Friday, February 3, 2023

Affirmative Action’s Big Win Always Had an Asterisk

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Ted Spencer still looks back. No one who lives through a grueling legal saga defined by questions about race, equity, and the Constitution could ever board up the windows to the past.

Spencer was director of admissions at the University of Michigan at Ann Arbor when the U.S. Supreme Court in 2003 decided two cases challenging the institution’s race-conscious admissions policies. The justices handed one plaintiff a victory in Gratz v. Bollinger. But Michigan won the day because the court’s ruling in a companion case, Grutter v. Bollinger, affirmed that colleges could continue considering applicants’ race and ethnicity as one of many factors. The landmark decision shored up the foundation on which a generation of admissions practices would stand. And many people in academe rejoiced.

But for Michigan, the celebration was fleeting: The opponents of affirmative action soon extinguished the university’s victory with a successful ballot initiative that banned the use of racial preferences throughout the state.

What Spencer sees in those momentous events is complicated: a triumph with a 10-foot-tall asterisk, a backlash presaging the lawsuits now looming over academe. This fall, the Supreme Court will hear two cases challenging the constitutionality of race-conscious admissions policies at Harvard University and the University of North Carolina at Chapel Hill. The court’s 6-3 conservative majority has been hacking down precedents such as Roe v. Wade. So there’s a good chance that it will shred Grutter, ending the longstanding use of race in admissions throughout the land.

Roger L. Wollenberg, UPI, Newscom

Protesters outside the Supreme Court in 2003, as the justices heard arguments in Grutter v. Bollinger.

You might dread that outcome or welcome it. Either way, Grutter matters because it invites the nation to consider what’s really at stake in the age-old debate over race-conscious admissions. It’s something more consequential than whether Becky with the Good Grades gets into her dream college. Grutter matters because it poses a fundamental question about fairness, asking us which kind of society we want to live in: one that clings to the ideal of colorblindness at all costs, or one that recognizes the ongoing struggle of integration? Because Grutter’s legacy might soon disappear into the whooshing downspout of history, it’s worth taking a look back.

Spencer, now retired, believes that many people have forgotten what the Michigan cases were all about, if they ever even knew: “I would tell colleagues, You can’t just say ‘Michigan was sued.’ You have to explain why, the background.”

His own story entwines with that background and the essential questions that Grutter poses. It’s the story of a Black man raised in the Deep South during segregation who became a leader in a field long dominated by white men.

Born in 1941, Spencer grew up in Memphis, Tenn. His father sold insurance. His mother took him to class with her at LeMoyne-Owen College, a historically Black college, where she earned a degree so she could teach full-time. He and his little sister were part of a close-knit family that was neither rich nor poor.

Spencer would remember Memphis as mean-spirited, a place where colorblindness wasn’t even an aspiration: “Things were like apartheid, no integration at all.” When he was away from Beale Street, a hub of Black-owned business, he couldn’t do many things white kids could do. At movie theaters, he had to sit in the balcony. At department stores, he couldn’t try on clothes or shoes, or eat in the restaurants. Riding the bus meant sitting in the back. Spencer had settled for a $6-a-week job as a busboy at the Peabody Hotel because no other place would hire him, not even to bag groceries. He often read a Black-owned newspaper that regularly tallied the number of Black people who had been lynched; whenever he saw numbers trending up, he would feel distraught.

Executive Director of Undergraduate Admissions, Theodore Spencer attends the U. of Michigan 2006 Student Welcome Day reception on April 7, 2006.

Lin Jones, University of Michigan

Ted Spencer at Michigan’s 2006 Student Welcome Day reception.

Spencer attended Tennessee State University, a historically Black institution in Nashville where he met his wife, Camille. He joined sit-in protests at restaurants, believing he had a role to play in creating a more equitable society. While in the Air Force Reserve Officers’ Training Corps at TSU, Spencer attended a six-week military training camp the summer after his junior year. It was his first time in a racially integrated environment. Before everyone went home, the cadets were asked to rate the young men they had interacted with at the camp. Spencer came in second in his squadron; his friend Joe, who was Black, came in first.

