Seven Myths about Affirmative Action in Universities
Thank you for inviting me to be part of your symposium on "Education and the Law." It is a special pleasure for me to be back in Oregon, where I spent my teenage years and absorbed the special qualities and values of this State.
My subject today is higher education and the legal issues related to what we usually, and I think unfortunately (for reasons I will explain later), call diversity. As many of you know, the University of Michigan, where I served as President from l997 until just a few months ago, is the defendant in two lawsuits that challenge the constitutionality of the admissions polices in both the undergraduate and law schools insofar as they take race and ethnicity into account in order to achieve a diverse student body. (And I would add simply by way of full disclosure that I am also named personally as a defendant in the two lawsuits.) The plaintiffs in these lawsuits (white applicants who were denied admission to these schools) are represented by an organization known as the Center for Individual Rights, or CIR. For the past decade, CIR has been leading a national campaign to eliminate affirmative action. Their first success came in the Hopwood case, in which they brought suit against the affirmative action admissions policy of the University of Texas Law School. The Fifth Circuit Court of Appeals sent a shock wave through all of higher education when it held, in the mid l990's, that Justice Powell's famous opinion in Regents of the University of California v. Bakke, which created a majority of the Supreme Court long understood as upholding affirmative action, was no longer good law.
Since Bakke was decided in 1978, it has been understood that the Constitution does not require public law schools to use a "colorblind" admissions process. Indeed Bakke reversed a decision of the California Supreme Court that had insisted on colorblindness in admissions. An admissions process may lawfully consider race and ethnic origin, but it may not rely on racial quotas, may not use a two-track system with separate processes for majority and minority applicants, and may not place so much emphasis on race that minority applicants are admitted even though they are not deemed capable of doing good work in their courses. The University of Michigan employs admissions policies that are entirely consistent with the Bakkerequirements. But now Bakke itself is being challenged.
Litigation has not been the only method of challenging affirmative action. Hopwood was followed by Proposition 209 in California, a proposal to amend the state constitution to forbid any consideration of race or ethnicity in public decision-making, including admissions to state universities. The California electorate adopted that proposal, and it remains in effect today, with very significant consequences for racial and ethnic diversity at Berkeley, UCLA, and San Diego, the most selective institutions in the California university system.
That's where things stood when I became President of the University of Michigan in early l997. It was clear to every one who was watching the unfolding of this campaign against affirmative action that it was building into a tidal wave ready to roll across the country, either in the form of litigation or by referenda like Prop. 209. Within a matter of months, CIR had filed its two lawsuits against the University of Michigan, as well as a suit against the law school at the University of Washington. Later, in Washington, a ballot proposal modeled after Prop. 209 passed, which then mooted most - but not all - of the lawsuit against the University of Washington Law School. That left the Michigan lawsuits as the primary cases in the federal courts.
I, along with others at the University of Michigan, made two decisions at this point. The first was that we would mount a full and comprehensive case supporting Justice Powell's constitutional thesis in Bakke - namely, that racial and ethnic diversity are critically important to a modern education for all students - and that we would show that our undergraduate and law school admissions practices were entirely consistent with that constitutional norm. And, second, we decided that we would try in every way possible to explain to the broader public the fundamental importance of the issues at stake in the litigation and why it is, therefore, so critical that the course of constitutional law since Bakke, really since Brown v. Board of Education was decided nearly a half-century ago, not be abandoned.
The University is supported in its argument by individuals such as President Gerald R. Ford and Secretary of State Colin Powell, and by virtually every major institution in our society, including all of higher education - the Association of American Universities (AAU), the American Council on Education (ACE), the Department of Justice, churches, labor unions, and elementary and secondary school educators, General Motors, and twenty other Fortune 500 corporations. The corporations argue in their brief that racial and ethnic diversity in higher education is vital to their efforts to hire and maintain an effective workforce prepared for the opportunities presented by a global economy. They state that managers and employees who graduated from institutions with diverse student bodies demonstrate creative problem-solving by integrating differing perspectives; exhibit the skills required for good teamwork; are better prepared to understand, learn from, and collaborate with persons from other racial, ethnic, and cultural backgrounds; and are more responsive to the needs of all customers.
Last fall the two cases were decided, each by a different federal district judge (the cases were not consolidated but were tried independently). In the undergraduate admissions case, the judge held that Bakke is still good law and that Michigan's policy of considering race and ethnicity as factors and for educational purposes was consistent with that constitutional decision. In the law school case, however, the federal judge held just the opposite, that race and ethnicity cannot be considered as factors in admissions, even for educational purposes. These two decisions are currently on appeal to the Sixth Circuit, and we are awaiting that outcome. I must say that I am very optimistic that the Sixth Circuit will rule in Michigan's favor.
