Supreme Court Moves Away from Civil Rights

In her recent dissent from the majority decision of the Supreme Court regarding a Michigan constitutional amendment banning affirmative action, Justice Sonia Sotomayor, the first Hispanic judge to serve on the Court, described the perspective of her conservative colleagues as “out of touch with reality.”

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(Image source)

Recall Chief Justice John Roberts’ pronouncement in 2007 that “the way to stop discrimination on the basis of race is to stop discriminating on the basis of race” in the 2007 Parents Involved vs. Seattle School District case that outlawed major avenues for voluntary school desegregation. In direct contrast to this judicial view, Justice Sotomayer wrote in Schuette v. Coalition to Defend Affirmative Action (2014)

Race also matters because of persistent racial inequality in society—inequality that cannot be ignored and that has produced stark socioeconomic disparities.” And she added, “the way to stop discrimination on the basis of race is to speak openly and candidly on the subject of race, and to apply the Constitution with eyes open to the unfortunate effects of centuries of racial discrimination.

We know that the promising resolution of the Brown v. Board Case in 1954 that found “separate but equal” schools for blacks and whites to be unconstitutional has been eroded and successively reversed through a series of Court decisions based on what Harvard law professor Randall Kennedy refers to as principles of “constitutional colorblindness.” From a colorblind, post-racial perspective, America is viewed as having attained a state in which race, ethnicity, gender, and other ascriptive characteristics no longer play a significant role in shaping life opportunities. Consider the statement, for example, of Chief Justice John Roberts, expressing the Court’s opinion in striking down Section 4 of the Voting Rights Act that determines which states and counties must follow strict guidelines that govern changes to their voting laws: “Nearly 50 years later, things have changed dramatically.” A well-documented body of empirical sociological research, however, demonstrates that contemporary racial inequality is reinforced through second-generation forms of discrimination and facially nonracial, subtle practices and behaviors that are threaded through the day-to-day experiences of non-dominant groups within American society.

How did this historical shift occur in the Supreme Court’s view of Civil Rights? Legal scholar Gary Orfield points out that that the decisions of the Earl Warren Court in the 1950s and the 1960s played an important role in stimulating the Civil Rights movement, whereas decisions of a conservative-dominated Court in the later 1980s pushed the country in the opposite direction and even reached conclusions that policies designed to address inequality are unnecessary and unfair. These later decisions, he indicates, have been seen by some scholars as replicating the efforts to undermine Reconstruction civil rights laws that resulted in the 1896 Plessy v. Ferguson decision legitimizing the concept of “separate but equal.” In Dismantling Desegregation: The Quiet Reversal of Brown v. Board of Education (1996), Orfield and Susan Eaton call attention to three little-noticed decisions in the 1990’s in which the Supreme Court articulated procedures for dismantling school desegregation plans that allowed students to return to neighborhood schools, even when segregated and inferior. These decisions reinterpreted the notion of integration as a goal, reducing it to a formalistic requirement that could be lifted after a few years. Decades afterward, as reported by Orfield, Kucsera, and Siegel-Hawley in a 2012 report sponsored by the UCLA Civil Rights Project, 80 percent of Latino students and 74 percent of blacks attended highly segregated schools, with the percent of white students only ranging from 0 to 10 percent. In fact, eight of the 20 states with the highest levels of school segregation are in border or southern states, a significant reversal for civil rights progress.

In the area of public university admissions, the Supreme Court’s decisions related to voluntary forms of affirmative action have abandoned the original remedial purpose of race-sensitive admissions and reinterpreted the Equal Protection Clause of the Fourteenth Amendment in terms of protecting the rights of the majority and preventing what has been termed “reverse discrimination.” As Harvard law scholar Michael Klarman notes, the Equal Protection Clause says nothing about government colorblindness and does not even mention race. Instead, diversity has replaced affirmative action as a compelling state interest, ironically requiring universities to prove that white students and other students benefit from policies that were designed to address a long history of racial inequality.

And consider the recent events in Ferguson, Missouri that are linked to racial segregation, economic inequality, and differential policing practices. As Erwin Chemerinsky writes in an August 24 New York Times Op Ed, recent Supreme Court decisions such as Plumhoff v. Rickard decided on May 27 have made it difficult, if not impossible, to hold police officers accountable for civil rights violation, undermining the ability to deter illegal police behavior.

To what extent does the Court’s conservative drift in the area of civil rights reflect the mood and temper of public opinion? Santa Clara law professor Brad Joondeph reminds us that the Court has never actually played the role of “counter-majoritarian hero,” but rather has been responsive to shifting political tides. The creation of the landmark Civil Rights Act of 1964 was in response to public protests, marches, and collective action undertaken by minorities in support of greater social equality. According to legal scholar Derrick Bell, social movements such as the radical protests of the 1960s are more likely to bring about change when they converge with other interests that may be differently motivated.