But Spencer’s commander pulled them aside. “He said ‘I can’t have two Black guys come out as 1 and 2,’” Spencer recalls. The commander named Joe the winner, declared a white cadet the runner-up, and made Spencer fourth.

After graduating with a bachelor’s degree in political science and a teaching certificate, Spencer saw the military as his best option — and a way out of Memphis. His first stop was Barksdale Air Force Base, near Shreveport, La. Spencer, a second lieutenant, was told that he was one of two Black officers on the base. Life in the military wasn’t easy, but he liked how the Air Force melded people from different backgrounds into a team with a common purpose. Still, the color of his skin kept him from entering the nearby McDonald’s or any other restaurant outside the base.

Chitchat came naturally to Spencer, who befriended many people at the base. His captain, a white man, told him that he couldn’t invite him over to his house for dinner with the other second lieutenants because his wife disliked Black people. “She would have to break all the dishes you used,” Spencer recalls him saying. It didn’t surprise him.

But then the captain got to know Spencer and saw him play well on the football field (“That elevated you a little bit, kind of like today,” Spencer says). Finally, the captain, as Spencer puts it, “forgot that I was Black,” and invited him and his wife over for dinner. The captain’s wife, who by then had heard all about Spencer, was cordial. “After we talked and socialized, I was just another person — all these stereotypes disappeared,” he says. “That’s the important thing about integration: The more people get to know each other through personal interactions, the less of a problem people have with race.”

A special report on the imperiled future of race-conscious admissions.

After his time in Louisiana, the determined young man grabbed hold of opportunities that took him all over the world. He went to Denver for intelligence training; served in Paris, France; delivered top-secret documents to U.S. embassies in Europe; made captain; went to Omaha, then to Vietnam, then to Detroit, where he worked a salesman for IBM before rejoining the U.S. Air Force and earning a master’s degree in sociology from Pepperdine University. He served as an Air Force recruiting commander for two years. And then, in 1976, took his first job in admissions at the U.S. Air Force Academy, in Colorado.

His mission: integration.

The academy hired Spencer to oversee an unprecedented push to increase minority enrollment just as it was welcoming female cadets for the first time. Inside his desk drawer, he kept a small box of cards bearing the name of each nonwhite graduate of the academy, which had enrolled its first class in 1955. There were maybe 20 cards in all, he recalls.

Spencer wasn’t sure how to build a national recruitment campaign, so he did some homework and found a dissertation on recruiting minority students written by Robert Bailey, an Air Force reservist who was then director of admissions and registrar at the University of California at Berkeley. Spencer contacted Bailey, who gave the academy’s admissions staff a crash course in the emerging science of wooing applicants.

This knowledge helped Spencer turn a relatively passive admissions operation into an assertive one. The academy hired a slew of recruiters and sent them to more high schools and college fairs than ever before. It bought names of test-takers from the College Board and significantly increased the number of mailings it sent to prospective applicants. It disaggregated data to pinpoint the most promising feeder areas, which, not surprisingly, included communities with military bases.

Spencer’s gut told him that personalizing the process was important. He and his staff cultivated relationships with high-school counselors, bringing some to the academy for visits. He helped train recruiters in how to engage students and families in a friendly, welcoming way — and to listen. One day Spencer asked a well-known Black general for permission to craft a recruitment letter in his name that described his experience in the military. The letter, bearing the general’s photograph, was sent to minority families throughout the nation. It was a hit.

Between 1976 and 1988, minority enrollment at the academy increased from 3.8 to 17 percent. In those numbers, Spencer saw an important lesson about integration: “Nothing happens without some work. And that work requires funding.”

In the late 1980s, the University of Michigan, like many other public institutions, was grappling with its own integration story. It was long and complicated.

Minority students at Michigan had been pushing for greater inclusion for two decades. Protesters who were part of the Black Action Movement (BAM) had demanded in 1970 that the university increase enrollment of Black students — then about 4 percent of the university’s overall enrollment — to 10 percent by 1973. The university adopted that goal but didn’t meet it. After years of fluctuating enrollment, Black students represented just 5 percent of the student body in 1987, when a spate of racially insensitive incidents roiled the campus. BAM held sit-in protests in the administration building.

