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

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 MCAT score were among the highest among all of the applicants, and were higher than those of all of the minority applicants admitted into the medical school through the special admissions program. In Bakke, the U.S. Supreme Court affirmed the California Supreme Court's decision that the special admissions program had violated the equal protection clause of the Fourteenth Amendment, directed that the plaintiff be admitted to the School of Medicine, and reversed the judgment prohibiting the defendant from considering race in its future admissions.

In his opinion regarding Bakke, Justice Lewis Powell, Jr., wrote that, "ethnic diversity is only one element in a range of factors a university properly may consider in attaining the goal of a heterogeneous student body" (quoted in Parloff, 2002). However, Powell wrote in the same opinion that quotas "would hinder rather than further attainment of genuine diversity." Following Justice Powell's decision, an admissions program that "considered a host of factors that include race would be constitutional, even if an applicant's race 'tipped the scales' among qualified applicants." A school could not "refuse to compare applicants of different races or establish a strict quota on the basis of race" (Perea et al., 2000: 732). As such, the Supreme Court outlawed racial quotas in higher education, but condoned the use of race as a selective factor (Philip, 2002). Justice Powell's opinion creates a dilemma for institutions of higher education that seek to implement admissions policies that take race into consideration, but do not formulate quotas based on race. Institutions of higher education have interpreted Justice Powell's opinion in Bakke as identifying a diversity rationale that allows them to use race as a selective factor in admissions as long as racial quotas are not promoted. Interestingly, the diversity rationale adopted by institutions of higher education from Bakke is a central issue in Hopwood v. State of Texas (1996), Gratz v. Bollinger (2000), and Grutter v. Bollinger (2001).

In Adarand v. Pena, 515 U.S. 200 (1995), the Supreme Court extended the Bakke decision into public contracting. In this case, Adarand Constructors, a Colorado-based highway construction company specializing in guardrail work, filed suit against the Central Federal Lands Highway Division, part of the Department of Transportation, alleging that its race-conscious subcontracting compensation program was unconstitutional and violated the Fourteenth Amendment. Despite Adarand's submission of a low bid in an open bidding process for a subcontract, the prime contractor, Mountain Gravel and Construction Company, awarded the subcontract to Gonzales Construction on the basis that it would receive additional compensation from the federal government if it hired a subcontractor certified as a small business controlled by socially and economically disadvantaged individuals.

In reaching its decision in Adarand, the Supreme Court argued that a federal affirmative action law designed to increase the participation of minorities in federal contracting created a system of paternalism in which minorities expected to be given preferential treatment (Aguirre, 2000). The Court also argued that the law was based on the faulty assumption that minorities are disadvantaged in a manner that white contractors are not. In the Court's eye, the use of minority status to overcome disadvantages in federal contracting actually resulted in intentional discrimination against the majority (white) group. In an ironic twist, the Court reasoned that although minority status (race) may disadvantage contractors in the federal contracting process, minority status (race) cannot be used as an affirmative agent to remedy the disadvantage.

Together, Bakke and Adarand have shaped a precarious context for diversity initiatives in higher education. The Supreme Court has reasoned that race may serve a purpose in the admissions process, and yet it may not be used as a corrective measure, such as establishing quotas. As such, race can be used in the admissions process to diversify the student population, but it may not be used as a vehicle for diversifying the institutional character of higher education. That is, while race may be used to enhance the "representativeness" of students that mirror diversity in society, it may not be used to implement institutional or organizational strategies that use diversity to change the institutional character and organizational culture in higher education institutions. Moreover, Bakke and Adarand make it difficult for higher education to develop diversity initiatives that address the changes taking place in the composition (e.g. race, ethnicity, and gender) of American society. Consider that the Supreme Court's decisions in Bakke and Adarand suggest that race does play an important part in shaping diversity measures that are linked with access to social opportunity in American society. However, the Court's decisions mirror American society's reluctance to alter the structure of social opportunity to remove barriers for minority (nonwhite) populations.

