Affirmative Inaction
Fisher v. University of Texas is one of the most important cases on higher education to be heard by the Supreme Court.
Given its conservative bent, many observers expected the Court to end affirmative action with this case. But instead of issuing a landmark decision, it remanded the case back to the Fifth Circuit Court of Appeals. Abigail Fisher, the Caucasian plaintiff (as described by the Supreme Court), sued the University of Texas for denying her admission. She alleged that the consideration of race in admissions violated the Equal Protection Clause. Her argument was framed in meritocratic language; considering race to help blacks and Latinos would harm more deserving white students.
Fisher’s perspective reflects an ideal of meritocracy that runs deep in U.S. culture. We say things like “work hard and you’ll get ahead” and “pull yourself up by your bootstraps.” White people are big proponents of the idea of meritocracy, likely because they do well in meritocratic systems due to sociohistorical advantages of income, wealth, parents’ education, better schools and neighborhoods, etc. But University of Miami sociologist Frank Samson found an interesting twist on white support for meritocratic admissions. As he expected, the whites he surveyed in California were great cheerleaders of basing admissions on test scores. But when they were told that the proportion of Asians in the University of California is twice their proportion of the state’s population, whites decided that using criteria other than just tests was a good idea. So being judged on their merits is a great system for whites, until they think it might stop working for them. Then some kind of affirmative action program becomes desirable.
The authors in this Viewpoints approach the topic of affirmative action from very distinct angles. Law professor Bret D. Asbury rebuts recent interpretations by pundits who claim that the Fisher ruling implies stricter scrutiny in considering race. He argues that Court’s decision actually left standards of scrutiny undefined, leaving lower courts to figure it out. Richard D. Kahlenberg argues that instead of race-based affirmative action, we’d all be better off using class as a proxy for race, as it would greatly increase class diversity, sorely lacking at top universities. Also, it would short circuit political objections to the use of race as a criterion for affirmative action and achieve the same goal of diversity in the end. Writing from Israel, Sigal Alon tells us that when class-based affirmative action programs were adopted, geographic and socioeconomic diversity increased at elite universities, and half of all students admitted under the programs were ethnic minorities at the bottom of Israel’s social hierarchy. Still, she says that under race-based policies the overall level of ethnic diversity would have been much higher.
Two other articles discuss why the fact of continued discrimination belies the idea that we are becoming a color-blind country. Jennifer Pierce examines how in one large company she studied, white lawyers keep black lawyers out of the loop by leaving them out of social events and not mentoring them. And finally, John D. Skrentny argues that racial preferences, reviled by Republicans, are widely practiced outside of formal affirmative action programs in a great number of settings, including within the Republican Party.
- Scrutiny After Fisher, by Bret D. Asbury
- In Defense of Proxies, by Richard D. Kahlenberg
- Insights From Israel’s Class-Based Affirmative Action, by Sigal Alon
- Still Racing for Innocence, by Jennifer Pierce
- Our National Delusion About Race, by John D. Skrentny
Strict Scrutiny After Fisher
by Bret D. Asbury
Fisher v. University of Texas has been widely misunderstood as raising the level of scrutiny courts must apply in assessing the constitutionality of considering race in school admissions. New York Times Supreme Court correspondent Adam Liptak, for example, declared that in Fisher’s wake, courts “must take a skeptical look at affirmative-action programs at public colleges and universities,” and that now “public institutions must have good reasons for the particular methods they use to achieve” their diversity objectives.
Liptak’s characterization of Fisher is typical of the many commentators who have read Fisher as raising the bar, placing affirmative action programs under a more stringent standard of judicial review than ever before. But in reality, the Court did not create a higher standard in handing down Fisher; it merely gutted the old one, leaving the manner in which future courts should apply strict scrutiny up in the air.
A high level of judicial skepticism toward considerations of race in public university admissions has been a hallmark of Supreme Court jurisprudence going back to at least the Bakke decision in 1978. Since then, having “good reasons” for the chosen methods of considering race—a key component of “narrow tailoring”—has been sine qua non for affirmative action programs to pass constitutional muster. Allowing that its significance lies not in its purported creation of judicial skepticism toward affirmative action or a new standard of review, the obvious question is what is really going on in Fisher.
