April 16, 2014: Diversity as a Compelling Interest

Good afternoon!

Thank you all for being here today – and thanks especially to everyone here who makes special contributions to advancing the campus by promoting our commitment to inclusive excellence.

Some of you know that I am a constitutional scholar.  The title of my talk, “a compelling interest,” refers to a term of art in constitutional law that describes an extremely high level of justification in favor of a government (or institutional) action.  

I want to talk about our commitment to diversity as a “compelling interest” of our institution – why we should consider it a compelling interest and what it means in terms of our practices if we accept that it is a compelling interest.

To set the stage let me take some time to provide some background.  Over the years the United States Supreme Court has said a number of things about whether the promotion of diversity is a compelling interest for an institution of higher education.

Let’s start with Justice Lewis Powell’s opinion in the case Regents of the University of California v. Bakke (1978).

At issue in Bakke:  Could the UC Davis School of Medicine use a “quota system” for admissions, for example, setting aside 16 out of 100 seats for minority students?  The case fractured the Court (and the overall issue of affirmative action has gotten no less divisive over the subsequent 36 years); the 9 justices issued a total of 6 opinions. 

The four more liberal members of that court – William Brennan, Byron White, Thurgood Marshall, and Harry Blackmun – asserted that race may be taken into account when it acts not to demean or insult any racial group but to remedy disadvantages based on past racial prejudice; in other words, because affirmative action was motivated by “benign” and not hostile intentions it should be treated differently than traditional race based discrimination.  The four more conservatives justices – John Paul Stevens, William Rehnquist, Potter Stewart, and Chief Justice Warren Burger— avoided the constitutional issues and voted to strike down the program on statutory grounds, but asserted that the Constitution required public institutions to be “colorblind” in such decision making. 

Justice Powell, writing just for himself, held that affirmative action programs in general were allowed as long as diversity was considered one factor among many other factors in admissions and that everyone had a chance to compete against each other.  “Quota” systems that reserved a set number of seats were not permissible.

In justifying his decision to allow some affirmative action programs Powell declared that the promotion of diversity in settings of higher education was a “compelling interest.”  Why?  Here’s what he wrote:

“The atmosphere of ‘speculation, experiment and creation’ – so essential to the quality of higher education – is widely believed to be promoted by a diverse student body.  … [I]t is not too much to say that the ‘nation’s future depends upon leaders trained through wide exposure’ to the ideas and mores of students as diverse as this Nation of many peoples.”  When a public research university asserts this interest it is “seeking to achieve a goal that is of paramount importance in the fulfillment of its mission.” 

In elaborating this idea Powell added a footnote, citing the president of Princeton University, William G. Bowen, who had previously expressed the view that a great deal of learning “occurs through interactions among students of both sexes; of different races, religions, and backgrounds; who come from cities and rural areas, from various states and countries; who have a wide variety of interests, talents, and perspectives; and who are able, directly or indirectly, to learn from their differences and to stimulate one another to reexamine even their most deeply held assumptions about themselves and their world.  As a wise graduate of ours observed in commenting on this aspect of the educational process, ‘People do not learn very much when they are surrounded by the likes of themselves.’” 

So, Powell emphasized two justifications:  (1) the educational/research benefits of creating a diverse community of inquiry and (2) the nation’s future depends on training leaders who have had wide exposure to the ideas and mores of a diverse nation. 

Other justifications are imaginable.  Justice Thurgood Marshall, a giant in the Civil Rights movement, recounted at length the history of discrimination against African-Americans, concluding that “I do not believe that anyone can truly look into America’s past and still find that a remedy for the effects of that past is impermissible.” 

However, no majority on the U.S. Supreme Court has ever concluded that remedying the effects of past discrimination is a legitimate justification for taking pro-active steps to promote more diversity in higher education.  The emphasis has always been on the relationship between diversity and the educational/research mission of our institutions.

