Two arguments for race-conscious admissions policies by Katie Reed

The case of Fisher v. University of Texas, currently before the United States Supreme Court, potentially has far-reaching consequences for universities, as it could effectively eliminate affirmative action admissions policies. Abigail Fisher, a white woman denied undergraduate admission to the University of Texas in 2008, holds that the University’s admissions policy discriminates against her on the basis of race, thus denying her equal protection, a right guaranteed under the Fourteenth Amendment. On the other side, the University of Texas, a public institution, argues that it is within the scope of legal precedent since its use of race in making admissions meets a “compelling interest”.  The legal concept of compelling interest refers to a criterion that must be met in the eyes of the Supreme Court in order for race-conscious policies to be considered constitutional. There are two other tests that must be met, but I focus on the concept of compelling interest.

The compelling interest test takes on particular importance in the case of Fisher v. University of Texas because how affirmative action achieves a compelling interest has been debated in the past. Two arguments have evolved about the importance of “diversity”—having representation from students of different backgrounds—in higher education. The first argument, referred to as the social justice argument, says that race is an especially important aspect of diversity and deserves special attention because of the continuing salience of race and the historic, legalized race-based discrimination that existed in the United States. In other words, racial diversity is a compelling state interest because it remediates historic legal discrimination. The other argument, called the diversity argument, says that achieving a heterogeneous student body constitutes a compelling state interest because society is diverse, and institutions of higher education must be diverse in order to achieve their missions of preparing young people to work and live alongside people who are different from themselves. In other words, having diversity in higher education is a compelling state interest because it helps society integrate. Unfortunately, when these distinct arguments are conflated it weakens the philosophical case for affirmative action. Although the diversity argument is more broadly appealing, the social justice argument must be used in order to explain why racial diversity in particular constitutes a compelling state interest.

An important book, called The Shape of the River, written by two scholars of higher education, William Bowen and Derek Bok, provides some empirical evidence of the effects of race-based admissions policies and therefore informs the discussion of why universities and the state should be interested in diversity. They use data from an extensive survey that followed college graduates long after they completed their college education and included detailed personal, academic, and employment histories. In their introduction, Bowen and Bok say that the goal of The Shape of the River is to empirically test whether race-conscious admissions policies

have achieved their two principal objectives: (1) to enrich the educational experience for students of all races by enrolling and educating more diverse student bodies; and (2) to fill some part of what is widely seen as a national “deficit” by preparing larger numbers of talented minority students for positions of responsibility in the professions, the business world, academia, government, and every other sector of American life (1998, xxxi).

These two objectives can also be understood as the two justifications for race-conscious admissions policies. The first objective parallels the diversity argument. It assumes that diversity is valuable in educational settings because the “real world” is diverse; therefore, having that diversity represented in educational settings prepares students by giving them the skills to work with and get along with the various types of people they will encounter in their future professional lives.

The second objective of race-conscious policies (and the second justification for these policies) deals with the notion of social justice. People who argue along these lines say that we must proactively counteract (not just legally end) the years of discrimination that prevented African Americans from participating in so many US institutions. Further, proponents of the social justice argument say that because higher education is such an important institution, it is especially necessary that affirmative action policies exist in order to give young African Americans opportunities to enter the education institution. The social justice argument deals with fairness and equity; that is, because the social system was designed to exclude one particular group (African Americans), we must now have policies that level the playing field.

Diversity on campus is a good that universities should pursue, but with limited financial and political resources, difficult decisions must be made regarding which dimensions of diversity are most urgently needed on campuses.  The social justice argument allows us to conclude that race-based decisions are defensible and necessary.

Although Bowen and Bok treat both the diversity and the social justice arguments for race-conscious admissions policies as being equally tenable, in truth, the diversity justification is a post hoc argument, which gained notoriety only after legal cases and the popular media challenged the social justice argument. In 1978, the Supreme Court ruled in Regents of the University of California v. Bakke that overcoming or remediating discrimination was not a sufficient justification for considering race in admissions. In other words, from a legal perspective, the social justice argument no longer constitutes a compelling interest. However, Justice Powell, representing the majority opinion, wrote that race could be considered in admissions for the sake of a diverse student body (Bowen and Bok 1998).  Institutions reacted to this decision by adopting the diversity argument as the argument for race-conscious policies.

As Green (2004) explains, “[b]ecause the courts no longer legitimize race-conscious remedies as a means of correcting societal discrimination, a new camp surfaces and argues that within the context of higher education, racial diversity is important to educational excellence and a democratic society” (379).

