    • Required 5% of state sales and use tax net revenue to be credited to the HUTF, paid from the HUTF to the state highway fund for use for payment of the notes and state transportation projects.

    Bill D amends the definition of “autocycle” to explicitly exclude motorcycles, clarifies that the driver and each passenger in an autocycle ride in either a fully or partly enclosed seating area, and eliminates the requirements that an autocycle be equipped with airbags and a hardtop enclosure. The bill also amends the definitions of “motor vehicle” used in the safety belt and child restraint laws to clarify that those laws apply to autocycles.

    Bill E prohibits a local government from imposing inspection requirements for underground petroleum storage tanks or charging inspection fees for the inspection of underground petroleum storage tanks.

    For the full text of the above bills, please visit the TLRC’s website by clicking here. For questions concerning the legislation, please contact Jason Gelender or Jery Payne.

    2016 Interim Study Committee on Communication between the Department of Health Care Policy and Financing and Medicaid Clients

    The Interim Study Committee on Communications Between the Department of Health Care Policy and Financing and Medicaid Clients was charged with studying the following policy areas:

    • The current form and content of letters that are sent to Medicaid clients by the department and the frequency of those letters; and
    • Whether the letters can be simplified and the content made clearer so as to improve the information that is communicated to Medicaid clients.

    The committee met four times over the interim and heard testimony from state agencies, county Medicaid administrators, Medicaid clients, and advocates concerning Medicaid client correspondence. The committee’s work culminated in its approval of the following four bill drafts at its final meeting on September 29:

    Bill A clarifies that a Medicaid recipient filing an appeal need not make an affirmative request in order for Medicaid benefits to continue during the appeal. Yet the form and electronic appeals filing process should include a method for the appellant to indicate if they do not want continuing benefits. The department must send a notice to the appellant confirming the continuation of benefits. In addition, the bill requires the form and electronic appeals process to include a check box or other method for requesting a county conference or reasonable accommodation during the appeals process. Finally, the appeal filing website must allow an appellant to submit sufficient supporting documents with the appeal form.

    Bill B requires the administrative law judge hearing Medicaid appeals concerning the termination or reduction of an existing benefit to conduct a review of the legal sufficiency of the notice of action from which the appellant is appealing. If the notice is legally insufficient, the appellant may ask the judge to set aside the order or may waive the defense of insufficient notice and proceed to a hearing on the merits.

    Bill C directs the office of the state auditor to conduct or cause to be conducted a performance audit of client communications sent to clients of applicants in Colorado Medicaid programs affecting or concerning eligibility for program benefits or services. The auditor is planned for the 2020 and 2023 calendar years and thereafter at the auditor’s discretion. The bill sets forth the audit requirements and requires the findings, conclusions, and recommendations resulting from the audit to be submitted to certain committees of the general assembly.

    Bill D requires the department to engage in an ongoing process to create, test, and improve Medicaid client communications that concern eligibility for or the denial, reduction, suspension, or termination of a Medicaid benefit. Among other requirements included in the bill, the department ensures that client communications are accurate, readable, and understandable, clearly conveying the purpose of the letter or notice and the specific action or actions that a client must take. In certain types of notices, the department must explain the basis for the action, and, if relevant, specific information relating to household composition, income sources and amounts, and assets. To the extent practicable, the department shall test new or significantly revised client communications against the requirements in the bill with Medicaid clients, advocacy organizations, and county representatives prior to implementation. As part of testing, the department solicits feedback from a workgroup it establishes. The department prioritizes the improvement of client communications that affect clients with disabilities, seniors, and other vulnerable populations. Finally, the department will annually report on improvements.

    To review the bills considered by the 2016 Interim Study Committee on Communication between the Department of Health Care Policy and Financing and Medicaid Clients, please visit the committee’s website by clicking here. For questions concerning the legislation, please contact Brita Darling.

  • Summary of 2016 Interim Committee Recommendations – Part 1 (of 2)

    by Kate Meyer

    The Legislative Council is meeting October 14th, 2016, to review and approve bills recommended by interim study committees during the 2016 interim.

    This week’s article summarizes the bills recommended by the following committees:

    • The Committee on Cost-benefit Analysis of Legalized Marijuana in Colorado,
    • The Water Resources Review Committee,
    • The Wildfire Matters Review Committee, and
    • The Police Officers’ and Firefighters’ Pension Reform Commission.

    Next week, LegiSource will summarize the remaining committees’ recommended bills and report on the actions taken by Legislative Council.

    Committee on Cost-benefit Analysis of Legalized Marijuana in Colorado

    The Committee on Cost-benefit Analysis of Legalized Marijuana in Colorado (Marijuana Analysis Committee) met three times during the 2016 interim. At its bill request meeting on August 17, 2016, it requested 10 bill drafts be prepared; however, the committee was only allotted five bills.

