Spring 1998, Volume XIII Number 2 Affirmative Action: A Dialogue on Race, Gender, Equality and Law in America Affirmative Action, Diversity and College Admissions Editors: Colleges give preferences to all kinds of students (children of alumni, veterans, athletes, musicians, etc.), so race/ethnicity preferences are just one more consideration in the effort to craft a diverse, well-rounded entry class. So, what's the problem-legally, morally, politically, or otherwise? Paul Finkelman: I want to address the most important category of preference in private education-the "legacy preference." Most private schools have a huge affirmative action program for the daughters and sons (and other relatives) of their alumni. I have no problem with this, as it builds institutional loyalty for private schools. But, it does mean that those who were disadvantaged in the past remain disadvantaged in the future. I do not know if public institutions do this as well, but if they do, then it is even a greater disadvantage to those whose ancestors were cut out of the admissions process because of race or ethnicity. Now to the value of diversity. I cannot imagine teaching constitutional law to an all white class. Much of this subject is about race: Dred Scott, Plessy, Brown, San Antonio School District, the whole evolution of the 14th Amendment, major criminal law cases-Terry v. Ohio, Miranda, Escobido, and affirmative action cases. I would not want to teach First Amendment, and discuss hate speech, without having some students from a minority background in the class. If we believe we learn from our students, and that our students learn from each other, then the importance of minority students in the class is obvious. A diversity of views leads to a better discussion and greater understanding among the students. My best classes often involve students debating each other on issues of race, tolerance, fairness, etc. I feel sorry for the law teachers at the University of Texas or Boalt Hall who will do this without African-Americans or Mexican-Americans in their classes. The students will also be poorer for the experience. They will not hear other arguments and voices. However, as a "white" scholar who writes about race and slavery I am fully aware of the danger of arguing that only people of one race can see things, understand things, or teach things. I emphatically reject that idea. But, it is clear that no one teacher can articulate all viewpoints well, and that a diversity of student opinions makes for better classes. Of course, it is possible to argue, and I suspect some might, that race does not guarantee diversity of opinions. But, I think that is unlikely if there is true diversity in the student body. Now do we have "concrete" evidence of this? I am not sure what that would be. I don't know we can have that; but do we need it? Take the question of race out of the picture. Imagine teaching Constitutional Law to a class of all men? Or all women? The class would be different, the arguments would be different, the learning process would be poorer for the lack of men or women in the class. The same is true for race. If we all agree that race is a major issue in this country, then we cannot but agree that members of different races see things differently and have different views about how history has unfolded, how literature is understood, what music might "sound" like, and surely what law is all about. Can we prepare future district attorneys to prosecute for the whole society if they have only gone to school with one race? What will judges be like if they never knew anyone in school who looked "different." If we are educating people for American society then they must interact with different people from that society. This does not require strict quotas, but it does require diversity of students and faculty. Donna Maeda: This discussion about the value of diversity is very interesting. It's exciting to see such strong statements about the importance of having diverse student bodies and classes. As someone who grew up in Minnesota, being virtually always "the only one," I have to say that working and learning in interracial/interethnic settings in Los Angeles has created possibilities that were unimaginable in other contexts. For example, teaching a "Race, Gender, and Justice" class with a set of faculty members of diverse races, genders, religions, class backgrounds and sexualities to 100 even more diverse students has enabled not only an examination of different perspectives, but also opportunities to challenge the assumptions we hold that inform our thinking about justice. After reading a thought-provoking piece in which Daniel Wideman considers what (and whom) he leaves out when he thinks about justice, students began to think deeply about the idea that what we don't know, given our differing social locations, can be just as important as what we are able to see. Robert Fullinwider: Paul Finkelman and Donna Maeda praise "diversity." But what, exactly, are they praising? Diversity-of opinion, experience, and viewpoint-is a canonical value in the university. People learn best when they are "exposed to different modes of thought and action," declared John Stuart Mill, and liberal educators ever since have echoed the same sentiment. But how does the value of diversity make a case for affirmative action? Well, African Americans, Asian Americans, Hispanic Americans, and the like bring different perspectives and opinions to the seminar table, so an important value internal to the university warrants efforts to recruit faculty and students from those groups: so goes the argument. My point is this. Diversity of opinion and viewpoint is weakly correlated with any number of factors. The university treats the