When Interest Convergence Derails: More Challenges to Affirmative Action

• • "model minority", academic, affirmative action, education, law, social justice, Supreme Court, systemic racism, white elites

Many of the facts surrounding the recent challenges to affirmative action are not well known to the general public. A “perfect storm” has brought into question the survival of even modest, race-sensitive, non-preferential admissions programs designed to enhance campus diversity in higher education. This storm has arisen from three major sources. First, the term “affirmative action” has caused a backlash in (especially white) public opinion against programs believed to unfairly disadvantage white Americans. Second, wealthy white entrepreneurs have recruited plaintiffs and actively sponsored legal challenges to both civil rights and affirmative action programs. And third, a conservative Supreme Court has decided to hear these cases, resulting in the elimination, revision, or curtailment of existing civil rights laws and race-sensitive admissions programs. Critics indicate that the determinations of Chief Justice John Roberts’ conservative high court reflect a post-racial, color-blind perspective that contradict the continuing presence of race-based inequality in the United States. Roberts’ view is summed up in the 2007 Parents Involved v. Seattle School District; Jefferson County Board of Education (127 S. Ct. 2738): “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”

As Alvin Evans and I share in our new book, Affirmative Action at a Crossroads: Fisher and Forward, deep ironies and contradictions characterize the Supreme Court’s determinations in the civil rights arena and in the four major affirmative action-related lawsuits over the past thirty-five years. The Court has constricted and even reversed civil rights law on the premise that social conditions of inequality in America have, for the most part, been addressed with the conclusion that policies designed to level the higher educational playing field are both unfair and unnecessary.

Reinterpretation of the Equal Protection Clause of the Fourteenth Amendment (1868) is at the center of the high court’s determinations, moving from the original intent of the clause to protect the rights of minorities to an emphasis on the protection of all groups, including white Americans. For example, in the Fisher case, Justice Antonio Scalia voiced his incredulity over the argument that the Fourteenth Amendment protects minorities:

My goodness, I thought we’ve–we’ve held that the 14th Amendment protects all races. I mean, that was the argument in the early years, that it protected only — only the blacks. But I thought we rejected that. You–you say now that we have to proceed as though its purpose is not to protect whites, only to protect minorities?”

Legal scholar Derrick Bell’s theory of interest convergence explains how affirmative action arose during the civil rights era as a response to the radical protests and converged with other interests that were differently motivated. The creation of contemporary affirmative action programs by President John F. Kennedy and his successor, President Lyndon B. Johnson in the midst of periods of extreme racial turbulence coincides with the development of race-conscious admissions policies by leading universities.

Ironically, the frontal attack on affirmative action in university admissions practices leading to an overall shift in public policy at the nation’s leading universities has been led by a single individual, Edward Blum. Blum’s one-person organization, the Project on Fair Representation, was founded in 2005 to challenge the Voting Rights Act (VRA). This effort paved the way for the Supreme Court’s Shelby County v. Holder decision nullifying the requirement for nine states and some counties to obtain preclearance from the Department of Justice prior to changing voting requirements. A conservative entrepreneur without a law degree or scholarly background, Blum has recruited a network of top lawyers who often agree to offer their services at reduced rates.

In launching a sustained, legal assault on affirmative action, Blum recruited Abigail Fisher, the daughter of an old friend, to contest her denial of admission to the University of Texas at Austin based on a claim of reverse discrimination. The Court’s ruling in the Fisher case established a much more stringent set of preconditions for consideration of race as one factor among many in a holistic admissions process. First, consideration of race and ethnicity as one factor among many in the individualized admissions review process cannot occur unless all race-neutral alternatives have been exhausted. Second, a reviewing court rather than the university becomes the arbiter of whether or not a university’s use of race is necessary to achieve the educational benefits of diversity. Writing for the majority, Justice Kennedy emphasized that in reviewing the means to attain diversity, “the university receives no deference.” Referring to the Court’s decision in the 2003 Grutter v. Bollinger case at the University of Michigan, Kennedy added:

Grutter made it clear that it is for the Courts, not for university administrators, “to determine that the means chosen to accomplish the government’s purpose are “specifically and narrowly framed to accomplish that purpose.”

