Seven Myths about Affirmative Action in Universities
In the fall of 2002, President Lee C. Bollinger participated in a
symposium on "Education and Law" at the College of Law
at Willamette University . Below is the text of his speech, which was also
published in Volume 38 of the Williamette Law Review.
Thank you for inviting me to be part of your symposium on "Education
and the Law." It is a special pleasure
for me to be back in Oregon,
where I spent my teenage years and absorbed the special qualities and values of
My subject today is higher
education and the legal issues related to what we usually, and I think
unfortunately (for reasons I will explain later), call diversity. As many of you know, the University of
Michigan, where I served as President from l997 until just a few months ago, is
the defendant in two lawsuits that challenge the constitutionality of the
admissions polices in both the undergraduate and law schools insofar as they
take race and ethnicity into account in order to achieve a diverse student
body. (And I would add simply by way of
full disclosure that I am also named personally as a defendant in the two
lawsuits.) The plaintiffs in these
lawsuits (white applicants who were denied admission to these schools) are
represented by an organization known as the Center for Individual Rights, or
CIR. For the past decade, CIR has been
leading a national campaign to eliminate affirmative action. Their first success came in the Hopwood case, in which they brought suit
against the affirmative action admissions policy of the University of Texas Law
School. The Fifth Circuit Court of
Appeals sent a shock wave through all of higher education when it held, in the
mid l990's, that Justice Powell's famous opinion in Regents of the University of California v. Bakke, which created a
majority of the Supreme Court long understood as upholding affirmative action,
was no longer good law.
Since Bakke was decided in 1978, it has been understood that the
Constitution does not require public law schools to use a "colorblind"
admissions process. Indeed Bakke
reversed a decision of the California Supreme Court that had insisted on
colorblindness in admissions. An admissions process may lawfully consider race
and ethnic origin, but it may not rely on racial quotas, may not use a
two-track system with separate processes for majority and minority applicants,
and may not place so much emphasis on race that minority applicants are
admitted even though they are not deemed capable of doing good work in their
courses. The University
of Michigan employs
admissions policies that are entirely consistent with the Bakke requirements. But now Bakke
itself is being challenged.
Litigation has not been the only
method of challenging affirmative action.
Hopwood was followed by
Proposition 209 in California,
a proposal to amend the state constitution to forbid any consideration of race
or ethnicity in public decision-making, including admissions to state
universities. The California
electorate adopted that proposal, and it remains in effect today, with very
significant consequences for racial and ethnic diversity at Berkeley,
UCLA, and San Diego, the most selective
institutions in the California
That's where things stood when I
became President of the University
of Michigan in early
l997. It was clear to every one who was
watching the unfolding of this campaign against affirmative action that it was
building into a tidal wave ready to roll across the country, either in the form
of litigation or by referenda like Prop. 209.
Within a matter of months, CIR had filed its two lawsuits against the University of Michigan,
as well as a suit against the law school at the University of Washington. Later, in Washington, a ballot proposal modeled after
Prop. 209 passed, which then mooted most - but not all - of the lawsuit against
the University of Washington Law School.
That left the Michigan
lawsuits as the primary cases in the federal courts.
I, along with others at the University of Michigan, made two decisions at this
point. The first was that we would mount
a full and comprehensive case supporting Justice Powell's constitutional thesis
in Bakke - namely, that racial and
ethnic diversity are critically important to a modern education for all
students - and that we would show that our undergraduate and law school
admissions practices were entirely consistent with that constitutional
norm. And, second, we decided that we
would try in every way possible to explain to the broader public the
fundamental importance of the issues at stake in the litigation and why it is,
therefore, so critical that the course of constitutional law since Bakke, really since Brown v. Board of Education was decided nearly a half-century ago,
not be abandoned.
The University is supported in
its argument by individuals such as President Gerald R. Ford and Secretary of
State Colin Powell, and by virtually every major institution in our society,
including all of higher education - the Association of American Universities
(AAU), the American Council on Education (ACE), the Department of Justice,
churches, labor unions, and elementary and secondary school educators, General
Motors, and twenty other Fortune 500 corporations. The corporations argue in
their brief that racial and ethnic diversity in higher education is vital to
their efforts to hire and maintain an effective workforce prepared for the
opportunities presented by a global economy.