presence of these factors on campus as desiderata (not imperatives), and it makes all kinds of trade-offs among them. In putting together a university class, you might trade off getting more students with work experience for more rugby players, or decide to emphasize musical talent over political affiliation. However, when "diversity" gets raised in the context of affirmative action-as providing an argument for getting representative numbers of minorities into our classes-it changes character. Representation of racial and ethnic groups isn't treated the way we treat representation of regional groups, or nationalities, or age groups, etc. So, we equivocate in talking about diversity. I press these remarks about diversity because those of us who defend affirmative action in the university owe an honest answer to our critics. When we answer them by saying that we defend affirmative action on the basis of the very value they prize too-diversity of opinion and experience-we are not being straight. We are equivocating, because we attach an urgency to racial and ethnic representation that we do not attach to any other factor. Terry Swenson: Robert Fullinwider makes a point that I agree with when he says that we have to be ready to answer to critics of affirmative action. He notes that "we attach an urgency to racial and ethnic representation that we do not attach to any other" alternative voice. I would argue that the discussions to which these voices are added do not take place in a vacuum but rather within a society in which problems related to the disenfranchisement of racial/ethnic minorities is among our most ominous. Because my institution recognizes that graduates will increasingly live in an international society, enrolling more students from abroad has also become a priority for the admission office. Yes, we inevitably de-emphasize other perspectives as we put a premium on specific groups, but that is in my opinion our prerogative and even our responsibility. I might add that in most selective admission processes there are distinctions made among racial/ethnic minorities as to a given applicant's background. We are well aware at Colorado College that race doesn't correlate with a particular viewpoint and, therefore, we look beyond skin color alone to a student's background (parental occupation, parental educational background, neighborhood) as we try to assess what different perspective he/she may bring to our campus. Camille deJorna: At the University of Iowa Law School, we look, among other things, for applicants who will serve others and be likely to relate to clients in their communities. We look at the track record. It is this exposure to and experience with other communities and perspectives that add to the classroom. We can no more guarantee an outcome for this student in terms of career choice than we can for the student with the incoming high predictors who leaves or falls short of expectations. Terry Swenson: Much boils down to the degree to which race is considered in the selection process, or the awarding of scholarships. There is a perception, which is probably correct, that race/ethnicity weighs much more heavily in selection than the other factors mentioned-including legacy status. I agree with Paul Finkelman that legacy preference perpetuates the effects of past discriminatory practices, but I don't think legacy status weighs as heavily as race/ethnicity in most selective admission processes. To the extent that race is overweighted in the admission process, lots of problems arise, two of which are public backlash and mismatches between students and institutions, which can lead to higher drop out rates among minority students and less satisfactory experiences even for those who persist. Appropriate use of race/ethnicity-which in my opinion should still count more than most of the factors listed above-changes the discussion. However, racial/ethnic minorities admitted to colleges and universities under admission processes that use race/ethnicity appropriately belong, benefit, and perhaps most importantly, contribute. In other words, it works. In fact, it works well enough that white students on our campus are the most vocal about the importance of diversity. Many of them come from high schools that were more diverse than our campus is. These students miss the interaction with a more diverse group of peers-they feel we are cheating them by not enrolling racial/ethnic minorities. This leads to a very touchy point: Minority students don't want to be there for the benefit of the majority population, nor do they want to be called upon as the representatives of their race every time the topic comes up in class discussion. Paul Finkelman: My sense is that at Ivy League schools legacies count a good deal. When I was at Harvard Law School I had a suite in a student dorm. There seemed to be an awful lot of students there whose fathers and other relatives had gone to Harvard. That might be impressionistic; it might also be that families with wealth and status are, over time, able to give their children the kind of schooling that enables them to go to elite schools. I fully agree with Terry's point about the danger of using members of a group (blacks, Asians, women, Jews) to represent "their people." My earlier point was not that; I would certainly not call on a black student to ask, "OK, what is the black view on this?" I think now, however, three black students might raise their hands and offer three very different views of topic "x," but that all three views would differ from views offered by whites. Terry Swenson: My hunch is that legacy representation at a given institution (Harvard's must be among the highest) is in fact a function of the demographics of the alumni