Let me just complete the picture of the current legal landscape on affirmative action. Besides Hopwood, the ballot propositions in California and Washington, and our cases in Michigan, there are now two other federal court of appeals decisions on affirmative action. The Ninth Circuit Court of Appeals held in what remained of the University of Washington case that Bakkeis still valid under the Fourteenth Amendment. But the Fourth Circuit Court of Appeals has held, in a case involving the admissions system at the University of Georgia, that affirmative action in university admissions is now unconstitutional. That case, however, was oddly presented to the trial court, and hence to the appellate court as well. No evidence of the benefits and purposes of affirmative action was presented because the case was handled not by the University of Georgia, but by the Attorney General of the State, who opposed the University's policy.
The upshot is that we now have a sharp split in the circuit courts on the issue of the constitutionality of affirmative action. The Fifth and Fourth Circuits have held against, while the Ninth has held in favor, and (I predict) the Sixth will as well. This, of course, makes a perfect context, or opportunity, for the Supreme Court to take the Michigan cases, as I expect it will following the decision of the Sixth Circuit. Moreover, of all the litigation thus far on affirmative action in education, the Michigan cases have by far the most extensive records.
What I would like to do this afternoon is to review what I believe are the major misconceptions about affirmative action in admissions, what I call the myths about racial and ethnic diversity in higher education. It has been my firm belief, as a participant and observer of this great issue of our time, that many people have seriously mistaken views about what is involved in university admissions and what is really at stake in the constitutional and policy debates now underway. These misconceptions or myths impede our ability to think clearly about what surely is one of the most important constitutional issues since Brown v. Board of Education. Here, then, are seven significant myths about affirmative action in universities and why it is important that they be dispelled.
The first myth is that race is no longer a significant factor in American life, that somehow we have gone through the era of Brown v. Board of Education and all of the decades of cases since then, and we are now in a position in which race no longer matters in American life. In large part, that is a myth. That should be even clearer now, after the last six months, than it was before. In the lawsuits, the University of Michigan makes the case that it is a myth through statistical analysis, demographics, and other expert testimony. Wishing that race is no longer a factor in American life doesn't make it so.
Americans of different races lead surprisingly separate lives today. Metropolitan Detroit is now the most segregated metropolitan area in the entire country; and Livonia, Michigan, a suburb of Detroit, is the whitest city in the United States of over 100,000 people. These two extremes reside right next to each other. Indeed America as a whole is more segregated today than it was at the time of Brown v. Board of Education. Ninety-two percent of the University of Michigan's white students and 52 percent of its African American students grow up in racially separate communities. The result of this separation is that Michigan's incoming students have rarely had the opportunity to get to know and learn from peers of different races before coming to campus. And the same circumstance exists across the country. Some estimate that by the year 2030 (by the 25th college reunion of the students who are applying for college this fall) forty percent of Americans will be members of a racial minority group. Where will these different parts of society come into contact so that they can learn from one another - about their differences but also about their commonalties - if not in our system of public and private higher education? Race still matters.
But what is so key about race in higher education? If differences of opinion are what is important, why not accomplish that with an all-white student body? The answer is that race and ethnicity continue to be uniquely important factors in American life. Race remains, alas, the "American dilemma." When individuals meet on the street, when they decide where to live, when they decide whom to befriend, when they decide with whom to work, race matters. A well-educated undergraduate, a well-trained lawyer, should have experience interacting with persons different from themselves. They should understand how the experience of race can influence people's perceptions of our nation's social, legal, political, and economic systems. A first-class education is one that creates the opportunity for students, expecting differences, to learn instead of similarities. Likewise, encountering differences rather than one's mirror image, is an essential part of a good education.
Faculty members relate experiences where the learning taking place in their classrooms has been powerfully affected either by the presence of students from different races, or the lack thereof. Students' racial identities may affect their perception of important works of literature, their views on the political process and the role of government. A diverse classroom also allows students to dispel stereotypes they may harbor about race and viewpoint.
The second myth has it that diversity - and we use that word so often that it can come across almost as a cliché - is good, but that it is optional, an augmenting part of our educational program - "enriching," one might say, but hardly essential. So the first myth is that race doesn't matter. Then, even if one agrees that diversity in higher education is a good thing, there is still, maybe, a sense that it's not that important, that we can do without it if it is difficult to achieve. My point is that that is a myth: ethnic and racial diversity within a university setting is absolutely essential to the accomplishment of a university's missions, and is at the very core of what a university does.