    Before the September 21, 2016, meeting to vote on the bills, Sen. Holbert withdrew his request regarding local zoning authority (Bill 1). When the meeting to vote on bills started, the committee was down to nine bills. At that meeting, Rep. Willett withdrew his request to create a standing statutory interim marijuana committee (Bill 4); Rep. Singer withdrew his request to separate alcohol and drug related DUI crimes to better collect statistics regarding drug related DUIs and provide appropriate sanctions for drug related DUIs (Bill 5); and Sen. Aguilar withdrew both her request to create local government authority for marijuana consumption clubs (Bill 7) and her request to define the term “assist” for purposes of assisting another in growing marijuana under Amendment 64 (Bill 9). Thus, the Marijuana Analysis Committee was left with 5 bills.

    The Marijuana Analysis Committee voted 5-0 to move the five remaining bills to Legislative Council. Those bills are:

    Bill A: The bill requires the public school capital construction assistance board, when evaluating applications for financial assistance under the “Building Excellent Schools Today Act” (BEST), to consider the extent to which retail marijuana excise tax revenue credited to the public school capital construction assistance fund is derived from each county of the state. The bill also defines the term “technology” to give high priority to BEST applications for projects that are designed to incorporate technology into the educational environment. This technology covers hardware, devices, or equipment necessary for individual student learning and classroom instruction, including access to electronic instructional materials, or necessary for professional use by a classroom teacher.

    Bill B: The bill creates the grey and black market marijuana enforcement grant program (grant program) in the division of local government in the department of local affairs (division). The grant program awards grants to reimburse local governments, in part or in full, for training, education, law enforcement, and prosecution costs associated with grey and black marijuana markets. A rural local government with limited law enforcement resources has priority in receiving grants. The general assembly may appropriate money from the marijuana tax cash fund or the proposition AA refund account to the division for the grant program. The division shall adopt policies and procedures for the administration of the grant program, including rules related to the application process and the grant award criteria. The division shall include information regarding the effectiveness of the grant program in its SMART presentation beginning in November 2019.

    Bill C: The bill directs the department of education, by July 1, 2017, to create and maintain a resource bank for public schools to use without charge. The resource bank consists of materials and curricula pertaining to marijuana use; and upon request of a public school, to provide technical assistance in designing age-appropriate curricula on marijuana use. The bill authorizes the costs to be paid from the marijuana tax cash fund.

    Bill D: The bill adds acute stress disorder and post-traumatic stress disorder to the list of debilitating medical conditions treatable by medical marijuana.

    Bill E: The bill makes it a level 2 drug misdemeanor for a person not licensed to sell medical or retail marijuana to advertise for the sale of marijuana or marijuana concentrate.

    To view the bill and resolutions considered by the WMRC, please visit the committee’s website. For questions concerning the legislation, please contact Michael Dohr or Jerry Barry.

    Water Resources Review Committee

    The Water Resources Review Committee (WRRC) met 5 times over the interim, including meetings in Alamosa, Grand Junction, and Steamboat Springs. The WRRC heard presentations on a variety of water issues, including Colorado River compact compliance, rising groundwater in the South Platte River basin, Colorado’s Water Plan, and lead in drinking water.

    At its final hearing on September 20, 2016, the WRRC considered four bills and one resolution. After amending two of the four bills and the resolution, the committee voted to recommend all five measures to the Legislative Council. The measures are:

    Joint Resolution A: Aquatic nuisance species, which include such pests as zebra and quagga mussels, have negative effects on fisheries, water ecosystems, and water storage and distribution systems. The primary overland vector for the spread of these species is watercraft conveyances (boats and their trailers). A variety of state and federal agencies perform inspection and decontamination services to limit the spread of these species, depending on the jurisdiction of the particular body of water, though state agencies performed the bulk of the 3 million inspections and nearly 50,000 decontaminations performed in the past 8 years. This resolution encourages various federal agencies to provide funding to implement the State of Colorado Zebra and Quagga Mussel Management Plan.

    Bill A: Over time, reservoirs tend to fill up with sediments and consequently lose their storage capacity. The bill appropriates $5 million from the Colorado water conservation board construction fund to the Colorado water conservation board to make loans and grants to enable the recipients to dredge existing reservoirs located in the South Platte River basin to restore the reservoirs’ full decreed storage capacity.