In The White Racial Frame: Centuries of Racial Framing and Counter-framing (2013), social theorist Joe Feagin identifies the strategies of both individual resistance and collective action undertaken by Americans of color that have created significant public pressure to address inequality. Feagin indicates that essential to many civil rights protests was a strong anti-racist counter-frame articulated by numerous black leaders and scholars. As he notes, Martin Luther King emphasized the need for collective action to overcome oppression:

The story of Montgomery (Alabama) is the story of fifty thousand such Negroes who were willing to …walk the streets of Montgomery until the walls of segregation were finally battered by the forces of justice (p. 177).

If indeed the Supreme Court mirrors strong tides of opinion within the United States, the admonition of Sonia Sotomayor not to “sit back and wish away, rather than confront, the racial inequality that exists in our society” represents a call to action. In describing the Court’s “long slow drift from racial justice” Columbia University President Lee Bollinger identifies the importance of a renewed conversation about racial justice in order to address issues that will reach the high court. And the composition of the Court clearly matters in matters of racial jurisprudence. According to Klarman, since the Court is not always a defender of the interests of racial minorities, even the appointment of one more liberal judge could have meant that many key decisions could have been decided differently.

Recently, we have seen a few promising signals, such as the ruling of the three-judge panel of the Fifth Circuit of the United States Court of Appeals upholding consideration of race as one factor among many in response to the case filed by Abigail Fisher at the University of Texas. Yet reinfusing our judicial processes with the ideals represented in landmark Civil Rights decisions will require an invigorated national dialogue and sustained attention to how the ideals of justice and equality take shape in the prism of public consciousness and are reflected in judicial perspectives.

 

~ This post originally appeared in the December 2014 issue of Insight into Diversity magazine, and is reposted here with permission. 

Law Partner Tracks & Asian Americans: Struggles to Affirm Positive Self-Identity

Helen Wan’s The Partner Track is a newly published novel that paints a vivid picture of life inside a corporate law firm and the internal struggles and challenges of a female, Asian-American lawyer seeking to become partner. The book illuminates the ways in which minorities and women are still viewed within hierarchical, white male-dominated organizational structures and highlights the particular embarrassment that can result from being singled out to personify the firm’s diversity initiatives. In situations of high competition, minority and female status can even be seen as a threat, since some may mistakenly presume that such status confers advantage.

Ingrid Yung, the protagonist in the novel, is a descendant of immigrant parents from Taiwan, who knows how to speak Mandarin, but prefers to separate herself from identification with her ethnic roots in the presence of a competing, yet socially awkward attorney from mainland China. The nuances of her relationship with her parents are delicately portrayed. Ingrid’s mother addresses her on the phone as “Ingrid-ah”—perhaps reflecting the difficulty in enunciating the syllables in American names. Ingrid’s parents sacrificed much for her success, and are justifiably proud of her groundbreaking accomplishments. As her mother declares, “Nobody bosses my Ingrid around.” It is this unmistakable sense of pride and independence that accompanies Ingrid as she confronts repeated incidents that question her identity, her right to be at the firm, and her competence.

Without revealing the twists and turns of the plot, the most telling revelation comes when Ingrid realizes that it was not hard work that would land her a partnership and that her mistakes would count more heavily than for others. As Ingrid reflects (p. 238):

I had completely bought into the myth of a meritocracy. Somehow I’d actually been foolish enough to believe that if I simply kept my head down and worked hard, and did everything, everything that was asked of me, I would be rewarded. What an idiot.

The novel also chronicles with subtle humor Ingrid’s interactions with the firm’s diversity consultant who has been hired after a tasteless, racialized skit at the firm’s corporate outing. Later when Ingrid is singled out at the firm’s diversity event designed to repair the damage from the skit at the outing, she is unwittingly made the poster child for the diversity initiative and later suffers consequences for her required participation.

Ingrid describes her valiant efforts to stay at the corporate law firm for eight years, hoping that “all of these little humiliations and exclusions amount to something.” As she reflects,

More than anything, I wanted, once and for all, to shake that haunting suspicious that, while my record impressed and my work made the grade, I was ultimately not valued (p, 164).

The themes of the book underscore the research perspectives shared by Leslie Picca and Joe Feagin in Two-faced Racism: Whites in the Backstage and Frontstage.

This study identifies the spatial nature of modern-day discrimination based on the review of the diary accounts of 1000 college students. Based on this extensive research data, Picca and Feagin conclude that performances or comments made by white actors in the frontstage when diverse individuals are present significantly diverge from closed-door backstage performances that occurred when only whites are present. Similarly, Ingrid struggles with her own identity as she gains glimpses of the backstage while she is simultaneously paraded as a model of diversity in the frontstage.

Yet at the same time, there are hopeful notes sounded in Helen Wan’s beautifully narrated story. The novel has much to offer in terms of charting the progressive pathway toward a self-affirming identity for women and minority professionals and leaders. And as Alvin Evans and I highlight in The New Talent Acquisition Frontier, from an organizational perspective, talent is the most important strategic asset necessary for success and survival in a globally interconnected world. As a result, empowering diverse and talented employees and eliminating the spatial separation between frontstage and backstage performances are essential steps in the attainment of social integration and genuinely inclusive workplaces.

