The University Record, December 7, 1998

Best affirmative action defense is need for diverse environment

By Jane R. Elgass

Use of race or national origin as a screening tool is subject to strict scrutiny and must meet one of two tests—compelling government interest or remedying past discrimination—to be considered legal, according to Jonathan Alger, legal counsel in the national office of the American Association of University Professors (AAUP).

The courts have made it difficult for schools to base and defend affirmative action programs on remedying past discrimination, because the discriminatory events must have specifically occurred at the particular institution, noted Alger in addressing an open meeting of the local AAUP chapter Dec. 2 in the Koessler Library, Michigan League.

“You can’t use the general societal situation,” he explained, adding that the presence of numerical disparities also is viewed dimly by the courts. “You have to prove the negative in this case,” he said, “that there are no other reasons for the numerical disparities. That’s very difficult to prove.”

The concept of remedying past discrimination presents other problems as well, Alger said, because the college or university must admit fault, and that affects the institution’s image and liability.

“The courts are impatient with this rationale. They want to see an end point, that the effects are remedied,” said Alger, who was joined at the program on “Discrimination and Affirmative Action Law: Challenges for the Next Millenium” by speaker Elizabeth Barry, associate vice president and deputy general counsel, and moderator Theodore St. Antoine, the James E. and Sarah A. Degan Professor of Law.

The best approach to challenges of affirmative action at colleges and universities, Alger said, is to base the defense on the need for a diverse environment that will foster and contribute to “robust discussion,” as cited by Supreme Court Justice Powell in the decision in the Bakke case. Concurrent with that, Powell held, is academic freedom, allowing the institution the freedom to decide how to best educate its students.

“The AAUP says the same principle applies to faculty,” Alger noted, adding that the organization has a number of policies and statements on the issue. “Different groups have different roles [in educating students],” Alger said. “Faculty are a key component. They have a critical role in admissions and faculty hiring and in shared governance.

“Bakke is still the law of the land,” Alger noted, “the only Supreme Court decision on discrimination in higher education. Other courts are following Bakke.”

How does one link diversity and the robust exchange of ideas? Are there different points of view due to race?

“The courts frown on this and the AAUP agrees,” Alger stated. “This is a group-based, stereotypical assumption, when the reality is the exact opposite.” Seeing similarities across lines and differences within groups breaks down differences, he said. “We need face-to-face interaction to see differences and similarities. This turns ‘race as a proxy’ on its head.”

Alger said this theory is being researched from a faculty perspective by the AAUP, which recently sent a survey to faculty on the educational benefits of diversity in the classroom. “We’re going to the front-line educators to see what diversity contributes to education.”

He also noted that “you never want to say that diversity is an end in itself, as this is racial balancing. You have to tie the need for diversity to educational mission.”

Alger alleged that recent lawsuits challenging the consideration of race in admissions, such as the two against the U-M, are the result of a “conspiracy,” with organizations openly seeking sympathetic plaintiffs in an organized effort.

So how do we respond?

Alger said that any definitions of merit (beyond quantifiable factors such as test scores) for both students and faculty must be clearly defined and consistent for all. “The courts will defer to this,” he stated.

He did warn, however, that racially neutral criteria used in hiring can hide subtle discrimination. Do the criteria allow for differences in teaching style or the pursuit of non-traditional research, teaching of non-traditional topics and the sometimes overwhelming service activities expected of minority or women faculty?

“You must look carefully at all procedures that are used for any subtle forms of discrimination,” Alger said. “You need good criteria, applied equally to all.”

Status of the U-M lawsuits

Elizabeth Barry, associate vice president and deputy general counsel, brought those attending the AAUP meeting up to date on the two lawsuits challenging U-M admissions practices. Both cases are being tried in U.S. District Court, Eastern District of Michigan, Southern Division, in Detroit.

The suit challenging undergraduate admissions policies is being heard by Judge Patrick J. Duggan and may go to trial in May or June. A June 22 trial date has been set for the suit against the Law School, being heard by Judge Bernard A. Friedman.

In both cases the judges have denied intervention by a number of individuals and coalitions of groups, indicating that University is representing those interests. Duggan has allowed the intervenors, however, to participate as amicus at the trial level, which Barry called unusual. They will receive copies of documents and be allowed to participate in motions.

Both suits have been filed as individual and class-action suits, with monetary damages and injunctive relief being sought by the plaintiffs. A decision on class certification in the undergraduate admissions case is pending, with oral arguments later this month. A decision in the Law School case is expected soon.

Both lawsuits were brought on behalf of the plaintiffs by the Center for Individual Rights, a non-profit, public interest law firm, which over the past six or seven years, Barry said, has launched a “campaign of lawsuits” challenging affirmative action programs at colleges across the country and at the National Institutes of Health.

“The suits challenge our ability to consciously consider race and ethnicity in the admissions process,” Barry stated. “They say Bakke is no longer viable, that our policies don’t meet that standard. We say Bakke is alive and well and the law of the land. The Supreme Court doesn’t overrule itself without saying so.

“We consciously consider race and ethnicity as contributing to diversity and diversity is critical to the excellent education that is part of our mission. Diversity forces all of us to challenge automatic judgments and translates to learning in a variety of ways,” Barry said. “It also is a key to academic excellence and key to preparing students to live and function in an increasingly diverse democracy, to be better citizens. Diversity fosters tolerance, awareness and understanding.”

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