Susan Graham for Project RACE
If you think multiracial people have racial and ethnic problems in the United States, just look at what’s happening in Brazil. Forty-three percent of Brazilians self-identify as part pardo or brown. In the United States, multiracial people are about seven percent of the population. Their census has 136 classifications and ours has 57 for multiracial combinations.
Brazilians often do not identify as white or black, but fall into an assortment of names like dark nut, burnt white, and copper. It reminds me of the 1990s in the United States, when the Office of Management and Budget (OMB) was actually considering a “skin gradation chart” for their racial categories. Thank goodness that didn’t happen.
Brazil has a very complex history, which I won’t go into here, but 5.5 million Africans were forcibly transported to Brazil in its story of slavery. They have never been and are now no closer to a color-blind society than we are.
Affirmative action is very scary in Brazil. Many multiracial Brazilians are being rejected or thrown out of affirmative action programs for being too white. Whether you agree with the basics of affirmative action or not, will what’s happening in Brazil ever happen to us in the United States? Will affirmative action bite the dust rather than try to qualify its participants?
Schools there are setting up race boards to inspect future educational and job applicants, It may surprise you to learn that Louisiana, in fact, had “race clerks” to maintain the one-drop rule and ensure racial “purity” until 1977. The race boards in Brazil may be the law soon. About 25 students were recently expelled from one of the leading universities for “defrauding” the affirmative action system when they were found to be not “black enough.”
One of the points we won in the 1990s in the United States was for self-identification on the census and on all other forms requiring racial and ethnic information. It was a very important victory, as important as having the ability to check more than one race. We should never forget that it was a huge win from the previous observer identification policy. In Brazil, people can self-identify, but identification is very different in Brazil, as F. James Davis wrote in Who is Black, “The implied rule is that a person is classified into one of many possible types on the basis of physical appearance and by class standing, not by ancestry.” There is a big difference in the way the two countries count by race.
The criteria used by those universities and employers in Brazil are indeed scary and include the following: Is the candidate’s nose short, wide and flat? How thick are their lips? Are their gums sufficiently purple? What about their lower jaw? Does it protrude forward? Candidates can be awarded points per item, like “hair type” and “skull shape.” So, the laws stipulate that an applicant’s race should be self-reported, but then accuses them of lying for affirmative action purposes. Many of these students are resorting to something called the Fitzpatrick scale that grades skin tone from one to seven, or whitest to darkest. It’s something we would, hopefully, never tolerate in the United States. Yet, the race commissions in Brazil have a lot of support from the black community.
The United States must be aware of the tactics utilized in Brazil and we have to learn from them. If affirmative action remains alive in our country, let’s make sure it is fair for our multiracial population.
Sotomayor: Race affirmative action works, economic doesn’t
Supreme Court Justice Sonia Sotomayor defended her support of race-based affirmative action, saying she believes it works to improve diversity in higher education, where using geographic or economic status don’t.
Sotomayor, who wrote the dissent in an April ruling that allowed Michigan to ban affirmative action, said race-based affirmative action programs helped people like her and President Obama rise above difficult childhoods to the very top of their fields.
And unlike using race, she said, the statistics show economic or geographic considerations don’t work to improve diversity.
“It just doesn’t,” she told ABC’s George Stephanopoulos on This Week Sunday. “If you start from the proposition that advantage inures to a background that’s privileged — and it does.”
“Legacy admission is a wonderful thing, because it means even if you’re not as qualified as others you’re going to get that slight advantage.””But what does ‘qualifications’ mean in an academic setting?” she continued. “A place like Princeton… could fill their entire beginning freshman class with students who have scored perfectly on undergraduate metrics. They don’t do it because it would not make for a diverse class on the metrics that they think are important for success in life.”
Sotomayor said she agrees with Obama that his children should not receive “special consideration” for their race, adding that race shouldn’t be considered in a vacuum.
“But even privileged people will show you dramatic accomplishment that doesn’t go just to grades,” she said.
Source: United Press International
Supreme Court Upholds Michigan’s Affirmative Action Ban
Justices Decide States Can End Racial Preferences Without Violating Constitution
WASHINGTON—The Supreme Court on Tuesday upheld Michigan’s decision to end affirmative action at its public universities in a 6-2 ruling, but the justices were divided in their reasoning, suggesting continued uncertainty over the broader issue of racial preferences.
