These notes were taken by Daria Witt, and reviewed and approved for dissemination by the participants.

The timing of this conference is auspicious because this week commemorates the 45^th anniversary of Brown vs. Board of Education decision, which reversed Plessy vs. Ferguson and made segregation illegal. This was a pioneering decision that relied on social science evidence. Prior to the Brown decision, public policy operated on the assumption that if racial segregation created a sense of inferiority, it was only because black people chose to interpret it that way. This was an example of ideology informing beliefs instead of evidence. The lawyers arguing the case for Brown marshaled social science evidence to disprove the many commonly held beliefs about race and racism that were used to justify segregation. Once again the courts of law and public opinion are struggling with issues and questions to which social science has the potential to bring many answers. The goal of this conference is to examine the potential for social science to succeed in this role and existing evidence that can be brought to bear on these issues and questions.

The following hypotheses underlay the work of the Panel on Racial Dynamics in Colleges and Universities’ project and formed the basis for the volume: Compelling Interest: Examining the Evidence on Racial Dynamics in Higher Education.

1. There is existing social science evidence that supports race conscious admissions practices.
2. This evidence is compelling.
3. Diversity on campus benefits students and society.
4. Affirmative action is an effective means of achieving that diversity.

We tested these hypotheses by carefully examining the broad body of empirical knowledge with the hope that uncovering the relevance of social science evidence will inform the courts of law and public opinion.

2. Opening Perspectives: Shifting the Debate: The Compelling Need for Diversity in Higher Education

We have a difficult time having a dialogue in this country when we talk about race because there is virtually no receptivity to hearing any new points. On issues of merit, fairness, and continuing discrimination, here is some of the context people place: How do we measure the merit of kids of very successful African Americans? Are they victims of discrimination? If we compare these kids to white kids from low-income families, whom do you pick? What is fair to my daughter? This is the context of the Michigan case. Because the context of the debate is not always revealed, it is difficult to address.

One of the findings Bowen and Bok cite is that by every measure of success, the more selective college or university African American students attend the more they achieve, holding constant their initial test scores and grades. But in the media, which provides surrogate experiences for reality, this is lost. Ronald Reagan brought up the image of the "welfare queen" using food to buy caviar. The fact that there was no real welfare queen didn’t matter; the anecdote was so powerful that it invoked another set of experiences that people just substituted.

In many respects we have made progress since Brown; we no longer see the forced subjugation of Black Americans. But racism remains quite persistent in its hold on us. Therefore, it is important to look at what didn’t happen after Brown. Its essential promise: an integrated public school education for K-12 students has been an almost total disappointment. The Brown decision was based on the notion that education in integrated classrooms and schools would have a major impact on eliminating the prejudice and ignorance that had fueled American racism. Brown has failed in this not because integrated classrooms do not have this effect, but because American cities and suburbs have become even more segregated than they were before Brown.

In the volume of evidence put together for the University of Michigan case, we make the case that there is a compelling interest in having a racially diverse student body in higher education. We begin with a very bold claim: all students in colleges and law schools learn better in a racially diverse environment and are better prepared to contribute to democratic society once they leave. A central part of a university’s mission is to cultivate an ability to understand issues from multiple perspectives. A university is better able to achieve that mission with a diverse student body. Our expert witnesses show this empirically and we have developed a theoretical framework to show why these results should be true.

We begin our analysis with the stark racial separation that persists in America and the costs that it continues to exact. Although we have become a very diverse society Americans of different racial and ethnic groups lead very separate lives. Nearly all of the nations’ largest cities have predominantly minority school districts. We attend separate schools and live in separate communities. Residential segregation remains a driving force behind racial segregation and division. This is particularly true in the major metropolitan areas of the Northeast and West. For example, in 60 of the 83 school districts in Detroit, the black student population is 3% or less. 82% of African American stud attend schools in only 3 districts. More than 90% of area’s white students attend schools in districts in which the Black student population is less than 10%. Only two of these districts come at all close to the area’s proportion of African American, Hispanic, and white students.

The costs of persistent racial segregation are profound for all of us. Shegrew (expert witness for the Michigan case) concludes: "There are unfortunately few places in American society where people of different backgrounds interact, learn from each other and struggle to understand their differences and discover their commonality." Such separations foster misunderstanding and mistrust and also provide little opportunity to correct the racial stereotypes that are often used as a basis for racial separation. It is not surprising that living and learning in such a segregated society necessarily affect one’s experiences and viewpoints. In fact, numerous surveys by public opinion researchers show that large gaps are present in the viewpoints of blacks and whites on numerous issues.

The critics of affirmative action in higher education often point to the progress that has been made in American society since the Civil Rights movement and ask how much longer race conscious policies need to exist. I have two responses to this: 1) It is a mistake to understand policies that use race in admissions as remedies for mistakes and discrimination that took place in the past. As a consequence of our history, race continues to matter in American life. Race does not necessarily determine one’s point of view, but race does shape and affect one’s experiences and perspectives. Because of these differences across race, bringing together racially diverse students on a college campus provides an educational opportunity. 2) Yes, there has been substantial progress since the Civil Rights movement. But for all the progress in measures of equality, we remain racially divided. The growing middle class of African Americans is now creating African American middle class suburbs.

How does this racial separation matter in education and affect classrooms and dorm rooms? Our expert witness Patricia Gurin conducted broad and extensive series of empirical analysis on college students. Her research confirms what people in higher education have long believed—racial diversity is good for education and good for citizenship. As presentations of this conference will make clear, Gurin’s evidence is confirmed by many other studies as well. Consistency of results is unusual in the social sciences. There is a consistent pattern of positive relationships between diversity in higher education and both learning and democracy outcomes.

The expert witnesses make the following key points for the Michigan case:

1. Students come to the University of Michigan from a variety of backgrounds. Students in late adolescence and early adulthood are at a pivotal point of growth. For many students, the college and graduate years represent the first sustained exposure to environments other than their home communities. These experiences also coincide with the time that young people experiment with new ideas and new roles and begin to make adult commitments. The University of Michigan recognizes this special opportunity and its corresponding obligation to take advantage of it.
2. Racial diversity in the student body provides features in the university environment that research has determined enable more complex thinking to occur among students. Extensive research in Social Psychology shows that many thoughts are actually just a series of automatic responses. We believe we are thinking when in fact we are just reading from a script. Complex thinking occurs when people encounter novel situations for which we have no script. Racial diversity in the classroom and encounters with difference force us off of our scripts, and make us do real thinking.
3. Education equips students for meaningful participation in a democratic society. People can best develop their capacity to think of others when they interact with diverse peers on equal footing. Research shows that such interactions enhance the ability to understand and appreciate multiple perspectives, deal with conflict, and appreciate differences. Given that many students come to college from segregated backgrounds, living and learning in a diverse environment can make strong steps towards overcoming the persistent racial separation that society faces today. In fact, it can do what we had hoped Brown would do: create an environment that overcomes the fear and ignorance that produce racial segregation.

I am optimistic about the ability of social science evidence to make this case. In reviewing the state of research on the benefits of diversity at the Harvard Civil Rights Conference two years ago, people were very skeptical. The academic culture had not caught up with the legal culture. It appears that two years later, we are in a much stronger position to explain why it is that policies like the ones we’re defending are essential to the mission of higher education. The work done for the Michigan case contributes to this and the work of this conference will represent another step forward.

