MEETING # 1576

4:00 P.M.

NOVEMBER 21, 1996

Affirmative Action:
An Unsettling Issue

by James R. Appleton Ph.D.

Assembly Room, A. K. Smiley Public Library

AFFIRMATIVE ACTION AND THE ACADEMY: AN UNSETTLING ISSUE

INTRODUCTION

Affirmative action could become one of the most divisive and difficult subjects with which our society must deal in these years leading to the 21st century. The issues will be shrouded in political rhetoric and be used in political campaigns. The expression of the issues will vary widely depending, at least in part, upon ones political perspective, personal experiences, and ethnicity. The debates will often generate more heat than light. Ultimately' what is meant by affirmative action and what is allowed will be focused more sharply, but not without some fear that this issue will be the trigger that ignites the underlying frustration that has been building among segments of our society. At the same time, it is believed by others that affirmative action itself, as it has been administered, has been a cause and not a solution for those who experience discrimination or poverty, and must be eliminated or at least modified.

Affirmative action programs seek to give opportunities or benefits to persons, wholly or in part, on the basis of their membership in a specific group or groups. The primary historical purpose of such programs was to remedy the effects of discrimination. There are at [east four ways to define affirmative action. (1) Among qualified candidates (applicants, etc.) affirmative action means that the under represented candidates) should get the nod. (2) Among equally qualified candidates, affirmative action means that the under represented candidate should get the nod. (3) Among unequally qualified candidates, affirmative action means that the under represented status serves as a "plus factor" that may elevate an (other wise) less qualified candidate over (otherwise) more qualified candidates. (4) Affirmative action means equality of opportunity as opposed to equality of outcome.

Opponents of affirmative action argue that the first three of these definitions are discriminatory, that affirmative action runs the risk of continuing stereotypes and furthering resentment between races, that it is as likely to advantage minorities from advantaged families as much as those who are truly disadvantaged, and that unqualified or less skilled persons do not deserve to gain an advantage over those more quaIified. Those who presented the case in favor of the recently-approved California proposition 209 added that "special interests hijacked the civil rights movement. Instead of equality, governments imposed quotas, preferences, and set-asides.. . Proposition 209 bans discrimination and preferential treatment - period. "3 James Q. Wilson, a University of Redlands graduate and the Collins Professor of Management and Public Policy at UCLA argues that the University of California interpretation and program of affirmative action created what in effect has been a quota system.

Proponents of affirmative action, on the other hand, argue that "race-neutral remedies or fairness in the form of a promise not to discriminate are inadequate remedies for the inequities produced by over three hundred years of legal and cultural racism and discrimination. 'ts Some also argue that it is doubtful that biased-free decisions about who is best qualified can be made because we tend to make such decisions in self-interest, and with favoritism, thus creating unfair advantages that must be overcome by special action and considerations. Moreover, a recent study reports that "black teenagers have cut the student achievement gap between themselves and white teenagers almost in half in the last two decades and by 1990 almost fours times as many black teenagers had a parent who attended college than in 1970 - a direct product of affirmative action in higher education. tt6

The opponents of Proposition 209 argued that the Courts had already decided that quotas were illegal and what is intended with affirmative action is no more than modest outreach to accomplish racial diversity and equality of opportunity in the work place or in a student body that involve support programs as much as questions of access. In the words of Retired General Colin Powell, "Efforts such as the California Civil Rights Initiative which poses as an equal opportunities initiative, but which puts at risk every outreach program, sets back the gains made by women and puts the brakes on expanding opportunities for people in need. "7 We will be able to see whether this is true or not - as Proposition 209 has been approved.

At this time, confusion and uncertainty surround this topic of affirmative action and the future cannot be reliably predicted. Even the Supreme Court itself, or maybe one should say especially the Supreme Court, is not settled on this important issue. "The ten most recent Supreme Court decisions on affirmative action - only one of which, Berate, arose in the higher education field - have been split 6 - 4 in favor of various inclusionary approaches those cases involved." It is not likely that we can depend upon the judiciary to clarify the situation in the near term.