The following court cases are examples of challenges to the use of diversity measures in higher education and frame the legal context regarding the diversity rationale in higher education. In these cases, Bakke and Adarand play a prominent role in challenging the appropriateness of diversity measures to redress the historical exclusion of minority persons from access to higher education. For a broader review of the issues involved in these cases, and their association with other legal cases, see Bell (2000), Bloom (1998), Murphy (1995), Perea et al. (2000), Pratt (1999), Rodriguez (1999), Springer (2003), and U.S. Civil Rights Commission (2002).

Hopwood v. University of Texas

In 1992, Cheryl J. Hopwood and three other white plaintiffs filed suit against the University of Texas Law School alleging that they were denied admission because of procedures granting preferences to Black and Mexican-American applicants. The Court paid deference to the Supreme Court precedent in Bakke and declined to declare the school's use of racial preferences in its admissions process unconstitutional [Hopwood v. State of Texas, 861 F. Supp. 551 (W. D. Tex. 1994)]. Instead, the Court applied strict scrutiny to the law school's admissions process and found that the use of racial preferences to achieve a diverse student body served a compelling state interest under the Fourteenth Amendment. The Court also found that using racial classifications to overcome the present effects of past discrimination served a compelling government interest. However, the Court ultimately found that the law school's use of separate admissions procedures for minorities and non-minorities prevented any meaningful comparative evaluation among applicants of different races and was not narrowly tailored to achieve those compelling interests. Consequently, the Court declared that the law school's 1992 admissions procedures violated the Fourteenth Amendment. In effect, the Court ruled that the admissions procedures favored only Black and Mexican-American applicants.

The Fifth Circuit Court reversed and remanded the Court's decision in part. It declared that the law school's use of racial preferences served no compelling state interests under the Fourteenth Amendment and directed the law school not to use race as a factor in admissions. The remanded part of the decision had to do with whether the plaintiffs would have been admitted to the law school in the absence of admissions procedures that take into account an applicant's race or ethnicity. The U.S. Supreme Court declined to hear appeals of the Circuit Court's decision, acknowledging that the 1992 admissions program had been discontinued and would not be reinstated.

Smith v. University of Washington

In 1997, Katuria Smith, Angela Rock, and Michael Pyle (collectively Smith) filed a class-action suit against the University of Washington Law School alleging that they and other white applicants had been denied admission on the basis of racially discriminatory admissions policies [Smith v. Univ. of Washington, 2000 WL 177045 (2000)]. In this case, the Court followed the majority opinion rendered in Bakke and held that the law school's admissions program could consider race in the promotion of educational diversity, a compelling governmental interest, and that it met the demands of strict scrutiny of raceconscious measures. In 2001, the Supreme Court declined to hear the appeal despite the contradiction between this ruling and that in Hopwood. The Court held that the issue was moot since the University of Washington had discontinued its use of race, ethnicity, and national origin as factors in the admissions process following passage of Initiative 200. Voters approved initiative 200, the Washington State Civil Rights Initiative, in 1998. Modeled after California's Proposition 209, Initiative 200 prohibited the state from granting preferential treatment based on race, sex, or national origin in the areas of public education, public contracting, and public employment.

