University of Louisville Debate

An outstanding former Dartmouth College debater, currently the Principal Deputy Solicitor General of the United States, Neal Katyal, was part of the winning legal representation in the 2003 landmark Grutter vs. Bollinger decision.  This was an important case about implementing affirmative action programs in higher education.  The court clearly articulated where they stand on the complex legal position between diversity, academic freedom, and shared governance as noted by the American Association of University Professors, “The decisions also represented an important statement in the academic freedom arena. Not only did the Court uphold educational diversity as a justification for affirmative action, but it recognized the need for deference to educators to determine the best educational environment. “

We are just about fifty years between the time that the all three Branches of our Federal Government created the foundation for Affirmative Action in higher education.  Brown vs. Board of Education (1954), the Civil Rights Legislation (1964) in conjunction with Johnson’s embrace of Affirmative Action through Executive Order 11246 as a means of rectifying “the effects of past and present discrimination (1965)–all created a trifecta of government support for remedying past harms caused by slavery and segregation.

For a moment, let’s consider given the Grutter decision, whether higher education affirmative action could be more effective, or should be eliminated.

Has Affirmative Action worked?  That depends on who you ask.  Many doors have been opened for direct beneficiaries, mostly women and African Americans.  We have a much larger black middle class and growing numbers of women breaking glass ceilings in many fields.

But a more balanced perspective correctly argues that in spite of those gains, we simultaneously have a substantially larger black underclass and many statistics suggesting large numbers of women still face serious inequities both in education and employment.  And Affirmative Action has done very little to improve the quality of life for other minority groups that don’t fall solely into categories of black or woman.

Grutter, concerned with whether Affirmative Action programs create an undue burden on racial groups, suggests that narrowly tailored, temporary, and flexible programs do not.  But if as the Court suggests a unique educational context for understanding diversity issues, should Affirmative Action not also be responsible being a springboard to solve the problems intended by Affirmative Action like the Black underclass?  Isn’t that the only way to reduce the need for Affirmative Action, by using the societal benefits that an individual receives from the program to address the larger societal issues?

The assumption has been empirically denied that giving Affirmative Action to an individual is sufficient to “solve” the problems related to larger questions of institutionalized past and present discrimination. But these problems are supposed to be ones that higher education is uniquely situated to confront.

So more must be done with this societal benefit or it must be replaced with something else?  But let’s not throw the baby out with the bathwater just yet. With a little ingenuity and tinkering, I believe Affirmative Action can in fact, eradicate past societal ills.

Academic freedom is protected in the courts through a system of shared governance between academic institutions, faculty, administrators, staff, and students.  Larry Gerber writes for the American Association of University Professors, “For our institutions of higher education to fulfill their educational mission, teachers and researchers need protections that other citizens do not require. In addition, they need affirmative authority to shape the environment in which they carry out their responsibilities.” Consequently, a system of shared governance provides the lifeblood that protects academic freedom.

Contract law is the delivery vehicle in higher education for that lifeblood, establishing the rights and obligations of both the institution and individual faculty member within the system of shared governance.  Steven Poskanzer’s 2002 Higher Education Law: The Faculty, concludes that “courts have become increasingly willing to recognize and enforce contractual relationships within the academy itself: between the institution and its faculty and between the institution and potential, current, and former students.” (p20)  Kaplan and Lee’s 1995 3^rd edition of The Law of Higher Education says that the scope and terms of the contract come from a variety of places. “The written contract may range from a notice of appointment…to a lengthy collective bargaining agreement…Or it may not be called a contract at all, but a faculty handbook or an institutional policy manual. (p150)”

So why not add a verifiable condition of employment or admissions to recipients of Affirmative Action programs? A beneficiary must also accept as part of their contract the social obligation of using their academic freedom for the purpose of studying and offering solutions to the problems that create the need for the benefit they receive.  Faculty hires would be contractually required to use their professional activity towards solving contemporary problems of race and class, while students admitted in the program would be expected as a condition of entrance to use their academic freedom in classes and activities to do the same.

Students admitted in Affirmative Action programs could investigate the problem in their classes that require papers or projects, over the course of their academic career.  They could work with faculty advisers, also Affirmative Action hires.  The professional activity, teaching, and service of an Affirmative Action faculty member all focuses on the types of problems that relate some aspect of structural discrimination.  An Education professor might focus on the achievement gap.

