Bollinger, Lee C. JD
There is a need in all of higher education, including all the health professions, for racial, ethnic, and other kinds of diversity. In early December 2001 the Sixth Circuit Court of Appeals in Cincinnati, sitting en banc, will hear oral arguments in Gratz v. The University of Michigan and Grutter v. The University of Michigan, the two cases challenging the University of Michigan's undergraduate and law school admission policies. It could just as easily have been a challenge to the affirmative action admission policy in the University of Michigan's medical school; the issues are the same—it was just the law school's lucky day.
TWO KEY COURT CASES
Let me tell you a little about the two cases, and about just how much is at stake for private as well as for public higher education. The outcome of these cases will profoundly affect the quality of higher education, professional education, and graduate education that all students receive in this country—majority and minority. 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 the 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 200 years of slavery and exclusion for African Americans and others. This was—and is—the challenge of the greatest Supreme Court decision of the last century, Brown v. Board of Education.
Four years ago the University of Michigan was sued by two plaintiffs, both white, one who was not admitted to the law school, and one who was not admitted as an undergraduate. The plaintiffs claim that they were harmed because the applicable admission process was not “colorblind” and, therefore, they assert, was unconstitutional. Both plaintiffs are represented by the Center for Individual Rights, an advocacy group that has led a nationwide campaign to overturn the Supreme Court's 1978 decision in the case of Regents of the University of California v. Bakke.
The Constitution does not require public universities to use a “colorblind” admission process. Indeed, in Bakke, the Supreme Court reversed a decision of the California Supreme Court that had insisted on colorblindness in admissions. A five-justice majority of the Court joined to say that a properly devised admission program may lawfully consider race and ethnic origin. To be permissible, an admission process 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 admission policies that are entirely consistent with the Bakke requirements. Should the Sixth Circuit arrive at a different conclusion, however, the university is committed to taking the matter to the Supreme Court. And I remain committed to doing all I can, from my new position at Columbia University, to furthering these issues in every way that I can.
ACHIEVING THE BEST LEARNING ENVIRONMENT
Like so many other public and private universities across the country, the University of Michigan uses a variety of factors to determine a student's admissibility. These include, among others:
▪ High school grade-point average
▪ Rigor of the high school courses taken
▪ Alumni relationships (parent, grandparent, or sibling)
▪ Quality of the essay
▪ Personal achievement
▪ Leadership and service
▪ Socioeconomically disadvantaged student or education
▪ Athletic ability
▪ Underrepresented racial or ethnic minority identity
▪ Resident of an underrepresented region
Any and 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 admission office is, using good judgment and a fair and legal process, to assemble a student body it believes will provide collectively the best possible learning environment.
It is important to understand that admission 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.
Selecting a student body, then, is not simply a matter of drawing a line through some rank-ordering of individual applications. Admission officers are alert to the potential of those who may not have had full opportunity to manifest their talents (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 admission 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 economy.
Admitting a racially diverse group of students enables a school to do a better job of preparing students to be effective doctors or lawyers or citizens. 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.
Even 50 years after Brown v. Board of Education, race is still a significant factor in American life. That should be clearer now than before. In the lawsuits, the University of Michigan makes its case about how much race matters through statistical analysis, demographics, and other expert testimony. Doctors know that race is still an issue—in the availability of medical care, in infant mortality, cancer screening and management, cardiovascular disease, diabetes, HIV infection and AIDS, immunizations, and health insurance, to name just a few areas. Wishing that race is no longer a factor in American life doesn't make it so.
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. 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. Well-educated undergraduates and well-trained physicians 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. There are many dimensions to this diversity. Encountering differences rather than one's mirror image is an essential part of a good education. But a first-class education is also one that creates the opportunity for students, expecting differences, to learn, instead, of similarities.
The Center for Individual Rights' challenge to “affirmative action” in higher education admissions is not a challenge to merely 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 public 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. Applicants have a right to be treated fairly within the admission process, but there is no right to be admitted to a public 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 they graduate.
The University of Michigan 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, the American Council on Education, the Department of Justice, churches, labor unions, and elementary and secondary school educators, General Motors, and 20 other Fortune 500 corporations, including Steelcase, Inc, 3M, Abbott Laboratories, Bank One, DuPont, Dow Chemical, Eli Lilly, General Mills, Intel, Johnson and Johnson, Kellogg, Microsoft, Procter and Gamble, Sara Lee, Texaco, and TRW. 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.
