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"Affirmative Action and Higher Education: Before and After the Supreme Court Rulings on the Michigan Cases"
17 January 2003

The Bush Administration Is Wrong

By Nancy Cantor

Before I begin today, I feel a need to address briefly the events of this week, as President Bush has chosen this past Wednesday--the Rev. Dr. Martin Luther King Jr.'s birthday--to articulate his position on affirmative action and the Michigan cases. Although I have not yet had the opportunity to study the brief filed in this case by the Administration, I will focus on two aspects of the President's spoken remarks that strike me as wrong and very damaging in their potential to mislead the public.

First, the President labeled the Michigan programs as "quota systems." This is simply not true. It is not true in the case of the undergraduate system, in which points are awarded for a variety of background factors, including race as well as socioeconomic disadvantage, geographic origins, and gender in some programs of study. It is not true in the Law School system - a system virtually identical to the model Harvard plan referenced in the original Regents of the University of California v Bakke (1978) decision. In each of these systems, race is used as a "plus factor" in admissions, weighed in the decision along with other factors of experience and background and talent, just as the President suggests should happen. There are no quotas or numerical targets. All students compete for all seats, and from year to year, the percentage of students of color admitted varies as does the percentage of students from particular regions of the state or country. As the lower courts affirmed, these are not quota systems.

Second, the President speaks at one and the same time of his support for the principles articulated in Bakke (and thus presumably for Bakke-like systems of admissions) and of the need to be "race-neutral" in our approach to educational access. In my view, he cannot have it both ways. There is nothing race neutral about the Powell decision in Bakke; neither in its articulation of narrow tailoring (i.e., using race as a plus factor), nor in its theory of diversity as a compelling state interest. Race is front and center in the Bakke decision, just as it was nearly fifty years ago in Brown v. Board of Education. In both cases, the Court urged our country to boldly and straightforwardly take on race (both to understand our past and, more to the point, to build an integrated future).

The President seems to be satisfied with what he and his advisors call "affirmative access" - that is, with bringing students of color to the table - though he is certainly less clear with us on how to achieve this educational opportunity, especially at our selective, flagship institutions and in professional and graduate programs. Unlike the President, however, the decision by Justice Lewis F. Powell Jr. in Bakke brought more than individuals of color to the table, it brought race in America to the table, urging educators to join hands in creating a truly integrated society of learners. How are we to fulfill the dream of Brown and Bakke, to build a positive story of race in America, when we are told to ignore race - to concoct systems constructed around proxies for race--such as class rank in racially segregated public school districts-- or euphemisms such as "cultural traditions" that simultaneously avoid our past and fail to value a possible constructive role for race in our nation's future?

Integration takes hard work, especially when we have little other than collective fear, stereotypes, and sins upon which to build. Access to educational opportunity is a critical piece of an integrated future, but building a positive story of race in America will not happen if we stop at access-and, of course, the President hasn't even told us how to get that far. We cannot pretend that race is no longer a force in the American experience and have any hope of genuinely learning to live and work together across "the color line."

President Bush's desire to have us walk away from race entirely will not work to create the positively inclusive and interactive society that he claims to want to achieve. His is a moral sidestepping that will not ensure a healthy society in our future.

Taking a Step Back on Diversity

If the Supreme Court rules against Michigan, and thereby reverses the Bakke principles, there will be a sadly retrograde refocusing of institutional attention only on diversity as access, and we will risk taking a step back from promoting diversity as an integrating force, a force for excellence in our intellectual and cultural life. Post-Bakke, we have all, in one way or another, embraced affirmative action in recruiting, admissions, financial aid, and hiring. There are differences, brought to the fore recently by various legislative, regental, and/or legal actions, but the commitment to building diverse communities of scholars and students is widespread. The understanding of what it means to use race-and, for that matter, ot her variables--as a "plus" factor in admissions, and in hiring and tenure/promotion-- is widely shared. In an increasingly multiracial society, in which the returns from access to higher education have never been greater, university leaders understand their special role in answering the call for diversity in educational opportunity. Universities also understand that it is critical to answer the call of corporations and other sectors to educate all students to be able to work and live productively and comfortably in that diverse society.

If the Supreme Court rules against Michigan and thus reverses Bakke, it will be necessary to spend considerable institutional energy on creating what I will call proxy systems for admissions and recruitment and financial aid. Public institutions will feel the most pressure to do this. By proxy systems, I mean systems in which other variables stand in for race. These include direct euphemisms, such as like "cultural traditions," or other indicators that are, in this point of time, likely to produce racially diverse classes of students, indicators such as class rank in racially homogeneous neighborhood schools.

