Key Issues and Trends in Affirmative Action

By

Francisco J. González

(Expanded & revised text of the presentation given on May 26, 2004 at

Minnesota State University-Mankato)

The role of affirmative action in this institution cannot be more important nor can

its future implementation less challenging. I will briefly discuss some of the most salient

current issues and trends that will impact efforts geared towards the goal of having a

student body, faculty and administrative staff that reflect the diversity of our state and our

nation.

The first thing that we must do, however, is reaffirm our commitment to the goals

of affirmative action. After all, the many initiatives and programs that we collectively

refer to as affirmative actions are just tools; mechanisms to achieve the goal of having a

truly diverse campus. We must first be able to answer the question: why is diversity

important? I asked this same question to my students during while teaching an

American Racial Minority class to my students, all but two of them freshmen or

sophomores of Caucasian/European-American background. While the students indicated

that discrimination is wrong and that everyone, regardless of race or ethnicity, should be

allowed to obtain an education, few of my students could think why it was important for

them to interact with peers or faculty of color.

I firmly believe that support for, and a better acceptance by the majority

population of, the tools of affirmative action can be achieved by stressing the importance

of diversity for non-minority students and for our society at large. Non-minority students

should be exposed to the fact that in their future professional, social and even personal

lives they will be interacting with people of color. They must also realize that their own

definition of what means to be “American”, based on assumed shared cultural and

linguistic traits, will be challenged by the continued demographic growth from people of

with their own cultures, traditions, and in many cases languages and religions that do not

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conform to the so-called traditional vision of America.

Caucasian/European-American students must also know that, due to demographic

changes and immigration patterns, societal change is not only inevitable, but rapidly

becoming a reality. It is our mission, as educators and as stake-holders in the success of

this university, to make sure that our students realize the enormous universe of

opportunity and positive change that can (and I hope, will) resulting from these trends.

We must make clear to our Caucasian/European-American students that embracing

diversity does not mean diminishing their own traditions and values; that this is not a

zero-sum game in which gains by one group come at the expense of another.

We must, for example, point out the vast promises for trade, commerce, business

creation and economic opportunity that will be available for individuals who are

comfortable working and interacting with people from a different culture, religion,

ethnicity or sexual orientation.

Our students should recognize that a successful manager, administrator or

politician will have able to understand the particular needs of a diverse customer or

support base. That a successful architect would realize the importance for a traditionally-

raised Chinese customer's request for a house designed according to feng shui beliefs; or

that a successful doctor need to be cognizant of the religious and cultural sensitivities

involved when trying to examine a Somali female patient. In short, our students need to

understand that embracing diversity not only is the right thing to do, but is also the smart

thing to do.

The key issues and trends that I will discuss below will impact the way in which

affirmative action can be used to achieve the goals of diversity. These issues include:

The Hopwood, Grutter and Gratz court decisions and their impact on affirmative

action programs in higher education.

The evolving concept of protected class regarding sexual orientation, resulting from

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Goodridge v. Department of Public Health.

The Tennessee v. Lane and Jones decision, in which the US Supreme Court upholds

civil rights protections for people with disabilities

Alternative approaches to achieving diversity: 25 years to go and the clock is ticking!

I- The Hopwood, Grutter and Gratz Court Decisions and their Impact on

Affirmative Action Programs in Higher Education.

Recent court cases highlight the need to clarify and redefine the role of

affirmative actions programs in higher education settings. These seminal cases are the

Hopwood v. University of Texas decisions, issued in 1998 and 2000; and the so-called

University of Michigan cases, Grutter v. Bollinger et al. (Law School), and Gratz et al. v.

Bollinger et al. (Undergraduate College), decided in 2003.

A- The Legal Framework of Affirmative Action: Historical Background

The Equal Protection Clause of the Fourteenth Amendment to the US

Constitution, adopted in 1868, indicates that “…[no] State [shall]. . .deny to any person

within its jurisdiction the equal protection of the laws.” However, the exact interpretation

and application of this clause on matters pertaining to race has varied greatly in the

intervening century and half.

For example, in the Plessy v. Ferguson opinion issued in 1896, the Court in fact

indicated that the Equal Protection Clause does not prohibit segregation, that “separate

but equal” is constitutional, and that the Fourteenth Amendment does not apply to

private discrimination. The majority opinion indicated that “...[t]he object of the

[Fourteenth A]mendment was undoubtedly to enforce the absolute equality of the two

races before the law, but in the nature of things it could not have been intended to abolish

distinctions based upon color, or to enforce social, as distinguished from political

equality, or a commingling of the two races upon terms unsatisfactory to either."

