REFURBISHING A RUSTED DREAM

BY GARY ORFIELD
Professor of education and social polity at Harvard University; co-author, with Carole Ashskinaze, of The Closing Door: Conservative Policy and Black Opportunity (University of Chicago Press, 1991).

The United States has created a vast higher education system, heavily funded by state and federal dollars, that assures its citizens that educational opportunities will be available to all who can benefit from them. Americans sense, correctly, that our colleges and universities have never been more important‹for the health of our nation and our children's lives.

However, most Americans are seriously worried about their ability to pay for college for their children. The 1992 Clinton campaign turned this concern into a national political issue. The campaign tapped into middle-class hopes by a promise of loans for tuition forgivable through public service, all done I without the kind of needs test that has traditionally been basic to federal grant assistance. Unfortunately, not much was said about grants for the poor, which are needed to restore the bright vision of access and equity that was so central to the expansion of the federal role in higher education during the 1960s and 1970s.

Today, a major challenge for the Clinton administration is to respond to middle class fears and hopes without losing this goal of equal opportunity, and to do so in a period of harsh budgetary constraints. The purpose of this article is to survey the federal role in higher education since the 1960s, with a focus on access for poor and/or minority students, and to suggest what the Clinton administration might do to grapple with its historic challenge.

The Federal Role The federal government historically has played a larger role in funding higher education than in elementary and secondary education‹a role that has emphasized expansion of opportunity. Many of our most important universities were founded in response to the Land Grant College Acts, intended, in part, to reach students with limited resources. Since the 1960s, we have been through two great responses to this role, each strongly related to the periods of liberal and conservative domination of American politics.

The first response, from the early 1960s to the late 1970s, was consistent with the federal government's historical role. Starting with the 1964 Economic Opportunity Act and the 1965 Higher Education Act, the federal government became both the dominant source of dollars that kept higher education accessible to lower income families, and a vital source of college tuition income. These policies were, in part, responsible for vast institutional growth. Moreover, after 1964, federal civil rights laws and court decisions became critical to achieving racial and gender equity. Federal efforts helped break the racial wall in southern higher education and supported the access of minorities and women to the full range of college opportunities and faculty positions. In brief, the federal government‹in both a legal and broad sense‹acted affirmatively.

The second response, from the late 1970s to the present, has been a period of institutional consolidation and retrenchment: a decline in the reach of student assistance and a massive increase in the cost of higher education; as well as an emphasis on institutional protection, the upgrade of faculty salaries, and an increasing focus on research, especially applied research. A very different politics has also replaced the bright and optimistic vision of the 1960s, that is, affordable colleges for all who could benefit regardless of race, gender, income, and wealth. Sooner or later, adequate histories of this second response will be written. But for now, it is crucial to note three related developments. The first was that driving the different politics were fears: fears by the middle class that its children could not afford college and fears by higher education's leaders that their institutions would deteriorate. During the 1980s the real cost of college had soared relative to family income for the first time in recent history.

The 1978 Middle Income Student Assistance Act was a first large move in the direction of putting middle-class concerns first, as was the huge shift from grants to loans as the basic form of federal aid. All this took place during a period of conservative politics committed to tax cuts and opposed to the use of government to redistribute opportunity in American society. The consequences were not surprising ‹institutions of higher education struggled to protect themselves by raising their tuition and fees. They simply assumed that families could be expected to pay a higher portion of the increasing costs of college even though family income was stagnant. Moreover, the recession of the early 1990s led to huge increases in the cost of attending a number of public colleges. State budgets were slashed. The major federal scholarship program‹the Pell Grants‹fell further and further behind rising costs.

The middle class responded with powerful political demands for help that shifted governmental assistance in their direction, culminating in the reauthorization decisions on the Higher Education Act in 1992, which produced a cut in low income grants and a great increase in the eligibility for student aid among families with more wealth. This irresponsible congressional decision deepened financial aid problems. It not only reduced support for poor students, it also excluded the largest source of wealth of most middle-class families home equity from financial aid calculations and failed to provide needed funds for the Pell Grants.