They state that managers and employees who graduated from institutions
with diverse student bodies demonstrate creative problem-solving by integrating
differing perspectives; exhibit the skills required for good teamwork; are
better prepared to understand, learn from, and collaborate with persons from
other racial, ethnic, and cultural backgrounds; and are more responsive to the
needs of all customers.
Last fall the two cases were
decided, each by a different federal district judge (the cases were not
consolidated but were tried independently).
In the undergraduate admissions case, the judge held that Bakke is still good law and that Michigan's policy of
considering race and ethnicity as factors and for educational purposes was
consistent with that constitutional decision.
In the law school case, however, the federal judge held just the
opposite, that race and ethnicity cannot be considered as factors in
admissions, even for educational purposes.
These two decisions are currently on appeal to the Sixth Circuit, and we
are awaiting that outcome. I must say
that I am very optimistic that the Sixth Circuit will rule in Michigan's favor.
Let me just complete the picture
of the current legal landscape on affirmative action. Besides Hopwood,
the ballot propositions in California and Washington, and our cases in Michigan, there are now two other federal
court of appeals decisions on affirmative action. The Ninth Circuit Court of Appeals held in
what remained of the University
of Washington case that Bakke is still valid under the
Fourteenth Amendment. But the Fourth
Circuit Court of Appeals has held, in a case involving the admissions system at
the University of
Georgia, that affirmative
action in university admissions is now unconstitutional. That case, however, was oddly presented to
the trial court, and hence to the appellate court as well. No evidence of the benefits and purposes of
affirmative action was presented because the case was handled not by the University of Georgia, but by the Attorney General of
the State, who opposed the University's policy.
upshot is that we now have a sharp split in the circuit courts on the issue of
the constitutionality of affirmative action.
The Fifth and Fourth Circuits have held against, while the Ninth has
held in favor, and (I predict) the Sixth will as well. This, of course, makes a perfect context, or
opportunity, for the Supreme Court to take the Michigan cases, as I expect it will
following the decision of the Sixth Circuit.
Moreover, of all the litigation thus far on affirmative action in
education, the Michigan
cases have by far the most extensive records.
What I would like to do this
afternoon is to review what I believe are the major misconceptions about
affirmative action in admissions, what I call the myths about racial and ethnic
diversity in higher education. It has
been my firm belief, as a participant and observer of this great issue of our
time, that many people have seriously mistaken views about what is involved in
university admissions and what is really at stake in the constitutional and
policy debates now underway. These
misconceptions or myths impede our ability to think clearly about what surely
is one of the most important constitutional issues since Brown v. Board of Education. Here, then, are seven significant
myths about affirmative action in universities and why it is important that
they be dispelled.
The first myth is that race is no
longer a significant factor in American life, that somehow we have gone through
the era of Brown v. Board of Education
and all of the decades of cases since then, and we are now in a position in
which race no longer matters in American life.
In large part, that is a myth.
That should be even clearer now, after the last six months, than it was
before. In the lawsuits, the University of Michigan makes the case that it is a
myth through statistical analysis, demographics, and other expert testimony.
Wishing that race is no longer a factor in American life doesn't make it
Americans of different races lead
surprisingly separate lives today. Metropolitan Detroit
is now the most segregated metropolitan area in the entire country; and Livonia, Michigan, a
suburb of Detroit, is the whitest city in the United States
of over 100,000 people. These two extremes reside right next to each
other. Indeed America as a whole is more
segregated today than it was at the time of Brown
v. Board of Education. Ninety-two
percent of the University
of Michigan's white
students and 52 percent of its African American students grow up in racially
separate communities. The result of this separation is that Michigan's incoming students have rarely had
the opportunity to get to know and learn from peers of different races before
coming to campus. And the same circumstance exists across the country. Some estimate that by the year 2030 (by the
25th college reunion of the students who are applying for college
this fall) forty percent of Americans will be members of a racial minority
group. Where will these different parts
of society come into contact so that they can learn from one another - about
their differences but also about their commonalties - if not in our system of
public and private higher education?