Much of the misapprehension relating to this case stems from the core allegation of Justice Kennedy’s 7-1 Opinion of the Court, that the Fifth Circuit Court of Appeals “did not apply the correct standard of strict scrutiny.” This proclamation, upon which the logic of the Court’s remand of the case relies heavily, glosses over the fact that the Fifth Circuit went to great lengths to faithfully apply this standard. Writing for the Fifth Circuit, Judge Higginbotham states plainly in the Standard of Review portion of his opinion that the University of Texas’s use of race in admissions “is subject to strict scrutiny with its requirement of narrow tailoring.” He subsequently explains that narrow tailoring, “a component of strict scrutiny,” “requires use of racial classifications to so closely fit a compelling goal as to remove the possibility that the motive for the classification was illegitimate racial stereotype.” Applying this stringent standard, Judge Higginbotham addresses relevant precedents, the minutia of the admission policies under review, the history of affirmative action in Texas, and key concepts such as racial balancing, critical mass, and the efficacy of Texas’s Top Ten Percent Law. Overall, the Fifth Circuit’s opinion reads as a measured, thorough examination of the constitutionality of Texas’s consideration of race in this setting, consistent with prior applications of strict scrutiny.
Thus it seems that what the Supreme Court really objected to was not the refusal to apply the correct standard it alleges, but rather the particulars of how Judge Higginbotham went about doing so. This is not a minor point. On the surface, the Supreme Court has remanded Fisher on procedural grounds (for reexamination under the correct standard), but really its critique of the Fifth Circuit’s opinion is substantive. Justice Kennedy hints at this important distinction in observing that “strict scrutiny [requires] a court to examine with care, and not defer to, a university’s ‘serious, good faith consideration of workable race-neutral alternatives.’” Though one could quibble with this statement on a number of grounds, it is clear that the deference the Fifth Circuit accorded to the University of Texas in applying strict scrutiny rubbed this Supreme Court the wrong way. But Fisher, as written, obscures the fact that it ultimately turned on how, not whether, the Fifth Circuit applied the correct standard.
Unfortunately, in ostensibly (and misleadingly) remanding the case to the Fifth Circuit on procedural grounds, the Court left the contours of an appropriate application of strict scrutiny largely undefined. Going forward, we know that it is no longer sufficient for a judge to apply strict scrutiny as it has been traditionally understood, based on decades of precedent (as Higginbotham did); he or she must apply strict scrutiny in whatever unarticulated, yet particularized manner the Court deems fit. What we do not know is the things a judge must show in order to satisfy this radically new approach to applying an old standard. Only time will tell if this lack of clarity will prove to be Fisher’s most enduring legacy.
In Defense of Proxies
by Richard D. Kahlenberg
The Supreme Court’s decision in Fisher v. University of Texas was a victory for racial diversity and a defeat for racial preferences. The Supreme Court, by a 7-1 margin, affirmed that achieving the educational benefits of diversity is compelling, but made it much harder for universities to employ race per se in admissions. The Court ruled universities have “the ultimate burden of demonstrating, before turning to racial classifications, that available, workable race-neutral alternatives do not suffice.” Moreover, as the Court noted, “the University receives no deference” on this question.
The sole dissenter in the case, Justice Ruth Bader Ginsburg, suggested it was silly to require universities to camouflage their true intent by employing proxies for race. Even where proxies produce the same level of racial diversity as using race in admissions, there is no reason to force universities to engage in subterfuge, she said. The Texas Top Ten Percent Law, she noted, was specifically designed with the intent of indirectly producing racial diversity, capitalizing on widespread racial segregation in the state’s high schools. If universities are authorized to seek racial diversity, why not just allow them to be honest and use race in admissions? Pointedly, not a single justice—liberal or conservative—joined Justice Ginsburg’s dissenting opinion.
When proxies produce a similar degree of racial diversity, they are superior to racial preferences. Proxies avoid the disadvantages associated with policies that directly use race, as there are costs and dangers to policies that legitimize grouping people by racial characteristics—even when statistically valid. If there is another way of getting to the same valued goal—racial diversity—without legitimizing race-based decision making, the alternative is to be favored. For instance, black and Latino students who are admitted by achieving at the top 10 percent of their high school class or having overcome economic obstacles are likely to face less stigma than those admitted through direct racial preference. And for those advocating progressive social policies, there is also a political danger of race-specific policies that signal to working-class whites that they have less in common with working-class blacks than they do with wealthy whites.