The Project on Fair Representation has continued its effort to recruit plaintiffs and filed suit against Harvard University and the University of North Carolina at Chapel Hill. The Harvard lawsuit takes a different tack by splintering minority interests and building on the white-created “model minority” myth. It focuses on admissions policies limiting the enrollment of qualified Asian-American applicants and argues that Harvard has held Asian American students to higher standards than other applicants. The suit against the University of North Carolina at Chapel Hill challenges that flagship institution’s own description in a friend-of-the-court brief in the Fisher case in which the university wrote of its current process to attain a higher level of black enrollment. Blum also says that he hopes to find applicants rejected from the University of Wisconsin, the University of Minnesota, and the University of Tennessee for future suits.

Edward Blum’s most recent high-profile effort challenges the concept of one person one vote, that has led to the Supreme Court decision last week to hear Evenvel v. Abbott, a suit that contests the way state districts’ lines are drawn in Texas. The case calls into question the Court’s Reynolds v. Sims decision (1964) that draws district lines based on an areas’s total population. Instead, Blum advocates the drawing of district lines based only on eligible voters, thereby eliminating children, illegal immigrants, non-citizen, and inmates, among others.

Yet as colleges and universities grapple with the Supreme Court’s rigorous requirements surrounding race-sensitive admissions processes, one unforeseen benefit may be the attention that needs to be paid to clearly-articulated mission, vision and values statements. These statements now need to contextualize why diversity is a compelling interest for a given college or university campus. In sharing recommendations for practice at the conclusion of our book, we note the ongoing and unusual responsibility of educational institutions to ensure the talent of the nation’s minority students is not wasted, but realized. The rich research literature on the educational benefits of diversity that has arisen in specific response to the recent affirmative action cases will assist institutions in the ongoing and persistent effort to open the doors of educational opportunity to America’s diverse citizenry.

Mickey the Dog and Kevin the Child

• • immigration, Latinos, law, media, poverty, racism, whites

In Phoenix on February, 2014 a pit bull named Mickey attacked a 5-year-old named Kevin Vicente. According to the Arizona Republic, Kevin arrived at Maricopa Medical Center “with skin and tissue ripped off his face, a broken eye socket, detached tear ducts and a fractured jaw.” Kevin “eats and breathes through tubes while awaiting a series of reconstructive surgeries. “ He is expected to have permanent and painful scarring.

It seems that Mickey has a history of violence. A few months before his attack on Kevin, Mickey killed a neighbor’s dog. According to a County Report, Kevin was playing with other children in the presence of a baby sitter. Kevin ran past Mickey, within the range of Mickey’s chain, who “caught the boy from behind, took him to the ground and attacked his face . . . Adults were present and pulled the dog off.” Accounts of the incident are mixed. A neighbor who witnessed the event said that what provoked the attack was that Kevin took one of the dog’s bones.

Dogs may bite someone who takes their bones, but what Mickey did went far beyond that. John Schill, Mickey ‘s attorney , did not seem to agree. He blames the child: “Everybody supports Mickey. . . . Everybody is taught, from the moment they walk, you do not take a bone from a dog.”

Let me get this straight, Mr. Schill: a 5 year old in the middle of play has the nerve to take a vicious dog’s bone and the dog almost kills him. Man, “that’ll teach the little brat.”

Support for Mickey has been so extraordinary that it boggles the mind. An ABC news report outlines steps taken by Mickey’s friends to save his life.

Action was brought against Mickey, asking for him to be euthanized. A Phoenix attorney stepped in on behalf of Mickey and after several months of legal battles and an outcry from tens of thousands of people on social media asking Mickey’s life be spared, a judge ruled that Mickey is indeed vicious but his life could be saved if an appropriate sanctuary could be found.

Sheriff Joe Arpaio got in the act. The details of his intervention may be found at Mickey’s cam website:

He [Arpaio] went to court on behalf of the dog and offered the judge a way to save Mickey ….the Sheriff’s Office would give Mickey a ‘life sentence’ inside Arpaio’s MASH jail (Maricopa County Sheriff’s Animal Safe House). The pit bull would be offered no parole, and no probation in exchange for taking the death sentence off the table.

Incidentally, “Cam” refers to the fact that Mickey‘s website includes live footage of the pit bull in his living area.

Although the boy’s needs are serious, the concern for him doesn’t come close to that of Mickey’s:

[A] fundraising website for Kevin and his mother [has] raised $1,179 as of Tuesday [March 11]. . .Flora Medrano [a neighbor]said Kevin’s mother, a single parent, had to quit her job to take care of her son full time. With no other family in the U.S., Medrano said, the mother needs family and emotional support — yet neither is pouring in.