In this paper' I will cite some of the legislation and court rulings, with emphasis on those applicable to higher education (though this should not be presumed to be a case review); add something of my own perspective about diversity, and illustrate how the University of Redlands is interpreting our responsibility in student admissions and financial aid.

And I have a proposition to place on the table: ethnic diversity in higher education is an aspiration that we wish to espouse and which will benefit society as a whole.

TO THE 1980'S

The roots of affirmative action as American legal policy date to the Civil War era though this issue gained steam only a century later. "Within weeks after the Fourteenth Amendment was enacted in 1866, Congress passed the Freedman's Bureau Act to establish programs for former slaves." Throughout the remainder of the 19th century, however, government actions were confusing and inconsistent. As surprising as it may seem, in 1875 a Supreme Court decision reasoned that the time had already come to cease giving special benefits because of race. "In 1896 the court held in Plessy v. Ferguson that the amendment's Equal Protection Clause did not entitle blacks to sit in the same railway car as whites." Separate-but-equal might be the most accurate generalization of the time.

In 1954, the Supreme Court overturned the rulings of Plessy through the familiar case of Brown v. Board of Education in which the "need for racial integration of the public schools was determined to be compelling and that changes should be made 'with all deliberate speed'." This began a broad application of the concept of affirmative action to all minority groups and to women across education, employment, federally funded projects, and government activities. From that point on, the judicial, executive, and legislative activity jumped to the front pages and has remained there for the past forty-plus years.

In 1961, President Kennedy issued an executive order prohibiting race, religion, color, and national-origin discrimination in federal employment and established a commission with teeth to enforce it. President Johnson's actions extended the Kennedy legacy and earned him the reputation as the most active chief executive for civil rights since Lincoln. In 1964, Congress passed the Civil Rights Act to forbid discrimination in education programs and employment and also "authorized voluntary affirmative action by public as well as private schools, colleges, and universities to overcome conditions 'limiting participation by persons of a particular race, color, or national origin'."

I was at Oakland University in Michigan just a year after this Act was promulgated, as a faculty member and a dean, and remember well the efforts that we undertook to diversify the student body' and the programs of support and advocacy that were spurred by federal actions and funds. We developed one of five model programs of Upward Bound in the Midwest and moved from having less than ten Blacks in that state institution to a student body composed of 16% Black students within a three year period. It was both chaotic and exciting. Most of us were not well prepared to understand the impact or the values of these moves that came very fast and not without serious dissent and difficulty.

In the 1978 Bakke case, "a closely divided Supreme Court, with no majority opinion and six opinions in all, struck down a medical school admissions program that set aside a specific number of places for disadvantaged minority students. Yet the court upheld under the Fourteenth Amendment and Title VI consideration of race as a plus factor in admissions for the purpose of fostering educational benefits that flow from student body diversity." Justice Powell is credited with this "plus" factor terminology when he stated in rendering his opinion in Bakke that "no facial infirmity exists in an admissions program where race or ethnic background is simply one element - to be weighed fairly against other elements - in the selection process." Until recently, surprisingly, this very important decision has not led to other rulings of consequence.

Through the 1970's and the 1980's the Department of Education's Office of Civil Rights and other agencies authorized affirmative action programs, supported special admissions strategies, and encouraged, and even cajoled, colleges and universities "to take race into account to a greater degree in awarding financial aid than in their admissions decisions if the minority-targeted aid represented a small part of the institution's overall aid funds."

THE 1990'S: HIGHER EDUCATION LAW
AND LEGISLATION

But the tide began to turn in the early 1990's or at least the waters were churned up. The federal government reduced its role of enforcing the rights of minority students, compensatory programs were eliminated or given reduced attention. Whether we are in for gentle waves and modest restructuring of acknowledged excesses in some programs or a disturbing storm is not altogether clear. I would predict the latter. What is clear about the legal requirements or conditions of affirmative action at this particular juncture, however, is that they are not clear at all.