Twenty-five years after Bakke the Supreme Court had an opportunity to further reflect on this question in Grutter v. Bollinger (2003), which upheld a race-conscious admissions process at the University of Michigan Law School that may favor “underrepresented minority groups” but that also took into account many other factors evaluated on an individual basis for every applicant; that is, it was a “holistic review with diversity as a plus factor” model rather than a quota system.

Justice Sandra Day O’Connor wrote for a 5-person majority in a decision joined by Stevens, David Souter, Ruth Bader Ginsburg, and Stephen Breyer; Chief Justice Rehnquist, joined by Anthony Kennedy, Antonin Scalia, and Clarence Thomas, dissented, arguing that the university’s “plus” system was a thinly veiled and unconstitutional quota system.

In explaining why this system was constitutional O’Connor expanded on Powell’s remarks regarding the compelling interest in diversity within higher education:  “Our conclusion that the Law School has a compelling interest in a diverse student body is informed by our view that attaining a diverse student body is at the heart of the Law School’s proper institutional mission…. [The] educational benefits that diversity is designed to produce … are substantial … because ‘classroom discussion is livelier, more spirited, and simply more enlightening and interesting’ when the students have ‘the great possible variety of backgrounds.’  … [N]umerous students show that study body diversity promotes learning outcomes, and ‘better prepares students for an increasingly diverse workforce and society, and better prepares them as professionals.’ …”

She continued:  “These benefits are not theoretical but real, as major American businesses have made clear that the skills needed in today’s increasingly global marketplace can only be developed through exposure to widely diverse people, cultures, ideas, and viewpoints…. What is more, high-ranking retired officers and civilian leaders of the United States military assert that, ‘[b]ased on [their] decades of experience,’ a ‘highly qualified, racially diverse offer corps … is essential to the military’s ability to fulfill its principle mission to provide national security.’ … Effective participation by members of all racial and ethnic groups in the civic life of our Nation is essential if the dream of one Nation, indivisible, is to be realized. … In order to cultivate a set of leaders with legitimacy in the eyes of the citizenry, it is necessary that the path to leadership be visibly open to talented and qualified individuals of every race and ethnicity.  All members of our heterogenous society must have confidence in the openness and integrity of the educational institutions that provide this training.”

Note that there is a slightly new twist here to the justification for promoting diversity:  “Effective participation by members of all racial and ethnic groups in the civic life of our Nation is essential if the dream of one Nation, indivisible, is to be realized.”  On this view higher education is thus considered the avenue for effective participation of all members of our diverse society.

O’Connor then went on to hold that race-conscious admissions programs cannot use a quota system that insulates each category of applicants from competition with all other applicants; instead, universities may consider race or ethnicity as a “plus” factor, and must consider all pertinent elements of diversity in light of the particular qualifications of each applicant.  The rule:  universities must engage in “highly individualized, holistic reviews of each applicant’s file, giving serious consideration to all the ways an applicant might contribute to a diverse educational environment.”

 Grutter was the first case in which serious doubts were expressed about whether diversity should be considered a compelling interest within higher education, with the strongest arguments against that view coming from Justice Thomas, who replaced Thurgood Marshall on the Court.  Speaking for the four conservatives, Thomas expressed doubts about “the educational benefits of a diverse student body,” saying that the record suggests that “the educational benefits [the Law School] alleges are not significant or do not exist at all…. The majority’s broad deference to both the Law School’s judgment that racial aesthetics leads to educational benefits and its stubborn refusal to alter the status quo in admissions finds no basis in the Constitution or decisions of this Court.” 

Let me quickly mention last year’s case, Fisher v. University of Texas at Austin (2013), where Justice Kennedy reiterated that obtaining the educational benefits of “student body diversity is a compelling state interests that can justify the use of race in university admissions” but warned that race may not be considered unless it could be demonstrated that no race-neutral mechanisms would achieve the same goals.  