The following year, James Duderstadt, then the new president of the university, announced the Michigan Mandate, an ambitious plan to diversify the campus by increasing the representation of women and underrepresented minorities in faculty and staff positions, as well as in the student body. Each campus division was expected to regularly report its progress.

Around that time, Spencer was seeking a new challenge. He applied for a job as admissions director at Michigan, but the university ended up hiring Rick Shaw, who then wanted to hire an associate director to help expand student recruitment there. Bailey, the director at Berkeley who had helped the Air Force Academy with admissions, urged him to contact Spencer. So he did.

When Shaw met Spencer in Denver for an interview, he was impressed. He couldn’t recall encountering anyone with more warmth and positivity. “Magnetic,” he recalls. “Ted just attracted people to him.” Hiring a military officer to oversee recruitment at a flagship university might have seemed risky, but Shaw didn’t see it that way. In Spencer he recognized key qualities, such as adaptiveness and compassion: “It was in his DNA.”

Spencer gladly took the job despite the pay cut. He was hired to devise and execute a plan for bringing in more of everything: more high-achieving students, more out-of-state students, more underrepresented minority students. He felt the weight of the latter goal in his bones. Never had he forgotten being a Black kid in segregated Memphis, confined by circumstances beyond his control. He wanted to bring more students who looked like him into the fold of a renowned university, to “get more folks to a better state.” He believed that if he could help Michigan integrate more fully, it would become a richer place, where more people from different backgrounds might mix together more frequently, preparing them to live and work in a diverse nation.

Early on, Spencer and Shaw changed the way the admissions office recruited minority students: Instead of having a small number of counselors devoted to the task, it became every counselor’s responsibility. “It’s not good to put a few people into a box and then blame them if you don’t get the right numbers,” Spencer says. “Every person in an admissions office should be able to recruit minority students as long as they’re empowered to learn how to do it.” The admissions office tracked each counselor’s progress in increasing the number of minority applicants from his or her geographic area.

Spencer, who became interim director of admissions after Shaw left for Yale University in 1993, helped devise various strategies for diversifying the applicant pool. Michigan opened a recruitment office in Detroit and increased funding for need-based scholarships. The university helped finance a state scholarship program for underrepresented minority students with at least a 3.0 grade-point average in college-preparatory courses. The institution brought winners of the scholarship to Ann Arbor for special campus visits.

In 1995, Black students for the first time made up more than 10 percent of the incoming class — and nearly 9 percent of all undergraduates — according to a university report. Overall minority enrollment stood at 25 percent in 1995, more than double the number of nonwhite students in 1986, two years before the mandate. Spencer saw progress: “It felt tremendously good. A lot of things we had done were beginning to work.”

But as Michigan was pushing to diversify, the Center for Individual Rights (CIR), a conservative legal advocacy group, was sowing the seeds of a legal showdown. The group, which sought to dismantle the university’s race-conscious admissions policies, had rounded up potential litigants. Then, in 1997, CIR filed a lawsuit against the university on behalf of Jennifer Gratz and Patrick Hamacher, white Michigan residents who had been denied admission to the College of Literature, Science, and the Arts. The organization also filed a lawsuit on behalf of Barbara Grutter, a white Michigan resident who had been denied admission to the university’s law school.

4/1/03 Plaintiffs Barbara Grutter (left, speaking) and Jennifer Gratz speak to reporters in front of the U.S. Supreme Court as arguments are heard in two cases involving University of Michigan’s affirmative action admissions policies.

Marcia Ledford, University of Michigan

Barbara Grutter (left, speaking) and Jennifer Gratz in 2003 in front of the U.S. Supreme Court.

The plaintiffs in both cases alleged that the university had discriminated against them on the basis of race. Michigan’s undergraduate admissions office, which had long used a numerical index to admit students, in 1998 adopted a system that automatically gave each underrepresented minority applicant 20 points (out of 100 required for admission). Though the law school considered race in seeking to enroll a “critical mass” of underrepresented students, it evaluated applicants individually and didn’t use a point system.

