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Plenary 3

Sheila O'Rourke at Plenary 3 from Future Diversity Conference 2008
 
Sheila O'Rourke at Plenary 3 from Future Diversity Conference 2008

Navigating Innovation and Change in the Current Legal and Political Environment

From the 2008 Conference: The Future of Diversity and Opportunity in Higher Education

Held on December 4, 2008, 9:00 Am to 10:30 AM at the Rutgers Student Center

Table of Contents

The following resources and materials are available for this session:

Panelists

  • Jonathan Alger,Vice President and General Counsel, Rutgers, The State University of New Jersey
  • Sheila O’Rourke,Assistant Vice Provost of Faculty Equity and Diversity, University of California, Berkeley
  • Anurima Bhargava,Director of the Education Practice, NAACP Legal Defense and Educational Fund
  • Arthur Coleman,Managing Partner and Co-Founder of EducationCounsel LLC
  • Nicole Bearce Albano, Member, Lowenstein Sandler PC 

Thematic Summary & Analysis

This session identified creative strategies for advancing diversity in an environment of legal uncertainty. It gave concrete suggestions for how lawyers can enable innovation and facilitate effective and lawful institutional change in the face of legal risk.  The panel was moderated by Nicole Bearce Albano (member of Lowenstein Sandler PC) and included Jonathan Alger (General Counsel of Rutgers University), Anurima Bhargava (Director of Education Practice at the NAACP’s Legal Defense and Educational Fund) and Sheila O’Rourke (Assistant Vice-Provost of Faculty Equity and Diversity at UCLA).

It’s not as bad as you think

Fear of litigation is as potent a barrier to innovation as the constraints actually imposed by the courts, the panelists agreed.  Jonathan Alger summarized the current legal framework, noting that the Supreme Court has reaffirmed that diversity in higher education is still a compelling interest that justifies affirmative action, as long as the program is narrowly tailored to advance that interest.  As Anurmima Bhargava put it, although the Supreme Court since “took some tools off the table for K-12 institutions, in many ways, the ability to think about race and other factors in admissions in higher education context stays the same.  So Grutter lives.”  Anurima Bharava observed that much of the retrenchment in pursuing diversity over the last five years did not result directly from law suits.  Instead, they resulted from an atmosphere of litigation avoidance, cultivated by threats of litigation by the Bush Justice Department and conservative legal advocacy organizations.  She reported that the only federal court challenge that has been filed on admissions since Michigan is the litigation against the University of Texas for the ten percent plan.”    The fear of multiple court challenges has not been realized.

Even the ballot initiatives have been less successful in the last election. Four states – California, Michigan, Washington, and most recently Nebraska--have had successful ballot initiatives that have taken away the ability of public institutions to consider race and gender in public employment, education, and contracting, the most familiar example is California with Proposition 209.  In the past election, however, advocates successfully defeated four of the five ballot initiatives under consideration. “It’s not to say that people are immune and that we shouldn’t really consider that there is a constrained legal environment, but rather, it’s not as bad as you think.”

Using law as an impetus for innovation and change

For each of the panelists, the lawyer’s role involves working collaboratively as an empowering problem solver with university leadership, faculty, administrators, experts and others to advance institutions’ educational goals, and to link diversity to that mission. As Anurima Bhargava said, the important question is  “what are the kinds of opportunities or changes that the prevailing legal standards may engender.”  Sheila O’Rourke spoke about this role from the perspective of the institutional client.  She had been hired by the provost “for the particular role of being able speak back to our Office of General Counsel,” who at that time saw their role as avoiding the legal risk of being sued for advancing diversity.  “And the provost hired me and said, “I want you to make sure that they understand our educational agenda, and you are here to be able to speak back using the lawyers language on behalf of the educational side of the house.”

O’Rourke had a unique perspective on the role of clients in pushing lawyers to be more proactive:

I find it’s more helpful to ask not, “Can I do this?” but “How can I do this?” That we need to not let the lawyers off the hook by just letting them say, “No, you can’t do that.” But really rather than going in with your solution and say, “Can I do this as my solution?”  Go in with the problem and really start with, “This is my educational goal here.” And I think that having that conversation will enable the lawyer to work with you to find a solution that will fit the legal framework rather than having them be able to just end the conversation quickly and move on to the next problem.

