Even when a Supreme Court decision seems clear about what it wants, that doesn’t mean their decisions always conform to expected outcomes.
In 1986, the Court ruled in Batson v. Kentucky that prosecutors were not allowed to strike potential members of a jury because of race. The intended outcome of that decision was to eliminate all-white juries. As a result of the Batson rule, a Court decision that was designed to create more diverse juries, juries actually became less diverse. DA’s were then trained to stop mentioning race. No matter how preposterous their reason for excluding a juror, as long as they didn’t say race, there was no issue. The funniest perversion of the Batson rule was when a prosecutor asked to strike a juror because they were a Mason. Masons, the prosecutor argued, have their own system of laws and traditions and as such they don’t make good jurors. When the juror explained that he was a mason in that he laid brick (as opposed to being part of the Freemason society), he was still struck.
In 1989, the Supreme Court was asked to rule on whether or not the “reasonable person” standard could be applied to the actions of a police officer. The reasonable person standard had been long used as a way to judge whether someone was legally culpable for some action that caused harm – if a reasonable person would have done what they did, then the outcome was legally defensible. Graham v. Connor was the first time that standard was applied to the police. Up until then, officers had been exempt from those considerations. At the time of the ruling, police unions across the country protested. They argued that the ruling placed an unfair burden. In the decades since the ruling, the Graham test has become a favorite of the very union that fought against it. It has been used in a myriad of police brutality and police shooting cases, exonerating officers all over the country. Again, the outcome of the ruling was the opposite of its intention.
Today we sit in the wake of the Harvard Affirmative Action case, and I, like so many others, am anxious to see what comes next. My fear is that all the gains we’ve made in creating diversity at our institutions will disappear overnight. I think my fear is a valid one. That being said, maybe history has something to tell us. Maybe the important question is this one – does Harvard actually care about diversity?
I hope the simple answer is yes. To be clear, I don’t have any special knowledge of Harvard’s admission office. Everything I’m going to write below is pure speculation – Harvard is a stand-in for elite institutions the country over. That being said, I think Harvard, like many places, values visible diversity. Like many of us, they want their school to look and feel diverse. Affirmative Action has allowed them to create this visible diversity. But maybe it’s also been a band-aid, a way to mask the diversity that doesn’t exist. Maybe Harvard has accepted students of color with the expectation that they behave exactly like their white counterparts. Maybe they want to feel good about the diversity they see without having to live the real experience. I think the next few years will tell us a lot about what Harvard actually values.
CUNY Law School has a club for single mothers. There are so many single mothers at CUNY that they have an organization to support each other. I don’t know this for a fact, but I bet Harvard has none. This is probably because CUNY has designed their classes to make it possible for a single mother to attend. They’ve thought about how to create policies and procedures that would allow single mothers to thrive. They’ve redesigned the curriculum to think about what a law degree really means and then changed their school to serve accordingly. They didn’t just admit students and then expect them to all have the same experience.
More than a quarter of the students at CUNY Law have full-time jobs. I would bet most Harvard students have none. Some kids might work part-time, but it’s likely not possible to have a full-time job and also attend Harvard Law. They might value diversity, but have they done the work to make sure a truly diverse group of students can attend the school? Are we simply accommodating or are we restructuring our institutions with diversity in mind?
Diversity can mean a lot of different things. But if you value diversity, you have to believe that Harvard Law would benefit from having single mothers and working people among its student body. So what does Harvard want? Visible diversity so that the school looks good or actual diversity that challenges it to be different? Don’t get me wrong, I believe that visible diversity is important. My point is that if you truly value diversity, visible diversity wouldn’t be the only thing that mattered.
I believe the Harvard case offers us an opportunity. There is no predetermined outcome – time and again, Supreme Court cases have seemed to be about one thing and the outcome has been the opposite. Instead of worrying, maybe the better thing to do is to consider. To consider what kind of diversity we’re talking about and what kinds of diversity our institutions are prepared to handle. In many schools, affirmative action has given us the latitude to create visible diversity. But is that the perception of diversity or is that the real thing? Maybe this is a chance to think about what we really want and how we can get there. Maybe it lets us restructure instead of accommodate.
Shuja Khan
Director of Enrollment Management
Rowland Hall