Bok and Bowen Affirming Affirmative Action

OpportunitasMuch-reviewed and much-acclaimed since its publication in September, The Shape of the River: Long-Term Consequences of Considering Race in College and University Admissions results from a lengthy collaboration of two former college presidents: William Bowen, president of Princeton University from 1972 to 1988 and now president of the Andrew W. Mellon Foundation; and Derek Bok ’54, president of Harvard University from 1971 to 1991. Bok was dean of the Law School from 1968 to 1971.

The Bulletin asked another former law dean, Lance Liebman ’67 of Columbia, for his views of the book. Currently William S. Beinecke Professor of Law at Columbia, Liebman was dean from 1991 to 1996. He was a member of the HLS faculty from 1970 to 1991. In May he becomes director of the American Law Institute. Liebman spoke with Bulletin Editor Nancy Waring.

Bulletin: The subject of affirmative action in higher education has generated both heat and light over the past 30 years. What does the Bowen/Bok study add? Liebman: William Bowen and Derek Bok have made an extraordinary contribution to this difficult national debate. They supply by far the best data that we have ever had. The Andrew W. Mellon Foundation, where Mr. Bowen is president, obtained academic, employment, and personal information about 80,000 undergraduate students who matriculated at 28 selective colleges in the fall of 1951, the fall of 1976, and the fall of 1989. This information tells us in depth about what has happened to students of different races over three generations. The information includes admissions criteria, graduation rates, and post-college careers. It constitutes a major addition to public policy thinking on a subject that so easily descends into assumptions and simplifications. The Shape of the River is among the handful of most important books in public policy in the recent period, and it will be a springboard for future debates among those making important decisions about affirmative action.

Lance LiebmanWhat do the authors themselves bring to their project? The book could only have been written by Bill Bowen and Derek Bok: President Bowen, one of the finest applied economists of his generation, and President Bok, who has done brilliant legal scholarship always at the cutting edge of law and public policy. It could only have been written by an economist/lawyer team whose two members both served as university presidents and thus lived through the diversification of two of the great universities in the world, Princeton and Harvard. Bowen and Bok are extremely sophisticated analysts. This is a major study because the authors focused their questions properly at the outset, had the resources to obtain the needed data, and then wrote sensitively and imaginatively about what the data show.

What conclusions do Bowen and Bok draw? The book demonstrates that candidates assisted in admission do well in top colleges. They stay in school, they graduate, and some do very well academically. We must always look both at aggregate statistics and at individual human beings. We achieve racial diversity in higher education by accepting students whose academic records would preclude their admission if they were white. We dream that the day will come when youths from all races present the same academic profile when they apply to college. But for many different reasons, that is not likely to occur soon. Once the applicants are admitted, they become individuals and not merely a statistical group. A group with less distinguished credentials does not—as a group—get the same grades in college or law school as those who enter with higher grades and test scores. But some become stars on the fast track of a selective college or law school.

Do you think that law school admissions should be so focused on college grades and test scores? Yes, but these should not be the sole considerations. All top colleges and law schools rely heavily on the insights provided in recommendations—especially from teachers and from persons who know the applicants well. Colleges and law schools seek geographic diversity, seek to benefit from extraordinary experience, and give weight to family connections to the institution. All students and all faculty benefit from a diverse student body. We should remember that an admissions process must do more than find individuals who will be the best students, especially if we only measure that by grades in school. A top college or law school seeks to educate students who will influence the world. All of us in the business of legal education know of many people who were at the top of the class and went on to have routine careers—and of students from all parts of the grade distribution who turn out to be imaginative or super-committed or in the right place at the right time and made major professional contributions. The purpose of our admissions policy is to guess: to achieve a collection of talented students and hope many of them will contribute later. How could we doubt that minority students have a special opportunity to be of service? Or how could we face ourselves in the mirror if we selected students solely on undergraduate grades and test scores and returned to a racially limited student population? For all the racial progress in the United States, let us not forget one fact: in the 250 largest law firms in the U.S., there are 247 African American partners, or about 1 percent of the total. We are engaged in a long historical process.