Even more importantly, legal rulings that push universities to employ proxies for race may spur officials to address abiding issues of class inequality that institutions would otherwise rather avoid. Research finds that today, socioeconomic obstacles to a student’s success are far greater than racial obstacles. While the black/white test score gap used to be twice as large as the income gap, today the achievement gap between rich and poor is twice as large as the racial gap. Policies that provide a leg up to students who have overcome hurdles, therefore, should give more consideration to class than race.
Yet selective universities, according to a number of studies, give large weight to race but virtually no consideration to class. One exception is public universities in states where race has been banned from consideration, often because of voter referendum. In many of these states, university administrators turn to socio-economic status as an indirect way of achieving racial and ethnic diversity. Bans on race have also led universities to eliminate legacy preferences for the children of alumni (for example, at UCLA and University of Georgia), form new partnerships with disadvantaged high schools, and boost financial aid. A December 2011 report from UT-Austin finds that students admitted to the institution under the Texas Top Ten Percent Law are more socioeconomically diverse than students admitted under discretionary programs, including race-conscious affirmative action. Moreover, in 1996 in Texas, as the Supreme Court noted, the use of race produced a class that was 4.1 percent black and 14.5 percent Hispanic, but in 2004, race-neutral strategies produced a class that was 4.5 percent black and 16.9 percent Hispanic. Likewise, in 7 of 10 leading universities Halley Potter and I studied in which race was dropped from admissions (usually because of voter initiative), race-neutral strategies produced as much, or greater, levels of black and Hispanic representation as the use of race had in the past.
In this way, proxies for race can address large class inequalities that currently result in selective colleges having roughly 25 times as many students from rich families as poor families. Given the growing economic divide in this country, policies that look solely at race might be considered a poor proxy for what matters most.
Insights From Israel’s Class-Based Affirmative Action
by Sigal Alon
In the United States, the term “affirmative action” has been synonymous with preference policies based on race and ethnicity. Today, however, due to the growing controversy around these policies and to recent Supreme Court rulings, affirmative action policy in U.S. higher education may be embarking on a new path. In Fisher v. University of Texas, the Supreme Court affirmed the importance of diversity on college campuses, but instructed that universities may take race and ethnicity into account during admissions only after race-neutral solutions have been thoroughly exhausted. In light of the strict scrutiny imposed by the court, elite universities that employ affirmative action will, in the coming years, likely seek new and creative ways to achieve campus diversity.
The obvious alternative to affirmative action policies based on race are those based on class—that is, policies that give an edge in college admissions to the socio-economically disadvantaged. The problem, however, is that we know very little about class-based affirmative action—mostly because, with the exception of sporadic experiments, it has never been implemented in the United States. Statistical simulations performed using U.S. datasets suggest that affirmative action policies based only on income will not be able to generate the racial and ethnic diversity of race-sensitive policies. But these simulations are limited in their ability to replicate many of the factors that are likely to be significant in fostering broad diversity. With few actual educational programs to observe, we are left wondering about the implications of class-based policy for disadvantaged populations and for campus diversity.
There is one country that does offer a large-scale, race-neutral, class-based affirmative action policy for scrutiny—the first of its kind, in fact, to ever be implemented in university admissions worldwide: Israel. The program, adopted in the mid-2000s by four of the country’s most selective universities, targets disadvantaged applicants, and it is completely race-neutral and also need-blind. That is, in evaluating the eligibility of applicants, neither their financial status nor their ethnic origins are considered. The emphasis, rather, is on structural determinants of disadvantage, in particular on locality/neighborhood socioeconomic status and high school rigor (certain individual hardships are also weighed, such as being an orphan or having a parent with a disability or chronic illness). The program’s distinctive—and theoretically attractive—design is rooted in the long tradition of sociological research on the effect of social structures, such as neighborhoods and schools, on education outcomes.
