Affirmative Action: what’s
legal and what’s fair?
Scott G. McNall
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