Johnson v. University of Georgia

In 1999, Jennifer Johnson filed suit against the University of Georgia (UGA) after she was denied admission to the freshman class for fall 1999. Her complaint was later consolidated with that of Aimee Bogrow and Molly Ann Beckenhauer, who were denied admission in 1999. Johnson was offered admission to the University of Georgia after she had filed her lawsuit, but she declined to enroll at that time. The plaintiffs alleged that they were denied admission based on race (Title VI) and gender (Title IX). The University of Georgia gave automatic preference in admissions to male applicants. The U.S. District Court for the Southern District of Georgia ruled in favor of the plaintiffs [Johnson v. University of Georgia, 106 F. Supp. 2d 1362 (S.D. Ga. 2000)]. The U.S. Court of Appeals for the 11th Circuit upheld this decision [263 F. 3d 1234 (U.S. App. 2001)]. The District Court held that UGA's admissions policy was unconstitutional. The court reasoned that Justice Powell's opinion in Bakke was not a binding precedent, and that it was not required to assume that UGA's desire to promote student body diversity was a compelling interest. According to the court, Justice Powell was not clear on what he meant by a compelling governmental interest. The court further reasoned that although remedying the effects of racial discrimination may be a compelling governmental interest, "the promotion of student body diversity in higher education is not a compelling interest sufficient to overcome Title VI's prohibition against racial discrimination" (106 F. Supp. 2nd 1362). Having dispensed with diversity as a non-compelling governmental interest, the court did not address the question regarding the appropriateness of an admissions policy to achieve diversity.

The court's reasoning in this case deserves some attention in that the tone and terms seem highly ideological. In rejecting Justice Powell's constitutional view that diversity is a compelling governmental interest, Judge B. Avant Edenfield, U.S. District Court Southern District of Georgia, is only left with the task of determining the status of the law regarding the non-remedial use of diversity to justify race-based preferences in university admissions. In other words, he decided the case on a statutory rather than a constitutional ground. Justice Powell had indeed articulated the view that fostering a diverse student body was a constitutionally permissible goal for an institution of higher education.

In the case of UGA, Judge Edenfield reviewed a series of related federal cases and observed that diversity is an amorphous concept that has become synonymous with proportional representation. He further observed that UGA's admissions program favored some candidates over others based on race, and that the university did not proffer an interest compelling enough to justify using racial preferences at all. To support his observations, Judge Edenfield noted the university president's commitment to increasing the representation of African Americans within the university as evidence that the institution was plying the "diversity equals proportionalism" rationale. He also identified problems in the university's mission to provide "equal access to" and "representation in" as contradictory to the use of admissions processes that award bonus points to some races, but not to others.

Judge Edenfield dismissed comments by UGA's former president, Charles Knapp, who stated that a diverse learning environment contributes to the education process and prepares people from different backgrounds to work together. Judge Edenfield regarded Knapp's view to be based on the "speculative assumption that people from racially homogenous environments cannot 'fully work cooperatively' with individuals of a different race when they finally encounter them" (106 F. Supp. 2d 1362, at 30). Interestingly, the judge invokes sound logic in this case, but unfortunately, ignores centuries of institutionalized racism that have resulted in a prejudiced mindset that often prevents individuals socialized in racially homogenous environments from cooperating with individuals of different races in the workplace.

Gratz v. Bollinger (The University of Michigan--The Undergraduate Case)

In 1997, Jennifer Gratz and Patrick Hamacher filed a class-action suit on behalf of themselves and all others similarly situated against the University of Michigan alleging that the university's College of Literature, Science, and the Arts (LSA) had violated Title VI of the Civil Rights Act and the equal protection clause of the Fourteenth Amendment by using race as a factor in admissions decisions. The court ruled in favor of the plaintiffs and declared that the admissions programs in existence from 1995 through 1998 were unconstitutional since they were not narrowly tailored to meet the interest of diversity under the standard of strict scrutiny. However, the court found the admissions programs in existence in 1999 and 2000 to be constitutional.

Attorneys for the plaintiffs relied on the decision of the U.S. District Court for the Southern District of Georgia in Johnson v. University of Georgia [106 F. Supp. 2d 1362 (S. D. Ga. 2000)]to argue that diversity is not a compelling governmental interest that can justify the use of race-conscious classification in the admissions process. This court, however, disagreed. Moreover, it reasoned that admissions programs that consider race for other than remedial purposes are permitted by the Fourteenth Amendment, but it went on to assert that "diversity in higher education, by its very nature, is a permanent and ongoing interest" [Gratz v. Bollinger, 122 F. Supp. 2d 811 (E. D. Mich. 2000) at 38].The plaintiffs in this case petitioned the U.S. Court of Appeals for the Sixth Circuit seeking an en banc review of the decision. The petition was granted [277 F. 3d 803 (6th U.S. Cir. 2001)].