I have been studying this policy for several years now and have found that it has increased geographic, socioeconomic and demographic diversity at the elite universities in Israel. This class-based model of affirmative action enhanced, for example, the level of socio-geographical diversity at elite institutions. In the student bodies of Israeli universities, youth from deprived localities are underrepresented. Only a quarter of university admits come from poor localities, and in the most selective majors, only 15 percent do. Yet, more than one of two applicants admitted under the class-based affirmative action policy were from such weak localities.
The class-based—yet strictly need-blind—plan also taps into students with economic constraints: 22 percent of affirmative action admits had an unemployed father while this was the case for only seven percent of admits from the general pool. Moreover, given the color-blind nature of the class-based policy, it is quite remarkable that about half of all affirmative action admits are ethnic minorities, Jews of Asian and African origin and Arabs, groups at the bottom of Israel’s stratification system. Clearly, a policy that spotlights geographical and school inequality stretches the diversity dividends to include national and ethnic origin. Even so, if a race-based affirmative action policy had been implemented instead of this policy, the level of ethnic diversity would have been much higher.
In our search for effective class-based preference policies in U.S. higher education, we can learn from the design and outcomes of Israel’s innovative affirmative action policy. For instance, because of the overlap between geographical boundaries and economic and racial/ethnic inequality, this neighborhood- and school-based policy has enhanced the access of wide-ranging disadvantaged populations to even the most selective university majors and departments, successfully generating broad diversity dividends. Nonetheless, such a policy cannot match the level of ethnic diversity generated by race-conscious tools. In examining the suitability of this approach for the U.S. context, a key question is whether race-neutral admission plans can yield sufficient racial and ethnic diversity at elite schools in the United States, or whether race should continue to be at least one of the factors considered.
Still Racing for Innocence
by Jennifer Pierce
What is especially insidious about racism in our post-civil rights era is its stealth. The visibly racist Jim Crow formulation of “whites only” has come to be replaced by a newer form of racism in our post-civil rights era, one that has been described alternately as “color mute” and “color blind.” In turning the Fisher v. University of Texas case back to the lower court, the U.S. Supreme Court failed to consider the fact that race continues to be a fundamental basis of structural inequality in the United States. Race affects where we live, what schools our children attend, how much education we attain, whom we hire and promote at work, how much money we earn, how much wealth we accumulate, and whom we might marry.
In my research with attorneys who worked in the legal department of a large California corporation, I found that white lawyers were often “color mute.” They noticed race, but were reluctant to use racial designations. In doing so, they could avoid being labeled racist. While most of the white men in my study espoused color blindness and seldom used racially specific terms, they practiced racial exclusion. They seldom included African American men in informal socializing events that are often crucial to career development and success. And they systematically failed to mentor the few black male lawyers in their workplace or to take them seriously in professional conversations.
Black men were aware that they were treated differently than their white counterparts, and when they complained, white male attorneys professed their innocence— “I’m not a racist!” Rather, they dismissed men of color’s remarks and blamed them for “not fitting into” this professional milieu and for lacking “qualifications.” In fact, as I found, “not qualified” became a code word used again and again to denigrate black men. White male attorneys never actually said that blacks as a group were unqualified, but in informal conversations, they systematically referred to individuals who were black as not qualified. In this way, they justified their exclusionary practices with color-blind meritocratic language. Similarly, in their opposition to affirmative action, they did not mention race, but complained about government regulations interfering in their hiring decisions.
One of the black male attorneys I interviewed called this practice “racing for innocence.” As he put it, “It’s like they’re just working like crazy to convince me that they aren’t racist when they know they’ve done something wrong. But they won’t admit they’ve done anything wrong… So, they’re racing to be the most liberal, most hip, non-racist white guy.”
The kind of simultaneous disavowal and practice of racial exclusion these white attorneys performed is a historically specific practice drawing from the broader American discourse of liberal individualism. Liberal individualism recasts long-standing systematic racist practices, such as discrimination against African Americans in employment, into seemingly individual isolated incidents of personal prejudice. Because the white lawyers in my study regarded each interaction with African Americans lawyers as individual, they were unable to see how their collective practices excluded people of color. Further, because they refrained from using racially loaded language to describe blacks, they saw themselves as “innocent” of racism. As my ethnographic research demonstrates, liberal individualism not only contributed to white lawyers’ understandings of success and failure in their professional world, but also enabled them to overlook how their collective practices maintain and reproduce whiteness as a structure of inequality.