How do students accepted through race-sensitive admissions policies do after they graduate? That’s the second—and hugely important—half of the Bowen/Bok case: these students do extremely well afterwards, making a real contribution to society. This is true in business, in government, and in the nonprofit sector. Indeed, Presidents Bowen and Bok provide methodologically fascinating analyses of the worklives and private lives of graduates in the Class of 1976, in their late 30s when the data was gathered. The evidence is interesting for men and women, whites and African Americans. It includes information about salaries, workforce participation, family structure, and leisure activities. I have never seen in print such informed discussion of the role of civic activities in the United States. We all know how much this large country depends on volunteer and nonprofit activity. Bowen and Bok show how much of the laboring oar for these vital activities is carried by graduates of selective colleges, and that black matriculants were even more active than their white classmates.

Derek BokCould you say a few words about your experience with affirmative action, as a student, law teacher, and law dean? When I went to Yale in 1958 there were no undergraduate women and the tiniest group of African Americans. At Harvard Law School, we had five women in each first-year section and virtually no racial diversity. After my law school graduation in 1967 (and my year as a law clerk in Washington, a year when Martin Luther King and Robert Kennedy were killed; and my two turbulent years working for Mayor Lindsay in New York City), the nation’s top educational institutions began changing dramatically. When I returned to Cambridge to teach in 1970, female and non-white representation was increasing rapidly at the Law School. By the time I came to Columbia as dean in 1991, Ivy League institutions—certainly the undergraduate and law school sectors with which I am most familiar—were in a relatively stable mode of making strong efforts to achieve adequate numbers of African American, Hispanic American, Asian American, and Native American students.

What has the presence of more women and minority students meant in your classroom? An all-white or all-male classroom today seems inconceivable. Law is taught by discussion and argument. Many of the issues we discuss in the classes I teach—property, employment law, telecommunications law—are centered in the diversity of the American population. How could we have rich discussion with a homogeneous student population?

You were on the Law School faculty in 1978 when Harvard University played a role in the famous Bakke case? Yes, Bakke was an important step. In an earlier case, De Funis v. Odegaard, President Bok asked Archibald Cox [’37] to submit a brief amicus curiae on behalf of Harvard. Archie had time on his hands after having been dismissed by Robert Bork as Watergate special prosecutor. The Cox brief discussed the Harvard College admissions process, and in particular the many factors—including racial diversity—that the admissions committee took into consideration. Harvard’s procedures were presented to the Court again in Bakke, as part of a brief submitted by Harvard, Stanford, Columbia, and Penn. Justice Powell relied on the Harvard submission, and printed in U.S. Reports at the end of his Bakke opinion an appendix, describing Harvard College’s admissions procedures. Justice Powell cast in Bakke the fifth vote for the proposition that race- conscious admissions programs aimed at expanding minority enrollment can be constitutional.

Do the Hopwood decision against affirmative action and the recent referendum in California present a serious threat to progress since Bakke? The issue of affirmative action is so difficult because it is troubling to let race influence such an important decision as student selection. That is why judges find the cases difficult. In Hopwood, the Court of Appeals for the Fifth Circuit invalidated a particular affirmative action program at the University of Texas Law School. In California, voters approved an anti-affirmative action referendum. Further litigation and further political dispute is likely. Chris Edley [’78], my former student and now HLS professor, has worked effectively on this issue for President Clinton. Soon California, Texas, and Florida will be the three largest states in population, each with an extraordinarily diverse population. The United States will be majority non-white during the lives of my grandchildren. I think that over time responsible elected officials and thoughtful judges will conclude that the country must have leaders from all racial backgrounds and that study at elite colleges and law schools is a major route to leadership. I suspect that 20 years from now we will still have affirmative action in admissions and that the Bowen/Bok book will be regarded as having played a significant role in the achievement of that outcome. The book will make it hard for judges and elected representatives to avoid two facts: affirmative action in selective institutions has improved education in those schools for all students; and it has supplied the nation with eligible and qualified talent that we need and would not otherwise have.

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