The 5-year-old Latino is in pain and suffers from nightmares. “He asks me [his mother] when his scars will go away. I say I don’t know.”

Has this (white) country lost its mind? A vicious dog that mauls a 5-year-old child has a big following, a lawyer, and its own website? A sheriff gets involved in the fate of the dog, but does nothing to help a gravely injured and poor child. The little boy is blamed for being nearly killed by a vicious dog and damaged for life. But it is the dog that captures the white public’s imagination. This seems the epitome of human degeneracy.

The obvious issue of race was addressed in only one of the articles I found. Its author puts it succinctly:

I may be wrong, but I seriously doubt that the pit bull would be alive if Kevin was a little white child, whose mother spoke English fluently.

Obama and Immigration Reform

• • anti-immigrant, immigration, Latinos, law, political parties, politics

On November 19, after a long delay, President Obama issued an Executive Action on Immigration Reform that contained three stipulations. First, more resources will be given to law enforcement personnel charged with stopping unauthorized border crossings. Second, the President will make it easier and faster for high-skilled immigrants, graduates, and entrepreneurs to stay. Third, the President announced steps “to deal responsibly with the millions of undocumented immigrants who already live in our country.”

The first provision will please opponents of unauthorized immigration and the second will be supported by business interests. They are not likely to give rise to controversy. The third provision, however, has already caused a furor among conservative Republicans.

For example, Texas Republican Senator Ted Cruz asserted that Obama’s

actions are . . . unconstitutional and in defiance of the American people who said they did not want amnesty in the 2014 elections.

House Speaker Boehner, brimming with vitriol, stated that “President Obama has cemented his legacy of lawlessness and squandered what little credibility he had left.”

Once again, Republican leaders reached in their demagoguery tool kit and grabbed their standard response to all things Obama: Obama is dishonest, the problem is his fault, and the American people are on their side. Of course, they won’t do anything to fix it.

Many individuals sympathetic to the undocumenteds’ difficulties are in a festive mood. But there is a factor to consider before we can truly celebrate: we need to see President Obama follow through. Angelo Falcón, President of the National Institute for Latino Policy, puts it as follows:

We are . . . concerned that the President will not fully exercise his power of executive action to impact on all those who should be eligible for legalization, and expect that they will be shortchanged in terms of what should be basic human rights benefits such as health insurance. President Obama’s record also demonstrates that his public pronouncements do not necessarily result in effective federal action, with agencies such as Homeland Security consistently undermining the President’s rhetoric.

I share Mr. Falcón’s misgivings. I’ll wait and see how things turn out before I celebrate.

Democracy & American DREAMers: DACA & Undocumented Latino Youth

• • anti-immigrant, discrimination, education, immigration, Latinos, law, politics, racism, white racial frame

Immigration—particularly undocumented immigration—continues to be an unresolved issue in America; however, it is part of the larger unresolved issue of the political and social inclusion of Latinos (as well as other visible racial and ethnic groups) in the U.S. It is an issue that will increasingly affect us all because of our changing demographics with Latinos at 16.9 percent of the population projected to be 30 percent of the population by 2050 at the latest.

This lack of inclusion is underscored in a new book my coauthors, Jessica L. Lavariega Monforti and Melissa R. Michelson and I recently published which looks at the experiences of undocumented Latino youth who have been raised in the U.S., but because of the inability of our political leaders to pass immigration reform dealing with even the seemingly straightforward aspects of the issue—namely, how to incorporate and legalize Latino youth who have grown up in the U.S—their lives have been severely limited at every turn. In our book we systematically examine the experiences faced by undocumented Latino youth based on in-depth interviews conducted immediately after President Obama’s Deferred Action for Childhood Arrivals (DACA) in the summer of 2012. Through 101 interviews conducted in California, Texas, Washington, and Oregon we learn the effects of living in the U.S without the “nine-digit number” (Social Security number). We learn how living as undocumented youth has impacted their decisions after completing high school, their political socialization and self-identity, and their feelings of trust and confidence in our government, and even their personal and intimate relationships.