Spencer knew that the lawsuits might change the way things worked at Michigan. Only later did he begin to understand that those lawsuits would shape the future of college admissions.

For every action, there is an equal and opposite reaction. Newton’s Third Law offers a useful way to think about the long, difficult history of racial integration. A strong push forward is followed by a strong push back. The lawsuits against Michigan were an instance of the latter.

In Defending Diversity: Affirmative Action at the University of Michigan, a collection of essays relating to the Gratz and Grutter cases, Earl Lewis, a professor of history, Afro-American and African studies, and public policy at Michigan, describes how the passage of the Civil Rights Act of 1964 — prohibiting discrimination on the basis of race, color, religion, sex, or national origin — prompted its political opponents to question whether public policies enacted to help minorities were tantamount to discrimination against white people: “At the very moment federal officials strove to define affirmative action, a countereffort to temper its reach was born.”

So began a searing national debate. That debate, Lewis writes, is “fundamentally about how to reconcile the tension between the need to include and the desire to limit that inclusion.” That tension helped define higher education.

Race-conscious admissions policies promoting greater inclusion of nonwhite students at selective colleges became a subject of scrutiny in the 1970s. Allan P. Bakke — a white applicant who was twice denied admission to the University of California at Davis medical school — sued the institution in 1974. He alleged that its race-conscious admissions policy excluded him solely on the basis of race, violating his rights under the Fourteenth Amendment’s Equal Protection Clause. At the time, Davis each year reserved 16 spots for minority applicants in an entering class of 100. Bakke’s college grades and test scores were higher than those of all the minority students admitted during the two cycles in question.

Four years later, a fractured Supreme Court settled the matter in Regents of the University of California v. Bakke. The upshot was complicated: The court deemed Davis’s use of racial quotas unconstitutional and ordered the university to admit Bakke. But Justice Lewis F. Powell, in a plurality opinion conveying the court’s decision, wrote that because the government had a compelling interest in the educational benefits of diversity, colleges could continue to consider an applicant’s race as one factor among many in admissions.

The lawsuits against Michigan took aim at Bakke, which some legal experts saw as vulnerable. As the 21st century began, Gratz and Grutter cast twin shadows over all selective colleges that had long practiced race-conscious admissions. For years, the cases wended their way through the courts. Then the Supreme Court announced that it would hear them both on April 1, 2003.

After nearly six years, the lawsuits had taken a toll on Spencer, who sometimes had trouble sleeping at night. After all, he oversaw the admissions operation that Gratz had put under a giant microscope. Once, after a three-day deposition, he fretted for a long time that he had screwed up and misspoken in some way that might undermine the university’s position. When one of the university’s lawyers finally assured him that he had nailed it, he recalls, “I just said, ‘Thank God!’”

Spencer flew to Washington for the oral arguments. Wearing a navy-blue suit and a striped tie in Michigan’s maize-and-blue colors, he felt anxious as he walked into the Supreme Court. He spotted the Rev. Jesse Jackson and other civil-rights leaders inside. The court room felt intimidating. The proceedings seemed as solemn as a funeral service.

As the Supreme Court considered the cases that spring, Spencer’s mind raced. Had the university’s lawyers hit the right notes? Would any conservative justices side with Michigan? Was the end of race-conscious admissions near?

On June 23, Spencer was attending an admissions conference in Cambridge, Mass., where he was scheduled to give a presentation on diversity that morning. Everyone there knew that the decisions might be coming any minute, and Spencer told his audience that he was expecting a phone call. Sure enough, his cell phone rang while he was speaking. He paused to answer it as spectators in the ballroom waited in eager silence. But it was just his mechanic back in Ann Arbor, calling to say that his car had been fixed. Spencer shared the news with his colleagues, who erupted in laughter.

About five minutes later, Spencer’s phone rang again. This time it was one of the university’s lawyers, who he recalls as saying this: “We won. Don’t let anybody tell you we didn’t.”

Michigan won even though the Supreme Court ruled against it 6-3 in Gratz. Chief Justice William Rehnquist, writing for the Court, ruled that the undergraduate admissions office’s use of a point system to evaluate applicants was unconstitutional. Because that system gave each underrepresented minority student an automatic 20 points, Rehnquist wrote, applicants were not being “individually assessed,” a practice that Bakke had affirmed as mandatory.

