Magazine article Black Issues in Higher Education

The Pitfalls and the Pendulum

Magazine article Black Issues in Higher Education

The Pitfalls and the Pendulum

Article excerpt

People often ask me to predict how current events are shaping the future of affirmative action. The wonder aloud about the legality of initiatives to recruit, action, and promote Black faculty and administrators. My response may vary somewhat, depending on the purpose of the question and the questioner. But, invariably, I make one point emphatically: The pendulum tends to swing back and forth in response to the political climate of the country, but the backward arcs have never been dramatic -- especially in comparison with the wider swings forward.

As a lawyer, an equal opportunity/affirmative action administrator, and as a seasoned civil rights activist, I have paid close attention to the difference between rhetoric and results. We've endured a great deal of rhetoric, but little has actually changed in the law for the country as a whole.

Still, questions persist about the future of affirmative action. More often than not, they are based on Proposition 209 and the Hopwood decision. The continued references compel explanations, and we must be willing to give them -- over and over again.

Proposition 209 applies only to California's public institutions and programs, and carves out an exception -- as it must -- to permit public entities to engage in affirmative action programs mandated by federal law.

The Hopwood decision, involving the University of Texas Law School admissions program, applies only no public educational institutions in the Fifth Circuit -- Texas, Louisiana, and Mississippi. The U.S. Supreme Court's decision in the Bakke case, which permits the use of race as a factor in admissions decisions, is still good law in every other jurisdiction according to reputable legal scholars. The program outlawed by Hopwood involved the use of a dual admissions policy based on race that was suspect. Its demise was predictable. Race can never be the sole factor or the determining factor in admissions -- or employment -- decisions.

So what can we do now to recruit, retain, and promote Black faculty and administrators without worrying about whether or not it is lawful?

Private schools using private funds may, generally, continue to implement their affirmative action programs -- whether based on mandatory compliance with Executive Order 11246 (which pertains to federal contractors) or on voluntary compliance permitted by Title VII. The anti-affirmative action rulings on racial classifications that have not withstood the court's strict scrutiny test, which requires a compelling governmental interest to justify the classification, apply to public institutions. …

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