Amy Chua’s “Triple Package”: Success Formula for Some?

Is success monolithic and limited to certain groups? Attributes of success cannot be monopolized by certain groups, cultures, ethnicities, or religious groups. Most people that are successful, in fact, appear to have characteristics in common and these characteristics are not driven by their membership in certain groups. The premise of the American democracy is based on the notion that all can succeed through hard work and access to opportunity. In Outliers, the Story of Success, Malcolm Gladwell observes:

Nor is success simply the sum of the decisions and efforts we make on our own behalf. It is, rather a gift. Outliers are those who have been given opportunities—and who have had the strength and presence of mind to seize them.

Yet according to Amy Chua and Jeb Rosenfeld in their new book, The Triple Package, the combination of three cultural characteristics has led to the success of eight groups in America (Chinese, early Cuban exiles, Indians, Nigerians, Mormons, Iranians, Lebanese and Jews): 1) a superiority complex; 2) a sense of insecurity; and 3) impulse control. In fact, they assert,

all of America’s disproportionately successful groups have a superiority complex; in fact most are famous for it” (p. 72).

This superiority complex, they state, is “deeply ingrained” (p. 83). And strikingly, the authors do not support these sweeping statements with research findings or empirical sources of evidence.

Chua and Rosenfeld’s thesis has distinct Orwellian overtones by suggesting that some groups have what it takes to be more equal or successful than others. As NYU professor Suketu Mehta points out in an article titled “The ‘Tiger Mom Superiority Complex’” in Time Magazine,the book represents “a new strain of racial, ethnic, and cultural reductivism,” a sort of “ethnocentric thinking writ large” or what he terms “the new racism.” And, he adds, “I call it the new racism—and I take it rather personally.”

The Triple Package touches on some important themes, but also suffers from a number of critical flaws. Most importantly, the book does not address the nature of structural discrimination that is reflected in disparate historical, economic, and social realities for minorities through the predominance of what social theorist Joe Feagin calls the “white racial frame.” According to Feagin, this frame is comprised of racial stereotypes, racial narratives, racial images, and racialized emotions that shape how many whites behave and interact with all Americans of color. Systematic, structural forms of exclusion of minorities have pervaded access to housing, education, distribution of economic resources, and job opportunities.

Arguably, the sense of superiority of any group is affected by forces of social oppression and the internalization of these forces has an impact on the psyche of affected individuals. Chua and Rosenfeld have correctly identified the fact that blacks have been systematically denied access to a group superiority complex and bear a significant cultural burden by susceptibility to stereotype threat. However, the omission of African Americans from the chapter on impulse control seems to do a disservice to hardworking African Americans who have been highly successful.

Second, the co-authors’ emphasis is on immigrant success. Factors in immigrant success, however, are not representative of the American population as a whole. For the most part, the legal immigration system has provided upper and middle class individuals the opportunity to emigrate to the United States. Take, for example, the fact mentioned by Chua and Rosenfeld indicate that 65 percent of Iranian Americans are foreign born. They also distinguish between the success of the first wave of Cuban immigration between 1959 and 1973 which included an influx of mostly white middle and upper class professionals “at the pinnacle of a highly stratified society” (p. 37) with the later wave of Cuban immigrants who were black or of mixed race or mostly poor. As the authors observe, these individuals were not successful in business and are absent from Miami’s power elite. Yet rather than cultural factors, the racism and classicism evident in the treatment of second-generation Cuban immigrants represent powerful structural, social influences in their relative lack of mobility and success.

Third, the authors assert that the Triple Package is a cultural explanation of group success that does not include education or hard work as core components. In their view, education and hard work are dependent and not independent variables. This dismissal of education flies in the face of Horace Mann’s view that education is

a great equalizer of the conditions of men,–the balance wheel of the social machinery” that “gives each man the independence and the means by which he can resist the selfishness of other men.

Or to put it in a more contemporary framework, as Jamie Merisotis, President and CEO of the Lumina Foundation points out, “college-level learning is key to individual prosperity, economic security, and the strength of our American democracy.”

And, in Chua and Rosenfeld’s view, America previously had the Triple Package culture, but,

in the latter part of the twentieth century, something happened. America turned against both insecurity and impulse control (p. 208).

As a result, the authors indicate that to recover the Triple Package, Americans would have to recover from “instant gratification disorder” (p. 218).

The basis for these statements is not explained, documented, or footnoted. In essence, individuals from oppressed groups, no matter which group, have similar aspirations and wish for a better life and to be part of the American dream. These aspirations are not driven by cultural characteristics and can be advanced through education, hard work, and structural and opportunity mechanisms that facilitate individual progress. Due to the lack of evidence offered for the assertions of the Triple Package, the book essentially provides commentary on a very complex subject rather than scholarship and, as such, lacks credibility. Should certain groups accept the unsupported premises of this book, self-fulfilling prophecies could set in, and public opinion and debate could be affected by unverified statements that are not grounded in empirical data or social science research.

