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Affirmative Action: what’s legal and what’s fair?

Hang around a playground long enough, and you’ll hear a child shout, “That’s not fair!” Although we may have different notions of what constitutes fair, each of us operates with a powerful sense of what is wrong and right. If we grew up in the United States, we had drilled into us that under the Declaration of Independence we are born equal and have equal rights. In addition, our Constitution is grounded on individual liberty, which has translated over the years to mean that whatever we achieve, or do not achieve, is the result (or should be) of our individual efforts.

The ideas of individuality, fairness, and equality are intertwined, and they are not easy to pull apart. When we talk about affirmative action—what it was intended to do, how it is applied in universities today, and how it should be applied—we find ourselves immediately enmeshed in discussions about these intertwined concepts.

The Civil Rights Movement of the 1960s was, among other things, a demand that the Constitution be enforced (specifically the 14th and 15th Amendments), which provided for equal treatment before the law, outlawed discrimination based on race, and made it clear that people could not be denied the vote based on their skin color. The history of black Americans in the United States, the discrimination, violence, and hatred directed toward them, is a stain on the country’s history. Because of this history, because active discrimination continued to be practiced in segregated schools, because the opportunities of black Americans were visibily and demonstrably limited, the Civil Rights Act of 1964 was passed and amended in 1967. That act clarifies and expands on the 14th Amendment, prohibiting discrimination on the basis of race, color, religion, sex, or national origin. Universities and other organizations that receive federal funds are required to show that they are not discriminating, and that they are making a good faith effort to provide opportunities to minorities.
Since the early sixties, universities have played an active role in reaching out to minorities, both in recruiting students and in recruiting faculty and staff. It is easy to forget that 20 years ago, most students, in most public universities, were white males. Today, at CSU, Chico, the majority of students are women, and almost 20 percent of our students identify themselves as persons of color. This did not happen by chance; it happened because of changes in the law and in people’s behavior. It was driven by a sense of fairness and the need for all people to be treated equally.

When the Civil Rights Act was expanded, universities rightfully took the lead in recruiting minority students, and the numbers of minority students across the nation went from almost zero to numbers more reflective of their representation in society. Universities came under fire for doing so when some white students felt that they had lost “their” places in the university of their choice, that they were not being treated fairly, and that they were being discriminated against under the terms of the Equal Rights Amendment. However, universities were granted the right to use race as a factor in shaping the student body (Bakke decision, 1978) and did so without significant dissent for close to two decades. The use of race in admissions was again challenged in 1996 when a federal court barred the University of Texas from using race in admissions, and, in 1997, the State of California (Proposition 209) made it illegal to use race in recruiting students or hiring faculty and staff. Depending on the state and the federal jurisdiction in which a university fell, some changed policies and some continued to use race as one factor in admissions. Bok and Bowen argue in The Shape of the River: Long-Term Consequences of Considering Race in College and University Admissions (Princeton University Press, 1998) that all students benefit from interaction with members of different ethnic groups.

States and universities have tried a variety of means to be fair, to treat people equally, and to create diverse student bodies. However, recent efforts to diversify have been less successful than when race was used as a factor. Even though the University of California’s premier campuses have active outreach programs, they are now admitting to their freshmen classes fewer blacks, Latinos, and Native Americans than before Proposition 209 took effect.

To treat people as equals and to be fair, Texas and Florida offer admission to their state’s universities based on a student’s rank in high school. If you try to craft a diverse student body solely from the top 10 or 20 percent of high schools’ graduating classes, you will not have a university student body that is reflective of society at large. That’s because some minority students do better in school than members of other minority groups. Is that fair? Then, what works? What works is a combination of outreach, financial aid, and scholarship packages.

We need to create diverse student bodies because it helps students live in a world of diversity. Think about the rich and diverse cultural and intellectual history and traditions of California. We need to assure equal educational opportunities for all people who live and work here, especially a high-quality K–12 education. The history of the United States is characterized by hope and opportunity; by openness and a generosity of spirit. We believe in equal opportunity, individuality, and in being fair. The history of public universities has been to reach out and provide opportunities for individuals to succeed academically and realize their dreams. Programs such as Upward Bound, guided by Dave Ferguson; the MESA Program, under the leadership of Paul Villegas; the Precollegiate Academic Development program, headed by Ken Frisbee; and the Talent Search Program that Allan Bee oversees help prospective CSU, Chico students understand that college is not just a dream, and prepare them academically for college admittance. Their successes, in terms of students in their programs going to college and doing well, are stunning. They are also testaments to the incredible talents of children who, when given a chance, can succeed.

Programs that are directed to children who might be left without hope because of the circumstances into which they were born are essential to the fabric of a democratic society. No program or institution can promise equal outcomes, but it is in the American tradition to promise equal opportunities for a high-quality education.

Scott G. McNall