The second development was the Reagan/Bush reversal of the civil rights policies of the previous two decades. This inevitably rusted the sword of priority that had been accorded to issues of access for the poor of all races, and to issues of equity for women of all races and minorities of both genders. With the passage of the 1964 Civil Rights Act, forbidding discrimination in all institutions receiving federal financial assistance, higher education had become subject to the non-discrimination requirements of federal regulations. After federal courts found the Nixon administration guilty of intentionally refusing to enforce this law, the courts attempted, in the Adams cases, to compel action by the executive branch for 15 years.

The Carter administration had major conflicts with southern higher education systems, especially the University of North Carolina, over their failure to equalize and integrate formerly unequal black and white campuses. Under the Reagan and Bush administrations, however, the enforcement agencies reversed Carter policies. Reagan administration Office for Civil Rights officials abandoned the earlier commitment to plans for increasing minority opportunity, particularly in the state higher education systems of the South. Bush administration officials went even further, taking action against local and private efforts such as minority scholarships, accreditation standards, and admissions policies intended to increase minority access. To their credit, much of the leadership of higher education resisted the Bush administration's efforts.

To add to the difficulties, the Supreme Court narrowed the coverage of the 1964 Civil Rights Act, and lower federal courts were persuaded to drop their efforts to supervise executive branch enforcement of the law. The overall result was a virtual disappearance of the role of the federal government as an enforcer of the rights of minority students‹apart from investigating individual claims of discrimination.

The third related development has perhaps been less fully recognized. An important educational policy, which grew out of both the poverty program and the civil rights movement, involved special efforts to make it possible for promising students with poor preparation to make it to and through college. These programs included Upward Bound, which provides summer training on college campuses for high school students, as well as many other programs of recruitment, training, remediation, and support for students on campuses. The idea underlying these efforts was that minority and low-income students do not have equal opportunities to prepare for college and that colleges must make some special efforts if able students from weak backgrounds are to take advantage of higher education.

The policies of the 1980s went directly against this idea. A fundamental recommendation of the Reagan administration report, A Nation at Risk, was that states raise their high school graduation rates and college admissions requirements. A great many states did just that, without making provisions to assure that students in inferior high schools got the help and counseling needed to meet the higher requirements. States adopting requirements for more math and science credits, for example, often did nothing to find out whether or not the teachers and labs needed to meet the requirements in inner city schools even existed.

When colleges faced the financial squeezes of the early 1980s and the early 1990s, there was a strong movement toward increasing the "efficiency" of the states' higher education systems by removing compensatory programs from four-year campuses and expecting high schools or community colleges to solve the problems of inadequate readiness for higher education. Institutions cut their costs by assuming, incorrectly, that the problems would be solved somewhere else. The highly stratified California system, with a very heavy emphasis on limited admissions based on tests and grades, was adopted in more and more states. Systems with traditions of free or very low tuition for universities often abandoned- these traditions. The idea animating these efforts was that the universities should serve only those students who were ready for higher education and that inequities of preparation should be dealt with somewhere else. The policies were adopted, however, without any assurance- that "somewhere else" did exist or that such programs worked fairly. The I best available evidence suggests that they did not.

U.S. v. Fordice

In 1992, in the midst of these developments, the most conservative Supreme Court in recent history surprisingly created an urgent equity issue in the most important civil rights decision ever in higher education, U.S. v. Fordice. Equivalent to Brown v. Board of Higher Education in impact, the Court's decision was a sweeping affirmation of state responsibility for the integration of public colleges. It establishes that states have great responsibility for overcoming segregation and inequality, but does not spell out specific remedies.

