The Great Debate II: Preceding Cases

Kathryn Bethea
The Fourteenth Amendment, Brown vs. Board I and II, and the Bakke Case

The spirit of the Fourteenth Amendment, Brown I and II, Civil Rights Acts, and prior judicial findings is that governmental interests in race-conscious policies is non-remedial to promote educational diversity. Brown I and II decisions and the Civil Rights Acts were made to end the past discriminatory laws and regulations prior to 1954. Moreover, in the present time, It is hard to argue how past discrimination has affected education.

The Fourteenth Amendment Equal Protection Clause states, ” All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

The Brown I and II decisions put into motion laws and policies to enable all citizens basic rights as Americans, especially education. In Brown vs. Board of Education I, 347 U.S. 483 (1954), the court ruled that Segregation of students in public schools violates the Equal Protection Clause of the Fourteenth Amendment, because separate facilities are inherently unequal. The court stated, “The question presented in these cases must be determined, not on the basis of conditions existing when the Fourteenth Amendment was adopted, but in the light of the full development of public education and its present place in American life throughout the Nation. Where a State has undertaken to provide an opportunity for an education in its public schools, such an opportunity is a right which must be made available to all on equal terms. Segregation of children in public schools solely on the basis of race deprives children of the minority group of equal educational opportunities, even though the physical facilities and other “tangible” factors may be equal.”

“Minors of the Negro race, through their legal representatives, sought the aid of the courts in obtaining admission to the public schools of their community on a nonsegregated basis. In each instance, they had been denied admission to schools attended by white children under laws requiring or permitting segregation according to race. This segregation was alleged to deprive the plaintiffs of the equal protection of the laws under the Fourteenth Amendment. We must look instead to the effect of segregation itself on public education. We must consider public education in the light of its full development and its present place in American life throughout the Nation. Only in this way can it be determined if segregation in public schools deprives these plaintiffs of the equal protection of the laws.”

The court continued, “Today, education is perhaps the most important function of state and local governments. Compulsory school attendance laws and the great expenditures for education both demonstrate our recognition of the importance of education to our democratic society. It is required in the performance of our most basic public responsibilities, even service in the armed forces. It is the very foundation of good citizenship. Today it is a principal instrument in awakening the child to cultural values, in preparing him for later professional training, and in helping him to adjust normally to his environment. In these days, it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education. Such an opportunity, where the state has undertaken to provide it, is a right which must be made available to all on equal terms.”

In Brown vs. Board of Education II, 349 U.S. 294 (1955), The court stated, “Racial discrimination in public education is unconstitutional, and all provisions of federal, state or local law requiring or permitting such discrimination must yield to this principle. School authorities have the primary responsibility for elucidating, assessing and solving the varied local school problems which may require solution in fully implementing the governing constitutional principles. Courts will have to consider whether the action of school authorities constitutes good faith implementation of the governing constitutional principles. In fashioning and effectuating the decrees, the courts will be guided by equitable principles – characterized by a practical flexibility in shaping remedies and a facility for adjusting and reconciling public and private needs.”

The Brown I and II decisions and the Civil Rights Acts put into motion laws and policies to enable all citizens basic rights as Americans, especially education. the narrow-tailoring inquiry required by strict scrutiny cannot be undertaken without constant reference to the core principles of Equal Protection. “Above all else, the framers of the Civil War Amendments intended to deny to the States the power to discriminate against persons on account of their race․

The Civil Rights Project overview of the constitutional requirements in race-conscious affirmative action policies in education (2002) states that “Almost all educational institutions are required to meet strict legal requirements when taking race into account in admissions, financial aid, student assignment, and other educational policy decisions. These requirements arise from the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution, which applies to “state actors” such as public school districts and public institutions of higher learning, and Title VI of the Civil Rights Act of 1964, which applies to both public and private institutions that receive federal funds (pg. 1).”

