Legal Experts See Need for Published Data Showing Diversity Deficits in Higher Education

In summer 2003, U.S. Supreme Court rulings upheld a public university's policies to increase student body diversity in its law school but ruled against other diversity-related policies in its undergraduate admissions. The court's decisions involving the University of Michigan were welcomed as a victory for diversity, but nuances in the rulings created a legal minefield for institutions of higher education and some institutions changed or abandoned their diversity programs out of fear of lawsuits.


Daryl Chubin and Jamie Lewis Keith

Legally defensible options exist, however, to promote diversity in classrooms. A legal expert told a AAAS audience some strategies in designing programs that are both legally defensible and effective in increasing diversity among students.

"It is very easy to focus on what cannot be done," said Jamie Lewis Keith, vice president and general counsel at the University of Florida. "However, if the nation needs higher education to make progress, it is essential for college and university legal counsels to have a sophisticated understanding of—and orientation toward—what can be done."

Lewis Keith gave a 8 May keynote talk at the AAAS-organized conference, "Understanding Interventions that Broaden Participation in Research Careers." In its third year, the annual conference examines data-based strategies and programs that increase minorities in science-related careers.

More than 250 faculty members, college and university administrators and graduate students attended the 7-9 May meeting at the Marriott Bethesda North Hotel and Conference Center in Bethesda, Md. Funding for the conference came from a subcontract awarded to the AAAS Center for Advancing Science & Engineering Capacity. The AAAS Center received the subcontract from the American Society for Cell Biology, who received the original grant from the National Institutes of General Medical Sciences' Minority Access to Research Careers program.

Lewis Keith said that colleges and universities seeking to broaden diversity in their student body and faculty face a complicated, barrier-laden, and hostile legal environment. To overcome these obstacles, policy and legal experts at colleges and universities must employ "strategies that are both effective in the real world and legally sustainable," she said.

In the aftermath of the 2003 University of Michigan lawsuits, AAAS has helped lead to assist college and university administrators who want to create strategies to improve diversity in science and engineering. With funding from the Alfred P. Sloan Foundation, AAAS and the National Action Council for Minorities in Engineering collaborated with legal experts to publish Standing Our Ground: A Guidebook for STEM Educators in the Post-Michigan Era in 2004. The guide contains eight "design principles" for increasing the participation of minorities in science and engineering.

"In the five years since the publication of Standing Our Ground, AAAS has become a source of strategy and collective intelligence about how to maintain and increase interventions that bridge science and engineering students and faculty to professional success," said guide co-author Daryl Chubin, director of the AAAS Center for Advancing Science & Engineering Capacity and co-chair of the conference planning committee.

By designing diversity programs within a legal context, universities can proactively protect the programs from becoming "dismantled and opened up so they lose their impact," Chubin said. He said the guidelines apply to science, technology as well as other fields of study.

Now more than ever, Lewis Keith argued, academia needs diversity of backgrounds. She cited research showing that diverse classrooms help students learn better. And industry benefits too. "Industry depends on higher education to contribute highly capable, creative, collaborative and diverse scientists and engineers to the technology workforce in order to stay competitive and innovative, to respond to the U.S. and global marketplaces effectively, and to excel," she said.

But minorities earn fewer bachelor degrees or doctorates compared to the slice of the general population that they comprise. Underrepresented minorities, including African Americans, Native Americans and Hispanics, as well as women and people with disabilities, represent two-thirds of the U.S. workforce but hold only a quarter of the science and technology jobs, she said.

Lewis Keith gave the audience an overview of the Supreme Courts' decisions in 2003, which probed how race may be considered in admissions to public institutions. One of the cases involving admission policies to the University of Michigan law school, was a "great victory for higher education," Lewis Keith said. "It affirmed that colleges and universities may take race into account in admissions decisions and that higher education has a First Amendment right to exercise academic judgment in defining its mission and in admitting students," she said. But, she added, race must be among other factors used to assess candidates.

The court's ruling on the other University of Michigan lawsuit addressed undergraduate admissions policies, and "struck down as unconstitutional the mechanical assignment of points for race in evaluating applicants," Lewis Keith said. "These decisions hold that race many not be used in admissions to remedy general society discrimination or to achieve racial balancing."

But there is some hope for institutions of higher education who want to foster diversity while avoiding lawsuits. In the rulings, former Justice Sandra D. O'Connor recognized the importance of higher education in contributing to a well-trained labor pool. The court endorsed broadening diversity to include race, gender, national origin, talent, geographic and socio-economic backgrounds, and it ruled that an institution of higher education can "not only define its educational mission to include education all of its students, but also to include serving the nation's and society's needs and providing access and opportunities to citizens," Lewis Keith said.

To do so, institutions "must demonstrate that it is necessary to use race to achieve a compelling educational interest," she said. Institutions must also show that race will only be used to a certain extent and that using race in admissions criteria does not put non-minorities at an "unduly burdensome" disadvantage.

While the Michigan cases focused on admissions policies, Lewis Keith said that the rules also may shed some light on how equal protection principles may be applied in mentoring and funding programs intended to promote diversity.

The Michigan cases did not address diversity among faculty, though, which is an even greater challenge, Lewis Keith said. Title VII of the Civil Rights Act of 1964 prohibits racial and gender discrimination in employment, but Lewis Keith told the AAAS audience a few ways to legally encourage a diverse faculty body based on guidelines described in Standing Our Ground.

Institutions should use "targeted outreach efforts" when more general outreach methods have been ineffective, she said. Search committees should consider multi-cultural experience and skills as a selection criterion and in faculty job descriptions. And the committees should be "knowledgeable and accountable" for their outreach to minorities, Lewis Keith said.

She advocates flexible selection criteria applied to all job candidates, while "rejecting unnecessarily restrictive notions of qualification." Lewis Keith continued, "we may articulate criteria as flexibly and broadly as possible so that we may be free to analyze individual situations and consider less traditional backgrounds."


Wanda Ward

Wanda Ward, deputy assistant director at the directorate for education and human resources at the National Science Foundation (NSF), was a respondent for the talk, and she said that finding legally defensible options for promoting diversity is a "high priority" for the NSF. She stressed the importance of collecting, analyzing and disseminating diversity-related data.

"The access to quality data is key to developing and sustaining effective programs," she told the audience.

Chubin concluded the lunchtime talk with a plea to the audience. "There have been a lot of references [throughout the conference] to the value of research and data," he said. But, legal experts with whom he often collaborates criticize the lack of published data that illustrate diversity deficits in institutions of higher education. "It's my conviction that there's an enormous research base that hasn't been translated for legal scholars," Chubin said. He encouraged the audience to publish relevant data in non-specialist outlets as a way to disseminate it to the legal community.