The ruling leaves in place a 2006 Michigan ballot initiative where voters ended race-based admissions at state schools, and means racial preferences won’t soon return to the University of Michigan—or any other public university in states that have chosen to end the practice.
“Democracy does not presume that some subjects are either too divisive or too profound for public debate,” Justice Anthony Kennedy wrote in backing the law.
The court’s ruling didn’t alter the ability of universities in states without bans to consider race as one factor among others in admissions. Instead, the court chipped away at affirmative action by giving its blessing to one path for foes to challenge admissions policies: ballot initiatives. Opponents have also gone to courts and state legislatures to end affirmative-action practices in a decadeslong battle over university policies.
Eight states, including California, have ended affirmative action since 1996. Practices vary widely among institutions. The higher-education establishment generally favors the use of racial preferences to promote diversity in the student body. Many of the nation’s most selective universities—including the Ivy League, the U.S. military academies and flagship public institutions such as the University of Texas at Austin and the University of North Carolina at Chapel Hill—employ affirmative action.
Race-based admissions policies are at issue in a continuing lawsuit against the University of Texas at Austin. In that case, involving a white student who challenged admissions policies after being rejected, the Supreme Court ducked the chance to rule directly on affirmative action in June 2013, and returned the case to a lower court.
Earlier this month, Edward Blum, an activist who has underwritten the lawsuit against Texas, set up websites seeking potential plaintiffs to sue Harvard University, the University of North Carolina and the University of Wisconsin over affirmative-action policies he believes are unlawful.
Tuesday’s ruling saw both the court’s right and left wings splinter, suggesting the justices are far from consensus on when affirmative action may be allowed, an issue sure to return to the court in the coming years.
The court’s five conservatives produced three different opinions. Justice Stephen Breyer split from two liberals to side with Michigan for separate reasons. The fourth liberal justice, Elena Kagan, recused herself, presumably because she was involved in the case in her previous post as U.S. solicitor general.
The closest the court came to consensus was a plurality opinion by Justice Kennedy, joined by Chief Justice John Roberts and Justice Samuel Alito. Justice Kennedy tried to walk a moderate line. He acknowledged the U.S.’s painful history of racial exclusion, while concluding Michigan voters retained the prerogative to adopt a ballot initiative expressly prohibiting both discrimination and preferences.
“The electorate’s instruction to governmental entities not to embark upon the course of race-defined and race-based preferences was adopted, we must assume, because the voters deemed a preference system to be unwise on account of what voters may deem its latent potential to become itself a source of the very resentments and hostilities based on race that this nation seeks to put behind it,” Justice Kennedy wrote. “Voters might likewise consider, after debate and reflection, that programs designed to increase diversity—consistent with the Constitution—are a necessary part of progress to transcend the stigma of past racism.”
Seemingly trying to cool emotions, Justice Kennedy stressed at the outset “what this case is not about. It is not about the constitutionality, or the merits, of race-conscious admissions policies in higher education.”
Instead, he wrote, the issue was which level of government held the power to decide if affirmative action to promote diversity was an appropriate policy in public institutions.
equal treatment in college admissions, because it is fundamentally wrong to treat people differently based on the color of their skin,” Republican state Attorney General Bill Schuette said. “A majority of Michigan voters embraced the ideal of equal treatment in 2006, and today their decision was affirmed.”
Civil-rights advocates called it a setback. “We think it’s a terrible decision,” said George Washington, an attorney for the Coalition to Defend Affirmative Action, Integration and Immigrant Rights and Fight for Equality by Any Means Necessary, a Detroit-based advocacy group that challenged the ballot initiative, Proposal 2. “It allows the voters of each state to decide what the rights of minorities should be and whether they should be admitted to the most selective universities.”
States Without Affirmative Action
Prior to Tuesday’s Supreme Court decision, eight states had ended affirmative action, or preferential treatment based on race, at public colleges:
- California—in 1996
- New Hampshire—2011
Source: National Conference of State Legislatures
Statistics tell a mixed story about race since the 2006 initiative nixed race-conscious admissions policies. Black enrollment at the University of Michigan fell to 4.82% in 2013 from 6.12% in 2009, university numbers show. But Hispanic enrollment grew slightly to 4.97% from 4.47% during the same period.
