The Diversity Research-To-Practice Gap: Backlash to Fisher Case

A new paper titled “Bridging the Research to Practice Gap: Achieving Mission-Driven Diversity and Inclusion Goals” by Teresa Taylor, Jeffrey Milem, and Arthur Coleman, seeks to link research findings on diversity with policy implications for colleges and universities. While a valuable effort, the paper appears confusing in terms of the policy implications resulting from the Supreme Court’s decision on affirmative action in admissions in the Fisher v. University of Texas (2013) case. In 2013, a conservative US Supreme Court ruled on the claim of “reverse discrimination” by Abigail Fisher, a white undergraduate who had applied to UT and not been accepted. Edward Blum, a wealthy conservative entrepreneur, actively recruited Fisher through his one-person organization, the Project on Fair Representation, an organization that has also challenged the Voting Rights Act.

The new research paper does acknowledge the issues arising from Fisher in terms of the need for evidence-based justification for the use of race-sensitive factors in the admissions process. It identifies two issues deriving from the Fisher case as

(1) the relationship between the ‘necessity’ of race-conscious practices and the availability and effectiveness of race-neutral alternatives, and (2) the relationship between race-conscious practices and their impact on the achievement of diversity-based educational goal (p.3).

Yet while the paper identifies the dilemmas debated in Fisher, it does not clearly identify the narrow limits within which the Supreme Court has determined that race-conscious practices can be used. The paper states that

research has confirmed that the use of race and ethnicity in the admission process can be an important tool for institutions to use to achieve their diversity goals because it lays a foundation for interactional interactions and campus climate” (p. 19).

Despite the positive impact of diversity on campus climate and cross-racial interactions as demonstrated in research findings, the Fisher case casts a long shadow over the future use of explicitly race-sensitive means to attain student body diversity.

As highlighted in Alvin Evans’ and my recent book: Affirmative Action at a Crossroads: Fisher and Forward, three of the most critical developments resulting from Fisher with implications for college and university admissions policies are:

1) the Supreme Court has moved from consideration of the value of diversity itself to the means colleges and universities use to attain it; 2) the reviewing court, not the university, “must ultimately be satisfied that no workable race-neutral alternatives would produce” the educational benefits of diversity (Fisher v. University of Texas); and 3) universities must first exhaust race-neutral measures before race-sensitive factors are considered. The necessity of race-conscious practices was not acknowledged by the Court and even if such practices might be considered, they require substantial proof that workable, race-neutral strategies have been exhausted. As a result, race-conscious strategies cannot be used easily and without substantial proof/justification.

One of the important factors in the UT Austin admissions policy that is not adequately clarified in the new research paper, is that 90 percent of the available seats at public institutions of higher education in Texas fall under the top ten percent plan (TTP). This plan that automatically admits high school students in the top ten percent of their class to public institutions of higher education in Texas was viewed by the Court and conservative think tanks as a “race-neutral plan.” Instead, the Court narrowly focused on the very modest 10 percent of the seats that are based on a holistic admissions review process which after 2004 allowed the consideration of race as a “special circumstance.” In 2013, the Supreme Court remanded the case to the Fifth Circuit for reconsideration of the use of race in the Personal Achievement Index employed for 10 percent of the entering class, and the Court of Appeals upheld UT Austin’s use of race. An appeal of the Fifth Circuit’s decision to the Supreme Court, once again sponsored by Blum, will result in a ruling likely to be issued in June.

Given this uncertainty, some caution needs to be applied to the findings of this new research paper confirming

that the use of race and ethnicity in the admission process can be an important tool for institutions to use to achieve their diversity goals because it lays a foundation for interracial interactions and campus climate (p. 19).

As noted in the paper, however, the institutional mission and the context for diversity are essential aspects of establishing the groundwork for diversity and inclusion policies. Viable means of achieving student body diversity also noted in the paper include recruitment and outreach to underrepresented groups, need-based financial aid, and scholarships based on first-generation or socio-economic status.

The future of race-conscious strategies in admissions processes hangs in the balance with lawsuits filed by the conservative Project on Fair Representation against Harvard University and the University of North Carolina at Chapel Hill. Given the death of Antonin Scalia and since Justice Elena Kagan has recused herself on the Fisher appeal, per Adam Liptak of the New York Times and others the ruling of the remaining seven justices on the Fisher case could be narrowly confined to the “idiosyncratic Texas plan” or broadly affect admissions policies nationwide.

One can only hope that greater leverage will be granted to colleges and universities in admissions policies that foster the attainment of more compositionally diverse campuses.

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.”

525px-Supreme_Court_US_2010

 

(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. 

Faking Multiracial Democracy? More Proposals for Educational Reform



Education Secretary Arne Duncan has laid out some new enforcement efforts by the federal government, to press school systems to improve and meet their civil rights obligations.
Little Rock Nine
Creative Commons License photo credit: Steve Snodgrass
According to a New York Times story:

”For us, this is very much about working to meet the president’s goal, that by 2020 we will regain our status in the world as the number one producer of college graduates,” Russlynn Ali, assistant secretary for civil rights in the Education Department, told The Associated Press. The department is expecting to conduct 38 compliance reviews around 40 different issues this year, she said.

In recent speeches Duncan has cited (quoted here) horrendous statistics like these, for a supposed “advanced democracy”:

A quarter of all students drop out before their graduation, and half of those come from 12 percent of the nation’s high schools. Those roughly 2,000 schools produce a majority of the dropouts among black and Latino students. Black students without disabilities are more than three times as likely to be expelled as white students, and those with disabilities more than twice as likely to be expelled or suspended — numbers which Duncan says testify to racial gaps that are ”hard to explain away by reference to the usual suspects.” Students from low-income families who graduate from high school scoring in the top testing quartile are no more likely to attend college than the lowest-scoring students from wealthy families.

This is 2010, right? Supposedly, this is to be more aggressive enforcement that under Bush:

”If the district has violated the civil rights laws and does not come into compliance with them, we could put conditions on existing grants,” Ali said.

But leading desegregation scholars like Gary Orfield have suggested that we need to wait and see if this is just more nice sounding rhetoric, or whether they mean business this time.

One educator on the Schools Matter blog (Dr. Jim Horn) had a much more critical take already on Duncan’s obviously meek efforts:

* If Duncan were serious about Civil Rights, he would end the use of testing policies that punish, humiliate, and separate the poor and the brown and the disabled from the rest of society….
* If Duncan were serious about Civil Rights, he would challenge the use of tracking inside schools to segregate, contain, and intellectually sterilize poor children who do poorly on tests that are now the only measure of what matters in a child’s school life….
* If Duncan were serious about Civil Rights, he would be advocating for a humane and challenging whole curriculum for poor children, rather than years of basic reading and math that leave the neediest unprepared for work that requires thinking and for college;…
* If Duncan were serious about Civil Rights, he would actively support the development of hospitable and humane school environments, rather than the academic and behavioral lockdowns that now make schools look like low or even medium security penal institutions.

And he adds yet other actions too. While these stated enforcement steps by the Obama administration are likely to be more and better than for the Bush administration, they do not come anywhere close to meeting this latter reasonable list of actions. Welcome to our fake democracy once again in action, as much educational and other data still clearly show a still systemically racist nation.