Obama Administration Brief on UT Affirmative Action Case

• • academic, affirmative action, diversity programs, education, law, people of color, Reconstruction, white elites, white privilege



The Obama administration just submitted their amicus brief in regard to the Fisher v. University of Texas (Austin) affirmative action case, which our substantially conservative Supreme Court has decided to hear in the fall.

The brief is indeed fairly brief and mostly sticks to fairly narrow affirmative action arguments based largely in the language and logic of the University of Michigan Grutter v. Bollinger (2003) Supreme Court decision and a few related decisions, such as by arguing that the University of Texas (UT) remedial admissions plan tried unsuccessfully other admissions approaches first, only uses “race” as one variable among several “diversity” variables, is limited in time (reviewed every five years), and has had a modest but good effect in improving UT campus diversity. The brief lays out these conditions and the Grutter perspective allowing “race” as on variable among many pretty well, as a historically rather mainstream and white-centrist position on these university affirmative action issues.

The central arguments, and main rationale, of this brief use common but tepid “diversity” language and cite various important legal cases and agency/research studies (see here for one other study) to back up the argument that diversity helps (especially white, but they don’t use the word in that context) people adjust to and work with (including in the military and business) people who are different from them. The brief is generally cast in that more modest “diversity is important to student careers and success in the ‘real world'” rationale for adding some (modest, actually) “race” diversity to the student body.

What is not here in the rather timid Obama administration brief is rather striking. The brief never uses the word “racism,” nor does it directly reference the fact that UT was for many decades a prominent Jim-Crowed university. It still was firmly segregated, like all historically white southern universities, when I attended college in Texas in the late 1950s and early 1960s. Indeed, UT’s football coach then famously said he would not have an “N-word” on his football team, one of the last teams in the old southwest athletic conference to be racially desegregated. That prominent view of the coach was well-known in Texas’s black communities and indeed alienated many black parents and students from considering going to UT. I know that from personal efforts when I was a UT faculty member trying to recruit black students to this university in the 1970s and 1980s. Relatively few black students went to UT until the 1970s.

None of this long and extreme racist segregation background is noted in the administration’s brief, and the very high level of racial segregation still obvious in Texas high schools, from which UT draws most of its students, is only noted briefly and is not analyzed as to why that racial segregation was created or still persists.

Striking in this connection, too, is that there is no mention of the numerous white policymakers who historically and openly created (even into the 1960s), and still often create or maintain less blatantly, the state’s segregated high schools. White elite decisionmakers are only implicit in this brief, as they are in almost all discussions of U.S. systemic-racism issues. Clearly, the authors were afraid to call out and assess frontally the white racism that is foundational and systemic for Texas’s educational system, as elsewhere in the U.S. educational system.

Even the word “white” appears just four times in the document, once in reference to the plaintiff’s identity and only in vague passing comments for the other three cases. The reality of whiteness and white private in connection with such university cases, especially in the South, is nowhere addressed.

A major underlying structural and systemic issue ignored in this brief is the white-created system of Jim Crow racial segregation that dominated the state’s educational system from not long after its establishment by Reconstruction era state constitutions in the 1860s (ironically, shaped significantly by white and black “radical Republicans” then) for nearly a century, indeed until the mid- to late-1960s. The many impacts of that educational Jim Crow and other Jim Crow oppression cannot be undone by even more aggressive “affirmative” action than this modest plan of UT. That is especially true because a great many whites abandoned the public high schools as a reaction to the end of legal segregation. Whites have set up private overwhelmingly or completely white high schools across Texas, from the 1960s to the present, to avoid contacts with black (often Latinos too) students, and thus have usually destroyed much of the economic support and viability of all but the most well-funded public schools, and those mostly in white suburban areas of Texas cities.

The brief goes just as far as it had to go with its “diversity is essential” perspective in order to support the rather modest UT affirmative action program, and does that pretty well. Only a non-centrist, far-right white perspective would find the brief’s main arguments and this modest UT affirmative action program in admission really objectionable. It is but a very modest first step in the large scale change necessary for real and meaningful diversity in higher education.

