Higher Education Affirmative Action Decision Misunderstood

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Ann Killenbeck, University of Arkansas

FAYETTEVILLE, Ark. – A University of Arkansas law professor argues that institutions that voluntarily choose to use race as a factor in admission decisions must understand that they will be held to a more rigorous legal standard if their programs are challenged in the courts. The new standard exists because in Grutter v. Bollinger, the U.S. Supreme Court’s landmark statement on affirmative action in higher education, Justice Sandra Day O’Connor’s majority opinion stressed that the educational benefits from a racially diverse environment are “real,” rather than theoretical as assumed in earlier court opinions.

“The good news for those in higher education who believe in the importance of diversity is that Justice O'Connor and her colleagues were persuaded that the pursuit of diversity is constitutional,” said professor Ann Killenbeck, whose article was published in the The Journal of College And University Law. “The potentially bad news is that there is every reason to believe that institutions that employ race-conscious admissions policies will be held to the standards for which they argued, namely that they will need to show that positive educational outcomes are occurring due to the resulting matriculation of a diverse student population.”

Before discussing the impact of Grutter, Killenbeck briefly outlined the origins and history of the diversity argument and why it became regarded as essential in the effort to provide a broader and deeper educational experience. She covered the seeds of the rationale in two important cases, Sweatt v. Painter and Regents of the University of California v. Bakke.

In the latter, the court's most important decision on higher-education affirmative action prior to Grutter, Justice Lewis Powell’s majority opinion did not require parties supporting affirmative action and diversity to document the extent to which their ideas about these matters produced positive effects. In other words, colleges and universities could have mission statements favoring diversity and admission policies using race preference without a detailed accounting of actual benefits that would be attained from such policies or evidence that the desired outcomes actually occurred.

“Justice Powell simply took as gospel the text preached by the higher education establishment,” Killenbeck said. “That is, he accepted the premise of Harvard University’s policy that students with different ‘backgrounds and outlooks’ bring an undefined ‘something’ with them when they matriculate.”

This all changed with Grutter, a fact that many legal scholars and university administrators have not acknowledged, Killenbeck argues. Lauding Grutter as a tremendous victory in support of affirmative action, these scholars and administrators see the landmark 2003 decision and opinion as a mere extension of Bakke, specifically that Grutter only gave binding constitutional force to Justice Powell’s acceptance of diversity as a compelling educational interest. This may be true, Killenbeck said, but these scholars and administrators do not understand the full implications of the court’s shift from theory to fact regarding the benefits of a racially diverse educational setting.

“I argue that Grutter is Bakke with teeth because the paradigm adopted by the court stresses that diversity constitutes a compelling interest precisely because the educational benefits from a racially diverse environment are ‘not theoretical, but real,’” Killenbeck said.

In Grutter, the court acknowledges that each institution has the right to adopt a mission and policies that embrace diversity as a central element of its educational objectives, Killenbeck said. But the proper use of admission criteria with this objective in mind will succeed only if an institution can show that use of such criteria reflects its mission and that benefits from diversifying its student body are actually occurring. In other words, simply adding admission criteria based on race preference, especially without being able to demonstrate relevant programming or outcomes, does not shield institutions and programs from legal challenges. Killenbeck said she would like to see a shift of perspective in which diversity is defined as the broad spectrum of characteristics, perspectives, values and assumptions associated with personal identity, rather than something that focuses solely on race and ethnicity. She argues that programs and policies that reduce people to a single denominator are unfortunate and shortsighted.

She also argues, based on social science research, that it is not enough to simply admit a diverse group of students. Rather, institutions must engage in proactive programming designed to ensure that the values associated with diversity are actually realized. That is, what scholars call "structural diversity," simply having the right mix of students, is a first step in pursuing sound educational policies and practices that will benefit all students.

Killenbeck’s article is titled “Bakke, With Teeth? The Implications of Grutter v. Bollinger In An Outcomes Based World.” The Journal of College And University Law is published by the National Association of College and University Attorneys and the Notre Dame Law School.