How Much Diversity Is Enough?

Does a White Mother on Welfare Count?

A decisive question before the Supreme Court in the University of Michigan affirmative action cases is whether assuring diversity—of race and ethnicity—in student bodies is enough of a compelling state interest to justify the school's admission preferences for blacks and Hispanics. Gender has also been a factor at other colleges.

As former University of Georgia president Charles Knapp has emphasized, students, after graduation, will have to work with people from "different ethnic and cultural backgrounds," and this essential skill "cannot be fully acquired by students whose educational and life experiences have been racially or culturally homogeneous."

This is also the case for affirmative action at the University of Michigan and every other college that has preferential admissions policies.

One lower court that looked at this basis for racial and ethnic preferences very closely was the First Circuit Court of Appeals, in a high school case (Sarah Wessman v. Robert Gittens, 1998).

The public Boston Latin School (my alma mater) was engaged in a vigorous affirmative action program. The First Circuit noted that the high school wanted a critical mass of black students who would not therefore feel isolated and would be able "to express themselves." This would also be of much educational benefit to the white students and the faculty.

However, said the judges, "the 'racial isolation' justification is extremely suspect because it assumes that students cannot function or express themselves unless they are surrounded by a sufficient number of persons of like race or ethnicity. [This policy] promotes groups over individuals.

"Furthermore," the First Circuit Court of Appeals continued, "if justified in terms of group identity, the policy suggests that race or ethnic background determines how individuals think or behave. . . . [The Boston] School Committee tells us that a minimum number of persons of a given race (or ethnic background) is essential to facilitate individual expression."

The court went on to the core of the "right percentage" approach to affirmative action: "This very position concedes that the policy's racial/ethnic guidelines treat individuals as the product of their race—a practice that the Supreme Court consistently has denounced as impermissible stereotyping." (Emphasis added.)

The Boston School Committee wanted to appeal to the Supreme Court the First Circuit's decision against its affirmative action policy. But the NAACP persuaded the committee to remain silent, for fear that the Supreme Court might agree with the First Circuit and thereby end all such preference admissions across the country.

But this term, the Supreme Court will finally deal with—among other issues—whether the "equal protection of the laws" clause of the Fourteenth Amendment forbids collective preferences as violating individual rights.

The late Justice William O. Douglas—a fierce opponent of discrimination in any form—wrote: "There is no superior person by constitutional standards. [An applicant] who is white is entitled to no advantage by reason of that fact, nor is he subject to any disability, no matter what his race or color. Whatever his race, [an applicant] has a constitutional right to have his application considered on its individual merits."

And there is a different way to affirmatively take into consideration all individuals who have shown the ability to overcome discrimination, poverty, disability, dysfunctional families, and other obstacles that have resulted in lower grade point averages and SAT scores. These achievers, whatever their color, or mixture of colors, have proved they have the determination and the grit to take on college and graduate school work. Accordingly, admissions committees should give them credit for their ability to overcome obstacles when considering their applications.

This actual multicultural approach is working now. In California, the voters enacted Proposition 209 in 1996, ending affirmative action in college admissions; and in Texas, the 1996 ruling by the Fifth Circuit Court of Appeals ended affirmative action.

As a result, because college admissions directors in those states could no longer give racial and ethnic preferences, they—along with administrators and professors—left their offices and actually went into middle and high schools in low-income areas.

They worked with the teachers to raise their expectations of the students, and they helped make the curriculum more challenging. More of those students are now being admitted to colleges without affirmative action. And, as National Public Radio reported on February 11, "Top universities [are continuing to target] high-poverty schools with outreach, recruitment, and scholarships."

For a further example, James Traub, in a May 1999 article in The New York Times Magazine, wrote that professors and administrators throughout the California system admitted that those universities "would never have shouldered this burden [of getting involved in secondary schools] had it not been for the elimination of affirmative action."

In 2001, five years after by-the-numbers affirmative action ended in Texas, William Cunningham, chancellor of the University of Texas system, said, "Admissions teams went out with very aggressive programs to interview a larger number of applicants than they had in the past, and we have not had to reduce our admissions standards."

It is also worth noting—as I reported in the June 18, 2001, Legal Times—that in this outreach, the life stories "not only of black and Hispanic students, but also of rural white students, came into consideration as the admissions teams learned about the obstacles that individual applicants had overcome."

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