The 1997 SPSSI presidential address: affirmative action: a compelling state interest - Society for the Psychological Study of Social Issues President Dalmas Taylor - Transcript

Michelle Wittig's Introduction:

Dr. Dalmas A. Taylor was born and raised in Detroit, Michigan. He received his B.A. in psychology from Western Reserve University in Cleveland, his M.S. in psychology from Howard University in Washington, D.C., and his Ph.D. in psychology from the University of Delaware, and he also has a certificate from the Harvard University Business School. He has been honored by the APA in a number of ways. He received, in 1991, the Distinguished Contribution to Education and Training Award of the Association. In 1992, he received the Distinguished Service Award for Outstanding Contributions to Psychology in the Public Interest.

He has had many years of service to the American Psychological Association, most notably as a member of the Board of Ethnic Minority Affairs, the Policy and Planning Board, the Committee on Employment and Human Resources, and the Committee on the Ethics Code Revision. He also has been a member of APA Council. Maybe some of you don't remember, but he also was the first director of the Minority Fellowship Program, which still exists today.

His service to SPSSI in particular has taken a number of different forms. Way back in the 1970s, he was chairing the Dissertation Award Committee, he served for a number of years on the SPSSI Council, he served on the Public Policy Oversight Committee, and he was APA Program Chair, not once, but twice, in 1979, and again in 1987. Many of you know him also as a Past President of Division 45, the Division on Ethnic Minority Affairs. Some of you may not know that Dr. Taylor and Dr. James Jones formed an ad hoc committee, quite a number of years ago, that made site visits to various departments of psychology in an unofficial capacity. They never said they were from the APA, but they made visits and gave colloquia in an effort to try to cajole people into admitting more racial and ethnic minorities into their programs.

His early research was on self disclosure as well as correlates of authoritarianism and ethnocentrism. Most recently, he has distinguished himself in the areas of the psychology of racism and prejudice.

After working his way up through the ranks in the academic faculty, he became Professor at the University of Maryland in College Park, and then he began moves into administration, and he now serves as Vice President of Academic Affairs at Lincoln University in Pennsylvania. I don't know what the "A" stands for in Dalmas A. Taylor, but James Jones told me, and perhaps we will see at the social hour tonight, some evidence for the acronym D.A.T. or "DAT," which apparently James Jones liked to call him when the two of them were at the APA program on Minority Fellowships. James Jones tells me that it stands for "dance your ass off Taylor." His talk today is entitled "Affirmative Action: A Compelling State Interest."

Dr. Dalmas Taylor:

This was going along quite well until we hit rock bottom. The other day at the SPSSI Council Meeting, Phyllis Katz said that for some reason JSI issues take on a variety of titles before they get published, and I find this equally true for presentations. I'd forgotten what this topic was, as a matter of fact, because it's been through so many changes. I knew that it was going to be generally on affirmative action, because Michelle Wittig and I talked about that last year when she gave a very dramatic and informative presentation on this topic at Ann Arbor, and I told her we needed to keep the initiative and the momentum for affirmative action alive, and agreed that I would do this. Little did I know then that the issue was going to continue to heat up; as it moves beyond any of our reasonable reaches in terms of where this is going. So, I'd like to put my oar in this pond in terms of where I think it needs to go and simultaneously look at where it's been.

I title this "Affirmative Action: A Compelling State Interest" because as the Supreme Court has trimmed the reach of affirmative action, it has developed a code in which it refers to a "strict scrutiny" and essentially places an acid test on affirmative action procedures to determine whether or not they are undertaken in the context of government interest. The recent brouhaha born out of the Hopwood case directly hits at the issue of whether affirmative action represents a compelling state interest, and it will probably not surprise you that my thesis is directed at affirming that proposition.

