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"Some Possible Changes, Critics and Cautions,"

by john powell March/April 2008 issue of Poverty & Race

The effort of Julius Chambers, Dean Jack Boger and William Tobin should be applauded. They are looking for a creative way to change the trajectory that has pointed toward both restricting diversity in higher education and increased racial isolation in K-12. Their effort should be engaged and experimented with on several fronts. I would like to use this response to suggest some possible changes, critics and cautions. There is some conflating of ideas in the article that is not useful. The article talks about diversity, integration and inclusion interchangeably. These concepts have related but important differences at a conceptual level and a pedagogical level. The article too quickly acquiesces to the most narrow view of where the country is and where it is going on issues of racial inclusion and integration. For example, their concept of diversity capital attempts to be race-neutral both in word and content in order to shield it from attacks by the Court and other detractors. As far as the Court is concerned, their effort is to adopt a plan that will not be subject to strict scrutiny. There are a number of problems with this approach, as the Court made clear in Bakke and reaffirmed with greater clarity and strength in Grutter: Using race can pass constitutional muster under strict scrutiny, acceptable under Grutter.

It is not clear than why there should be an effort to avoid race. In Parents Involved..., Justice Kennedy in his controlling opinion was clear that there is a compelling government interest in addressing racial isolation. In supporting these race-conscious approaches, Kennedy noted that in many efforts where racial goals are the aim, that does not automatically trigger strict scrutiny. He went on to say that, when not using the individual race of the student, “Executive and legislative branches…should be permitted to employ them with candor and with confidence that a constitutional violation does not occur whenever a decisionmaker considers the impact a given approach might have on students of different races.”
In their effort to come up with a safe alternative, the authors concede too much too quickly. Of course, they could be right as to where the Court and the country are headed, but it is not clear. Remember that democratically-elected school boards in Seattle and Louisville opted for integration.

Diversity is important, but it does not do the same work as integration. The authors will need to be clear about when the goal is diversity and when it is integration or inclusion. The authors at times refer to the importance of democracy, as Justice O’Connor did in Grutter and Chief Justice Warren did in Brown. I would like to see some version of what they are suggesting more closely tied to democracy and the role of colleges. This does not detract from the importance of diversity, but, again, it is a related but different valence. Finally, the role of the university in its relationship to the general public is not just individualistic. When the authors speak of doing something from the bottom up, tied to the mission of universities, I expected something about the public good and the community to show up in their work.

The country is both very conflicted and at times confused about the role of race and the importance of concepts like diversity, inclusion and integration. I believe it would help to clarify the use of these concepts, tying them to both our vision of our democracy and the mission of the university. Their admissions policies should be informed by their respective missions. The country may continue to retreat on the commitment to racial integration and inclusion. Four members of the Supreme Court clearly would restrict not only the use of race but also its consideration. However, there also are four members of the Court who would not only embrace the use of race but also tie it strongly to the value of inclusion and our democratic ideals. Justice Kennedy embraces aspects of both the more narrow plurality and the more expansive dissent, and there is reason to believe he is transition. There is also reason to believe that as a society we are in transition. How these important alternatives that the authors suggest are put forth, debated and hopefully adopted will have implications not just for the schools and the students but also which way the Court and the country are likely to break. The idea of creating incentives to support diversity, and, by suggestion, democracy, should be explored. I welcome the conversation started by the authors.

john powell , a PRRAC Board member, directs the Haas Institute for a Fair and Inclusive Society at the Univ. of California-Berkeley.

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