    Bill B: Numerous irrigation districts have been formed under the 1921 irrigation district law, which has seldom been amended. The bill updates the law by removing inconsistencies and updating antiquated provisions; clarifying the definition of landowners entitled to receive water, vote in district elections, and serve on the board of directors; increasing dollar figures and, in subsequent years, adjusting for inflation; defining “agricultural land”; revising election procedures; clarifying how irrigation district assessments are collected and held; and modernizing procedures for selling surplus property. The bill also clarifies that water acquired in excess of an irrigation district’s own needs can be leased for all beneficial purposes, rather than only for domestic, agricultural, power, and mechanical purposes, and that the provisions of the 1921 irrigation district law are in addition to powers conferred on irrigation districts in other statutes.

    Bill C: After the passage of House Bill 13-1044 in 2013, the water quality control commission developed standards for the use of graywater, which is wastewater from laundry, baths, sinks, and showers. To facilitate scientific research on graywater use and collection conducted by institutions of higher education, the Bill C creates a scientific research exemption from the commission’s graywater standards.

    Bill D: Some of the statutes concerning the state engineer date back to 1889 and read like it, too. The bill updates the language of the statutes concerning the state engineer and the state engineer’s department to conform to modern drafting conventions. The bill also restructures the fee that the state engineer may charge for rating certain types of water infrastructure from $25 per day to a flat fee of $75; increases the amount of time for filing comments on a substitute water supply plan from 30 days to 35 days after the state engineer mails notice of the plan; and repeals outdated requirements concerning certain fees, oath of office, and certain state engineer duties.

    The bills and resolutions considered by the WRRC can be accessed on the committee’s website. For questions concerning the legislation, please contact Tom Morris or  Jennifer Berman.

    Wildfire Matters Review Committee

    The Wildfire Matters Review Committee (WMRC) conducted two field tours (one in southern Colorado and the other along the I-70 Corridor) and met twice at the state capitol during the 2016 interim. On those trips and at those hearings, the committee heard from a diverse array of persons and entities affected by wildfire in the state. Issues discussed included wildfire prevention and suppression; forest health, air quality, and watershed protection; biomass utilization and the wood products industry; emergency response coordination; and the financial and other costs wildfire has on communities in Colorado.

    On September 19th, 2016, the WMRC voted to recommend the following:

    Bill A: Under current law, the borrower in a reverse mortgage transaction is relieved of the obligation to occupy the subject property as a principal residence if the borrower is temporarily absent for up to 60 days or, if the property is adequately secured, up to one year. Bill A adds a third exception to the principal-residence requirement to cover situations in which a natural disaster or other serious incident beyond the borrower’s control renders the property uninhabitable. The maximum time allowable for a temporary absence under these circumstances is five years.

    Resolution A expresses the General Assembly’s support for the continued research, development, and application of biochar (a solid material obtained when organic matter is heated in an oxygen-limited environment) from Colorado’s forests. The resolution discusses the environmental and economic benefits of utilizing biochar as a reforestation and fire prevention tool in state forests. The resolution also highlights the current uses of biochar and the support of the General Assembly in continuing research of its uses, including fuel load removal and reforestation processes.

    Memorial A concerns the need for Congress to fund catastrophic wildfire response costs outside of federal forest management agencies’ normal budgets. This memorial is similar to former years’ memorials asking Congress to appropriately fund the rising costs of wildland firefighting and address the issue of “fire borrowing”, which occurs when agencies take funds away from forest health and fire prevention activities to help pay the costs to fight current wildfires.

    To view the bill and resolutions considered by the WMRC, please visit the committee’s website. For questions concerning the legislation, please contact Bob Lackner or Kate Meyer.

                        Police Officers’ and Firefighters’ Pension Reform Commission

    The Police Officers’ and Firefighters’ Pension Reform Commission met once during the 2016 interim for an annual briefing from the Fire and Police Pension Association (FPPA) and to consider two bills recommended by the FPPA Board of Directors (Board) for introduction during the 2017 legislative session. Based on the Board’s recommendations, the commission approved the following two bills:

    Bill A: To assist FPPA employers in establishing a deferred compensation plan, the Board is currently authorized to develop a master deferred compensation plan document for use by employers to establish individual plans. The bill authorizes the Board to develop a multi-employer deferred compensation plan document to allow employers to join a multi-employer plan.

    Bill B: Current law specifies that an employer in a statewide pension plan administered by the FPPA may modify its status in the plan through a vote of the members of the plan. In some cases, a modification must be approved by 65% of the members employed by the employer, and in other cases, a modification must be approved by 65% of the members employed by the employers who vote in the election for the modification. The bill creates a uniform approval standard by requiring that any modifications be approved by 65% of the members employed by the employer who vote in the election for the plan modification.

    Both of the bills that the commission considered are available for review on the commission’s website. For questions concerning the FPPA, contact Nicole Myers.

