This fall, the United States Supreme Court will consider the case of Fisher v. University of Texas, which asks whether that university’s use of affirmative action in admissions passes constitutional muster. I served on the legal team that defended the University of Michigan Law School admissions policy in Grutter v. Bollinger, where the Supreme Court held that fostering a racially diverse student body is a compelling state interest that colleges and universities can pursue in a narrowly tailored way. I believed that the Court correctly decided Grutter when I was helping to litigate the case, but I believe it even more firmly in my newer role as a law school faculty member.
For a number of technical reasons, it seems unlikely that the Supreme Court will treat Fisher as an occasion to revisit Grutter. If the Court does do so, however, then it should let Grutter stand. The reason is simple: The primary reason to leave Grutter alone is that the Court there got it exactly right.
Grutter recognized that having a diverse student body serves a variety of important educational objectives. One of those objectives can be described syllogistically: personal characteristics help determine our experiences; our experiences inform our thoughts and perspectives; therefore, having students with a wide array of personal qualities helps enrich the educational environment by infusing it with a rich variety of ideas and points of view. Of course, a diverse student body serves other educational goals as well, for example, by challenging stereotypes and building cross-cultural understanding. But the heart of the Grutter decision rests on an understanding of the unique value of learning in an environment where we encounter people whose characteristics, experiences, and perspectives differ from our own.
For many years, I have seen the benefits of having a diverse student body in one of the courses I teach — Legal Ethics. This seems unremarkable in light of the fact that the discussion of ethical matters tends to draw out the philosophical, religious, cultural, and experiential differences among the participants. It is therefore unsurprising that I have witnessed many lively exchanges in that class between students who brought dramatically contrasting orientations to the questions at hand.
Perhaps more surprising are the benefits of having a diverse student body in another course I teach — Evidence. In this class, students learn the principles that determine whether a document, object, or witness’s testimony will be admitted at trial for consideration by the jury. Evidence is what law students sometimes call a "rulesy" course and it does not put variations in individual identity, experience, perspective, or conscience on display in the same obvious way as a course on ethics. And, yet, in my evidence class those variations push their way to the surface repeatedly and unexpectedly.
Sometimes this results from an aspect of a student’s background that does not seem particularly significant or self-defining. Consider, for example, an incident that occurred when my evidence class was studying a doctrine that allows non-expert layperson witnesses to testify to their opinions on certain matters. The rules limit such testimony to the sorts of educated guesses we make in everyday life: How far is it from here to there? How fast was the car going? Is that person drunk?
To explore with my students our capacity to make such inferences based on our experiences, I conduct a simple experiment. I produce two unlabeled cups containing soft drinks and ask for a volunteer to take a sip from each and tell us which contains Coke and which Pepsi. Every year, almost all of the students in the class says they can do this; every year, the student who volunteers to try succeeds.
One year, however, my student volunteer did something unexpected. She came to the front of the class, glanced at the cups, and said confidently: "I can tell by the smell." She picked up one cup; sniffed it; and correctly declared that it contained the Pepsi. Her fellow students burst into applause. She explained that she had worked in a restaurant that served both products and that she had acquired this skill so she could help out on those occasions where the waitperson who had poured the beverages lost track of which was which.
This immediately led to an interesting debate: Was this student a layperson offering an educated guess based on her personal experience or an expert offering an informed opinion based on her specialized knowledge? For a variety of reasons, this distinction matters under the rules of evidence. This student had shown — much more clearly and memorably than I could have done by lecturing about it — that under some circumstances the distinction is very fine indeed, and perhaps even vanishes.
In many other instances, a more self-definitive characteristic that a student possesses has ended up shaping their contribution to the classroom discussion in a poignant and powerful way. I recall, for instance, one day when we were working through a problem that involves the hearsay doctrine. In very general terms, that doctrine prohibits witnesses from repeating things in court that were said outside of court. Students often find the doctrine maddeningly complicated.
Part of the doctrine’s complexity arises from the fact that it is subject to dozens of exceptions. This includes exceptions for statements that were made under stress or excitement and for statements that describe an event and were made while or right after the event was occurring. These exceptions rest in part on the assumption that statements made under these circumstances are typically less calculated and therefore more reliable.