Race still matters.
But what is so key about race in
higher education? If differences of
opinion are what is important, why not accomplish that with an all-white
student body? The answer is that race
and ethnicity continue to be uniquely important factors in American life. Race
remains, alas, the "American dilemma."
When individuals meet on the street, when they decide where to live,
when they decide whom to befriend, when they decide with whom to work, race
matters. A well-educated undergraduate, a well-trained lawyer, should have
experience interacting with persons different from themselves. They should understand how the experience of
race can influence people's perceptions of our nation's social, legal,
political, and economic systems. A first-class education is one that creates
the opportunity for students, expecting differences, to learn instead of
similarities. Likewise, encountering
differences rather than one's mirror image, is an essential part of
a good education.
Faculty members relate
experiences where the learning taking place in their classrooms has been
powerfully affected either by the presence of students from different races, or
the lack thereof. Students' racial identities may affect their perception of
important works of literature, their views on the political process and the
role of government. A diverse classroom also allows students to dispel stereotypes
they may harbor about race and viewpoint.
The second myth has it that diversity -
and we use that word so often that it can come across almost as a cliché - is
good, but that it is optional, an augmenting part of our educational program -
"enriching," one might say, but hardly essential. So the first myth is that race doesn't
matter. Then, even if one agrees that
diversity in higher education is a good thing, there is still, maybe, a sense
that it's not that important, that we can do without it if it is difficult to
achieve. My point is that that is a
myth: ethnic and racial diversity within a university setting is absolutely
essential to the accomplishment of a university's missions, and is at the very core
of what a university does.
Interacting with people of different backgrounds creates the
environment in which learning and empathy are fostered - it is the very essence
of what we mean by a "liberal" or "humanistic" education. The analogy I use is Shakespeare: Why is it
that Shakespeare is thought to be one of the greatest if not the greatest
writers of all time? One of the
explanations, espoused long ago by the critic William Hazlitt, is Shakespeare's
uncanny genius for being able to cross into different characters' minds. Within a few lines, within a few minutes of a
play, one has the distinct impression of a particular human being, one who
thinks and feels and reacts in unique ways.
That, in large part, is what exposure in an educational context to
cultural diversity involves - the opportunity to come to a greater
understanding of others' points of view, and how their life experiences might
have caused them to be who they are and form the opinions that they hold. Grappling with race in America is, therefore, a powerful
instance of, a powerful metaphor for, crossing sensibilities of all kinds, and
crossing sensibilities is part of the core of Shakespeare's genius and of great
Some will be quick to note
that not all people of the same race hold the same opinions. And that is certainly true. There are too many people, of all backgrounds
and all political stripes, who think that is the case. And clearly the best way to undercut that
assumption is to have members of the majority come into contact with greater
numbers of persons of color, and visa versa.
Moreover, while not all African-Americans, for example, hold the same
views, the experience of being an African American in this country is typically
different from that of being a Caucasian, and the classroom -- and the campus generally
-- are enhanced by having an admixture of people with different human
experiences. One more point here: we all
recognize that people's behavior in a meeting, say, is affected by the gender
and racial make-up of the group: that is, the mere presence of a diverse group
- women, minority, men, majority - affects for the better how we act and what
we say, even without our knowing the personal viewpoints or opinions of the
other people present.
Having a racially diverse class
enables a law school to do a better job of preparing students to be effective
lawyers; and the same rationale applies, to medical schools and doctors.
Students are exposed to classmates who have had different life experiences, and
their prior assumptions are challenged. When an applicant's file reveals that
he or she might add to the diversity of perspectives that are voiced in class,
that helps the applicant's chances of admission.
