WHAT WE CAN LEARN
FROM OTHER EXPERIENCES
IN HIGHER EDUCATION
Troy Duster
University of California, Berkeley

Professions and the institutions which serve them tend to view themselves as having unique traditions, values, skills and missions -- even callings. While to some degree this is true, from the perspective of students of higher education, there are strong patterns of parallel trends and forces for a wide range of academic disciplines and professional schools. These parallel experiences and subsequent institutional and organizational dilemmas are particularly salient when we look to the changes that are occurring and have occurred over the last twenty years in institutions of higher education around the shifting demographic composition of undergraduate and graduate student bodies. The experiences of other institutions -- both educational and corporate -- as they have confronted contested terrain around issues of gender, race, and ethnicity, can help clarify the strategies for addressing these areas of conflict or contest within schools of law.

I. RECENT SOCIAL AND DEMOGRAPHIC CONTEXT

In the last two decades, the great majority of colleges and universities throughout the United States have had to come to terms with an increased consciousness of the ethnic, racial, cultural, and social diversity of their students. While this has been especially true for those institutions located in or around our major urban areas, even those colleges without notable social demographic shifts (e.g., rural Nebraska, northeastern Massachusetts, or southern Oregon) have experienced the "winds of change." Sometimes this takes the form of purposeful recruitment to "increase the diversity" among faculty, students and staff. Sometimes there are pressures for a more inclusive curriculum than has traditionally been offered. New students pressed for both faculty recruitment and curricular innovation to redress historical exclusions. Thus, while it can certainly be argued that "demography, not demagoguery"⁴⁴ was the impetus behind a number of institutional changes, the changes came only after considerable resistance, were made with reservations, and continue to be the focal point of heated contestation.

However, the public discourse around these developments typically occurs without appreciation for the larger context of this recent and rapidly shifting urban demography. In the last quarter century, America's urban population has undergone the most dramatic racial re-composition in its entire history. Beginning in the 1970’s, the ten major metropolitan areas each experienced a precipitous increase in the proportion of residents who are non-white (see Table 1 on page 39). Note that New York City drops from about 75 per cent white in 1970 to 38 per cent white in 1990; San Francisco goes from 75 per cent white to 43 per cent; and for Los Angeles, the drop is even greater, from 78 per cent to 37 per cent white in 1990. There is a similar pattern for almost every major metropolitan area in the nation, and all this has occurred while the racial segregation of the population, by residence, increased. Residential racial segregation in our cities began to solidify in the period from 1940 to 1970, shaping public school segregation, segregation of medical care, and a host of ancillary institutions.⁴⁵

If we go back to the decade of the 1960s, the nation’s system of higher education was de facto almost completely racially segregated: basically either all-white or all-Black, with at best a one to two per cent variation at some major institutions. Thus, the traditionally Black colleges were routinely at least 99 per cent Black, and it was the rare traditionally white college that was less than 97 per cent white. School segregation mirrored urban and suburban residential segregation by race.

A relatively small 2-4 per cent change in these figures at elite colleges and universities was a mere ripple experienced as a shock wave that would reverberate through the entire institution, and thus into the public sphere. For example, in 1960, Blacks constituted only 4.3 per cent of all college-enrolled students in the United States⁴⁶ and most of these were in the traditionally Black colleges in the South. As late as 1967, Ivy League schools had a total enrollment of only 2.3 per cent Black. And for the same year, 1967, Black enrollment at "other prestigious institutions" in the country was only 1.7 per cent. By 1980, the proportion of Blacks in the Ivy Leagues had more than doubled (from the 1967 figure), but they still constituted only 5.8 per cent of the students.⁴⁷ By 1975, the proportion of Blacks in American higher education had also more than doubled (from the 1960 figure) to reach 9.8 per cent, and Blacks were for the first time in history "integrated" into mainly white institutions.

