The diversity rationale in higher education: an overview of the contemporary legal context.

• Author: Aguirre, Adalberto Jr.

WHILE U.S. SOCIETY PORTRAYS ITSELF AS ROOTED IN A HISTORY OF EQUAL opportunity, institutionalized forms of discrimination limit the life chances of minority populations in the United States. The social struggles of the 1960s resulted in the formalization and expansion of social policy interventions intended to promote equal opportunity for socially oppressed groups (Aguirre and Martinez, 1993; Woodhouse, 2002). One of these social policy interventions became known as affirmative action. This public policy has been controversial since its inception in the 1960s because it challenges the racialized production of merit by trying to "close the gap" between the privileged majority (white) and unprivileged minority (non-white) in U.S. society (Greenberg, 2002). It is also controversial because it attacks unequal access to opportunity in society by trying to implement remedies that redress the "lingering effects" of discrimination against racial and ethnic minority persons in U.S. society (Cunningham et al., 2002). Broadly conceived, affirmative action is a term that refers to measures or practices that seek to terminate discriminatory practices by permitting the consideration of race, ethnicity, sex, or national origin in the availability of opportunity for a class of qualified individuals that have been the victims of historical, actual, or recurring discrimination. With its roots in the Wagner Act of the 1930s, affirmative action became racialized in the 1960s, and since then has been the focal point of white Americans concerned with the rise of reverse racism, the stigmatizing effects of affirmative action, and the need for color-blind policies in society (Platt, 1997).

The Regents of the University of California v. Bakke, 438 U.S. 265 (1978), represents the first major attack on, and the first major defense of, affirmative action in the courts and is generally regarded as the nexus for sociolegal discussions of diversity and affirmative action in higher education. Opponents of diversity and affirmative action measures in higher education have used Bakke to challenge the use of race, ethnicity, sex, or national origin in student admissions, financial aid, and staff and faculty employment. In the 1990s, conservative political forces used Bakke as a symbolic tool for promoting statewide referenda, such as California's Proposition 209 and Washington's Initiative 200, to reverse the civil rights gains from the 1960s and 1970s. Our purpose in this essay is to provide an overview of major court decisions that have challenged the context for diversity and affirmative action initiatives in higher education. It is our intent to construct a conceptual framework that guides the reader through the contested terrain of diversity and affirmative action in higher education.

The Notion of Individual Merit

The notion of individual merit has coexisted with racial privilege in the United States since the country's inception. That notion holds that achievement should be recognized and rewarded as the outcome of individual effort, and should be the principal basis for the system of rewards in American society. For Vargas (1998: 1502), the association of merit with racial privilege in American society is rooted in the white ethnic immigrant myth: "The white ethnic immigrant myth--that hard work, assimilation, and virtue can overcome any adversity, including racism--has become the dominant American cultural narrative. The white ethnic immigrant myth is hegemonic because it mandates assimilation, dismisses the power and subordination dynamics of racism, demands conformity with 'American values,' and ultimately constructs a racial/cultural binary that pits the virtuous white assimilated ethnics against the nonvirtuous 'raced' and the culturally different." The white ethnic immigrant myth has resulted in a system of privilege in U.S. society that empowers the majority (white) while denying opportunity to the minority (nonwhite). In addition, because merit is used to legitimate privilege, it is portrayed as a cultural marker of the majority in U.S. society.

As a backdrop for locating the social and cultural nexus for merit in the U.S., the white ethnic immigrant myth creates a problem for affirmative action because the myth promotes the perception in the majority that any attempt to alter the structure of opportunity in society is a threat to the majority's hegemonic control over merit. That is, it threatens the way the majority allocates privilege to itself (see, for example, Bollinger, 2002). Ironically, the white ethnic immigrant myth promotes an ahistorical view of affirmative action in the majority to hide the majority's use and control of privilege in society. According to Delgado (1995: 356), the majority's ahistorical treatment of affirmative action allows it to ignore that, "for more than 200 years, white males benefited from their own program of affirmative action, through unjustified preferences in jobs and education resulting from old-boy networks and official laws that lessened the competition." The majority employed a system of privilege, rooted in preference, to establish itself as the exemplar and just recipient of merit in society. As a result, the majority does not attack its disproportionate representation in positions of power, leadership, and influence in society. Instead, it attacks as unworthy recipients of merit those few members of the minority that have ascended to positions of power, leadership, and influence due to affirmative action initiatives.

Caught in the vortex of the Civil Rights Movement of the 1960s, affirmative action challenged the combined notion of white superiority and individual merit as a system of privilege enjoyed only by white persons in U.S. society. Supporters of the Civil Rights Movement argued that individual merit would be more representative of the social fabric in American society if societal institutions adopted principles of equality and inclusion for nonwhite persons (Morris, 1984). Accordingly, supporters of affirmative action argued that the notion of individual merit would be compatible with a highly diverse and multicultural society only if institutionalized discrimination were eliminated (Bell, 1997). The challenge was posed for American society: Was affirmative action an appropriate vehicle for promoting the civil rights of minority persons regarding their inclusion in America's social institutions? Not surprisingly, the battle over the implementation of social policies that supported diversity and individual merit in the same context was waged in the legal courts.

Historical Court Decisions

In 1856, the U.S. Supreme Court ruled in Scott v. Sandford that the civil and political rights and privileges conferred upon citizens by the Constitution did not apply to the Negro race, since slaves were property and not "people" as the term is used in the Constitution. It took the Fourteenth Amendment to the Constitution in 1868 to change this decision. Although the Thirteenth Amendment, adopted in 1865, prohibited slavery, the rights of the "new" citizens had to be affirmed as follows:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. Forty years after the Dred Scott case, the U.S. Supreme Court ruled in Plessy v. Ferguson (163 U.S. 537) that separate and equal accommodations for "the white and colored races" were constitutional and did not conflict with either the Thirteenth or the Fourteenth Amendments. The Court further reasoned that the enforced separation of the races did not stamp the colored race with a badge of inferiority except insofar as "the colored race chooses to put that construction upon it." The lone dissenter in the case, Justice John Harlan, opined that, because the Constitution is color-blind, the Court's decision that states could regulate the enjoyment by citizens of their civil rights based solely on race would prove to be as pernicious as the Court's decision in the Dred Scott case. The decision in Plessy v. Ferguson held for nearly 58 years, until 1954, when the Supreme Court ruled in Brown et al. v. Board of Education of Topeka et al. (347 U.S. 483) that Plessy v. Ferguson holds no place in the field of public education, where the "separate but equal" doctrine violates the equal protection of the laws guaranteed by the Fourteenth Amendment and is inherently unequal.

Higher Education as Contested Terrain

The U.S. Supreme Court significantly shaped the contemporary legal context for affirmative action in higher education through its decisions in two cases: University of California v. Bakke, 438 U.S. 265 (1978), and Adarand v. Pena, 515 U.S. 200 (1995). In University of California v. Bakke, Alan Bakke, a white male, challenged the validity of a special admissions program at the University of California at Davis School of Medicine after having twice been denied admission. The medical school filled 16 of its 100 slots in its entering class through a special admissions program open only to minority applicants who were compared among themselves and not with the overall applicant pool. Bakke's college grade point average and...