We were discussing a scenario — based on an actual case — that presented the question of whether the tape of a phone call to a 911 operator should be admissible. In the tape, a woman who lived in an apartment building reported that several large dogs, owned by one of her neighbors, were attacking another neighbor in the hallway. The caller described the dogs, the people who owned them and were trying unsuccessfully to restrain them, and the location and severity of the attack. During the entire call, the woman remained in her apartment with the door closed.
I had taught this scenario for many years and the discussion consistently played out along the same lines. The students would recognize that the tape presented a hearsay problem. They would identify the exceptions discussed above as potentially applicable. And then they would spot a difficulty in applying those exceptions: because the woman listened to the commotion through her door and never left her apartment, she arguably did not have personal knowledge about the matters she was describing. This is how the discussion always had gone; this is how it always had ended.
On this occasion, however, a student raised his hand just as we were about to move on. “I’m sorry,” he said, “but I disagree with the conclusion. You’ve all wrongly assumed that you need to see something to have personal knowledge about it. This woman knew what her neighbor’s dogs sounded like. She could hear that they were attacking someone. She could recognize her neighbors’ voices. She could tell where the sounds were coming from. Granted, she didn’t see anything. But she certainly had personal knowledge of what was happening.”
The class sat in stunned silence. Of course, this student was right. He also happened — not incidentally — to be blind.
When the Supreme Court decided Grutter in 2003, race mattered. It shaped experience in myriad and unique ways. It informed perspectives, ideas, and opinions. It still does.
As a practicing lawyer, I have argued that institutions of higher education have a compelling interest to admit a diverse student body based upon legal principles and social science. As a faculty member, I now make the same argument based upon my experience. Indeed, I have come to believe that Grutter is wise and right in ways that I did not even understand when I was busy working on it.
I have seen the evidence.
Len Niehoff is professor from practice at the University of Michigan Law School and is chair of the higher education practice at Honigman, Miller, Schwartz & Cohn. The ideas expressed here are his own.
James H. Ammons announced Wednesday that he will resign as president of Florida A&M University in October. His letter did not detail intense criticism he has faced since last year's hazing death of a student. Since then, there have been numerous reports suggesting that the university did not act aggressively to prevent hazing in the marching band that has been linked to the hazing death and widespread hazing. The Florida A&M board has voted no confidence in Ammons, and state officials have also raised questions about financial and management problems unrelated to the hazing death.
Diversity is a core value of Guilford College, where I serve as president. It challenges us to welcome a variety of persons and perspectives.
Much talk of diversity is about race, ethnicity, nationality, gender or sexual orientation. But what about diversity of perspectives and how we treat that kind of diversity? Every college and university has Democrats and Republicans, environmentalists and developers, occupiers and capitalists, vegetarians and carnivores, and fans of Fox News and NPR. Diversity is a matter of listening to all sides with deference and a mind that is open to new ideas.
Don’t misunderstand me. There are still rights and wrongs and self-evident truths: Hate speech is evil, evolution happened, the earth circles the sun, and the Red Sox are the best team in baseball. Apart from those absolutes, isn’t being a sanctuary for unfettered dialogue the essence of a college education?
It is in theory but not always in practice, including here. Many believe that Guilford is a left-wing echo chamber where it is easier to be accepted if you are a social activist who abhors capitalism, sports and the American flag. Many believe this – fairly or not – of many colleges and universities. It’s not wrong to hold those views, but it is wrong to think that only those views are proper or that Guilford is really that much of a one-party state. It’s also perplexing given how much my colleges’s Quaker founders risked in promoting peace and tolerance.
When I came to Guilford in 2002, I heard about a short-lived tradition of the men’s soccer team to rise before dawn on February 6 and chalk the campus to commemorate Ronald Reagan’s birthday. They did it, one claimed, to annoy the hippies. Or consider this: Why must we take precautions against disruptions when we invite Tony Blair or Ralph Reed to speak but not Bill Clinton?
A parent walked out on me because he claimed that his daughter was not sent here to have her hard-core socialism questioned or even discussed. Yet having your beliefs challenged might change them or just make them stronger. President Kennedy reminded us that, "Tolerance implies no lack of commitment to one’s own beliefs. Rather it condemns the oppression or persecution of others."