Affirmative action programs began in the Kennedy-Johnson Administrations with the issuance of Executive Order 10925 by President Kennedy and Executive Order 11246 by President Johnson. These orders created the President's Committee on Equal Employment Opportunity. It has the authority to conduct compliance reviews of federal contractors and to impose sanctions where warranted. Johnson later issued an additional Executive Order 11375, which added sex discrimination as an area to be addressed and extended the coverage of federal contracts to at least $50,000. These Executive Orders were ultimately buttressed by legislative initiatives, namely Title VI of the Civil Rights Act of 1964 and later Title IX of the Education Amendment of 1972. From the time of their adoption to this very day, these programs have been associated with considerable controversy.

The first serious challenge to affirmative action was rendered moot by the time it reached the Supreme Court docket. Marco DeFunis, a rejected candidate at the University of Washington Law School, was ultimately admitted and about to graduate by the time his case reached the Supreme Court. In a brief to that court, however, Archibald Cox argued the merits of diversity based on a Harvard University program, but since DeFunis was already admitted, the case was dismissed (DeFunis v. Odegaard, 1974).

Justice Douglas dissented from the dismissal, arguing that diversity would probably be an acceptable defense against future challenges to affirmative action. Justice Douglas's admonishment to his colleagues was prescient, in that five years later Allan Bakke challenged the medical school's affirmative action program at the University of California at Davis. Although rejected by 10 other schools, Bakke claimed that he was qualified and that he was rejected because of his race (White) (Regents of the University of California v. Bakke, 1978). Bakke and DeFunis, to a lesser extent, were celebrated cases.

As we built the rationale for the APA Minority Fellowship Program, the issues raised by DeFunis, and later Bakke, were benchmarks for our argument with psychology departments. As we sought to increase the number of students and faculty of color in psychology programs, inclusiveness and diversity were core principles in our approach.

Affirmative action, although in its infancy in the 1970s, sustained two major legal challenges that ultimately went to the Supreme Court, and in neither instance was the Court willing to close the door to affirmative action. DeFunis was dismissed as moot, and Bakke was considered a draw by both supporters and critics. In ruling against DeFunis, the Washington State Supreme Court justified its support of the university's affirmative action admissions program on grounds of a compelling state interest. Key among these interests were promoting integration and public education, a racially balanced student body at the law school, and alleviating the shortage of minority attorneys, and consequently minority prosecutors, judges, and public officials. This decision, however, was rendered moot and vacated by the Supreme Court without a discussion of its merits.

In Bakke, the U.S. Supreme Court did conclude that the university's interests were compelling but declared that the admissions program was unconstitutional, because the university had not demonstrated that it was the least burdensome alternative available to it using the strict-scrutiny principle.

It can be instructive for us to look at the Bakke decision in seeking guidance about the Court's directives on affirmative action. In its 5-4 split decision, the Court ordered Bakke's admission and simultaneously declared that race was an acceptable criterion in university admissions where the goal is the achievement of a diverse student body. At the time, many of us viewed the decision as a cop-out. In today's political climate, it seems a well-crafted judicial decision. The complexity, however, of the Court's decision is portrayed in over 150 pages and nine separate opinions.

On June 28, 1978, the Supreme Court rendered the decision in Bakke. The justices were essentially divided into two camps. Four contended that the university's use of racial quotas violated Title VI of the Civil Rights Act of 1964. That was what has come to be known as the "Stevens group." Four held that the use of race as a criterion in admissions decisions in higher education was constitutionally permissible, and those four have come to be known as the "Brennan group."

Lewis Powell, the ninth justice, voted with both camps. In the first instance, he supported the Stevens group by arguing that the rigid use of racial quotas violated Bakke's equal protection. In the second instance, he sided with the Brennan group in arguing that the state had a substantial interest that may be legitimately served by using race as one of the several criteria in higher education admissions. The Solomon-like structure of the Court's decision was responsive to critics of affirmative action in that it rendered null and void procedures determined to be unfair. It simultaneously, however, gave hope to supporters of affirmative action by providing guidance on the issue of race as a criterion under limited conditions.