But Michigan prevailed in Grutter, which affirmed that colleges could continue using race in admissions. Justice Sandra Day O’Connor, writing for the Court, ruled that the law school’s individualized reviews of applicants were “narrowly tailored … to further a compelling interest in obtaining the educational benefits that flow from a diverse student body.” Though its process allowed for an applicant’s race to be a plus factor, race alone wasn’t determinative. Therefore, O’Connor wrote, it “does not unduly harm nonminority applicants.”

4/1/03 Representatives from the University of Michigan argue before the Supreme Court support of its admission policies. The delegation of attorneys and administrators who brought the cases to fruition celebrate on the steps of the U.S. Supreme Court.  Michigan students on the street began singing “Hail to the Victors,” and the team enthusiastically responds with arms raised for the “Hail, hail, to Michigan.”

Marcia Ledford, University of Michigan

After the 2003 Grutter decision, U. of Michigan lawyers and administrators stood outside the Supreme Court and punched their fists in the air as Michigan students sang “Hail to the Victors” below them.

Grutter put an exclamation point on Bakke, giving selective colleges a roadmap for conducting evaluations and considering race in a way that would likely pass constitutional muster. More institutions adopted “holistic,” highly individualized reviews, which are generally more time-consuming and expensive than numbers-heavy means of enrolling a class. Spencer says he was happy to scrap his office’s old point-based system and replace it with a more-intensive process involving multiple reads of applications. “The new process helped us make better decisions,” he says. “It gave us more opportunities to say, ‘This is an applicant we really need to support.’”

But Michigan wasn’t able to keep considering an applicant’s race for long. In 2006, Jennifer Gratz, one of the plaintiffs who prevailed in Gratz only to see race-conscious admissions policies endure, helped lead a successful ballot initiative, known as Proposal 2, that amended the state constitution to ban the consideration of race, color, and sex at publicly financed institutions, eradicating race-conscious admissions programs at state universities. (Ten years earlier, California voters had approved a similar measure.) Once again, a strong push forward had been followed by a strong push back.

A coalition challenged the Michigan initiative in court. But in 2014 the Supreme Court finally ruled, in Schuette v. Coalition to Defend Affirmative Action, that it had no authority to set aside Proposal 2. The Supreme Court’s ruling, Gratz told Politico in 2014, “took us one step closer to equality.” By then she had started a nonprofit called the XIV Foundation, which opposes all race-based policies; its name was inspired by the 14th Amendment’s Equal Protection Clause. “We will be watching what universities and all colleges do in the wake of this ruling,” Gratz said. “There are challenges all the time to programs that treat people differently based on their skin color. I think we could very well see more.”

The University of Michigan had won a long battle to preserve race-conscious admissions policies only to lose, essentially overnight, the ability to keep using them. “That hurt,” Spencer says. “We did what we thought was right, for the whole country, as well as for the University of Michigan. Then there was a politically driven push, and it was all eliminated. I was very disappointed. It’s still very disappointing.”

Just as Proposal 2 followed Grutter, more white plaintiffs followed in Gratz’s footsteps. Not long after CIR challenged Michigan in court, Edward J. Blum, a conservative activist, emerged as the most prominent opponent of race-conscious admissions programs. After engineering two unsuccessful legal challenges to such policies at the University of Texas at Austin on behalf of a white student who had been denied admission, Blum laid the groundwork for the lawsuits against Harvard and UNC cases that the Supreme Court will hear this fall.

Some opponents of race-conscious admissions programs believe that colleges should adopt policies that give a leg up to all socioeconomically disadvantaged applicants regardless of race. Their argument: Such policies would benefit more students and increase racial diversity on campuses while jettisoning race from the admissions equation.

Yet recent research found that states that banned race-conscious admissions programs have seen “persistent” declines in the share of Black, Latino/a, and Native American students being admitted and enrolled at public universities: Alternative policies “were unable to fully replace race-based affirmative action.”