Racial/Gender Homogeneity in Corporate Board Leadership

In response to criticism from two major shareholders about the lack of diversity in its board of directors, Apple Inc. recently added language to its governance charter committing to seek women and minorities for consideration. The board currently consists of seven white males under the age of 50 and one Asian American woman. In an industry known to be built on the need for innovation, the singular homogeneity of Apple’s board is surprising, although far from unusual.

Other Silicon Valley companies have faced similar questions about their male-dominated leadership including Facebook and Twitter who were criticized for not having female directors prior to their initial public offerings.

The biannual report of the Alliance for Board Diversity reveals that both women and minorities are underrepresented in Fortune 500 boardrooms. Only about 17 percent of the 5,488 board seats are held by women. And minority women comprise 3.2 percent of these positions, while minority men hold 10.1 percent. The report also notes that African Americans, Hispanic/Latinos, and Asian/Pacific Islanders have experienced losses or only small gains in corporate board representation in the past year.

In our new book, The New Talent Frontier: Integrating HR and Diversity Strategy in the Private and Public Sectors and Higher Education , Alvin Evans and I argue that talent is the primary strategic asset needed for organizational survival in a globally interconnected world. As a result, organizations need to optimize their talent resources by building synergy between HR and diversity programs. Maximizing organizational capability requires that organizations respect, nurture, and mobilize the contributions of a diverse and talented workforce.

In an article entitled, “Does a Lack of Diversity among Business Leaders Hinder Innovation?” Sylvia Ann Hewlett, Melinda Marshall, and Laura Sherbin share the results of a survey conducted by the Center for Talent Innovation of 1800 men and women in white-collar professions that also included Fortune 500 executives. The authors found that due to homogeneity in the leadership ranks, the majority of companies fail to realize their full innovative potential. Fifty-six percent of the respondents indicated that leaders at their firms failed to find value in ideas that they have difficulty relating to or don’t see a need for. As a result, senior leaders lose revenue-generating opportunities when they do not create a “speak-up culture” in which employees can contribute innovative or out-of-the-box ideas. The findings appear to support a strong correlation between inclusive behaviors and acquired diversity.

As Joe Feagin eloquently observes in Racist America:

When Americans of color are oppressed in this country’s institutions, not only do they suffer greatly, but the white-controlled institutions and whites within them often suffer significantly if unknowingly. Excluding Americans of color has meant excluding much knowledge, creativity, and understanding from society generally. A society that ignores great stores of human knowledge and ability irresponsibly risks its future.

In this sense, the exclusion of minorities and women from the board rooms of American corporations indeed irresponsibly risks the future of American entrepreneurialism by overlooking the innovative contributions of diverse leadership.

Prescriptive Racial Stereotypes of Asian American Leaders

In an article entitled “Why So Few Asians are College President,” Dr. Santa J. Ono, President of the University of Cincinnati, indicates that he finds himself among a very small group of Asian American leaders in higher education: only 1.5 percent of college and university presidents are Asian American and 3.4 percent are administrators in higher education. By contrast, Hispanics comprise 3.8 percent of presidents and African Americans hold 5.9 percent of these roles. This pattern also holds true for the corporate sector, such as the low representation of Asian Americans as corporate officers and members of corporate boards.

Why are Asian Americans so underrepresented in leadership roles? Ono suggests two major factors at play: cultural differences deriving from home environments that value preferences for indirect communication, emotional restraint, and an egalitarian view of power as well as contradictory perceptions about Asian Americans such as being conspicuous but self-effacing, hyperambitious but timid. Frank Wu, Chancellor of the University of California Hastings College of the Law, similarly points out that the model minority myth transforms positive qualities into negative attributes: intelligence is seen as lack of personality, family-oriented as clannish, and hard-working as unfairly competitive.

Ono, however, points to significant new research by Jennifer Berdahl and Ji-A Min at the University of Toronto that sheds light on the particular barriers Asian Americans face in leadership roles. Berdahl and Min distinguish between descriptive stereotypes or generalized beliefs about what members of different racial groups are like and prescriptive stereotypes which, when violated, are likely to provoke social disapproval and backlash. Since East Asians in North America are often descriptively stereotyped as relatively competent, cold, and nondominant, Berdahl and Min identify “nondominant” as a prescriptive stereotype that, when violated, causes negative consequences in the workplace. As a result, when East Asians remain in subordinate, nonleadership roles, and do not try to assert their own viewpoints or ideas or take charge, the competitive threat to valued resources they pose is neutralized. Through a series of four studies, the research findings reveal that not only did East Asians report more racial harassment at work than other employees, but, more importantly, those individuals that violated racial stereotypes were more likely to be the targets of such harassment. Berdahl and Min report that the negative responses to dominant East Asians did not depend on gender and appeared to be unique to this racial minority group.