Race-conscious policies are subject to “strict scrutiny” where the courts assess the importance of the goals underlying said policies and the means by which to attain these goals. A court evaluates whether State University’s race-conscious quota admission policy 1) serves a “compelling governmental interest” and 2) is narrowly tailored to satisfy the particular interest; 3) a “strong basis in evidence” is usually required to justify the disputed policy using anecdotal/historical, statistical/empirical, social science, prior judicial, and/or ongoing discrimination evidence. In this case we want to prove that the racial quota policy serves a compelling governmental interest but is not narrowly tailored nor has a strong basis in evidence.

The compelling interest in using a race-conscious policy can be A) remedial interest to remedy present effects of past discrimination or B) non-remedial interests such as promoting educational diversity. Some of the language used in compelling interest for remedial interests is “Remedying the present effects of past discrimination” or “passive participation theory.” Examples of non-remedial interests use language such as promoting educational diversity, reducing racial isolation, and promoting educational research. Therefore, in order to use a racial quota , State university needs to prove that it has both remedial and non-remedial interests in their race-conscious admission policy.

Regents of the University of California v. Bakke is a defining case in race-conscious admission policies. In University of California Regents vs. Bakke, 438 U.S. 265 (1978), the Court stated that classification by race should be subject to strict scrutiny, must serve a compelling state interest, and lesser limitation on the rights of majority students. Applying strict scrutiny, Justice Powell rejected almost all of the university’s proffered justifications for its consideration of race, but found the university’s goal of “attain[ing] a diverse student body” to be “clearly” a “constitutionally permissible goal for an institution of higher education.” According to Justice Powell, a university’s “interest in diversity is compelling in the context of a university’s admissions program,” in which “[e]thnic diversity is only one element in a range of factors a university properly may consider in attaining the goal of a heterogeneous student body.”

The university didn’t establish that the special admission program is less limiting for majority students or the most effective for minority students. The court stated that the university needed a more aggressive nonracial program to recruit minorities. The admission process did show that some minority students were admitted with lower test scores and grade point averages than majority peers who were rejected. Also, the university did not show proof of admission discrimination prior to 1969. Therefore, the court upheld the goal of obtaining the educational benefits that flow from from a diverse student body could survive strict judicial scrutiny. The court upheld that diversity goals are important. The court concluded that the equal protection clause of the U.S. Constitution 14th Amendment applies to “any person.” The court’s decision was given to aid in the struggle to assure that each shall be judged on the basis of individual merit. The court concluded that the special program is invalid, the university is compelled to admit Bakke, and can no longer use race in the admission process. The equal protection clause of the Fourteenth Amendment of the United States Constitution pertains to all persons, not just minority students, and, therefore, is violated when a special admission program does not guarantee the rights of all.

Justice Powell endorsed the constitutionality of the Harvard Plan, a “flexible” admissions program which treats race as one factor among many that may be considered in making admissions decisions. But Justice Powell also determined that the university’s rigid quota system was not narrowly tailored to serve any asserted interest in diversity, and hence the university’s admissions process was unlawful. Unlike the Harvard plan described by Justice Powell, some univeristy policies do not allow admissions officers to consider “all pertinent elements of diversity” such as the potential contribution to diversity of an applicant identified as Italian-American.

Justice Powell’s opinion in the Regents of University of California vs. Bakke, 438 U.S. 265 (1978) stated that, “the use of race as a “plus” factor among several admissions factors is a narrowly tailored policy to promote educational diversity. More importantly, “the use of quotas, set-asides, or exclusive admissions tracks that isolate particular applicants is not narrowly tailored.” Accordingly, an admissions policy that seeks to create a diverse student body by considering the race of applicants must do so in a sufficiently flexible way. It goes without saying that a university may not establish a quota system for members of certain racial groups, and may not put members of one racial group on a different and more lenient track than members of another group. Race-conscious admission policies like University of California’s special admission program and and State university’s racial quota system are not considered narrowly tailored by Justice Powell’s definition.