The university has been a frequent battleground over affirmative action. In 2003, a narrowly divided Supreme Court upheld the practice at the university’s law school, but struck down a different point-based method it employed for undergraduate admissions, saying it made race too dominant a factor.
Three years later, Michigan voters approved Proposal 2, only to see it thrown out in 2012 by the Sixth U.S. Circuit Court of Appeals. The Cincinnati-based court cited Supreme Court precedents from 1969 and 1982 striking down voter initiatives that restructured the “political process” to disadvantage minorities, but Justice Kennedy said Michigan’s ballot initiative couldn’t be compared with the circumstances in those earlier cases.
Justice Sonia Sotomayor, joined by Justice Ruth Bader Ginsburg, filed a 58-page dissent and summarized it from the bench, signaling strong disagreement with the majority.
Justice Sotomayor wrote that Michigan voters “changed the basic rules of the political process in that state in a manner that uniquely disadvantaged racial minorities.” In order to obtain admissions preferences, they now would have to amend the state Constitution, she wrote, while other groups—such as alumni children or athletes—could obtain admissions preferences more easily, such as by lobbying administrators.
She also mocked as “out of touch with reality” Chief Justice Roberts’s statement in a 2007 desegregation decision that “the way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” She wrote, “race matters,” adding that “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.”
That brought a response from Chief Justice Roberts. “It is not ‘out of touch with reality’ to conclude that racial preferences may…do more harm than good.”
Source: The Wall Street Journal
Prop. 209 Is Just Fine
California will not solve its higher education diversity problems by bringing affirmative action back into the admissions process.
Racial diversity and minority underrepresentation in California’s schools has been a hot-button issue for half a century, but a proposed amendment to California Proposition 209 that would lift the ban on “affirmative action” in UC and CSU admissions has stirred up quite the controversy.
Proposition 209 was originally signed into law in 1996, and effectively banned state institutions from discriminating based on “race, ethnicity, color, sex or national origin” when considering candidates for employment or education admissions. Officially, this would mean that college admissions officers could not prioritize these criteria when considering candidates for admission. Senate Constitutional Amendment 5, which has already been passed by the State Senate, seeks to exempt state universities, like the UC system, from those rules in an attempt to increase the proportions of students from underrepresented minority backgrounds. In a system that had 4.2-percent black admissions and 27.6-percent Latino admissions in spring 2013, this would likely mean higher enrollment for students of these backgrounds.
But as much as we support diversity and advocate equality in admissions, we don’t think that bending admissions standards to prioritize underrepresented groups will deal with the underlying problems in higher education. While the intentions behind SCA-5 are good, the Universities of California should not reject qualified candidates in favor of meeting race-based quotas.
Under the UC system’s current admissions protocol, dubbed “holistic review,” an applicant’s race is not the primary determinant of their chances, as it is in the affirmative action system. Admissions officers assign each student a score, to which the circumstances associated with a student’s race or background contributes, along with the usual academics and extra-curricular activities. While this might be helpful in deciding between two nearly identical candidates, the purely race-based admissions methods that SCA-5 will give way to are steps in the wrong direction.
Arbitrarily boosting minority candidates’ applications tends to hurt the very students that the policy is intended to help. Graduation rates for underrepresented groups in state universities show that putting students with low high school performance into a rigorous academic environment will not help them succeed. Statistics from California’s Postsecondary Education Commission show that black and Latino men and women are, on average, 10 percent less likely than their counterparts to complete their degree over a 4-to-6 year period. While there are certainly thousands of high-achieving students from minority backgrounds, it seems as though students who have been accepted on the basis of their ethnicity may end up struggling. We feel that these students would be better served and more likely to earn their way into prestigious universities if California took the initiative beginning with early education to help them succeed.
Statistics seem to show, in fact, that the education inequality gap emerges earlier in education. According to the California Department of Education, Hispanic/Latino children make up just over 52 percent of California’s K-12 public school student demographic but constitute only 30 percent of applicants to the UC system. In contrast, Asian-American students make up around 11 percent of the K-12 population but 44 percent of applicants to the UC. The problem doesn’t lie in admissions to the UC, which proportionally have a fairly close correlation to applications. The problem is the lagging number of minority high school students applying to colleges.