Achieving diversity of opportunity through these methods will be harder than most people realize. For example, the widely acclaimed percentage solutions in Texas and Florida have not worked well for undergraduate admissions at the flagship public campuses, and they have not worked at all for graduate and professional school admissions. Moreover, in the current context of a public infatuated with high-stakes testing, we can expect a push for reductionist definitions of ability/achievement that will make effective proxy systems more difficult to devise. At the same time they will dilute the creativity and the intellectual and social vibrancy of the students and the communities of scholars in our institutions. This would be a tragedy.

The Legacy of Bakke

I believe that the benefits of the Bakke principles go well-beyond the narrow tailoring of acceptable affirmative action programs, just as the benefits of Brown reverberated in the Title IX of the Education Amendments of 1972 and the Americans with Disabilities Act of 1990. Bakke is a way of thinking about human capacity and behavior that is rooted in multiplicity of talents, in breadth of life experiences, in the cultivation of achievement rather than the passive expression of ability. Moreover, diversity as a compelling state interest is an expression of a fundamentally social perspective on intelligence and excellence - namely, that education and achievement are socially shared activities that depend in large part of the quality of the mix of people and ideas in the environment. Diversity and excellence are inseparable. It is these broader assumptions of and implications from the Bakke principles that will be most easily lost and sorely missed if the Supreme Court rules against Michigan.

And if, as institutions and as faculties, we take a reductionist turn and jettison a preference for composing broadly talented communities at every level in the institution, there will be reverberations beyond admissions. Faculty hiring and promotions are immensely vulnerable, as these are areas in which it has been more difficult to get endorsement of the principles that race is a plus-factor. I also fear for the recruitment of graduate students, where very little progress has been made in some areas in creating a diverse pool from which to draw.

We will also see a further division between diversity goals and programmatic and curricular initiatives such as cultural programs and ethnic studies and comparative curricula. These will not be seen as critical parts of everyone's education and intellectual life. When we build new departments or centers or programs, the diversity will return to being an afterthought, and faculty of color will be further marginalized from the center of institutional power. Civic engagement will lose some of its appeal, and civil debate will wane.

Exacerbating the Situation

Three features of our national life will make it even harder to continue to pursue both diversity as access and diversity as integration. One of these is the high-stakes testing environment. The second inheres in the increasing number of high school graduates, who see a premium on access to higher education even as they experience a downturn in the economy. And the third is our national mood of protectionism and isolationism, our fear of differences, intensified by the events of September 11th and our fear of terrorism within our borders.

The high-stakes testing environment will refocus attention on narrow definitions of quality that do not serve us well in composing a diverse class. As Bill Bowen once commented, it is hardly appealing to imagine our student body composed only of valedictorians. The increasing numbers of baby-boomers' babies desirous of access to the returns to higher education in a knowledge-based economy will only exacerbate this pressure to narrow the focus in admissions.

The economic down-turn will add to the premium placed on faculty recruitment and promotion and graduate training, placing a subtle pressure to jettison any commitment to diversity when it is seen as "taking up a scarce resource" such as fellowships.

Finally, and perhaps most pernicious in my mind, a national mood of fear of difference and insecurity will set the stage for legitimizing a turn away from creating programs and curricula and social/informal contexts in which students and faculty stretch beyond their intellectual and social comfort zones, in which they cross boundaries to engage in inter-group dialogues, comparative analyses, and a curriculum that engages differences. Boundary crossing of any sort takes hard work. It is even harder against the backdrop of a history of discrimination and separation and ignorance. In the present context of fear, I am concerned that it will be more difficult than ever.

Maintaining the Emphasis on Diversity as Integration

In addition to holding people's feet to the fire in admissions and recruitment and hiring, we need to redouble our efforts to build environments on campuses and between campuses and communities that encourage boundary crossing and a vibrant exchange of people and ideas.

We can get some support for this from our neighboring communities, as the demographic march turns minorities into majorities, and from the corporate world, which is desperate for employees who can live and work comfortably in culturally diverse worlds.

We will need to be very opportunistic in programmatic and curricular initiatives to engage scholars and students in projects that are embedded in cultures of difference and diversity, though they may not ostensibly be constituted as such. Some examples include Global Literacy; the Center for Democracy in a Multiracial Society; service-learning; P-16 initiatives; digital cultural libraries; expressive culture and the arts; living-learning environments and carefully structured group work in classes and laboratories.

In other words, we will need to pay special attention to building intellectual and social environments of diversity that are suffused with perceptions of our common fate and our shared tasks and aspirations. We will need to work on building positive stories of race in America.