The word diversity is a much-used
term now, and because it causes us to focus on the differences among people,
its use can lead us away from our similarities. Across race, across ethnicity
and religion, we often have more in common than we might have imagined. It is in part for that reason, and in part
because of the profundity of what is at stake, that I would prefer to speak in
terms of integration, and of education's role in helping us achieve an
integrated society. What we learn from
integration is as much or more about similarity as it is about difference. It is only through interacting with others
that you discover what you have in common as well as where you differ. A great soul, one person has observed, can
be deeply moved by abstract statistics; but for most of us it usually takes a
human face -- a specific personal experience -- to move us to understanding and
learning of the most profound kind. I
would hope, therefore, that we not be beguiled by our current language about
diversity into thinking that we are concerned with learning from diversity only
about differences, important as that is.
Nor should the use of the word diversity cause us to assume that
diversity is in this context something of a discretionary add-on or enrichment,
rather than something at the very core of the educational process.
The Center for Individual Right's
challenge to "affirmative action" in higher education admissions is not merely
a challenge to the mechanical or procedural particulars; the fact that race is
considered at all is what makes the process unacceptable to them. Theirs is a challenge to our philosophy of
education and to the historical purposes of our great universities. That is a
challenge I have welcomed - because I am confident that a diverse learning
community is a better learning environment.
And I am convinced that a diverse educational community furthers a
historical mission of universities -- the education of all students in order
for them to be good and productive citizens.
The third myth is
that there is so much self-segregation on campuses that all the effort to
integrate a campus and create diversity doesn't really accomplish very
much. Again, that is a myth. It goes back to my earlier observation that
most of the students come from all-white or
all-black high schools and lives.
Interaction takes practice, it takes experience, it takes time and
patience. If this is as difficult as I
suggest in part that it is, given where our students are coming from, the fact
that there is some self-segregation is more proof of the importance of the task
than it is a sign that somehow we are failing.
What do you expect? This is very,
very hard for people to do. And it is
very, very important for our nation.
That is why it is so necessary in higher education. If not there, then where?
The other reason that it is a myth is
there is far less self-segregation than people assume. I would invite people to go to the University of Michigan
campus or the Columbia
University campus, walk
around, and see for themselves.
The fourth myth is that the process of admissions is essentially a
process of rank-ordering the candidates by credentials - by SAT scores, grades,
and so forth, and then we draw a cut-off line: above the line, you get in;
below the line, you get on a waiting list or are denied admission. And then we take into account race, and we
make sure that we have a critical mass of minorities - and that race is the one
exception to the decision-making process.
That is a myth, a fundamental misconception about the way the admissions
Most public and private universities
across the country, including Michigan and Columbia, use a variety of
factors to determine a student's admissibility.
These include, among others:
High school grade point average;
The rigor of the high school courses taken;
Alumni relationships (parent, sibling, or grandparent);
Quality of the essay;
Leadership and service;
student or education;
Underrepresented racial or ethnic minority identity or
Residency in an under-represented region.
Any or all of these factors can
influence a student's admissibility because they are all characteristics that
contribute to the quality of the University and the diversity of the student
body. No one factor is determinative.
Obviously each year, the limited size of the entering class means that
thousands of talented applicants cannot be admitted. The task of the admissions
office is, using good judgment and a fair and legal process, to assemble a
student body it believes collectively will provide the best possible learning
Admissions officers are alert to
the potential of those who may not have had full opportunity to manifest their
talent (immigrants, for example), those
who have served the country (including veterans), or who have unconventional
talents (oboe players and talented sculptors and athletes). They must be responsible to the communities
from which they derive (e.g., state residents) as well as to the nation itself
(through geographic diversity). By
employing admissions policies aimed at a comprehensive diversity -- of which racial and ethnic diversity is an
important part -- the University is able to achieve its mission of educating
students to participate fully in our heterogeneous democracy and the global
It is important to understand that
admissions offices are not making thousands of individual, unrelated decisions;
they are trying to make the best judgment about individual applicants in order
to form the strongest class that will study and live and interact together over
an extended period of time - three
or four years. The question for each
applicant is what can he or she contribute to the whole, not where they stand
in splendid, isolated comparison with everyone else. Applicants have a right to be treated fairly
within the admissions process, but there is no right to be admitted to a
university without regard to how the overall makeup of the student body will
affect the educational process or without regard to the needs of society after
Are we, for example, really
prepared to say that medical schools cannot consider race in determining who
will be available to provide the medical care for our nation? We know that minority physicians are more
likely to practice in areas where there are high concentrations of minorities;
therefore diversity among practicing physicians and medical administrators
increases the availability of health care within underrepresented minority
communities. And while the minority population in our country is growing, in
absolute and percentage terms, the number of African Americans and Latinos
admitted to medical schools has declined markedly in recent years. It is clear that the changes in admissions
policies in California and Texas have contributed significantly to this
decline. And so the stakes are high not
only for medical and health education - but also for health care in this
country - if an adverse decision in these cases in the end imposes a federal
constitutional bar to the consideration of race in admissions.