But we also need to look at the press coverage about how the numbers of minority students have rebounded since Proposition 209 and how now all is well in California and the rest of the country. Despite the rhetoric, the facts are the following: in 1997, Berkeley admitted 562 African American students; in 1998, 247; and in 1999, 291. In other words, despite the claims of a rebound, the number of African American admissions to Berkeley is now 48% of what was in 1997. Those who supported ending affirmative action have glossed over the ugly side of these changes. Although the University of California has managed to maintain their minority admissions numbers system wide, it has not been able to maintain the numbers at its two most selective institutions. The claim that race is necessary in the admissions process is so easily disproved to most of the public by the headlines claiming that the numbers have bounced back.

While it is important to address misconceptions and inaccuracies regarding affirmative action, it is just not enough. We need to present a context for these issues that makes the truth easier to accept. When the New York Times magazine ran its piece on California numbers, not only did it make the point about the numbers rebounding without any real analysis, but it went on to make the point that minority students were being "cascaded" from Berkeley and UCLA down to Riverside. One student quoted in the article stated that it was a "blessing in disguise" for the minority students to be moved from the more selective schools into the less selective schools. The point of view of the article is clear: the minority students are in over their heads. This is an ugly, untrue, yet quite powerful image. But merely saying it is ugly and untrue is not enough. Our charge is to present the very different context that I have discussed. We have to show why it is right and important to have a diverse student body in higher education. We have to discuss the fact that we are a society defined by our racial and ethnic separateness. In that context it becomes clear that a diverse student body has powerful educational benefits that are crucial to our entire society. All students benefit from a racially diverse student body and the minority students that come to these campuses are fully qualified. Our challenge is to take the social science data and present it in a form that overcomes the powerful, unspoken, but fiercely negative images. We all have a lot of work to do.

The current debate regarding the use of race in higher education admissions decisions, and in selection for other campus programs designed to address under-representation, and to achieve a more diverse university community, continues in sharp contrast to Justice Blackmun’s 1978 admonition that" "…. in order to get beyond racism, we must first take account of race. There is no other way."

While perhaps not sufficiently explicating the ways to take account of race, the substance of Blackmun’s statement is largely consistent with the prior 45 years of educational policy dating back to Brown. Indeed, following Bakke, taking account of race in order to achieve equitable representation in education and in the workplace persisted, albeit slowly. The use of race as a factor to remedy past and current discrimination has continued but this use is distinct from the use of race to address benefits of diversity, representation, inclusivity, or equity. Critics of affirmative action argue that the latter is based on an "equality of results" orientation, which is sharply different from an "equality of opportunity" orientation. The discussion of results vs. opportunity orientation continues in the policy and academic communities and apparently turns in part on the distinction between consensus about the just remedying of de jure discrimination and its vestiges as contrasted with the goal of achieving parity as a remedy.

In many respects, the distinction between those colleges and universities in the South where segregation was legally enforced and those where it was not is a distinction without a difference. Simply put, an examination of the long-term record of participation of African Americans in the higher education system in the United States shows that the vast majority of all of higher education could be described as denying access to Blacks. In effect, custom was virtually as powerful as law. Decisions in Hopwood and Westman along with ballot initiatives such as Proposition 209 and Initiative 200 reflect the ascendancy of a policy perspective that would severely limit the role of race or eliminate it in public policy--especially in educational policy and practice. In higher education the spread of this more limited policy perspective threatens to dismantle well over a quarter of a century of targeted assistance to groups historically denied full participation and access largely on the basis of race. It is tragic irony that the Civil Rights movement that sought to get beyond race is challenged by not being allowed to take account of race.

Much of current debate proceeds without careful reflection of the very brief period during which we have been pursuing greater participation in higher education for minorities under any policy model. In this chapter I examine patterns and trends in higher education between 1980 and 1996 by race and sector using Carnegie classifications. The chapter looks at the patterns, levels, trends, and contrast of participation in higher education by race and sector. Also, using a measure of segregation within each sector, I seek to approximate the amount of diversity that characterizes higher education.

The current higher education context is different in many ways from 1965 when the Higher Education Act first passed. By 1970 nearly two-thirds of all black students who enrolled in higher education enrolled in institutions other than Historically Black Colleges and Universities (HBCUs). In 1964 nearly half were enrolled in HBCUs. The dominant public policy understanding of affirmative action in the mid 60s was one of support growing in part out of the leadership of President Johnson but also fueled by urban strife and efforts on college campuses to highlight the importance of increased access. The attributes of the current context make it more important to take stock of progress (and the lack thereof) in higher education for different groups in the United States.

This analysis treats each Carnegie category as a sector of higher education. It is customary in the current debate to treat colleges and universities as sectors based on their selectivity (Bowen and Bok). The Carnegie categories are based on other criteria that constitute the basis of collective colleges and universities that share other attributes. They constitute the reference categories institutions use to develop policies to remain on par with their peers. Within each sector we can identify public and private colleges and universities. In the current attack on the use of race, it is the public sector that is attacked in primarily Research I Universities. These are most often flagship universities, which are beneficiaries of state policies that make them especially attractive: faculty, resources, research, etc.

Table I shows demographic changes: while the white non-Hispanic population declined by 11.2%, the total minority population has increased by 11.1 percent. These are students who have been the least well served by K-12 system.

Table 7 shows the high concentration of minority students in large urban districts and in districts with high concentrations of poverty. The combination has the effect of producing school characteristics that are commonly identifiable as having very negative effects on students’ opportunity to learn. Denton and Massey show that for every 5-10% increments of poverty and racial concentration, there is a subsequent and corollary decrease in the quality of schools as indicated by a number of measures. What we have, therefore, are situations that constrain and constrict the flow of students that begin early on and continue throughout the high school years. These schools typically have teachers who are less prepared, less credential, and less experienced.

Data on higher education show that we have indeed made progress. In 1982, Black students were 13.1% of the college age population, 11.8% of the availability pool (high school graduates), and 9.7% of fall 1982 undergraduate enrollment. If parity is considered to be the number of students enrolling in college as equal to those graduating from high school, then Black students were roughly 2.1% below parity. In contrast to their percentage of the college age population, parity was even farther away. Hispanic students in the same year were 6.9% of the college age population, 4.8% of the availability pool, and 5.4% of fall 1982 undergraduate enrollment. Asian students were not counted.

1996 data show virtual stability with regard to African American students; there was growth in the number of African American students enrolled but with regard to parity, there was no increase since their eligibility pool increased. Latino students were even farther from parity—10.5% of population in 1996 but only 7.6% of full-time undergraduates.

There are also broad differences within the different sectors. Asian American students comprised approximately 32% of the Research 1 sector by 1996. African American students experienced an actual decrease at the Research 1 level; Latino students experienced an increase of approximately 4 percent.

Chart 4--Degree attainment

There are also significant differences in the percentages of students who graduate from high school and those graduating from college. For example, in 1991 12.8% of high school graduates were African American; 7.9% were Hispanic. When we look at comparable measures for college degrees received we see a 5% gap for African American students and a 2% gap for Hispanics. White and Asian are students participating at a rate above parity. The same distinction and gaps are apparent at the Ph.D. level. These figures belie notions of exceptional progress.

Figure 7 data show the relative stability of segregation across all sectors. The highest level of segregation is recorded for Asian students, the lowest for Native American students. These data show that although we have been able to change numbers of students, the same level of segregation exists across levels. Masters and bachelors colleges have the highest level of segregation. If we reduce representation at the Research 1 universities, we will increase segregation because we will be moving students into more segregated sectors.