Anurima Bhargava also described a new role for civil rights lawyers, one that involves helping universities think through how to design their efforts to address structural inequality, advance inclusion, and achieve legality. 

For example, the Legal Defense Fund “has had really amazing creative relationships with universities to say, “How can we do this differently? And what have you learned from actually being on the other side and thinking about this in a national context that can be helpful to us?”  She made it clear that there are other things to worry about other than getting sued.  ‘If all you think about is how to avoid getting sued’ she said, ‘you won’t do anything.’  Sheila O’Rourke took this one step further, arguing that any diversity initiative would make some person or group of persons unhappy for being under- or over-inclusive.  The question then was not whether the institution would be sued, but whom it wanted to be sued by!  She illustrated the role that bias plays in shaping which risks a particular university is willing to bear.  “No one has meetings to avoid being sued by MALDF (Mexican American Legal Defense and Education Fund), but everyone worried about being sued by Pacific Legal Foundation,” which challenges efforts to increase the participation of women and people of color.

O’Rourke also showed how this kind of bias created an opening to use law to promote diversity, even in California.  Building on the observation that “we only see preferential treatment when it accrues to the benefit of those people who have been historically excluded,” she undertook to define what preferential treatment looks like when it’s accruing to the majority groups.  This analysis turns California’s Proposition 209, which prohibits discrimination or preferential treatment, into a legal theory for exploring whether bias is at work.  It has opened up an inquiry into definitions of merit and changes in the admissions process to make it more inclusive. 

Jonathan Alger grounded his general counsel role in this proactive institutional design role.  “One lesson learned is that we can’t just sit back and say, ‘Well, you know, K-12 is a mess and they have to fix themselves,’ We have to be part of that solution.  I have always perceived my role in a General Counsel’s office with an institution as helping the clients achieve their educational goals, and first and foremost focusing on that educational mission. And if that’s the basis for the programs and then we get sued, I feel a whole lot better.”  Jonathan puts this role into practice in part by asking hard questions.  “This frustrates people sometimes when they come to our office and they have a question, “Can we do this?” And they have a specific program, a specific thing in mind that they want to do. And what do they get? They come to the lawyer’s office and we start asking them a lot of questions. And we want more information, right?  Well, there’s a reason for that. The reason is that in order to be creative problem solvers, we need to understand the context; we need to understand what is it you’re trying to accomplish and why.”

Innovation through Redefining Merit

The panelists identified the project of rethinking merit as a key challenge and an opportunity to advance lawful diversity through institutional innovation.  As Jonathan Alger explained, “the law does not define merit in higher education; we do. The law doesn’t talk about grades and test scores.  “For the most part, the discrimination statutes are not the statutes that define merit, that is largely up to us in higher education; so lawyers and educators need to be talking to each other in order to make these arguments.”

Sheila O’Rourke provided a powerful example of policy change that would value contributions to diversity in tenure and promotion.  This policy change developed through a collaboration among lawyers, faculty, and university leadership.  This language changes how search committees advertise, the considerations for tenure, graduate admissions policies, and begins a process of building diversity as an institutional value into the university’s reward structure.  Lawyers played an important role in enabling this process to succeed.

Lawyers are thus important participants in the collaborative networks needed to advance diversity and inclusion.  As Jonathan Alger noted, “we can be our own worst enemies, through barriers we put up for hiring and admissions.  We have to ask hard questions of ourselves, lawyers can help do that.”   One of the panelists showed how this is done:

And I was recently in a conversation where we were talking about pay equity for faculty. The person in a vice provost role was blah blah blah, regression analysis, blah blah blah, well merit, well productivity, blah blah blah blah. And the General Counsel actually just stopped him and said, “Nonetheless, absent bias, we would expect men and women salaries to be roughly the same.” I think that kind of interruption is a really critical role that General Counsel can play.

Session Transcript

Click here for a full transcript of Plenary 3.

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