Narrow Tailoring of Race-Conscious Admission Policies
The narrowly tailoring requirement is, “designed to evaluate whether a race-conscious policy is necessary to satisfy a compelling governmental interest (Civil Rights Project, 2002, pg. 3).” In other words, the courts are evaluating the fit of the policy with its objective in promoting educational diversity. In the United States vs. Paradise, 480 U.S. 149 (1987)., the Supreme Court upheld a court-ordered promotion plan designed to remedy discrimination in public employment. “The race-conscious relief ordered by the District Court is justified by a compelling governmental interest in eradicating the Department’s pervasive, systematic, and obstinate discriminatory exclusion of blacks.” There were a number of factors that the court examines:
the necessity for the relief and the efficacy of alternative remedies,
the flexibility and duration of the relief, including the availability of waiver provisions
the relationship of numerical goals to the relevant market
the impact of the relief on the rights of third parties

In the Johnson vs. Board of Regents of University of Georgia, 263 F.3d 1234 (11th Cir. 2001) there were a few factors to determine whether a higher education admission policy was narrowly tailored to serve a compelling interest in promoting educational diversity. By using this criteria in evaluating State University’s race-conscious quota admission policy, there are many limits in the policy. For example, there is no set duration or flexibility of the policy, there is little impact on non-minorities but it has unnecessarily burdened minority applicants by preventing them from competing with minority applicants on an equal basis, and there is a weak relationship between the goals and the market because it does not prevent the harms of tokenism. The policy uses race in a rigid and mechanical way, it doesn’t take into account race-neutral factors in admission, it does give arbitrary or disproportionate benefit to members of a favored racial group; and evidently the school has not considered nor rejected race-neutral alternatives. A race-conscious admissions policy still must ensure that, even when using race as a factor, the weight accorded that factor is not subject to rigid or mechanical application, and remains flexible enough to ensure that each applicant is evaluated as an individual and not in a way that looks to her membership in a favored or disfavored racial group as a defining feature of her candidacy.

Second, the policy must ensure that race-neutral factors which contribute to a diverse student body are considered fully and fairly along with race in making admissions decisions. We assume that there is value in having a racially-diverse student body. But racial diversity alone is not necessarily the hallmark of a diverse student body, and race is not necessarily the only, or best, criterion for determining the contribution that an applicant might make to the broad mix of experiences and perspectives that creates the value UGA asserts in diversity. An admissions policy that seeks to achieve student body diversity by allowing some applicants to be treated more favorably than others based on race must ensure full and fair consideration of other, race-neutral characteristics that contribute to a truly diverse class of students.

Third, the policy must use race in a way that does not give an arbitrary or disproportionate benefit to members of the favored racial groups, and thereby unduly disadvantage applicants from outside the favored groups who may well add more to the overall diversity of the student body. Even when a race-conscious policy permits broad consideration of race-neutral factors that contribute to diversity, it may undervalue those factors in a way that makes race effectively the primary criterion for diversity.

Finally, a university defending a race-conscious admissions policy must show that it has genuinely considered, and rejected as inadequate, race-neutral alternatives for creating student body diversity. We have held that only as a “last resort” may race be used in awarding valuable public benefits such as government contracts. Race-based decision-making is at odds with the Constitution in any context, and before injecting race into the admissions process, a university should explore seriously and in good faith the wide variety of race-neutral measures that may enhance not only the overall diversity of the student body, but also racial diversity itself.

The Great Debate I: Public Opinion

Affirmative Action in Higher Education

Affirmative action is one of the most controversial topic in higher education concerning race and ethnicity of student populations and university diversity policies. I’m not arguing one way or the other because I am torn about present practices and, hopefully, I can show you this struggle in my post. However, I am biased because I have benefitted from affirmative action policies for being a black young woman from rural Ohio. So I personally understand the benefits and the costs of such policies in higher education. I hope to present facts so that you can form your own mind about diversity and affirmative action.

I have tried to include sound research that uses credibly accepted methodologies to show that student body diversity leads to a wide range of educational outcomes. It also provides substantial evidence in support of our argument that the promotion of educational diversity is a compelling governmental interest.