Other legal cases also developed the notion of diversity in higher education as a compelling state interest. Two cases in Michigan in particular advanced the diversity argument. The two cases, one at the undergraduate level and one involving law school admissions, were intensely scrutinized by the national media, forcing the University of Michigan to articulate a convincing argument for continuing race-conscious admissions policies. The University of Michigan decided that the most persuasive legal counterargument was to side-step the social justice dimension of the affirmative action debate, and instead focus on diversity. For the University, “neither racial balancing nor correcting for past discrimination are the intended goals of a racially diverse student population; but diversity is simply a means through which selective institutions can move American society closer to a “truly integrated society” . . . ” (Green 2004, 382). In 2003, the Supreme Court ruled that racial and ethnic diversity was a compelling state interest. (American Council on Education 2003).

The problems with adopting the diversity argument as the primary justification for race-conscious policies are twofold:

1. It leaves space for the other types of diversity arguments (such as sexuality, gender, nationality, ethnicity, religion, etc.) without placing an a priori value on any single diversity argument.
2. Because no single diversity argument has an a priori value, we must appeal to a social justice ethic.

When universities and institutions value diversity for benefits students accrue from interacting with people who are not like themselves, it becomes difficult to explain why racial diversity should be given special consideration in building a diverse student body.

In their analysis of the data from college graduates, Bowen and Bok find that in the 1976 cohort, 74% of African Americans and 42% of whites think it is “very important” to be able “to get along well with people of different races” (1998, 221). Further, they find that for the 1989 entering cohort, when asked to rate the contribution of their undergraduate experience to their “ability to work effectively and get along well with people from different races/cultures,” a majority of both black and white students checked either 4 or 5, where 5 equals “a great deal” (225). They also write about the importance of interacting with students of other races, and conclude that “there is no mistaking the predominantly favorable impression that students of all races share about the value of diversity in contributing to their education” (254).

While they find support for the diversity argument, imagine for a moment that they did not—that college graduates in their study did not report any positive outcomes associated with interacting with people who were racially different from themselves. Would I conclude that we (institutions and the public) can no longer support race-conscious admissions policies? No; I would maintain that there is something right about these policies even if there is no quantifiable benefit of diversity. What if they found that students who interacted with religiously different students, for example, reported the same kind of benefits of diversity as those who interacted with racially different students? Would I conclude that race-conscious policies could be eliminated? Again, I would still support race-based affirmative action because of the unique place race has in the United States’ history. Where the diversity argument fails to explain why racial diversity should be privileged over other forms of diversity, the social justice argument can provide an explanation.  As Bowen and Bok write, because of our “history marred by racial injustice, we should try to reduce group inequalities in wealth and power” (xxii).

Although the diversity argument is perhaps more palatable, it is less cogent. The diversity argument originated as a reaction to the court’s rejection of the social justice argument. When the court upheld the diversity argument as justification for race-sensitive admissions, it changed the way we talk about affirmative action. Institutions learned that the public, and perhaps more importantly, the court, would accept the diversity justification where they would not accept the social justice argument.  The diversity argument is more readily acceptable because it avoids discussing fairness and instead trains peoples’ attention on social integration.  However, the rhetoric of diversity as good for all students was a back-door way of retaining affirmative action. When the social justice argument is minimized in favor of the diversity argument, it puts the case for race-conscious admissions policies on shaky ground. While the diversity argument may do the most in terms of meeting the legal criteria of compelling interest and garnering public support for the continued use of affirmative action, it does not sufficiently explain why race in particular should be considered in admissions decisions. Diversity on campus is a good that universities should pursue, but with limited financial and political resources, difficult decisions must be made regarding which dimensions of diversity are most urgently needed on campuses.  The social justice argument allows us to conclude that race-based decisions are defensible and necessary.

References

American Council on Education. June 23, 2003. “Joint statement by national higher education leaders on today’s decision by the U.S. Supreme Court in Gratz v. Bollinger and  Grutter v. Bollinger.” Retrieved 3 November 2012 from http://www.vpcomm.umich.edu/admissions/statements/ruling/nasulgc6_23_03.pdf

Bowen, William, and Derek Bok. 1998. The shape of the river. Long term consequences of considering race in college and university admissions. Princeton University Press.

Green, Denise. 2004. “Justice and diversity. Michigan’s response to Gratz, Grutter, and the affirmative action debate.” Urban Education. 39 (4): 374-393.