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Affirming Affirmative Action and the Obama Administration: University Admissions
Affirming Affirmative Action and the Obama Administration: University Admissions
William M. Leiter
Affirmative action differs from other antidiscrimination efforts in that: (1) it targets and seeks to remedy societal bias (as manifested in public and private illegal action), not individual malefactors; (2) it mandates race, ethnic, and gender‑conscious remedies for the disproportionately adverse effects—the so-called disparate impact—of societal discrimination on protected groups, whether or not specific discriminatory intent on the part of individual defendants can be isolated; (3) it seeks to integrate institutions by race, ethnicity, and gender; and (4) the goal of this process is to redress the disadvantage under which members of disparately impacted groups are said to labor. The doctrine of disparate impact is a particularly central reason for the quarrel over affirmative action, and this theory has been a driving force behind the Obama Administration’s stated approach to university admissions in that it is designed to reduce racial isolation.
Diversity theory has come to importantly supplement disparate impact as the vehicle for affirmative action. Diversity theory is legally dubbed nonremedial in that it facially seeks no remedies for systemic discrimination, but centrally seeks a diversity of views in the classroom and in the workplace, arguing that ideological diversity is beneficial for education and the economy. On the other hand, disparate-impact advocacy seeks remedies for systemic discrimination, and is thus referred to in the law as remedial. While conceptually different, diversity and disparate-impact theories aim to achieve the same result: an increase in the number of underrepresented-protected racial/ethnic/gender groups in better educational and employment positions. In short, both theories are driven by the affirmative-action remedial motor, and, in fact, they are two sides of the same coin. Diversity theory, importantly, need not—unlike disparate-impact advocacy—demonstrate that there is a “strong basis in the evidence” [1]that racial/ethnic discrimination has occurred.[2] Clearly, the absence of the “strong basis in the evidence requirement” is supportive of the emergence of diversity theory as the current-day mantra of affirmative action.
The U.S. Department of Justice’s amicus brief [3]in the Supreme Court’s Fisher v. Texas (2012) case insisted that the Supreme Court in Grutter v. Bollinger (2003)[4] allowed universities:
to conclude that that the educational benefits of diversity, including racial and ethnic diversity, are essential to its educational mission, and that a university can therefore have a compelling in interest in assembling a diverse student body. Diverse student enrollment not only “promotes cross-racial understanding, helps to break down racial stereotypes, and enables [students]to better understand persons of different races”; it also prepares all students to succeed in and eventually lead” an increasingly diverse workforce and society.[5]
The brief went on to emphasize that the University of Texas Texas
In its 2011 Guidance Letter to university administrators encouraging the promotion of diverse racial/ethnic student bodies, the U.S. Department of Justice’s Civil Rights Division and the Department of Education’s Office for Civil Rights underscored the educational benefits of diversity along with the goal of reducing racial isolation.[7] Interacting with students having different perspectives “can raise the level of academic discourse both inside and outside the classroom; indeed such interaction is an education in itself. By choosing to create this kind of rich academic environment, educational institutions help students sharpen their critical thinking and analytical skills.”[8]
Concurrent with the diversity Guidance Letter to university administrators, Department of Education and Justice officials also forwarded a diversity Guidance Memorandum to K-12 school administrators. Both Memoranda noted that acquiring a diverse student body was an essential governmental objective, but one which had to conform with the dictates of the Equal Protection Clause of the Constitution. This required first the seeking out of workable approaches by administrators that were “racially neutral.” The K-12 Guidance Memorandum provided examples of what it deemed racial neutrality such as consideration by admissions officials of: parental education; student and neighborhood socio-economic status; and the nature of neighborhood housing--single family or multiple family. When racially neutral techniques proved insufficient, diversification could constitutionally also involve, the K-12 Guidance continued, race-conscious approaches consisting of those which are “generalized” and did not consider the race of the individual student (e.g., the racial composition of neighborhoods), and those which considered a student’s race. But the race of the individual student is a reference point, and could only be used as a “plus” factor—one factor among other non-racial factors important to the achievement of a diverse student body. Additionally, race-conscious approaches should be time-limited; not unduly burden any student; be flexible; and treat students individually and not as a mass. [9]
K-12 Guidance undertook the ticklish task of delineating “race-neutral” undertakings: race-conscious techniques which were generalized and did not take into account the race of the individual student; and race-conscious efforts which used race only as one factor in a holistic analysis. In contrast, the Postsecondary Guidance Memorandum listed a variety of acceptable constitutionally sanctioned diversification efforts other than holistic review with race as one reference point. These other techniques included: college admission for top-percentile graduates of high school and junior colleges; taking into account socioeconomic status and hardship conditions in the admissions process; and the pursuit of “pipeline” and other outreach programs where universities would seed K-12 student interest in college attendance, and help them prepare to gain admission. The Postsecondary Guidance Memorandum carefully noted and advised that University administrators could take into account the racial impact of the aforementioned other diversification efforts as guideposts for the achievement of “critical masses” of underrepresented students. The U.S. Supreme Court has not directly addressed, evaluated, or sanctioned the legitimacy of any of the other diversity mechanisms suggested by the Postsecondary Guidance. It seems that the Obama Administration’s Departments of Education and Justice would have the reader believe otherwise.