The fifth myth is that the gap is too big. One can understand how important diversity
is, and how central it is to the educational process, but there is a sense on
the part of some that the "plus factor" in the admissions process given to
underrepresented minorities is too large.
Well, I would say, the gap is too big or too small or just right
depending upon your educational premises and depending upon our judgment as to
who can do the work at the university.
If your educational purposes are such, as I have argued, that a sense of
empathy and a presence of different points of view and experiences are central
to the educational process for all students, and if all the students whom you
admit can do the work, then the leg up is not too big. Nothing is too big or too small except in
relation to purposes and values.
The sixth myth is
that we can achieve diversity using other means. Could the Michigan
the undergraduate program, or the Medical
School obtain a racially
diverse class with a "colorblind" process, by placing greater emphasis on
socioeconomic factors? The answer is no; racial diversity and socioeconomic
diversity are not the same thing (because, in short, most of our poor people in
this country are white). When a colorblind process emphasizing socioeconomic
diversity was adopted at the law school at the University
of California at Berkeley, African American enrollment in the
entering class fell by approximately 60 percent.
In his opinion in Bakke, Justice Blackmun wrote (and he
was joined in this by Justices Brennan, White, and Marshall), "I suspect that
it would be impossible to arrange an affirmative-action program in a racially
neutral way and have it successful. To
ask that this be so is to demand the impossible. In order to get beyond racism, we must first
take account of race. There is no other
way. And in order to treat some persons
equally, we must treat them differently.
We cannot - we dare not - let the Equal Protection Clause - perpetuate
racial supremacy." That was right in
1978, and it is still right today.
Some schools in other states have
tried a "colorblind" admissions process in which they accept the students in
the top four percent or perhaps ten or twenty percentage of each high school in
the state. There are several problems
with this approach: first, this approach is completely ineffective for graduate
schools and professional schools.
Second, it would result in admitting some top students from weak high
schools who may not be academically prepared to do the work, and reject very
able students who are below the cut-off at a very strong school. Third, all opportunity for individual evaluation
and assessment of the candidate is lost.
And so the process is color-blind, but blind to the applicants
themselves as well! And fourth, for such
an approach to work, de facto segregation would have to continue in high
schools, which, given the purposes of such an approach, would be ironic in the
extreme. The conclusion is clear: the
best way to admit a racially diverse class is, not surprisingly, to use an
admission process that uses race as a factor -- the approach followed by
virtually every selective college and university admissions for the past thirty
If, in the future, colleges and
universities are not permitted to consider race as a factor in their admissions
processes, it will have a devastating effect on their ability to assemble a
diverse student body. It is likely that the number of minority students
enrolled at universities would decline significantly. The experience at California's flagship public universities, Berkeley and
the University of California at Los
Angeles (UCLA), bears out this prediction. Admission
levels of underrepresented minorities---Blacks, Hispanics, and Native
Americans---remain well below where they were prior to Proposition 209. At Berkeley, they are down 44
percent and at UCLA they are down 36 percent from pre-Proposition 209 levels.
And the decision will not affect Michigan alone: all public institutions across
the country would be affected, and all private higher education institutions as
well, given that, under Title VI, those schools are prohibited from
discriminating on the basis of race - and other things - in the admissions
process, and an adverse decision in the Michigan cases would in effect change
the statutory definition of race discrimination in admissions.