We have been able to achieve gains in degree attainment under policies that are race-sensitive. Therefore, if we bar the use of those policies, we can expect an increase in segregation and a substantial decrease in the numbers of Black, Latino, and Native American students in the sectors that have demonstrated to be likely to achieve the greatest diversity and the greatest benefits of diversity.

In California, affirmative action was abolished by Proposition 209 and the UC Regents Resolutions, so it is tempting to believe that the debate regarding affirmative action in higher education has become irrelevant. People of color have suffered devastating losses as a result of these recent developments – developments that are not likely to be reversed soon. For example, as many of you know, admissions of blacks and Latinos at the University of California (UC) Berkeley were cut literally in half. Under the new admissions program, implemented for the first time in 1998, more than 750 African American and Latino students with 4.0 GPAs were denied admission to UC Berkeley.

The ACLU and other civil rights organizations are now suing the university because the new policies adopted in lieu of affirmative action actually operate to discriminate against particular minority groups. The elimination of affirmative action policies did not level the playing field. Quite to the contrary, the elimination of affirmative action has meant a return to discrimination. UC Berkeley’s new admissions program employs discriminatory criteria in a process that effectively rewards privilege rather than merit. The system as a whole discriminates against Blacks, Latinos, Native Americans, and Filipinos. The most questionable features of the new admissions process are the following: UC Berkeley grants preferences to privileged students by giving bonus points to students enrolled in AP courses not often available in predominantly minority high schools. (Students who take AP courses are evaluated on a 5 point scale instead of 4 point scale.) UC Berkeley also excessively relies on the SAT, a test in which success correlates with SES and that has a disproportionately negative impact on minority students.

The work we have done in connection with the lawsuit leads me to a few observations about the relationship between social science evidence and equality of opportunity in higher education today. Given the eradication of affirmative action in California, Washington, and Texas, we need to be sure that there is proper emphasis within social science research on those obstacles that make it difficult for students of color to have access to higher education in the first place. To avoid any potential for confusion, let me say explicitly that I do believe that social scientists should continue doing the research they are doing now, illustrating the need for affirmative action and the benefits of diversity on campuses. And they should also continue to compile evidence showing that we still live in a racially segregated and unequal society, and that a level playing field remains a fantasy for many students of color.

My point is that a particular kind of social science research may be worthy of particular emphasis today, now that affirmative action has come to an end in states like California. The challenge for lawyers practicing in the post-209 era is to demonstrate that the re-segregation that we are witnessing in higher education is not the product of a new meritocracy, but rather the result of race discrimination. We should not concede that a world without affirmative action even resembles a meritocracy, or that race-neutral criteria, programs, and policies are in practice non-discriminatory. Our job as civil rights attorneys is to pull back the curtain, and to reveal the discrimination that lies beneath the surface.

We need social science research that proves our point. Dr. Trent, in his article, describes the misleading metaphor of the pipeline. The problem, he argues, is that the metaphor is not consistent with the experiences of many minority kids; it is more appropriate to think of the journey to higher education as a river or stream in which there are many blockages. Our challenge as civil rights attorneys is to identify those blockages and barriers for which government actors can properly be held responsible and to prove that those barriers are racially discriminatory. This is important for two reasons. First, it helps to illustrate in the arena of public opinion that the disadvantages people of color face are not their own fault. Many opponents of affirmative action believe that the problem would be solved if students of color just studied harder. Others oppose affirmative action because they believe the problem is poverty as opposed to race. This is a false dichotomy that leads people to oppose affirmative action. Thus, social science research that explains how particular government policies and practices operate to the specific disadvantage of people of color helps to bolster the public’s understanding and support of affirmative action.

Another equally import reason for this kind of research is the possibility of bringing legal challenges to eliminate the barriers. Under Title VI, any program that receives federal funding and creates an unjustified disparate impact on people of color is illegal. The challenge for lawyers is to identify those policies and practices that seem neutral on their face, but actually have an unjustified discriminatory impact.

For example, Dr. Trent shows that very few African American students have access to AP courses, yet those who do take AP exams score about as well as their white counterparts on the SAT. This type of research could be useful in determining whether or not to sue a school district for failing to provide access to AP courses in predominantly minority districts. It could also be useful in evaluating whether or not a university is violating civil rights laws by relying too heavily on AP scores in making admissions decisions. Indeed, this type of social science research may suggest that students of color are subjected to many layers of discrimination simply because of one boulder lying in the stream. I hope that more of this type of research is to come. The future of thousands of minority students may literally depend on it.

As a journalist, the main question I consider in reading this paper is: How will my readers perceive the information presented? I loved this report because it was full of numbers—I need to have facts and data. Everyone has an opinion on affirmative action and most people listen for what they want to hear. As a journalist I need to present data and facts that are balanced, and to interview people on both sides of the issue. An issue laid out in terms of numbers is easier to use and can sell much more easily. People want to read about stories that have to do with people like them and to know how it will affect them.

As I read through the report, I noticed several pieces in particular that would either be problematic in terms of selling a story or something that would make the story sell more easily.

The first problem was that the data was tied to the Research 1 universities. The difference between the various sectors was not very clear. The issue from my standpoint is not the Research 1 universities; the issue is selectivity and space. This analysis would be more effective if it were done in terms of the number of applications vs. the number of spaces.

The report also deals with the testing gap. Opponents of affirmative action say it is not fair to base any decision on race; if someone has better test scores, he/she is a better student. For a journalist, this is a difficult issue to explain. Journalists get only 60 inches of text on a good day—20 or 30 on bad day. Where this report explains the testing gap the most effectively is on the urban school data—people understand that there is an urban school crisis and that the majority of urban students are minority. I have seldom seen data explained as numerically and clearly as it was in this report. The parity issue, although it is important, is very difficult to explain in a newspaper and difficult for readers to understand when they read about it.

One very important issue that should be addressed more thoroughly is the issue of minority achievement after attending elite universities. This would be a telling statistic that readers would understand and relate to and could transcend across racial lines.

It is very important to address in articles what we need to do to get away from affirmative action The New York Times Magazine piece at least touched upon this in its discussion of outreach programs. Readers are very troubled by the fact that affirmative action supporters will say that affirmative action is a temporary solution but do not propose a continuing solution or an estimated time of arrival for the world we would like to see.

I also want to emphasize the need for researchers need to work with journalists. The quality of my reporting is dependent on the quality of information that I receive from you. Without you it will not get in the paper and the public will never understand.

1. What is the possibility of framing the issues as they used to be framed in terms of the broad social injustices?

It is difficult to find a peg-- a timely or newsworthy event-- for the type of thing you are talking about. It would have to be tied to a very poignant anecdote.

2. Question to Dr. Trent: Does this cause you to change how you want to do your research?

Trent: As academics, we are trained in one way. We are rewarded for work that has currency in a particular arena—journals and academic distribution. That is how we target the majority of what we write. There are not short lean ways of saying yes we have made progress but there is still a gap in parity. Also the difference of going to a selective institution and a non-selective is not easily explained to the public. What the public does understand is that if affirmative action is not maintained, when your kid goes to a selective public institution in 10 years, he/she will be going to a place that is as homogenous as it was in 1969. Whether or not this motivates people is a separate question. This is a different type of writing that only a few academics have begun to do.

When we talked about issues of equity and social justice in the 60s, the proximate nature of the water fountain signs made the notion of justice clear to everyone. However, because we are an ahistorical people, we cannot talk about the cumulative losses to the African American community that were accrued through centuries of denial to full access. There is no context in which people can root this.