The notion that producing “critical masses” of underrepresented racial groups would ideationally enhance the college intellectual environment and reduce racial isolation has been roundly criticized. Consider Fifth Circuit’s approach in Hopwood v. Texas[10]:
Within the general principles of the Fourteenth Amendment, the use of race in admissions for diversity in higher education contradicts, rather than furthers, the aims of equal protection. Diversity fosters, rather than minimizes, the use of race. It treats minorities as a group, rather than as individuals. It may further remedial purposes but, just as likely, may promote improper racial stereotypes, thus fueling racial hostility.
The use of race, in and of itself, to choose students simply achieves a student body that looks different. Such a criterion is no more rational on its own terms than would be choices based upon the physical size or blood type of applicants. . . . [11]To believe that a person's race controls his point of view is to stereotype him. . . . [12] Finally, the use of race to achieve diversity undercuts the ultimate goal of the Fourteenth Amendment: the end of racially-motivated state action. . . .[13]
The alleged benefits of ethno‑racial diversity benefits in higher education were challenged by Stanley Rothman, Seymour Martin Lipset, and Neil Nevitte.[14] They argued that existing research on diversity benefits relies heavily on students responding to questions about the educational merits of diversity--questions involving “valence” issues that is, propositions that garner almost universal support, such as whether one supports freedom of speech. Consequently, large majorities of students respond positively. There are also indoctrination problems. Faculty members tell students that diversity affirmative action is valuable; students parrot back appropriate responses.[15]
In an effort to acquire a representative sample of the nation’s colleges, the Rothman, Lipset, and Nevitte study relied on a 1999–2000 survey covering 140 colleges, 4,088 students, 1,632 faculty, and 808 administrators. (Historically black colleges were not surveyed.) Students were questioned only on how well colleges educated, and how hard students worked, and not about the value of diverse student bodies. The answers were correlated with the number of African American, Asian, and Hispanic students on campus. The results: the greater race/ethnic diversity in student body populations, the greater dissatisfaction expressed by students regarding their educational experience; and the greater was the dissatisfaction expressed by the faculty and administrators as to student preparedness.[16]
More recently, Princeton Professor Thomas J. Espenshade ( a self-proclaimed friend of affirmative action in college admissions) reported the following in connection with his study of eight elite universities (four private and four public) between 1999 and 2003:[17]
§ Students who are admitted through affirmative action preferences are more likely to graduate toward the bottom of their classes.
§ One-half of African-American students and one-third of Hispanic students graduated in the lower 20% of their classes.
§ Only half of the respondents in the sample reported that they had a roommate or a close friend of a different race/ethnicity.
UCLA Professor Richard Sander and Stuart Taylor Jr., studying “very good” schools --where preferentially admitted students were academically better matched with other students than in more elite schools-- found that sizeable numbers of preferential admittees initially declare science or engineering as majors, but, scholastically overwhelmed, drift dramatically to easier majors. To Sander and Taylor, affirmative action students “are 30 to 40% less likely to get science degrees; they are twice as likely to fail the bar exam after law school, and they are likely to have less social interaction across racial lines.” Campus presidents reject notions of preferential admissions mismatch out of hand. To them, racial and ethnic student body diversity is passionately embraced. [18]
In her Gratz v. Bollinger (2003)[19] dissent Justice Ginsburg focused on an important reason for campus administrative commitment to affirmative action in admissions, as well as to the potential responses to judicial rejection of preferences. At issue was the University of Michigan
The stain of generations of racial oppression is still visible in our society, see Krieger, 86 Calif. L. Rev.[1251], at 1253, and the determination to hasten its removal remains vital. One can reasonably anticipate, therefore, that colleges and universities will seek to maintain their minority enrollment--and the networks and opportunities thereby opened to minority graduates--whether or not they can do so in full candor through adoption of affirmative action plans of the kind here at issue. Without recourse to such plans, institutions of higher education may resort to camouflage. For example, schools may encourage applicants to write of their cultural traditions in the essays they submit, or to indicate whether English is their second language. Seeking to improve their chances for admission, applicants may highlight the minority group associations to which they belong, or the Hispanic surnames of their mothers or grandparents. In turn, teachers' recommendations may emphasize who a student is as much as what he or she has accomplished. See, e.g., Steinberg, Using Synonyms for Race, College Strives for Diversity, [*305] N. Y. Times, Dec. 8, 2002, section 1, p 1, col. 3 (describing admissions process at Rice University); cf. Brief for United States as Amicus Curiae 14-15 (suggesting institutions could consider, inter alia, "a history of overcoming disadvantage," "reputation and location of high school," and "individual outlook as reflected by essays"). If honesty is the best policy, surely Michigan
