The pending Supreme Court decision in Fisher v. University of Texas presents a new challenge to the Court’s decision of a decade earlier in the Grutter v. Bollinger and Gratz v. Bollinger cases at the University of Michigan. In the Michigan cases, the Court clearly recognized the value of student body diversity in the educational process and upheld the inclusion of race as one factor among others in a narrowly tailored holistic review process. Numerous expert studies support the Court’s position on diversity and student learning outcomes. For example, four studies presented at the most recent meeting of the Association for the Study of Higher Education (ASHE) provide empirical support for the benefits of diversity for college students, using longitudinal assessment of the scores from the Collegiate Assessment of Academic Proficiency and the Collegiate Learning Assessment.
Yet a recent Inside Higher Ed survey of 841 college presidents conducted by Gallup found that 70% agreed that consideration of race in admissions has had a “mostly positive effect” on education in general, while only 58% agreed that such consideration has had a “mostly positive effect” on their campuses.
Dr. Benjamin Reese, president of the National Association of Chief Diversity Officers in Higher Education (NADOHE) and Vice President for Institutional Equity at Duke University, suggested that framing the question around race rather than the benefits of diversity resulting from a holistic review of applications may have elicited less positive responses. In reporting Reese’s perspective in his March 1 article, editor Doug Lederman writes, “That, though, is not the question before the courts.” He then cites Richard Kahlenberg, senior fellow at the Century Foundation, who indicates that “the Presidents are completely out of step with where the courts seem to be heading and where the American public is on this issue.”
A closer reading of the Grutter decision suggests that the Court was focused on the overall benefits of diversity. It specifically reaffirmed the opinion of Justice Powell in the landmark 1978 Regents of the University of California v. Bakke decision who found that “diversity is a compelling state interest” essential to the university’s mission. Writing for the narrow 5-4 Grutter majority, Justice Sandra Day O’Connor focused on the concept of “critical mass” in summarizing the positive impact of diversity at the University of Michigan’s Law School. She noted the effects of diversity on learning outcomes and the preparation of students for a diverse workforce, society, and legal profession:
But the Law School defines its critical mass concept by reference to the substantial, important, and laudable educational benefits that diversity is designed to produce, including cross-racial understanding and the breaking down of racial stereotypes.
The crux of the issue in Fisher relates to critical mass. How is it defined? How will we know when we reach it? What benefits derive from it? We have seen the concept of critical mass in the research literature as it refers to a substantial presence of women and minorities on campus. It refers to the sufficient presence of underrepresented groups to be able to overcome isolation, defeat stereotypes, and provide a welcoming atmosphere for diversity.
The concept of critical mass is a qualitative rather than a quantitative concept. Yet justices sympathetic to Fisher have been asking for quantification of the attainment of critical mass, even though quotas are not permitted under prior judicial rulings. Chief Justice Roberts repeatedly questioned Gregory Garre, the lawyer for the University of Texas asking: “What is that number? What is the critical mass of Hispanics and African Americans at the university that you are working toward?” When Garre argued that the school did not have a specific point of critical mass and would make this determination, Roberts responded, “So I see, when you tell me, then it’s enough.”
From this perspective, the responses of the college and university presidents to the Inside Higher Ed Survey do not appear to be “out of step” with the American public. Rather these responses reflect a very real awareness of the complexities and nuances relating to the implementation of affirmative action in admissions processes. Support for affirmative action was strongest among presidents of public master’s (81%) and public doctoral universities (80%). In Alvin Evans’ and my review of institutional diversity plans in Are the Walls Really Down? Behavioral and Organizational Barriers to Diversity , we found that public universities have been in the forefront in the development of institutional diversity plans, perhaps due to their legal reporting requirements, size, resources, and requirements for public accountability.
Although the outcome of Fisher v. Texas remains uncertain, the fact that numerous legal briefs have been filed by associations and groups asserting that curtailing affirmative action would hurt the quality of the education students receive is promising. The voices of educational leaders, professional associations, and scholars are critical in the ongoing debate of how education can continue to serve as the gateway to opportunity and the great equalizer in our richly diverse society.
In the March 8 edition of the Chronicle Review, Brian Rosenberg, president of Macalester College, sums up the importance of presidential voice as “the most influential public voice of the institution”:
I have always believed that courageous views, thoughtfully expressed, are actually less risky than silence in the face of serious wrong. I have spoken out, in my role as president of Macalester College, on many contentious issues, and I have chosen to remain silent on others. What has guided my decision-making, and what I believe guides that of most of my colleagues, is not cowardice or self-interest, but careful judgment about what is in the best interest of the institutions we hold in trust.
Thanks for the savvy post, Edna. It does puzzle me why anyone thinks that this majority far-right court represents the “American people,” when a majority of that court voted for Romney almost certainly. And yet the “American people” voted for Obama. And of course by “American people” too many analysts mean just white people…