'Bakke' Set a New Path to Diversity for Colleges

United States

 

The Chronicle of Higher Education
June 20, 2008 

By Peter Schmidt

Thirty years ago, Justice Lewis F. Powell Jr. sent the nation’s selective colleges down a path where few had ventured before.

In the U.S. Supreme Court’s landmark ruling in Regents of the University of California v. Bakke, he wrote that colleges were legally justified in giving some modest consideration to their applicants’ race, so long as they were motivated by a desire to attain the educational benefits of diversity.

Before Bakke, selective colleges regarded race-conscious admissions policies mainly as a way to remedy past societal discrimination against black, Hispanic, and Native American applicants. The Bakke ruling declared that justification off limits, replacing a rationale grounded in history with one grounded in educational theory.

The approaching 30th anniversary of that Supreme Court decision, announced on June 23, 1978, finds many in higher education wondering where Justice Powell’s guidance has gotten them — and what, exactly, lies ahead.

His rationale for race-conscious policies may have ensured their long-term survival in the courts, by linking them to a common educational concern that is unlikely to go away anytime soon. But the decision also limited the reach of such policies, forcing colleges to consider race only as a "plus factor." They had to abandon quests for enrollments that reflected society’s racial composition in favor of having enough minority students to ensure a variety of perspectives.

The Supreme Court upheld Justice Powell’s reasoning in 2003, in a case involving a challenge to the race-conscious admissions policies of the University of Michigan’s law school. But the argument that such policies have educational benefits has not protected them from political challenges. Michigan’s residents subsequently voted to ban the use of   affirmative action by public colleges and other state and local agencies. Similar measures were adopted by California and Washington State in the 1990s and are seen as likely to pass in Arizona, Colorado, and Nebraska if critics of   affirmative action succeed in getting them on the ballot this fall.

Some advocates for minority students express frustration that the educational-diversity rationale has led colleges to seek out all different types of students rather than focusing on trying to increase their black, Hispanic, and Native American enrollments. At the end of the day, the advocates argue, pursuing diversity for educational purposes is not the same thing as pursuing racial equality and social justice — and is not nearly enough.

"There are some of us who still believe there is a strong remedial justification for   affirmative action," says William L. Taylor, chairman of the Citizens’ Commission on Civil Rights, a Washington-based group that monitors the federal government’s compliance with civil-rights laws. Mr. Taylor, a leading civil-rights lawyer since 1954, says he holds the view that Justice Harry A. Blackmun expressed in a dissenting opinion in Bakke, that "in order to get beyond racism, we must first take account of race."

The Missing Motive

In Bakke, the court affirmed a lower court’s decision that Allan P. Bakke had to be admitted to a University of California medical school because it had discriminated against him because he was white.

But the path that Justice Powell chose for colleges in his Bakke opinion was so new that the Supreme Court’s eight other justices had not seen it at all. They were evenly divided over the only two options they thought they had: Letting colleges continue to use   affirmative action to remedy societal discrimination, or telling colleges that they could not use such preferences at all.

Certainly the court and the nation’s colleges had considered the idea that diversity might have educational benefits. In the Supreme Court’s pivotal 1950 Sweatt v. Painter ruling, calling for the desegregation of the University of Texas law school, the majority opinion talked of "the interplay of ideas and the exchange of views" found in classrooms with students from different backgrounds.

But when selective colleges adopted race-conscious admissions policies in the late 1960s, their leaders said little about educational benefits. Instead they argued that such policies were needed for two other reasons: to remedy societal discrimination and to send a clear signal — during a time of devastating urban riots — that the "establishment" many black Americans were fighting was in fact open to them.

In the Bakke case, the University of California said little about the educational benefits of diversity in opposing the lawsuit that Mr. Bakke had filed after twice being rejected by the medical school on its Davis campus. Its lawyers argued that such policies provided minority students with educational opportunities that societal discrimination might otherwise deny them.

The ruling that was being appealed by the university — a California Supreme Court decision striking down the medical school’s admissions policy — held that the educational benefits of diversity were irrelevant.

The argument that campus diversity has educational benefits was introduced into the case through friend-of-the-court briefs.

Columbia, Harvard, and Stanford Universities and the University of Pennsylvania joined in arguing that diversity "makes the university a better learning environment," and that many faculty members reported "that the insights provided by the participation of minority students enrich the curriculum, broaden the teachers’ scholarly interests, and protect them from insensitivity to minority perspectives."

Early Obstacles

The educational-diversity rationale offered in Bakke may have been untried, but the social-justice rationale already was showing signs of serious wear.

Within just a few years of adopting race-conscious admissions, selective colleges began scaling back their efforts to enroll black students from poor urban settings, concluding that many were too academically unprepared.

At the same time, many began expanding the scope of their   affirmative-action programs to include Native Americans as well as Hispanic people — some of whom were Cuban immigrants or otherwise came from backgrounds that made it difficult for them to argue their families had historically experienced oppression on U.S. soil.

By the mid-70s, the fledgling neoconservative movement had developed a critique of race-conscious admissions steeped in the civil-rights movement’s own rhetoric, stressing individual rights and colorblindness.

The legal threats to race-conscious policies were real enough by 1977 to prompt the Carnegie Council on Policy Studies in Higher Education to urge colleges to consider minority students’ experiences, rather than simply their race or heritage, in the admissions process, because not all "have special characteristics that we believe warra
nt consideration."