If a general principle can be gleaned from most of the affirmative-action law to date, it is this: Public and private colleges and universities may utilize preferences only where a court or other enforcement body orders them to do so or, in the case of preferences they adopt voluntarily, only where there is a permissible rationale for favoring the disadvantaged group, and the program is demonstrably narrowly tailored to meet the lawful purpose to be served... Both private and public institutions in defending affirmative-action programs, must show a "strong basis in evidence" that a preference is warranted.

I know this long recital is difficult to follow. It is also true that clear interpretation of this compact, but not altogether clear, language depends on how the political winds blow in the next decade.

It does seem that the "courts have looked more favorably on programs that meet the following tests: are designed to remedy racial imbalances and not to maintain racial balance; do not significantly trammel rights of non-minorities; use flexible goals, not rigid quotas; are not arbitrarily structured; are not perpetual; and seek to achieve the lawful purpose after race-neutral alternatives have been explored and found unworkable or inadequate. " At the same time, efforts to maintain a racial balance, increase the number of minorities in a profession, increase the number of professionals practicing in under-served areas, and provide faculty role models for public school students have not survived the same scrutiny.

There is a significant amount of case law that has been built up around this issue but there are two cases affecting higher education that stand out: the 1978 Bakke case cited already and the Circuit Court of Appeals ruling in Hopwood v. Texas.

In March, 1996, the Fifth Circuit Court of Appeals, (with jurisdiction in Louisiana, Mississippi, and Texas) ruled in Hopwood v. Texas "that using race as a criterion for achieving diversity in student bodies is no more rational on its own terms that would be choices based upon the physical size or blood type of applicants. and that schools that "elevate some races over others, even for the wholesome purpose of correcting perceived racial imbalance in the student body" violate the Fourteenth Amendment. The law school had argued that its program was justified not only to remedy the present effects of past discrimination, but also to provide educational benefits stem only from a diverse student body. Two members of the panel rejected both of these justifications but a third disagreed with the rejection of the diversity argument. In Texas this left no ambiguity, as the Higher Education Coordinating Board declared minority-based scholarships illegal on the heels of the Hopwood decision. However, the Supreme Court' s refusal to review this decision defers further clarification of legal policy for the rest of the country.

Legal Counsel for the American Council on Education advises that "Bathe remains good law and that the Fifth Circuit opinion applies only in the three states in that circuit." At the same time, he notes that recent Supreme Court decisions, such as Adarand v. Perm (not a case involving higher education, but rather having to do with set-aside programs for minority contractors) "reflect a heightened skepticism by the divided Court about affirmative action."

The fallout from a 1995 decision in Adarand v. Pena, in which the Supreme Court again was widely divided, does reveal that the Court now is more hostile to racial classifications. Its race-neutral stance has been extended by some lower courts into university admissions and financial aid programs. Justice O'Connor, in rendering her opinion, "emphasized not Justice Powell's point that race is a valid consideration in admissions but his remark that 'racial and ethnic distinctions of any sort are inherently suspect and thus call for the most exacting judicial examination."

It appears to me that, except where explicitly prohibited by law or statute, "in order to excuse race-based admission, the school would have to show that it (1) was adopted to remedy present effects - i.e., a hostile environment; (2) that resulted from past discrimination committed by that particular school; and (3} that the effects are of sufficient magnitude to justify the program."

The case law that affects how institutions apply financial aid is still sketchy and non conclusive but the Hopwood case may influence other states in the months ahead. In states where there had been state-sponsored segregation, the courts have approved race-based admissions goals and race-exclusive scholarships. Narrowly conceived affirmative-action plans to increase employment opportunities for minorities also have often been supported. However' it is clear that the trend is to recognize that race-conscious remedies also have their adverse effects. "Too much, spread too liberally, harms those it seeks to assuage along with other innocents who are asked to shoulder the burden disproportionately.