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Furthermore, in Korematsu v. United States, a decision rendered in 1944, the

Court held that a law-abiding US citizen of Japanese descent could be excluded from his

hometown and forcibly relocated to a concentration camp solely because of his race if it

is done for reasons of national security. The majority opinion held that Mr. Fred

Korematsu “…was excluded because we are at war with the Japanese Empire, because

the properly constituted military authorities feared an invasion of our West Coast and felt

constrained to take proper security measures… [and that the] situation demanded that all

citizens of Japanese ancestry be segregated from the West Coast…”

The Plessy decision affirming "separate but equal" remained the law of the land

until the US Supreme Court reversed itself in the 1954 decision Brown v. Board of

Education, which now declared that segregation did violate the Equal Protection Clause

after all. On the other hand, the Korematsu decision remains in place, and is cited as one

of the reasons why US citizens accused of collaborating with Al Qaeda and other terrorist

groups can be held without trial at the US base in Guantánamo, Cuba. A legal challenge

to this practice is now before the US Supreme Court.

B. Affirmative Action Defined by the Courts

As explained above, race can be used as a factor in the allocation of special (often

negative) treatment under the US Constitution. However, the courts have consistently

narrowed the scope of this use in the context of access to higher education. Out of this

mass of litigation, several guiding principles have been developed so specific affirmative

action programs can survive constitutional review. Thus, all racial classification imposed

by the government “…are constitutional only if they are narrowly tailored to further

compelling governmental interests”. Furthermore, the Court stated that this analysis is

needed to determine if the race-based classification is done for "benign" or "remedial"

purposes or to further discrimination against an unpopular racial group.

In Hopwood v. University of Texas, first filed in 1992, a lower court held that the

University of Texas School of Law’s admissions policies (which created separate

applicant pools according to their ethnic/racial background), were unconstitutional

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because they were not narrowly tailored to the state's compelling interest in diversity and

in overcoming past discrimination. The court also held that giving minority students a

"plus" is lawful, but was concerned about a separate standard for minorities and non-

minorities.

   The case was appealed to the Fifth Circuit Court of Appeals, that reversed and

remanded, explicitly stating that any consideration of race or ethnicity for the purpose of

achieving a diverse student body is not a compelling interest under the Fourteenth

Amendment. This decision was a stark departure from previous case law and, if adopted

by other courts as precedent, would make it almost impossible to design a constitutionally

acceptable race-based affirmative action program.

Appealed again to the Fifth Circuit, an opinion issued in 2000 dealt with the

matter on rather technical grounds, but refused to overturn the previous decision whether

diversity is a compelling interest. The US Supreme Court refused to hear further appeals.

While Hopwood remains a troubling precedent, its impact seems to have been

limited by subsequent court decisions. For purposes of the continuing viability of

affirmative action, the University of Michigan cases, Grutter v. Bollinger et al., and

Gratz et al. v. Bollinger et al., represent the clearest guidance issued so far by the

Supreme Court. Decided in 2003, the Court upheld the constitutionality of raced-based

diversity initiatives as long as they complied with the dual requirements of fostering a

compelling interest and are narrowly tailored to achieve the desired result.

Furthermore, the Court found that the educational benefits of diversity “are not

theoretical but real”, and identified these as benefits as:

fostering "cross-racial understanding”

“student body diversity promotes learning outcomes, … better prepares students for

an increasingly diverse workforce and society, and better prepares them as

professionals.”

“major American businesses have made clear that the skills needed in today’s

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increasingly global marketplace can only be developed through exposure to widely

diverse people, cultures, ideas, and viewpoints,”

“a highly qualified, racially diverse officer corps” is essential to national security.

Finally, the Court noted that

“[e]ffective participation by members of all racial and ethnic groups in the civic life

of our Nation is essential if the dream of one Nation, indivisible, is to be realized.”

C. Implementing Affirmative Action under Grutter and Gratz

Universities may consider race/ethnicity as one factor when reviewing

applications for enrollment, as long as the affirmative action programs:

are “flexible enough to consider all pertinent elements of diversity in light of the

particular qualifications of each applicant.”

include “a highly individualized, holistic review of each applicant’s file, giving

serious consideration to all the ways an applicant might contribute to a diverse

educational environment.”

quotas or separate applicant pools are not allowed, but an institution’s “… goal of

attaining a critical mass of underrepresented minority students does not transform its

program into a quota.” Furthermore, “some attention to numbers, without more, does

not transform a flexible admissions system into a rigid quota.”

“[n]arrow tailoring does not require exhaustion of every conceivable race-neutral

alternative.” Still, institutions must give “serious, good faith consideration” to other,

more race-neutral, alternatives.

However, while upholding the validity and importance of affirmative action, the

Supreme Court did state that “race-conscious admissions policies must be limited in

time”. Justice O’Connor, who wrote the majority opinion, indicated that it was her hope

that, in 25 years, affirmative action programs will not be necessary.

