Archive for Supreme Court
The pending Supreme Court decision in Fisher v. University of Texas presents a new challenge to the Court’s decision of a decade earlier in the Grutter v. Bollinger and Gratz v. Bollinger cases at the University of Michigan. In the Michigan cases, the Court clearly recognized the value of student body diversity in the educational process and upheld the inclusion of race as one factor among others in a narrowly tailored holistic review process. Numerous expert studies support the Court’s position on diversity and student learning outcomes. For example, four studies presented at the most recent meeting of the Association for the Study of Higher Education (ASHE) provide empirical support for the benefits of diversity for college students, using longitudinal assessment of the scores from the Collegiate Assessment of Academic Proficiency and the Collegiate Learning Assessment.
Yet a recent Inside Higher Ed survey of 841 college presidents conducted by Gallup found that 70% agreed that consideration of race in admissions has had a “mostly positive effect” on education in general, while only 58% agreed that such consideration has had a “mostly positive effect” on their campuses.
Dr. Benjamin Reese, president of the National Association of Chief Diversity Officers in Higher Education (NADOHE) and Vice President for Institutional Equity at Duke University, suggested that framing the question around race rather than the benefits of diversity resulting from a holistic review of applications may have elicited less positive responses. In reporting Reese’s perspective in his March 1 article, editor Doug Lederman writes, “That, though, is not the question before the courts.” He then cites Richard Kahlenberg, senior fellow at the Century Foundation, who indicates that “the Presidents are completely out of step with where the courts seem to be heading and where the American public is on this issue.”
A closer reading of the Grutter decision suggests that the Court was focused on the overall benefits of diversity. It specifically reaffirmed the opinion of Justice Powell in the landmark 1978 Regents of the University of California v. Bakke decision who found that “diversity is a compelling state interest” essential to the university’s mission. Writing for the narrow 5-4 Grutter majority, Justice Sandra Day O’Connor focused on the concept of “critical mass” in summarizing the positive impact of diversity at the University of Michigan’s Law School. She noted the effects of diversity on learning outcomes and the preparation of students for a diverse workforce, society, and legal profession:
But the Law School defines its critical mass concept by reference to the substantial, important, and laudable educational benefits that diversity is designed to produce, including cross-racial understanding and the breaking down of racial stereotypes.
The crux of the issue in Fisher relates to critical mass. How is it defined? How will we know when we reach it? What benefits derive from it? We have seen the concept of critical mass in the research literature as it refers to a substantial presence of women and minorities on campus. It refers to the sufficient presence of underrepresented groups to be able to overcome isolation, defeat stereotypes, and provide a welcoming atmosphere for diversity.
The concept of critical mass is a qualitative rather than a quantitative concept. Yet justices sympathetic to Fisher have been asking for quantification of the attainment of critical mass, even though quotas are not permitted under prior judicial rulings. Chief Justice Roberts repeatedly questioned Gregory Garre, the lawyer for the University of Texas asking: “What is that number? What is the critical mass of Hispanics and African Americans at the university that you are working toward?” When Garre argued that the school did not have a specific point of critical mass and would make this determination, Roberts responded, “So I see, when you tell me, then it’s enough.”
From this perspective, the responses of the college and university presidents to the Inside Higher Ed Survey do not appear to be “out of step” with the American public. Rather these responses reflect a very real awareness of the complexities and nuances relating to the implementation of affirmative action in admissions processes. Support for affirmative action was strongest among presidents of public master’s (81%) and public doctoral universities (80%). In Alvin Evans’ and my review of institutional diversity plans in Are the Walls Really Down? Behavioral and Organizational Barriers to Diversity , we found that public universities have been in the forefront in the development of institutional diversity plans, perhaps due to their legal reporting requirements, size, resources, and requirements for public accountability.
Although the outcome of Fisher v. Texas remains uncertain, the fact that numerous legal briefs have been filed by associations and groups asserting that curtailing affirmative action would hurt the quality of the education students receive is promising. The voices of educational leaders, professional associations, and scholars are critical in the ongoing debate of how education can continue to serve as the gateway to opportunity and the great equalizer in our richly diverse society.