Grutter v. Bollinger (The University of Michigan--The Law School Case)

In 1997, Barbara Grutter filed suit against the University of Michigan Law School after having been denied admission in June of that year. Grutter alleged that she was discriminated against on the basis of her race (Caucasian--"a disfavored racial group")and that the "law school"violated the Fourteenth Amendment and Title VI of the Civil Rights Act of 1964, which prohibits recipients of federal funds from discriminating on the basis of race (Grutter v. Bollinger [137, F. Supp. 2d 821 (U.S. Dist. 2001)]. In 1998, the University of Michigan sought to have this case designated as a companion to Gratz v. Bollinger. However, in a series of odd procedures involving an Order of Disqualification and Transfer by the Chief Judge of the District Court and the nullification of an opinion by a two-judge panel, the cases were ultimately deemed not to be companion cases [(16 F. Supp. 2d 797 (E. D. Mich. 1998)].

In Grutter, the court found in favor of the plaintiff and against the law school. The court declared that the law school's use of race in its admissions decisions violated the equal protection clause of the Fourteenth Amendment and Title VI of the Civil Rights Act of 1964, and prohibited the law school from using race as a factor in its admissions decisions. The University of Michigan requested a stay of injunction, but was denied by the District Court. In both cases, Gratz and Grutter, the U.S. Court of Appeals for the Sixth Circuit has permitted intervention by proposed defendant-intervenors--parties such as the NAACP Legal Defense and Educational Fund, Mexican American Legal Defense and Educational Fund, the American Civil Liberties Union Foundation, the Center for Individual Rights, and several other entities.

The court's reasoning in Grutter v. Bollinger was that despite considering other factors in the admissions decisions, the law school placed "a very heavy emphasis on an applicant's race in deciding whether to accept or reject" (Id at 53). It also found that the law school sought to admit an entering class with a composition of 10 to 17% African Americans, Native Americans, and Hispanics. The court based its reasoning on the average representation of ethnic minorities in the law school's entering classes and on a statement by a faculty member who attempted to define "critical mass" in terms of percentages. In turning to the constitutionality of using race as a factor in achieving racial diversity, the court disagreed with Justice Powell's opinion in Bakke, stating "Bakke does not stand for the proposition that a university's desire to assemble a racially diverse student body is a compelling state interest" (Id at 77). The court went on to suggest that diversity could have an important educational benefit, but made a distinction between diversity of viewpoint and racial diversity, declaring "the connection between race and viewpoint is tenuous, at best" (Id at 83). The court concluded that the law school sought "diversity of views." In making this statement, the court completely ignores two robust bodies of social science scholarship that argue that: (1) race is a socially constructed phenomenon that involves oppression and hierarchy, and (2) knowledge is a function, among other things, of a person's position in society.

Not surprisingly, the court concluded that "the attainment of a racially diverse student body is not a compelling state interest" (Id at 93). It further opined that even if it were, the law school's admissions program was not narrowly tailored to serve that interest. To support this conclusion, the court made the following five observations: (1) the notion of "critical mass" could not be clearly defined in terms of numbers or percentages; (2) there was no time limit on the use of race in the admissions process; (3) the use of race to attain a minimum percentage of underrepresented minority students was indistinguishable from a quota system; (4) there was no logical basis for the emphasis on the particular racial groups chosen to receive special attention; and (5) the law school failed to investigate alternate means for increasing minority enrollment.