Interacting with people of different backgrounds creates the environment in which learning and empathy are fostered - it is the very essence of what we mean by a "liberal" or "humanistic" education. The analogy I use is Shakespeare: Why is it that Shakespeare is thought to be one of the greatest if not the greatest writers of all time? One of the explanations, espoused long ago by the critic William Hazlitt, is Shakespeare's uncanny genius for being able to cross into different characters' minds. Within a few lines, within a few minutes of a play, one has the distinct impression of a particular human being, one who thinks and feels and reacts in unique ways. That, in large part, is what exposure in an educational context to cultural diversity involves - the opportunity to come to a greater understanding of others' points of view, and how their life experiences might have caused them to be who they are and form the opinions that they hold. Grappling with race in America is, therefore, a powerful instance of, a powerful metaphor for, crossing sensibilities of all kinds, and crossing sensibilities is part of the core of Shakespeare's genius and of great education.
Some will be quick to note that not all people of the same race hold the same opinions. And that is certainly true. There are too many people, of all backgrounds and all political stripes, who think that is the case. And clearly the best way to undercut that assumption is to have members of the majority come into contact with greater numbers of persons of color, and visa versa. Moreover, while not all African-Americans, for example, hold the same views, the experience of being an African American in this country is typically different from that of being a Caucasian, and the classroom -- and the campus generally -- are enhanced by having an admixture of people with different human experiences. One more point here: we all recognize that people's behavior in a meeting, say, is affected by the gender and racial make-up of the group: that is, the mere presence of a diverse group - women, minority, men, majority - affects for the better how we act and what we say, even without our knowing the personal viewpoints or opinions of the other people present.
Having a racially diverse class enables a law school to do a better job of preparing students to be effective lawyers; and the same rationale applies, to medical schools and doctors. Students are exposed to classmates who have had different life experiences, and their prior assumptions are challenged. When an applicant's file reveals that he or she might add to the diversity of perspectives that are voiced in class, that helps the applicant's chances of admission.
The word diversity is a much-used term now, and because it causes us to focus on the differences among people, its use can lead us away from our similarities. Across race, across ethnicity and religion, we often have more in common than we might have imagined. It is in part for that reason, and in part because of the profundity of what is at stake, that I would prefer to speak in terms of integration, and of education's role in helping us achieve an integrated society. What we learn from integration is as much or more about similarity as it is about difference. It is only through interacting with others that you discover what you have in common as well as where you differ. A great soul, one person has observed, can be deeply moved by abstract statistics; but for most of us it usually takes a human face -- a specific personal experience -- to move us to understanding and learning of the most profound kind. I would hope, therefore, that we not be beguiled by our current language about diversity into thinking that we are concerned with learning from diversity only about differences, important as that is. Nor should the use of the word diversity cause us to assume that diversity is in this context something of a discretionary add-on or enrichment, rather than something at the very core of the educational process.
The Center for Individual Right's challenge to "affirmative action" in higher education admissions is not merely a challenge to the mechanical or procedural particulars; the fact that race is considered at all is what makes the process unacceptable to them. Theirs is a challenge to our philosophy of education and to the historical purposes of our great universities. That is a challenge I have welcomed - because I am confident that a diverse learning community is a better learning environment. And I am convinced that a diverse educational community furthers a historical mission of universities -- the education of all students in order for them to be good and productive citizens.
The third myth is that there is so much self-segregation on campuses that all the effort to integrate a campus and create diversity doesn't really accomplish very much. Again, that is a myth. It goes back to my earlier observation that most of the students come from all-white or all-black high schools and lives. Interaction takes practice, it takes experience, it takes time and patience. If this is as difficult as I suggest in part that it is, given where our students are coming from, the fact that there is some self-segregation is more proof of the importance of the task than it is a sign that somehow we are failing. What do you expect? This is very, very hard for people to do. And it is very, very important for our nation. That is why it is so necessary in higher education. If not there, then where?
The other reason that it is a myth is there is far less self-segregation than people assume. I would invite people to go to the University of Michigan campus or the Columbia University campus, walk around, and see for themselves.
The fourth myth is that the process of admissions is essentially a process of rank-ordering the candidates by credentials - by SAT scores, grades, and so forth, and then we draw a cut-off line: above the line, you get in; below the line, you get on a waiting list or are denied admission. And then we take into account race, and we make sure that we have a critical mass of minorities - and that race is the one exception to the decision-making process. That is a myth, a fundamental misconception about the way the admissions process works.
