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Behind the Headlines: Remembering the Fundamentals about Diversity
After a decade of silence, the US Supreme Court in two recent cases has spoken on issues of race and ethnicity in higher education—in June 2013, with its Fisher v. University of Texas opinion, and in April 2014, with the Schuette v. BAMN decision. In Fisher, the court amplified and elaborated on key points of its “affirmative action” jurisprudence (principally emphasizing the need to consider and, where appropriate, try race-neutral alternatives). In Schuette, the court ruled that race-conscious admissions practices by public institutions may in most cases be controlled through the ballot box.1
Although the more immediate and operational questions posed by higher education leaders in the wake of those decisions are today front and center—What does this mean for me? What do I need to do differently? How should I proceed in light of these decisions?—we should not let the important details of the decisions distract us from the fundamentals associated with educational diversity. These fundamentals are sometimes too easy to bypass in the mad dash to interpret court opinions and read the tea leaves regarding what’s to come.
Fundamentals about diversity
As many institutions of higher education endeavor to pursue the educational benefits of diversity (including, in some cases, through race- and ethnicity-conscious means), it is vitally important that several key points remain central to deliberations and decision making within higher education.
First, we must ensure that our mission-based diversity goals are clear, and that relevant education rationales related to those goals are well articulated and understood. From a policy leadership perspective—and as a matter of law—these foundations are essential. Building understanding and support among key stakeholders, developing effective and efficient strategies and programs, and mitigating legal risk all depend on the clarity of mission-related goals and objectives. (Nothing in Fisher or Schuette alters these key points.) In that vein, it is important to understand what educational goals associated with student diversity an institution intends to achieve, and how those particular goals relate to other mission-based efforts that, for example, may be more directly relevant to access or opportunity aims.
Second, we must ensure that our discussions of diversity do not center exclusively on the numbers. Notably, the aims associated with diversity, as most institutions frame them and as the courts have sanctioned them, are not about simply assembling a diverse student body. Rather, the generally recognized (and legally sanctioned) approach is centered on the educational benefits that flow from diversity—understood, in broad terms, to include improved teaching and learning, preparation of students for a twenty-first-century workforce, and enhanced preparation for civic engagement and leadership. These benefits, which can accrue in different ways in different institutional settings for students from all backgrounds, depend on more than the sufficiency of compositional diversity or critical mass (just as they depend on a conception of diversity that is about more than race and ethnicity). In short, achieving the benefits of student diversity is about creating an environment where students dynamically interact with their peers and professors in multiple campus settings that reflect a true mix of student backgrounds, perspectives, and life experiences. These conditions allow learning and growth to occur. (And no, nothing in Fisher or Schuette alters these principles, either.)
Third, and in corresponding fashion, we must ensure that relevant experience and research drive our diversity efforts. With reference to particular issues associated with diversity, I am often asked, “What does the court say about…?” My response is usually along the lines of, “For starters, I care less about what the court says and more about what you say, given your educational goals. Tell me….” Said simply, educational foundations should drive court judgments. In fact, an underlying theme of every Supreme Court case involving challenges to race-conscious admissions has been one of ensuring that the challenged policies were supported by relevant (and the right kinds of) evidence. Notably, as recently as the Fisher decision, Justice Kennedy (on behalf of seven justices) acknowledged the importance of institutions’ educationally grounded “experience and expertise” in a court’s assessment of the evidence presented. Those vital foundations have, indeed, been pivotal in every case the Supreme Court has considered on this front—including in Fisher, where Justice Kennedy admonished the lower court to ensure on remand that sufficient, relevant evidence supporting the University of Texas’ race-conscious policy was duly considered in light of governing legal standards.
Fourth, we must be open to—indeed, invite—wide-ranging dialogue on issues of diversity and inclusion. In homage to Justice Powell’s appreciation of the “wide exposure to that robust exchange of ideas which discovers truth out of a multitude of tongues” in higher education settings,2 we must all walk the talk of diversity. Differences are part and parcel of the higher education experience, and rather than shut them down with the heated, polarizing rhetoric sometimes manifested under the thrust of political correctness, we should embrace the opportunity to listen and learn . . . and lead. Building understanding—and, where possible, affirmation—about the role of diversity in higher education and the key policies and practices necessary to achieve associated educational benefits is essential for success.