WHY AFFIRMATIVE ACTION IS NECESSARY
It is worth emphasizing that admission policies such as the University of Michigan's do not meaningfully affect a white student's chances of admission. The numbers of minority applicants are extremely small compared with the numbers of white students who apply to the university—and 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 admission system, the probability of being admitted for a white student would only go from 25% to 26.2%.
The source of this problem 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 will have had decisions to make—classes of students to admit.
The effects of unequal—and inadequate—funding of public schools 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 affirmative action “leg up” in admissions 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 10% of school districts spend almost ten times more than the poorest 10%. 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 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 that “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 applicant.
I have heard some say that the gap is too big, that the leg up given underrepresented minorities in the admission process is too large. I would assert that 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 admitted 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.
One might quite reasonably ask whether the Michigan law school (or the medical school or undergraduate program) could 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%.
In his opinion in Bakke, Justice Harry Blackmun wrote (and here he was joined 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 [be] 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 have tried a colorblind admission process in which they accept the students in the top 4% or perhaps top 10% or 20% of each high school in the state. There are several problems with this approach: first, it is completely ineffective for graduate schools and professional schools. Second, it would result in both admitting some top students from weak high schools who may not be academically prepared to do the work and also rejecting very able students who are below the cut-offs at very strong schools. Third, all opportunity for individual evaluation and assessment of the candidate is lost. And so the process is colorblind, 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 includes race as a factor—the approach followed by virtually every selective college and university for the past 30 years.
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.
Interacting with people of different backgrounds creates the environment in which learning and empathy are fostered. Far from being optional or merely enriching, 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, after just a few minutes of a play, one has the distinct impression of viewing a particular human being, a character 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 another's point of view, and how their life's 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 education.
Some will be quick to note that not all people of the same race hold the same opinions. That is certainly true. Yet there are too many people, of all backgrounds and all political stripes, who think that is not true. And clearly the best way to effectively undercut that assumption is to have members of the majority come into contact with greater numbers of persons of color, and vice 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: 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.
If, in the future, college and universities are not permitted to consider race as a factor in their admission 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—African Americans, Hispanics, and Native Americans—remain well below where they were prior to Proposition 209, the voter initiative that banned the use of race in university admissions. At Berkeley, they are down 44% and at UCLA they are down 36% from pre-Proposition 209 levels. Moreover, the decision will not affect the University of 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 on other bases—in the admission process, and an adverse decision in these cases would change the definition of race discrimination in admissions.
Americans of different races lead surprisingly separate lives today. For example, metropolitan Detroit is now the most segregated metropolitan area in the entire country; and Livonia, Michigan, a suburb of Detroit, is the whitest city of over 100,000 people in the United States. 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% of its African-American students grow up in racially separate communities. The result of this separation is that the University of Michigan's incoming students have rarely had the opportunity to get to know and learn from peers of different races before coming to campus. 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 to college this fall) 40% 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 commonalities—if not in our system of public and private higher education?
Last year 11.5% of medical school students in this country were members of underrepresented minority groups. In the mid-1960s, that number was a meager 1% among all American medical schools, except at Howard University and Meharry Medical College, traditionally black schools. The major variable accounting for this profound change is the use of affirmative action in admission decisions, the practice now at stake. According to data from the Association of American Medical Colleges (AAMC), 1996 medical school enrollments of underrepresented minorities would have fallen 80% without affirmative action. In more recent studies, the AAMC and the American Council on Education observed the concrete benefits of ethnic and racial diversity in medical education and practice. These studies complement findings at the University of Michigan that a more diverse student body leads to measurable changes in active thinking, intellectual engagement, and key skills of citizenship such as the ability to understand others' perspectives.
Because we know that minority physicians are more likely to practice in areas where there are high concentrations of minorities, diversity among practicing physicians and medical administrators increases the availability of health care within underrepresented minority communities, and a more diverse medical research community expands the search for advances in knowledge and treatment. 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 admission policies in California and Texas have contributed significantly to this decline. And so the stakes are high for medical and health education—and for medical care and 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.
In an eloquent New York Times op-ed piece supporting the University of Michigan's admission 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 …. I have often wondered how different the world might have been in the 1940s, '50s and '60s—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 nonessential add-on, racial, ethnic and other kinds of diversity in a university setting are at the educational core of what the university does and are absolutely central to the quality of students' educational experience. And the diversity of its graduates is, as its business leaders have forcefully argued, one of the most valuable contributions higher education makes to the nation's common weal. The medical field and the health care field generally cannot afford to take a giant step backward with an educational admission system that dramatically diminishes the number of minorities who will be available to serve our increasingly diverse nation.
The greatest question is this: Do the ideals of Brown v. 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 20th century?