Walsh-Sarnecki: The only way to get at big issues in the media is to break them down into small pieces of the whole. We can not cover any big issues at one time. This is often problematic in journalists’ relationships with researchers who want journalists to cover all aspects. People are concerned about the homogenization of universities, but most people are more concerned with putting their child and the people they love first.

Payton: The context of that point is the displaced white student as the key driving force. We are letting that displaced student drive the whole debate as opposed to focusing on the students who did get in and whether or not they can get benefit from diversity.

Alexander: There is a typical assertion by both the media and academics that we are objective and neutral—not activists with an agenda. Anti-affirmative action advocates have been very successful in finding intermediaries between the media and academics that have helped to translate very potent messages. These are very well financed think tanks that take information from academia and package it to sell it to the public to consume. Affirmative action supporters have not done this. We need to figure out how to disseminate the messages to the public in a way that is digestible.

The downside of Bakke and Justice Powell’s decision was that it said that the only end universities could pursue diversity for was to benefit the education of students. In the Hopwood case I was called to testify why diversity is important for the educational experience. The judge was interested in knowing whether or not diversity is important for a school to be prestigious. Absolutely every top school regards diversity as a way to excellence if not prestige.

It is a pleasure to be here today. As I look out into the audience, I am happy to see many friends -- long-time warriors in the struggle for civil rights who believe that diversity in higher education is critically important. I invite you to consider the teachings of American Indian traditions that:

Those of us who are committed to diversity in higher education must learn from our mistakes and focus the vision. To focus the vision today, I invite you to consider the following:

In recent years, we have lost battles in the struggle to protect diversity in higher education:

Recent data show the dramatic impact of prop. 200 on the University of Washington admissions program. We generally know that without the consideration of racial diversity in higher education admissions, we will likely have college or university classrooms with far fewer minority students. William Bowen and Derek Bok, former presidents of Princeton and Harvard universities, have estimated that if selective colleges and universities no longer considered race in their admissions, the number of African-American undergraduates would shrink from approximately 7% to 2%, or to less than one-third of current levels.

Alas, all is not negative. "people are like tea bags. You find out how strong they are when you put them in hot water."

Contrary to the views of some, the Bakke majority ruling has not been overruled. Only the Supreme Court has the prerogative of overruling its own decisions. The court has never disavowed Bakke and indeed has uniformly assumed its continuing validity. The Supreme Court has cited Bakke approvingly in Wygant v. Jackson board of education, metro broadcasting, inc. V. FCC, and Adarand Constructors, inc. v. Peña.

In Bakke, five members of the Supreme Court held that it did not violate the equal protection clause for the University of California, Davis Medical School to take race into account in its admissions process, even in the absence of any proof of a remedial interest due to the university’s prior racial discrimination. Five justices also held that the medical school, where appropriate, could constitutionally consider race under a "properly devised admissions program" involving the "competitive consideration of race and ethnic origin."

In Bakke, the United States Supreme Court affirmed the judgment of the California Supreme Court, which held unconstitutional a state medical school's use of a rigid race-based admissions quota. The Supreme Court, however, reversed that portion of the state court judgment holding that the medical school could not constitutionally consider race in any manner in its admissions process. Even though the court determined that the particular program that denied Bakke admission was unconstitutional, it also determined that the medical school would not be subject to an injunction precluding it from using race in the future.

Justice Powell, who announced the judgment of the Court, wrote that a university may have a compelling interest in considering the race of applicants in order to increase student body diversity. The Department of Justice has taken the position in numerous courts that Justice Powell’s opinion is a correct statement of law under the constitution and Title VI.

In Bakke, Justice Powell identified the medical school's interest in providing the educational benefits of a diverse student body as a permissible basis for the consideration of race in admissions. Applying strict scrutiny, Justice Powell explained that "an otherwise qualified . . . Student with a particular background — whether it be ethnic, geographic, culturally advantaged or disadvantaged — may bring to a professional school . . . Experiences, outlooks and ideas that enrich the training of its student body and better equip its graduates." In addition to producing leaders trained through "wide exposure" to a "‘robust exchange of ideas,’" Justice Powell explained that a diverse student body promotes the "atmosphere of ‘speculation, experiment and creation’" that is "so essential to the quality of higher education."

Justice Powell offered colleges and universities guidance for the development and maintenance of constitutionally permissible diversity admissions programs.

The Department of Justice recently reiterated our position that Justice Powell’s opinion in Bakke remains good law. In the cases brought by private counsel representing students challenging the University of Michigan’s admissions policies -- Gratz v. Bollinger and Grutter v. Bollinger -- we have filed two amicus briefs. Our briefs state that institutions of higher education should have the flexibility to develop and implement admissions programs that consider an applicant’s race or ethnic background as simply one element, weighed fairly with others, to further the compelling educational goal of enrolling a diverse student body.

In the course of preparing our briefs in the Gratz and Grutter cases, we were impressed by the University of Michigan’s marshaling of significant social science research confirming the educational and societal benefits of diversity. After studying racial and ethnic diversity at the University of Michigan, as well as other colleges and universities, the university’s experts confirmed that diversity in the higher education context improves students’ education, racial understanding, cultural awareness, cognitive development and leadership skills. As Justice Powell explained two decades ago, the social scientists confirmed that when students interact with others who have backgrounds and characteristics different from their own, they are more likely to think critically and engage in the "‘robust exchange of ideas’" deemed an essential component of higher education. Classroom racial and ethnic diversity promotes substantive teaching and learning by exposing majority and minority students — often for the first time — to students of other races who can challenge long-held perspectives and encourage intellectual exploration.

University expert witness Patricia Gurin analyzed data from the multi-institutional cooperative institutional research program’s annual student survey, the Michigan student study, and the intergroup relations, conflict and community program at the University of Michigan. She found that many students enter the university after graduating from racially isolated high schools. As a result, they initially find the university’s racially integrated environment to be new, demanding and unfamiliar. To adapt to the university’s diverse educational environment, students must think in "deeper, more complex ways" and learn to respond to perspectives quite different from their own.

In her research, Gurin found that students’ interaction with other-race peers in the classroom and informal settings is positively associated with several:

Gurin concluded that higher education plays a central role in helping students become active citizens and participants in a pluralistic democracy.

Gurin also reported that:

Gurin concludes that if selective colleges and universities are able to bring together students from various ethnic and racial backgrounds at the critical time of late adolescence and early adulthood, they have the opportunity to create "dramatic long-term effects" on intergroup interaction patterns and break the cycle of racial separation in workplaces and neighborhoods.

When colleges and universities marshal social science evidence on the benefits of diversity such as that produced by Gurin, it is likely to bolster substantially the anecdotal evidence we have relied upon in the past.

That race-conscious decision-making may be necessary to achieve classroom diversity does not open the door to impermissible stereotypes, nor affirm the perception that members of the same racial group — regardless of their culture, education or economic status — all think alike. Indeed, exposure to individuals of different racial and ethnic backgrounds may be the best way for students to learn that all people of a particular race do not think alike, nor have they the same background. Presidents Bowen and Bok have reminded us that "the black student with high grades from Andover may challenge the stereotypes of many classmates just as much as the black student from the south Bronx." Moreover, the educational benefits of diversity are greatly magnified by the learning that takes place outside the classroom — in dormitories, social settings, and extracurricular activities — as students must learn to live and work with persons of other races and ethnic backgrounds.

If diversity admissions programs at our nation’s colleges and universities are to survive, we must all do our part to defend the programs placed under attack.