Affirmative action revisioning is not limited to the courts. As we know, Governor Wilson influenced the University of California regents to vote to end affirmative-action in University of California admissions, calling for an end to the explicit use of race, religion, sex, color, ethnicity, or national origin as criteria for admission, and our State has just passed the statewide initiative prohibiting state and public entities from discriminating or giving preferential treatment to any individual or group in public employment, public education, or public contracting on the basis of race, sex, color, ethnicity, or national origin. While it is not clear to what extend the judiciary will act, a review of federal programs is under way and the California voter action on Proposition 209 is likely to influence the actions in other states.

THE VALUE OF ETHNIC DIVERSITY IN THE ACADEMY

Leaving for a moment, the specific topic of affirmative action, I stated at the outset of this paper that I had a proposition to place on the table. The proposition: ethnic diversity in higher education is an aspiration that we wish to espouse and which will benefit society as a whole. Indeed, there may be more reason for promoting diversity in educational settings than in governmental or commercial activities. More specifically, this is an aspiration that I have for the University of Redlands. We have recently completed a planning process that established eight goals and a large number of priorities that are intended to contribute to those goals. One of the goals is to develop the University of Redlands more fully as a dynamic community of communities that promotes learning for students in a supportive and challenging environment... We reaffirm our commitment both to valuing our diversity and to forging a community that draws strength from such diversity. Even as we value the diversity of our community and seek to engage our various constituencies in the ongoing life of one community, we acknowledge that we must continue our efforts to attract an increasingly diverse student body. At the same time, as members of an academic institution, we acknowledge a special responsibility to engage one another in discourse that will help us understand our differences, create a campus environment that is free of racial, ethnic, or gender-based harassment and come to terms with the challenging theoretical issues that animate the nation (and international) conversation of issues of community and diversity."

There are several reasons to consider ethnic diversity within the academy as a worthy aspiration.

First, there is an ethical or moral issue at stake. If we believe in equal opportunity for our citizens then, perforce, we ought to have an educational environment in which some reasonable proportion of the segments of society should be able to participate in higher education, have the opportunity to gain the advantages provided, and equally welcomed, valued, and heard.

A 1995 report prepared by the American Commitments National Panel of the Association of Colleges and Universities summarizes their work by stating the following.

Higher education's goal' we believe, should be to deepen public and campus knowIedge of United States diversity histories, to reengage with democratic aspirations as a moral compass for intersecting communities, and to recommit ourselves - as educators and as citizens - to the still-elusive goal of meaningful equality for every American. "

Democracy as we use it here refers to the ideal that all human beings have equal value, deserve equal respect, and should be given equal opportunity to fully participate in the life and direction of the society. Diversity refers to the variety created in any society (and within any individual) by the presence of different points of view and ways of making meaning which generally flow from the influence of different cultural and religious heritages, from the differences in how we socialize women and men, and from the differences that emerge from class, age, and developed ability.... Each of these concepts considered without the other is diminished both in meaning and its value. . .

But diversity can also signify unequal access to political, economic, social, and cultural power. When diversity is characterized by patterned inequity and persistent marginalization of specific groups, it is a symptom of democracy's failure, a sign of society's unwillingness or inability to confront continuing injustices...

While universal democracy has not been attained in the United States, the presence of the ideal as a unifying American creed establishes it both as a societal aspiration and as a valued goal toward which our democratic system should move.

To be sure, the colleges and universities cannot wave a wand and insure this equality of opportunity, because the preparation for performance at this level must start in the home and in the lower grades. So this is not to infer that the questions of how to reconcile inclusion with equity are easy to solve. "Merit'' must still be the salient consideration for admission or the public confidence on which higher education depends would erode. But as an aspiration, equal opportunity may take on the tones of moral obligation. We must see ourselves as a meeting place for studying, discussing, living, and enlarging the meaning of American democracy.