This promising line of research on prescriptive stereotypes helps explain the hurdles faced by Asian Americans in their efforts to attain leadership positions and how these stereotypes can influence their ability to break through the so-called “bamboo ceiling” or what Sylvia Ann Hewlett calls “the marzipan layer” just below the upper rungs of power.

The notion of prescriptive stereotypes can also apply to the challenges faced by other racial minorities and women when they violate expected stereotypical behaviors and experience backlash. As Santa Ono notes, unconscious bias may be more difficult to address in academe where intellectual fairness and rigor are already presumed to be present. In this regard, he aptly suggests that academe focus some of its energy, acuity, and empathy toward tearing down existing social and psychological barriers to success, “particularly those all the more imposing for being invisible.” Perhaps greater understanding of the influence of prescriptive stereotypes will provide the opportunity for reexamination of the impact of subtle, unconscious bias on organizational processes and allow us to develop truly inclusive definitions of leadership capabilities.

Illusions of Meritocracy: Does It Favor Certain Groups?

The notion of meritocracy hinges on the belief in a just system, or what researchers have called “system justification theory.” As theorists John Jost and Masharin Banaji explain, system justification theory is a psychological process by which people justify existing social arrangements as legitimate and fair, such as the belief that hard work, effort, and motivation lead to success. This theory locates the cause of events within personal attributes, and indicates that individuals should take personal responsibility for outcomes. For example, a recent article by John Jost, Brian Nosek, and Samuel Gosling notes that stability and hierarchy provide both structure and reassurance, in contrast with social change and equality that imply unpredictability and greater chaos, especially in large social systems.

The irony of system justification theory is that members of minority groups can view the locus of individual success or failure as solely due to their own efforts and discount the impact of socially-mediated forces of discrimination. We have seen examples in the recent press where minority leaders themselves emphasize personal responsibility while remaining silent on the impact of the forces of systemic discrimination. As Alvin Evans and I point out in Diverse Administrators in Peril , this viewpoint can undermine self-esteem when individuals impacted by discrimination internalize contemporary forms of oppression and become their own oppressors through self-blame and inappropriate attributions of instances of everyday discrimination to their own dispositional or personal inadequacies. It heightens what Wesley Yang calls “self-estrangement” by removing the factor of difference from the equation.

A study conducted by Frank Samson at the University of Miami highlighted in a recent article in Inside HigherEd clearly demonstrates the fluidity of the notion of meritocracy when applied to different minority groups. When one group of white adults in California was asked about the criteria that should be used in admissions processes, a high priority was placed on high school grade-point averages and standardized tests. Yet when a control group was told that Asian Americans make up more than twice as many undergraduates in the University of California system compared to their representation in the state population, the participants then favored a reduced role for test and grade scores in the admissions process. They further indicated that leadership should be given greater weight.

Since Asian American scores on the SAT topped white average scores by 1641 to 1578 this year and the leadership abilities of Asian Americans tend to be unrecognized , the shift in criteria by study participants shows that meritocracy means different things when applied to different groups. Samson attributes this shift to “group threat” from Asian Americans and suggests that key Supreme Court decisions based upon the framework of meritocracy might have been decided differently if different groups had been involved. Samson notes the exclusionary rhetoric that emphasizes “qualifications” applied in discussions of opportunities that can exclude African-Americans and how this framework shifts when applied to Asian Americans. In an earlier post, I cited a June 14 article in the Chronicle of Higher Education by Stacey Patton that explains how the frequent argument about “lack of qualified candidates” for top roles becomes a loaded and coded divergence—a smoke screen that feeds stereotypes of minorities as less capable, intelligent, or experienced (p. A4).

Certainly the road to attainment of meritocracy will require consideration of the many detours we have taken in the course of American history. Perhaps we need to be reminded that a true meritocracy is still an aspirational goal and in the words of Martin Luther King, represents “a promissory note” that will “open the doors of opportunity” to all Americans.

The Fisher decision misses the point: Separate and unequal

A new Georgetown University report titled “Separate and Unequal: How Higher Education Reinforces the Intergenerational Reproduction of White Privilege” by Anthony Carnevale and Jeff Strohl reinforces why the Supreme Court’s decision in Fisher v. University of Texas misses the point. Recall that in Fisher v. the University of Texas, while the justices recognized the value of diversity in the higher education experience, universities and colleges must prove that no workable race-neutral alternatives could have produced the same diversity benefit. And strikingly, Justice Kennedy stated that in this process “the university receives no deference.” A reviewing court will be the arbiter of this determination.

The report by Carnevale and Strohl debunks the assumption that the United States has attained a level educational playing field in which consideration of race is no longer relevant. The study demonstrates that American higher education has two separate and unequal tracks: the 468 selective colleges and the 3250 open-access institutions. The divergence between these two tracks is increasing rather than diminishing. The authors identify two prominent themes that characterize these tracks: 1) racial stratification in the 4400 two- and four- year colleges analyzed for the study; and 2) polarization between the most selective schools and open-access schools. And from a student perspective, they conclude that “disadvantage is worst of all when race and class collide.”