In the March 8 edition of the Chronicle Review, Brian Rosenberg, president of Macalester College, sums up the importance of presidential voice as “the most influential public voice of the institution”:
I have always believed that courageous views, thoughtfully expressed, are actually less risky than silence in the face of serious wrong. I have spoken out, in my role as president of Macalester College, on many contentious issues, and I have chosen to remain silent on others. What has guided my decision-making, and what I believe guides that of most of my colleagues, is not cowardice or self-interest, but careful judgment about what is in the best interest of the institutions we hold in trust.
Today, the U.S. Supreme Court heard arguments in the Fisher v. University of Texas case that seeks to overturn the consideration of race in college admissions. Joe had an excellent post about this case a few days ago, you can read it here.
(Abigail Fisher on the steps of the Supreme Court, from here.)
Once the court issues a ruling, we’ll be back with more analysis. Until then, you can read the transcript for yourself, it’s available for download here (pdf). And, if you’d prefer to have someone else read it for you, and give you updates in a series of cogent 140-character updates, you can read through Jessica Luther’s Twitter timeline (@scATX) here.
Our conservative-controlled Supreme Court, an essentially undemocratic US institution, has decided to hear the Fisher v. University of Texas case that involves the use of racial characteristics as one factor in a multifaceted (leadership ability, other personal abilities and talents, family situation, racial characteristics) supplemental admissions program aimed at more significant desegregation of what was once an all-white, Jim-Crowed student body. This modest University of Texas undergraduate admissions approach–itself weaker that earlier more aggressive “affirmative action” to break down decades of racial barriers in higher education–has been attacked, again, as harmful to the long-dominant white group that controls most U.S. institutions. Apparently, many white Americans still cannot even envision rather small-scale “losses” in white privilege and power from such modest desegregation programs in higher education and other institutions in the 21st century. (Significantly, however, both the federal district judge and the circuit court judges ruled in favor of the U. Texas program.)
One issue raised in recent Supreme Court decisions dealing with racial desegregation in education under the term “affirmative action” is whether such desegregation has significant educational benefits that validate it under our current mostly individualistic and backtracking court decisions dealing with what is in fact systemic racism.
A University of North Carolina press release describes new research examining benefits of racial diversity for educational programs, in this case for law schools. A ten-year study by a psychologist (Abigail T. Panter), sociologist (Walter Allen), educational research professor (Linda F. Wightman), and law professor (Charles E. Daye) found an array of positive educational benefits.
This press release notes a few issues in the University of Texas case and links to useful pdfs of this social science research (a research article pdf) and of the amicus brief filed by the University of North Carolina–one of ten universities expected to file in support of the Texas position.
The press release summarizes a few points about the study and its significance:
[They] examined links of race (and other factors) with educational diversity, tracking law students from their enrollment in law school through graduation . . . . data from more than 6,500 incoming law students attending a random representative sample of 50 American Bar Association-approved U.S. law schools.
Racial diversity in student populations, not surprisingly, encouraged more significant interpersonal interaction across racial lines and had
positive educational outcomes that benefit students, institutions and society. In addition, when a law school’s racial diversity was significant and group interaction was high, graduating law students perceived their law school as more open and respectful of diverse ideas.
One result for post-law-school careers, the report indicates, is to make graduates broader and more “culturally competent,” as the often sanitized jargon of academia says. More accurate understandings about matters of “race” and racism often result from these more desegregated educational settings–most especially for white students who in the past are likely to have lived largely segregated lives in their neighborhoods and public areas they most often frequent.
. . . you’re going to be dealing with all kinds of races when you graduate, so you better have some of that respect or that appreciation that people can think differently,” said Aaron, a Northern California student quoted in the article.
Our past of 400 years of racial oppression will not be remedied by a couple of decades of modest to weak remedial programs for that past and its continuing impact in the form of racial discrimination. Law professor Charles Daye accented the point that racial differences are essential admissions factors to consider, among other important factors, if law schools (and other educational programs) are to be desegregated enough for a major educational impact:
“There is no other factor that will adequately target the qualities needed in a student body in which the students can interact and learn from each other and learn the ways the others see the world.”
One clear sign of the continuing backwardness on racism matters in the United States, of the continuing power of white-controlled systemic racism and its racial framing, is that even such a modest program of desegregation of the student body at the University of Texas is under such aggressive white challenge.
The colorblind mythology central to contemporary versions of that white racial frame, naively or intentionally, continues to assert fairy tales about this country being “post-racial” and “beyond race.” Unfortunately, those fairy tales are still believed by a majority of the white elite and the general white population, and by many others, in the face of mounds of empirical data refuting such notions. One does not have to look far to see the dramatic contradictions, such as the still widespread racist joking and other racist commentaries among white students on college campuses and on thousands of internet websites and among elite white politicians and judges. As is often the case, important societal frames like that white racial frame tend to trump facts about our actual societal realities.