Accordingly, investment in primary and secondary schooling for underrepresented minorities may hold the solution. The UCSD-run charter Preuss School, which exclusively admits would-be first-generation college students, turns out high school graduates that are accepted to four-year colleges, including prestigious universities such as Harvard, Yale and MIT. School programs should focus on motivating the many talented but underrepresented children who come through their doors. With a supportive environment and an interactive curriculum that could include anything from the arts to robotics, schools can take steps to ensure that these students can apply to college with the same academic background as their white and Asian-American peers.
Thousands of highly qualified students from other ethnic backgrounds are already turned away from the UC system every year, and the number is only expected to increase if the bill passes. Accepting more minorities is all very well, but every seat given is one taken away from another potential student. The highest-achieving college entrants systemwide have historically been of white and Asian-American ethnicity, and we feel that is unfair for academically stellar students to be passed up because of their race alone.
While we appreciate the efforts of those in the state legislature to try and level the playing field for students of all races, we suggest that they look to alternative methods. Engaging and improving primary and secondary education can help bright, underrepresented minority students get the academic experience they need for success without suggesting they need special accommodations to get there.
Source: The Guardian
Affirmative action programs reconsidered under new California amendmen
California voters will reconsider affirmative action programs in higher education on the November ballot after a proposed amendment passed the Senate last month.
Approved by 54.6 percent of California voters in 1996, Proposition 209 is an amendment to California’s Constitution that prohibits affirmative action in government hiring, public school admissions and public contracting by prohibiting special treatment to individuals on the basis of race, sex, color, ethnicity or nationality.
“Research shows that since the passage of (Proposition) 209, historically underrepresented students have experienced dramatic declines in enrollment within the (University of California) system,” said ethnic studies professor Elvia Ramirez.
Sociology professor Manuel Barajas has been part of many groups at Sacramento State that advocate equity and diversity amongst faculty and students. To bring awareness to the higher education crisis in California,
Barajas gave a faculty presentation in 2011 titled “Challenging Borders to Higher Education in California.”
“Diversity is part of the state’s wealth,” Barajas said. “It offers an exciting innovative environment that reflects and integrates world experiences, and positions the state in a strategic and influential position.”
Sac State does not use diversity in admission decisions, said Director of Admissions and Outreach Emiliano Diaz.
To promote diversity on campus, the university partners with programs like Sacramento Pathways to Success that focus on public school outreach to create awareness of higher education opportunities.
Freshman child development major Lien Lui said college admission based on ethnicity might help some individuals, but it is not fair to those that meet the grade qualifications.
“I would have liked to get into Long Beach or San Jose State, but I didn’t have the grades and I think that is fine,” Lui said. “I don’t want them to accept me just because I am Asian.”
Although race and ethnicity do not play a role in student admissions, it does in access to higher education and the job market, sociology professor Paul Burke said.
According to a 2008 California educational trend study, 13 percent of Latinos have a bachelor or higher degree, compared to 20 percent African Americans, 53 percent Asian Americans and 30 percent European Americans.
Cultural anthropology freshman Jasmine Taylor said she is lucky to have gone to a private school that prepared her for college.
“Our public schools are horrible,” Taylor said. “It is mostly minorities. Those people, they really don’t have a chance.”
According to the 2012 California Budget Project, public school funding between 2007 and 2010 has been cut by $7 billion, causing reduced services to students including summer and after school programs and shortened school years.
Additionally, budget cuts have nudged students into crowded classrooms because of a 32,000 teacher workforce drop between 2007 to 2008 and 2010 to 2011.
Looking at education funding reductions in the past 10 years and the increase of college tuition fees, attaining higher education in California has become a challenge, primarily to minority groups who benefit from programs that are being cut.
The solution to California’s higher education crisis is complex, and although affirmative action programs will not completely resolve the crisis, it has been a proposed starting point according to numerous reports.
“(The amendment) long overdue, and I think it will pass,” Burke said. “California has changed a lot in 20 years. We are a more progressive state and we are more diverse demographically. I think the time is right.”
Source:n State Hornet
California Voters to Revisit Affirmative Action
SACRAMENTO, Calif.—The fight over affirmative action in California’s higher education system is coming back.
Under a proposed constitutional amendment that passed the Senate on Thursday, voters would reconsider affirmative action programs at the University of California and California State University systems on the November ballot. SCA5 would remove certain prohibitions in place since 1996, when voters approved Proposition 209.
That initiative made California the first state to ban the use of race and ethnicity in public university admissions as well as state hiring and contracting.