Moreover, this University claims to have as a high calling the education of tomorrow's leaders in government, industry, education, and the professions. Today's students, tomorrow's leaders, will take their place in responsible positions in a nation that has no racial or ethnic majority. More of these leaders are likely to reflect the diversity of our society. Thus, we have the responsibility of providing the educational opportunity that is required for leadership. "Instruction must help students understand fundamental areas of knowledge, including the knowledge essential to be a citizen (yes, a leader} in a democratic society and in a world order built upon coalitions whose members understand one another and seek common ground." Related to this idea, this society faces stiff competition in a competitive global economy and it is incumbent upon us to insure that talent is not wasted, indeed that it is captured for the benefit of us all.

A second reason for considering ethnic diversity within the academy as a worthy aspiration might be stated this way: when the meaning of educational quality is examined at a level deeper than SAT scores, endowment per student, faculty-student ratios, and the measures used by the U. S. News and World Report, diversity can be viewed as a variable of quality and need not be antithetical to quality.

The Western Association of Schools and College's 1993 Statement on Diversity states that:

a quality education introduces students to the richness of the intellectual world and broadens the range of scientific and cultural topics on which students can exercise discernment, logic, and balanced judgement .... A quality education helps students acquire the habit of critical analysis of data, assumptions, and argument. Instruction, study, and interaction with students of diverse backgrounds can, if led well, add to the setting for the analysis and evaluation of diverse and competing ideas. This report states further that a quality education prepares a student to grasp and respond constructively to persons, ideas, situations, and challenges novel to his or her experience.

Alexander Astin, professor of higher education and director of the Higher Education Research Institute at UCLA, has determined from empirical studies in a national study that heightened cultural awareness, commitment to promoting racial understanding, commitment to citizenship development, and commitment to developing a meaningful philosophy of life is realized more fully in institutions where there is a strong institutional emphasis on diversity. A racially homogeneous campus is going to find it difficult to succeed in addressing the issues and values of diversity.

I agree with Robert Atwell, the president of the American Council on Education, when he stated recently that "all students benefit from an education in which diverse backgrounds, life experiences, and other relevant characteristics are brought to bear.

Parenthetically, while increasing diversity might also increase political activism, small numbers of minority students foster hostile environments for these students so there is value in achieving some critical mass of ethnic diversity within a student body. This improves the social situation for the minority students and provides increased opportunity for interchange among all students. Think of a residence hall floor with one African-American student among a floor of thirty students. His response to racial slurs, his willingness to enter dialogue on sensitive issues, his ability to be vulnerable in debate is likely to be affected by this situation. Picture the same floor the next year in which there are seven or eight minority students among the thirty. Language and behavior for all parties is likely to be different, the opportunity to develop community just as real, but with some effort, tolerance, and patience by all.

HOW I INTERPRET OUR RESPONSIBILITY
AT THE UNIVERSITY OF REDLANDS

If one will accept the value of student diversity within the academy as a given for a moment, and if a limited program of affirmative action is allowed, then the question becomes "How might we interpret our responsibility?" While we at the University of Redlands have made progress on this front, and our commitment to achieve an ethnically diverse student body remains valid as one of our institutional priorities, we have not progressed to the point where this is a non-issue for us. So what steps might we take that also meet the conditions of law and regulations?

I should note that while we are responsible for not practicing segregation or discriminating against minorities both in admission of students, the application of student aid, and in employment, the constraints on us as an independent university are considerably less than the conditions placed on a state college or university and this will be in evidence in this recital. The penetrating questions: how to reconcile inclusion with equity and how to advance our educational objectives while not creating a storm of public protest or violating law and regulation as it develops.

First, we are intentional in efforts to increase the pool of applicants overall and have acted affirmatively in developing strategies for recr