The Department of Justice has participated as amicus in several cases addressing diversity in educational institutions in addition to the University of Michigan cases. These cases have included:

Educational institutions must do their part. We must protect diversity by defending the practices of institutions that properly apply the lessons of Bakke while modifying the practices of those who do not.

In the wake of Proposition 209, California educators were forced to adopt diversity programs that relied, in large measure, on outreach to middle schools, high schools and minority communities to increase the pool of regularly-admissible minority applicants. An educational institution outside of California need not wait for a voter initiative or lawsuit to adopt "inclusive" diversity programs. By partnering with middle schools and high schools that serve minority students, it can expand minority recruitment efforts today.

Several colleges and universities appear to have been targeted by groups opposed to diversity admissions in higher education. Assume that your college or university will also be targeted. With the advice and guidance of your legal counsel, pre-emptively conduct a review of your institution’s diversity admissions and scholarship programs. The hard question which must be asked and answered truthfully is: "Do our diversity admissions and scholarship programs fall within the parameters of Bakke?

Colleges and universities occupy a unique position in American society. The Supreme Court has long recognized the importance of academic freedom and the university’s right to make its own judgments as to the education of its student body. That recognition informs Bakke.

I am pleased that you invited me. I look forward to working with you. Thank you.

Q&A

What is the appropriate level of diversity to reap the benefits of diversity?

Response from Bill Lee: At this point the Department of Justice does not have a firm answer on what that is. I would find it useful to hear what social scientists have to say about at what point we have the benefits of diversity that Gurin and Powell talking about. We need much more work in this area. Are we really talking about diversity or is diversity a cover for a quota program? It needs to be the former. This is not purely a legal answer. I am not sure it will be the same answer for each institution in different places. It also may be an answer that differs over time. The Bakke paradigm buys into the notion that there is some deference to decisions of educators as to how they should go about doing the job of education.

Response from William Trent: We have to create enough diversity so that the individuals in a specific category do not suffer from the "specter of exceptionality"—the continued experience of being exceptional because you are a unique member of that category. As a social science community we have not fully explored the ways that that the specter of exceptionality manifests itself nor have we demonstrated the powerful effects on those members of a particular category.

2. How can we reclaim the moral, the ethical, and the pragmatic high ground that was characteristic of the Civil Rights movement? The late 20th century postindustrial economy that excludes many people; huge sectors of minor youth are in barrios and ghettos with very little opportunity. The contextual situation is very different in the late 20^th cent than was in the 1950s and 60s.. Without reclaiming this moral high ground, our discussion of diversity (which is really a 2^nd generation Civil Rights issue) will have a difficult time persuading the majority of Americans.

There have been a lot of changes we should acknowledge; for example, we have a black middle class at the end of the 20^th century that is larger than we have ever had. W should not talk about affirmative action efforts unfettered from their roots to overcome real problems in American society because doing so is a distortion. After all, we wouldn’t have a need for affirmative action but for the fact of our history and social conditions. Only 2% of the work at the Department of Justice has to do directly with defending affirmative action. The majority of our work lies in ratcheting up enforcement areas, mostly in the area of hate crimes, police misconduct, and housing discrimination. We in this nation have a short memory and we have compartmentalized the Civil Rights movement as something that happened in the 60s, cut it off at a certain point, and started anew. Part of the answer from the point of view of an enforcement agency is to ratchet up enforcement and make that connection. Also, it would be useful for university administrators to talk about diversity and why we need it. What is its intended benefit? We have not done a great job of answering that or doing social science research to make the arguments that are out there. The fact that we are having this conference at this late date is a sign of this.

3. What is the Department Of Justice’s position with respect to the proposed rules challenging the reliance on test scores and AP tests as having a discriminatory impact? We have learned that it is actually very useful to look beyond showing an adverse impact to what the tests are really looking for. We have found that the police force’s reliance on paper and pencil tests is not just bad because it has a negative impact on racial and ethnic minorities, it is also bad because it is not selecting the kind of police who are up to the job of policing. We have selection procedures that need to be modified so that thy can select out those who can do the job of sensitive community policing. I expect we would apply those principles to this effort. The Attorney General has given several speeches about the need to consider merit and qualifications in a broad sense in terms of realism, capturing what we are after. This applies to the university because it gets back to the notion of what the university is selecting for, what it is, what the community is, and who state or localities want at public institutions.

4. Why don’t we focus more on the K-12 system in which minority children are not being educated? Why isn’t this a civil rights issue? Will we get to that point?

I hope so. The Civil Rights division is good for law enforcement. But you are talking about putting real investment into urban school systems—it remains to be seen what the Administration can do along those lines and what Congress would approve. To what extent are we talking about a band-aid solution when we talk about affirmative action at the higher education level? This is a very legitimate question.

There are two critical questions in this debate: whether race matters in every day life, and whether race should matter in institutional policies. Before we can decide if race should matter, we need to recognize the ways in which race does matter in every day life. Social psychological research is rich with examples of the many ways in which race influences social perceptions, attitudes, and behaviors.

As we look back over the years of the post Civil Rights era, we see a positive trend in the self- reported racial attitudes of white Americans, especially in their attitudes towards black Americans. The demise of legalized racial segregation and discrimination was followed by a sharp decline in blatant or old-fashioned racism, which centered on the notion of biological inferiority. Today white Americans overwhelmingly endorse principals of racial integration.

Data collected by the National Opinion Research Center in Chicago showed the following shifts in responses to questions about racial attitudes over time:

In answer to the question, "Do you think white and black students should go to the same schools?" 32% of whites in 1942 said "yes"; 96% in 1995 said "yes".

Should marriage between blacks and whites be legal? In 1963, 38% of whites said "yes"; in 1996, 87% said yes.

Data collected on white college students show that their negative attitudes towards blacks have also declined steadily: 75% described blacks as "lazy" in 1933; 2% in 1996.

Many researchers argue that while the fundamental norms with regard to race have changed, the underlying negative attitudes towards African Americans persist, albeit in a new guise. One contemporary approach with regard to racism is Gaertner and Dovidio’s theory of "aversive racism". They argue that while most whites consciously endorse egalitarian values and principles, many still harbor unconscious biases towards members of minority groups. These biases result from childhood socialization of dominant racial biases in society and from the ways we categorize individuals into social groups in order not to have to expend limited cognitive resources judging each person individually. These biases reflect more fear, discomfort, and avoidance than the bigotry, hatred, and hostility seen in past decades. Unlike the more blatant prejudice exhibited against members of minority groups directly because of group membership, aversive racism is exhibited more when it can be justified on the basis of some factor other than race. In that way, aversive racists are able to maintain a non-prejudiced self-image.

A study by Audrey Murrell et al. in 1994 looked at the impact of aversive racism on opposition to affirmative action. They surveyed over 300 white American college students. They varied two factors in their surveys: 1) the target of affirmative action programs (blacks, physically handicapped, or elderly persons), and 2) the way in which the policy was framed (for half of the students no justification was provided for it, emphasizing the use of non-merit factors in the selection process and framing it in terms of reverse discrimination and preferential treatment; the other half were provided justifications in terms of achieving the goal of diversity or remedying past social injustices). Two findings to point out: opposition to affirmative action when blacks are the targeted group is much greater than when the other two groups are targeted and opposition is even greater when blacks are the targeted group and no justification is provided. If opposition to affirmative action were entirely motivated by non-racial principles of fairness, then we wouldn’t expect to find that opposition to affirmative action was any greater or less depending on the target of the affirmative action program. Also we wouldn’t expect that policies framed in terms of lacking justification would generate any greater opposition when blacks were the targeted group than when the other two were the targeted groups. This clearly demonstrates that in addition to the way the policy is framed, aversive racial attitudes can also influence acceptance of affirmative action. However, it is important to point out that these findings do not imply that all opposition to affirmative action is motivated by racial attitudes.