The amendment under consideration in the Legislature would delete provisions in Proposition 209 that prohibit the state from giving preferential treatment in public education to individuals and groups based on race, sex, color, ethnicity or national origin.
“A blanket prohibition on consideration of race was a mistake in 1996, and we are still suffering the consequences from that initiative today,” said Sen. Ed Hernandez, D-Covina, who carried the measure. “You cannot address inequality by refusing to acknowledge it.”
The proposed amendment does not mandate an affirmative action program or set a quota, Hernandez said. It also applies only to education and not employment.
Hernandez joined other Democrats in arguing that recruitment of minorities has slipped at the UC and CSU systems because of the affirmative action ban.
In 1995, minority students accounted for 38 percent of high school graduates and 21 percent of those entering as University of California freshmen, Hernandez said. By 2004, they made up 45 percent of high school graduates but just 18 percent of incoming UC freshmen, he said, adding the gap is growing.
Republican lawmakers opposed the amendment and blamed the drop-off on poor performance by K-12 schools.
“This bill, the unintended consequence is that it actually allows our public schools to use race and gender and others to discriminate against students,” said Senate Minority Leader Bob Huff, R-Diamond Bar. “Is that really where we want to go?”
The measure passed on a party-line, 27-9 vote and now goes to the Assembly, which also is dominated by Democrats.
“Prop. 209 creates a barrier for people of color to access higher education,” said Sen. Ben Hueso, D-San Diego. “With these prohibitions we have seen a stark reduction in access to higher education by people of color.”
Racial admission data tell a more specific story: While blacks and Latinos remain underrepresented, especially in the UC system, Asians dominate admissions at the UC’s most prestigious campuses and are enrolled in numbers far greater than their proportion of California’s population.
Whites also are underrepresented in the UC system, according to state population and university figures.
UC’s 2013 freshman class was 36 percent Asian, 28.1 percent white, 27.6 percent Latino and 4.2 percent black, according to UC data. The representation of Asians was more than double their share of California’s total population. At some campuses, including UC San Diego and UC Irvine, Asians account for more than 45 percent of admitted freshmen this year.
California also has undergone a tremendous shift since voters passed Proposition 209 nearly two decades ago. Latinos overtook whites this year as California’s dominant group, and there is no majority racial or ethnic population in the state.
The state has seen a sharp drop in the proportion of blacks and Latinos at the system’s most competitive campuses, particularly UC Berkeley and UCLA, in the years since votes approved Proposition 209.
University of California leaders supported lifting the ban when they filed a friend of the court brief in 2012 while the U.S. Supreme Court was considering a challenge to the University of Texas’ consideration of race in undergraduate admissions.
Gov. Jerry Brown, a Democrat, vetoed a similar bill by Hernandez in 2011, saying that while he agreed with the bill’s goal, the courts should decide the limits of Proposition 209. The Legislature can put a constitutional amendment before voters without the governor’s support.
After California outlawed affirmative action, voters in Arizona, Michigan, Nebraska, Oklahoma, Washington state and Nebraska approved similar bans with similar results.
“We need to ensure that the students reflect our changing population,” said Sen. Ricardo Lara, D-Bell Gardens.
Sen. Joel Anderson, R-Alpine, said the state should instead limit admissions of university students from other nations to create more room for California children.
“It doesn’t create more space in our colleges and universities,” Anderson said of SCA5. “It just rearranges the chairs on the Titanic.”
Source: Associated Press
Supreme Court Weighs Michigan Affirmative-Action Ban
Conservatives on the U.S. Supreme Court appeared skeptical on Tuesday that Michigan’s voter-enacted prohibition on affirmative action in higher education violates the 14th Amendment’s equal-protection principles.
“It’s not a racial classification; it’s a prohibition of racial classifications,” Justice Antonin Scalia said of the 2006 ballot measure known as Proposal 2 during arguments in Schuette v. Coalition to Defend Affirmative Action (Case No. 12-682).
The measure also barred race preferences in K-12 public schools and other areas of state government, but the case before the high court concerns the measure’s prohibition of race preferences in college admissions. (Still, the court’s decision could have wide implications, as I reported here.)
Chief Justice John G. Roberts Jr., another of the court’s conservatives on race issues, wondered why the state’s voters couldn’t conclude that “race is a lightning rod” and that they would like to try race-neutral alternatives in admissions without running afoul of the equal-protection clause.