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D. The Reach of Grutter and Gratz decision.

Besides admissions policies, the guidelines outlined for the constitutionality of

affirmative action programs may also apply to other initiatives where race is considered,

such as:

financial aid and scholarships

recruiting and outreach programs

mentoring or tutoring programs

special orientation programs

A careful evaluation of the stated goals, eligibility requirements and funding

sources for these programs may be necessary to assure compliance with the current state

of the law.

II. The Evolving Concept of Protected Class Regarding Sexual Orientation,

Resulting from Goodridge v. Department of Public Health.

While issues of race and ethnicity tend to dominate the dialog (and case law)

regarding affirmative action, recent developments do serve to remind us that diversity is

not just a matter of physical appearance or cultural heritage. The very visible movement

by Gay, Lesbian, Bisexual and Transgender (GLBT) people to achieve equality, with all

the similarities with the struggle waged years ago by other groups, is now at the forefront

of the political discourse in America.

In the case Goodridge v. Department of Public Health, the Supreme Judicial

Court of Massachusetts declared in February 2004 that it was a violation of the state

constitution to ban gay marriage. Effective May 17, 2004, same-sex couples can now

lawfully marry in that state. While this was a decision rendered by a Massachusetts’ court

based on its interpretation of the Massachusetts’ (not US) Constitution, this momentous

change in the law may have an impact here in Minnesota. This is due to the fact that

Article IV, Section 1 of the United States Constitution requires that “Full Faith and Credit

shall be given in each State to the public Acts, Records, and judicial Proceedings of every

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other State.” In other words, legal benefits and court decisions rendered by one state shall

be recognized as valid by all the other states. While the applicability of Art. IV to same-

sex marriages is currently a matter of debate amongst constitutional scholars, President

Bush and members of Congress are proposing a Constitutional Amendment against same-

sex marriage exactly to deal with this issue.

Higher education institutions outside Massachusetts must take notice of the

continued political and judicial developments regarding the struggle for equal rights by

GLBT people. It is quite possible that issues of eligibility for benefits of spouses of

MSU-Mankato employees may be raised by same-sex couples married in Massachusetts,

or same-sex relationships legally recognized as domestic partnerships or civil unions

from other jurisdictions such as Vermont, Hawaii and the city of San Francisco.

Another issue to ponder is the feasibility of initiating affirmative action programs

to increase the presence of GLBT students and faculty on campus, using the same

analysis as applied to efforts designed for ethnic and racial minorities. In view of this

rapidly changing cultural landscape, innovative and forward-looking universities may

want to become not only “GLBT friendly”, but also to invest in the development of

programs, initiatives and support networks that would attract GLBT students and faculty

interested in research and career development options related to their community.

III. Tennessee v. Lane and Jones, US Supreme Court upholds Civil Rights

Protections for People with Disabilities

In 2004, the United States Supreme Court heard another case involving the

constitutionality of the public services provisions of Title II of the Americans with

Disabilities Act (ADA). At issue in the case, called State of Tennessee v. George Lane

and Beverly Jones, was whether Congress had the constitutional authority to require

states to pay money damages for violations of Title II of the ADA. On May 17, 2004, the

Court decided in favor of people with disabilities, ruling that Tennessee could be sued for

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damages under Title II for failing to provide access to the courts.

While the Supreme Court stated that they wanted to limit their ruling to access to

the court system, it is likely that this ruling will be cited as precedent in other situations,

such as a higher education setting. Current institutional practices regarding

accommodations for disabled students, faculty and staff should be reviewed periodically

to determine their implementation and effectiveness. A clear and user-friendly grievance

and complaint system regarding said accommodations must be in place, and mediation

should be emphasized as an effective alternative to litigation.

IV. Alternative Approaches to Achieving Diversity: 25 years to Go and the Clock

is Ticking!

One of the inescapable conclusions that we must confront is that the constitutional

survival of affirmative action hinges on just a few votes in the US Supreme Court, and

that even those Justices that supported the concept also indicated their desire to see race-

based preferences fade away within our lifetime.

What I will present below are some general thoughts on some alternative tools

designed to create a diverse student and faculty, tools that would survive future

constitutional review.

A. Geographical Preferences

While just a few weeks ago we celebrated the 50th Anniversary of Brown v. Board

of Education, the decision that eliminated racial segregation from public schools, we are

faced with the fact that public schools in America remain deeply segregated.

Caucasian/European-American flight to the suburbs has resulted in many inner city

school districts becoming overwhelmingly African-American and Latino, as is the case in

the Minneapolis school district. In addition, there are many rural communities in parts of

the country that are inhabited largely by minority populations (African-Americans in the

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Deep South, Mexican-Americans in California and the Southwest, for example.)