Between 1995 and 2009, despite increases in the enrollment of African American and Hispanic students attending postsecondary institutions, more than 8 in 10 of new white students enrolled in the 468 most selective institutions, whereas more than 7 in 10 new Hispanic and African-American students have gone to open-access two and four-year colleges. White students account for 78 percent of the growth in the more selective institutions, while 92 percent of the growth in open-access institutions went to Hispanic and African-American students.

In addition, stratification by income is marked in more selective colleges, with high-income students overrepresented relative to population share by 45 percentage points and African-American and Hispanic students underrepresented relative to population share by 9 percentage points. This disadvantage is magnified by pre-existing geographic (spatial) isolation in the location of high schools as well as economic and educational deprivation in the pre-college years.

Why does this matter? The 468 most selective schools spend two to nearly five times more per student, have higher ratios of full- to part-time faculty, higher completion rates, and greater access to graduate schools, even when considering equally qualified students. Also, the college completion rate for the most selective schools is 82 percent, compared with 49 percent for open-access, two- and four-year institutions.

The report responds to two important questions. First, it provides substantive evidence that contradicts the “mismatch” theory which posits that minority students fare better in universities where the median test scores are nearer their own. In contrast, it reveals that Hispanic and African-American students benefit from attending selective institutions even when their test scores fall substantially below the averages at these schools, with a graduation rate of 73 percent from top colleges when compared to a graduation rate of 40 percent at open-access institutions.

Second, the report sheds light on the difficulty of substituting race-neutral alternatives such as class or to produce the same educational diversity benefit. The authors find that it would take more than five or six times the current level of class-based admissions to maintain the current racial mix in the most selective colleges. In fact, the pool of low-income white students far exceeds the pool of Hispanic and African-American students eligible for selective college admissions. The flood of low-income students that could result from using class as a proxy for disadvantage would create intense resource challenges for all but the most wealthy of selective institutions in the financial aid process. More selective institutions would also have difficulty to maintain current standards in the competition for students with higher test scores.

The report does not include an identical analysis for Asians and Native Americans due to data limitations. It does note that while 50 percent of new Asian enrollments have gone to the most selective schools, 30 percent have also gone to the open-access schools. In this regard, a 2005 College Board study reveals that Asian American/Pacific Islander students are evenly concentrated in two- and four-year institutions, with over half of the students in California and Nevada enrolled in community colleges. And a study produced by UCLA’s Higher Education Research Institute concludes that, like other minority students, AAPI students often struggle with poverty, with 47.4 of Asian American families classified as low income compared with 39.5 percent of the general population.

The challenge ahead for universities is to develop the statistical models that will satisfy the Supreme Court’s requirement to prove that alternative race-neutral alternatives are not sufficient for producing the educational benefits of diversity. In the evolution of the new criteria required to satisfy Fisher’s requirements, the Georgetown University report takes an important step in laying the groundwork for the evidentiary data and metrics needed.

Summing up the complexity of the court’s newly imposed requirements for justifying the consideration of race as one factor among others in college admissions, Thomas Kane and James Ryan point out in a recent article in the Chronicle of Higher Education that:

The court sometimes seems to labor under the belief that there is some magical combination of race-neutral proxies that will produce exactly the same group of students as in a class admitted under a race-conscious plan. Admissions officers know differently….

Race, Space, and History: Power Relations in Government Policy

The intersection of race, space, and history in local government policies and politics illustrates the profound impact of spatial arrangements on the reproduction of systemic inequalities. As Leslie Picca and Joe Feagin point out in Two-faced Racism: Whites in the Front Stage and the Backstage (2007) significant research supports the argument that much of the social space in the United States is highly racialized.

Two articles provide significant insight into how such racialization occurs within the context of the efforts of cities in California to reconfigure historical neigborhoods and nullify and erase the presence of dominant ethnic identities from the landscape. Wendy Cheng’s perceptive article entitled “’Diversity’ on Main Street? Branding Race and Place in the New ‘Majority-Minority’ Suburbs” (2010), describes two redevelopment campaigns in the Los Angeles West San Gabriel Valley cities of Alhambra and San Gabriel that epitomized the struggle for white economic, social and political dominance over Asian American and Latino pasts.

In an area in which Asian immigrants and Asian Americans constitute half the population and Latinos represent more than a third of the population, the polarization of the city of Alhambra is reflected in residential patterns, with the largely white northern area reporting a median household income 50 percent higher in 2000 than the southern area comprised of a heterogeneous mix of working-class to middle-income Mexican-Americans and Asian Americans.

