The University Record, January 29, 2001

'River' is better metaphor for affirmative action discussions than 'pool' and 'pipeline,' higher education law scholar says

Martin Luther King Jr. Day 2001: Commitment and Renewal
For more coverage of MLK events, click here.
By John Woodford
News and Information Services

In a Jan. 22 lecture in the Law School’s Hutchins Hall, Michael Olivas, a scholar who specializes in higher education law, criticized the use of “pipeline” and “pool” metaphors in discussions of academic admissions programs that seek racial diversification.

“I’m calling for a temporary restraining order” on the two metaphors, said Olivas, the Bates Professor of Law at the University of Houston Law Center. “The pipeline and pool paradigms are inapt,” he continued, in a lecture titled “Academic Life: In Search of the Perfect Metaphor.” “They misconstrue the problem. A pool is static, likely to turn brackish and is bounded. It cannot replenish itself. A pipeline is even worse. It’s a foreign mechanism used to leech valuable products from the earth. It can leak, damage the environment, rust or clog up.”

A better metaphor for the use of historical records and social science data to correct injustices in higher education, he said, is the river. Couching issues of racial and ethnic diversity as a “pool” problem “suggests that there is a supply shortage or that someone is merely using bad fishing techniques,” Olivas said. “And saying there is a ‘pipeline problem’ casts injustice as the result of ‘a foreign mechanism’ that is experiencing merely a ‘glitch in conveyance.’”

“These are not rich enough metaphors,” Olivas declared. “A better one is the river. A river supplies nutrients and conveys resources. It constantly changes form and can wear down rock. It has a natural filtration system, can adapt, can be altered and even reversed. This is the image I wish to convey. Efforts to make our schools reflect demography will lead to improvement over time.”

Precedent-setting admissions law cases such as Bakke and Hopwood and the current U-M court cases on admissions procedures in LS&A and the Law School “define us as a nation,” Olivas said. “They show how we constitute a student body, and the history of racism in our country has an impact on this.”

Focusing on the widespread reliance on grade point averages and standardized tests in academic admissions, Olivas cited several studies that concluded that GPAs and standardized tests do not reliably predict how individuals or groups will do in graduate or professional schools. “The quantitative treatment is flawed,” he said. “The status quo is grounded in weak assumptions and questionable criteria. Nonetheless, they do indeed work as well as other, nontraditional means might work.”

In discussing inequality in admissions, Olivas said that at some public law schools, out-of-state residents are treated differently. Since schools limit them to a small percentage of the slots, “they compete against each other, and in-state applicants compete against themselves. Out-staters have higher grades and scores,” he said, “yet their numbers are kept down in an entering class, and no one charges that this reduces the quality of the program.”

Olivas reviewed the history of combating racial discrimination in American education. He said that when Brown v. Board of Education outlawed racial segregation in public schools, “Blacks saw states opening up new institutions rather than admit them, and segregated universities fought to limit Brown to K–12 education” rather than accept it as applying to higher education as well.

Other systematic discriminatory practices include alumni privilege, a policy that “favors the racially imbedded privilege of white alumni” who attended the schools for a century before Blacks or Hispanics were admitted. He said other “historically exclusionary practices also privilege people—but not people of color.”

Olivas argued that the media and some universities have responded to the current suits against U-M—Gratz v. Bollinger on LS&A admissions and Grutter v. Bollinger on Law School admissions—weakly, “as if the minorities admitted are taking the places of more deserving whites.”

“In fact, very few whites are displaced in this diversity process,” Olivas said. “With 81 percent of law students being white and 20 percent minorities, there’s obviously no displacement there. Whites took 79 percent of law school entrance exams, so there’s no hint of unfairness. Not one of the four white plaintiffs in the Hopwood case was deemed admissible in the 1996 case against the University of Texas’s diversity program.”

In the 1978 Regents of the University of California v. Bakke case, the U.S. Supreme Court initially split. Four members asserted that affirmative action plans involving racial classification—such as the one that seemed to explain the failure of white honor student Allan Bakke to gain admission to the medical school of California’s Davis campus—were permissible under the 14th Amendment. That amendment guarantees the equal protection of civil rights to African Americans.

Four other members of the court held that any racial considerations violated the 1964 Civil Rights Act against racial discrimination and the 14th Amendment’s equal protection clause as well.

In crafting a decision that favored Bakke’s claims in the main, Justice Lewis Powell argued that some affirmative action plans could pass both constitutional and statutory scrutiny. His decision stated that race could be a factor, but only one of many used to seek a balanced or diverse student body. The decision left the door open to some affirmative action plans and sparked a continuing debate over what shape such plans take, Olivas said. Powell’s decision was “carefully nuanced and supple” in a clause noting that a state “has a substantial interest that legitimately may be served by a properly devised admissions program involving the competitive consideration of race and ethnic origin.”

“But many public and private institutions said suddenly that they were bound by the Bakke decision” to halt the diversity programs they had designed to counter the effect of long-term racial discrimination. Citing Rice University’s decision to overturn the acceptances of seven Black applicants, Olivas said, “Many schools resisted the Brown v. Board of Education decision as not applicable to them and fought for years to preserve segregation.” The “stampede” to kill diversity programs after Bakke “showed that their commitment to affirmative action was a mile wide and an inch deep.”

Olivas served two terms as the general counsel of the American Association of University Professors and has been an expert witness in more than a dozen legal cases, including the recent U.S. Supreme Court case, College Savings Bank v. State of Florida. The Law School, LS&A and the Office of Academic and Multicultural Initiatives invited him to speak as part of the events honoring Martin Luther King Jr.