One thing selective colleges showed little interest in doing was acknowledging any past discrimination on their own part. The Davis medical school was exceptional in how divorced it was from American higher education’s history of discrimination. The school opened in 1966 and reserved seats for minority applicants almost from the start. Minority groups had urged the University of California not to appeal the case to the Supreme Court, because they thought the policy would be hard to justify.

When the Supreme Court finally ruled in the Bakke case, its nine members were so divided they issued six different opinions, with Justice Powell in the tie-breaker role. He sided with the four justices who said the university’s use of quotas amounted to illegal discrimination. And he joined the same four in rejecting the use of social policies to remedy societal discrimination, saying the government should not be in the business of trying to sort out which segments of society owed what to whom.

Justice Powell was reluctant, however, to cause upheaval in higher education, and therefore he refused to go along with the four conservatives in holding that colleges should give up all consideration of applicants’ race for purposes other than court-ordered desegregation. Unwilling to embrace the liberal faction’s views on the need to remedy societal discrimination, he instead put forward an educational rationale for considering race as a "plus factor" in admissions. His opinion spoke approvingly of the policy that Harvard described in its friend-of-the-court brief.

Birth of a Buzzword

Because no other justices signed on to Justice Powell’s opinion stating an educational rationale for race-conscious admissions, legal scholars and federal judges would later argue that his view on the matter did not represent the holding of the court. That debate was largely laid to rest in 2003, however, when a five-member Supreme Court majority embraced Justice Powell’s thinking in upholding the University of Michigan law school’s admissions policies in Grutter v. Bollinger.

Certainly the confusion over how to interpret the Bakke decision did not deter higher education — or, for that matter, the business sector and much of the rest of society — from adopting the term "diversity" as both a buzzword and goal. Academics used it in calling for the college curriculum to accommodate movements such as Afrocentrism, feminism, and multiculturalism. Businesses went from talking about the need to have more black and Hispanic employees to saying they needed to employ a wide spectrum of people to reflect the diversity of society and position themselves to compete globally.

John A. Payton, president of the NAACP Legal Defense and Educational Fund, credits the Bakke decision with creating an environment in which colleges proudly list their minority enrollments on their Web sites as a measure of their quality. "They actually compete on that basis," he says. "And that has resulted in higher education being pretty diverse, and that has been to the benefit of higher education and the whole country."

So broad was the imprint left by Justice Powell’s reasoning in Bakke that Justice John Paul Stevens would later remark, in a speech delivered three months after the Grutter decision, that he had argued to his fellow justices that rejecting the diversity rationale would cause a "sea change" in American society.

Truth be told, however, many college administrators still describe race- and ethnicity-conscious admissions policies as tools for improving black and Hispanic access to their institutions. Relatively few colleges have done any research showing that their policies produce favorable educational outcomes.

Arthur L. Coleman, a veteran higher-education lawyer now at EducationCounsel, a for-profit law and policy center, says many people "still don’t get" that "we are looking at issues of diversity in a fundamentally educationally oriented way." In advising colleges, he says, he does not use the term "  affirmative action," and he warns that focusing on enrollment numbers or talking about promoting social justice is "at core a mistake."

Roger B. Clegg, president of the Center for Equal Opportunity and a leading opponent of race-conscious admissions policies, says he hears talk of remedying past discrimination pop up in the statements of judges and lawyers who know that such justifications fall outside Bakke.

He cites Justice Sandra Day O’Connor’s statement in the Supreme Court’s Grutter decision that colleges will not need race-conscious admissions policies in 25 years, or the Democratic presidential candidate Barack Obama’s belief that this daughters should not be given extra consideration in admissions because of the privileges they had growing up.

Better Law Than Politics?

Some higher-education leaders believe that the Supreme Court’s Grutter decision broadened the legal rationale for race-conscious admissions. In writing for the five-member Grutter majority, Justice O’Connor said colleges must ensure that the path to positions of leadership is "visibly open to talented and qualified individuals of every race and ethnicity."

William G. Bowen, a former president of Princeton University and co-author of several books on with college admissions, says Justice O’Connor’s opinion made clear that the government’s interest in allowing such policies "is not just about better learning environments on campuses."

Mr. Coleman says he believes the Grutter majority established a "strong foundation for arguing" such a rationale, even though it is unclear whether the courts will go along. But Sheldon E. Steinbach, a lawyer at the Dow Lohnes law firm, in Washington, and a former general counsel at the American Council on Education, says a college that expands its race-conscious admissions policies on the basis of such an interpretation of the law places itself at "more than reasonable" legal risk.

Also open to debate is the question of whether Justice Powell’s rationale for race-conscious admissions policies has left them more, or less, vulnerable to political challenge.

Some leading opponents of   affirmative-action preferences argue that the public is unswayed by assertions that such policies have educational benefits.

"People are losing jobs, and their kids are not getting into colleges, and they want to know why," says Terence J. Pell, president of the Center for Individual Rights, a Washington-based group that has provided legal assistance to plaintiffs in several major challenges to race-conscious admissions. "Someone needs to explain this with a political rationale and not a legal rationale that barely makes sense in the political sphere."

But Mr. Payton, of the NAACP Legal Defense and Educational Fund, says the political campaigns against such policies have succeeded mainly by convincing large numbers of people — wrongly, he believes — that there is no longer any need to remedy past racial discrimination.

Mr. Coleman says having an educational rationale for such policies has helped rally higher education and business leaders around them, and has enabled defenders of such policies to argue that "it is not about us versus them. It is about benefits to all students."

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