The Supreme Court’s decisions this past summer in the University of Michigan affirmative action cases were truly landmark rulings – the kind that come perhaps only once in a generation.
The Court reaffirmed its 1978 decision in the Regents of the University of California v. Bakke case, upholding the use of race as a plus factor in higher education admissions.
Just as importantly, the Court sent a powerful symbolic message to the country on the importance of diversity and racial integration, not just on our college campuses, but in business, in the military, in the workforce, and in all of our nation’s institutions.
For those of use who work in higher education, the cases are especially significant because the Court clarified the boundaries of what constitute permissible and impermissible admissions policies. The Court upheld the University of Michigan Law School’s whole-file review policy, where race is one of several factors that are considered in forming a diverse student body. At the same time, the Court struck down the University’s undergraduate admissions policy, a point system that automatically assigned points to underrepresented minorities – a process where race was used so mechanically and heavily that the Court found that it practically guaranteed admission to minority students.
But in looking at these decisions, I think it’s also important to consider the context in which they arose, to look at what the court did and did not rule on, and to understand what had already been taken off the table even before the Michigan lawsuits were filed.
We have to remember race-conscious affirmative action policies are only in place at the most selective of institutions, places like the University of Michigan. The vast majority of students who go on to college – minority students in particular – attend institutions that do not have selective admissions. For most colleges and universities, admissions isn’t the focal point for determining diversity. It’s outreach and recruitment and financial aid and support programs that affect student diversity. The question isn’t whether students are admitted to the university, but whether they stay and succeed and ultimately graduate.
For many students who are dealing with the basic inequalities of resource-poor and often failing elementary and secondary schools, access and affordability are the real issues. Because they attend schools that don’t offer college preparatory classes – that don’t offer Advance Placement or honors classes – many of these students will self-select themselves out of the application process for elite universities – or, if they do apply, will lack the competitive credentials needed to gain entry.
For students coming predominantly minority high schools and impoverished backgrounds, even attending a community college may seem out of the reach, let alone applying a leading state university or to an Ivy League school.
The Supreme Court didn’t address these fundamental issues of unequal access in the Michigan cases, but the issues are just as important as the admission of minority students to our elite and most selective universities.
We also have to remember that the diversity rationale at stake in the Michigan cases is really a very narrow and circumscribed way of looking at racial inequality. Remember, it’s not actually racial diversity that the Court upheld in the Michigan cases, although race and ethnicity are certainly a big part of it. It’s a more general form of diversity that the Court upheld – a diversity that includes race, but also includes geography, socioeconomic status, work experience, alumni connections, and host of other factors. And while that broad form of diversity is certainly worthwhile and vital to the life of our nation’s universities, we can lose a lot in the process if gloss over some of the more fundamental issues of racial discrimination and racial inequality in the United States.
And even before the Michigan cases were litigated, the Court were already extremely skeptical, if not outright hostile, to public policies that consider race. During the 1980s and 1990s, the Supreme Court ruled that interests such providing educational role models for studentd or remedying societal discrimination and addressing structural inequality are not, in the language of constitutional law, sufficiently “compelling” to justify the use of race-conscious policies. In the Court’s view, societal discrimination is just too vague or amorphous to be addressed, you have to point a finger at more specific discrimination. Well, I’ve never really bought that argument, since addressing racial inequality in society seem compelling enough to me. If anything, it’s absolutely urgent, given the state of race relations in our country today.
But conservative rulings by the Supreme Court have gutted the use of race in most public policies, and diversity is now only one of just a handful of interests that the courts have upheld as constitutional. And it even took a whole new round of litigation and appeals – twenty five years after we thought the question had been settled in the Bakke case – to confirm that the diversity rationale is, in fact, legal.
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I do want to spend some time talking about the Court’s decisions and their impact on higher education policy making, but I also want to suggest to you that a legal analysis by itself is incomplete. We certainly need to understand the law in these cases, because the decisions directly affect how admissions policies are designed, and they lay out the basic ground rules for other policies that are designed to promote diversity.
But I’d also suggest that there are at least two other dimensions in the affirmative action debate that we have to consider in addition to the legal dimension. One dimension – the political dimension – is important because we know that the opponents of affirmative action haven’t stopped fighting simply because they’ve lost two cases in the Supreme Court. The opponents of affirmative action suffered a loss, but I doubt that it’s done much to change their minds about the issue. If anything, the rulings may have further deepened the resolve of many of those who seek to eliminate any consideration of race in our public policies.
The attacks on affirmative action are going to continue, and we’re already seeing that happen, as threat letters and complaints are being sent out by conservative groups, even to those schools that are clearly complying with the Michigan decisions.
And the opponents aren’t just planning to go back to court. They’re taking their fight to the administrative agencies, to the legislatures, and to the voters. There are already plans to put an initiative on the ballot next year in Michigan to eliminate affirmative action, just as we saw in California and Washington state. And you can expect the campaign to be just as divisive and contentious.
The political will, the mobilization of voters and supporters, to defend affirmative action will be just as important as the legal defenses that were raised in the Michigan cases.