Data from the American Council on Education’s National Norms for Entering College Students reveal that in the Fall of 1970, nearly 87 per cent of college students in America were white. Nine per cent were Black, and the combined total of Asian-Americans, Native Americans and Others was a mere 2.2 per cent.⁴⁸ In contrast, the most recent figures available reveal that white students are now only three-quarters of all college students in the nation.⁴⁹

II. CRITICAL MASS AND CURRICULAR CHALLENGE: GENDER AND LAW SCHOOLS

With a substantial increase in the proportion of women and previously underrepresented groups within the student body, a critical mass eventually is reached. The point at which this mass becomes "critical" is not absolute, but contingent upon the salient social, political, and cultural context. With the critical mass comes a transformation of the politics of identity and often an attendant interest group political mobilization, the development of social, political, and cultural advocacy organizations, challenges to the institution in terms of the gender and ethnic/racial composition of the faculty, and the importation and integration of curricula which address issues of gender and ethnic and racial stratification (including the de-construction and reconstruction of traditional categories of knowledge).

In another segment of this report, Professor Teitelbaum summarizes the sharp and dramatic changes in law school enrollment by gender over the last three decades. He notes that in the 1965-66 academic year, women constituted only 4.2 per cent of the students studying for the J.D. in American colleges and universities. The most recent data for 1993-94 reflect a ten-fold increase during the last thirty years: women now constitute more than forty-three per cent of law students in the country.

In contrast, while students from communities of color have seen some notable progress in terms of their increased numbers and percentages over the last three decades, they are less likely to have reached the critical mass necessary to make their presence as strongly felt. The challenge to the curriculum from women has produced a number of new kinds of curricular responses and intellectual developments, from feminist jurisprudence to courses on Women and the Law. Even though students of color have far fewer numbers, their role in the push for curricular change has been noteworthy, with a sufficient constituency to produce programs of study in Critical Race Theory, for example. Clinical programs now often reflect both sets of these new populations and their concerns -- including programs that serve battered women, migrant workers, and other previously excluded groups.

Perhaps the major lesson that law schools can learn from other sectors of higher education is that issues of access are quite different from issues of engagement, once access is achieved at even some modest level. To put it another way, "just because one has a ticket to the theater is no guarantee that one will enjoy the show." When students from groups where there has been historical exclusion arrive in sufficient numbers to mobilize and challenge, they not only request inclusion as "admittees" but also inclusion into the curriculum.

III. COMPETING ESSENTIALISMS: A CONFRONTATION BETWEEN "THE CANON / CORE VALUES" AND "CORE CULTURAL IDENTITIES"

For the past two decades, major institutions of higher education have been visited by a profound discord about the meaning and implications of the new student body and its impact on the quality and content of the educational enterprise, including the shape and purpose of the curriculum, and the very character of knowledge. From the perspective of the predominantly white and male senior faculty at these colleges and universities, the current critiques of the orientation, bias, and focus of the academic curricula are frequently, even commonly perceived as an assault -- unwarranted "political" attacks on the core values of the institution.

In sharp contrast, to those who constitute the new and emerging critical mass of students, the calls for reform and curricular change are vital projects to give legitimate voice to the silenced and the ignored. With a level of moral authority and even indignation, they justify their demands and activities as imperatives to provide an arena for the expression of women and people of color. Moreover, their interests are not only in the content of curriculum but also in the staffing of faculty and administration and in the funding priorities of the institution. To these advocates of new agendas and new social and cultural identities, the emerging critical mass fueled by a new demography of student enrollment signals a welcome portent, a compelling change that is long overdue. They therefore deride the reactions of the predominantly white male professoriate (as being under assault) as nothing more than an effort to sustain a period of white, male dominance, patriarchy, and cultural colonialism reflected in the scholarship for the past millennium.

This conflict of images is sometimes so different that neither side recognizes itself in the caricature provided by the opposition, and so has no use for serious engagement nor dialogue about the other’s version. In a classic case of figure and foreground, what is seen as an affirmation of new forms of knowledge by previously underrepresented students (assuming there are enough to achieve a critical mass) is seen as a reduction and diminution of the canon by those who experience themselves as guardians of the dominant values, paradigms, journals, and professional associations of scholars in the major disciplines. The effort to assert a relevant and culturally affirming agenda around curricular enrichment that extends beyond the Judeo-Christian European tradition is seen as an effort to dilute and politicize the dominant curriculum and to re-align the personnel and governance of dominant institutions. In the sharpest conflicts these competing points of view are presented without self-reflective distance as two holistic, elementary essentialisms.