Justice Powell's arguments are synopsized here, in which he essentially argues again that the state has a substantial interest, and I just offer that quote in order to make the point that he's on the side of the argument that the state has a legitimate interest in pursuing diversity in admissions.

The fourth goal asserted by petitioner is the attainment of a diverse student body. This clearly is a constitutionally permissible [section]312 goal for an institution of higher education. Academic freedom, though not a specifically enumerated constitutional right, long has been viewed as a special concern of the First Amendment. The freedom of a university to make its own judgments as to education includes the selection of its student body. . . . 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. [FN48] As the Court [section]313 noted in Keyisbian, it 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. (Regents of the University of California v. Bakke, 1978)

This analysis alone provides the constitutional justification for contemporary university admissions in affirmative action. Further, a program's procedural flaws, which could be corrected (which was the case in Bakke), do not require elimination of the program or its objectives. Finally, Justice Powell's words were echoed by the Brennan group, arguing that racial classifications call for judicial scrutiny, but nonetheless, the purpose of overcoming substantial chronic minority underrepresentation in the medical profession is a sufficiently important one to justify their use.

The significance of the Bakke decision is that it establishes the foundation and the legal parameters in affirmative action for public and private institutions. And following that decision, the Department of Health, Education, and Welfare, which is now the Department of Health and Human Services, reviewed its guidelines, found them consistent with the Court, but reinterpreted and reissued them for guidance for the colleges and universities.

There are two subsequent state court decisions that are rarely heard about that model the Bakke case that I think are worth our attention. One is McDonald v. Hogness, (1979/1980) in which McDonald, a White male, challenged the University of Washington medical school's admission policy as discriminating against Whites. The second one is DeRonde v. Regents of the University of California (1981). In this latter instance, the plaintiff brought suit against the university after being denied admission to its law school. So, we have a reversal of DeFunis and Bakke in subject matter but, in form, exactly the same.

The specifics in the admissions procedures of these two cases and what is important in looking at those admissions procedures is that they use cognitive skills, namely grade-point average, MADCAT or LSAT scores, and noncognitive variables of things like motivation, maturity, and so forth. Each of the procedures additionally shows how the schools use these, and what is useful about this comparison of these procedures is that while there is no specific mention of race in the criteria used in McDonald, the committee did use race in its instructions to consider extenuating circumstances in rating applicants on the five criteria. In DeRonde, the committee or the procedure explicitly identified ethnic minority status as one of its nine criteria.

I show these cases and their procedures because in both instances the Court cited Justice Powell and his argument in Bakke in arriving at its opinion. The separate consideration of race would be impermissible but allowable when race is one factor in an admissions policy designed to promote a compelling state interest and does not insulate an applicant from competition with remaining applicants, which is the due process issue. That is, without disregard for individual rights, universities have constitutionally protected freedoms to decide who shall be admitted to study, and within that freedom is the right to pursue a diverse student body.

Both of these state court decisions cited additional support for their conclusions from the arguments by the Brennan group in Bakke. These justices believed that admitting students that were disadvantaged by the effects of past discrimination is a compelling state interest. Each believed that using race as a criterion carried a burden to show an important articulated purpose that was reasonably used and that no discrete group was stigmatized.

The decision and the arguments in McDonald and DeRonde embrace two separate issues derived from Bakke in defending affirmative action and provide the best guidelines to date. Both courts adopted the same legal analysis in examining the admissions procedure used to screen applicants for medical school in one instance and law school in the other. Both cited Justice Powell's defense of the attainment of a diverse student body and the Brennan group's support of affirmative action programs designed to compensate for effects of past discrimination. Both rationales were advanced as compelling interests that can justify affirmative action plans.

Justice Powell added a majority to the Brennan group's support of the use of race but stopped short of affirming the use of race in curing the effects of past discrimination. The Powell opinion, therefore, sets a conservative boundary in interpreting Bakke's support of race as a factor in affirmative action plans. Race or ethnic background may be used in a pursuit of diversity as long as it is clearly stated as an a priori policy stipulation, is only one of several factors weighed fairly against others, and does not allow the systematic exclusion of any group.

