'Bakke' Set a New Path to Diversity for Colleges

The Chronicle of Higher Education
From the issue dated June 20, 2008
By PETER SCHMIDT

Thirty years ago, Justice Lewis F. Powell Jr. sent the nation's selective colleges down a path where few had ventured before.
In the U.S. Supreme Court's landmark ruling in Regents of the University of California v. Bakke, he wrote that colleges were legally justified in giving some modest consideration to their applicants' race, so long as they were motivated by a desire to attain the educational benefits of diversity.
Before Bakke, selective colleges regarded race-conscious admissions policies mainly as a way to remedy past societal discrimination against black, Hispanic, and Native American applicants. The Bakke ruling declared that justification off limits, replacing a rationale grounded in history with one grounded in educational theory.
The approaching 30th anniversary of that Supreme Court decision, announced on June 23, 1978, finds many in higher education wondering where Justice Powell's guidance has gotten them — and what, exactly, lies ahead.
His rationale for race-conscious policies may have ensured their long-term survival in the courts, by linking them to a common educational concern that is unlikely to go away anytime soon. But the decision also limited the reach of such policies, forcing colleges to consider race only as a "plus factor." They had to abandon quests for enrollments that reflected society's racial composition in favor of having enough minority students to ensure a variety of perspectives.
The Supreme Court upheld Justice Powell's reasoning in 2003, in a case involving a challenge to the race-conscious admissions policies of the University of Michigan's law school. But the argument that such policies have educational benefits has not protected them from political challenges. Michigan's residents subsequently voted to ban the use of affirmative action by public colleges and other state and local agencies. Similar measures were adopted by California and Washington State in the 1990s and are seen as likely to pass in Arizona, Colorado, and Nebraska if critics of affirmative action succeed in getting them on the ballot this fall.
Some advocates for minority students express frustration that the educational-diversity rationale has led colleges to seek out all different types of students rather than focusing on trying to increase their black, Hispanic, and Native American enrollments. At the end of the day, the advocates argue, pursuing diversity for educational purposes is not the same thing as pursuing racial equality and social justice — and is not nearly enough.
"There are some of us who still believe there is a strong remedial justification for affirmative action," says William L. Taylor, chairman of the Citizens' Commission on Civil Rights, a Washington-based group that monitors the federal government's compliance with civil-rights laws. Mr. Taylor, a leading civil-rights lawyer since 1954, says he holds the view that Justice Harry A. Blackmun expressed in a dissenting opinion in Bakke, that "in order to get beyond racism, we must first take account of race." [To read the entire article, go to: http://chronicle.com/weekly/v54/i41/41a00103.htm?utm_source=at&utm_medium=en ] (Subscription required)