Chancellor's Speeches

National Association of College and University Attorneys
"Diversity in Higher Education and the Current Legal Landscape"
Remarks by William E. Kirwan
Chancellor, University System of Maryland
Tuesday, June 28, 2005

Thank you, Greg, for that very nice introduction. It's a pleasure to share the podium with you today.

To all of you, let me say what a privilege it is to be here today to participate in this "conversation." I've been asked to make some opening comments on diversity in higher education. Afterward, we can continue our conversation on that topic or move to others that are also of interest to you. I commend the National Association of College and University Attorneys for including the vitally important issue of diversity as a featured topic at your annual meeting. I must also add that I'm impressed that you would come to Florida for this meeting in the middle of the summer. For those of us from the Washington DC area, all I can say is that it is great to get away from the heat and humidity!

As you know from the introduction, I'm not a lawyer...although I can assure you that some of my best friends really are lawyers. Moreover, many of my closest advisors over the years are and have been lawyers, some of whom are in this room today. To show that my heart -- and respect - really are in the right place, I note that as President of UMCP, I elevated my General Counsel, Dennis Blumer and then Terry roach to cabinet-status and at Ohio State University, I chose the university's former General Counsel, Ginny Trethewey to be my chief of staff.

Given that I am not an attorney my comments today will not be from an informed legal perspective. Rather, they will be from the perspective of a person who has spent nearly three decades in higher education administration and who is deeply concerned by what I sense to be a waning commitment - one might even say complacency --within higher education on issues related to inclusion and diversity.

When I think back to the 70's and 80's and even into the 90's, I recall a time when there was real passion and energy surrounding issues of diversity on our college campuses. I'm convinced that this is more than just the effects of nostalgia. True, our numbers look marginally better today than they did back then but that has more to do with changing national demographics than the success of higher education's efforts to produce greater inclusion. Fifty years after Brown vs. Board of Education, African-Americans and Latinos remain significantly under-represented in higher education as students, faculty, and administrators, especially in the fields driving our science and technology based economy. I'll have more to say about this under-representation in just a minute.

What's missing today - in my view -- is the broad-based, intense commitment for diversity that we had several decades ago. Back then, there was no question but that higher education was at the cutting edge on diversity issues. We were the entity in society that was "pushing the envelop." Not so today. Others have past us by. The military, corporate America - they get it. They've looked down the road. They know what the demographics of America will be in 2020, 2030, 2040. They know that within the first half of the 21st Century there will be no majority ethnic or racial group in our nation. I don't know about you but I find it distressing that other sectors of our society are doing better - much better -- with issues of diversity than we in higher education are. I also found it distressing to see the way higher education "caved in" during the period leading up to the Michigan decision? Talk about negotiating against yourself. Campuses across the country voluntarily dismantled diversity programs for fear of law suits, not because they actually had law suits.

Why do I find this so distressing? Why do I see diversity - and support from Affirmative Action in particular -- such a crucial matter for higher education? For me, there are three primary reasons.

The first is very personal and one that many will find anachronistic. It's the moral imperative for diversity and Affirmative Action.

We need to remember that supporting inclusion through Affirmative Action was not always a divisive issue in our nation. Affirmative Action began over 30 years ago, under a Republican president and enjoyed bipartisan support.

The very roots of Affirmative Action lie in the basic values of justice and equality that are underpinnings of our society.

Those who oppose the use of Affirmative Action today advocate "color-blind policies and practices." But, these advocates conveniently ignore the reality of life in America today. Yes, we would all like to live in an America where race, ethnicity and gender really do not matter. The sad truth is, however, that they still do matter and in ways that are disproportionately harmful to minorities and women. The vast majority of neighborhoods in America continue to be segregated along racial and ethnic lines. And, our K-12 classrooms are more segregated today than they were in the 1960s. Tragically, prejudice and discrimination are alive and well in the America of 2005. For me, this is reason enough for higher education - our nation's primary ladder of opportunity -- to aggressively practice Affirmative Action. As I noted, this perspective is anachronistic. Indeed, those of us who hold such views are an ever a smaller proportion of the population. But it is this perspective that remains the primary motivating force in my career-long efforts to promote diversity

While the moral underpinnings of affirmative action arein and of themselvesreason enough for me to passionately advocate for diversity in higher education, another valid reason is "compelling national interest" or, as I prefer to call it, "enlightened self interest."