And just as important as the legal and political dimensions are in the debate, so too is a third dimension – the moral dimension. Affirmative action ultimately involves moral claims, a dimension where values and notions of what is right and what is wrong inform our policy making and our rhetoric. Diversity is vital to the health of our colleges and universities, but unless we have a moral compass that helps us set the right directions in dealing with matters of race and inequality, our policies too vulnerable. Diversity is now the catchword in the academic world and in business, but without that moral dimension that moves us toward a more racially integrated society, there’s no guarantee that some other catchword that’s even more palatable to the public won’t take its place. Diversity can be too easily subverted or lost.
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Let me turn back to the legal dimension for a few minutes. What did the Supreme Court actually tell us about affirmative action in the Michigan cases? Well, as you know, the courts are highly skeptical when it comes to looking at public policies that employ race. They apply what’s known as a “strict scrutiny” standard to test the constitutionality of policies under the equal protection clause of the Fourteenth Amendment. And under that test, the courts ask two basic questions: First, is the interest – the goal of a policy – important enough to justify the use of race? Is it a compelling interest? And if it is, the courts ask the second question: Is the policy really necessary and does it fit the goal? In other words, is it “narrowly tailored”?
The Supreme Court made it very clear that promoting student diversity in higher education is a compelling interest. Race can be used as a plus factor in admissions, as long as it isn’t the exclusive or predominant factor and as long as race is used flexibly. The Court upheld the whole-file review system at the University of Michigan law school, but struck down the University’s undergraduate policy because of its automatic and mechanical use of race under a point system.
Now, as a disclaimer, I should let you know that I was an attorney in the Supreme Court appeals of the Michigan cases. I represented the American Educational Research Association and other organizations in friend of the court briefs which argued that student body diversity produces concrete educational benefits for all students, not simply minority students. Social science research from across the country has confirmed that student body diversity leads to positive learning outcomes, improves learning environments, and helps break down stereotypes. All students benefit from diversity, whether it’s in the classroom, in the dorms and residence halls, or in the coffee houses and cafeterias.
But with all due respect to the social scientists, you don’t really need to conduct a survey or run a regression analysis to realize that diversity produces educational benefits.
I’m a beneficiary of affirmative action. But it’s not just because I’m a person of color who was given the opportunity to excel in college or law school. I’ve been a beneficiary of affirmative because I’ve been able to study and work with other individuals of highly diverse backgrounds, and I’ve learned from them, just as they’ve learned from me.
The Supreme Court accepted these arguments as well as arguments raised in briefs that were filed by retired military leaders, by Fortune 500 companies, educational associations, by whole array of interests who demonstrated the compelling need for student diversity. Not just in improving learning on college campuses, but fighting racial stereotyping and training leaders in business, the military, and in politics who are best equipped to deal with an increasingly diverse society.
In many ways, Justice O’Connor’s opinion in the law school case goes even further than what Justice Powell wrote in the Bakke case. Her opinion in the Michigan law school case contains broad and sweeping language on importance of diversity, as well as the need for racial integration in our nation’s institutions.
Consider some of these passages:
“[T]he diffusion of knowledge and opportunity through public institutions of higher education must be accessible to all individuals regardless of race or ethnicity. . . . "[E]nsuring that public institutions are open and available to all segments of American society, including people of all races and ethnicities, represents a paramount government objective." . . . And, "[n]owhere is the importance of such openness more acute than in the context of higher education."
The opinions goes on:
“Access to . . . education . . . must be inclusive of talented and qualified individuals of every race and ethnicity, so that all members of our heterogeneous society may participate in the educational institutions that provide the training and education necessary to succeed in America.”
And even the basic credibility and legitimacy of our nation’s institutions is at stake:
“In order to cultivate a set of leaders with legitimacy in the eyes of the citizenry, it is necessary that the path to leadership be visibly open to talented and qualified individuals of every race and ethnicity. All members of our heterogeneous society must have confidence in the openness and integrity of the educational institutions that provide this training.”
With that kind of language, there’s no question that diversity is a compelling interest.
Now, for those who you who work on the ground, developing and implementing policies, the court’s approach to narrow tailoring – the second prong of its strict scrutiny looking at how well a policy fits the goal of diversity – is just as important as the broad statements on the value of diversity and racial integration.
The court laid down specific guidelines for us to follow in designing programs: admissions policies have to flexible; you can’t use quotas, set-asides, or separate tracks for minority students; programs can’t unduly burden non-minority students; you have to look at race-neutral alternatives; and you have to establish review systems that allow you to revise or end the programs if they’re no longer necessary – in other words, there should be some ways of setting time limits on the policies.
Since I’ve mentioned time limits, let me mention a passage in the Court’s opinion that’s received a lot of attention: the language that suggests that race-conscious policies ought to be unnecessary 25 years from now. Now, this is a point that not everyone agrees on, but this is my take: that passage isn’t a ruling that affirmative action programs will become illegal in the year 2028. The 25-year goal is an admonition, a statement of aspiration of where we as a nation should be in a generation. In the same way that twenty five years had passed since the Bakke decision, the Court was looking forward 25 years and projecting where we could – and should – be when it comes to addressing racial inequality in America.