Regardless of their geographic location, the sample of DREAMers in our book all experienced life with a greater sense of fear, vulnerability, lack of freedom, and obstacles. It was felt while they were shopping, traveling, driving, or in one case, serving as a university student body president who was “outed” and had his life turned upside down. In some cases, their unauthorized status even affected their willingness to call the police if someone had been in a car accident. Living as an undocumented Latino youth in the United States is, even post-DACA (which provides some measure of protection from deportation) as one of our respondents stated, “not full freedom.” Similar to the experiences of immigrants in the past, our sample of DREAMers is affected by the white racial frame in that they are racialized targets at every turn. This racialization places greater limitations on all aspects of their lives. As one of our respondents states,

[B]eing an illegal immigrant shapes who you are, . . . when you’re growing up, like what you become and . . . how you act and whatnot.

Listening to the stories of our sample of DREAMers, we learn about the lives of hardworking, good kids who have grown up in America seeking to achieve the American dream like everyone else. Some always knew they were undocumented, but not quite what it meant; others first learned as teenagers. Just as they were trying, like other teenagers around them, to assert their independence – to go away to college, to get a first job, to learn to drive – they find themselves stopped in their tracks by a system that relegates them to the margins because they are undocumented.

Based on this research, if we truly hope to have a democracy, then we must have the wisdom and the tenacity to continually seek ways to improve our society by extending the promise of America’s most cherished principles to the DREAMers. Latino youth are our future and there will be no real democracy for any future Americans without the political and social incorporation of Latinos. Similarly to the pre-Civil War South and through the 1960’s where nearly half of the population was legally oppressed by the other, an America where one third of the youth entering their voting age, their legal working age, or college age either are excluded from the body politics or are suspected of not belonging to the body politic, democracy is crippled or false. As Douglas S. Massey states,

[T]he most serious task remaining for immigration reformers is the legalization of the 11 million persons who are currently unauthorized, especially the 3 million or more persons who entered as minors and grew up in the United States. The lack of legal status constitutes an insurmountable barrier to social and economic mobility, not only for the undocumented immigrants themselves, but for their citizen family members. Not since the days of slavery have so many residents in the United States lacked the most basic social, economic, and human rights.

The U.S.’s founding values of “establishing justice” or the “blessing of liberty” currently does not apply to 5 million Latino youth who are just kids trying to be kids in the only country they’ve ever known.

If we make a commitment to DREAMers through humane immigration policy such as passage of the DREAM Act, our entire society will be enriched by not only the economic and cultural benefits that they will bestow upon American society, but because we will stop undermining our democratic values through the continual exclusion of undocumented Latino youth who have so much to contribute to society, if only they are allowed to. As one undocumented young woman
we interviewed states:

We are members of this society whether people acknowledge it or not, but we continue to be discriminated against, marginalized and “othered.” We experience rejection on a daily basis, and although we continue to overcome barrier after barrier, it is not a way of life that any person should have to experience. We are talented individuals who want to be able to give back to our communities. Why does legislation continue to prevent us from doing so? Why let our skills go to waste? Why not use them to improve this nation? This problem is much bigger than people want to acknowledge. . . . [W]e are human beings who deserve to be treated with dignity and respect.

As we document in our book, all of the DREAMers we spoke to recognized that their immigration status had had powerful impacts on their lives.

And yet, as we found time and again in our research, they keep on dreaming as underscored by one of our respondents:

Well, whatever is within my reach I’m going to do it. After I finish my bachelor’s and continue my master’s, and if possible go into the PhD program; if not, I’ll set up a business as I have a business already, so keep going and make it bigger. I won’t stop. If there’s something in my way I’ll just go another way.

Racist, Immoral Dehumanization of Immigrant Children

• • Americans of color, anti-immigrant, Hispanic, immigration, Latinos, law, politics

There are two main challenges in addressing the border issue of increased numbers of undocumented children traveling alone from Central America to the US.
The first is that the dehumanization of Latinos in the US has been so tremendously successful that a basic call for decency and humanity is absent from the conversations surrounding this situation. For example, I recently highlighted the issue in an op-ed to a local newspaper and the comments reveal people hiding their racism behind arguments of “legal” and “illegal.”

An absence of decency and humanity can also be seen in the protesters who turned away buses of children or who are protesting detention centers across the country where children are housed because we’re a “nation of laws” or because the children “carry diseases,” “bring crime,” will grow up to “rape women.” This is all to familiar language that uses the same fear tactics, dehumanization, and racism once used towards African Americans during slavery and Jim Crow and towards the Chinese during the late 1800s—language used to justify atrocious acts of oppression of these groups then and language used to justify monstrous cruelty to these children today. One has to wonder if these protesters would have the same response to refugee children coming from Eastern Europe. Perhaps there would still be a backlash against thousands of Eastern European refugee children arriving alone to the US; however, I doubt it would rise to the shameless levels we’ve seen recently, or that it would use the kinds of language being used–language that has roots in removing people of color outside of our human and national family throughout American history. This underscores how effective the racialization of Latinos in the U.S. currently is.

