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

Comments on Affirmative Action

By Eugene Y. Lowe, Jr.

I. Let me say first, I like my colleagues have not yet had an opportunity to review the brief submitted by the Bush Administration in connection with the University of Michigan affirmative action case. Having said that, however, I must add, based on my perception of the way in which the case is being rolled out and the rhetoric represented in the Wednesday evening prime-time Presidential address that I am profoundly skeptical about what the Administration is doing.

My theological training, informed in many respects by the pattern of argument used by St. Thomas Aquinas in the Summa Theologica, relies on the use of the disputational method. This is an approach to argument that seeks to find "truth" by laying out fairly the views of one's intellectual antagonists. In the midst of the arguments in his own time in the thirteen-century Paris, Thomas sought, I think with great care and consistency, to do just this. He did this really self-consciously, seeking to try to find the strongest part of the argument that he would be competing against, so that his own argument would both respect the humanity and good faith of his antagonist and also represent a response to the strongest intellectual case that his opponent may be making. In dealing with this matter, I find that aspiration very hard to sustain. My skepticism about how this administration is handling this matter is exacerbated by other scenarios in which they have sought, it seems to me, to accomplish a sort of "two-step" with respect to issues of race. It does not help in this case that the public attack on quotas is followed by getting the legal brief to the Supreme Court by a midnight court deadline, which just happens to miss the deadline for today's (Friday) papers.

II. What I want to concentrate on now is the ways in which selective institutions of higher education approach the question of incorporating race as one factor among many in admissions' decisions. Primarily, I will be focusing on undergraduate education, the context that shapes most of my own experiences at both Princeton and Northwestern. The comments also refer to selective forms of professional and graduate education, particularly in law and medicine.

I do also want to respond to an implication in Nancy's comments about the ways in which the Bakke case the 1978 Supreme Court case, Allan Bakke vs the Regents of the University of California has been used since then. What I want to emphasize is that while Justice Powell did issue a decisive opinion in a five to four case, it was not taken as a controlling or majority opinion. The Justices rendered different opinions in that case. Justice Powell's opinion has justly been appropriated important emphasis but it was essentially the tiebreaker in a complicated vote in a case about which a consensus did not really arise in the court. (In this, I think there is a strong contrast between Brown vs. the Board of Education, 1954, when Chief Justice Warren issued a unanimous option on behalf of the Supreme Court that voted nine to zero.) You may also remember that in their disposition of this case, the Supreme Court was concerned about Bakke's individual rights and did indeed order him to be admitted to the University of California Medical School. So, once again we are in a position where we need to think both about issues of individual rights and fairness and institutional responsibilities to take on as it were what Nancy has referred to as the "integrationist project."

III. Another comment about Bakke. Initially, as I have suggested, this was a case that made its way to the Supreme Court based upon an interpretation of Civil Rights Law. In fact, Allan Bakke, as the plaintiff, claimed that his civil rights had been violated. As I have said already, the Court did order that Bakke be admitted. The Court ruled essentially that the system in place at the Medical School of the University of California at Riverside represented an unconstitutional infringement in that it set aside a specific number of slots for under-represented minority students.

What for our purposes is probably more important is the way the case came out, because while ordering Bakke to be admitted, Justice Powell did allow that institutions had a responsibility or could take on a responsibility in the interest of promoting a certain sort of educational experience to incorporate within their admission strategies approaches that might enhance their ability to carry out an educational mission. So as we think about the Bakke case as a background we need to recognize its essential ambiguity because the outcome was one that focused both on the need to protect individual rights and also the responsibility that higher education institutions could incorporate as part of their admissions strategies to enhance diversity, to take on as it were, the "integrationist project."

So Powell's tipping opinion was the culmination of a divided court that ended up suggesting that individual rights need to be taken seriously. Fairness is important. Race could be one factor among many in making decisions in a competitive admissions process about how institutions might carry on their mission.

IV. Now I do not believe that many people understand the dynamics of selective admissions, at least in most undergraduate institutions. In my own institution, Northwestern University, if we have, and we frequently do, approaching 15,000 undergraduate applicants, it is likely and, certainly not unusual, that our admission staff might judge that 9000 of these 15,000 are fully qualified to be successful students at Northwestern University. So the question we face at Northwestern, a variation of the same sort of questions my colleagues at Princeton faced, is how one thinks about making selections within a group of applicants who exhibit different sorts of strong qualifications. This, of course, is not the way this matter is frequently represented to the general public. This is the question we face in selective institutions (and these institutions can be both public and private.) The question we face is how we make decisions amongst those say 9,000. We do not admit people who are unqualified, but we do allow our institutional values, our institutional mission to affect the way in which we think about making decisions amongst a group of frequently highly qualified students.

In the self-critical spirit of Thomas Aquinas again, I must say that since 1978, it is certainly my perception that the institutions making these decisions themselves have not always been clear or as straightforward about the way in which these decisions are actually taken. This was the case throughout much of the 1980's, particularly as we focused on what we called "the celebration" of diversity because other kinds of diversity, including the experience of ethnic groups other than Black and Hispanics, the experience of women and other kinds of diversity were very much in play during much of the 1980's. The "integrationist project" is not necessarily the same thing as the diversity project. While we were thinking on an admissions front in the ways that I have described overall institutional profiles were also becoming more diverse in ways that expanded upon the sort of diversity that we thought about during the civil rights period of the 1960's and the early 1970's. So that we ourselves within these institutions were going through a number of internal processes of evolution as we thought about the varying ways in which student diversity might enhance our educational mission. It is probably the case that during this period, while we were focusing on an expanded understanding of diversity, we lost focus on some of the longer term and more deeply historically rooted issues having to do with race, and particularly the experience of African Americans in the United States.

V. I would also like to observe in the present discussion, how in a funny way, how much of the entire discussion seems to be focused on individual rights and opportunities. One could almost argue that the orientation reflects part of an increasing trend towards individual consumerist approaches to thinking about issues of higher education. We continue to believe very, very strongly in situations where we are allocating scarce resources, resources that provided opportunities that can be life transforming for individuals that we need to exercise the highest possible degree of care. We do not believe that the exercise of this care can be carried on through specific formulas, but that in the final analysis judgements must be made. Judgements are properly based on a reflection of the institution's mission and the professional's judgement about the capacity of individual students to succeed and to make vital contributions, not only to their school and university communities, but as best we can guess, of those who have the capacity to make contributions to the society as they will advance in years.

So finally, for us this is a question not just about individual rights but this is a question about institutional responsibilities and how we who are stewards within these institutions have the responsibility and the obligation to make decisions that will have long term impacts on individuals. This is a question about how institutions carry out their missions. One could say then, that it is a question yes about institutional rights, but it is also a question about institutional responsibilities. If selective institutions choose to and continue to choose to take on the uncompleted work of improving and transforming racial experience in this country, that is a legitimate expression of mission. If selective institutions are to continue to take on the uncompleted work of this project of advancing diversity in the commonwealth, we will all have a better future.

We will need I think, in the spirit of Aquinas, to continue to think carefully about those who disagree and to state as strongly as we possibly can and in as many settings as are provided as opportunities that this is a question both of individual rights and institutional responsibilities. I believe myself that the future of our commonwealth, our capacity to advance these important projects of diversity and integration will depend upon the capacity of institutions to make that case publicly and in the various ways in which we carry out our mission.

Thank you very much.
Eugene Y. Lowe, Jr., Northwestern University, January 17, 2003