Universities should be concerned of having a critical mass of students and not a rigid quota system to uphold their mission statements of promoting educational diversity. For example, many viewpoints surrounding affirmative action view diversity as a benefit in higher education; yet, they disagree about the need for affirmative action. Aguirre and Martinez (2007) states, “The word diversity in discussions of higher education often results in technical arguments about affirmative action and moral discussions about merit” (pg. 4). Diversity and affirmative action are two separate entities where diversity is the moral ethic of inclusion in the campus community while affirmative action represents the policies of equity in place at colleges and universities. In this blog I want to show the socio-historical policy, ethics, and economics of affirmative action in higher education.

Historically policies and laws had been passed to allow all students access to opportunities in education; however, it wasn’t until the Brown vs. Board of Education that reversed the separate but equal decision in Plessy vs. Ferguson in public education. The government also passed the Civil Rights Act of 1964 and the civil rights movement further changed higher education. Fed up with the empty promises of equality, Americans came together from different backgrounds to demonstrate and demand change in society, specifically higher education. Aguirre and Martinez (2007) state, “Affirmative action is rooted in the civil rights revolution of the 1960s, which produced the most important civil rights laws of the twentieth century and led to conclusions both by enforcement agencies and the courts that race-conscious civil rights policies were necessary in a number of areas of entrenched racial inequality… Judges and other officials concluded that the only way to achieve equal opportunity was to plan for it, to explicitly consider race when necessary to break segregation and exclusion, and to measure the results” (pg. 5) After years of policies that were not enforced or lacked the power to change institutional discrimination change had finally come… or did it?

Another landmark in setting affirmation action policy in admissions is Justice Powell’s opinion in the 1978 Regents of the University of California v. Bakke case. The case served as a, “Catalyst for public debates and opinion about the responsibility institutions of higher education have in responding to racial and ethnic changes in the U.S. population” (Aguirre & Martinez, 2007, pg. 4). Then discussions on diversity in higher education became focused on how institutions of higher education responded to the increase in admission of racial minorities. For the sake of promoting diversity in higher education, ethnic and racial diversity is only one of many factors to be considered in college admission when it serves the purpose of achieving a diverse student body and overcoming the present effects of past discrimination. Both serve the interest of the nation. Aguirre & Martinez (2007) state, “Gratz affirmed the pursuit of diversity in higher education as an ongoing interest in higher education, and Grutter supported the use of race to achieve diversity in higher education (pg. 8).”

Universities bears the burden of showing a “strong basis in evidence” to support its claim that promoting educational diversity is a compelling governmental interest. The Gurin (2000) report from the University of Michigan Gratz and Grutter cases supports the compelling interest in promoting educational diversity and, more importantly, the report is useful and reliable evidence documenting the positive effects of educational diversity. Since state government may serve as the trustees of some state universities then the mission of the school must serve the interests of the state and nation. Therefore, university officials feel that the university’s population should reflect the nation’s especially in racial/ethnic makeup.

Expert reports by researchers such as Patricia Gurin, Gary Orfield, Derek Bok, David Chambers, and Gundemann document the educational benefits of student body diversity is substantial and a compelling governmental interest without the use of quotas. In short, “Student body diversity can promote learning outcomes, democratic values and civic engagement, and preparation for a diverse society and workforce – goals that fall squarely within the basic mission of most universities.” pg. 10. Gurin analyzed three sources for her report: national data collected from over 9300 students at 200 colleges and universities; the Michigan Student Study containing survey data collected from 1300 undergraduate University of Michigan students; and data drawn from a study in the Intergroup Relations, Community, and Conflict class at the University of Michigan. The Gurin report reported significant and consistent results across all three data sets. Gurin concludes that “students who experienced the most racial and ethnic diversity in classroom settings and in informal interactions with peers showed the greatest engagement in active thinking processes, growth in intellectual engagement and motivation, and growth in intellectual and academic skills.