U.S. v. Fordice, which grants vast power and discretion to federal courts in the South to remake the higher education systems of states with a history of racially separate campuses, gives federal courts in such circumstances the same kind of broad equity powers that courts have employed to remake school districts. The prevailing view in higher education had been that its segregation and inequality problems were fundamentally different from those of public schools because college students voluntarily chose their schools. A student was neither required to attend, nor assigned to a particular school. This concept was an extremely comforting way of conceptualizing the problem, because it basically shifted almost all of the responsibility to the student and the family and accepted none for the institutions. It also ignored the questions of the real cost of equity, assuming that these were reasonably met by financial aid systems.

Decisively rejecting the argument that the segregation and inequality in the system does not matter because students "choose" it, the Supreme Court also specifically noted such problems as the needless duplication of programs in racially segregated public institutions that serve the same area and the use of admissions tests that have the effect of excluding large numbers of minority students. The Court went on to say that states with a history of illegal discrimination have a current obligation to take steps to break the segregation and inequality, even if these steps demand the reversal of major state policies.

Ironically, the first responses from the South‹a plan submitted by Mississippi officials and a plan ordered into effect by a federal district court in Louisiana‹ show that the decision may produce institutional changes that could actually have negative effects on African-Ameri can students in some circumstances. Historically Black Institutions may be closed or downgraded without providing assurances of equal or better opportunities for black students elsewhere. Although the Supreme Court decision is clearly intended to expand educational opportunity for black students, it does not guarantee protection for the traditionally black institutions of the South, especially during a time of severe budgetary cutbacks.

Challenges to the Clinton Administration

Fordice puts great demands on the Clinton administration. Not only must it interpret this new decision, the Clinton administration can also use the broad regulatory powers granted by the 1964 Civil Rights Act and extended by the 1988 Civil Rights Restoration Act to define standards for civil rights compliance by state systems of higher education.

In another irony, the legal battles fought by conservatives to end judicial supervision of the enforcement policies of the Bush and Reagan administrations mean that the discretion of civil rights officials is broader than ever before. Second-guessing of Clinton administrative decisions by the courts is less likely.

Decisions by the Education Department's Office for Civil Rights and the Justice Department in the new administration will thus have major effects on the future of higher education systems in the 19 states with a history of official segregation. Obviously, federal decisions will be easier to handle if enforcement standards are clearly and consistently explained, and if federal funds are available to assist in planning, analysis, and retraining of administrators and faculty.

The assumption in the development of these enforcement standards should be that a constitutional violation occurs when there is unfair treatment and exclusion of African-American students from a college education. Any remedy for such a violation must expand opportunity for the class of students whose rights have been violated. Moreover, state plans should produce regular increases in the representation of black students in public college enrollment, plus graduation at all levels of selectivity. In states with substantial Hispanic and Native American enrollment, including Florida and Texas, there should be similar concerns for these students.

A central focus in evaluating opportunity for minority students would place a strong burden of proof on any state attempting to eliminate or downgrade traditionally black institutions with good records of enrolling and graduating African-American students. These institutions should not be altered negatively until there is compelling long-term evidence that the historic white institutions have become genuinely integrated and fair for African-American students and faculty. There would be a similar burden of proof for states proposing additional reliance on screening tests or higher admissions standards, or for states eliminating remedial programs. Any state policy that has the foreseeable effect of decreasing opportunity for minority students goes directly against the goal of the Fordice decision. Exactly the opposite kind of policies are needed. Working them out will require great sensitivity both to the ways colleges work and to the deep racial divisions and fears that complicate institutional change.

Since the states that contain a substantial majority of all American blacks are likely to be affected by Fordice, acting on this decision is of extraordinary importance. In addition, the lessons and policies that would emerge from the serious and positive enforcement of Fordice would be relevant to the rest of the United States. For this is a time when all students who fail to obtain a college education may be at economic risk; when the country has a rapidly expanding nonwhite population; and when all racial minorities are experiencing problems of access to, and completion of, higher education in a number of states not usually included on the list of those with a history of de jure segregation. Therefore, the United States needs to consider the racial consequences of changes in higher education policy in every state and to develop plans for improving minority opportunity in all of them.