On May 14, 2002, a sharply divided Sixth Circuit Court of Appeals (288 F. 3d 732) voted five to four to overturn the lower court's ruling that the admissions policy used by the University of Michigan's law school, Grutter v. Bollinger, illegally discriminated against white applicants (Fletcher, 2002; Steinberg, 2002). The court distinguished between remedial and non-remedial considerations of race and ethnicity and determined that the requirement of a "definite stopping point" applied to the first, but not the second consideration. The majority opinion for the court noted: "We are satisfied that the law school's admissions policy sets appropriate limits on the competitive consideration of race and ethnicity. The record indicates that the law school intends to consider race and ethnicity to achieve a diverse and robust student body only until it becomes possible to enroll a 'critical mass' of underrepresented minority students through race-neutral means"(quoted in Schmidt, 2002). In contrast, the minority opinion (led by Judge Danny J. Boggs) noted: "This case involves a straightforward instance of racial discrimination by a state institution.... Michigan's plan does not seek diversity for education's sake. It seeks racial numbers for the sake of the comfort that those abstract numbers may bring. It does so at the expense of the real rights of real people to fair consideration." Judge Boggs included in his dissent a "Procedural Appendix" that highlighted procedural inconsistencies in the appeal processes at the lower court levels. The inclusion of this appendix became a matter of further disagreement among the members of the court. In the end, the court reversed the judgment of the district court and vacated the injunction against the law school's consideration of race and ethnicity in admissions decisions. The Sixth Circuit Court of Appeals stated without explanation that it would rule on Gratz v. Bollinger at a later date.

Discussion

People believe that judges should be fair and impartial, and should set aside their own political views in the conduct of their public duty. However, federal judges are appointed through highly politicized processes and reflect the political views of the administrative regimes that sponsor them, as well as the political times of their day (Vargas, 1999). It took decades for the courts to get beyond decisions that supported the paradigm of white privilege, wherein it was difficult for minorities to provide "evidence" that they had been victimized by racial practices in the day-to-day operations of society's institutions. Despite the evidence offered by social scientists and psychologists that black children were harmed by attending segregated schools, Thurgood Marshall often found the courts unwilling to give merit to the claim that American schools were racist and discriminatory in their operation (Bell, 1980; Kluger, 1975). The courts simply would not accept that racism prevailed in the daily activities of American institutions (for a personal account of how this system of privilege worked, see Platt, 1998). Today, the courts have begun to move in the extreme opposite direction--that there is racism against whites behind every diversity initiative (Wellman, 1997). There is no great concern for whites to provide "evidence" that they are the victims of racism; instead, the courts are looking for logical reasons to dismantle affirmative action.

Since the Bakke decision in 1978, the courts have begun to render decisions that have undermined the legal and political legitimacy of affirmative action. One interpretation of this pattern is that the courts are responding favorably to the claims of reverse racism by white Americans. Another is that the Rehnquist Court is emphasizing procedures at the expense of substantive claims (Graines and Wyatt, 2000). Whether it is politics or procedural emphasis, the undermining of affirmative action by the courts will reestablish white privilege in the absence of other proactive measures to reduce, if not eliminate, institutionalized discrimination.

The Sixth Circuit Court of Appeals' decision in Grutter v. Bollinger has set the stage for a possible Supreme Court review of both Gratz and Grutter, which could finally put to rest the issue of how this nation will address the pervasive problem of discrimination in education, as well as how to diversify institutions of higher education. If diversity is in the best interest of society and institutions of higher education, isn't a quota system the most direct route for diversifying higher education? A quota system would structure access to social opportunity based on racial preference. The notion of racial preference is not foreign in American society; after all, the country's history is rooted in the Anglo-Saxon core's domination and exploitation of non-white populations (Aguirre and Turner, 2000; Guinier, 2002; Horsman, 1997). One outcome of the Anglo-Saxon core's control in American society has been the privileging of white persons in the manufacture of societal institutions. So, could it be that the Anglo-Saxon core does not fear diversity as much as it sees diversity as a vehicle for empowering minority persons with voice and presence in American society?

