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Spring 01
Institutional Leadership and Commitment
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"Affirmative Action" Through a Different Looking Glass
By Arthur L. Coleman, Attorney, Nixon Peabody LLP, Washington, D.C.

"When I use a word," Humpty Dumpty said in rather a scornful tone, "it means just what I choose it to mean--neither more nor less."
--Lewis Carroll,
Through the Looking Glass

From all appearances, Humpty Dumpty is a busy egg. His followers throughout the higher education community have unwittingly contributed to a robust confusion regarding the subject of "affirmative action"--which, in 2001 by the way, really isn't about affirmative action (at least in most instances). We have more often than not labeled policies promoting the educational benefits of diversity as "affirmative action" policies, without thinking through the precise meaning of the term "affirmative action" and the features that distinguish an inherently remedial concept from one that is intrinsically educational. Thus, we've succumbed to the practice of Humpty Dumpty in Through the Looking Glass: we've carelessly and incorrectly expanded the perception of a term beyond its actual meaning.

Whether we hear on National Public Radio in the context of the recent University of Michigan litigation that diversity-based "affirmative action is forÍ addressing the effects of racism," or whether we learn in a recent Chronicle of Higher Education guest editorial that some are winners and some are losers under "affirmative action" policies, even where diversity is the rationale, the point is clear: confusion abounds. The lens through which we examine, challenge and defend (take your pick) diversity-related race--and national origin-conscious admissions programs is murky, at best. It is time to polish the looking glass--and refine our use of terms--so that we can address the real issues of the 21st century that implicate race and ethnicity, according to the real institutional policies that allow for a consideration of race or national origin. In short, we should not label or analyze policies designed to achieve the educational benefits of diversity in higher education in the same way that we address remedial affirmative action policies.

Clarifying Objectives: Diversity vs. Affirmative Action

Affirmative action as historically understood has been a tool designed to remedy the present effects of past discrimination or present, ongoing discrimination. In fact, in most instances, the use of remedial affirmative action has been a result of a legal mandate. Where there has been evidence of discrimination supporting a need for race- or national origin-based programs to remedy its effects, courts and federal law enforcement agencies have used affirmative action as a tool for over four decades, in widely varying contexts--from employment to contracting to admissions. In those situations, surely, fair questions regarding "which groups suffer the most discrimination?" and "who wins and who loses?" (Skrentny, 2001) can and should be posed. The same cannot be said where colleges and universities consider race or ethnicity in connection with mission-driven diversity-related objectives.

Unlike remedial policies, admissions policies designed to further mission-driven diversity-related educational goals are not legally required and they are not grounded upon a history or policy of discrimination that must be addressed and remedied. They are, instead, a matter of institutional choice, uniquely within the province of academe. They relate to educational decisions about the importance of positive teaching and learning outcomes (among others) that can flow from a diverse faculty and student body. And, importantly, they inure to the benefit of all students, from all backgrounds (Alger, 1997). There is, as a result, no zero sum game where diversity-based programs are properly conceived and implemented.

Moreover, the diversity-related justifications for the limited consideration of race or national origin in admissions are legally distinguishable from remedial policies, which have as their exclusive foundation the constitutional principles of the Fourteenth Amendment's Equal Protection Clause and related federal statutes. The diversity context in higher education, unlike any other setting where race- and national origin-related policies exist, implicates First Amendment academic freedom protections. In fact, in connection with his conclusion that the educational benefits of diversity could justify the limited use of race in a university's admission program in his landmark opinion in Regents of the University of California v. Bakke (1978), Justice Lewis Powell relied on settled historical precedent when recognizing that "[t]he freedom of a university to make its own judgments as to education includes the selection of its student body." Recognizing that this "academic freedom" is "a special concern" of the First Amendment, Justice Powell also carefully distinguished between the exclusive focus on race or ethnicity (characteristic of remedial policies) and the consideration of "a far broader array of qualifications and characteristics of which racial or ethnic origin is but a single though important element."

Redefining Admissions Policies

It is clear that the First Amendment foundations that preserve the discretion of higher education admissions officials also compel a legal deference to admissions and related decisions that isn't present in other contexts. Those foundations also mean that, in the end, there is a critical difference between admissions policies designed to promote a more robust learning environment in which students from all backgrounds are more intellectually engaged and motivated (See Gratz v. Bollinger, E.D.Mich. 2000, 122 F.Supp. 2d 811) and those that are designed to remedy the effects of state-sponsored discrimination affecting one or more groups of individuals.