Under either name, the rationale goes something like this. Our nation is becoming more racially and ethnically diverse at an impressive rate. By the middle of this century, we'll have no majority racial or ethnic group. This will be true of the college-aged population at an even earlier date. Our economic self interestsurvival, if you willrequires us to embrace policies and practices that will reach and educate a larger number of minority students. If we fail to do so, there will simply not be enough college educated, technologically skilled, culturally adaptable people to support our knowledge-based, global economy. As we move toward becoming a nation of minorities within a few decades, it is indeed difficult to imagine a more compelling national interest than to insure that our nation's colleges and universities reflect the diversity of our nation.

I'll share with you some specific numbers to drive home the magnitude of the diversity challenge we face in higher education and as a nation. In 2003, African-Americans and Hispanics accounted for about 2% each of the PhDs in the Physical Sciences, in the Biological Sciences, in the Computer and Information Sciences, and in Engineering, whereas they are each about 15% of our national college age population. Two years ago, a total of 19 African-Americans got a PhD in my field of Mathematics in the entire country! And, only 10 got a PhD in Computer and Information Sciences. I can assure you that there is nothing special about the year 2003. It just happens to be the most recent year for which there is national data. Looking back over the previous five years, the totals are virtually the same.

Think about the implications of these numbers. Let's take Computer and Information Sciences. Keep in mind that there are about 100 universities in the U.S. that offer a PhD degree in this field. As I noted, collectively they produced 10 PhDs in 2003 and a like number each year going back over the previous decade. This means that, on average, each of these universities is granting a Computer Science PhD degree to an African American once every ten years. The numbers for Latinos are about the same. This also means that if you visited these departments, most would not have an African American or Latino faculty member in Computer and Information Sciences, nor would they have a member of either race in the PhD pipeline. And the situation is roughly the same in the other science and technology fields.

For many years, we would look at data like this, wring our hands, and take solace in the fact that our PhD production in these fields was still adequate...thanks to a seemingly inexhaustible supply of foreign students coming to our shores to study science and technology. I hardly need to remind this group that the "seemingly inexhaustible supply" suddenly seems very tenuous. In fact, I think we should assume that 10 years from now, the supply of foreign graduate students will be a small fraction of today's numbers and that a much greater proportion of these students will return to their native countries upon completing their degrees. So, on our current path, here's the specter we face in the coming decades: a sharp decline in foreign student PhD degrees in science and technology and a gross under-representation of students in these fields from the two fastest growing sectors of our population. Incidentally, Latinos accounted for about 50% of the U.S. population growth last year. With the numbers I just cited, where will our faculties of the future come from? This is surely an issue of compelling national interest.

And it's not just our PhD programs where we see such an appalling lack of diversity in our degree production. The numbers are only slightly less bleak at other degree levels. In 2003, African-Americans and Latinos each accounted for only about 7% of the first professional degrees and that percentage is essentially unchanged over the past five years. The percentage of bachelors' degrees going to African-Americans and Latinos in the various fields of science and technology range between 5 to 7%, depending upon the field, and those numbers have not changed significantly over the past five years. The implications of these data for our nation's future workforce are also deeply troubling. This, too, is surely an issue of compelling national interest.

"Enlightened self-interest" is why so many from the military and from the world's largest corporationsincluding General Motors, Microsoft, Bank One and Pfizersupported the University of Michigan's admission policies and wrote amicus briefs for the case. These corporations noted that "the future of American business, and, in some measure, the American economy depends upon the ability of universities to select student bodies that are racially and ethnically diverse."