Some states, such as Texas, now guarantee admission to a state university for

students whose academic achievement places them in the top 10% of their respective

high schools. The irony is that, the only way this approach can successfully promote

diversity in the long run is by maintaining the current segregated public school system!

Another drawback is that by focusing on academic performance this system would tend

to favor those students of color that are already very well placed to succeed even without

admission guarantees (mostly middle and upper-middle class students). However, it may

still be useful to consider a geographical or location preference in the admissions process,

specially in small rural towns with large Hispanic population (such as Madelia, Saint

James, Worthington) or inner city neighborhoods such as Whittier or the North Side of

Minneapolis.

B. Special Outreach Programs

Other initiatives that may promote diversity are special programs that aim to bring

people of color into a higher education setting by addressing the specific needs of the

prospective students. For example, setting aside programs that would provide prospective

students with English-language skills and literacy needed to succeed in college. Students

that complete such courses would then receive special consideration for admission to the

institution. Another approach would be to create programs and offer degrees in areas that

address community needs. MSU-Mankato is just developing two programs along these

lines: the community health worker program, developed in cooperation with Blue

Cross/Blue Shield and a private foundation; and the “Language learning for Academic

Success” that, while designed to assist in the retention of already-admitted students, could

also be modified to work as a steppingstone for prospective students.

C. Workplace Skills Programs

Another approach would be to develop partnerships with local business owners who

employ large numbers of people of color, and who are interested in having a better-

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trained workforce. The institution would provide training geared towards the specific job

duties that the employee performs (for example, providing English-language instruction

focusing on the terms and practices actually used at the specific workplace). The hope is

that these workers will be exposed to the advantages of higher education and may decide

to apply as non-traditional students. Again, students that complete such courses would

then receive special consideration for admission to the institution.

D. Curriculum Changes

Diversity can also be accomplished by attracting those students that, thanks to their

academic excellence, do not need special consideration in order to gain admission. Of

course, these students will have many choices as to where to go. The institution must

compete for these students, and offering a campus environment and educational

experience that incorporates and validates a student’s heritage may be a deciding factor

for a prospective applicant. This can be accomplished by incorporating diversity across

all offered courses and career tracks. Another approach would be the creation of

specialized studies programs and institutes designed to foster research in a particular

community.

For example, St. Cloud State University (SCSU) recently created a Jewish Studies

program designed to research the Jewish experience. It is likely that Jewish students will

consider applying to SCSU thanks to the availability of this program. In the case of

MSU-Mankato, a Somali or East African Studies Program; or a Chicano-Latino Studies

Program, would serve to attract those bright, promising students from the largest ethnic

minorities in our region.

E. Partnerships

One last, but definitely not least important tool to use in promoting diversity is to

establish partnerships with local non-profit community agencies, local government bodies

(such as cities, counties and multi-jurisdictional units such as Region 9 Development

Commission), private businesses and foundations. These partnerships would be

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invaluable in several ways in order to implement diversity outreach programs:

enhancing grant applications, since foundations prefer to support joint collaborative

projects

working with non-profit organizations that serve minority communities will give the

institution the access required to forge links, and also to assess the needs and interests

of said communities

working in conjunction with private industry will serve to develop alternative sources

of funding (endowments, tax-deductible donations) as well as to develop joint

projects on matters of diversity in the workplace. The Univ. of Wisconsin-River Falls

has implemented such a program, training ESL tutors that will then teach limited

English employees of local dairy farms

collaborating with a wide array of partners, the institution will demonstrate its

engagement with the community at large, thus garnering the political support needed

when raising issues such as unsustainable tuition increases and budget costs before

the Legislature

V. Conclusion

I would like to conclude by saying that I wholeheartedly agree with Supreme

Court Justice Sandra Day O’Connor, and I too wish that affirmative action programs will

be rendered obsolete within 25 years. I wish that, in 25 years or less, people of color

would no longer face the formidable array of economic, institutional, social and political

obstacles currently placed on their way to full participation in the bounties of America.

But as long as these barriers exist, there will be a need to develop and implement

creative affirmative action programs.

Thank you. Gracias.

Francisco J. Gonzalez

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Note: All quotations are from the text the US Constitution and of the actual court

decisions. I also consulted the following online articles and adopted their analysis of

Hopwood, Grutter and Gratz

“Update on Affirmative Action in Higher Education: A Current Legal

Overview” by Ann Springer

http://www.aaup.org/Issues/AffirmativeAction/aalegal.htm

“Affirming Diversity at Michigan” by Ann Springer

http://www.aaup.org/publications/Academe/2003/03so/03sospri.htm

“Gratz/Grutter and Beyond: the Diversity Leadership Challenge” by Jonathan

R. Alger

http://www.umich.edu/~urel/admissions/overview/challenge.html

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