The last myth is that this
policy, well-intentioned and even important as it is, materially diminishes the
likelihood of a white student being admitted, and is therefore unfair. This notion that enormous numbers of whites
are being denied admission because of the preferential treatment of
under-represented minorities is simply false.
In fact, admissions policies such as Michigan's do not meaningfully affect a
white student's chances of admission. The numbers of minority applicants are
extremely small compared to the numbers of white students who apply to universities
across the country. It is not mathematically possible that the small numbers of
minority students who apply and are admitted are displacing a significant
number of white students. In their book The
Shape of the River, William Bowen, former president of Princeton,
and Derek Bok, former president of Harvard, looked at the nationwide statistics
concerning admissions to selective universities. They determined that even if all selective
universities implemented a race-blind admissions system, the probability of
being admitted for a white student would only go from 25 percent to 26.2
The source of this whole problem of
admissions affirmative action is, in large part, the need for remediation of
K-12 public education in under-resourced school systems. Addressing that issue, however, and seeing
the educational benefits will take many years, during which we will lose
several generations of students; in the meantime, colleges and universities
have had decisions to make -- classes of students to admit.
The effects of unequal - and
inadequate -- funding of public school on the quality of education for racial
and ethnic minority students are hard to overstate. And those effects are, in large part, the
source of the problem that the admissions affirmative action leg up seeks to
address -- making sure, as we do so, that we don't take students who can't do
the work. Renowned researcher Linda
Darling-Hammond notes that the wealthiest ten percent of school districts spend
almost ten times more than the poorest ten percent. And poor and minority
students are disproportionately concentrated in the least well-funded
schools. Predominantly minority
schools have difficulty hiring the most qualified teachers, which, she has
concluded, is a major contributor to the students' achievement gap. One study of 900 Texas school districts found that, "holding
socioeconomic status (SES) constant, the wide variability in teachers'
qualifications accounted for almost all of the variation in black and white
students' test scores." In general,
Darling-Hammond notes, "urban schools suffer from lower expenditures of state
and local dollars per pupil, higher student-teacher ratios and student-staff
ratios, larger class sizes, lower teacher experience, and poorer teacher
qualifications." Those factors are, I
think, important to keep in mind as we consider the disappointed majority
of the Michigan
cases will profoundly affect the quality of higher education, professional
education, and graduate education that all students - majority and minority --
receive in this country. It will help
determine the demographics of those classes.
It will determine whether the graduates, majority and minority, will be
leaders who have the education and experience that will enable them to thrive
in social and business contexts that are increasingly diverse and
international. And it will affect the
historic commitment of this nation to build an integrated society after over
two hundred years of slavery and exclusion for African Americans and
others. This was - and is - the
challenge of the greatest decision of the last century, Brown v. Board of Education.
eloquent New York Times op-ed piece
supporting the University of Michigan's admissions policies, President Gerald
R. Ford wrote, "Tolerance, breadth of mind and appreciation for the world
beyond our neighborhoods: these can be learned on the football field and in the
science lab as well as in the lecture hall.
But only if students are exposed to America in all her variety. ... [and then he goes on to say] I have often
wondered how different the world might have been in the 1940's, 50's and 60's -
how much more humane and just - if my generation had experienced a more
representative sampling of the American family."
And, so, far
from being some sort of nice but non-essential add-on, racial, ethnic and other
kinds of diversity in a university setting is at the core of what the
university does, it is absolutely central to the quality of students'
educational experience, and the diversity of its graduates is, as America's
business leaders have forcefully argued, one of the most valuable contributions
higher education makes to the nation's common weal. The greatest question is this: Do the ideals
of Brown vs. Board of Education,
reflecting our profound commitment to integration and to the fundamental role
of education in realizing that national goal, still have vitality and meaning
at the beginning of this new century, or will they slip into obscurity, a noble
but largely failed effort of the romantic and idealistic twentieth century?