Magazine article Diverse Issues in Higher Education

Legal Landscape: The Legal Environment Has Ebbed and Flowed in Its Support of Advancing Diversity

Magazine article Diverse Issues in Higher Education

Legal Landscape: The Legal Environment Has Ebbed and Flowed in Its Support of Advancing Diversity

Article excerpt

While student and faculty populations have become more diverse at public and private higher education institutions over the past three decades the legal environment remains mixed as it pertains to the willingness courts to advance diversity and combat discrimination.

Some experts, such as University of Iowa law professor Angela Onwuachi-Willig, say it's become more difficult to successfully pursue discrimination cases through the judicial system.

"In general, courts are not receptive to discrimination claims, whether in the education realm or not," Onwuachi-Willig says. "They are far less likely to make it past summary judgment or a motion to dismiss."

Much of the evidence of bias is indirect, continues Onwuachi-Willig, not the "smoking gun--the statement or the sign that shows explicit, obvious evidence of discrimination. Circumstantial evidence frameworks were designed to let people prove discrimination."

At the same time, however, Onwuachi-Willig does find courts receptive to racial discrimination claims from White plaintiffs who challenge alleged race-based discrimination. "Reverse discrimination claims are more likely to be successful."

But a landmark case last fall illustrates that not all racial discrimination lawsuits fail in courts. In Maryland, a federal judge found that predominantly White public universities were duplicating some high-demand programs from the state's four HBCUs--Bowie State University, Coppin State University, Morgan State University and the University of Maryland Eastern Shore. One result, the judge held, was a type of "separate but equal" environment that fostered segregation and discouraged White students from attending HBCUs.

The judge ordered mediation that could add programs at the HBCUs and lead to changes at traditionally White ones, saying, "It is also likely that the transfer or merger of select high-demand programs will be necessary."

If the order is implemented, "we [can] expect to see more unique high-demand programs and a more diverse student body at the four HBCUs," says Michael Jones, a Washington, D.C., lawyer who represents the HBCUs. That increased diversity would come not only from Whites; but also from Hispanic, Asian and other non-Black students, all groups with low presentation on HBCU campuses, says Jones.

But Jones cautions that it's too early to know whether mediation will prove successful. If not, both sides will return to court and present "competing remedial proposals" to the judge.

Affirmative action

In terms of affirmative action, the legal landscape responded differently in the 1980s compared to the 1990s and the 2000s. "The 1980s were much more hospitable to affirmative action than the 1990s," says Kevin Johnson, law school dean at the University of California, Davis. He adds that universities could rely on the landmark 1978 Regents of the University of California v. Bakke case for "carefully crafted race-conscious affirmative action programs."

The 1980s was a decade in which affirmative action was generally accepted by university administrators," says Johnson.

Today, most media attention focuses on mega-cases involving race-based admissions policies at high-profile or elite schools, such as the latest battle at the University of Texas at Austin. In Fisher v. University of Texas at Austin, the Fifth Circuit Court of Appeals is weighing the legality of using race in the university's admissions. Last year, the U.S. Supreme Court returned the reverse discrimination case to the appeals court for further consideration, allowing race to be considered in admissions only when "available, workable, race-neutral alternatives do not suffice."

A decision is pending.

Fisher follows other media-heavy, admissions-related cases, such as Grutter v. Bollinger and Gratz v. Bollinger, both involving the University of Michigan, in 2003.

"The Supreme Court has made it pretty clear [that in] higher education and admissions schemes, when it comes to race, there's going to be a window when courts are going to permit some kinds of race-conscious admissions schemes," Johnson says. …

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