  • Race-conscious Admissions Policy OK’d for Achieving Diversity

    by Julie Pelegrin

    Earlier this summer, the United States Supreme Court issued its opinion in Fisher v. University of Texas at Austin, holding that the admissions policy at the University of Texas at Austin (UT) is constitutional. The issue? The admissions policy includes race among the many factors that the UT considers in its holistic review of applicants.

    But wait – isn’t it illegal for an institution of higher education to base admission decisions on an applicant’s race? Isn’t that discrimination? Prohibited by the equal protection clause in the Fourteenth Amendment? While it is discrimination of a sort, according to the U.S. Supreme Court, it isn’t unconstitutional.

    Why?

    Strict Scrutiny Test
    The first thing to know is how a court decides whether a law or a government policy violates the equal protection clause. If a law applies differently to a group of persons based on their race, the law creates a suspect class. For this type of discrimination to be lawful, the government must demonstrate that treating people differently because of their race will accomplish a compelling state interest. And it must show that its consideration of race is narrowly tailored to accomplish this compelling state interest. This is called a “strict scrutiny” test.

    So the first question is: What is UT’s interest in having a race-conscious admissions policy, and is it compelling?

    It’s helpful to know how UT considers race in admissions. UT’s admissions policy is a unique hybrid. By Texas statute, 75% of the student positions for each freshman class at UT are automatically filled by students who graduated within the top ten percent of their high school classes. For the remaining 25%, UT uses a “holistic review” admissions process based on an applicant’s academic index (AI) – a combination of the candidate’s SAT score and high school GPA – and an applicant’s personal achievement index (PAI). The PAI consists of points assigned based on the applicant’s essay, leadership and work experience, extracurricular activities, community service, and other “special characteristics,” one of which can be race or ethnicity. An admissions officer combines an applicant’s AI index and PAI index and, if the applicant’s combined index is higher than a set cut-off score, the applicant receives an admissions offer. So race is really considered as a factor of a factor.

    Compelling State Interest: Diversity Within the Student Body
    UT claims it has a compelling interest in giving its students the educational benefits that come from learning in a diverse student body. In earlier cases, the U.S. Supreme Court has found that diversity in the student body may be a compelling state interest. Justice Powell in the Regents of the University of California v. Bakke decision said that, while using a quota system to admit a certain number of students of a certain race is unconstitutional, some consideration of race for the purpose of achieving a diverse student body could be constitutional.

    Then in 2003, in Grutter v. Bollinger, Justice O’Connor, writing for the Court, confirmed that the University of Michigan Law School had a compelling interest in attaining a diverse student body and deferred to the Law School’s claim that a diverse student body is essential to achieving its educational mission. In recognizing the importance of diversity, the Court didn’t mean just racial and ethnic diversity. The level of diversity that justifies a compelling state interest must include a wide range of qualifications and characteristics; race or ethnicity should be only one element of diversity.

    In the Fisher case, Justice Kennedy, speaking for the majority of the Court, found that UT met the standard for proving a compelling interest by articulating a clear goal that the institution expects to achieve in obtaining student diversity: An educational environment that fosters cross-racial understanding, provides enlightened discussion and learning, and prepares students to function as leaders in a diverse workforce and society. UT conducted a study that showed that its previous admissions policy, which did not include consideration of race, did not achieve a level of student body diversity that was sufficient to meet the goal.

    Race Consideration Narrowly Tailored to Achieving Student Body Diversity
    After finding a compelling state interest, the next question is whether the way in which UT considers race is narrowly tailored to achieve student body diversity. UT had to show that its consideration of race in admissions was designed to and did increase diversity without having extraneous effects such as unduly burdening a non-favored race.

    The Court found that UT’s use of race in admissions is narrowly tailored to achieving student body diversity because it is effective – after UT started using the race-conscious admissions policy, enrollment of African-American students and Hispanic students increased by 94% and 54% respectively. But, race actually made a difference in only a small number of admissions, so the plan was also narrowly tailored. Also, UT had tried other race-neutral means of achieving student body diversity that had not been successful.

    The Court also held that, to ensure that UT’s race-conscious admissions policy continues to be narrowly tailored, UT must continually study the data on admissions and student-body demographics to ensure effectiveness. And UT must discontinue considering race in student admissions as soon as it is no longer needed to achieve diversity in the student body.

    Colorado’s Perspective
    While it is constitutional to consider race to achieve a diverse student body, many states have passed laws that prohibit any consideration of race in higher education admissions. In 2008, Colorado voters rejected Amendment 46, which would have amended the state constitution to prevent the government from giving any preferential treatment to a person on the basis of race, including in the context of higher education admissions.

    At this time, it appears the University of Colorado is the only public institution of higher education in Colorado that considers an applicant’s race in making admissions decisions. The University of Colorado uses a holistic review process similar to that used by UT, which includes limited consideration of race to achieve a diverse student body.