As many of you know, last spring the Supreme Court of the United States decided two cases involving diversity-enhancing admissions programs of the University of Michigan. The decisions are commonly referred to as the Grutter decision (the name of one of them). In the midst of the consideration of Grutter Grinnell like many colleges has continued to seek to enhance and also debate diversity. In addition, over the past few years, here and at many other places there has been discussions of the scope and limits of generalized notions of free speech, including speech in electronic fora, a complex and hotly discussed area of the law and overall policy. There was no decision of the significance of Grutter on free speech during the last term of the Supreme Court but I thought that it would be useful to talk about both topics in this opening convocation. I am giving this Convocation on these subjects as a result of a discussion in last year's Executive Council.

Let me start off by framing somewhat what I am going to say. First, I do not intend this as a technical legal address for several reasons. You aren't lawyers and that wouldn't be appropriate. In addition, while the law is a constraint on Grinnell we may in some situations go beyond what the law requires or be more restrained than the law "allows," so, law is a factor but is not and should not be wholly determinative of Grinnell College policy. Second, this is not intended as a definitive statement by the President on our goals for diversity or free speech, but inevitably I will intersperse some of my views about these important topics in this address. Finally, let me say that there is a lot of legal technicalia about the extent that a private entity, like Grinnell College, is bound by certain constitutional rules, like the First Amendment, which apply preeminently to public actors, like states, municipalities or public universities. Some of these rules are made applicable to us by accepting certain forms of federal financing or by the civil rights laws which are legislative and not constitutional but technically some of the law does not bind us.

I. Diversity

There was great anxiety and anticipation about the Supreme Court's decision of the two Michigan cases. In one lower court case, involving the Law School's holistic multi-factored admissions program, it was found to be unconstitutional as constituting an impermissible racial preference, prohibited by the equal protection clause of the 14th Amendment. In the other lower court decision, the Michigan undergraduate, highly numeric admissions program which accorded very heavy weight to certain classes of racial diversity was upheld. There was significant public concern that both plans would be struck down as the federal Court of Appeals in Texas had previously struck down the University of Texas' diversity program in the well-known Hopwood case.

The fears proved to be unfounded. The Supreme Court upheld the Law School's multifaceted, holistic admissions program which did count certain racial diversity criteria as positive weights in the admissions process but it struck down the undergraduate system as either a de facto quota or as too heavily weighted on the side of race. The opinions are long and a lot has been written and more will be written about them. I am going to sketch out my view of the major insights, relevant to us, to be gleaned from them.

First, the Court holds that race or diversity may under certain circumstances be a factor in an admissions program without necessarily violating the 14th Amendment. But it can't be too heavy a factor or a preponderant factor and perhaps it shouldn't be simply quantifiable in numeric terms. The Michigan undergraduate program too heavily weighted diversity status in relation to other factors, like academic achievement, geography, etc. etc. How much is too heavy? I don't know.

It is worth noting that the majority opinion in Grutter is, in effect, very similar to the legal effect in the famous Bakke case of the 1970s. There is one big difference and that is that there was no majority logic enshrined in an opinion in Bakke, merely an order of the Court which struck down the UC Davis medical school racial preference system but endorsed a holistic approach similar to the Michigan Law School plan in which race can be one of many factors. The fact that there is a majority opinion is very important for the following reasons. Racial classifications have almost alone been held to trigger what is called "strict scrutiny," the rigorous test for racial classifications first established in the Korematsu case. For a state to use a racial classification it must show that the classification is supported by a compelling state interest and that any means used are narrowly tailored to achieve compelling interest. In Grutter the majority opinion seems to say that the racial classification inherent in the Michigan Law School plan is narrowly tailored enough to pass strict scrutiny.

Second, for race or diversity to be a permissible factor it must be tied convincingly to educational goals of the institution and must have been adopted to meet those goals. Michigan Law School did this. (I assume, by the way, that a School will continue to be able to use race as a factor to remedy past overt discrimination.)