Other institutions wrongheadedly embrace the other extreme. State legislatures and boards of trustees threaten loss of tenure or expulsion for being gay, opposing war, promoting choice, protesting economic inequality or questioning authority. Right-wing academics hallucinate that smart liberal kids become coddled academics or social workers and smart conservatives go into business and make money. They miss opportunities like the majestic generosity of Guilford students increasing their own activity fees to provide financial aid for the neediest among them.
When I was growing up, my family perpetually argued. Both of my parents believed that FDR was a covert communist. Their Disneyland was small government and low taxes. Then, I journeyed from being a right-wing Republican to an independent who is an economic conservative and social liberal. At Syracuse University, I joined a March on Washington against the Vietnam War. Of course, I still had enough Republican DNA that I did not hitchhike to D.C. or sleep in a church with my friends. I flew first-class and bedded at something like the Ritz Carlton.
The advice I give students, and that I hope faculty members at all colleges will join me in promoting, goes something like this:
Think it possible you might be mistaken. To paraphrase Churchill, truth is like an elusive butterfly — gleaming, fluttering, settling for an instant with wings fully spread to the sun, then vanishing in the shades of the forest. What you believe depends on the slanting glimpses you had of the color of its wings.
Avoid groupthink where everyone shares the same beliefs or think they do. Faculty, staff and even students in trendy, self-validating clusters tend to delude themselves that the people around them are roughly representative of the general society. This assumption is tough to overcome because it is so soothing.
Dump the stereotypes. Dave Barry and others ask if we really believe all red state residents are dumb, racist, xenophobic, homophobic, NASCAR-obsessed, gun-fondling, Bible-bullying, redneck, sweatshop tycoons who claim government doesn’t work, and then get elected and prove it; or that all blue-state residents are godless, unpatriotic, ear-pierced, Volvo-driving, latte-sucking, tofu-chomping, tax- crazed bleeding-hearts who presume people shouldn’t have to work and beg our enemies, "Please don’t hurt me."
Seek out people with different beliefs. People want to be around others who think and act like themselves. Imagine what a cataract of horrors it would be for some Harvard University professors to be on the same faculty with a member of the Tea Party. But beyond that difficulty lies an opportunity for understanding and compromise. Imagine if the politicians in Washington could collaborate to get something done rather than demonize each other, spew half-truths, and bankrupt us all.
Like Mark Twain, “Sometimes I wonder whether the world is being run by smart people who are putting us on, or by imbeciles who really mean it.”
Protect the rights of others to be different. Conformity imprisons liberty. Don’t be a hostage to prejudice or a bystander to intolerance. Get in the way. Remember what Voltaire said about dissent: "I do not agree with what you say, but I’ll defend to the death your right to say it."
Kent John Chabotar is president of Guilford College. This column is adapted from his remarks at this year's Guilford commencement.
In March, hundreds of students at Central Connecticut State University held a rally to back Alexandra Pennell, a student who told the crowd that she had been receiving notes in her dormitory room attacking her for being a lesbian. Now Pennell has been expelled from the university and faces numerous criminal charges that she faked the notes, The Hartford Courant reported. Police who were investigating Pennell's allegations installed (with her knowledge) a camera to try to identify who was leaving the notes. Twice the camera was turned off, and during one of those times, a note arrived. Authorities then installed another camera in a hall closet and recorded Pennell leaving the notes herself. Her lawyer declined to comment.
The board of Saint Paul's College, a historically black institution in Virginia that was stripped of accreditation last week by the Southern Association of Colleges and Schools, announced Monday that it is considering a range of options. The board formally announced that it is appealing the SACS decision. But Saint Paul's is also considering these options: seeking accreditation from another agency recognized by the U.S. Department of Education, forming new partnerships or a merger.
Minority college students who major in the STEM fields – science, technology, engineering and math – earn 25 percent more than do minority students who study humanities or education, according to a study in the new issue of Research in Higher Education (abstract available here). Further, those minority students who ended up in jobs related to their STEM degrees earned at least 50 percent more than fellow students who majored in the humanities or education. The students in the study were not a random sample, but more than 1,000 Asian and Pacific Islander, Latino and black students who were scholarship applicants for the Gates Millennium Scholars Program.
"The premiums for majoring in STEM fields are huge," said Tatiana Melguizo, lead author of the study and associate professor of education at the University of Southern California. "We need to educate students that if they get a job in a STEM-related occupation, they have an even higher earning premium. Otherwise, students aren’t reaping the economic benefit of all the hard work they went through as undergrads."