At the constitutional level, the critical constitutional disputes regarding affirmative action have involved the Equal Protection Clause of the Fourteenth Amendment (applicable to state government) and its “component” embedded[21] by Supreme Court decree in the Fifth Amendment’s Due Process Clause which is applicable to the national government. The Equal Protection Clause prohibits any state government from depriving “any person within its jurisdiction the equal protection of the laws.” What level of judicial scrutiny of government action does the Equal Protection Clause and its Due Process Clause component require? Should it be mid-tier or "strict"? To survive mid-tier review, an affirmative action program must serve an important government interest, and employ means that are substantially related to that governmental end. On the other hand, strict scrutiny requires a compelling governmental interest, and means which are narrowly tailored to achieve that compelling interest. After years of inconclusive Supreme Court debate as to the merits of mid-tier versus strict judicial review, strict scrutiny was adopted by the High Court for racial/ethnic governmental classifications, first for state government in Richmond v. Croson (1989),[22] and later for the federal government in Adarand v. Pena (1995).[23]
In Grutter v. Bollinger (2003),[24]a Supreme Court majority accepted a diverse student body as a compelling governmental interest. Further in that case, the Court accepted the University of Michigan Law School Law School
The vagueness of the critical mass standard prompted much commentary and questioning from members of the Supreme Court during the Fisher v. Texas (2012) oral arguments, a case that involved the University of Texas
Chief Justice Roberts: What is that number? What is the critical mass of African Americans and Hispanics at the university that you are working toward…? [H]ow are we supposed to tell whether this plan is narrowly tailored…?[26]
The spokesperson for the Obama Administration at the Fisher Oral Arguments, Solicitor General Verrelli, agreed with Justice Scalia’s recommendation to abandon the concept of critical mass –important to both the Guidance Letters described above --as it clouded the focus on his equally vague “flexibility” standard[27] which was to allow universities
flexibility to shape their environments and their education experience to make a reality of the principle …that our strength comes from people of different race, different creed, different cultures, uniting in a commitment to freedom, and to a more perfect union.[28]
Copyright © 2012 by William M. Leiter. All rights reserved.
[2] Peter Schuck, Diversity in America Cambridge Harvard University Sanford Durham , North Carolina
[3] Brief of the United States as Amicus Curiae Supporting Respondents in Fisher v. University of Texas, No. 11-345. p. 5. For entire brief, hyperlink to: http://www.justice.gov/osg/briefs/2012/3mer/1ami/2011-0345.mer.ami.pdf
[5] Brief of the United States as Amicus Curiae Supporting Respondents in Fisher v. University of Texas, No. 11-345. p. 5 Citing Grutter v. Bollinger, 539 U.S.
[6] Brief of the United States in Fisher v. Texas, 7 (cited in note 3).
[7] U.S. December 2, 2011 . For entire letter, hyperlink to: http://www.justice.gov/osg/briefs/2012/3mer/1ami/2011-0345.mer.ami.pdf
[8] U.S. December 2, 2011 , p. 1. For entire document, hyperlink to http://www.justice.gov/osg/briefs/2012/3mer/1ami/2011-0345.mer.ami.pdf
[9] U.S. December 2, 2011 . For entire document document hyperlink to http://www2.ed.gov/about/offices/list/ocr/docs/guidance-ese-201111.html
[11] Id at 945.
[12] Id at 946.
[13] Id at 947.
[14] Racial Diversity Reconsidered, The Public Interest 25-38 (Spring, 2003).
[15] Id at 29-30.
[16] Id at 29-38.I
[20] Contrary to the Court's contention, I do not suggest "changing the Constitution so that it conforms to the conduct of the universities." Ante, at 156 L Ed 2d [257], at 284, n 22. In my view, the Constitution, properly interpreted, permits government officials to respond openly to the continuing importance of race. See supra, at 156 L Ed 2d [257], at 301-302. Among constitutionally permissible options, those that candidly disclose their consideration of race seem to me preferable to those that conceal it.
[25] Id at 329
[26] U.S. Supreme Court, Oral Arguments in Fisher v. University of Texas, No. 11-345, October 1, 2012, p. 39. Hyperlink to entire document: http://www.supremecourt.gov/oral_arguments/argument_transcripts/11-345.pdf
[27] Id at 70- 71.
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