Most public and private universities across the country, including Michigan and Columbia, use a variety of factors to determine a student's admissibility. These include, among others:
High school grade point average;
The rigor of the high school courses taken;
Alumni relationships (parent, sibling, or grandparent);
Quality of the essay;
Leadership and service;
Socio-economically disadvantaged student or education;
Underrepresented racial or ethnic minority identity or education; and Residency in an under-represented region.
Any or all of these factors can influence a student's admissibility because they are all characteristics that contribute to the quality of the University and the diversity of the student body. No one factor is determinative. Obviously each year, the limited size of the entering class means that thousands of talented applicants cannot be admitted. The task of the admissions office is, using good judgment and a fair and legal process, to assemble a student body it believes collectively will provide the best possible learning environment.
Admissions officers are alert to the potential of those who may not have had full opportunity to manifest their talent (immigrants, for example), those who have served the country (including veterans), or who have unconventional talents (oboe players and talented sculptors and athletes). They must be responsible to the communities from which they derive (e.g., state residents) as well as to the nation itself (through geographic diversity). By employing admissions policies aimed at a comprehensive diversity -- of which racial and ethnic diversity is an important part -- the University is able to achieve its mission of educating students to participate fully in our heterogeneous democracy and the global economy.
It is important to understand that admissions offices are not making thousands of individual, unrelated decisions; they are trying to make the best judgment about individual applicants in order to form the strongest class that will study and live and interact together over an extended period of time - three or four years. The question for each applicant is what can he or she contribute to the whole, not where they stand in splendid, isolated comparison with everyone else. Applicants have a right to be treated fairly within the admissions process, but there is no right to be admitted to a university without regard to how the overall makeup of the student body will affect the educational process or without regard to the needs of society after they graduate.
Are we, for example, really prepared to say that medical schools cannot consider race in determining who will be available to provide the medical care for our nation? We know that minority physicians are more likely to practice in areas where there are high concentrations of minorities; therefore diversity among practicing physicians and medical administrators increases the availability of health care within underrepresented minority communities. And while the minority population in our country is growing, in absolute and percentage terms, the number of African Americans and Latinos admitted to medical schools has declined markedly in recent years. It is clear that the changes in admissions policies in California and Texas have contributed significantly to this decline. And so the stakes are high not only for medical and health education - but also for health care in this country - if an adverse decision in these cases in the end imposes a federal constitutional bar to the consideration of race in admissions.
The fifth myth is that the gap is too big. One can understand how important diversity is, and how central it is to the educational process, but there is a sense on the part of some that the "plus factor" in the admissions process given to underrepresented minorities is too large. Well, I would say, the gap is too big or too small or just right depending upon your educational premises and depending upon our judgment as to who can do the work at the university. If your educational purposes are such, as I have argued, that a sense of empathy and a presence of different points of view and experiences are central to the educational process for all students, and if all the students whom you admit can do the work, then the leg up is not too big. Nothing is too big or too small except in relation to purposes and values.
The sixth myth is that we can achieve diversity using other means. Could the Michigan Law School, the undergraduate program, or the Medical School obtain a racially diverse class with a "colorblind" process, by placing greater emphasis on socioeconomic factors? The answer is no; racial diversity and socioeconomic diversity are not the same thing (because, in short, most of our poor people in this country are white). When a colorblind process emphasizing socioeconomic diversity was adopted at the law school at the University of California at Berkeley, African American enrollment in the entering class fell by approximately 60 percent.
In his opinion in Bakke, Justice Blackmun wrote (and he was joined in this by Justices Brennan, White, and Marshall), "I suspect that it would be impossible to arrange an affirmative-action program in a racially neutral way and have it successful. To ask that this be so is to demand the impossible. In order to get beyond racism, we must first take account of race. There is no other way. And in order to treat some persons equally, we must treat them differently. We cannot - we dare not - let the Equal Protection Clause - perpetuate racial supremacy." That was right in 1978, and it is still right today.
Some schools in other states have tried a "colorblind" admissions process in which they accept the students in the top four percent or perhaps ten or twenty percentage of each high school in the state. There are several problems with this approach: first, this approach is completely ineffective for graduate schools and professional schools. Second, it would result in admitting some top students from weak high schools who may not be academically prepared to do the work, and reject very able students who are below the cut-off at a very strong school. Third, all opportunity for individual evaluation and assessment of the candidate is lost. And so the process is color-blind, but blind to the applicants themselves as well! And fourth, for such an approach to work, de facto segregation would have to continue in high schools, which, given the purposes of such an approach, would be ironic in the extreme. The conclusion is clear: the best way to admit a racially diverse class is, not surprisingly, to use an admission process that uses race as a factor -- the approach followed by virtually every selective college and university admissions for the past thirty years.
