UNIVERSITY PARK, Pa. — Colleges and universities find themselves in a quandary. Administrators know that engendering a robust learning environment requires diversity in an increasingly multiracial and multiethnic society. However, legal decisions and state laws increasingly restrict the tools institutions of higher learning use to help assemble a diverse student body.
Liliana M. Garces, assistant professor of education and research associate in the Center for the Study of Higher Education at Penn State, provides an overview of the legal and public policy developments and considers their implications for future policies aimed at achieving racial and ethnic diversity in graduate studies in her paper, “Aligning Diversity, Quality, and Equity: The Implications of Legal and Public Policy Developments for Promoting Racial Diversity in Graduate Studies.”
Garces emphasizes the need for institutions to reframe the ways concepts of diversity, equity and quality are perceived and enacted through admissions policies.
“Legal decisions have contributed to a false dichotomy between our understandings of diversity and educational quality, as well as our understandings of efforts that promote diversity with those that address racial equity," she said. "I argue that institutions have the power, through their policies and practices, to reframe the ways these concepts are perceived and enacted, which is critical for postsecondary institutions to further their educational missions.
Early Affirmative Action efforts and the Civil Rights Movement in the South culminated in the Civil Rights Act of 1964. That and various executive orders for Affirmative Action focused on ensuring access to higher education, and employment, for African-Americans, Latinos, American Indians and white women in fields where they were underrepresented.
Through the rest of the decade and into the 1970s, the executive and legislative branches of the U.S. government reinforced the tenets of the Civil Rights Act. Then, in 1978, the Supreme Court heard Regents of the University of California v. Bakke, which involved a challenge to the University of California at Davis School of Medicine’s consideration of race in its admissions decisions. In six separate opinions with no clear majority and a controlling opinion by Justice Lewis F. Powell, the court rejected all but the last of four justifications for the school’s policy.
This marked a noteworthy, practice-based shift in the court’s stance on matters of race-conscious admissions practices, Garces said. In essence, she said, the court transitioned from promoting access for racial minorities to protecting whites from alleged discrimination.
Several subsequent legal challenges to race-conscious practices in admissions followed. Those three decisions further solidified Justice Powell’s opinion in Bakke that endorsed the limited use of race in admissions policies to further an interest in the educational benefits of diversity.
“We’ve come to view racial diversity as coming at the expense of educational quality, when, in fact, educational quality can be built on a foundational goal of diversity. To do so, institutions need to re-examine conventional ideas of qualification and merit in their admissions decisions,” Garces said.
“Influenced by the outcome of legal cases, we’ve also come to view diversity policies as divorced from efforts that address race or racial inequities," she added. "To further the educational benefits of diversity, however, institutional policies need to consider the ways in which racial inequities shape students’ opportunities and the ways in which racial bias persists to shape the experiences of students.”
One of the legal roadblocks that has become central in litigation efforts related to affirmative action admissions policies that seek to further the educational benefits of diversity, is the term “critical mass.”
“I understand my job under our precedents [is] to determine if your use of race is narrowly tailored to a compelling interest," said Chief Justice John Roberts during the oral arguments of Fisher v. University of Texas. "The compelling interest you identify is attaining a critical mass of minority students at the University of Texas, but you won’t tell me what the critical mass is. How am I supposed to do the job that our precedents say I should do?”
Garces and co-author Uma M. Jayakumar advocate a more nuanced replacement for critical mass in their paper, “Dynamic Diversity: Toward a Contextual Understanding of Critical Mass.”
“When we talk about diversity in postsecondary education, we talk about it primarily in terms of the number, or percentage, of students of color on a college campus. Diversity, however, is a more dynamic concept,” Garces said. “Achieving the educational benefits of diversity depends on a symbiotic relationship between the environment and students. While the number of students of color plays a significant role in shaping a campus climate and culture, the campus climate and culture, in turn, influence whether students feel welcome to attend the institution and their experiences while on campus.”
The call to replace the term critical mass is not without precedent. Justice Antonin Scalia during oral arguments in Fisher said, “You should call it a cloud or something like that. Mass … assumes numbers, either in size or certain weight.”
Garces and Jayakumar engage Scalia’s suggestion for the use of a new term and advance the term "dynamic diversity."
“The term dynamic diversity seeks to refocus our attention on this symbiotic relationship between the environment and students," said Garces. "That is, the interactions among students, the particular context in which these interactions take place, and the environmental conditions that are necessary for the educational benefits of diversity to take place.
“This more nuanced understanding of diversity can help us answer the question in the legal debate as to when an institution has achieved a 'critical mass' of students of color and to move away from discussions of critical mass as a one-size-fits-all concept.”
The courts have affirmed the importance of diversity on college campuses. Research has shown that perceptions, attributions and generalizations that promote stereotypes and bias can also be reduced through repeated interactions with peers from different groups and requires more than token numbers in classroom discussions. And the frequency of positive cross-racial interactions is more strongly related to student outcomes than is the overall frequency of cross-racial interactions.
“Our analysis is intended to help advance a more contextualized understanding of critical mass,” Garces said. “I’m hopeful that with increased communication and collaborations among researchers, administrators and legal counsel, this more contextualized understanding will help institutions generate the evidence necessary to assess whether the conditions that foster dynamic diversity are present at an institution; this evidence, in turn, should help better justify race-conscious policies in the legal arena and beyond.”