Defending Democracy: Past and Present

• • African Americans, history, racism, Reconstruction, resistance

Assaults on democracy are proliferating across the country in a variety of measures designed to reduce the electorate and defund public education. Political leaders who favor stricter voter ID laws that make it harder for poorer Americans and immigrants to vote, and who advocate drastic cuts to public education and to government-supported student loans, do so out of desire to keep the poorer classes alienated from the political system. This is nothing new in American history.

When the electorate was first expanded beyond the upper classes in the 19th century, elites openly disparaged the participation of poor and uneducated voters. First, working class white men—especially European immigrants—were enfranchised despite the outrage and disgust of many white Americans who feared the “corruption” of the ballot box by “ignorant” voters during the Jacksonian era. Then, after the momentous events of the Civil War, African Americans were enfranchised through state laws and Federal Constitutional Amendments during Reconstruction. Opposition to blacks voting echoed earlier concerns about the white workers’ “unfitness” for the ballot box due to their lack of education, economic dependence, and supposed susceptibility to corruption and demagoguery.But the greatest fear of all was usually unspoken: that politicians might cater to their interests and popularly elected government might actually enact policies that favor someone other than the wealthiest elites.

I wrote a biography of Albion W. Tourgée, a forgotten civil rights champion who fought relentlessly in 19th century America to protect the right to vote for poor white and black Americans, and who advocated robust state and Federal funding to public education.

He believed these two issues were inseparable. Without serious public investment in the education of the electorate, the great democratic experiment of the United States would fail. How can the people rule without the literacy skills required to stay informed, and the civic knowledge of the law, the government and the economy needed to understand their situation? Tourgée wrote:

“if our Government is founded upon the true principles of democracy, if self-government is a possibility to any great nation, then it is of the utmost importance that every individual constituting the governing power in such nation should be not only honest and patriotic and courageous, but that he should have the knowledge to inform his honesty, knowledge to sustain his patriotism, knowledge to direct his courage. The ignorant man is as the breath of life to the nostrils of the demagogue. He is the material which the ambitious and unscrupulous leader uses to promote his own unrighteous ends.”

For decades, Tourgée fought to expand public education—especially among former slaves in the South. In 1868, he was one of the authors of the North Carolina State Constitution that requires that the state provide free public education from grammar school through university, open to all citizens of the state. Education fostered a common culture, as well as a more intelligent citizenry, and encouraged citizens to be active participants in civic life. Education was also to be an antidote to the feelings of alienation and resentment that came from exclusion and enforced ignorance.

Those in favor of placing restrictions on the ballot in Tourgée’s time argued for such devices as literacy tests and poll taxes to prevent the ignorant and the poor from exercising the right to vote. By the 1890s, these restrictions became commonplace, especially but not exclusively in the Jim Crow South, and they were used to purge the particularly undesirable voters from the rolls—including most non-whites and known radicals. Supporters of these ostensibly “color-blind” voting restrictions claimed that they would protect the integrity of the ballot box while providing incentive for the “deserving” to get educated so they could attain voting rights. But, Tourgée knew better. The purpose was not to create an incentive to get educated, but rather to exclude, disempower and demoralize:

“The whole theory of republican government is based on the idea that the distribution of sovereign power enables every man to do something toward securing his own rights and remedying his own wrongs, or what he conceives to be his rights or believes to be his wrongs. It is a piece of protective armor, intended to equalize the weak with the strong. It is always the poor, the weak, and the ignorant who are the victims of oppression. To such the ballot is at once a sword and shield. The untrained soldier may injure his friend as often as his foe, or even hurt himself oftener still, with his weapon of celestial temper, but he will at least be able to defend himself . . . and the ballot is the only weapon with which poverty and ignorance may even blindly defend themselves. It is their only hope. Unfortunately, intelligence does not always imply righteousness or justice; and even against the best, the lowest and meanest of every land need always stand upon their guard.”

Once again, using transparently facetious arguments, the wealthy and powerful are trying to curb the voting rights and the educational opportunities of the poor. The struggles of a century ago continue today.

~ Mark Elliott is Associate Professor of History at the University of North Carolina at Greensboro. He is the author of Color Blind Justice: Albion Tourgée and the Quest for Racial Equality from the Civil War to Plessy v. Ferguson (Oxford 2006) and co-editor with John David Smith of Undaunted Radical: The Selected Writings and Speeches of Albion W. Tourgée (LSU 2010).