At the heart of the aversive racism perspective is the idea that racism is deeply embedded in the culture in which we live. Although racism has changed from being expressed in overt and blatant ways to more subtle expression, racism is still very much a part of the United States culture. As this perspective implies, racism can occur not only at the level of the individual, but also at the level of the institution. Institutional racism refers to those established laws, customs, and practices that systematically reflect and produce racial inequities in American society. Remedying institutional racism doesn’t involve changing individual racist attitudes but rather restructuring institutional practices.

Differences in educational attainment between blacks and whites in 1993: The percentage of blacks graduating from high school by the age of 25 was 77%; whites 83%. This difference in educational attainment doubles in percent graduating from college by the same age: 12% blacks and 24% whites.

Difference in SAT scores in 1992: Blacks are still lagging behind whites in both verbal and math SAT scores. Even when they have the same SAT scores, they tend to score one-third of a GPA point lower in college. This shows that the group differences need to be explained in terms other than skill deficits. One approach to explaining underperformance of African Americans is that of "stereotype threat" (Steele and Aronson).

Stereotype threat refers to the fear of confirming or being judged by negative stereotypes held by others about one’s group. For example, members of groups negatively stereotyped in the academic domain may under-perform in that domain due to fear of confirming or being judged by the negative stereotype. For example, African Americans face negative stereotypes about intellectual abilities; therefore, they face the threat of confirming or being judged by these stereotypes when they are asked to take a test measuring intellectual ability. This has two negative consequences: 1) it creates anxiety, and 2) it leads to disidentification with the academic domain, or rejection of academic performance as an indication of self-worth. Anxiety and disidentification with the academic domain then lead to lower performance and effort. This line of research offers an alternative interpretation of group differences in standardized test scores: They are due at least in part to differences between blacks and whites in the threat posed by negative stereotypes about their group’s academic ability.

Summary of results of two studies testing these hypotheses: in both studies, black and white Stanford students were given an exam comprised of the most difficult verbal items of the GRE. In the first study, before they were given the test, they were given one of two sets of instructions: One group was told it was a diagnostic test of intellectual ability. This diagnostic condition creates high threat to African Americans in the domain of academic ability. The 2^nd group was instructed that the test was not diagnostic of their ability; this condition posed low threat.

The results supported the predictions of stereotype threat: there were no significant differences between blacks and whites in performance on the non-diagnostic test. On the diagnostic test, however, blacks under-performed. The second study manipulated instructions in a more subtle way. Non-diagnostic instructions were administered to all subjects. The stereotype threat was manipulated by giving students a demographic questionnaire. Half of the students were asked to record their race, thereby priming race on the questionnaire. The other half did not get a question about race. In the case where race was not primed, there was no difference between the performance of blacks and whites on the non-diagnostic exam. When race was primed, there was an under-performance of blacks. These results imply that stereotype threat could be a possible source of bias in standardized tests -- a bias that comes not from the actual content of the items, but from differences between blacks and whites in the threat posed by societal stereotypes.

Implications: If merit is tied to performance in a domain in which a group suffers from negative stereotypes, then ignoring race in merit-based selection procedures unfairly disadvantages members of minority groups. Given the current racial hierarchy, color-blindness perpetuates the racial status quo due to the operation of unintentional racial biases. These processes contribute to the unequal treatment of members of racial minority groups and generate opposition to redistributive social policies designed to ameliorate their condition. Research would conclude, therefore, that colorblindness is unfair because it ignores the many ways in which race matters in society.

In considering the implications of social psychological research for achieving goals of diversity in higher education, diversity can be described in terms of 4 dimensions outlined by Daryl Smith in 1995.

1) Representation: focuses on the inclusion and academic success of previously underrepresented groups. Diversity efforts along this dimension have been motivated by social justice and equity concerns.

2) Campus climate and intergroup relations: addresses the campus setting in which diverse groups of students interact. The goal is to create positive learning environments and an intergroup atmosphere for the benefit of all students on campus.

3) Education and scholarship: focuses on ways to incorporate diverse perspectives into teaching methods, curricula, and areas of scholarly inquiry so as to better educate all students to live in a multicultural society.

4) Institutional transformation: focuses on the ways in which institutions must be restructured to increase equality of opportunity for all students and to achieve the goals of diversity captured by the other 3 dimensions.

Social psychological research has mainly focused on the first 2 dimensions. For example, the Contact Hypothesis, proposed by Gordon Allport in 1954, mostly focused on the 2^nd dimension by looking at how to achieve positive intergroup relations and prejudice reduction in campus settings. Allport established four conditions: 1) members of all groups need to have equal status within a contact situation, 2) an active pursuit of common goals, 3) an intergroup atmosphere that is one of cooperation instead of competition, and 4) contact to be supported by institutional policies and representatives.

The contact hypothesis was developed at the end of the era of legalized school segregation when the questions raised by the issue of diversity were different than those raised today. The question then was how do we get school children from a racially segregated environment to come together and achieve in a racially integrated environment? The questions we face today are: 1) How do we create that contact? This has to do with the dimension of access. 2) How do we make contact beneficial for all? This has to do with the other 3 dimensions of diversity.

The challenge we face today is to determine how educational institutions can treat people as individuals while at the same time acknowledging the collective representations that matter in society. The Common Ingroup Identity Model (Gaertner et al., 1994) offers one solution to this question. This model addresses the question of whether individuals should be categorized and treated as group members or decategorized and treated as individuals. Gaertner and colleagues propose that members of diverse groups be recategorized into members of superordinate common ingroups, which emphasize what everyone has in common while at the same time recognizing individuals’ needs for differentiation into smaller ethnic subgroups. They found through several studies that the intergroup bias on multicultural high school campuses decreased when students considered the student body as one superordinate group rather than as several subgroups. It is important to point out that the development of common ingroup identity does not require members of diverse groups to give up their subgroup identities. People can simultaneously have superordinate identification and hold subgroup identities dear to them. People who identify as both Americans and as individual ethnic subgroups showed less bias than those who identify only with members of their ethnic subgroups. In practice, Gaertner et al. propose that a common ingroup identity can be activated either by making salient an existing common group membership (e.g. being American) or by introducing factors that are perceived to be shared by members of a group (e.g. a common rival sports team).

Creating common ingroup identities reduces the degree to which opposition to affirmative action is driven by competing identities and interests. Recategorizing individuals into one superordinate group focuses on the need for affirmative action in terms of benefiting everyone and in terms of meeting the goals of all four dimensions of diversity.

Social psychological evidence on race and racism supports Blackmun’s opinion in the Bakke case. This research comes to the conclusion that fairness requires taking race into account because race matters in society in ways that disadvantage members of minority groups.

1. Proposition 209 prohibits discrimination and preferential treatment. Does it make sense to frame legal challenges by saying that the societal aspects that privilege Whites actually violate 209 in its prohibition against preferential treatment?

