June 25, 2003

Researchers at The Civil Rights Project Issue Statement Analyzing the Implications of Supreme Court's Decisions for Higher Education

Statement from:
Professor Gary Orfield, Catherine L. Horn, Ph.D., Patricia Marin, Ph.D., Michal Kurlaender, Ed.M

The Value Of Diversity And The Importance Of Developing Leadership

When the Court last visited this issue in the 1978 Bakke decision, only Justice Lewis Powell – whose intermediate position decided the case – spoke about the educational value of diversity as a central justification for the consideration of race in admissions. Twenty-five years later, the Grutter and Gratz rulings indicate a clear majority of the Court has adopted this position and resolve ambiguity existing for a quarter century about whether such an argument would provide a viable legal basis for affirmative action.

Relying heavily on testimony and social science evidence, Justice O’Connor’s majority opinion concludes that the educational benefits of diversity are substantial. “As the District Court emphasized, the Law School’s admissions policy promotes ‘cross-racial understanding,’ helps to break down racial stereotypes, and ‘enables [students] to better understand persons of different races.’” Further, “numerous studies show that student body diversity promotes learning outcomes, and ‘better prepares students for an increasingly diverse workforce and society…’”.

In addition to the educational value, which Powell saw as the only justification for race-conscious policies, these decisions recognize the importance of diversity in training students to be leaders in the community and to practice their professions well in a multiracial society. O’Connor writes, “In order to cultivate a set of leaders with legitimacy in the eyes of the citizenry, it is necessary that the path to leadership be visibly open to talented and qualified individuals of every race and ethnicity. All members of our heterogeneous society must have confidence in the openness and integrity of the educational institutions that provide this training. As we have recognized, law schools ‘cannot be effective in isolation from the individuals and institutions with which the law interacts.’...Access to legal education (and thus the legal profession) must be inclusive of talented and qualified individuals of every race and ethnicity, so that all members of our heterogeneous society may participate in the educational institutions that provide the training and education necessary to succeed in America.”

These broader arguments link to the goals of Brown v. Board of Education and to earlier higher education decisions, including Sweatt v. Painter, and are, again, supported by substantial social science evidence such as William Bowen and Derek Bok’s book, The Shape of the River. This sweeping recognition of the compelling constitutional character of a range of valid reasons to pursue affirmative action will surely be invaluable for college officials in explaining policies to their constituents and the public.

Reviewing All Applicants Holistically

From an institutional perspective, one of the most positive developments in Grutter is the clear rejection of the plaintiffs’ demand that the courts take over the admissions process of universities. O’Connor writes, “Our holding today is in keeping with our tradition of giving a degree of deference to a university’s academic decisions, within constitutionally prescribed limits. We have long recognized that, given the important purpose of public education and the expansive freedoms of speech and thought associated with the university environment, universities occupy a special niche in our constitutional tradition.” This provides important encouragement and broad guidelines for college leaders and admissions staff as they seek ways to recruit and admit the best possible classes.

While the goal of affirmative action has been reinforced by these decisions, the Court has rejected the means used by the undergraduate college to achieve those goals as being neither flexible nor sufficiently individualistic. The Michigan point system was a good faith effort to implement the “plus factor” language of Bakke. However, the Gratz ruling requires that colleges and universities move toward methods of more individualized assessment. This is a more costly and time-consuming process, and the challenge hits public universities at a time in which higher education budgets are being cut back in two-thirds of our states. Campus leaders are faced with a difficult challenge, and it will be important to share information about how to best honor the new legal requirements in a fair and cost-effective way. In our book, Chilling Admissions: The Affirmative Action Crisis and the Search for Alternatives, for example, researchers from the University of California found that during the first year of comprehensive file review at the Irvine campus officials were able to conduct 15,000 full file reviews of applicants without significant increases in admissions expenditures and that the process identified at least 20% more qualified black, Chicano and American Indian students than simply admitting students on test scores and grades. The University of California has now begun this process statewide. In the next phase of our project’s work, we will seek to study the benefits and costs of these and other new admissions models in collaboration with universities.

Time Limits And The Need For Additional Research

While the decision does not set a strict time limit, Justice O’Connor holds that it is essential to periodically reexamine whether or not affirmative action is still necessary and expresses her expectation that it will no longer be needed 25 years from now. Conservative groups have already announced that they will try to enforce this time limit. In response, it will be prudent for researchers and college officials to monitor the relevant trends, speak out on the necessary policies, develop multidimensional assessments that better measure skills relevant to college success, and conduct research demonstrating what works to lower the gaps, what is a reasonable expectation of progress, and when equity has been achieved. If we adopt sound policies that effectively narrow gaps in achievement and assure all students fair access to competitive programs and schools, it is much more likely that we will move toward the desired goal. If we continue to increase segregation and inequality in educational experiences, however, these expectations are much less likely to be realized.

Groups opposed to affirmative action may try and use the fact that the Supreme Court overturned the undergraduate point system at Michigan and the requirement that colleges and universities think seriously about the viability of non-racial alternatives to confuse and intimidate university officials. In reality, the Court has affirmed the right of institutions to make reasonable, non-mechanistic educational judgments about who can contribute to the campus and lays out a much clearer path than existed before on how that might be done. As a result, college leaders can now act on firm legal foundation, not under threat or in confusion.

Educational leaders often feel that laws and regulations are written without an understanding of the mission of higher education, the pressures these institutions face, or the complexity of their responsibilities. In these decisions, the Supreme Court has carefully considered the evidence on educational effects, and it has given higher education workable principles of action. The challenge now comes back to our campuses and our state officials to find effective ways to pursue these crucial civil rights objectives.

This is the most promising time for racial equity in higher education in a generation, and the guidelines set forth by these decisions provide us with tools that can help our nation’s campuses train the leaders who can make an extremely diverse society work.

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