She states more specifically that “structural diversity” – the racial and ethnic composition of the student body – leads to institutional transformations that provide the opportunity for “classroom diversity” – the incorporation of knowledge about diverse groups into the curriculum (including ethnic studies courses) – as well as “informal interactional diversity” – the opportunity to interact with students from diverse backgrounds in the broad, campus environment. These diversity experiences are in turn linked to several positive learning and democracy outcomes.

Gurin was able to conduct research with undergraduate students. She found that students who interacted with students from diverse backgrounds had an increased sense of community and shared interest with other racial/ethnic groups. Other findings show that students who are able to experience diversity are also more likely to be involved and engage in experiential learning such as extracurricular activities, community service, study abroad, etc. This is important because the mission of most universities is to help students become active global citizens in a pluralistic and cosmopolitan society. These traits are also important in the job market as students reported that the diversity they were able to experience helped them adjust to study abroad, internships, and/or research assistantships.

Also Gundemann (2001) emphasizes the importance of “critical mass,” “The need for students to feel safe and comfortable and serves as a counter to the lack of safety or comfort felt when one finds oneself a ‘solo’ or ‘minority of one’(pg. 268).” Critical mass implies that, “enough students to overcome the silencing effect of being isolated in the classroom by ethnicity, race, gender, [etc.]. Enough students to provide safety for expressing views (Gundemann, 2001, pg. 268). The understanding of “critical mass” in State University’s race-conscious admission policy recognizes the harms that accrue from having only token numbers of minority students within its student body. Many researchers have found the dangers of tokenism as racial isolation, alienation, and stereotyping. Therefore, the university strives to admit enough students to represent varied viewpoints and perspectives within underrepresented groups. As stated in Ancheta and Edley’s Grutter Amicus Brief (2004), “Critical mass promotes the notion of intra-group diversity, which undermines the stereotype that all students within a group have identical experiences and possess identical viewpoints (pg. 25).” Ancheta and Edley (2004) continue, “The dangers of tokenism are especially apparent when one considers the actual number of students enrolled, rather than the percentages (pg. 29).”

Ancheta and Edley’s Grutter Amicus Brief (2004) states that, “Under Gurin’s statistical model there should be “interaction” between structural diversity and diversity experience variables (pg. 11).” In other words, Gurin is trying to show that diversity experience variables are more effective at higher levels of minority enrollment. Therefore, a critical mass of minority underrepresented students is needed to fulfill the goals of edicational diversity. Ancheta and Edley (2004) continue that, “Structural diversity affects the number of students who will have the diverse experiences and gain educational benefits, not the magnitude of the effects. The effects of diversity on hundreds of thousands of students in higher education can, over time, be substantial (pg. 10).”

Research and court records show that race-neutral policies are not as effective as race-conscious policies in promoting educational diversity. State university has considered race-neutral alternatives, such as not considering race on the application, in its policy but they were to no avail. Other race-neutral alternatives like considering class or economic disadvantage fail to promote the same levels of educational diversity as race-conscious admission policies. As researchers and experts have reported, race-neutral alternatives, “would substantially reduce the number of underrepresented minority students in the student body and increase the occurrence of segregated learning spaces and social settings. State University had also implemented pre-admission and post-admission recruitment events; yet, again they were found inadequate. The Wightman (1997) study found that, “None of the models employing race-neutral factors, including socio-economic status were as effective as race-conscious admission policies (pg. 39).” There has been shown a negative impact of race-neutral admission policies on minority enrollments in state universities where race-conscious admission policies were eliminated (Ancheta and Edley, 2004). Also race-neutral policies also failed in states where there was previously race-conscious admission policies (Ancheta and Edley, 2004).

