If you’re not up on the latest in higher education political correctness, here’s a word to the wise: don’t call it affirmative action. The new term of art is “race-conscious diversity practices”, and there are very good reasons for that. The purpose of admitting more minority students is no longer just to make sure they are on a level playing field, it is to provide all students with a complete education.
Derek Bok, former Harvard president and author of “The Shape of the River: The Long-Term Consequences of Considering Race in College and University Admissions”, came on my radio show on WCAP recently to talk about it. “Every selective college uses race-sensitive admissions,” he said. “There is a good deal of research that says a diverse student body improves people’s education, improves even things like their critical thinking. Society needs to have diversity, not just at the bottom of society but also in places of leadership.”
One selective college using race-conscious diversity practices is the University of Texas. Abigail Fisher, a white student denied admission, filed a lawsuit that is back on the Supreme Court docket to be heard a second time. Though most expect the Supreme Court to uphold the rights of colleges to admit a diverse class, many selective colleges are rightfully concerned. When the Supreme Court heard Fisher v. University of Texas for the first time, the case was sent back to the lower court on the grounds that it had not applied strict scrutiny to its review of university admissions practices (though Justice Ruth Bader Ginsberg provided ample evidence to the contrary in her lone, blistering dissent).
In Massachusetts, we may have a kind of reverse Abigail Fisher problem. University of Massachusetts at Amherst Chancellor Kumble Subbaswamy says that students there not only welcome diversity, they demand it. “When students look around and see only students like themselves they get discouraged,” he says. “If our campus is a reflection of the small towns our students grew up in, it’s not a complete education. If we lost diversity, I would expect a backlash from white students saying they were expecting a more diverse campus, especially since this is in the public sector.”
Most think the Supreme Court will affirm that “student body diversity is a compelling state interest that can justify the use of race in university admissions.” [1] But even if the Supreme Court keeps race-conscious diversity practices legal, and students demand it, requiring colleges to demonstrate that “no workable race-neutral alternatives would produce the educational benefits of diversity” [2] could make the cost prohibitive. Race-neutral methods of increasing diversity may include marketing to students from majority minority high schools, and to students in neighborhoods geodemographers predict will contain minority students likely to enroll. Add to that the potential cost of litigation if rejected white students sue. How many colleges will simply admit the white students because they cannot afford not to?
According to new University of Massachusetts President Marty Meehan, it won’t be UMass. When asked if he worries that UMass might someday be on the receiving end of a lawsuit like Fisher, his answer is a definitive, “No.” He says there will be no change in their diversity policy. “There is strength in diversity,” he says. “UMass Boston is a majority minority campus. You can’t help but go on that campus and be inspired.”
Like every college president I’ve ever spoken to, Marty Meehan is very comfortable talking about race and diversity. But most people aren’t college presidents. In 2013, the same year the Supreme Court first heard Fisher, the Court struck down part of the Voting Rights Act, finding things had changed “dramatically” in the south, and that the “country has changed”. [3] Two years later we are in the midst of a new national discussion on race, and watching an ongoing, heartbreaking twitter feed of names of black people brutally, casually killed in the name of policing, along with videos, body cam footage, and cell phone pics that make the racism behind the killings impossible to deny.
In the middle of this political climate, could the Supreme Court again find that laws to protect against racial discrimination are no longer needed? The swing vote will come from Justice Anthony Kennedy, who has never voted to uphold affirmative action. But Art Coleman, Chair of the Board of Directors for the Institute for Higher Education Policy, says that Justice Kennedy has been strikingly consistent and centrist. “Kennedy has participated in four cases in which he has affirmed that racial diversity in education matters, and that it can, in theory, be compelling enough to support race-conscious practices,” he says. “At the same time, he has examined actual race-conscious policies with great suspicion, having never upheld such a practice.”
The court may find a narrow space where race-conscious diversity practices stay legal. But if their implementation raises costs by being too cumbersome to adopt, and too expensive for a college to defend if it gets sued, campus diversity may become unaffordable for many students. The consequences would be felt from the bottom to the top, as organizations would have a smaller pipeline for leadership diversity. As Derek Bok put it, “Diversity is important in order to provide legitimacy. To be legitimate, people in the ranks need to look up to the leadership and feel, ‘I’m not led only by people who look and talk very differently from me.’”
Admitting minorities is no longer just about creating a level playing field for those students, it is about recognizing that minority students bring something the whole campus needs. If fewer minorities are admitted, it will hurt the white students too. As Chancellor Subbaswamy put it, “The white student will be disadvantaged by spending four years on a campus that does not present the kind of plural society we live in.” The evidence in favor of the benefits of keeping race-conscious diversity practices legal is overwhelming. The big question for the Supreme Court is this: How much good will you do if you keep race-conscious diversity practices legal, but unaffordable for the colleges and students who need it most?
[1] Gratz v. Bollinger, 539 U.S. 244 (2003)
[2] Fisher v. University of Texas, 133 S.Ct. 2411 (2013)
[3] Shelby County, AL v. Eric Holder, AG, 570 U.S. ___ (2013)
Mara Dolan, an attorney, is Asst. Prof. of Public Policy and the Media at the Massachusetts School of Law.
