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Reflections on the Values of Affirmative Action California Law Review VOL. 87 DECEMBER1999 No. 6 Copyright © 1999 by California Law Review, Inc. Pushing Things up to Their First Principles: Reflections on the Values of Affirmative Action Mark R. Killenbeckt TABLE OF CONTENTS Introduction .............................................................................................1302 I. Higher Education and Equality: Adversaries or Allies? ......... ........ 1308 A. Jeffersonian Ideals, Judicial Realities. ................. 1309 B. Diversity and Excellence: The Theories ................................... 1317 C. Diversity and Excellence: The Evidence ................................. 1323 II. Affirmative Action: Origins and Transformations ......................... 1335 A. Initial Questions: Definitions and Perceptions ......................... 1336 B. Origins and Evolution: From Procedural Guideline to Substantive Entitlement ....................................... 1340 C. Affirmative Action and Higher Education: From Process to Outcome in the Halls of Academe ................. 1344 III. From Principle to Practice: Affirmative Action and Higher Education in the Courts ................................................. 1348 A. Setting the Stage: Bakke and the Diversity R ationale .................................................................................... 1350 B. Exit, Stage Right? Hopwood and the Assault on D iversity ............................................................................... 1361 C. Enter Stage Left? Hopwood and the Future ............................... 1368 Copyright © 1999 California Law Review, Inc. t Wylie H. Davis Professor of Law, University of Arkansas School of Law. I owe an immense debt of gratitude to my wife, Ann, with whom I have discussed these matters at length. Her study of the educational impact of a diverse learning environment on first-year law students, which she is currently completing as a Ph.D. student at the University of Michigan, will add greatly to our knowledge of many of the important questions I discuss. Indeed, these pages reflect many of the insights she has developed as she completes her dissertation. 1299 1300 CALIFORNIA LAW REVIEW [Vol. 87:1299 IV. From Practice to First Principles: Affirmative Action and the Values of Higher Education ................................................ 1373 A. One Factor Among M any .......................................................... 1374 B. Higher Education and Society: Accounting for Inequities and Recognizing Potential ................................... 1377 C. W hat Is at Stake? ........................................ ............................... 1379 D. First Principles ........................................................................... 1382 1. Honesty ............................................................................... 1384 2. Openness ............................................................................. 1388 3. Reasoned and Sound Policies ............................................. 1391 4. Comprehensive Solutions ................................................... 1397 5. Steadfast Adherence to Principles ....................................... 1400 6. Patience ............................................................................... 1403 Conclusion .............................................................................................. 1405 1999] VALUES OF AFFIRMATIVE ACTION 1301 Pushing Things up to Their First Principles: Reflections on the Values of Affirmative Action Mark R. Killenbeck In this Article, Professor Killenbeck examines the constitutionality of college and university affirmative action admissionsprograms that seek to foster and preserve a diverse learning environment.As part of this process, he explores the major assumptions informing the higher education com- munity's belief in the need for, and value of, diversity. He discusses what the concept of affirmative action has come to mean in our society, tracing how a system originally conceived of as a mandatefor proceduralfairness has been transformed into the functional equivalent of a system of sub- stantive entitlements. He then argues that certain types of affirmative actions are constitutionally permissible given the Supreme Court's recog- nition that schools may employ affirmative measures, in particular,those that are race-conscious, when they reflect the pursuit and appropriate attainmentof a compelling educationalinterest. ProfessorKillenbeck takes issue with the Fifth Circuit'sanalysis in Hopwood v. Texas but not for the usual reasons. The Article does not argue that the court's treatment of Justice Powell's diversity rationale in Regents of the University of California v. Bakke is flawed because, for example, it assumed inappropriatelythat Bakke is bad law, or because it was simply hostile to policies and procedures that merit its support. Rather, it maintains that the panelfailed to understandprecisely what the other members of the Court said in Bakke, and why they said it. That is, it failed to see that the departuresfrom Justice Powell's approach came not in the other Justices' assessment of whether diversity is a compelling inter- est, but in their treatment of the second strict scrutiny inquiry, the extent to which the Davis program was narrowly tailored.Accordingly, Professor Killenbeck offers an argument for the continued validity of diversity as a compelling interest in postsecondary education, at least for the important educational purpose of fashioning a diverse student body. Recognizing, however, that theory and practice have often diverged, he stresses that decisions such as Hopwood represent understandableexpressions of judi- cial skepticism about affirmative measures that had sacrificed sound edu- cational practices in favor of other, constitutionally indefensible objectives. ProfessorKillenbeck makes a case for the soundness of Justice 1302 CALIFORNIA LAW REVIEW [Vol. 87:1299 Powell's approach,tied to educationaltheory and practice,and postulates six fundamental values as essential elements in the development and implementation of academicallyand constitutionally sound programs. INTRODUCTION What is it that makes a university great? Traditionally, we have assumed that only institutions that pursued and espoused excellence, com- munities of scholars that were unstinting in their dedication to hiring, admitting, and attaining the very best, were worthy of that descriptor. Those universities exemplified "meritocratic values," and were places where factors such as "class background, religion, and ethnicity" were irrelevant.' Indeed, consistent with the basic values of a People whose Declaration of Independence proclaimed that "all men are created equal," and whose Constitution decreed that no individual is to be denied "the equal protection of the laws," the truly great American colleges and uni- versities were valued precisely because they "couple[d] individual advancement with ability and effort."2 What then are we to make of the quest for diversity and of its neces- sary accouterment, "affirmative actions," which seem to require a different definition of excellence? Are such initiatives consistent with the notion that education "should be based on principle, formed upon rule, [and] directed to the highest ends"?3 Indeed, can we square the quest for excellence with a belief that we should consider group characteristics-most often race, ethnicity, and gender-when making fundamental decisions about the nature and character of an institution, frequently in ways that appear to make group identity the only thing that really matters? The traditional arguments for diversity in higher education assume these questions should be answered in the affirmative. Proponents believe, often fervently, that group identity matters. Indeed, they insist that these characteristics matter a great deal when truly great universities decide who shall study within them. And they at least assume, and often overtly declare, that traditional understandings of academic merit, with their emphasis on grades and scores on standardized tests, are inappropriate, if not overtly discriminatory.4 For these individuals, race, ethnicity, gender, 1. CHRISTOPHER JENCKS & DAVID RIESMAN, THE ACADEMIC REVOLUTION 18-19 (The University of Chicago Press 1977) (1968). 2. LOGAN WILSON, SHAPING AMERICAN HIGHER EDUCATION 165 (1972). 3. John Henry Cardinal Newman, Rise and Progress of Universities, in II ESSAYS AND SKETCHES 273, 287 (Charles Frederick Harrold ed., 1948). 4. See, e.g., Derrick Bell, Xerces and the Affinnative Action Mystique, 57 GEO. WASH. L. REV. 1595, 1605 (1989) ("[T]he qualifications [universities] insist on are precisely the credentials and skills that have been long denied to people of color."). I discuss and criticize the manner in which many critics of traditional measures of merit make their case, and fail to pose an appropriate solution. See infra text accompanying notes 483-92. 1999] VALUES OF AFFIRMATIVE ACTION 1303 and socioeconomic status are not simply "relevant" attributes. They are essential considerations in a decision-making process that determines who shall be admitted to this nation's elite institutions.' Indeed, in an eloquent paean in support of race-conscious admissions, three University of Texas School of Law faculty members predicted that a national extension of the rule articulated in Hopwood v. Texas,6 which banned race-conscious admissions, would mean that "there will eventually be no great public universities."7 In his classic discourses
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