Powell did another thing that jurists find strange. While he did not affirm race as a curative for past discrimination, he appended the Harvard program and cited a defense of it, an endorsement of it, which seemingly extends his opinion. Thus, the most conservative interpretation of Bakke affirmed in two state court opinions sanctions diverse group perspectives as a bona fide objective in university admissions and a compelling state interest.

Now, after more than 20 years since the Supreme Court encountered its first challenge in DeFunis and an equal number of years of litigation at varying court levels, the U.S. Fifth Circuit Court of Appeals has managed to turn things upside down. Just when we had settled into at least a precarious understanding of the legal guidelines, we're implementing affirmative action plans including the use of race under some circumstances. The Hopwood v. Texas decision (1996), citing 14th Amendment protections, has stated that any consideration of race or ethnicity for purposes of achieving a diverse student body is not a compelling interest.

This decision, made by a two-judge majority of a three-judge panel, undercuts the Supreme Court's arguments in Bakke and furthers the anti-affirmative action sentiment throughout the country. Cheryl Hopwood and the three White male applicants to the University of Texas Law School alleged that they were denied admission because of their race. Without going into the details of the admissions procedure, the university used pretty much the procedures outlined in the earlier instance with one blatant exception: they did create a separate committee or subcommittee for screening minority applicants only; since that committee's judgments were final, there was a due process involvement. But again, Hopwood would be narrowly considered unconstitutional for procedural reasons that could be cured and do not necessarily void or nullify policy and program otherwise. There is a larger issue behind Hopwood, and this is where I'd like to go.

Hopwood and her colleagues, represented by the Center for Individual Rights, were awarded one dollar each in the lower court in damages and permission to reapply without submitting an application fee. Not satisfied with this judgment, the Center for Individual Rights appealed and won the broader decision, which is now what is know as the Fifth Circuit's Hopwood argument. Consequently, it never considered whether the admissions program was narrowly tailored to meet the school's objectives, and although the ruling applies only to institutions within the Fifth Circuit, which is Texas, Louisiana, and Mississippi, it will have a more general impact on affirmative action in this country.

I want to summarize those impacts in three areas: (1) judicial credibility and racial justice; (2) psychometrics and the concept of qualification; and (3) minority access and societal well being.

The court's conclusion is problematic for several reasons. On its surface, it seems that the decision doesn't rule out race, only that the University of Texas School of Law didn't prevail in arguing the effects of past discrimination. Yet, the state's attorney general imposed the strictest interpretation of the ruling in announcing that all Texas universities were prohibited from using race as a criterion in their admissions procedure. Several states, including states beyond the Fifth Circuit's jurisdiction, have followed suit: in California, when Proposition 209 and a Board of Regents' ban on the use of race in admissions expressed statewide opposition to affirmative action, in general; and in Texas, where even private universities, such as Rice, have abandoned racial criteria in their admissions.

In United States v. Fordice, a 1992 Supreme Court decision, the Court ruled that 19 states had an affirmative duty to wipe out traces of segregation in their public college systems. This pronouncement held the states to devising remedies other than merely eliminating segregationist laws. Texas is one of those 19 states. The Fifth Circuit Court's position on Fordice is not only confusing but also seemingly contradictory. On the one hand, it disallows the use of race in the admissions process and, on the other, it permits race-based programs if they address specific present effects of past discrimination. The latter sentiment was followed by the disclaimer that the law school was not responsible for any present effects of past discrimination and the system was too expansive for a judicial inquiry into whether such discrimination had existed. Having recently served as provost of a campus in the University of Texas system, I can tell you, from first-hand experience, that not only is discrimination against Blacks in the state's system of higher education well documented in history and case law, it is quite alive and well today.

