Achieving Diversity on Campus: Professor Theodore Shaw Writes on How to Get it Done Legally

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New York, June 15, 2010—There is little dispute about the need to increase diversity among college students pursuing careers in science and technology. But what is less clear is how to achieve that goal and also withstand legal challenges.
 
That complex balancing act is the topic of a comprehensive handbook co-authored by Professor Theodore M. Shaw ’79 of Columbia Law School written for the American Association for the Advancement of Science and the Association of American Universities.
 
“These fields have been old-boy networks. Often women don’t feel welcome,” Shaw said. “It comes down to who gets mentored and doesn’t get mentored. It isn’t invidious. People replicate or want to replicate themselves.”
 
 The handbook is particularly concerned with how to legally carry out diversity programs in the so-called STEM fields—science, technology, engineering, and mathematics. While women earned 58 percent of bachelor’s degrees in 2005, they only received about half of the bachelor’s degrees awarded in science and engineering since 2000. Similarly, Blacks, Hispanics and Native Americans accounted for just 18 percent of bachelor’s degrees in STEM fields and 6 percent of PhDs in 2005-06, according to the report.
 
As fewer American students go into these fields, the U.S. risks becoming less competitive with other nations, which Shaw said potentially poses a danger to national security if the technology gap widens too deeply.
 
“While immigrants will continue to make significant contributions to STEM fields in the U.S., we really need to have American citizens in some of these jobs, especially some that involve national security,” Shaw said. “The demographics demand that more minorities and women get into these fields.”
 
This is familiar territory for Shaw, one of the nation’s leading civil rights lawyers. While at the NAACP Legal Defense and Education Fund, where he last served as president, Shaw was lead counsel in 2003 for a coalition representing Black and Latino students in Gratz v. Bollinger, a case that reached the U.S. Supreme Court, which challenged undergraduate affirmative action policies at the University of Michigan. That case was joined with Grutter v. Bollinger, where the affirmative action program at Michigan’s law school—where Shaw once taught and helped to fashion the admissions policies upheld by the Supreme Court—also came under attack.
 
The Supreme Court held in Grutter that it is a compelling interest for race to be used as one of many factors in the pursuit of a diverse student body, though it cautioned that any consideration of race must be done in a holistic way.
 
“There are many highly selective institutions that are very concerned and committed to doing something about the dearth of minorities in these fields. What they want to know is that they are on as solid legal ground as they can be,” Shaw said.
 
It is one thing for race to be taken into consideration for admissions. But it’s another matter to get students into the pipeline so they are in a position to apply. Minorities are less likely than Asians and whites to take advanced science courses in high school, which can only worsen the STEM disparity going forward, according to the report.
 
“Under-represented minorities and women … represent two-thirds of the U.S. workforce, but hold only one-fourth of the science and technology jobs that drive the global economy,” the report warned. “Caucasians and Asians presently represent the vast majority of the STEM workforce and have the most experience, but they are aging. Moreover, the university faculty looks glaringly unlike the undergraduate student body.”
 
Even when there is not outright discrimination, women and minorities can still face other barriers, Shaw said.
 
The handbook is meant to serve as a blueprint for universities who want to steer clear of the courts while promoting diversity. Still, Shaw says it’s possible the Supreme Court, more conservative since the 5-4 Grutter ruling was handed down, could decide to revisit affirmative action policies.
 
“What the Supreme Court could do if there is a legal challenge to efforts to make these fields more inclusive is anyone’s guess,” Shaw said.
 
Shaw wrote the handbook with three other lawyers at Fulbright & Jaworski, where he is of counsel, along with lawyers from EducationCounsel, an education advocacy group.
 
 
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