So, while many of the arguments around this issue remain quite flammable, it is still the case that, over a 35 year period, a Supreme Court made up mostly of Republican appointees has repeatedly said that universities have a compelling interest to create diverse communities of inquiry. 

Creating such a community should be considered an essential precondition for thoughtful deliberation amidst a robust exchange of ideas.

After all, when deliberation occurs only among the like-minded, or among people with similar backgrounds, there are increased risks of mistakes in assessment or decision making: the pressures of conformity are higher; the crust of conventional thinking is stronger; the range of considered options is more narrow; creative perspectives are made less likely—to put it simply, in the absence of diversity, we are more likely to get things wrong.  

Thus, by ensuring the access and inclusion of people of all backgrounds and life experiences, we uphold UCI’s fundamental scholarly and research mission.  (For more on this point I recommend Scott E. Page’s The Difference:  How the Power of Diversity Creates Better Groups, Firms, Schools and Societies [Princeton UP, 2007] as well as Samuel Sommers’ research on the observable cognitive effects of group decision making in the context of diversity.)

I also believe that we have an obligation, as a public land grant university, to recruit and graduate a sufficiently wide range of talented individuals to make meaningful our shared commitment to a true opportunity society.  It is what is expected from universities in a democracy.  The paths to success must be open to everyone.

We also know that both our democracy and our developing workforce increasingly face the challenge of how we can work together across divisions of nationality, culture, race, ethnicity, religion, gender, sexual identity, and other qualities and features that have divided us and fostered prejudice, intolerance, and even just misunderstanding.  In my judgment we have a special obligation to model how a diverse group of people can work together and achieve at the highest levels. 

And so: in my judgment, we have a compelling interest to promote diversity within our community.  This means that we should be taking every step, consistent with the law, to make progress on this strategic commitment.

But “consistent with the law” is a large qualifier, especially in California, after the passage of Proposition 209 in 1996.

As you know, Prop 209 was an amendment to the California Constitution which prohibits state or local governments in California from discriminating against or granting preferences to any individual or group based on race, sex, ethnicity, national origin, or color in the areas of public education, public employment, or public contracting.

In 2000 the California Supreme Court expounded on the meaning of Prop 209 in the case Hi-Voltage Wire Works v. City of San Jose.  In the course of striking down a public contracting program that required general contractors submitting bids on city jobs to engage in certain minority outreach programs the majority said, “The people of California meant to do something more than simply restate existing law when they adopted Proposition 209…. Voters intended to reinstitute the [original] interpretation of the Civil Rights Act and equal protection …, an interpretation reflecting the philosophy that ‘[h]owever it is rationalized, a preference to any group constitutes inherent inequality.” 

By rejecting bids from contractors who failed to engage in the required outreach “the City discriminates on the basis of race and sex…. The City’s assertion that its outreach requirement merely ‘expands the applicant pool’ is both misleading and irrelevant.  To the extent it automatically eliminates bids that fail to document outreach … it reduces the number of otherwise qualified bids it considers responsive.  Even if it did accomplish its purported goal, a benign motivation cannot sanction a requirement that conflicts with the proscription against discrimination and preferential treatment on the basis of race and sex.”

Where does that leave us?  We can say that the promotion of diversity – including racial or ethnic diversity – is a compelling interest, but 209 prohibits us from giving any preferential treatment to an applicant based on that person’s race or ethnicity. 

No one should underestimate the impact of the restrictions of Proposition 209 – and those restrictions remain a matter of deep division.  Even Democrats in the state legislature are weary of reopening this issue.  While I strongly disagree with the prohibition against taking race and ethnicity into account as part of a holistic assessment of what a person has to offer our community, as a constitutional scholar I also believe that we are obligated to accept the constitutional decisions of our fellow citizens until such time as their views change or their decisions are struck down.  The latter is being considered by the U.S. Supreme Court in a case reviewing a similar initiative in Michigan, but I do not expect a majority of this court to conclude that initiatives banning race-conscious admissions and hiring decisions violate the federal Constitution.  