The second hindrance with addressing this issue is the problem of politicians who either do not care or if they do care are acting first and foremost in their self-interests by being in lock step with xenophobic Americans’ preferences. This response by our nations leaders underscores Schneider and Ingram’s research revealing that politicians make laws that benefit certain groups and burden others. This explains why Congress refuses to act in a bipartisan fashion and pass laws addressing this situation. This explains why traumatized children are being put on planes and sent back as a deterrence to others. This is not just, rational, or wise public policy but this is what our political leaders are engaged in.

Instead, there must be another way. There must be collaboration and civility between the nations involved to come up with short-term and long-term policy solutions. For example, Héctor Perla Jr. recently provided examples of both short term and long term solutions in a recent article. Perla gives the example of granting the children refugee status rather than seeing them as undocumented immigrants in the short term, and in the long term he argues we must address economic policies in Central America that are creating the conditions pushing children and their parents to migrate.

Other short term ideas with the goal of preventing further harm to the children immediately by keeping more children from dying or being injured on the train include finding them earlier in the process of migration. This would require creating a coalition between the US and the countries from where the children depart to check the trains and help the kids at that point. Long term of course must address the roots of the problem. This requires taking into consideration why children are fleeing their countries and finding ways to address these issues as Perla suggests. This too, must be done in collaboration with leaders from Mexico and Central America. Of course, civility, compromise, and collaboration across national leaders seems impossible to accomplish when it doesn’t happen across political leaders in this country who follow the desires of many Americans who cannot see Latinos as human beings, not even the children.

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

• • Asian Americans, Asians, backstage racism, law, multiracial, stereotyping, systemic racism, white elites, whites, women of color

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.

Patterns and Politics of Large-Scale Poverty

• • demography, Latinos, law, people of color, politics, poverty, scholarship

Over the last half-century, since the passage of President Lyndon B. Johnson’s war on poverty, there has been a major retrenchment of efforts to help the poor. Over the last five decades, the poverty rate of the elderly dropped significantly from 37 percent in 1960 to 9 percent in 2012. Poverty dropped much more modestly for children and the workforce.

In that era, jobs were at the center of efforts to alleviate poverty. Dr. King’s monumental march on Washington on August 28, 1963, was actually called the March on Washington for Jobs and Freedom. The Economic Opportunity Act, the centerpiece of the war against poverty, sought to provide work and education for the needy to improve their lives.

Fifty years later, major educational gaps continue to distinguish the poor and non-poor members of the labor force. For example, one-fourth of the poor did not have a high school diploma in 2012 compared to nearly one-tenth of the non-poor. Further, the non-poor are three times more likely to be college graduates than the poor.

According to census public-use data for 1960 and 2012, the poverty rate of the U.S. workforce fell only slightly, from 14 percent in 1960 to 10 percent in 2012 — a mere 4 percentage points over 52 years. While the poverty gap between the minority and white workforce narrowed over the last five decades, black and Latino workers are still about 2.5 times more likely than whites to be impoverished today.

In fact, the poverty rate of the black labor force (17.2 percent) and the Latino labor force (16 percent) in 2012 was higher than that of whites (10.6 percent) in 1960.

Even more disturbing is the ballooning of the unemployment gap between the U.S. poor and non-poor workforce. While the poor were about 2.5 times more likely than the non-poor to be without a job in 1960, the unemployment gap increased to more than 4.5 times today. In 2012, 32 percent of the nation’s poor labor force was unemployed compared to 7 percent of the non-poor workforce. It is likely that the unemployment rate is actually higher, especially among the destitute, due to people leaving the labor force after lengthy periods of unsuccessful job searches.

The unemployment gap between the poor and non-poor was particularly wide among whites, where the white poor (30 percent) were five times as likely to be without a job compared to the white non-poor (6 percent) in 2012. Nonetheless, many impoverished people in the country are searching for employment. Indeed, the unemployment rate of the poor varied widely in 2012 from 43 percent among blacks to 30 percent among whites to 26 percent among Latinos.