The U.S. Court of Appeals for the 6th Circuit, in Cincinnati, ruled last year that the ballot measure violated the “political restructuring” doctrine, meaning it made it more difficult for racial minorities to reverse the measure. That was a significant change in the ordinary political process and a racial classification that did not survive strict scrutiny, or the highest level justification needed to uphold a government policy, the court ruled.
WASHINGTON — The Obama administration said Friday that its previous guidance to colleges on affirmative action still remains valid even after the Supreme Court in June set a high constitutional bar for such policies.
Colleges can continue considering race as one of several factors in admissions decisions as long as race-neutral alternatives would not sufficiently achieve the goal of diversity, the administration said in new guidance issued jointly by the Education and Justice Departments.
“The court did not change the requirements” that were established by earlier rulings, the guidance said.
Friday’s guidance was the first clarification from the Obama administration on affirmative action since the Supreme Court ruled in Fisher v. University of Texas at Austin. In that case, the court said that programs that account for an applicant’s race or ethnicity must be subject to a high level of constitutional scrutiny.
The ruling gave something for both advocates and critics of affirmative action to cheer. Proponents of race-conscious admissions emphasized that a majority of justices reaffirmed that diversity in higher education provides important educational and social benefits and that colleges have a compelling interest in seeking to foster such diversity on their campuses.
Critics, on the other hand, said that the case, viewed as a whole, was at most a lukewarm endorsement of certain types of affirmative action programs. They say that in outlining a high standard for race-conscious policies, the justices set the stage for lower courts to reject more such policies.
In releasing the guidance Friday, the Obama administration appeared to discourage colleges from abandoning or weakening their diversity efforts.
Martha Kanter, under secretary of education, said at an event announcing the new guidance that the administration viewed diversity as “inextricably linked” to its higher education agenda.
“The Departments of Education and Justice stand ready to support colleges and universities in pursing a racially and ethnically diverse student body in a lawful manner,” Obama administration civil rights officials wrote in a “Dear Colleague” letter. Both departments also pledged to provide “technical assistance” to institutions.
David Hawkins, director of public policy and research at the National Association for College Admission Counseling, said that the guidance is useful for colleges as they contemplate how the Fisher decision applies to their race-conscious admissions policies.
“The difficulty that our college members have had is determining how far they need to go and what kinds off a analysis that a court might want to see,” he said. “Even though we know that the Justice and Education Departments aren’t going to rule on this themselves, it still provides a little bit of assurance.”
Still, he said, the biggest concern among institutions is how a court would apply the higher judicial standard outlined in Fisher to their college.
“Colleges are going to be more or less guessing at what the strict scrutiny standard means,” he said.
Roger Clegg, president of the Center for Equal Opportunity, a group opposed to colleges considering race in admissions, blogged after the guidance was released that it was flawed and would not help colleges. Clegg said that the administration downplayed the way the Supreme Court appeared to be dubious of colleges’ ability to “narrowly tailor” their efforts.
“The fact is that this guidance is designed not to help schools follow the law, but to push them to adopt dubious race-based policies that the Supreme Court has warned against, and that have prompted lawsuits in the past, but that the Obama administration and its political allies stubbornly support. The whole tone of the new guidance is to offer encouragement to schools that want to engage in racial and ethnic discrimination,” Clegg wrote. “It is as if the FBI offered eager encouragement to state and local police that wanted to engage in racial profiling without violating the law.”
Source: Inside Higher Ed
In a surprise outcome, the U.S. Supreme Court ruled 7-1 on Monday that a lower court failed to properly apply the proper legal standard to the race-conscious admissions program at the University of Texas at Austin.
The court threw out a ruling by the U.S. Court of Appeals for the 5th Circuit, in New Orleans, that upheld the flagship UT campus’s consideration of race in undergraduate admissions.
Justice Anthony M. Kennedy said the lower court had failed to hold the university to the demanding burden of “strict scrutiny” as articulated in the Supreme Court’s landmark decisions on affirmative action in education.
The 5th Circuit presumed that the university had acted it good faith and thus showed deference to the school, a standard that was at odds with the requirement under the 2003 case of Grutter v. Bollinger that “all racial classifcations imposed by government must be analyzed by a reviewing court under strict scrutiny.”