Finally, there is a third reason why I think it so essential to aggressively support diversity initiatives on our college campuses. It arose during the Michigan case and, in my view, has not received enough attention to date. It is the educational imperative for providing a diverse campus environment. Research developed at the University of Michigan for its case purported to show that a diverse campus environment enriches the learning experience for all studentsmajority and minority. As data in the research suggested, this is so because a diverse learning environment allows for a variety of perspectives, which in turn enables young people from different cultures and backgrounds to share experiences, challenge ideas, learn from one another, and gain insights in ways that could not happen if they remained within a more restricted cultural orbit. I would only add to this my thought that higher education represents perhaps our nation's best hope for developing future generations of citizens that value tolerance, support inclusion, and practice mutual respect. But we can only realize this potential if we have toolslike Affirmative Actionto insure a diverse campus of qualified students.

Some have challenged the research coming from the University of Michigan on the educational value of diverse campus communities. I personally find the conclusions of this research in agreement with my own experiences and intuition. I hope more research will be done in this area. If we can develop irrefutable evidence for this finding, it would seem to me to provide an important new and compelling dimension in the rationale for supporting diversity initiatives.

So where are we in higher education today as relates to our efforts to support diversity and inclusion? In essence, the Supreme Court's decision in the Michigan case has given us a "reprieve" of sorts, allowing the "narrowly tailored use of race in admissions decisions to further a compelling interest in obtaining the educational benefits that flow from a diverse student body." This is a reprieve that many of usquite franklydid not expect a few years ago. The question becomes, "what are we doing with this reprieve?" In my view, not nearly enough. And, I am not alone in this assessment. In fact, I read in a recent issue of The Chronicle a quote from Nancy Cantor, the former provost at Michigan and current president of Syracuse University, lamenting the fact that higher education has not taken advantage of the victoryor at least the reprievewe won in the Supreme Court. And she is right. I get the sense that some institutions are acting as if we lost the Michigan cases and that affirmative action programs have been banned. This despite the fact that University of Michigan President Mary Sue Coleman called the decision a "tremendous victory [and a] green light" to cultivate diversity on America's college campuses.

Since the Michigan "victory", the "numbers" tell a discouraging tale. The fall 2003 freshman class at Michigan had the smallest number of African-Americans in 15 years, with a similar decline in the number of Hispanic freshmen. I understand that the numbers were better in the fall of 2004.

It is, of course, not just Michigan. In a survey of 29 institutions with competitive admissions, the Chronicle found that at 18 the number of black and/or Hispanic freshmen declined in fall 2003 compared with the fall of 2002. Only 11 of the 29 saw an increase in the number of black and Hispanic students over 2002.

So what can our campuses do to turn this situation around? Not just in science and technology although they are certainly vitalbut in ALL areas?

In general terms, we need renewed energy and commitment aimed at insuring diversity at our colleges and universities. I've already stressed this point. To augment it, I'll mention four specific things that strike me as especially important if we in higher education are to achieve the levels of diversity necessary on our campuses given changing national demographics and needs.

First and foremost, we need impassioned, or at least committed, presidential leadership with regard to diversity issues. Now, the importance of presidential leadership on many issues is, in my view, often overstated. Presidents tend to get credit for things they didn't really influence and blamed for things they couldn't really control. But when it comes to change, and most especially change regarding issues of diversity, presidential leadership and commitment are absolutely crucial.

I say this because, despite the general perception of being hotbeds of liberalism, universities are among the most tradition-bound, conservative organizations in society. Change is not a popular concept in academe.

In a way, it is one of our strengths. It has enabled us to sustain rock-solid values and avoid becoming faddish. But on those issues where we do need change, our traditional way of doing things becomes an enormous impediment. Without presidential commitment and leadership in an area like diversity, progress will be difficult. As part of the presidential "team," you - the members of NACUA -- play an especially important part in these efforts. I know at both UMCP and OSU, I relied a great deal on my legal counsel to help define and advance our diversity agendas. We need boldness and creativity in this area, not the status quo. As chief counselors and advisors to presidents, the members of NACUA have greater capacity to support change regarding diversity on our college campuses than in almost any other area. It's an area of influence I urge you - in the strongest possible terms - to exert.