However, among the poor, it is Latino immigrants who have the lowest unemployment rate (20 percent). This challenges notions that Latino immigrants come to the United States to live off the largesse of social services. In fact, Latino immigrants are more likely to be employed than other workers. In addition, Latino immigrants among the working poor are more likely than other impoverished employees to work longer hours and to hold jobs that are the least rewarded and desired.

Of course, a job does not ensure that the poor get out of poverty. Indeed, nearly 70 percent of the poor who are in the labor force are working. While the portion of U.S. workers who are poor declined from 1960 to 2000, there has been a reversal since. In 2012, about one of every 14 U.S. workers was in poverty. But being among the working poor is especially likely among workers of color. About one of nine black workers is poor, one in 10 native-born Latinos, and one in six Latino immigrants.

A lot has changed since the eve of the passage of the Economic Opportunity Act in 1964. The economy then was one in which manufacturing provided a good living for many Americans who had a high school diploma or less. Over the next few decades, such jobs shifted to the hands of workers abroad who toiled for a mere pittance of the pay of American workers. U.S. labor unions saw a major drop in membership and in bargaining power. The American economy increasingly took the shape of an hourglass where job growth expanded at the highest and lowest levels of the job hierarchy. The middle class progressively shrank.

The latest economic crisis has taken a toll on so many people, many of whom had never been poor before. Many people who are working today are still destitute and still others among the poor are desperately looking for employment. Increasingly, our society consists of a small elite body that controls an expanding share of wealth and income and a growing population of disadvantaged people whose sliver of resources is being whittled down.

In the mid-1960s, President Johnson passionately etched the face of the poor on the American consciousness and forcefully pushed for the establishment of policies to improve the lives of people on the margins. A half-century later, there is a stark absence of political leaders who see the poor as a priority.

Today, Republican-led policies, with relatively little resistance from Democrats, are escalating the war against the poor. Instead of creating opportunities to better the lives of the needy, legislators blame the poor for their dire straits. Congress has slashed food stamp allocations, terminated unemployment payments and thwarted the increase of the minimum wage for people viewed as too powerless to matter.

Over the last half-century, there has not been a more desperate time than today for visionary leaders who boldly push for the establishment of opportunities to improve the lot of our nation’s poor.

This commentary was originally published in the San Antonio Express-News.

I am Not Trayvon Martin

• • African Americans, law, police, white privilege, whites, women

After Trayvon Martin was killed, in February of 2012, protestors gathered across the nation asking for justice for Trayvon Martin. The protestors rallied around the slogan “I am Trayvon Martin,” with people wearing hoodies and carrying bags of skittles. The rallying cry called attention to the fact that young black men are overly-surveilled and viewed with suspicion, considered criminal on sight, and thus frequently in the position of being the target of police or vigilante violence. The “I am Trayvon Martin” protests called attention to the terrifying reality that all of us with black sons could be in the position of Martin’s parents: awaiting a decision concerning the culpability of a man who shot and killed our babies because he assumed he was a criminal—but knowing that regardless of that decision, his life was over. In July of 2013, while the jury was deliberating, I saw a meme posted on facebook that flipped the frame of the “I am Trayvon Martin” slogan. It was a picture of a middle aged white man in a black hoodie, and the caption read:

I am not Trayvon Martin. When I was 14 I was caught in the middle of the night by a neighborhood watch setting fire to a stack of newspapers. Trayvon Martin was walking home with a bag of skittles. I was taken home to my parents. Trayvon was shot and killed.

The message resonated with me, because although there are many young black boys who I love, and often fear for, I am not Trayvon Martin: as a white woman, I have a lifetime of experiences that illustrate what a difference race makes.
Just to share one particularly relevant example, one night when I was 17 years old I was spending the night with a friend, another 17 year old white woman. She lived in a white middle to upper-middle class neighborhood. That night, after her parents went to bed, she and I snuck out of her house on a mission to creep through the neighborhood and find ourselves some fun, and probably some trouble. We were up to no good. At about two o’clock in the morning, after running the streets for hours, we were walking down a street which was lined with boutique shops and small businesses. One of the businesses on that street was a local investment company, The Johnson Company. My friend and I had a mutual friend—a boy who we were excited to impress—named Calvin Johnson, and in our mischievous mood we decided that we should steal the company’s sign so we could give it to Calvin–the was made of wood, it was about two feet long by four feet wide, and “The Johnson Company” was printed across it in huge red letters.