Third, any plan or program that uses race or diversity as a factor must be subject to periodic review by the School for appropriateness. And at some point, Justice O'Connor writes, the program will almost certainly have to be terminated. She suggested she couldn't imagine the Michigan program going on longer than say 25 years.

Fourth, any such plan or program can have no floors, no ceilings, and no quotas and perhaps no goals and targets. But, a plan can aim to admit a "critical" mass of such diverse students as part of its overall educational basis for seeking greater diversity.

Fifth, a School need not show that it is seeking to count diversity in order to redress a history of deprivation or discrimination. But, again, that may be part of a justification for such a plan.

Sixth, hard and fast quota-like results may be scrutinized very closely to determine if multifactored, holistic plans aren't really secret preference quotas BUT in the absence of evidence of such manipulation it will not be inferred even from pretty stark data. The Michigan Law School admissions system did overwhelmingly advantage racial minorities BUT there were a few non-minority, non-diverse people admitted under it.

These then are the major conclusions or insights of the decisions and they will guide us and others as we seek to continue to achieve greater diversity here at Grinnell. Let me now talk about three ancillary aspects of these decisions.

In several states in which ballot initiatives have been passed barring any consideration of race in admissions by public institutions, like Texas and California, there has been widespread discussion of using economic deprivation, poverty, as an alternative diversity methodology or of accepting some pre-set number of graduates from all high schools in the state. We obviously do not, in light of Grutter, need to do this to appropriately seek diversity or as a diversity surrogate. But, of course, we continue to debate how to promote economic diversity in our enrolled classes.

A second ancillary aspect involves whether an institution may operate a targeted effort, as part of an overall diversity effort, that is racially focused. For instance, can we continue our very successful MSIR program, or our CSMP program or a summer program aimed at certain high school students who are diverse? There are various opinions on this matter. Here is my current view. I think as long as such an effort is part of an overall effort which complies with Grutter then targeted, sub-programs should be permissible unless they are really disguised hiring or admissions decisions. But that isn't true. We don't hire on a permanent basis all CSMPs or MSIRs or admit all students invited to a summer program to attend. I believe all of these efforts are permissible pool- enhancing efforts. The same is true of our Posse recruitment program, which, by the way, includes diverse and non-diverse students. It is part of an overall program of admission that complies with Grutter. And the proof of this is in our overall results.

A third ancillary aspect in this is one that is implicit in the foregoing. As the Supreme Court, particularly Justice O'Connor got closer to the facts in Grutter the majority began to realize how unwise and dangerous if hundreds of institutions admissions policies somehow had to be judicially reviewed periodically for any hint of race favortisim. Our system of higher education, by far the most successful in the world, is premised on lots of different kinds of institutions making lots of individualized decisions about admissions based on non-centralized thinking about what is best for each institution. That ultimately is what Grutter allows and for the most part it will allow us to continue to operate our admissions programs as we have in the past. It may require us to rethink categorical treatment of financial aid based solely on diversity considerations. But this has never been a big thing for us.

While we can, therefore, continue to operate our system, we do need to do several things. First, we need to articulate better and more clearly, and review periodically, whether our efforts to achieve diversity are rooted in clearly articulated educational goals. Second, we will have to review periodically and perhaps at some point end these efforts. Third, we are going to have to discuss and articulate more clearly what kinds of diversity we seek and justify those aims in terms of educational goals. This is a very sensitive issue involving as it does people who are here and a discussion of what kinds of diversity we particularly seek to enhance. For instance, most colleges like Grinnell have focused on traditionally underrepresented minorities and particularly those who are citizens. How do non-citizens figure into our efforts? If we are interested in widening the scope to non- citizens, what races or ethnic categories do we intend to include? And can we show that those we seek to exclude would not also diversify the educational process in important ways? Finally and most difficult, who is in a race? I have heard the President of Brown argue that her children, she is African-American, should not be considered for preferencing in a diversity effort because they have been brought up in a very privileged home.

