Before Lee Bollinger was a university president, he was a lawyer.
This is readily apparent in Bollinger’s short book, A Legacy of Discrimination: The Essential Constitutionality of Affirmative Action, co-authored with Geoffrey Stone. Relying on decades in the limelight as a defender of race-based admissions, Bollinger draws on his own experience as he makes a strong legal case for these policies’ constitutionality.
Bollinger, previously the president of the University of Michigan president and currently president of Columbia, has been a central figure on diversity and inclusion on college campuses over his career. While at Michigan, he was a key player in Grutter v. Bollinger, a 2003 Supreme Court decision essentially upholding the use of racial preferences to promote diversity.
Now, after 21 years at Columbia, the longest presidential tenure in the Ivy League, Bollinger plans to step down in June—the same month the Supreme Court is widely expected to roll back affirmative action. Two cases before the court seek to overturn Grutter and allege Harvard and the University of North Carolina discriminated against white and Asian American applicants during the admissions process.
Amid this backdrop, Bollinger’s swan song of a book, released a few months ago, emerges as a last-ditch clarion call. I never think of Bollinger, a soon-to-be 77-year-old with wispy hair and a boyish face, as a particularly angry man—but he is in A Legacy of Discrimination, toggling between legal precedent and the United States’ history of cruelty, highlighting the details of systemic oppression at every legal turn. He rightfully warns that we are about to roll back progress and devalue the diversity that defines American education, workplaces, institutions, and America itself.
I recently spoke to Bollinger about his book, his legacy, and the challenges ahead for the country in overhauling its racist institutions. Here are excerpts from our conversation, lightly edited for length and clarity:
This book doesn’t just make the case for affirmative action; it’s essentially a case for diversity in all of our institutions. Why did you write it now?
It’s a case for civil rights broadly. The immediate question before the Supreme Court right now: Is it constitutional and consistent with the Civil Rights Act of 1964 for selective universities and colleges to consider race and ethnicity as a factor in accepting students? If the effective answer will be no, if that is the outcome, it will reverse a half-century of efforts by higher education to try to become more diverse, and it will have profound effects on society, in law, in journalism, in business, in the military.
There’s a second layer of importance: This is also a moment in history where it looks as if the court is on a path now, with the new appointees, to reverse many of the major doctrines and decisions of the Warren Court era, beginning with Brown v. Board of Education. We know most famously now that the court did that with Roe v. Wade.
The third layer of importance is that the United States is struggling—that’s an understatement—to understand what it means to live in a society that is fair and just, and equal and free of invidious discrimination against groups of people.
I often say I am a product of affirmative action. I entered journalism through a program called the Minorities Journalism Workshop when I was 16. Even though Grutter v. Bollinger upheld the ability to consider race in admissions, it changed the makeup of many such programs; the one I was in changed its name and opened itself to everyone, for example. Has there been a chilling effect for some time now on the use of race in special programs and admissions, even though we think of that case as “upholding” affirmative action?
As you know, I was a defendant in the Michigan case. I also led the litigation as president of the University of Michigan at the time. That was the first time a majority of the Supreme Court, five to four, ruled in favor of higher education taking race into account as a factor in admissions for educational purposes. It was the first time that the court solidly declared that principle under the 14th Amendment.
However, the opponents of affirmative action are dogged and determined to continue litigating that question, and have done so year after year, including in several cases before the Supreme Court over the past 20 years.And now with these two cases before the Supreme Court, I think many lawyers over the course of that 20-year period have said to their clients, ‘Even though you have a solid decision, you have to be careful, because the willingness of people to sue is constant.’ Your general point is the right one. There is a nervousness, an anxiety, that exists in the society that you will be sued if you seem to be favoring underrepresented minorities.
Most major corporations have come out and said diversity is a value they uphold. How do you reconcile that with the backlash to affirmative action and what might happen in June?
It’s very common for someone to ask me: What do you say about the fact that a majority of Americans oppose affirmative action in higher education? The numbers are always seemingly striking. When asked ‘Do you think it’s fair to take race or ethnicity into account?’ the answer is overwhelmingly no, in 60-plus percent of Americans polled.
I don’t think you can think about this problem through polls, because it is a very complex matter. You can only illuminate it through conversation and discussion going back to the civil rights era, back to slavery, back to Jim Crow laws.