Who bears the burden for diversifying higher education? For too long, the majority (white) has enjoyed the direct and indirect benefits of linking the notion of individual merit with values rooted in an Anglo-Saxon core. The majority would not have an interest in supporting diversity initiatives that might curtail, or at least bring under scrutiny, its access to social opportunity in American society. Why change something that benefits only you? Thus, it is left to minorities (nonwhite) to pursue the implementation of diversity initiatives in higher education. Ironically, by placing the burden on minorities for diversifying higher education, the majority can argue that minorities want something they have not earned. After all, one of the benefits of privilege is that the holder of privilege can argue that those less privileged are in that position because they are unable to make use of the opportunity society offers them.

Concluding Remarks

Remedying the effects of past discrimination is the nexus for discussing diversity and affirmative action initiatives in higher education. The wait has begun for the Supreme Court's possible review of Gratz and Grutter, but other affirmative action initiatives have attracted public interest and scrutiny (Selingo, 2003). For example, in 1998, as a response to Hopwood v. Texas, the State of Texas created a "percentage plan" that guarantees admission to any student ranked in the top 10% of his or her graduating high school class to any public institution of higher education (Selingo, 2002). California and Florida also approved their own percentage plans (Ahern, 2002; Chronicle of Higher Education, 2002). The California plan guarantees admission to one of the University of California campuses to the top four percent of graduating high school seniors, while the Florida plan guarantees admission to the top 20% of the graduating seniors to one of the state's public colleges or universities. Colorado and Pennsylvania also considered percentage plans, but have not approved one yet. Indeed, Pennsylvania has abandoned the percentage plan and is considering using student performance on a statewide standardized test.

Although leaders in higher education and politicians herald percentage plans as a sound alternative to affirmative action, their effectiveness in promoting diversity in higher education is questionable (see, for example, Bowen and Rudenstein, 2003; Trounson, 2003). To gauge the effectiveness of percentage plans, the U.S. Civil Rights Commission (2002) studied percentage plans in higher education. Its report criticizes percentage plans for their inability to promote diversity in higher education, especially at the flagship institutions and in graduate and professional schools. Moreover, the report interprets percentage plans as an experimental response to the attacks on affirmative action and a reflection of the states' failure to provide equal learning opportunities for poor Latino and African American students. Only time will tell whether percentage plans promote diversity in higher education at levels beyond the limited outcomes produced by affirmative action. Moreover, the question of disparate impact will most likely remain at the forefront of the debate on percentage plans. In particular, percentage plans will not be effective in diversifying higher education if they sort minority students into institutions at the lower end of the higher education stratification system.

Finally, discussions of affirmative action are uncomfortable for various reasons and not the least because they identify the unwillingness of American society to alter its institutions to accommodate an increasingly diverse and multicultural society. The majority (white) in American society has yet to see the benefits of incorporating diverse and multicultural mindsets into societal institutions. The discussion of affirmative action portrays the minority (non-white) as a threat to the privileges enjoyed by the majority. As such, the minority is depicted as having excluded itself through its own lack of effort and initiative from the social opportunity enjoyed by the majority; thus, in the majority's eyes the minority is its own victim. The discussion of affirmative action has a tragic outcome for the minority because it documents the unintended benefits of affirmative action for the majority. Consider that the notion of reverse discrimination advanced by the majority often outweighs the direct and harmful effects of racism experienced by the minority. In the end, the most noticeable unintended benefit of affirmative action for the majority is the court's use of affirmative action to silence the minority's cry for social justice.

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ADALBERTO AGUIRRE, JR., is a Professor in the Department of Sociology, University of California-Riverside (Riverside, CA 92521-0491 ; e-mail: Aguirre@citrus.ucr.edu) and a member of the Social Justice Editorial Board. He has authored various books and articles on stratification and inequality, formal organization, the sociology of education, sociolinguistics, and psycholinguistics. RUBEN MARTINEZ, of the University of Texas at San Antonio (e-mail: rmartinez@utsa.edu), is a sociologist, educator, diversity consultant, and former senior administrator in higher education. The co-author of Chicanos in Higher Education (1993), his research interests include race and ethnic relations, bioregional sociology, environmental justice, and the education of ethnic minority populations.
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