“Strict scrutiny does not permit a court to accept a school’s assertion that its admissions process uses race in a permissible way without a court giving close analysis to the evidence of how the process works in practice,” Justice Kennedy wrote for the court in Fisher v. University of Texas at Austin (Case No. 11-345).
Under strict scrutiny, a government racial classification must meet a compelling governmental interest and be narrowly tailored to achieve that interest.
His opinion was joined by Chief Justice John G. Roberts Jr. and Justices Antonin Scalia, Clarence Thomas, Stephen G. Breyer, Samuel A. Alito Jr., and Sonia Sotomayor. Justice Elena Kagan did not participate in the case because she had presumably worked on it while she was U.S. solicitor general.
Justice Ruth Bader Ginsburg read part of her lone dissent from the bench.
“In my view, the courts below adhered to this court’s pathmarking decisions and there is no need for a second look,” she said. “Like so many educational institutions across the nation, the University of Texas modeled its admissions plan after the law-school policy approved in Grutter v. Bollinger and the Harvard plan referenced as exemplary in Justice [Lewis F.] Powell’s opinion in Regents of the University of California v. Bakke.”
Justice Kennedy cited language from the Grutter opinion by then-Justice Sandra Day O’Connor, who was in the courtroom on Monday.
“Strict scrutiny must not be ‘strict in theory, but fatal in fact,'” Kennedy said, in reference to language O’Connor used in Grutter. “But the opposite is also true. Strict scrutiny must not be strict in theory but feeble in fact.”
“In order for judicial review to be meaningful,” Kennedy continued, “a university must make a showing that its plan is narrowly tailored to achieve the only interest that this court has approved in this context: the benefits of a student body diversity that encompasses a broad array of qualifications and characteristics of which racial or ethnic origin is but a single though important element.”
The case involves Abigail Fisher, a white applicant from Sugar Land, Texas, who was denied admission to the University of Texas at Austin in 2008 under the university’s “holistic review” program.
In a statement after the court’s decision on Monday, Fisher said: “I am grateful to the justices for moving the nation closer to the day when a student’s race isn’t used at all in college admissions.”
The university takes race into account for the roughly one-quarter of places in UT-Austin’s entering freshman class not filled by the “Top Ten” plan—the Texas law that guarantees admission to high school students who finish in the top 10 percent of their graduating classes.
Lawyers for Ms. Fisher argued that except for the consideration of race, she would have been admitted. They called for the race-conscious Texas program to be struck down under the 14th Amendment’s equal-protection clause because it fails the requirement for a narrowly tailored race-conscious program set forth in the Supreme Court’s 2003 decision in Grutter.
That 5-4 decision involved the University of Michigan law school, and the majority opinion by then-Justice Sandra Day O’Connor expressed a desire for all use of affirmative action in education to end within 25 years.
In a statement by the Project on Fair Representation, the group that backed Fisher’s suit, project founder Edward Blum said, “The Supreme Court has established exceptionally high hurdles for the Univ. of Texas and other universities and colleges to overcome if they intend to continue using race preferences in their admissions policies. It is unlikely that most institutions will be able to overcome these hurdles. This opinion will compel the Fifth Circuit to strike down UT’s current use of race and ethnicity.”
The University of Texas argued that its selectivity has been hindered by the rigidity of the Top Ten plan, and that its use of race is designed to bolster racial diversity in a broad sense, including within minority groups, such as by attracting better-credentialed black and Hispanic students than under the automatic plan.
Black and Hispanic students admitted through the holistic program, such as “the African-American or Hispanic child of successful professionals in Dallas,” have “great potential for serving as a ‘bridge’ in promoting cross-racial understanding, as well as in breaking down racial stereotypes,” the university said in its main Supreme Court brief.
Reacting to the Supreme Court’s decision on Monday, UT-Austin President Bill Powers said he was encouraged by the ruling and that the university would continue to defend its policy.
“We remain committed to assembling a student body at the University of Texas at Austin that provides the educational benefits of diversity on campus while respecting the rights of all students and acting within the constitutional framework established by the court,” Powers said in a prepared statement.
Many K-12 groups, including the National School Boards Association and Teach For America, along with the higher education community in general, took positions in support of the university.
A joint brief by the College Board, the NSBA, and several other K-12 groups argued that racial diversity “has emerged as central to our nation’s overarching goals associated with educational excellence.”
Francisco Negron, the general counsel of the NSBA, said Monday that he and other K-12 advocates we’re heartened by the decision.