Think about how this changes traditional areas of criticism about Affirmative Action programs, like merit and stigma concerns if the campus expectation saw these hires and admissions directly related to a broader research, teaching, and service focus serving an important mission of the university,

Perhaps this sets a precedent for similar considerations in other types of Affirmative Action hires, like the marketing executive who challenges stereotypes driving black target audiences or the real estate executive whose purpose includes a fight against redlining.  The possibilities may be endless.

This is the spirit of the “confronting our privileges” idea–that those who came before you created benefits and privileges for you that require social obligation to generate more opportunities in the future.  Higher education is the most logical place for this type of thinking to live.

We enter a time where in 2007 the Supreme Court took a further step away from Affirmative Action programs ruling that using race as a criteria to base school assignments has generally violated the narrowly tailored standard, creating more uncertainty about the future of affirmative action in education.  At the same time, academic freedom given Arizona’s ruling to regulate Ethnic Studies courses makes its future just as uncertain.

Given all of this political uncertainty, isn’t critical reflection on how to significantly improve Affirmative Action in higher education by considering possibilities for a legal defense of “narrowly tailored” as it could relate to academic freedom a worthy topic for discussion?  The addition of the social obligation aspect of the contract could produce the type of narrow tailoring necessary to both preserve the constitutionality of future affirmative action programs but more importantly, to make the programs more effective at addressing the past ills of broad based societal discrimination, and wasn’t that the point?

I exercised my academic freedom by creating a different type of debate program using my affirmative action benefit to create a broader purpose beyond just competition that focused on how we competed.  A second former debater, now coach and close friend, Daryl Burch used his academic freedom in part to teach me the significance of my work, long before I understood it.  He has consistently called me a “visionary,” although now I understand why giving him a similar title is more than justified. I also understand now how in many ways, I exercised my academic freedom at the expense of his.

I have always saw myself in “DB”.  I watched him fight for respect throughout his debate career as a black student in a predominately white activity.  I saw his desire to be considered one of the best during his career.  I also saw parts of his racial transformation that became more directly tied to his coaching career.

I saw Daryl better negotiate the tightrope between wanting to play the game better than everyone else and wanting to change the game.  I saw the similarities of two debate coaches who liked coaching and strategizing more than the administrative side but did the minimum to keep their teams afloat.  We have always had a mutual admiration love affair, and we also bumped heads on more than one  occasion when working together in two stints at Louisville.

Daryl has always been a winner in interscholastic debate.  He knew how to do it and how to coach it.  Daryl should go down as one of the greatest ever because he produces winners wherever he goes, at any level, and those teams win in a multitude of ways.

My reflections lead me to a realization that Burch was in actuality, just as much a visionary as I was.  Having a vision is the easy part, turning that vision into reality, that’s where the rubber meets the road.  Daryl’s vision was through his superior understanding of the game of debate and how persuasion worked to create that vision, tying his superior methods to my vision.  I was impatient wanting to just debate about structural change, and wanting our students to discuss those changes in debates.  Our biggest recurring argument both about how to achieve social change in debate strategy, as well as in life, was about the role of a focus on individual decision making.

Burch better understood Dr. Cornel West’s discussion of the relationship between attitudes and structures in Race Matters than I did.  Burch better understood the relationship between attitudinal and structural inherency.  We would have these heated discussions about personal transformation and how our competitive identity, as well as his personal politics, needed to start with our personal self-reflection.  I wrongly dismissed his conclusions as contemporary debate games that wouldn’t amount to real social change.  The Communication professor was being schooled at so many levels because Burch understand the rhetorical relationship between personal transformation and social change.  I simply didn’t get it, even with a degree.

I do now.  After watching the evolution of debate strategies in high school and college that have Burch’s influence stamped all over them, after my own long overdue personal transformation, I am beginning to see how the method needs to match the vision before successful social change can occur.  The use of “persuasion,” not in the stylistic aspect, but related to influencing humans to change their attitudes and behavior is the necessary precondition to successfully challenging institutions and structures.

Even without a Rhetoric degree, Daryl has understood that for a while, and this reflection recognizes that transformation of affirmative action programs and protection of academic freedom to change the world for good, requires a process of rhetorical assessment that protects productive individual change, whether measured by a debate ballot, adminstrative victories, or superior teaching moments.  I am a witness that Daryl has all of these qualities.  Thanks DB, you are so special and often your strengths go so under-appreciated.  I am sorry for at times being one of those making that mistake. I hope you can forgive me.

With love,

Dr. Ede Warner, Jr.

Director of the Malcolm X Debate Society/Associate Professor of Pan African Studies, both at the University of Louisville