After prying the sign loose from the hooks that held it, we began the walk back to my friend’s house – with me carrying a two foot by four foot sign in my arms. As we were walking we were approached by a police car, which stopped beside us. At that moment, I knew for certain that we were going to jail. Of course we were. I was holding a huge sign that said “The Johnson Company,” and we were less than two blocks away from said company. My only hope was to attempt to concoct some story, some lie that explained my having the sign for a reason other than sheer criminal mischief, and my brain was working furiously as the officer driving rolled down his window. But I was surprised. Stopping me in my tracks, the officer simply asked “where are you young ladies headed?” My friend said “we’re on our way home right now.” I said nothing. I concentrated on keeping the surprise (and even indignation) off my face. The officer said, “where do you live?” She told him her address, which was approximately four blocks away, and, astounding me further, the police officer said, “well hurry and get home, and be careful, its late for you girls to be out.” Then he rolled up his window and drove away.

I was not Trayvon Martin that night. I was a young white woman, walking through a white upper-middle class neighborhood at 2 a.m., so even though I was holding a stolen sign, my presence was entirely unproblematic, except to the extent that I might be in danger. The officer assumed that we were not engaged in wrongdoing – even though we were, in fact engaged in wrongdoing. He had clearly seen the sign I was carrying, since it was more than half as tall as I was, but he also clearly assumed I had that sign for a legitimate reason. So on that night, a police officer showed us, two young white women, human kindness and empathy. He advised us to hurry home, letting us know that it was too late for us to be out, he was worried about our safety, not for the threat we may pose to others or the neighborhood.

On that night my life could have been changed forever. The sign we stole may have been worth enough money to make me eligible for a charge of felony theft. I may have gone to jail or prison instead of college; I may never have gotten the opportunity for an undergraduate education, much less graduate school. I certainly would have had trouble becoming a lawyer since the American Bar Association engages in strict background checks and resists admitting people with felony convictions to the bar. None of that happened because my whiteness never produced a moment of suspicion in that police officer; because I am not Trayvon Martin. I did not lose any aspect of my life as a result of my desire to go creeping that night; Trayvon Martin lost his entire life because he walked to the convenience store in a white gated neighborhood.

Throughout my youth I found that I was often viewed by that police officer as someone to take care of, to show concern for. By contrst, African Americans, especially African American men are viewed as potential criminals. African American men, of all ages, from young teens to elderly gentlemen, from every background, from high school students, to college professors to judges, experience the humiliation of being systematically surveilled and considered suspect—so much so that even a self-appointed vigilante neighborhood watch person, with no legitimate authority, feels entitled to follow a young black man who is merely walking home from the store. But more than that, it is this air of suspicion that leads people to the conclusion that it was reasonable for George Zimmerman to follow Trayvon Martin. The tacit, never fully considered or admitted, assumption that an African American young man in a hooded sweatshirt (as opposed to a white young woman holding a stolen sign) is a potential criminal. And through this nearly axiomatic presumption of black male criminality people can come to the outrageous conclusion that Zimmerman chasing after Martin and confronting him with a gun could lead to a scenario in which Trayvon Martin was viewed as an aggressor.

Several days ago a jury acquitted George Zimmerman (failed, even, to find him guilty of manslaughter, which would have only required recklessness in the shooting). The legal basis for the acquittal was the Florida “Stand Your Ground” law, which allows people to defend themselves with force from an attack without having to attempt to retreat or escape the situation. Evidently the jury decided that after Zimmerman chased Martin down, Martin’s defensive physical response meant that Zimmerman was justified in shooting and killing Trayvon Martin. Metrotrends analysts John Roman and Mithcell Downy have discovered that in the 29 states that have Stand Your Ground laws, shootings are more likely to be legally considered justified. More insidiously, Roman and Downy found that the shooting scenarios that have the highest likelihood of a ruling of justifiable homicide in Stand Your Ground states result when white civilians shoot black civilians. This racial disparity is not surprising to social scientists who study race, the pattern of racial disparity exists in every segment of the criminal justice system in the United States. Moreover, legal scholar Michael Tonry, in his 2011 book Punishing Race, notes that research indicates that when white people are made aware of the racial disparities that affect African Americans in the criminal justice system, their support for punitive criminal justice policies actually increases. (See pp. 91-97).