The Texas system has, as a matter of fact, built a separate law school in Houston for one student, Herman Sweat, rather than admit him to his law school in Austin. Texas Southern's Law School, across the street from the University of Houston's Law School, remains today as testimony to the state's bigotry and wasteful duplication to preserve White privilege. The Office of Civil Rights recognized this and placed the state of Texas under a directive to rid itself of all vestiges of racial discrimination. That order is still in effect, despite recent Supreme Court decisions to trim back the reach of affirmative action and despite the Fifth Circuit's ruling.

The resistance is analogous to the post-Brown v. Board of Education legal deceptions and avoidance. One is inclined to invoke that noble philosopher, Yogi Berra: "It seems like deja vu all over again."

A review of the court cases above reveals admissions procedures that use race and aren't constitutionally permissible. In each instance, test scores and grade point averages are not the sole determinants of qualification. Schools of law and medicine receive thousands of applications from applicants, most of whom are qualified to do the work. And that's the critical factor - that they're qualified to do the work. While it would be easier to determine who gets admitted by simply ranking test scores, this procedure would not identify qualifications and characteristics essential to a diverse student body, which not only has a substantial educational benefit, but also a benefit to society.

Psychometric studies show that scores from standardized tests are less predictive than claimed. They're also less predictive for minority students than they are for Whites, and they explain only a small amount of the variance in the prediction equation. A National Academy of Science blue ribbon panel noted that ethnic minority group members disproportionately shoulder the problems associated with standardized testing. Opponents of affirmative action believe that higher test scores alone can identify the most meritorious candidates. The testing industry, however, urges a more modest usage.

In the law profession, for example, nationally 58% of all Whites who apply to law school were admitted in 1992. Only Asian Americans had a higher rate of admission. Despite the fact that ethnic minorities are the fastest growing groups in America, their percentage increase in law school admissions declined in the past decade. These data do not suggest an unfair advantage for ethnic minorities from affirmative action or any other reason. Yet, plaintiffs in Hopwood alleged reverse discrimination. The year Cheryl Hopwood applied to Texas, more than 100 White students were admitted who had lower test scores and grade point averages than she did. Further, despite the admissions procedure used, more Whites with lesser credentials were taken off the waiting list than the total number of ethnic minorities enrolled in the school.

Tests have been used for numerous pernicious purposes ranging from restrictive immigration, eugenics and race purity, to the exclusion of ethnic minorities from access to the mainstream. The overreliance on test usage includes a dependency on test scores in admissions to institutions of higher education. These many uses have been aided and abetted by the psychometric tradition and prominent American psychologists who have been implicated. While these observations should not be construed as an indictment of American psychology or any individual, they should alert us to threats to the human condition as we employ our science and practice in the service of human welfare.

The plaintiffs in Hopwood were recruited by the Center for Individual Rights as part of a national campaign against affirmative action by conservative groups in America. In the SPSSI July Newsletter, I call attention to a number of conservative groups whose agenda included heritability of IQ, race and eugenics, English-only immigration, and anti-affirmative action. Yesterday, at the convention's opening session, following a keynote address by a Nobel laureate, Elie Wiesel, it was announced that the Lifetime Achievement Award to be given to Raymond Cattell was postponed due to allegations of racism in some of his writings. A blue ribbon committee will be appointed to investigate Cattell's research and writings on eugenics. SPSSI has a definite stake in the outcome of this, through its role as the conscience of APA.

My Newsletter column identified the rebirth of 19th-century theories and research on eugenics and race purity in the conservative politics of recent Republican administrations and think tanks operated by individuals from those administrations. In the past 30 years, there has been a concerted effort to position America in a conservative direction on the politics of affirmative action. In the foreword to No Mercy, a book that reviews the role the foundations have played, Mark Tushnet (1996) makes the distinction between political "wars of maneuver" and "wars of position." The former, for example, is a face off in elections and other confrontations, whereas the latter occurs as actors develop their ideological stances. According to this distinction, the war position is critical to success in the war of maneuver. The point of this observation, in the last decade or so, is that conservatives have conducted a successful war of position, and it is paying dividends in the anti-affirmative action arena.