body more than a result of preference in the admission process. Children of Harvard alumni may be somewhat preferred in the selection process over non-legacies, they are also more likely to have the means to pay and finally more likely to choose Harvard when admitted. All of those add up. Jennifer Hochschild: In the Ivies, being a legacy counts a great deal-about 50% of Princeton legacy applicants get admitted, compared with under 15% of all other applicants. Richard Kahlenberg: I think alumni preferences are terrible, and I agree with proponents of affirmative action that there is more than a little hypocrisy on the part of conservatives who shout merit, merit on race and then quietly back preferences for a (mostly) wealthy group. Having said that, I think there is also a danger to playing this card too heavily. At a certain point, proponents of racial preference begin to sound like they are reduced to the argument: well, these preferences are no worse than alumni preferences. It is a sad day when the great moral authority of the civil rights movement is reduced to an association with preferences for alumni. There is also a relevant distinction between the racial and alumni preferences. Alumni preferences at many universities are broader, in the sense that they involve more people, but they are also less substantial. When Harvard was being investigated for discrimination against Asian Americans around 1990, the documents revealed that alumni preferences were common, but that they amounted to about 36 sat points on average. This is a far cry from the more substantial weight commonly given to race-on the order of 300 points at Berkeley. The size of the preference matters, to my mind, for this reason: the larger the preference, the more likely that a student will underperform, or even fail. Failure certainly places a hardship on the individual student; but to the extent that it reinforces negative stereotypes among whites, it is even more troubling. I personally don't see this as a killer argument against racial preferences, but it's something to consider, particularly for those who are seeking an empirical basis for their position on affirmative action. Camille deJorna: Why, I thought, is it that the other categories, like legacies, as Paul Finkelman has suggested, or athletes or kids from families who weren't college educated, don't receive the same level of scrutiny as race? We do in fact admit farmers and government workers, people who are older, and people who have just left active duty. This is the job of an admissions committee. I've often thought that we don't do a terrific job of talking about what we do. But when the farmer's kid writes about wanting to be a lawyer because of nearly losing his family farm in the 1980s and the emotional upheaval it created for his family, or a disbarred lawyer's kid writes about visiting his father in jail and wanting to be a better lawyer than his father who discredited his family and abused his mom, these are kids whom many of us have included in our definition of diversity and who have in fact benefited from affirmative action, but it isn't clear to me when we'd tell this story. They should no sooner have to divulge their lsat's and gpa's than minority kids. My reaction to the suggestion that we don't already acknowledge and work hard to get these other students is one of shock. I thought the point of affirmative action was that minority students were not ending up in our classes as these other groups were. I would argue but don't have the data to support that, as admissions became more complex in the 1980s these other groups benefited because we were no longer admitting people only on numbers-that we were doing more thorough readings of files which resulted in more diversity all the way around. Robert Fullinwider: I suggested that the term "diversity," so ubiquitous in our contemporary arguments about affirmative action, is terribly ambiguous and subject to equivocation. One of the attractions of the word is that it seems to link up "racial/ethnic diversity" to one of the canonical values of the university, "viewpoint/experience diversity." I don't deny the link. Rather, I argued that the link is a weak one, not strong enough to justify the very special urgency we attach to racial and ethnic representativeness in the university. Universities have many missions. Students learn how to do statistics, how to repair a vein, how to draw up a contract. A second mission is imparting what I will call "liberal learning." Students enlarge their experience and vision by encountering new ideas, new perspectives, new ways of life. An important part of it comes from the diversity of students themselves. Students meet classmates who have very different takes on the world than their own, who devote their energies to very different enterprises, and who exemplify different values or ways of life. Thus, the vaguely Methodist student from Iowa may find her slumbering spiritual impulses stimulated by rooming with a Zen Buddhist from California or a Catholic nun from Chicago. Liberal learning is enhanced by the presence of diversity-diversity of viewpoint, life history, commitments, vocations, special talents, and the like. That is why college admissions committees look at a long list of items in trying to achieve an optimum mix of diversity. And why, as Terry Swenson puts it, "race and ethnicity are just two more considerations in an effort to create a well-rounded class." However, if we were only to treat race and ethnicity as just two more considerations, if we were to treat them in the same way that we treat those many other considerations, we would feel free to trade off the former in the same way we trade off the latter. The admission committee