|
A tale of two universities.
|
|
By Mike Cuenca | June 27, 2003
|
|
|
|
|
The US Supreme Court's decision that race can play a determining role
in enrollment decisions surprised many on both sides of the battle,
because most of us believed that the opponents of civil rights had
confused the issue enough and had seized enough power to have
affirmative action declared illegal, which—we believed—would have then
been followed by an accelerated weakening of the enforcement of
discrimination law already taking place at all levels below the US
Supreme Court. Now, that decision and another less-heralded decision,
resolve a gamble that two University leaders took several years ago,
based on a moral decision that was a product of their different
ideologies and convictions.
One leader gambled that the right decision would win out over ideology
and the other gambled the opposite. University of Michigan President
Mary Sue Coleman decided to position her university as the vanguard of
defense of aggressive remedial action in equal educational opportunity
by defending fair race-consciousness in enrollment decision-making.
Race is one factor among many that can cause people to be unfairly
denied opportunity through negative-biased, subjective assessments, so
it makes sense and it is honorable and compassionate to consider that
factor when making subjective assessments of qualification and
potential.
On the other had, as Lisa Pinamonte, KU's
director of admissions and scholarships admitted when the decision was
announced, KU does not use race as a factor in enrollment decisions.
Gambling on ideology, Robert Hemenway—or whoever advises or controls
him—decided to position his university by taking a step back from
affirmative action, believing it was more politically expedient to
oppose affirmative action, through indifference to the denial of
opportunity experienced by many youth through circumstances of birth.
Hemenway apparently believed he and KU would benefit by pandering to
the opponents of affirmative action/civil rights law.
Hemenway also gambled that the ongoing attack on civil rights law by
conservative activist judges would continue and even be accelerated by
an idealogical decision that affirmative action is illegal. He gambled
that he and his more reactionary managers and supervisors would be able
to continue to avoid accountability for their many violations of KU's
employees' civil rights. He knew that this region is one where the
judges in the federal courts don't like civil rights law and that his
gamble was a likely easy win. Until recently, that gamble has paid off
for him. He's been able to crow that he and his managers don't
discriminate and retaliate, when all the while they were doing it with
deliberate certainty.
But a few weeks ago, the Supreme Court
issued a ruling in the case of Desert Palace v. Costa, which lowered
the bar significantly for civil rights plaintiffs in federal court. No
longer will district court judges be able to roll over civil rights
plaintiffs rights in order to protect those who discriminate and
retaliate. In that decision, the Supreme Court ruled that plaintiffs
need not prove discrimination before they even get to trial, nor that
they have to produce direct evidence of discrimination to get to trial.
KU currently faces three appeals of district court dismissals that held
the plaintiffs to a higher standard of proof, that likely will be
reversed because of this new ruling.
When Chancellor Hemenway
took over at KU, there was an Office of Affirmative Action. That office
is now called the Office of Equal Opportunity. He and his Director of
Equal Opportunity then lobbied successfully to dissolve the
faculty-governed Affirmative Action Board, which provided checks and
balances on the University's civil rights law enforcement actions.
The changes in name may seem insignificant, but there is a very real
and very big difference between the two approaches. Those opponents of
affirmative action who promoted "equal opportunity" over "affirmative
action" will say that equal opportunity is what we're seeking, after
all. They argue that affirmative action is discrimination; that we're
simply discriminating to stop discriminating.
It's true
that we all at least know we should stop discrimination. But
affirmative action, practiced correctly, is not discrimination. That's
the red herring tossed into the debate by the opponents of civil rights
law. And the reality is that the "equal opportunity" approach is based
on the presumption that everything will work itself out without any
real anti-discrimination effort, sort of a "sit-back-and-watch"
approach. The result is that the oppression continues because no
aggressive action is taken to stop it. The sound approach is based on
the presumption that actual energy must be expended to overcome
institutionalized prejudices and attitudes that lead to discrimination
in the workplace.
Civil rights opponents argue—ignorantly or
idealogically—that most people will be virtuous and won't discriminate.
But history has repeatedly shown otherwise. Carried to the extreme—to
the extreme Hemenway's KU has carried it—a civil rights opposing
employer argues none of his managers or supervisors actually does
discriminate and that their actions can be rationalized and/or
defended. This is the inevitable argument for those who seek to end
affirmative action: there should be no affirmative action, because
there is no need for remedial action at all. The civil rights opposing
employer denies the existence of ongoing discrimination in his
workplace and fights to prove no victims exist, to support his
idealogical opposition to civil rights law.
The civil
rights supporting employer assumes that many people have subtle,
subconscious prejudices and discriminatory attitudes that affect their
employment decisions in ways that negatively affect women, minorities
and others. These employers recognize that discrimination will continue
until it's addressed and stopped. These employers accept the obvious
reality that there will be victims in their workplaces and that
remedial action will be necessary.
In the years since
Hemenway changed KU's approach, the University has faced 44 civil
rights lawsuits in federal court alone. K-State, which did not scale
back their affirmative action/civil rights enforcement efforts and
which still has an Office of Affirmative Action, faced only 10 lawsuits
during the same period. That's a pretty good indication of which
approach has worked better—and produced fewer victims.
Robert
Hemenway gambled that affirmative action would be declared illegal by
the U.S. Supreme Court. He has lost that gamble. His price? Personally:
not much, so far. But he coldly allowed many victims to suffer the pain
and indignity of discrimination, while ignoring and denying their
plight. The victims of discrimination and retaliation in his workplace
are the ones who paid the cost of his gamble. The students who weren't
offered an opportunity to overcome previous discrimination paid the
cost. And KU will pay, too, as Hemenway established KU as one of the
universities that came down on the wrong side of the debate over
approaches to remedial action in equal opportunity in education and
employment. That's a reputation that will resonate throughout the
communities of disadvantaged students and potential employees both in
Kansas and across the country.
It's a reputation that should
resonate also in Topeka. But the leaders of the state of Kansas have
yet to prove that they indeed thought that the gamble was misguided and
that the price paid by innocent victims has been too high to ignore any
longer.
|
|
|