While when seen from afar both essentialist views appear to be overstated and not amenable to compromise, the actual extent of curricular change is slow and limited. When compared to the remarkable changes in the undergraduate student population, changes in faculty hiring (of both women and people of color) have been quite modest. The tenured faculty across the nation tend to be overwhelmingly white and male (approximately 85 per cent), throughout all disciplines. And even when women, who have made the greatest strides in diversifying the faculty, are appointed to professorships, they have made negligible inroads in the teaching of the "core" curriculum. Once again, Lee Teitelbaum’s essay provides strong evidence that little change has occurred in, for example, the gender make-up of law professors who teach basic courses like constitutional law, real estate, and contracts; women, by contrast are "overrepresented" in teaching classes like family law and poverty law, which in turn attract disproportionate numbers of women students.

The essentialist critique gains a measure of legitimacy from its efforts to incorporate diverse views and cultural viewpoints. Nonetheless, some of the attempts are easily the subjects of caricature when they seem to celebrate a binary version of truth-seeking. Once again, the lesson from these opposing essentialist dialogues on college campuses (where there are no law schools) is that a substantial schism still divides the guardians of the "traditional canon" from the advocates for an independent and substantial place for supplementary curricula and newly-trained faculty to help teach the new curriculum.

Where efforts have been made to incorporate multi-cultural elements into the existing curriculum, such as the American Cultures program at Berkeley, these changes have stimulated an infusion of new literature, historiography, and social scientific perspectives into the study of humanities and social sciences. In reality, then, while there are strident public voices opposing these developments, efforts to integrate a diversity of voices and viewpoints do not appear to most students or administrators, or even to most faculty, as a threat to the tradition and content of the enterprise of higher education. In part, the dominant curriculum can absorb new sources, literature, narratives, methods, and voices without serious distress because the canon is neither so fragile nor so fixed as its defenders would suggest. In practice, the history of American higher education, particularly of American public higher education, reflects a process of considerable elasticity with continuing efforts to incorporate new perspectives and practices into the core curriculum of the universities.⁵⁰

IV. LESSONS FROM THE HISTORY OF HIGHER EDUCATIONAL TRANSFORMATION

Indeed, it is perhaps only in the long historical view of the processes of curricular change that one finds the current "crisis of contestation" not only understandable, but part of a deep and resonant continuity with similar struggles from the past. In the first century and a half of the nation, the early colleges were private and Protestant denominational and saw their mission as one of combining elements of European classical education with moral and religious education. However, this version would be largely transformed over the next century and a half, eroded by the unrelenting realities of American pragmatism in the eighteenth and early nineteenth century. The curriculum became both more secularized and infused with the influences of the new sciences that developed and emerged, most especially by the middle of the nineteenth century. By the late nineteenth century, public funds were extended to develop the great land grant institutions of higher education. From 1870 to 1920, the large immigrant population from Europe would greatly change the nature and meaning of education. For example, in the 1920’s, when 85 per cent of the population had at least one parent who was foreign-born, education played an important role as a vehicle for cultural assimilation.

The gradual transformation of American higher education has been a story of a continuous process in which colleges have adapted to changing social, nativistic, and scientific trends; this history shows that the last fifty years have involved an important but continuous extension of social enfranchisement. This process has followed and reflects the graduated process of political enfranchisement and charts shifting conceptions of democracy, citizenship, and social justice. For example, the current "one-man, one-vote" doctrine is a long way from the selective enfranchisement that entitled less than 20 per cent of the populace to vote at the beginning of nationhood. Inclusion in and access to higher education have mirrored enhanced participation in other realms of public life.

This process of progressive enfranchisement has been integral to the development of American higher education in many ways. The GI educational grants after World War II and the Korean War constituted a quantum leap in broadening the use of higher education as an instrument of secondary social enfranchisement. Indeed, one irony of the current period is that many of the most passionate and public advocates for an unalterable canon are the sons and daughters of immigrants who attended colleges and universities when the canon was being stretched and tailored and altered by larger economic, demographic, and political forces. Even a cursory social history of higher education in the United States reveals that a singular core canon is a mythological construction.⁵¹ It is mythical because it is not tailored to the reality of the changing composition of the curriculum, the changing role of higher education institutions, and the changing character of the student body. As professional schools with a mandate to train students for a career, law schools are certain to face increasing pressures to be responsive and adaptive to these social transformations, and there is nothing new in that.

Table No. 1*

TEN LARGEST METROPOLITAN CORES:
PERCENTAGE WHITE