At this moment the Justice Department is in the process of considering charges against George Zimmerman for civil rights violations (civil rights violations!), and the Stand Your Ground law will not save Zimmerman from a civil suit. But whatever the outcome of that case, Trayvon Martin’s killing must become the motivation a critical systematic interrogation of the criminalization of African Americans in all its insidious forms. We must acknowledge that we are living in a police state in which the lives of young African Americans (especially boys and men) are threatened by extreme surveillance and suspicion, police and civilian harassment, mass incarceration, and even execution. The time has come to stop casually using the words democracy and freedom, and start interrogating what those words should substantively mean.

Dr. Wendy Leo Moore is an Associate Professor of Sociology at Texas A&M University. She is a sociologist and a lawyer and is the author of the award-winning book Reproducing Racism, White Space, Elite Law Schools, and Racial Inequality.

Top Ten Percent Rule: Fisher v. University of Texas

• • academic, affirmative action, law, social justice, Supreme Court, white privilege

The Top Ten Percent policy is one of the key issues in the case filed by Abigail Fisher against the University of Texas now before the Supreme Court. Fisher alleges that her rejection from the University of Texas was based on discrimination due to her race (white). One of Fisher’s principal arguments is that the Top Ten Percent Rule has produced sufficient levels of diversity, i.e., that it already increases minority enrollment.

A number of states such as California, Texas, and Florida have created “Top Ten Percent” (TTP) rules that guarantee admission to public universities for students who graduate in the top ten percent of their classes. In Texas, House Bill 588 created this rule in 1997 as a way to avoid the stipulations of the Hopwood v. Texas case that barred the use of affirmative action in application decisions. Legislation in Texas passed in 2009 allowed the University of Texas to reduce the number of students admitted under the ten percent rule to 75 percent of the entering freshman class. This reduction was in response to concerns that the University had to turn down better-qualified applicants under the automatic admission policy. TTP policies still remain controversial since some believe that these laws give unfair advantage to individuals from less competitive high schools.

A recent working paper posted on the University of Michigan’s National Poverty website discusses the impact of the TTP plan on admissions at Texas public universities. The authors, Lindsay Daugherty, Francisco Martorell, and Isaac McFarlin, examine the effect of automatic college admissions for a potentially underserved population. These researchers found that effects on flagship university attendance of TTP policy are twice as large for white students than minority students, with no effects for low-income students. TTP students are more likely to be white and female, and less likely to be economically disadvantaged. Only 10 percent of TTP students enroll in a flagship, compared to 30 percent in higher-sending schools. As a result, the authors suggest that eligibility for automatic admissions “may not have much effect on the outcomes of students in the most disadvantaged schools”(p. 21).

Similar results are reported in studies by Princeton University sociology professors Angel Harris and Marta Tienda. For example, in a 2010 analysis of the “Minority Higher Education Pipeline” in the Annals of the American Academy of Political and Social Science, Harris and Tienda found that the shift from affirmative action to TTP policies in Texas resulted in lower admission rates for both Hispanics and blacks relative to whites and Asian Americans. They point out, however, that Asian Americans did not enjoy an admissions advantage under any of the policy regimes.

Harris and Tienda further explain that the admissions disadvantage of blacks and Hispanics to white applicants grew over time, with an annual loss in Hispanic applications that range from 240 at the University of Texas at Austin to nearly 700 at Texas A&M University and a loss of black applicants ranging from more than 60 to UT to more than 300 to TAMU. This loss reaches its lowest point under the Top Ten regime.

An insightful article by Nikole Hannah-Jones in the Atlantic Wire indicates that in 2008, the year Fisher applied, the Texas University system gave admission to 92 percent of its in-state spots through the Top Ten policy. Since Fisher was not in the top ten percent, she and other applicants were evaluated on grades, test scores, and a personal achievement index that included two required essays as well as consideration of socioeconomic status, race, and other factors. Fisher’s scores were 1180 out of 1600 on the SAT and her grade point average was 3.59, good, but not outstanding. The university indicates that even if Fisher had received points for her race and every other personal achievement factor, she would not have been accepted. The university did, however, offer provisional admission to some students who had lower test scores and grades than Fisher: five were black or Latino, and forty-two were white.

Given the substantial empirical findings on the impact of the Top Ten Percent policy on minority admissions as well as the University’s assessment that Ms. Fisher would not have been admitted even if she had received points for her race, it is difficult to ascertain the specific disadvantage that Ms. Fisher received as an applicant under Texas’ Top Ten Percent rule coupled with UT’s holistic review process.

College Presidents Weigh in on Affirmative Action in Admissions

• • affirmative action, discrimination, diversity programs, education, law, 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.