Recently, the University of Michigan submitted an amicus brief in support of Harvard and North Carolina describing its involuntary experiment with race-neutral admissions as “a cautionary tale.” The document describes the university’s extensive race-neutral efforts over the last 15 years to recruit and enroll more underrepresented minority students, including the creation of several financial-aid programs, such as the Go Blue Guarantee, which covers tuition and mandatory fees for in-state students with family incomes below $65,000 and assets of less than $50,000.

Though such strategies have helped Michigan enroll more low-income students over time, the university explains in the brief, it hasn’t seen a significant increase in racial diversity. In 2006, before the ban took effect, underrepresented minorities made up 12.9 percent of undergraduate enrollment, according to the brief. In 2014, the number was 10.7 percent.

Underrepresented students made up 13.5 percent of undergraduates in 2021, but that number masks “a marked and sustained drop” within two subgroups: Since 2006, the brief says, enrollment of Black and Native American students has fallen by 44 percent and 90 percent, respectively. Black undergraduate enrollment was 7 percent in 2006; it was 3.9 percent in 2021. During that period, the total percentage of Black college-age residents of Michigan increased from 16 to 19 percent. “This reduction in diversity not only denies students the educational benefits of a diverse campus,” the brief says, “it negatively affects students’ wellbeing: Fully one-quarter of underrepresented minority students surveyed indicated they felt they did not ‘belong’ at U-M, a 66 percent increase over the last decade.”

A powerful expression of those feelings came in 2013, when Michigan’s Black Student Union started #BBUM — Being Black at the University of Michigan — inviting current and former students to share their experiences on Twitter. The viral campaign illuminated the alienation that many Black students had long experienced on the campus. Many described walking into classrooms and seeing no other Black students. In the wake of the campaign, which received national attention, Black student leaders at Michigan presented the university with a list of demands: One was to increase Black enrollment to 10 percent, the same demand BAM made in 1970.

Why hadn’t Michigan hit that mark? The university’s amicus brief lays the blame on Proposal 2 for declines in minority enrollment, calling its 15-year experiment in race-neutral admissions “a cautionary tale that underscores the compelling need for selective universities to be able to consider race as one of many background factors about applicants.”

But in Undermining Racial Justice: How One University Embraced Inclusion and Inequality, Matthew Johnson asserts that Michigan has espoused a “racial innocence narrative” while blaming Proposal 2 for what he describes as its own longstanding failures of institutional policy.

6/24/03 The University of Michigan Campus reacts to the Supreme Court ruling on the Affirmative Action Lawsuit.

Marcia Ledford, University of Michigan

Michigan students reacting in 2003 to the Supreme Court ruling on the affirmative-action lawsuits.

Johnson, an associate professor of history at Texas Tech University who conducted extensive research in Ann Arbor, argues that Michigan has tended to elevate other institutional priorities, such as maintaining its “elite status,” over racial justice. By placing significant weight on test scores and a college-preparatory curriculum, he argues, Michigan has made it exceedingly difficult for underprivileged Black students, especially those from Detroit and other cities, to gain admission. Its race-conscious admissions program, he writes, “focused on middle-class underrepresented students living outside cities.”

Johnson’s provocative rendering reminds us that highly selective institutions make many trade-offs within admissions. Some of the institutional goals Spencer had to pursue were in tension with other institutional goals he had to pursue. So-called elite colleges create substantial opportunities for some low-income and underrepresented students while clinging to recruitment strategies, financial-aid policies, and admission requirements that overwhelmingly favor middle- and upper-income students, many of whom happen to be white.

Spencer read the book. He agrees that conflicting institutional priorities often work against diversity goals. “But my question has always been: What’s your solution? To date, I have not heard it,” he says. “How do you establish an admissions policy to bring in more students who will graduate from the university, who have the college prep in high school, and who will want to come? How prepared are faculty members to teach students who aren’t as strong? How do you find those minority students? It takes commitment. We had that commitment with the Michigan Mandate, which set the tone for diversity and inclusion. We may not have been doing everything perfectly, but we were trying. We were getting there. Proposal 2 had a tremendous impact.”