This leads me to my second point and here again, your role is vital.

We must systematically reverse the troubling decisions made on campuses across the country over the past decade regarding Affirmative Action programs. As the attacks on Affirmative Action increased, as legal and legislative actions mounted, many campuses "voluntarily" backed away from race-conscious recruitment and retention programs. They did so out of fear of legal challenges. It was distressing to see how timid many in higher education became. Clearly, members of this organization can lead the effort to rebuild the very programs aimed at increasing diversity on our campuses. You are the professionals who know how far we can push the envelop, and push it we must.

An especially important area for us to explore is financial aid, and race-conscious financial aid in particular. This is an area I know something about because of a case called Podberesky v. Kirwan. At the University of Maryland, we had a scholarship program -- the Benjamin Banneker Scholarship -- that was a very successful in increasing participation rates of African-American students. The program was ruled unconstitutional by the U.S. 4th Circuit Court of Appeals. We tried to appeal the case to the Supreme Court, but our petition was denied. This action by the 4th Circuit had a chilling effect on race conscious financial aid programs in Maryland and across the country.

Now, as I mentioned, I'm not a lawyer, but it seems logical to me that if there's a compelling national interest in creating diverse campus communities, as the Supreme Court just ruled, it should be legal to use financial aid in ways to help achieve this end. In this regard, our states and universities have become a major part of the problem. In order to "buy" students with high SAT scores, students I might add who disproportionately come from the upper middle class and who would almost certainly be going to college under any circumstances, our universities and many of our states have made a significant shift of financial aid resources away from need-based aid toward merit aid. Now, I am certainly in favor of "rewarding" merit. But these practices are having a very negative impact on efforts to promote diversity in higher education. Perhaps some of you saw the recent report released by the National Center for Public Policy in Higher Education. It notes that huge reductions in state support to colleges and universities, the resulting dramatic increases in tuition, and the absence of adequate need-based financial aid resulted in more than 250,000 qualified students being denied access to college last year. A quarter of a million studentsa disproportionate number of whom are minoritiesshut out from participation in what in this day and age has become America's primary ladder of opportunity. This should be seen by all of us as unacceptable. Again, this is an area where NACUA members can exert considerable influence, and I hope you will.

The third point I want to mention is the importance of a campus wide engagement in diversity goals. It starts with the president but for real progress to occur the leadership's commitment must be translated through conscious, systematic and persistent strategies to the entire university. Diversity goals and achievement must be shared widely and progress toward them must become a badge of honor for the university.

Let me give you one example of what can happen when this combination - presidential leadership and campus wide commitment - occurs. It is the Meyerhoff Scholarship Program at the University of Maryland, Baltimore County, which is perhaps the nation's premiere initiative to increase minority participation in science and engineering. Last year's entering class of Meyerhoff Scholars numbered about 60; 65% of whom were African-American and 10% Latino. Overall at UMBC, African-Americans represent 15% of student population, and Hispanics less than 3%. So you can see that aggressive special recruitment strategies are involved with this program.

UMBC President Freeman Hrabowski was the creator of this program. He is also its strongest supporter, top recruiter, and most vocal "cheerleader." But the success of the program lies in his ability to get the vast majority of faculty and staff at UMBC to enthusiastically support the program. The university has come to see the Meyerhoff Program as one of its points of pride. Faculty and staff members from all corners of the university are engaged in special enrichment activities that are a crucial part of the program's success.