The challenge of Fordice is only part of the challenge of affirmative action in the 1990s. The past decade has not been a good time for the growth of minority faculty in many universities. None of the major institutions has a faculty that looks like America, and there are few signs that we are moving in that direc tion. The reality, of course, is that strong PhD recipients from the leading departments who are African-American, Hispanic, or American Indian are often actively recruited, at least at the assistant professor level. Since there is a tiny supply of such candidates, they may receive excellent offers. Often, however, they face many special responsibilities, particularly with minority students, and their research interests are seen as outside the academic mainstream, particularly if they work on the special problems of their own communities.

If affirmative action pressure merely produces the circulation and recirculation of a very limited supply of academics and does not move them effectively into positions of influence, real change in the segregation of higher education will not occur. The Clinton administration should require affirmative action planning and recruitment, but should put the greatest emphasis on efforts to increase the numbers of minority PhDs. Few talented young minority students seriously consider academic life. They are much more inclined to consider professional schools. Those of us in academic life whose parents were not college graduates know how much more secure and understandable it seems to plan to become a doctor or a lawyer than to launch out on the quest for a PhD, which requires more time for a less certain reward. Few minority students get good research experience as undergraduates, and many do not receive encouragement to consider graduate training.

In enforcing civil rights laws, the new administration should weigh strongly the efforts of a university to expand the supply of minority PhDs, no matter where they eventually work. In this spirit, the new administration should also reverse the Bush administration's effort to outlaw minority scholarship programs and should strongly encourage such programs, particularly in fields where members of a minority group have always been severely underrepresented. It should also focus attention on tenure and promotion of minority scholars.

For all students, no matter what their race and ethnicity, sufficient financial support is crucial. Were the present administration to follow the course of the Democrats in Congress last year‹extending more aid to the middle class without raising the Pell Grant ceilings‹ it would be another affront to common sense and social mobility for minorities and the poor. Increasingly, many of the best opportunities in higher education are available primarily to privileged students or highly mortgaged ones. Lower income families can be forced into a separate, cheaper, and an often inferior institution. Often their only choice is to attend, sometimes on a part-time basis, a two-year institution where the courses are not really equivalent to those of four year institutions, the competition sometimes inferior, and the rates of successful transfers to four-year institutions low. A forced choice of this sort is radically different from equal access to college.

If President Clinton wishes to provide a new system of college financing through public service for students without financial need, it is vital that he simultaneously reopen the door to college for the poor. In addition to better funding of the Pell, Grants, this goal would be enhanced by better and earlier information of students and their families, easier application processes, and tighter coordination with state and institutional systems of need-based aid. High priority should be, given this year to funding the Pell Grant increases authorized but not funded last year. The senseless policy of the Bush administration of suing colleges on anti- ' trust grounds to block agreements limiting financial competition for students without need should be reversed, because these agreements helped colleges save money for students in acute need.

A Program for Equity

The opportunity for a college education is a bright dream of American families across all racial and economic lines. The policies needed to make these dreams more real are much less controversial than those requiring changes such as mandatory school desegregation. If these policies are pursued, they will cost money and place difficult new responsibilities on some institutions, but previous experience suggests that they would create little or no political disruption. In fact, by increasing the possibility of mobility into the American mainstream and by constantly training new leaders from all sectors of the society, they may well make a major contribution to the stability and legitimacy of our society. Although they would be difficult, these changes within colleges are a fundamental part of higher education's responsibility to the community.

The Clinton administration and Congress can create a refurbished agenda for equity in higher education in the '90s. A primary goal should be to restore federal leadership in expanding opportunity for college, thus making opportunity alive in an increasingly diverse society. This entails a revival of civil rights enforcement with effective implementation of both the Civil Rights Restoration Act and the Fordice decision; an affirmative action policy emphasizing supply, but maintaining accountability on hiring; a financial aid policy maintaining access to four-year colleges fo low-income families; and leadership in developing policy, research, and models of equity in higher education.

Carl Gutierrez-Jones,
Department of English
University of California
Santa Barbara, CA 93106
E-mail: carlgj@humanitas.ucsb.edu