The U.S. has numerous anti-democratic institutions like our Supreme Court, Senate, and electoral college. One would think that the wealthy and well-off whites–who mostly run our political and economic institutions–would find them skewed more than enough in their direction without all the new anti-voting legislation. Numerous Republican state legislatures’ recent attempts and successes in making voting more difficult intentionally extend this well-off-whites’ control.
A savvy columnist at the Washington Post, Eugene Robinson, has done an interesting detailed analysis (“The GOP’s crime against voters”) of these attempts at voter suppression:
The Republican-led crusade for voter ID laws has been revealed as a cynical ploy to disenfranchise as many likely Democratic voters as possible, with poor people and minorities the main targets. . . . Late last month, the majority leader of the Pennsylvania House of Representatives, Mike Turzai, was addressing a meeting of the Republican State Committee. . . . . he mentioned the new law forcing voters to show a photo ID at the polls. Said Turzai, with more than a hint of triumph: “Voter ID, which is gonna allow Governor Romney to win the state of Pennsylvania — done.”
The number of people affected in this state is quite large, for some 758,939 registered voters there right now
do not have the most easily obtained and widely used photo ID, a state driver’s license. That’s an incredible 9.2 percent of the registered electorate. Most of the voters without driver’s licenses live in urban areas — which just happen to be places where poor people and minorities tend to live. More than 185,000 of these voters without licenses, about one-fourth of the total, live in Philadelphia — which just happens to be a Democratic stronghold where African Americans are a plurality.
If this significantly reduces the vote of modest income and working class people, especially people of color, then President Obama may have a difficult time winning the state, especially given current estimates of a close race there.
Significantly too, the new law about IDs in Pennsylvania, as in some other states, officially tries to prevent voter fraud from use of false IDs, yet no one has found actual evidence of that kind of voter fraud.
Attorney general Holder just today at the NAACP convention in Houston put this comment into his talk there, about the new voter ID law in Texas:
Under the proposed law, concealed handgun licenses would be acceptable forms of photo ID, but student IDs would not. . . . Many of those without IDs would have to travel great distances to get them, and some would struggle to pay for the documents they might need to obtain them. We call those poll taxes.
I grew up under such poll taxes in Texas, where they were designed to keep black voters from voting. We need to bring back some difficult memories of our racist voting history and openly racist political system for public discussion today. The white racial framing today intentionally ignores this relatively recent racist history of keeping voters of color out of the electoral system. Are we moving backwards today on these matters?
Maybe I have missed it, but in all the many pages and web pages I have read on the Supreme Court and its decisionmaking over the last couple of weeks, I have yet to see any serious discussion of its highly undemocratic reality and operation. The bigger question beyond recent decisions about health care or immigration, or even about the conservative power on the court or that power’s undemocratic and often anti-progressive decisions, is why “we the people” allow, and have always allowed, such an undemocratic body to have so much power over our country. This the part of the discussion about this court that I offer in my new book, White Party, White Government (Routledge 2012):
Yet another undemocratic political institution–in addition to the U.S. Senate and the electoral college–created by the white male founders is the U.S. Supreme Court. Intentionally created as an unelected body with little democratic overview, over time the Court has gained even greater unsupervised political power, much of it in effect legislative. In an early and unanimous Court decision (Marbury v. Madison), the Supreme Court justices, led by Chief Justice John Marshall, decided the Court had the power of final judicial review, a legal theory that allows the Court to decide whether congressional legislation is constitutional, thereby allowing a few unelected justices to invalidate legislation by the more representative U.S. House.
Only the elite Supreme Court has the power to regularly interpret, and in effect periodically amend, the Constitution by a majority vote. In this way, the Supreme Court (and often other high federal courts) can legislate without needing the consent of the legislative branch, while the latter’s legislation is always subject to a judicial veto. Indeed, the Supreme Court has vetoed congressional legislation some two dozen times as unconstitutional and, even more often, interpreted congressional legislation so as to weaken or destroy the congressional intent behind that legislation.
Almost all such eviscerating decisions have been made by the Court in the interests of some segment of the ruling elite. As analyst Richard Kluger has noted, across the world “no other government reserves the last word for the judiciary to pronounce.”
