By Ada Meloy, former general counsel at ACE
The legal and societal debate over the higher education community’s use of race and ethnicity as one way to pursue diversity on college campuses isn’t confined to the United States, even if the terminology can be a bit different.
I recently had the opportunity to participate in a lively debate at the Oxford Union, a society founded in 1823 at Oxford University in England to promote debate and discussion both at the university and worldwide. Along with seven other participants, I debated the proposition that, “This House believes positive discrimination is a necessary evil.”
The Oxford Union is run by students, and more than 300 attended the debate. The students frequently exercised their right to challenge the debaters by raising “points of information,” adding even more sparks to an already vigorous argument. At the conclusion of an Oxford Union debate, attendees walk out two different doors to the post-event gathering, one door signifying an “aye” vote in favor of the proposition and the other a vote against it.
My four-person team arguing in favor of the proposition included, Martin Castro, chairman of the U.S. Civil Rights Commission; Carla Buzasi, editor-in-chief of The Huffington Post UK; and Oxford student Toby Fuller. (Photo, left to right: Meloy, Buzasi, Castro and Fuller.) Speaking against the proposition were conservative radio host Erick Erickson, Financial Times columnist Heather McGregor, the Century Foundation’s Richard D. Kahlenberg and Oxford student Martine Wauben.
I was invited to debate at Oxford Union because of ACE’s ongoing advocacy efforts in support of diversity in higher education, and I decided to take to task the language of the proposition itself.
The term “positive discrimination” is a common way in the United Kingdom and other nations of referring to policies that aim to increase diversity and provide equal opportunities for many different types of people, not only at higher education institutions, but in legislatures, workplaces and other areas.
As in the United States, where the Supreme Court in June reaffirmed in its Fisher v. University of Texas at Austin ruling that diversity on college campuses offers unique educational benefits and is a compelling government interest, the debate over “positive discrimination” on college campuses and in wider society is sharp and ongoing. A similar Oxford Union debate last year, “This House believes that Oxford admissions are still unfair,” resulted in 161 “noes” and 123 “ayes.”
Each of the eight debaters was granted eight minutes to make his or her case. I kicked off my presentation by noting that the word “discrimination,” though it has taken on a negative connotation, simply means, according (appropriately enough) to the Oxford English Dictionary, “to make a discernment, to perceive or note and distinguish among differences.” That is something we do every day on many levels.
Over my years of practicing law, including past work as legal counsel to a major university, there were many times I had to let clients know that “discrimination” by itself was not illegal or inappropriate—it merely reflected the objective or subjective decision made from a number of possible choices.
We are not all entitled to equal treatment all the time. We cannot all be winners in every contest in life. We must recognize that positive discrimination is a valid concept, and “negative” discrimination is an avoidable evil. It is that vein that college and university admission officers may consider race and ethnicity as one factor in a holistic admissions review that also may consider geography, athletics, academic skills, parental education and a wide array of other elements.
In short, it was my thesis that positive discrimination is necessary and positive—not evil. And in fact, debaters on the other side made points that tacitly agreed with the nuances of this view. Their arguments—that positive discrimination to support the advancement of women and people from lower socioeconomic backgrounds is preferable to other factors that can support positive discrimination—essentially supported a version of positive discrimination that they found palatable.
The spirited debate gave rise to a very close vote as the audience filed out through the “aye” and “nay” doors to attend the follow-up reception. The final tally tipped against the proposition, however, by a slim margin of nine votes.