The Strong Case for Campus Diversity The Strong Case for Campus Diversity
By Eric Holder and Neal Katyal
Wednesday, June 27, 2001; Page A25
In the span of a month, the Supreme Court has declined to review two federal appeals court cases dealing with affirmative action -- one permitting the University of Washington Law School to award preferences to applicants on the basis of racial diversity, the other preventing the University of Texas Law School from doing so. As new cases come before them in the next few months, the justices will need to end this constitutional confusion.
They should reaffirm that affirmative action in university admissions is permissible. To help them, the Bush administration should continue the policy of the Clinton administration by making it clear to federal courts that such programs are consistent with the promise of equal protection to all and our historical commitment to the integration of our peoples. Over the past 10 years, the Supreme Court has barred Congress and state legislatures from pursuing another kind of affirmative action: the setting aside of a percentage of government contracts for minorities.
But those who agree with these decisions can and should still believe affirmative action in university admissions is constitutional and correct. Justice Lewis Powell, who authored the crucial opinion for the court in the 1978 Bakke case, made this important distinction, and it has been followed by several federal courts in the past 20 years.
It is this distinction President Bush, who has spoken eloquently about the importance of education, should support in his submissions to federal courts. Justice Powell and the several courts that followed his lead understood that education is special and that admissions programs that examine an applicant as a whole person -- including his or her race -- are constitutional even where racial set-asides are not.
Of course, no school should use quotas, which hamper true diversity. Instead, the benefits of racial diversity should be assessed in the same manner as other kinds of diversity -- geographic, cultural, economic, athletic. Our universities are, and should continue to be, places where people from different walks of life and diverse backgrounds come together to learn from one another. In the original Texas Law School decision, the federal appeals court took the radical step of equating university admissions with government construction contracts, and thus acted to prevent all public universities in Texas and neighboring states from considering race in admissions.
This decision slighted several important differences between the two contexts, the most important of which concerns diversity. The courts have reasoned that setting aside contracts for minorities means that "minority firms" win some projects and "white firms" do not. The Supreme Court has stated that this can Balkanize the races by encouraging their segregation. Education, by contrast, unites people from different walks of life. As opposed to insular corporations performing various contracts in isolation, universities draw diverse people into common spaces.
An integrated education does not just benefit minorities -- it enriches all students in a unique way, by bringing rich and poor, black and white, urban and rural together as democratic equals. As the Supreme Court stated in Brown v. Board of Education, education is "the very foundation of good citizenship" and "a principal instrument in awakening the [student] to cultural values." More recently, Justice Sandra Day O'Connor has led the court to embrace a crucial distinction between "racial classifications" (impermissible quotas) and "racial considerations" (permissible preferences).
Indeed, the Supreme Court's most recent race decision, upholding the constitutionality of a redrawn voting district in North Carolina, relied on this precise idea, reasoning that the legislature could consider racial demographics so long as race did not become the predominant factor behind the redrawn districts. Some justices have stated that contracting set-asides are susceptible to fraud, since contracts may be awarded to "minority" firms in which minorities are "owners" on the books but not in reality.
The opportunities for fraud in education, however, are constrained by guidance counselors and parents, as well as by the university, which has years to verify any individual applicant's claims. In addition, the concern that contracts are awarded to people throughout their professional adult years and have no logical stopping point is not relevant in the educational context. University education typically occurs early in life and is of limited duration. Education can be the ramp up to a level playing field -- with no further affirmative action needed for the rest of one's life.
Given these differences, it isn't surprising that the court in the Washington case was sharply critical of the earlier Texas decision. Federal courts should not be using judicial fiat to trump good-faith and well-supported educational decisions made by university educators who are experts in their field.
Indeed, if federal courts try to force universities to end their affirmative action policies, the educational institutions might reduce their reliance on traditional standards of merit, such as grade point averages and standardized testing scores, with harmful consequences for the entire university system. The new administration should not be deluded into thinking education is like a government contract.
It must do all in its power to support diversity in our nation's schools, including filing friend-of-the court briefs in federal cases that challenge diversity-based admissions policies. Likewise, the federal courts should follow the prudential course of refraining from an aggressive commandeering of state and university decision-making. We should not be timid in recognizing and embracing our diversity.
Eric Holder is former U.S. deputy attorney general and U.S. attorney for the District of Columbia. Neal Katyal is a law professor at Georgetown University. © 2001 The Washington Post Company
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