The Harvard Graduate School of Higher Education conducted a national forum this fall. For two days in Cambridge, Massachusetts, a faculty that included colleagues from Harvard's Law School, Civil Rights Project, John F. Kennedy School of Government, and School of Higher Education; attorney Martin Michaelson, whose brief in Grutter v. Bollinger and Gratz v. Bollinger represented fifty-four higher education associations; and the American Council on Education held court on the Supreme Court's 2003 landmark affirmative action cases.
Their reflections and analysis are offered below with the caveat that in what follows, some of the heavy lifting is theirs, not mine. I am borrowing freely from their discussions, handouts, and references, and in reporting from my notes of the proceedings I am paraphrasing, quoting without attribution, and ordering presentations based at least in part on the intellectual work of others. And, of course, I comment as an editor-a position that does not bring with it admission to the Bar. A very useful web site with primary sources and greater expertise is available at
That said, I offer the following in the deeply held personal belief that no issue is more important to the work we do in journalism and mass communication education than diversity.
Before examining Grutter v. Bollinger and Gratz v. Bollinger, it is useful to consider four elements of background.
The Michigan cases began with a series of newspaper ads that recruited individuals who folt they were wrongly denied undergraduate admission to the University of Michigan (Gratz) or to the University of Michigan Law School (Grutter). The suits that resulted were well financed and motivated by a desire to end affirmative action.
Judicial deference to the expert judgment of educators, at least when it comes to academic governance, finds precedent in John Marshall's 1819 decision in the Dartmouth College case. In short, the courts rarely interfere with the judgment of professional educators. Thus, university leadership makes a difference. One of the issues at stake in the Michigan cases, in addition to the constitutionality of the policies used to increase racial diversity, was the right of educators, rather than legislatures or judges, to set educational policy.
When University of California v. Bakke (1978) brought the issue of affirmative action admissions to the Supreme Court, a splintered set of six opinions among nine justices produced a ruling, but probably little agreement, that there is a compelling state interest in diversity, that set asides and quotas are not legal, and that affirmative action policies, which can be legal, set into motion a judicial standard called strict scrutiny.
After Bakke, some federal courts upheld college diversity policies; others, such as in Texas, found them unconstitutional. Several states passed legislation or referenda barring affirmative action in all public affairs-education included. Split decisions rarely produce consistent policy within the political or the legal realm. A quarter of a century later, the Supreme Court tried again.
First, let's set the record straight as to what the Court did not do in the Michigan cases.
The Court did not produce a unified position. This time there were 13 individual, concurring, and dissenting positions.
The Court did not consider whether or not a state must take affirmative steps to create diversity in public institutions.
The Court did not consider whether affirmative action must be used to remedy past wrongs, a rationale often underlying the earlier public school bussing cases.
What did the Supreme Court accomplish? The justices attempted in the Michigan cases to set the contours of what compromises lawful public college admissions. In so doing the justices set a number of rules that are likely to be in place for some time. Remember that despite the controversial nature of affirmative action and the lack of clarity Bakke generated, there were twenty-five years between Bakke and the Gratz and Grutter cases.
Perhaps of greatest import, a majority of the Court agreed that diversity is a compelling state interest. Because of this, colleges may-but are not required to -take issues of race into consideration in their admissions.
Compelling or not, however, when schools take diversity into consideration the Constitution requires that strict scrutiny be applied, which means that:
* Quotas, set-asides, racial balancing, and separate admissions tracts may not be used.
* It must be evident that substantial weight has been given to nonothnic, nonracial factors.
* There must be evidence of individualized consideration of each applicant.
* The admissions policies must be narrowly tailored.
* Schools may consider the place of critical mass.
Critical mass? Social science evidence developed at the University of Michigan and elsewhere, the Supreme Court says, indicates that diversity creates a more effective learning environment. There is no set ratio as to what constitutes the amount of diversity necessary to enable this positive educational outcome. Yet, the evidence suggests that there must be a critical mass. Not a quota, but enough diversity to set off a chain reaction. Within that chain reaction, experience and knowledge are affected.
The presence of a diverse population alters pedagogy, curriculum, and educational outcomes in positive ways.
Students are presented, for example, with the opportunity to see that the opinion of a person of color does not represent the opinion of all persons of color. This may sound like a truism. But remove the independent variable-a critical mass of diversity-and the learning is effected.
Students of all races and ethnicities tend to alter and amend their views, the research finds, when they are exposed to the values and beliefs of others.
The Court accepted as factual evidence, data suggesting that cross-cultural interaction correlates positively with how students and faculty of all races rate the quality of their education.
Throughout the scientific evidence is the finding that the educational outcome benefits of diversity are colorblind. That is, diversity is a positive predictor for white students as well as for students of color.
The Supreme Court's use of these social science findings speaks volumes about the value of the research and discovery mission at our universities and colleges. Everyone in the academy can take pride in the fact that rigorous, disciplined scholarship produced real consequence in the development of public policy and in its review by the highest court in the land. This is a lesson that should not be lost as we prepare students to participate effectively in the democracy through their research and performance.
Finally, an analysis developed for the American Council on Education notes the deference the Supreme Court awarded the law school's judgment that diversity is necessary to its educational mission. The Court found "a constitutional dimension, grounded in the First Amendment, of educational autonomy." Universities and colleges have a constitutional right to annunciate their missions and to conduct their teaching and research in a manner that supports them.
The Supreme Court's recognition that there is a constitutionally compelling state interest in diversity is heartening. So is the deliberative academic scholarship and the more than sixty arnicas curie briefs from corporate and military leaders familiar with the benefits of affirmative action that assisted the justices in their review. Yet some of the experts gathered at Harvard's National Forum on Affirmative Action ended on a more chilling note. The door may have been opened, they caution, for review by lower courts of a wide range of race-conscious programs that provide scholarships, housing, pre-enrollment enrichment, financial aid, and retention programs to students of color. Do these programs contain set-asides, quotas, or other procedures that are constitutionally suspect?
Grutter v. Bollinger and Gratz v. Bollinger carry several messages for journalism and mass communication educators.
Our commitment to diversity through accreditation standards, on-going AEJMC sponsored research, and association-wide activities remains salient.
Educational leadership and judgment is respected by the courts and the autonomy of that leadership carries First Amendment implications every bit as powerful as those associated with the journalism and mass communication activities that ground our professional commitments. Rights, however, carry obligations.
We have an obligation to conduct research that, like the critical mass studies, holds the potential to contribute to issues of fundamental consequence. Toward that end, every journalism and mass communication faculty can benefit from the mapping of their research and scholarship activities in a manner that asks, are we contributing explicitly to consequential discovery and understanding?
A diverse critical mass among students and faculty makes a positive educational difference. In the wake of Grutter and Gratz, it is time to reassert our educational mission, to recognize explicitly the educational value of diversity, and to identify strategies that will set off a critical mass chain reaction worthy of the principles we advocate.
Jeremy Cohen, Editor