The fact that we may be late in refining our articulation and implementation of race- and national origin-conscious admissions policies doesn't mean that we should avoid taking the necessary steps now. It was 1978 when Justice Powell cast his deciding vote in the case challenging the University of California, Davis Medical School set aside program for minority medical school candidates. In that case, the Supreme Court struck down the program in question but kept the door open for the limited consideration of race or ethnicity in higher education admissions decisions. Since that time, members of the higher education community, along with the lawyers working with them side by side, have characterized all too frequently Justice Powell's opinion in Bakke as an "affirmative action" decision. We were wrong in the years following 1978, and we are wrong today if we continue to treat as interchangeable policies that are premised upon remedial and diversity rationales.

"That's a great deal to make one word mean," Alice said in a thoughtful tone. "When I make a word do a lot of work like that," said Humpty Dumpty, "I always pay it extra." "Oh!" said Alice. She was too much puzzled to make any other remark. --Lewis Carroll, Through the Looking Glass.

We have already "paid extra" to the extent that a less than ideal conceptualization or articulation of admissions policies has led to an imprecise use of the term "affirmative action," a correspondingly less refined examination of the distinctions between diversity goals and remedial obligations, and a judicial frustration in certain cases where the underpinnings of diversity-based policies seem amorphous or ill-defined. The fact that old habits die hard, however, should not dissuade us from taking the necessary steps to do a better job articulating the foundations for and the terms appropriate to the policies and practices that relate to institutional diversity goals. By so doing, we may yet avoid the fate of Humpty Dumpty in our efforts to promote a legally sustainable, vigorous learning environment for all students everywhere.

Sources Alger, Jonathan, "The Educational Value of Diversity," Academe (January/February 1997); Regents of the University of California v. Bakke, 438 U.S. 265 (1978); Skrentny, "Affirmative Action and New Demographic Realities," Chronicle of Higher Education (February 16, 2001): B-7; Gratz v. Bollinger, E.D.Mich. 2000, 122 F.Supp. 2d 811.

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There is a critical difference between admission policies designed to promote a more robust learning environment in which students from all backgrounds are more intellectually engaged and motivated and those that are designed to remedy the effects of state-sponsored discrimination affecting one or more groups of individuals.

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New Book Makes Case for Diversity Argument
Responding the current legal attacks on affirmative action in college admissions, the Civil Rights Project at Harvard University has recently published Diversity Challenged: Evidence on the Impact of Affirmative Action. Edited by Gary Orfield with Michal Kurlaender, the addressesreses the question of whether or not the educational value of diversity is sufficiently compelling to justify consideration of race as a factor in deciding whom to admit to colleges and universities. Gary Orfield states in his Introduction, "In chapter after chapter, researchers and policymakers discuss substantial developing evidence showing that diversity of students can and usually does produce a broader educational experience, both in traditional learning and in preparing for jobs, professions, and effective citizenship in a multiracial democracy. The evidence also suggests that such benefits can be significantly increased by appropriate leadership and support on campus." The different essays offer different points of view on the ways in which increasing minority enrollment changes and enriches the educational process. Diversity Challenged can be ordered online from the Harvard Educational Review at http://gseweb.harvard.edu/~hepg/

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"Affirmative Action at Work: Performance Audit on Two Minority Graduate Fellowship Programs, Illinois' IMGIP and ICEOP"
The Education Policy Analysis Archives (http://epaa.asu.edu) recently published a report indicating that minority fellowship programs work to positively influence graduation and placement rates. Author Jack McKillip, Southern Illinois University at Carbondale, describes findings about two minority graduate fellowship programs sponsored by the State of Illinois, whose goals are to increase the number of minority faculty and professional staff at Illinois institutions of higher education through graduate fellowships, networking and mentoring support. The audit revealed outcomes-based evidence of a successful affirmative action program in higher education, and the report suggests that fellowship programs do work to positively influence graduation and placement rates. The article is available in EPAA Volume 9, Number 12, and can be accessed directly at http://epaa.asu.edu/epaa/v9n12/