II. Free Speech

There have been a number of cases decided in the years since the decision in Brown v. Board of Education about race and the equal protection clause, but this number is dwarfed by the huge jurisprudential lode involving free speech and other freedom of expression issues. In addition, unlike diversity, there was no singularly important, earth shattering decision in this area as it relates to colleges during the past term. The Court edged up to a free speech/freedom of religion case (Newdow) in the educational area, involving the pledge of allegiance, but ultimately decided that a non-custodial parent had no standing to challenge his son's presence in a non-mandatory school recitation of the Pledge of Allegiance containing the words "under God." This refusal by the court is illustrative of the great complexity in this area and the current court's unwillingness to throw more ink into already very murky waters.

Even though the Supreme Court is currently not very active in the free speech area, at every good and healthy academic institution claims of free speech or claims of oppression of free speech are not infrequent and the issues require careful and reverential consideration. Let me start my discussion of this issue by saying that the constitutional standards in this area, which is what we are discussing, the First Amendment, apply with even greater tenuousness to a college or university that is non-public because the First Amendment only applies in instances of "state action." At the same time, any good non- public college or university values and upholds a wide respect for, and ambit of, notions of the value of free expression.

Specifically, one of our most cherished values is in the importance, indeed centrality, of what is called academic freedom which is one facet of free speech or expression on campuses. Academic freedom refers preeminently to the right of faculty to speak freely in class, in their research, and in the overall college setting--very freely to be precise. It is something we adhere to also in adhering to the objectives of the AAUP and also in our accreditation regimes.

Are there things or statements that aren't protected by academic freedom? Well in a classroom setting a criminal act, such as an assault or murder, would not be immunized. Nor would a slanderous statement be immune from prosecution. Nor would sexually harassing behavior be immune. So, while someone may be free to say something, he or she may lawfully be prosecuted for certain statements. And colleges and universities also take the position that certain statements of, say, threats aimed at a single individual or also of totally non-germane teaching, may give rise to disciplinary action, or in extreme cases, dismissal. In some rare instances, faculty can even be disciplined for diverging from core beliefs of the institutions. For instance, a Catholic theologian at a Catholic college can be dismissed for holding heretical viewpoints. Faculty can't violate copyright laws or infringe patents or engage in a criminal conspiracy in a classroom setting without liability.

But our core belief is that very wide latitude needs to be accorded to faculty and students in an educational environment, latitude to say wrong things, unfair things, crazy things, untruthful things, and controversial things for our purpose is education and education requires substantial latitude and freedom. And, of course, we are less willing to believe that there is a single truth than previous generations.

Enough on academic freedom which is at its core not a legal concept but a value. What about the law of free speech? Here I am entering an extraordinarily intricate area of caselaw. One relevant area of this law looks at major parts of campuses as public fora, to use a word of the caselaw, or highly open free speech zones. Is free speech totally unconstrained even in free speech zones like a public park? Well no. People can be held liable for slander, crimes, and certain regulatory offenses for what they say or do in a free speech zone. But in general they can't be restrained in advance of speaking in a free speech zone from speaking even though that speech may give rise to liability. So, prior restraints are limited.

But even in public fora speech in the form of demonstrations or noisy events can be subjected to reasonable time, place, and manner regulations. For instance, you must get a permit to march down Grand Avenue in Des Moines. It is also true that certain kinds of speech like political speech or religious speech are less susceptible to such regulations than other kinds of speech, like commercial speech.

Probably not all of a campus, even at a public university, would be held to be a free speech zone, Interestingly, classrooms may not be free speech zones, even though academic freedom is honored there preeminently because a faculty member is entitled to exclude, forbid and protect certain activities and speech in designing and teaching his or her course. Residence halls are probably not free speech zones. So, reasonable rules on solicitation and proselytization may be imposed.