The results are phenomenal. Over 500 students have graduated from this program since its inception. The graduation rate from the program - not the institution - is 90%! Seventy-five percent of these graduates have continued on to PhD, MD or MD /PhD programs. Recent graduates have gone on to graduate studies at UCLA, Stanford, Berkley, Duke, Emory, Georgia Tech, UVA, and MIT. The Meyerhoff Program draws 80% of its students from within the state of Maryland. Now this is a very important point. Imagine if just one university per state implemented a similar program. Think of the difference that could make in addressing the under-representation of African-Americans and Latinos on our faculties in science and technology. The Meyerhoff Program demonstrates what presidential leadership combined with campus wide commitment can accomplish in support of diversity.

The fourth and final effort I will mention is more focused on our long-term goals. It is the need to establish stronger partnerships between higher education and K-12. To develop our nation's workforce and educated citizenry, higher education is dependent upon the products of our partners in the K-12 sector and our K-12 educational system is in trouble...deep trouble. That's not news. But, the long term consequences of the failure to reform and improve elementary and secondary education - and higher education has a major responsibility in this regard -- are a huge threat to our nation in this knowledge era.

A few months ago, Bill Gates spoke to the Governor's Association. In his talk, he mentioned a shocking statistic. For every one hundred 8th graders today, only 18 will graduate from college in 10 years! Eighteen! What, I ask you, will those other 82 be doing in the America of 2015?

In my view, one of the great under reported stories in America today is the drop out rate from high school. The US now ranks 17th among the industrialized nations in high school completion rates. We don't fare all that well with our high school graduates either. A few years ago, we ranked number one in the world in the percentage of high school graduates that go on to college. Among the industrialized world, we now rank number 7, and are the only such nation with a declining college-going rate.

Unfortunately, the dropout rate along the route to a college degree is greatest among African-American and Latino students. For example, in 2002, 17% of African-Americans over the age of 25, as compared to 29% of whites, had a bachelor's degree.

Additionally, what stands out is that many of the underrepresented minority students who do go on to college are ill-prepared for college work because of the inadequacies of the largely segregated schools that serve these students. A recent study of minority freshmen in California's public colleges and universities determined that nearly three-quarters of all black freshmen and almost two-thirds of all Latino freshmen needed developmental mathematics courses, while over 60 percent of both black and Latino freshmen required developmental English education. Now, more than ever, colleges and universities should be involved in K-12 education not only because of the moral imperative to do so, but also for "enlightened self-interest."

In Maryland, we are engaged in efforts that link the University System with the K-12 sector through what we call our K-16 Council. The Council is co-chaired by the state superintendent of schools, the state's secretary of higher education, and me as Chancellor. It includes college and university presidents, principals, school board members, faculty members and business leaders. We initiate and monitor teams from our various constituencies working - with some success -- on issues like teacher preparation, K-12 curricula and standards, and the alignment of school testing with college entrance requirements. All this is done in an effort to ensure two goals: higher education access and success, especially for our state's growing number and proportion of minority students.

So that's my list of what we need to make our universities more reflective of our national demographics: presidential leadership, campus wide commitment, a rededication to and renewal of programs aimed at increasing diversity, and a meaningful, not just rhetorical commitment on the part of higher education to K-12 education reform.

I will close with one final observation. We recently commemorated the 50th anniversary of the Brown Versus Board of Education decision. While five decades later there are some important successes to trumpet, an honest assessment is that, as a nation, we find ourselves still struggling with issues of equity and inclusion in higher education and in the larger society. But there is a huge difference. Five decades ago, our nation was not nearly as dependent upon the products of higher education as it is today for its economic security and social well being. If the next five decades do not produce much greater progress than the past five in assuring broad access to higher education, I do not see how we can sustain our position as the world's economic super power and the leader in scientific and technical innovation. Something has to shake us out of our complacency because our current trajectory will take the U.S. to a place no one in America should want our nation to go. I'm enough of an optimist to believe we have the ability to overcome these challenges if, and this is a huge IF, we just have the will and vision to do so. I know one thing for certain: Nothing is more deserving of our time and attention, nor more important for the future of our nation.

Thank you.