While liberals have been successful in the academy, we have been unable to translate these successes, in general, into victories in the policy arena. By primarily writing for and to our colleagues, we have not fully engaged the discourse of the policy makers. Further, our intellectual conventions are not as attractive as they once were to the action-oriented foundations. There has been a paradigm shift here.

Elsewhere, I have observed that it has been said that we live at a level of abstraction that obscures our ability to discern fundamental meaning and values. And through our legal system and psychometric tradition, we have the ability to assign value and ownership to absolutely everything. This is precisely what we have done with education. We need to remember that in preliterate society, human knowledge belonged to everyone, and everyone was equally entitled to have a right of accumulated knowledge. We have made education a form of property, and through our credentials and arbitrary conventions, we have decided who shall and who shall not own that property. And so it is with jobs and a number of other commodities that we have a right to access. Every individual has a right to his or her own mind and body and may come to any institution, any institutional setting, to develop his or her productive capacity, contribute to human knowledge, and otherwise benefit from society largesse.

Those of us who are degreed or otherwise privileged are only custodians, trustees if you will, who hold knowledge in trust for humanity and are obliged to pursue equitable arrangements in the allocation of resources and commodities. The increasing diversity in our culture, and its implications for the workforce for the future, make it imperative that we promote standards that are inclusive and predictive of ability to perform. As psychologists, we have the capacity to do this and to do so within the boundaries of our mission to promote human welfare. Some have argued that affirmative action is justified as a form of reparation for evils of the past, whereas others have argued that it leads to stigmatization. The conservatives have beat us at the game of labeling by the usage of the pejorative nomenclature "preferences" and "quotas."

It's difficult to know where this political process has taken us, but I would like to suggest that we steer a path back to a proper course of seeking "affirmative opportunity."

The Harvard plan introduced in DeFunis by Archibald Cox and reaffirmed in Bakke provides an appropriate model of affirmative action or affirmative opportunity that can pass constitutional muster. One has to wonder why it has not been used by the many educational institutions who have had their admissions procedures challenged. Criticism of affirmative action will continue, not because it is unfair, but because a more heterogenous professional world will inevitably lead to a loss of White privilege. This is our challenge.

Thank you.

References

DeFunis v. Odegaard, 415 U.S. 312, 320, 94 S.Ct. 1704, 1707 (1974).

DeRonde v. Regents of the University of California, 28 Cal. 3d 875, 172 Cal. Rptr. 677, cert. denied, 454 U.S. 832, 102 S.Ct. 130 (1981).

Hopwood v. Texas, 78 E.3d 932 (5th Cir. 1996).

McDonald v. Hogness, 598 P.2d 707 (Wash. 1979), cert. denied, 445 U.S. 962, 100 S.Ct. 1650 (1980).

Regents of the University of California v. Bakke, 438 U.S. 265, 98 S.Ct. 2733 (1978).

Tushnet, M. (1996). Foreword. In J. Stepanicic & R. Delgado, No mercy. Philadelphia: Temple University Press.

United States v. Fordice, 505 U.S. 17, 112 S.Ct. 2727 (1992).

DALMAS TAYLOR was President of SPSSI (1996-97) and was long affiliated with the governance of the organization prior to that. He was a professor of psychology at the University of Maryland and is best known for his scholarly contributions to social psychology in the areas of group behavior and the roots of racism, and for his direction of the Minority Fellowship Program of the American Psychological Association. After leaving Maryland, he was a Dean at Wayne State University, Provost at the University of Vermont and the University of Texas, and most recently Vice President for Academic Affairs at Lincoln University in Pennsylvania. We were extremely saddened by his death on January 26, 1998, and are grateful for the opportunity to publish his last public address.

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