The Ford Foundation in 1998 commissioned a survey, as part of a campus diversity initiative, to communicate the value of diversity in higher education. The survey’s results found widespread support for college/university efforts to diversify its campuses (Lurie, 1998). “The majority states that a diverse student body on college campuses has a positive effect and doesn’t weaken the college environment. However, participants also indicated that diversity is a significant challenge and viewed diversity education as a means for admitting and graduating unqualified students in higher education” (pg. 9). From the Ford Foundation’s study, “the American public believes that colleges and universities have a responsibility to promote diversity initiatives in American society” (Aguirre & Martinez, pg. 10). One way is to prepare students to function in a more diverse society and in a more diverse workplace. Yet how can initiatives be designed to address concerns about diversity in higher education, when most oppose the use of race in college admissions. The Gallup Organization composed another survey in 2003 which asked people to evaluate their views on whether “merit” or “race/ethnicity” should be used as a selection factor in college admissions (Gallup, 2003). Overall, this can be seen as reluctance or resistance to support diversity which is mostly favored by the public. “Institutions of higher education must develop and promote responses to diversity that communicate to society their recognition of changes taking place in society. Moreover, the organizational culture in higher education, however, often resists change because it perceives it as a threat to existing values and beliefs” (Aguirre & Martinez, pg. 16).

There are many differences in opinion about civil rights that occur along the racial lines. A national New York Times/CBS News poll in 1997 found that, “35 percent of whites but 80 percent of blacks thought that affirmative action should be ‘continued for the foreseeable future.’ Fifty percent of whites compared to 14 percent of Blacks thought that such programs should simply “be abolished” (Orfield, 2001, pg. 24). A 1997 Time/CNN national poll of teenagers showed that just 17 percent of whites believed that standardized tests were biased, compared to 40 percent of black teens. 76 percent of young whites but only 55 percent of young blacks thought that U.S. race relations would ‘ever get better’” (Orfield, 2001, pg. 24). Orfield (2001) states, “Laws do not enforce themselves and attitudes about difficult social issues tend to last and to have a continuing impact… The court decisions assuming that the burden of history has been lifted and that race no longer matters in American society assume a kind of sudden and irreversible change for which our history of race relations offers little support.” (pg. 10).

Privilege still exists and does not produce genuine equity. It is evident in the differences of cultural capital among different races which I will discuss in part III. There are other arguments in regards to admissions should focus primarily on allowing poor and low SES students to benefit from affirmative action admission policies. However, under this policy students from poor, low SES backgrounds would be disproportionally European and Asian Americans (primarily immigrants coming from professional backgrounds) (Orfield, 2001, pg. 26). Then only one aspect of diversity would be achieved but again excluding other populations that require special accommodations in the college admission process. Race/ethnicity is not class and class is not race/ethnicity.

The public (from the surveys mentioned earlier) may be perceiving relaxed academic requirements as ” ‘affirmative action’ that benefits only a few persons” (Aguirre & Martinez, 2007, pg. 18). Then the public are distinguishing between institutional initiatives that benefit a few persons (affirmative action) and institutional initiatives that infuse diverse experiences (diversity) into the academic culture. Therefore, a distinction must be made between affirmative action and diversity. As Chang et al (2005) states “Race in higher education is a complicated issue and a moving target. However, we are better understanding the modern forms of racial discrimination, how compositional shifts in the student body affect campus climate, how societal and psychological forces interplay to depress academic performance, and whether there are educational benefits associated with diversity (pg.10).”

Aguirre and Martinez (2007) state, “Diversity poses challenges for institutions of higher education education in regard to their ability to transform knowledge production process into one that promotes diversity as essential to improving society’s well-being. In other words, society expects higher education alone to develop acceptable ways to increase diversity” (pg. 17). Also, arguments against affirmative action state that all races and ethnicities are the same and that there are no real differences between these communities. Yet race does make a difference. As Orfield (2001) states, “Admission decisions are judgments about probabilities… We are making general assessments of students, estimating on the basis of probabilities what they will bring to the campus community” (pg. 14). It is worth considering race if the goal is to bring students with a broader range of experience and perspectives to campus. Affirmative action should be more than quotas and allow universities like State University to promote the benefits of diversity within their campus communities. The biggest problem is that, although the general public viewed diversity as important and rejected affirmative action policies, they never offered other alternative solutions.

P.S. To be continued!