In recent years the enormous complexities of free speech law and licit limits on it have been challenged or claimed for electronic forms of expression with increasing confusion and a welter of results. For instance, can a college limit discussion of an interactive web-based chat room forum mounted on its servers? On what basis? It appears that such fora may or may not be held to be publications by the college and certain copyright holders or other aggrieved parties have surfaced to make claims against the college or university on this basis. We obviously had an instance of this in the case of PLANs and given the objectives of the sponsors of PLANs for a tremendous amount of freedom and also given our unwillingness to host something that included threats of physical violence and other allegedly defamatory or illegal things that forum was moved by its sponsors to a non-campus server. Digital and electronic media are going to continue to spawn new and significant issues that will take years to sort out. They also have produced an explosion of interesting and vibrant forms of expression that are changing a lot of our landscape.

Another issue that caused some stir here was our continued adherence to a rule that no signs can be displayed on the exteriors of our buildings. Some students in the early phase of the discussion of the Iraq war wanted to hang upside down American flags on buildings indefinitely, usually hanging out their dorm windows. The College prohibits exterior signs on our buildings for aesthetic reasons but also because the College would be seen, depending on the point of view of the sign to be engaging in speech itself. No one driving by knows that the sign belongs to student X but rather would see it as Grinnell College speech. The College, as a Code Section 501c(3) charity is prohibited from engaging in certain kinds of political speech. In addition, we take a non-sectarian position on religious matters and exterior signs conflate the College with the speech. Finally, exterior signage must comply with the City's sign ordinance.

We encourage our students and faculty to participate robustly in debates and discussion and other forms of expression about Iraq and other important issues of the day. We also encourage our students and faculty to engage in discussions and to express themselves religiously and in other ways but the College does not endorse any particular viewpoint as an institution.

Several academic institutions, Cornell is an example, have tried to consider issues of freedom versus some regulation of speech and have ended up in two different places. One is an official endorsement of hortatory language about the centrality of free speech and expression without explicit limits, we have such an expression already in our Faculty Handbook. The other is a "speech code" endorsing free speech but limiting speech in certain ways. Those few places that have drafted such a code have in some cases been sued on the ground that they erred too much on the side of restriction by being politically correct OR in the face of withering criticism have withdrawn them. I would be opposed to drafting or adopting a speech code.

A third instance of some friction or modest unrest on the issue of free expression has revolved around claims of conservative students here and elsewhere that they feel "silenced" or that their opinions are ignored or treated derisorily. Our faculty, I think, do a good job of trying to ensure that people feel they can speak up and then treating everyone who does speak up respectfully without regard to viewpoint. But, as I tell conservative students if you don't speak up and instead hold feelings of "being silenced" inside then you are part of the problem. Everyone needs to speak up at appropriate times and contribute. Sometimes people make it clear they don't like our opinions and part of life is listening carefully to why. Maybe you will change your opinion. Or maybe you will be able to reformulate why you hold such an opinion to meet the argument against it that you have now heard. Or maybe you will learn the most important lesson of all, that all of us don't agree and that is not bad.

III. Linkage and the Future

Is there any connection or linkage between the two topics that I have tried to discuss this morning, a desire for greater diversity and an endorsement of robust freedom of expression on campus? I think so. At a minimum, those of us who support both of these view them as important factors in creating and sustaining an excellent educational environment. Education is not just what comes out of the instructor's mouth or what is in a textbook, but crucially involves the dynamic of the classroom and the wider campus, a diverse campus and wide-ranging, relatively free discussion are thus contributors to a good education. So, in the end the two are linked.

And finally achieving diversity and ensuring robust free expression has to be something that we seek, and define and treat seriously everyday. We have to act on it in all of our searches, in our admissions decisions, in the case of diversity. And in the case of free expression we have to have a tolerant and inclusive campus climate that encourages everyone to speak up and to respond civilly.