Your argument relies on Brown v. Board of Education quite a bit. Is there a universe where the Supreme Court banning affirmative action threatens Brown v. Board of Education and what we regard—or so at least I thought—as somewhat sacred in this country: that separate is not equal?
Geoff Stone and I wrote this book because we felt that not only is affirmative action constitutional, it has been extremely successful in helping to realize the ideals of Brown v. Board of Education.
But we also wanted to change the discussion. In an anomalous moment in constitutional history, in the late 1970s, Justice Lewis Powell said that affirmative action for educational diversity was okay under the constitution, but affirmative action as a means of correcting past and present injustices because of invidious discrimination against African-Americans, Latino, and Native Americans was not constitutional.
Ever since then, the discussion within higher education about affirmative action has been blunted by the inability, because of Powell’s opinion, to talk about the reality of discrimination in slavery, Jim Crow, and even up to the present day. And the need for institutions, especially higher education, especially education, to try to correct for that.
So that was the primary purpose of the book, to defend affirmative action. But also let’s change the debate to something that’s real here. Brown v. Board of Education in 1954 is certainly the greatest decision of the Supreme Court in our entire history. It was a unanimous decision by a court with Republican- and Democrat-appointed justices holding that segregation of African Americans from white schools, separate but equal as a doctrine of the Constitution, would no longer stand and that we had to work to integrate society.
We are still in a world, this many decades after Brown, in which massive segregation is as disabling to young students as it was in 1960. Or even 1950. It’s why affirmative action is still necessary in higher education, but it’s also a reason why the ideals of Brown should be reinvigorated and brought to bear on the public-school system, on the housing system, on the criminal-law system, and so on.
Brown was a great decision. It reoriented American society towards our ideals of fair and equal citizenry. We have improved, but we have not come close to meeting those ideals in fundamental ways. Where people live, how they live, how they’re affected by the criminal-justice system, how they are educated, the resources that are available to these schools, are disproportionately skewed. All of these things lead to a society that is still driven by unfairness and discrimination, and one has to recognize that openly, especially in debates about affirmative action. That’s our point.
You also ask Americans to not be apologetic about equalizing the playing field and fighting for what’s right. But I’ve done columns on how white people say they don’t get into college or get opportunities because of their race. What’s the right response to this?
One of the ways in which people who oppose affirmative action have tried to build opposition is by making whites feel as if they are giving up opportunities for others who don’t deserve it.
If you believe the fundamental idea that we shouldn’t favor people just by virtue of how they’re born and raised, and I think most people do, then you have to look at what is happening to particular groups who are faced with a completely unequal playing field in which to compete. Institutions and society need to take actions to correct for that.
One of my colleagues, Ira Katznelson, wrote a book called When Affirmative Action Was White, about how the major social programs after World War II in the United States—programs like the GI Bill, mortgage assistance, housing assistance, Social Security—were put forward in a society which had deeply discriminatory rules and systems.
At that time, many universities would not admit African Americans, and so the GI bill to them was of no advantage whatsoever, even though they had served in the war and were veterans. These programs unfairly advantaged whites. That then gets passed down for generations.
Affirmative action is such a part of your legacy. It literally has its own section on your Wikipedia page. You’re leaving Columbia as the Supreme Court is about to maybe reverse what you’ve been fighting for. Is this how it ends?
There is a bracketing of my career. I came in as president of the University of Michigan in 1997 and immediately the university was sued over affirmative action. I knew the case would probably make it to the Supreme Court. It was critical to defend it. And then I come to Columbia and the court comes down shortly after that with the major decision holding affirmative action constitutional. Now I’m ending my career as a university president some 26 years later with the prospect that it will be severely cut back or possibly even overruled.
Geoff and I were both shaped by the civil rights era. That’s when we graduated from high school, went to law school, became law professors and constitutional law professors, clerked on the Supreme Court. We were steeped in this kind of thinking. To see that being reversed—not just affirmative action, but Roe v. Wade, which was decided the year I was clerking on the Supreme Court, 1973—when you go from a world like that to one in which it’s completely the opposite, it’s stunning. It just tells you that you can’t count on anything in life.
There is this retrograde movement within the law and within certain parts of the political system that is worse than we have seen for many decades. You cannot assume that the world will get better and better. It requires constant effort to make the case.