Unmistakably, the elite founders intended for most important changes in the U.S. Constitution to be in the hands of elite white male judges, and not even in the hands of a majority of white male voters. For most of U.S. history a majority of the Supreme Court justices were southern slaveholders, segregationists, or judges sympathetic to the latter’s views. From the 1790s to the 1950s, the all-white, all-male Supreme Court was very important in protecting the extensive system of racial oppression dominating the lives of Americans of color, most especially slavery and Jim Crow segregation.
And here is what I am adding in a new edition of my white racial frame book:
As of 2012, a total of just 112 people, 108 men and 4 women, have ever served as powerful Supreme Court justices. More than 97 percent have been white, and 93 percent have been white men. Given this extremely biased demographic reality, the dominance of a strong male-oriented (patriarchal) version of the white racial frame in many U.S. court decisions and in much U.S. law, now over more than two centuries, is certainly unsurprising.
Such data signal, among other things, how disingenuous and racism-evasive so much white male complaining about “loss of power” in the US today really is.
And we have been, and are, a “democracy”? Rule by all the people, really?
Imara Jones at Colorlines raises the issue of a negative impact of this week’s Supreme Court’s degree on the health and the health insurance options for people of color. As a result of this week’s Supreme Court narrow 5-4 decision:
the Patient Protection and Affordable Care Act’s longterm effectiveness is in doubt, and the racial and economic inequalities at the very heart of the health care system stand to be reinforced. Medicaid—funded jointly by the federal government and the states—is the nation’s health care plan for the working poor . .. . Enlargement of Medicaid is the single most important provision of the Affordable Care Act for people of color. It’s the way that almost all non-whites covered by the law would receive insurance. If implemented as written, the law expected to cover 32 million Americans, accounting for 80 percent of those currently uninsured.
The law as written would force states to expand their Medicaid programs, to include the working poor, or else loose federal funds for all Medicaid. However the Supreme Court knocked down that provision. Some states will likely still seek these funds, but other states, especially with lots of working poor of color, likely will not:
And that’s a problem, particularly in the Southern, GOP-led states where huge numbers of working poor blacks and Latinos live. The majority of states, due to the recession, want to cover less not more people. . . . As former Republican governor, now Senator Lamar Alexander told The New York Times, “If I were governor of Tennessee, I would not expand Medicaid.” Republican Gov. Bobby Jindal of Louisiana echoed the point.
Saving the mandate got much of the media coverage, as many will be helped by what was saved, but
for millions more, the Supreme Court’s ruling will only exacerbate inequities at the core of our national health care crisis, and force the battle over the law back to the states. . . . Medicaid remains a bitterly fought over program today. The ruling yesterday will make it more so.
And the costs are of course very high in human terms, and in dollars as well:
The Center for American Progress estimates that this racial gap in health care coverage costs the country $415 billion a year in lost productivity.
And then there is the underlying question of why “we the people” allow such an undemocratic institution as our Supreme Court to even have this power over our health and health care? This decision by a few unelected folks over US health care is yet more evidence that we are not a democracy, but indeed a kind of plutocracy– that is, a pseudo-democracy that is actually ruled by an elite of the well-off and powerful, an elite that is also still mostly white and very disproportionately white male.
In 2010, the Arizona state legislature passed a blatantly racist law, SB 1070.
One of its most notorious provisions (Section B) is particularly loathsome. It requires officers of the law who have “lawful contact” with an individual to make a “reasonable attempt” to ascertain the individual’s immigrant status “where reasonable suspicion exists that the person is an alien who is unlawfully present in the United States.” Two questions arise. First, what motivates the officer to initiate the “lawful contact”? Second, how does the officer arrive at a “reasonable suspicion”? The tool used in both cases is racial profiling.
The Obama administration challenged SB 1070 in court. Judge Susan Bolton of the Federal District Court issued a preliminary injunction against sections of the law, including Section B. The State of Arizona appealed Judge Bolton’s ruling to the Ninth Circuit Court of Appeals which upheld Bolton’s decision. Subsequently the State of Arizona appealed to the Supreme Court, which heard the case on April 25. There was some discussion of Section B during the hearing. Astonishingly, some Justices made comments that suggested support for this provision.
If the Supreme Court rules in Arizona’s favor, racial profiling will be legalized in Arizona for years. What’s next?