Lee Hansen, a professor emeritus of economics at UW-Madison, has caused a stir in academic with an article entitled “Madness in Madison” with the John William Hope Pope Center for Higher Education, a North Carolina-based think tank. The article quotes at length from a UW-Madison guideline entitled Forward Together: A Framework for Diversity and Inclusive Excellence that refers to equity in grading and also references how minority students should be allowed into special programs or high-demand majors. The broad language raises concerns with faculty like Hansen over how professors are supposed to achieve these goals and whether they will be evaluated based on such guidelines. Hansen is a well-respected economist with a long and impressive academic history.

The document contains a definition of diversity that seems to include virtually characteristics of every human on Earth:

Individual differences in personality, learning styles, and life experiences, and group or social differences that may manifest through personality, learning styles, life experiences, and group or social differences. Our definition of diversity also incorporates differences of race and ethnicity; sex; gender; and gender identity or expression; sexual orientation; age; country of origin; language; physical and intellectual ability; emotional health; socio-economic status; and affiliations that are based on cultural, political, religious, or other identities.

It is a challenge to distinguish such a statement on the meaning of diversity from a simple acknowledgment of humanity. It is equally challenging to think of how a professor is to “recogniz[e] [those] individual differences” in teaching beyond recognizing that you have a class of humans rather than androids (which thankfully have not made the list as of yet).

Hansen clearly believes that the school’s commitment to “sifting and winnowing” goes a bit too fall when it comes to race.

The real controversy surrounds the more concrete mandate for “proportional participation of historically underrepresented racial-ethnic groups at all levels of an institution, including high status special programs, high-demand majors, and in the distribution of grades.” Hansen notes that students normally compete for high-demand majors and special programs but could now be told that they must select a different major due to their race or ethnic background. Hansen argues that department chairs would have to create in some cases a de facto quota system where students were excluded or included solely on the basis of their race.

The call for consideration of race and ethnic background in grading is the most controversial. The mandate for “proportional participation . . . in the distribution of grades” has created the greatest outcry. It is not clear how a professor is to guarantee such “participation” in the grade distribution. The obvious fear is that race is supposed to be considered. However, to me, it reads like an aspirational statement that the overall program seeks to better educate all students to guarantee that there is racial equality among the top performing students. However, the concern remains about the measures that a professor must take to try to accomplish this objective:

At the very least, this means even greater expenditures on special tutoring for weaker targeted minority students. It is also likely to trigger a new outbreak of grade inflation, as professors find out that they can avoid trouble over “inequitable” grade distributions by giving every student a high grade.

Hansen adds that this analysis of the available data shows that roughly 25 percent of admitted minority students “do not meet the competitive admission standard applied to other applicants [and] find themselves at an immediate academic disadvantage” at the school.”

The debate at UW-Madison is occurring at a time when the Supreme Court is signaling increasing discomfort with race-based admissions and lawsuits are increasing over allegations that state schools continue to circumvent rules against race as a determinative criteria in admissions (or any criteria in some states with prohibitions). We discussed the Supreme Court’s landmark decision in Schuette v. BAMN that states, like Michigan, can prohibit any use of race in admissions in a “color-blind” state entrance system for colleges and universities.

The court has been struggling in this area for decades. In 1977, in Regents of the University of California v. Bakke, the court allowed only a limited use of race for the purpose of achieving “diversity” in classes. The Medical School at the University of California at Davis set aside 16 of the 100 seats for minorities. The court ruled it unconstitutional but was deeply divided on why — a harbinger for the line of cases that would follow Bakke.

The court spent nearly the next 40 years spinning on the ice of affirmative action, unable to get traction or a clear direction. The court’s split decision in 2003 is illustrative. It was presented with two cases involving the use of race as a criterion in the undergraduate and the law school admissions processes at University of Michigan.

In one case, Gratz v. Bollinger, the court voted 6-3 that the university violated equal protection in the selection of students based on race and other criteria. It then ruled 5-4, in Grutter v. Bollinger, to uphold race criteria in the admissions process for Michigan Law School.However, Associate Justice Sandra Day O’Connor stressed that the court “expects that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.” O’Connor’s statement was ridiculed by many (including some on the court), but seemed to capture the fluidity of the court’s position on the use of race.

In 2013, the court again seemed to produce a nuanced and uncertain decision in Fisher v. University of Texas at Austin, where the court rejected a lower court decision upholding the use of race in admissions at the University of Texas. However, it did not prohibit the use of race but rather sent back the case for the imposition of a more demanding test of “strict scrutiny.”

These cases offered little hope that a “bright line” could be reached to bring resolution of the issue and meant that the court would continue to referee such matters. That line, however, was reached in Schuette.

Michigan voters responded to the divided results in the Grutter and Gratz cases to bring their own clarity to the area. They passed a constitutional amendment that required an entirely colorblind process for selection at state schools (as well as barring schools from giving an advantage to some students based on other immutable characteristics like gender). By a vote of 6-2, the court ruled this week that citizens could do precisely that.

Some academics argue that the guidelines like the ones at UW-Madison represent another form of end run around these rulings by telling administrators and faculty that they are tasked with ensuring equity in grading and participation in various programs. In fairness to UW-Madison, I cannot find fault with stating that goal which after all is part of the academic creed of equity and diversity in education. What some view as a requirement to elevate students by race, others would view as merely an aspirational statement on what we hope to achieve as academics. Hansen however notes that such guidelines are taken as more concrete directions and leave faculty uneasy in how they are supposed to help guarantee such results. All academics are already committed to avoiding racial bias (which is often deterred through anonymous grading) and any such prejudice is already grounds for dismissal of an academic. These guidelines raise greater concerns because of the continuing tension of admissions standard that incorporate race and the lack of transparency over admission scores and standards for academics like Hansen.

What is clear is that even the last two Supreme Court decisions in Schuette and Fisher have done little to quell the ongoing controversy and uncertainty over the use of race in admissions or grading. That promises a continuation of decades of litigation over these issues, which is good for commentators like me but hardly positive for academia as a whole.