If, in the future, colleges and universities are not permitted to consider race as a factor in their admissions processes, it will have a devastating effect on their ability to assemble a diverse student body. It is likely that the number of minority students enrolled at universities would decline significantly. The experience at California's flagship public universities, Berkeley and the University of California at Los Angeles (UCLA), bears out this prediction. Admission levels of underrepresented minorities---Blacks, Hispanics, and Native Americans---remain well below where they were prior to Proposition 209. At Berkeley, they are down 44 percent and at UCLA they are down 36 percent from pre-Proposition 209 levels. And the decision will not affect Michigan alone: all public institutions across the country would be affected, and all private higher education institutions as well, given that, under Title VI, those schools are prohibited from discriminating on the basis of race - and other things - in the admissions process, and an adverse decision in the Michigan cases would in effect change the statutory definition of race discrimination in admissions.
The last myth is that this policy, well-intentioned and even important as it is, materially diminishes the likelihood of a white student being admitted, and is therefore unfair. This notion that enormous numbers of whites are being denied admission because of the preferential treatment of under-represented minorities is simply false. In fact, admissions policies such as Michigan's do not meaningfully affect a white student's chances of admission. The numbers of minority applicants are extremely small compared to the numbers of white students who apply to universities across the country. It is not mathematically possible that the small numbers of minority students who apply and are admitted are displacing a significant number of white students. In their book The Shape of the River, William Bowen, former president of Princeton, and Derek Bok, former president of Harvard, looked at the nationwide statistics concerning admissions to selective universities. They determined that even if all selective universities implemented a race-blind admissions system, the probability of being admitted for a white student would only go from 25 percent to 26.2 percent.
The source of this whole problem of admissions affirmative action is, in large part, the need for remediation of K-12 public education in under-resourced school systems. Addressing that issue, however, and seeing the educational benefits will take many years, during which we will lose several generations of students; in the meantime, colleges and universities have had decisions to make -- classes of students to admit.
The effects of unequal - and inadequate -- funding of public school on the quality of education for racial and ethnic minority students are hard to overstate. And those effects are, in large part, the source of the problem that the admissions affirmative action leg up seeks to address -- making sure, as we do so, that we don't take students who can't do the work. Renowned researcher Linda Darling-Hammond notes that the wealthiest ten percent of school districts spend almost ten times more than the poorest ten percent. And poor and minority students are disproportionately concentrated in the least well-funded schools. Predominantly minority schools have difficulty hiring the most qualified teachers, which, she has concluded, is a major contributor to the students' achievement gap. One study of 900 Texas school districts found that, "holding socioeconomic status (SES) constant, the wide variability in teachers' qualifications accounted for almost all of the variation in black and white students' test scores." In general, Darling-Hammond notes, "urban schools suffer from lower expenditures of state and local dollars per pupil, higher student-teacher ratios and student-staff ratios, larger class sizes, lower teacher experience, and poorer teacher qualifications." Those factors are, I think, important to keep in mind as we consider the disappointed majority applicant.
The outcome of the Michigan cases will profoundly affect the quality of higher education, professional education, and graduate education that all students - majority and minority -- receive in this country. It will help determine the demographics of those classes. It will determine whether the graduates, majority and minority, will be leaders who have the education and experience that will enable them to thrive in social and business contexts that are increasingly diverse and international. And it will affect the historic commitment of this nation to build an integrated society after over two hundred years of slavery and exclusion for African Americans and others. This was - and is - the challenge of the greatest decision of the last century, Brown v. Board of Education.
In an eloquent New York Times op-ed piece supporting the University of Michigan's admissions policies, President Gerald R. Ford wrote, "Tolerance, breadth of mind and appreciation for the world beyond our neighborhoods: these can be learned on the football field and in the science lab as well as in the lecture hall. But only if students are exposed to America in all her variety. ... [and then he goes on to say] I have often wondered how different the world might have been in the 1940's, 50's and 60's - how much more humane and just - if my generation had experienced a more representative sampling of the American family."
And, so, far from being some sort of nice but non-essential add-on, racial, ethnic and other kinds of diversity in a university setting is at the core of what the university does, it is absolutely central to the quality of students' educational experience, and the diversity of its graduates is, as America's business leaders have forcefully argued, one of the most valuable contributions higher education makes to the nation's common weal. The greatest question is this: Do the ideals of Brown vs. Board of Education, reflecting our profound commitment to integration and to the fundamental role of education in realizing that national goal, still have vitality and meaning at the beginning of this new century, or will they slip into obscurity, a noble but largely failed effort of the romantic and idealistic twentieth century?