Fay-Bustillos: Before 209 there were already laws that prohibited discrimination so 209 did not add anything. Proposition 209 is still being interpreted in the state courts in California. The term preferential treatment is not clearly defined and it is uncertain whether or not it really does prohibit race-consciousness. Where that line will be drawn will be determined by the cases going on now. Whether or not it makes sense to say that privilege to whites violates 209 is difficult to say. We are proceeding very cautiously in the Rios case. We already feel that is a huge step to say that a system that purports to be race-neutral is not. We are not yet ready to move to the next level.

Levin: Social scientists are trying to refocus the debate on racism to try to characterize the changing nature of racism in the country. Blatant discrimination at the basis of civil rights laws is much easier to rally around. This chapter tries to show that racism still exists and that it can have grave consequences. To the extent that we can recognize unconscious biases then we can enter into a debate about discrimination and affirmative action policies that respond to these unconscious biases.

Another aspect of the social science literature in this area distinguishes between ingroup preferences and outgroup hostility or bias. Acknowledgement of group preferences leads into a discussion of privilege and the ways in which subtle biases that are not talked about in discussions of preferential treatment have an effect.

2. How would the research reconcile the fact that most Americans believe that discrimination is bad with the fact that most Americans have chosen to live in homogeneous communities so they can send their kids to homogeneous schools.

Levin: Few people will say discrimination is ok. One way people get around this is to say the reason we want to live in homogeneous environment is not discrimination, it is to be with people like us. There is no outgroup hostility—few people will say they want to keep anyone out. There is a significant body of research that looks at the ways in which values and ideologies serve to legitimize group inequalities. The intention of inequality may not be present, but the result is inequality in access to resources in education and employment.

Payton: It is crucial that we put studies into the context in which society exists. People say they do not believe in discrimination, but to understand their answer, one needs to understand who they are, where they are living, and where they send their children to schools.

3. How can I be sure that my research will be understood appropriately?

This is not a new phenomenon. Prior to the 1900s, admissions testing was very important but individual colleges and universities conducted the tests. This soon became a problem for secondary school headmasters because they needed to provide a curriculum that would prepare students for the tests. Headmasters wanted test preparation guidelines so colleges made an agreement that they would define a common curriculum and a common test. In this way, elite colleges dictated the high school curriculum. The college entrance board was established in 1900 to administer the standardized exam. It worked well as long as the tests continued to be administered to only a small group of people.

• Standardized tests don’t add any useful information to the higher education admissions process—this is a validity question.
• Admissions tests are biased against test takers who are not White and not male.
• Test scores are not valid predictors for non-white applicants to higher education.
• Tests are highly susceptible to coaching.

Across tests (GRE, ACT, SAT, etc.) the median correlation coefficient is .4. This is statistically quite significant. However, a scatterplot mapping a correlation coefficient of .4 and that mapping one that is not significant (0) doesn’t look very different, even though it is different from a statistical perspective. The probability of a person with a 200 SAT achieving a 4.0 is pretty low and the probability of a person with an 800 SAT achieving a 1.0 is pretty low. There is information, but it is not perfect and there is a lot of scatter. Also, the complaints are mostly in the 400-500 range. The difference between grades earned by a person with 400 and those earned by a person with 500 is minimal.

1. What has been the marriage in these 2 strands of thinking: 1) Messick’s concept of consequential validity--to assess the validity of a test we should look at the consequences, and 2) Steele’s and Aronson’s work that there are consequences of being in a group that suffers from particular stereotypes?

Sylvia Hurtado (Moderator): The criteria used by admissions officers drive decision making at selective institutions on two dimensions: 1) judging whether students can be successful, and 2) judging the contributions the student will make to the educational environment and, more importantly, whether or not this student will meet the college’s mission of providing leadership in various segments of American society. This is the luxury of selective admissions. Achieving diversity in the student body is based on the notion that diversity is a benefit to the student body and that universities are creating a model society or contributing to a society we aspire to be. Legal challenges essentially question the judgements of educators. Social science evidence supports the judgements of educators by demonstrating the multiple benefits that are achieved as a result of admitting a diverse student body.

Patricia Gurin found that increased structural diversity facilitates greater involvement in: enrollment in ethnic studies courses, attendance at racial/cultural awareness workshops, discussion of racial/ethnic issues, socializing across race, and having friends of anothr race.

• Increases racial undrstanding
• Higher levels of cultural awareness and appreciation
• Engagement with social and political issues
• Openness to diversity and challenge
• Decreases in racial stereotyping and levels of ethnocentrism

• Conduct research on race and research on women;
• Participate in community service for the institution;
• Incorporate active-teaching methods, and readings on race;
• Teach ethnic studies or women’s studies.
• Believe in the importance of goal the goal of improving racial understanding.

As a university administrator, the question that comes into my mind is to what extent and under

what circumstances could I imagine having discussions with my colleagues in which we would

make substantial institutional decisions based on this type of education research? I drew a blank.

I don’t have memories at Princeton or at Northwestern of taking on questions of institutional

mission or program based on high quality educational research. How do we make decisions in

these institutions and what do we bring to bear in these institutions when we make these

decisions?

In this regard, my experience at Northwestern may provide an instructive example about institutional decision-making and the role of outcomes driven data. At the time I joined the administration in 1995, the NU football team was embarking on their most successful season in more than 40 years, a season that culminated in an appearance in the Rose Bowl. The following season was also very successful--another championship, this time a Citrus Bowl appearance.

I did find myself asking why--given its previous, and I am sorry to say, subsequent experience--NU invests what it does in this kind of a program, a program that has no history of the kind of the success that we would seek to measure or anticipate in making educational investments in most parts of the University. I think we actually have defensible--maybe even good reasons--for doing football, but these are not the kinds of reasons driven fundamentally by on the field results. They are driven by a shared sense of conviction in the institution that this is a good, or perhaps a necessary thing to do. It would be interesting to develop an analytical matrix that might help us understand how this playing this game factors into institutional mission.

Back to diversity. Adminstrative decision making is a complicated amalgam of motives and justifications reflecting interpretations of institutional mission. I believe that the freedom to pursue institutional mission, whether justified by outcomes analysis or institutional academic freedom, is the critical factor that must be better understood.

In trying to understand how institutions make decisions, it is important to recognize that there is a difference within the institutions between the academic and administrative sectors. Within the

administrative sector, decisions tend to be made within some combination of senior management

of the university and the university counsel. Academic actions take place in another sector. In the

administrative sector, the movement from arguments based on non-discrimination and civil rights elides rather uncritically into arguments based on diversity as an academic good. My experience is that in academic departments, the question is still up for grabs.

This is not a debate about non-discrimination, but a debate about diversity as an academic good

and about how much to value that diversity in relation to other goods that the institution is

supposed to be advancing at the same time. The point that challenges us most right now is that

unresolved tension around the transition between non-discrimination to a question of whether

diversity is a benefit. I am not aware that very many decisions that have been made at Princeton

and Northwestern have been driven by the kinds of outcomes-related data that we have been

concentrating on today. These kinds of institutions tend to make decisions based on their own

assessments of the proximate goods and values that they must adjudicate. They tend to focus on

the quality of research and the capacity of the faculty to execute the sort of research that will

advance the quality of discourse in the field and the reputation of the department. This occurs at

the same time that leaders of the institution are trying to defend the institution’s right on classic

academic freedom grounds to pursue the kind of diversity programs and strategies that we have

been talking about.

It would be useful for researchers to delve into the ways in which the values of the administration, the governing boards, and the presidents of universities actually operate in practice because they don’t tend to be guided by the types of issues we are discussing in this session.