Cheng documents how the redevelopment of Alhambra’s Main Street involved high-pressure tactics by the city to excise small Chinese businesses and replace them with new “mainstream” businesses. For example, the city gave Starbucks a “tenant improvement allowance” using $136,000 of HUD money and bought an 8,000 square-foot building for over $1 million with an additional $350,000 in upgrades to lure Tony Roma’s to open a restaurant on Main Street, after the chain restaurant had refused several overtures. And the redevelopment agency literally gave Edwards Theatres a 43,000-square-foot parcel of land and $1.2 million form a HUD loan to construct a movie theater. To cap these efforts, the merchants in the Downtown Alhambra Business Association invested in a diversity branding effort with banners that included an older blond white woman, a young Latina woman with freckles and dark hair, a middle-aged Asian man, and a young blue-eyed, blond white woman.

Similarly, in his article entitled, “From ‘Blighted’ to ‘Historic’: Race, Economic Development, and Historic Preservation in San Diego, California” (2008), Leland T. Saito chronicles how the determination of historic designation in the city “favored Whites and overlooked the history of racial minorities” (p. 183). The city commissioned studies on the Chinese Mission, Douglas Hotel, and Clermont/Coast Hotels, three properties associated with Asian American and African American history, and concluded they were not historically or architecturally significant. The Chinese Mission, established in 1927, was a major social center for the Chinese American Community. The Douglas Hotel was the most important entertainment venue for African Americans when it was established in 1924 and the only hotel that would accept African Americans in the 1930s and 1940s. The Clermont/Coast Hotel also had significance for the history of the African American Community.

It was only through the lobbying efforts of the Chinese American community and the African American community that the Chinese Mission and Clermont/Coast Hotel were preserved and received historic designation. Due to the lack of a major lobbying effort, the Douglas Hotel was demolished. Saito concludes from these examples that

“public policy is an important site of struggle over the meaning of race” (p. 168) and that “race remains significant in the formation and implementation of development and historic preservation policies” (p. 182).

Community groups, however, can play a key role in counteracting the racial consequences of public policy.

Both these articles present evidence of how space is intertwined with race and history in the identity of place and underscore the importance of community activism and minority participation on city councils. Such activism and solidarity are critical in overcoming divided racial, economic, and geographic interests, ensuring the voice and representation of minority populations, and changing the dynamics of power relationships within municipal governments.

United Nations’ Universal Declaration Of Human Rights: A Personal Perspective

At the conclusion of the forthcoming third edition of Joe Feagin’s Racist America: Roots, Current Realities, and Future Reparations, he recommends that a new constitutional convention for a true multiracial democracy begin with the United Nation’s Universal Declaration of Human Rights ratified in 1948. Feagin points out that the United States has never had a constitutional convention that represented all or even the majority of the population. As he notes, the original constitutional convention that met in Philadelphia in 1787 was comprised of 55 white men, representing only 5 percent of the population, and did not include white women, Native Americans, or African Americans.

Feagin’s identification of the U.N.’s Universal Declaration of Human Rights brings to mind the work of my father, Dr. Hung-Ti Chu, at the United Nations and his great personal admiration for Eleanor Roosevelt who shepherded the Universal Declaration of Human Rights to its ratification by the General Assembly. My father joined the United Nations in 1946 during the time the Declaration was drafted as a member of the Human Rights Division, and remained at the U.N. in the Secretariat until he retired more than twenty years later. He recalled that Eleanor Roosevelt considered the Universal Declaration of Human Rights to be the Magna Carta for all humankind. She viewed her role in securing adoption of the Declaration of Human Rights as her greatest achievement. Several years earlier, as a member of the steering committee of the International Student Conference representing the five great world powers, my father had breakfasted with her in the White House and was invited to sit in on FDR’s Fireside Chats over the radio.

My father came to this country as a scholarship student in recognition of his work in the Chinese nationalist movement, receiving his Ph.D. in Political Science from the University of Illinois in 1937. In 1942, he was invited to become President of Yunnan University in his home province of Yunnan, China, but due to political events and the Communist takeover, was not able to return. After joining the United Nations, he later served as the Principal Secretary of the United Nations Temporary Commission on Korea, and gave the opening speech of the first democratically-elected National Assembly in Korean history.

Following the death of Franklin Delano Roosevelt in 1946, Eleanor Roosevelt accepted a position offered by President Harry Truman on the first United States delegation to the United Nations. At the time she was the only woman on the delegation and in her words:

I knew that as the only woman, I ‘d better be better than anybody else. So I read every paper. And they were very dull sometimes, because State Department papers can be very dull. And I used to almost go to sleep over them, and– [laughs] But I did read them all. I knew that if I in any way failed, it would not be just my failure; it would be the failure of all women. There’d never be another woman on the delegation.

In a perceptive article titled “Eleanor Roosevelt and the Universal Declaration of Human Rights” John Sears states that many believe that the U.N. Commission on Human Rights that drafted the Declaration of Human Rights would not have succeeded without the skillful leadership of Eleanor Roosevelt in chairing the Commission. Without legal or parliamentary training, she oversaw the drafting of the Declaration through weeks of arguing over the meaning of each word and phrase.