“I think there is some good law here,” said Negron. “Justice Kennedy is coming right out and saying Grutter is still good law and that courts have to be deferential about schools using diversity.”
He said Kennedy’s language on narrow tailoring was in line with his concurrence in the 2007 decision in Parents Involved in Community Schools v. Seattle School District, when the high court sharply curtailed the permissible uses of race in K-12 education.
“He’s saying race neutrality should be part of the strict scrutiny analyis,” which is what Kennedy stressed in the Seattle concurrence, Negron said.
Source: Education Week /Mark Walsh
From affirmative action to diversity
Similar verbal gymnastics have gradually turned “affirmative action” into “diversity” — a word ambiguous enough to avoid the innate contradictions of a liberal society affirming illiberal racial preferencing.
How exactly does affirmative action adjudicate our precise ethnic identities these days? These are not illiberal questions — given Massachusetts Sen. Elizabeth Warren’s past claims of being Native American to find advantage in her academic career.
Aside from the increasing difficulty of determining the ancestry of multiracial, multiethnic and intermarried Americans, what exactly is the justification for affirmative action’s ethnic preferences in hiring or admission — historical grievance, current underrepresentation due to discrimination, or both?
Are the children of President Barack Obama or Attorney General Eric Holder more in need of help than the offspring of first-generation immigrants from the Punjab or Cambodia? If non-white ancestry no longer offers an accurate assessment of ongoing discrimination, is affirmative action justified by a legacy of historical bias or contemporary ethnic underrepresentation?
Does a recent arrival from Oaxaca who fled the racism and poverty of Mexico warrant special compensation upon arrival in the United States? And if so, when? A day, a month, a year or a decade after crossing the border? How about a Chilean, Korean or Iraqi immigrant? Should particular coveted employment match the nation’s racial composition — jobs on the faculty, but not jobs in the NBA or in the Postal Service?
How do we fairly allocate compensation for past collective sins against a bygone generation? Slavery, Jim Crow, internment of Japanese-Americans, racially exclusionary immigration laws and the denial of U.S. admission to Jews fleeing the Holocaust: All were reprehensible; but it is difficult to know the degree to which these injustices still distort the career paths of individual Americans, or who still alive is to blame.
In 2009, the University of California system changed its admissions policy allegedly to curtail admission to Asian-Americans. Such anti-affirmative action arose not because UC was a racist institution, but because as an applicant group, Asian-Americans were outperforming most other ethnic groups, in numbers disproportionate to the general population.
In other words, in the manner that the Ivy League turned away qualified Jews in the 1920s and ’30s, so some university administrators apparently thought that engineering a campus “to look like America” was more important than simply admitting those with the strongest academic achievement.
Affirmative action — fossilized for a half-century — also made few allowances for class. Asian-Americans, for example, have higher per-capita incomes than Americans as a whole. Were affluent minority individuals eligible for affirmative action?
Will the children of multimillionaire Tiger Woods — or of Jay-Z and BeyoncÃ© — qualify for special consideration on the theory that statistical underrepresentation in some fields or racial pedigrees will make their lives more challenging than the lives of poor white children in rural Pennsylvania or first-generation Arab-Americans in Dearborn, Mich.?
Yet diversity no more alleviates the problem of bias than does climate change end controversy over global warming. We really do not mean “diversity” in the widest sense of the word. No Ivy League law school is worried that its faculty profile is disproportionately 90 percent liberal, or lacks fundamentalist Christians commensurate with their numbers in the general population.
The idea of diversity, racial and otherwise, is deeply embedded in politics. President George H.W. Bush was not especially lauded for appointing an African-American Supreme Court justice, Clarence Thomas, apparently because Thomas was considered conservative. Liberal Attorney General Eric Holder was seen by the media as a genuinely diverse appointment in a way that a conservative predecessor, Alberto Gonzales, was not.
Like Prohibition, affirmative action and then diversity were originally noble efforts that were doomed — largely by their own illiberal contradictions of using present and future racial discrimination to atone for past racial discrimination.
It is well past time to move on and to see people as just people.
Source: The Chicago Tribune/ Victor Davis Hanson (Victor Davis Hanson is a classicist and historian at the Hoover Institution, Stanford University. His new book, “The Savior Generals,” will appear this spring from Bloomsbury Press. You can reach him by e-mailing email@example.com.)