can decide to admit fewer Zen Buddhists and more clarinet players; or it can decide to compensate for a paucity of applicants from the Rocky Mountains by adding some more student government leaders. There are many different ways of creating optimum mixes. However, we do treat race and ethnicity differently than region, age, special talents, and the many other considerations that enter into admission decisions. Thus, we haven't sufficiently explained our interest in "racial and ethnic diversity" by noting our interest in "viewpoint/experience diversity." Consider a further dimension of higher education. Aside from technical training and liberal learning, public universities in particular aim to impart "civic learning." They aim to foster a learning that fits students to future civic roles and responsibilities. Thus, while the Methodist from Iowa may have her spiritual reflections enriched by encountering the Zen Buddhist on campus, for her civic learning it is better that she encounter representative citizens-the sons and daughters of the comfortable suburb, the disappearing small farm, the factory floor, the city high rise, and the country club. Better that she confront the evangelical and the free thinker. And better that she rub elbows with classmates of a different color. Civic learning, I would contend, provides a stronger rationale for racial and ethnic representation on campus than liberal learning. We might think that if the number of blacks and Hispanics at Boalt Hall drops to the vanishing point, the quality of civic learning imparted by the school must suffer. Given Boalt Hall's de facto mission-to train the future elite of California-this decline in quality should be a matter of concern. However, even the mission of civic learning doesn't make a particular racial or ethnic profile imperative. After all, Tougaloo College foregoes racial diversity without seriously compromising the civic education it provides its students. Howard Law School exhibits little racial diversity, but we expect to find its graduates well educated nevertheless. Whatever the students at Tougaloo and Howard might be missing, we don't think it important enough to require major changes in the way those two institutions admit students. I suggest that the real basis for the special concern we have about racial and ethnic representation lies elsewhere, however, in matters external to the university's mission. It lies in the legal and moral imperative to prevent discrimination, and in the recognition that patterns of past exclusion will continue to reduplicate themselves unless institutional inertia is short-circuited and redirected by something like affirmative action. The enrichment of university life that comes from the addition of blacks and other minorities is a bonus to the university that comes from working to break up historically-rooted patterns of exclusion; it is not the reason we undertake that effort in the first place. Jennifer Hochschild: Bob Fullinwider is exactly right about how the diversity argument can be legitimately used to promote things other than affirmative action. I have a conservative colleague who delights in calling for more ideological diversity in faculty and students. He points out correctly that he is the only strong moral conservative on our faculty, and one of the very few in the university, and I find it hard to argue against his claims (I would find it easier to distinguish African Americans from the Finnish farmer or other hypothetical examples our discussion group has been using). If liberal learning is enhanced by a diversity of classmates, then should we worry about the growth of ethnic studies programs and majors, especially when each is housed in a separate program or major? In my view, a single ethnic studies program that requires comparative study across groups is better than a multiplicity of separate ethnic studies programs. But maybe I should be more skeptical than my sentiments are comfortable with in challenging the whole idea of ethnic studies programs, both for the sake of students within the program and for the sake of students not in them. There is a curious analogy with school desegregation here. In school desegregation, much effort to place kids of different races in the same building is wasted, because they are immediately tracked into racially distinct classrooms. In affirmative action in universities, much hassle to get kids of different races in the same campus is wasted, because they immediately choose to track themselves into racially distinct programs. Or is there a difference? Finally, on affirmative action more generally: Many people, including most on this list, have written eloquent moral arguments about affirmative action, and in my view the normative claims have reached a standoff in the literature (although not in my own thinking). I therefore try to think and write about affirmative action from a different standpoint-utilitarian rather than deontological, I guess. There is more impact-on the student him or herself, on classmates, on the quality of the curriculum, on the profession that student chooses, on the nation as a whole-by ensuring that a black kid gets a degree from Harvard or Berkeley than by assuring that a legacy, or even an average and well-qualified middle class white kid, gets the same b.a. No one has a right to that slot in the freshman class (or that job); the white kids might well be more qualified in a paper-and-pencil sense (SAT's...), and white kids might have stronger gpas. But in my opinion these variables are less relevant than the fact that on the margin the black Harvard alum will make so much more difference to the world than the white Harvard alum. 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