1. Kimberly West-Faulcon: The problem is not the pool problem—in the Rios case we see that there is a high number of highly qualified minority students with high GPAs and test scores who are denied admission to Berkeley. The issue is more one of scarce resources and how to distribute those scarce resources. When we talk about evaluating the cost of the decision—it depends on how we define merit. If we define merit purely in terms of test scores and GPA then yes there will be a cost to admitting students with lower numbers. But if there is a broader definition of merit, then the perception of cost changes.

Schrag: In terms of public opinion, there is a certain absurdity to a student at UCLA suing Berkeley for not admitting him. That may have a standing on legal grounds but not on public opinion grounds.

2. If we assume that the Council on Economic Advisors is correct in saying that by the mid century, 50% of people in the country will be people of color, and if we assume that selective universities will continue to be the gateways to leadership positions in our society and that the trend is to have fewer people of color in these universities, what are the implications for domestic piece and tranquility and harmonious governing of the country down the road? How do we go about documenting this? Is this documentable or is it an argument that can be made without documentation?

Schnapper: If that is the direction in which things are heading it would be disastrous. As a lawyer, however, I’m not sure this argument adds up to anything. From the legal point of view, the strongest argument will be to focus on discrimination factors in the process or discrimination in the use of power that Harvard and Berkeley parcel out. From the public policy point of view, using this argument to support continued use of affirmative action works, but it does not work in the court of law. In the courts the way we engage in arguments for affirmative action still has to be controlled by the rationale of Bakke, not by the public policy rationale you are sketching.

Lowe: I think there is an extension of this that does grow out of Bakke logic. Arguments for affirmative action in places where I have worked have been driven by a genuine conviction that a diverse student body is an educational virtue in and of itself and that it is the right and responsibility and freedom of institutions to decide to do this. Arguments that try to take a long-term picture and to justify immediate strategies are in some ways less vulnerable than those that are phrased in narrow self-interested ways are. That is a stronger and more stable ground for institutions to be able to claim. The more successful we are at persuading different groups within the institution, the better we will be at persuading those outside the university of the need for these policies. The academic freedom argument does have some potential here that we can rely on.

3. Ted Shaw: If someone applied to Amherst and didn’t get in and had a claim that something about the Amherst process was discriminatory, even if that student got into Williams, the student would still have a claim. In the Rios case, we are saying that there is something that is wrong with the Berkeley admissions process. People have a different kind of reaction when it comes to "reverse discrimination" cases and the assumptions people make about whether white students have been injured than they do to people of color’s claims about why they may have been denied admissions. Much depends on what one thinks affirmative action is—if it is considered a preference as opposed to shining a light of opportunity in a place it didn’t formerly go. It also depends on how institutions have dealt with affirmative action—many institutions have done it badly because they made incorrect assumptions about what the capabilities of Black students were.
4. What types of evidence would sway the court in the Michigan case?

The types of things that Payton talked about yesterday. Specifically, the difference in the ways that students act when they get out of diverse universities (e.g. White students knowing things about inner city Detroit in their 4^th year that they didn’t know in their 1^st year, having different attitudes towards minorities, etc.)

5. Now we essentially have a control group in schools that are now all white that were formerly diverse. Is there a way of making a comparison between the type of education these students are getting vs. that which students are getting at comparable schools that are diverse?

It would be interesting to do a study of the attitudes of seniors at UC Berkeley today and compare it with the attitudes four years from now when there have not been comparable societal changes.

6. Mitchell Chang: I am concerned about your claims that the research is self-evident.

Schnapper: My concern is not that it is self-evident but that more of it isn’t based on hard facts—specific attitudes, knowledge, conduct, etc. Some of that is in the research findings and some of it is useful. But instead of discussing findings such as the fact that the more minority students are present on a campus, the more people take ethnic studies courses, we should be looking more in terms of diversity making students less likely to discriminate and more likely to live in integrated communities.

7. Last year the Ford Foundation came out with a study about public attitudes towards diversity. Basically everyone felt that diversity was very beneficial. But the affirmative action debate is not about whether or not people like diversity, it is about the question of whether or not race should be used. Therefore, it doesn’t matter if you say diversity is great. People will agree that they want diversity, they just don’t like the means to get to that diversity and want other options.

Bill Taylor (moderator): We have been talking a good part of the day about how to mold public opinion and what the media is doing and is not doing. But we’re talking about various fora for action: courts, national policy makers, states and referenda, the research community, and the very institutions of higher education that make the policy that is under attack and how committed they are to keeping those policies. We need to look at next steps in all of those fora.

system. Initially, the attitude of the media was to emphasize the disastrous consequences of ending affirmative action—much attention was given to the fact that Boalt Law School had only one black student and other similar cases.

The new guidelines by OCR about standardized testing are very interesting and are likely to lead to a firestorm. They make a number of reasonable points about the use of tests, but they are perceived by powerful institutions as threatening the status quo in admissions.

In terms of the discussion about the benefits of diversity, it is encouraging to see that people are going beyond the educational outcomes to look at societal outcomes. The legal stakes are great, and it is important to look at more than how diversity affects individuals when they graduate.

Things are different than they were two years ago. I agree with Schnapper on some points but I think he has been too harsh. We have made progress and have identified what it is we need to do in the research. What is missing is the emotional content to this because a dispassionate presentation of the data will never work. When I ask people how many live in a community that is defined mostly by one racial group, around the country it is mostly hands up. People will argue that their workplace is more diverse, but the more important questions are: Where do you live? Where do your kids go to school? Who are their friends they play with? Is this what you want it to be? That question gets to these fears. People say things like they don’t want to live in DC because of crimes but that it would be nice to have black neighbors. People need to be asked if they see that there is a cost to living in a gated community whether or not there is an actual gate.

I agree with Payton that we have a tremendous difficulty talking about race and that our research has difficulty getting beneath the surface. There is traction below the surface but we don’t know how to get there. The Civil Rights era and all that led up to it didn’t really achieve the goal, but it transformed the nature of the game. We are continuing that process, not starting a new one.

Shifting the moral ground. We are now on the defensive. In the last few years, the forces involved in pursuing the civil rights agenda have become reactivated. I see the social science component as one piece. Our report is linked to other reports and we are beginning to have a body of evidence that is strong enough to respond to the real threat that many of us feel. It is clear that people think discrimination is bad and using merit is good. In the report we have tried to contextualize this. Questions need to be asked such as: When is discrimination not bad? What is discrimination? Is affirmative action discrimination or not? As scientists it is important but difficult for us to get at where people are. We have to find a way to continue to do that, but also to think about other principles that we can generate that represent what we are trying to accomplish. Somewhere diversity is part of it. This ultimately leads to community, to what the United States is about.

Context theory. Steele’s work is a theory about context. When you change context things happen. When we talk about the benefits of diversity we are talking about the benefits of a particular kind of context. When we have a certain context, we get certain outcomes. We need a better theory of context because experiences are often context driven. This way, we can get more at what matters in people’s lives: normative influences, cultural influences, history, etc. A research agenda that explores context and makes theoretical statements about it may lead us into a direction about how to organize society and lead us in the direction that we would like.

The emotional issue of race. The people who make statements on the news are those who have been allegedly discriminated against by the kinds of policies and programs we are talking about. They are the ones with the stories getting out. I don’t know if it’s a press problem or what. Our stories need to be personal and to address the consequences of real people’s lives and context. I see this report as a step in the right direction but a step that begs for further critical discussion and deliberation that engages the legal arena, the media, the administrators, the policy makers and the researchers. We will continue this struggle and society gets better as a result of what we do.