And so we have a serious challenge.  But because the promotion of diversity is a compelling interest for our institution we have to take every step possible, consistent with the law, to make ongoing progress toward the creation of a community of true inclusive excellence. 

We have, in many respects, a tremendous organization structure on campus.  We say the right things in our strategic plans; we have amazing professionals in the Office of Equal Opportunity and Diversity; we have an outstanding Advance Program for Equity and Diversity, with great leadership and an exemplary cadre of equity advisors; we have a tremendous DECADE program; we have a talented and dedicated Advisory Council on Campus Climate, Culture, and Inclusion.  We should also be proud that UCI is #1 within the University of California in graduation rates for underrepresented students and low income (Pell eligible) students.

Still, there is more we can and should to in order to make actual progress in the recruitment of a diverse student body, in the hiring of underrepresented minority faculty members and women faculty in fields where women have been historically disadvantaged, and in ensuring that the make-up of our staff reflects inclusive excellence. 

This has been a systematic area of focus for us this year.

For example, at the end of the summer I asked Doug Haynes, Associate Vice Provost for Equity and Diversity, to share school-based data with the deans, and we had focused discussions at my regular deans meetings about ensuring that our search processes reflected best practices for developing a diverse group of talented applicants.

In September I distributed to the entire faculty a memo reiterating our commitment to inclusive excellence and sharing important resources and best practices in faculty hiring. This will be a yearly note from me to the community at the beginning of our hiring season.

In November I issued New Guidelines for Diversity in the Review Process to ensure that efforts to advance diversity are appropriately evaluated and rewarded, including the activities of DECADE mentors.

We funded the ADVANCE Dependent Care Travel Program to subsidize childcare costs for eligible faculty to attend research meetings and professional conferences.

We supported faculty participation in the ACE Spectrum Executive Leadership Program and the Executive Leadership Academy, part of the American Association of Hispanics in Higher Education and Center for Studies in Higher Education at UC Berkeley.

We worked to secure the Clare Boothe Luce Award to UCI School of Physical Sciences, which resulted in $500,000 to recruit and retain highly accomplished early career women scientist.

In the High Impact Hiring Plan Program I challenged the faculty to further our commitment to scholarly inquiry on issues of inclusion and equity, with special consideration given to proposals that advance goals of DECADE.  The program also provides for up to two designate FTE for scholars whose work focuses of diversity and inclusion, and I have asked the ADVANCE Program Advising Committee to advise me on all proposals.

We expanded support for PhD programs that were competing to attract the most highly sought after students in the world, many of whom would contribute diversity to our community.

We increased the number of UCI Chancellor's ADVANCE Postdoctoral Fellows.

As a result of a system-wide ADVANCE event last Fall I have asked various groups – the deans, the members of my cabinet, the Academic Senate – to review whether we should ask all applicants for faculty positions to include a statement about contributions to diversity in the materials they submit, and I expect that, before the end of the academic year, we will initiate this starting next year.

We are considering expanding the requirements for training on implicit bias for all members of search committees.

We have also been working with the Office of the President to make sure that we are not being too risk averse with respect to our systemwide interpretation of Prop 209.

There is still a lot more for us to do, but as a result of our focused efforts this year we are already seeing some good preliminary signs.  Our incoming freshman class for Fall 2014 had the highest percentage growth among UC campuses for African American and Chicano-Latino in-state applicants.  As of a few days ago, 28% of the faculty who have accepted our offers of employment are underrepresented minorities, including five new African American faculty – an unprecedented accomplishment in relation to our recent history. We have made big gains in recruiting women to science disciplines where they have been traditionally underrepresented.

Prop 209 is the law and we will respect it.  But we should not succumb to the view that Prop 209 prevents us from continuing our efforts to create a community of inclusive excellence.  Prop 209 takes away some tools, but it does not require us to abandon the view – reiterated over many decades – that the promotion of diversity within higher education is a compelling interest.