This aim also brings with it the need for higher education leaders, particularly those involved in admissions and other enrollment efforts, to become more transparent about their goals, their supporting educational rationales, and the logic of their practices—which are shaped, ultimately, by (imperfect, but informed) human judgment. The court in Schuette reinforces the imperative of meaningful, sustained stakeholder engagement, as it permits the pursuit and adoption of state voter initiatives that can overrule the considered judgment of higher education officials in determining the means to pursue diversity goals. As our friends in Michigan can attest, the court of public opinion (at least for public institutions) can matter as much as the courts of law.
Finally, we must be intentional about our diversity and inclusion efforts—matching our words with our deeds. Anything doing is worth doing well, and when institutions identify diversity-related goals as “mission-central,” they must invest the time and effort to make those goals a reality. That requires focus, direction, and collaboration across many institutional sectors—precisely the kind of process the federal courts envision when they insist on “periodic review” of race- and ethnicity-conscious practices in light of the diversity goals they are designed to achieve.
In this context, indeed, we should remember that the probing questions that courts have posed regarding race-conscious admissions align directly with the kinds of questions leaders of any institution should pose: Are those practices in pursuit of clear, mission-based goals, through well-developed and appropriate means, which yield positive results over time in line with goals, as efficiently as possible? (If you map this very long question against the Supreme Court’s strict scrutiny analysis applicable to race-conscious practices, you’ll see what I mean.)
The big picture
We should never lose sight of the fact that, while paths toward success may be challenging, success is not impossible to achieve. As a matter of law, the sky is not falling. It is true that, over the course of almost four decades, federal courts have wrestled with race-conscious practices in multiple educational settings and struck down more practices than they have upheld. But, importantly, no Supreme Court ruling (or lower court ruling that has survived for very long) has categorically barred the consideration of race or ethnicity in admissions or other enrollment practices associated with diversity goals. Doors and windows remain open to policies and practices that are the result of careful deliberation and grounded in research and experience. And, even in the limited number of states where public institutions are barred from pursuing race-conscious practices as a matter of state law, emerging lessons from what is working suggest that there is more to learn and consider as we work to expand our understanding of viable strategies that can help achieve our mission-related goals.
In the end, while questions of diversity and inclusion generate claims, disputes, and court decisions about “discrimination,” those sometimes unsettling events should not mask the underlying principles of the academic freedom that institutions have to define their mission-based goals—or institutions’ corresponding responsibility to do everything they can to fulfill them in educationally and legally sound ways. As we sort out the meaning and implications of Fisher and Schuette, let’s not forget the bigger picture of what our higher education institutions want to accomplish in service to their students, their communities, and our country.
As the parent of a child who will go off to college for the first time this fall, I have a new stake in this effort. I want my daughter to be given the opportunities and experiences that only come from interaction and engagement with people, ideas, and experiences that challenge her assumptions, extend her comfort zones, expand her horizons, and shape her path toward adulthood. In short, I want her college experience to be one defined by “diversity” in all its forms, with all its benefits.
1. For relevant case analyses and implications for higher education institutions, see the College Board’s Access and Diversity Collaborative website at http://diversitycollaborative.collegeboard.org.
2. Regents of the University of California v. Bakke, 438 U.S. 265, 312 (1978). Powell quotes from Justice Brennan’s opinion in Keyishian v. Board of Regents, 385 U.S. 589, 603 (1967).
Arthur L. Coleman is cofounder and managing partner of EducationCounsel, an affiliate of Nelson Mullins Riley & Scarborough. He previously served as deputy assistant secretary for civil rights at the US Department of Education, and helps lead the work of the College Board’s Access and Diversity Collaborative. He is chairman of the Board of Directors of the Institute for Higher Education Policy, and a member of the Board of Directors of the Gay, Lesbian, and Straight Education Network.