Test-ocratic Merit vs. Democratic Merit?

• • affirmative action, Americans of color, diversity programs, education, equality, mutliracial democracy, Supreme Court

What are the benefits of a college education in a diverse democracy? Research indicates that these benefits include the ability to strengthen critical thinking, to provide students with the capacity for leadership, problem-solving, and creativity, and to strengthen social agency and pluralistic orientation for careers and citizenship in a global society. Yet is the inordinate emphasis on college entrance aptitude tests really a measure of merit and of the abilities of potential college students to develop these needed competencies?

Lani Guinier’s new book, The Tyranny of the Meritocracy: Democratizing Higher Education in America (Beacon Press, 2015) describes how higher education has drifted from a mission-driven to an admission-driven system, focused almost exclusively on the predictive value of the SAT-type tests for success in the first-year of college. In fact, as she notes, the SAT only has a modest correlation with freshman-year grades, whereas grades in the four years of high school are a much stronger predictor of academic success. Guinier asserts that the SAT’s most reliable value is as a proxy for wealth in its norming to white, upper-middle class performance, as shown by the average SAT test scores based on ethnicity.

Alluding to the “Volvo effect” in Andrew Ferguson’s book, Crazy U Professor Guinier refers to the inordinate amount of funding and effort placed by wealthy parents on preparing their children for college entrance exams. As she explains, “Aptitude tests do not predict leadership, emotional intelligence, or the capacity to work with others to contribute to society” (p. 26). As a result, she calls for a culture shift in terms of how we evaluate merit in terms of “democratic values” rather than “testocratic machinery.”

An important insight from this thought-provoking book is that democratic merit within an institution of higher education is defined by context. As such, the definition of merit crystallizes the mission and purposes of the institution and necessarily involves choices about which characteristics of the applicant pool are valuable. This definition is particularly germane to discussions about affirmative action in the wake of the 2013 Fisher v. University of Texas at Austin Supreme Court case that will be reheard this fall on appeal.

In the Fisher ruling, the Supreme Court has determined that colleges and universities must exhaust race-neutral alternatives before consideration of race-conscious factors in a holistic admissions process. Guinier indicates that Fisher and other affirmative action opponents have singled out race, before any other admissions criterion such as musical ability or athletic accomplishment, as undeserving of consideration. A perhaps unintended benefit of the Court’s ruling, however, is that colleges and universities must proactively re-examine their mission statements for the ways in which these statements articulate the importance of diversity. As Alvin Evans and I point out in our new book, Affirmative Action at a Crossroads: Fisher and Forward (Jossey-Bass, 2015) the Fisher decision brings the institutional context for diversity into the foreground, since a college or university’s specific rationale for a diverse student body needs to be framed in the context of mission, vision, and values statements.

In Guinier’s view an “obsessive culture of testing” obscures the emphasis on developing student potential and results in institutions that lack meaningful race and class diversity. From this perspective, the attainment of democracy learning outcomes in the undergraduate experience cannot rely on a single, weak predictor of first-year success such as the SAT, but instead requires an educational focus consistent with institutional mission that nurtures individual talent and fosters the access and success of a diverse student body.

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.

Supreme Court Moves Away from Civil Rights

• • Supreme Court, white racial frame

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

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(Image source)

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

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

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

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

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

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

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

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

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

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

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

 

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

The Fisher decision misses the point: Separate and unequal

• • affirmative action, African Americans, Americans of color, Asian Americans, education, Latinos, statistics, Supreme Court

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

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

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

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

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

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

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

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

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

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

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

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.

Transcript for Fisher v. University of Texas

• • racism, Supreme Court, whites, women

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.

 

Research on Racial Diversity’s Value and the University of Texas Case

• • education, racial segregation, racism, Supreme Court, white elites, white privilege, white racial frame, whites



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.

Racist “Poll Taxes” Again: Shades of Jim Crow

• • African Americans, Americans of color, law, political parties, politics, racism, Supreme Court, systemic racism, white racial frame



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?

The Real Question to Ask About Our Supreme Court: Why?

• • Congress, politics, Supreme Court, systemic racism, US Constitution, white elites, white privilege

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?