The initial commission appointed to recommend a structure for the Human Rights Commission consisted of Eleanor Roosevelt and representatives from Norway, Belgium, China, India, Yugoslavia and the ambassador to the United States from China, Dr. C.L. Hsia. Dr. Hsia was a close personal friend and mentor of my father.

Furthermore, as Sears notes, Eleanor Roosevelt insisted upon the unequivocal anti-discrimination article in the Declaration. She believed it would support the struggle for civil rights in the United States and was aware of the shortcomings of this country in attaining these rights. She even clashed with members of the State Department who did not believe that economic and social rights belonged in a bill of human rights.

The U.N.’s Declaration of Universal Human Rights adopted by the U.N. General Assembly in 1948 asserts that “all human beings are born free and equal in dignity and rights” and that “all are equal before the law and are entitled without any discrimination to equal protection of the law.” Eleanor Roosevelt’s uncompromising view of universal human rights identifies the source of such rights in events close to home, such as in our everyday interactions:

Where, after all, do universal rights begin? In small places, close to home (…) Unless these rights have meaning there, they have little meaning anywhere.

In a time when women’s leadership was not widely accepted, Eleanor Roosevelt was truly “the first lady of the United States,” a skillful and practical negotiator, able to maneuver in confidence in male-dominated diplomatic circles, able to build the consensus necessary to forge a lasting testament to the freedom, equality, and dignity of all human beings.

“A Long Slow Drift from Racial Justice” — The Hidden Perils of the Fisher Ruling

Last week two decisions from the Supreme Court seemed to turn the clock back on the delicate framework of Civil Rights constructed in the John F. Kennedy and Lyndon B. Johnson eras, in what the former president of the University of Michigan and Columbia University, Lee Bollinger, called “a long slow drift from racial justice.” The high court’s decisions in Shelby County, Alabama v. Holder and Fisher v. the University of Texas, while appearing to give credence to the principles of racial justice, severely eroded the means to attain voting and educational access.

The Shelby Country decision nullified Section 4 of the Voting Rights Act, while maintaining Section 5. Section 4 required nine states and some counties to obtain preclearance from the Department of Justice prior to changing voting requirements. Although based on a formula last updated in 1975, most observers believe that a bipartisan Congress will not coalesce in passing an updated formula. Chief Justice John Roberts justified the decision by stating that “things have changed dramatically” in the South and this country. Within 48 hours of the law passing, Texas, one of the states formerly covered under Section 4, moved to strengthen its requirements for voter identification and indicated that redistricting maps would no longer require federal approval. Comedian Bill Maher aptly termed the Voting Rights decision as evidence of Racism 2.0, in the evolution of more subtle and carefully constructed forms of exclusion. The Fisher decision, in turn, set an almost impossibly high bar for the use of race in college and university admissions that will likely result in unparalleled levels of litigation.

In the Fisher case, Abigail Fisher, a white undergraduate denied admission to the University of Texas claimed that her race prevented her admission to the university while less qualified minority students were admitted. The Supreme Court returned the case to the Fifth Circuit, asking the district/appellate Court to re-review the case with “strict scrutiny” of the inclusion of race in holistic review at the University of Texas. Although some affirmative action advocates viewed the outcome of the ruling as positive in that the justices recognized the value of diversity in the higher education experience, the decision now makes it extremely difficult for universities and colleges to consider race even as one factor among many in a holistic review of admissions applications. Ordinary Americans, as Lee Bollinger observed, will not pick up on the decoupling of race-conscious college admissions and “the larger project of social justice” amidst the legal maneuvering and minutiae.

The Fisher decision essentially brought the courts into the university and college admissions process by requiring a reviewing court to determine if a university’s use of race is necessary to achieve the educational benefits of diversity. Further, “the reviewing court must ultimately be satisfied that no workable race-neutral alternatives would produce” these benefits (Fisher v. University of Texas at Austin et al., June 24, 2013, p. 2). Writing for the majority, Justice Kennedy, declared that in this process, “the university receives no deference.” Kennedy explained further that the courts, not university administrators, must determine that the means chosen to attain diversity are “specifically and narrowly framed to accomplish that purpose.”

As noted by Peter Schmidt in the Chronicle of Higher Education, the decision has led representatives of Pacific Legal Foundation and the Southeastern Legal Foundation, public-interest law firms that have brought litigation against affirmative action programs, to indicate that they look forward to representing individuals who wish to challenge university and college admissions policies. It remains unclear is how the courts can possibly handle challenges to admissions policies that might arise in the more than 4000 institutions throughout the United States.

Commentators indicate that universities and colleges will need to ramp up their efforts at data collection to meet the requirements of the Fisher decision and to prove that race-neutral efforts could not have attained the same level of racial diversity. Given the constraints of the Fisher decision and its aggressive intrusion in the realm of university governance, it will require significant efforts on the part of colleges and universities to find the appropriate channels to continue to enhance the access and success of minority students to educational opportunity.