Grutter launched 1,000 legal analyses. But the one Jeffrey S. Lehman published in Defending Diversity illuminates the inherent tensions in the debate over race-conscious admissions in an especially compelling way.

Lehman, who was dean of Michigan’s law school during the litigation, helped craft the admissions policy that Grutter upheld. In his essay, he describes the ambivalence many people he had spoken with felt about affirmative action. For one thing, the practice tends to spark fears about whether it will hinder opportunities for one’s children. Beyond personal concerns, he writes, “Using race as a category felt problematic and dangerous. But failing to do so in these circumstances felt just as bad, or worse.” Generally, he found, people agree that the very finest colleges should have more than token levels of integration. They also tend to believe that those colleges should be colorblind when evaluating applicants.

Grutter attempts to reconcile that tension. In his close reading of O’Connor’s opinion, Lehman explains how it weighed the ideal of colorblindness against the need for integration. His analysis is especially powerful because it fully acknowledges the importance of the ideal that Gratz and so many other critics of race-conscious admissions espouse: colorblindness, equal protection under the law. There is a “cost,” he writes, to compromising that ideal.

Lehman characterizes Grutter as more satisfying than Bakke because it offers a more substantial justification for why that cost is necessary. It’s necessary, he argues, because it’s not possible to have sufficient levels of integration by way of a colorblind process. Why? Because society does not distribute opportunities equitably, or in a colorblind manner.

Whereas Bakke describes the pedagogical benefits of diversity, he writes, Grutter describes something even more important: the government’s interest in “democratic legitimacy.” That is, it’s important for all members of society to see that the nation’s most prestigious institutions are “visibly integrated.” What’s at stake in Grutter: “The fundamental legitimacy of America’s approach to distributing educational opportunity.”

Lehman describes O’Connor’s opinion as “a pragmatic compromise between an appropriate preference for colorblindness and appropriate preference for integration.” He adds: “Racial integration does not happen by accident.” Those words echo what Spencer realized years ago while working to diversify the Air Force Academy: Nothing happens without some work.

Spencer, 80, is enjoying retirement and playing a lot of golf. He keeps up with the latest news about the Harvard and UNC cases. Recently, he was reminded of an oft-cited passage that O’Connor wrote in Grutter that has clear implications for the present: “The Court expects that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.”

Nearly 20 year later, Spencer doesn’t see that possibility as imminent. “We’re still in America, which still has a lot of issues with race,” he says. For him, Grutter is a recognition of the nation as it is — and not just as one might hope it to be.

Spencer knows that there’s an enduring wealth gap that reveals the long-term effects of racial discrimination and inequality: A recent Brookings study found that white families have more than $170,000 in net assets, 10 times more than Black families have.

He also knows that many communities and schools throughout the nation are rapidly becoming more racially segregated: More than four-fifths of the nation’s large metropolitan areas were more racially segregated in 2019 than they were in 1990, a recent study found. He knows that trend deprives young people of opportunities to interact with people who don’t look like them. Having experienced the benefits of such interactions, he wants others to know them, too.

“Admissions is better, colleges are better, when you can use race,” he says. “It helps you create an environment that allows for an exchange of ideas among people from different backgrounds. It makes the learning environment better for everyone.”

Still, Spencer learned that increasing diversity at an elite university is difficult, more so than he had hoped. He learned that bringing more minority students to a campus doesn’t magically create a sense of inclusion there. He remembers looking into the eyes of Black students who told him they hated the campus, who felt they had been treated the way he had been in Memphis. “There’s this feeling of you’re here, but you’re still a Negro. I don’t know how to get rid of that.” And he remembers talking with many Black students who loved the university and thrived there, too.

Spencer also learned that Americans often hold contradictory views about who should be admitted and why. “People often say, ‘I want everyone to be assessed based on merit, but if you entertain me on the football field, we can look the other way.’”

And he has learned that the mood of the country shifts this way and that. Over many years he has felt it shifting away from supporting programs and policies like the ones he championed.

Spencer saw the end of segregation and the rise of affirmative action. He has since seen Michigan and eight other states ban race-conscious admissions programs.

“It’s a kick in the knee,” he says.

He’s bracing for another.

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