Paying attention to what Americans do is why affirmative action is such an important policy. It compels employers and college admissions officers to monitor their practices whether in in hiring and promotion or in college admissions. Are hiring practices resulting in job searches with predominantly white pools of applicants? If so, why? Have recruitment efforts gone beyond the conventional networks of white professional organizations, colleagues, and friends? Have the credentials of an applicant been undermined or dismissed because s/he has an ethno-racial sounding name? Once hired, are blacks and Latinos mentored in the same ways as white men are? Are workplaces adapting to people of color? Or, are they treated as “tokens”? Affirmative action compels us to keep asking these questions in a social and historical context where discrimination continues to affect the life chances of people of color. If we don’t keep asking these questions and attending to these practices, like the Supreme Court, we continue to be racing for innocence.
Our National Delusion About Race
by John D. Skrentny
The Supreme Court’s recent decision in Fisher v. University of Texas continued the Republican-appointed majority’s record of skepticism toward the use of race in the allocation of opportunities. The majority presented its usual lofty language about how racial preferences are always wrong, no matter which groups they benefit.
But Fisher ignores the obvious: political elites across the U.S. ideological spectrum regularly give racial preferences when allocating opportunities. Regardless of what the law says, Americans routinely use race as a basis of admission, appointment, and opportunity. Racial preferences are deeply woven into the nation’s DNA. The national dialogue on this issue will not be advanced until the Court and political elites acknowledge these realities.
Let’s start with the Republican Party, which consistently opposes racial preferences. The irony is Republican leaders regularly practice racial and ethnic preference. Minorities in the party can expect a meteoric rise. Most recently, first-term Senator Marco Rubio followed first-term New Mexico governor Susan Martinez in addressing the 2012 Republican National Convention. Rubio had been in the Senate a little more than a year when many Republican leaders openly acknowledged that the freshman senator’s appeal to Latino voters made him especially qualified to be Mitt Romney’s vice presidential pick. The party continually telling us it is wrong to allocate opportunities based on ancestry was doing just that.
Adamantly anti-preference Republicans elevating inexperienced or relatively unknown conservative minorities to positions of prominence is not new. After President Barack Obama’s first State of the Union address, Republicans chose untested Indian American Governor Bobby Jindal of Louisiana to give the GOP response. They chose African American Congressman J.C. Watts, in office barely two years, to give the response to President Bill Clinton’s 1997 State of the Union address. Before that, we saw President George H.W. Bush’s appointment of Clarence Thomas to the Supreme Court in 1991. Staunchly anti-affirmative action, Thomas replaced the retiring pro-affirmative action African American justice, Thurgood Marshall.
For Democratic Party leaders, just as for their GOP peers, race can pay political dividends: having nonwhites in positions of high visibility can attract nonwhite voters, make all Americans feel included in government, and at the least, offer a shield from charges of racism or xenophobia. President Clinton boasted of his cabinet that it “looked like America.” President Obama may have angered Latino voters with his aggressive campaign of deporting undocumented immigrants or not passing comprehensive immigration reform, but at least he gave them something to be proud of with the appointment of the first Latina to the Supreme Court.
Outside the realm of politics, appointments and opportunities based on race are no less prominent. Medical experts point to the benefits of nonwhite doctors treating nonwhite patients, offering cultural understanding and a trusting environment— and at the end of the day, better health care. News organizations add minorities to their ranks under the assumption they can ask the right questions and better find answers on issues regarding their communities. Police departments strategically manage the placement of officers while considering race—a practice some federal courts have approved. Educational institutions regularly extol the benefits of racial role models on their staffs, as well as the culturally compatible teaching styles they may offer diverse students. And corporations boast about the bottom-line benefits of their racially diverse workforces.
Of course, most racial preferences benefit whites. Political party leadership remains overwhelmingly white, especially in the Republican Party. Even as corporations diversify, the top positions of the Fortune 500 remain bastions of whiteness. Preferences for whites may be most obvious in Hollywood, where casting calls still specify race, and when African American stars do get top billing, they typically have to share it with a white buddy.
The point here is not that the allocation of opportunities based on race is right. It is that it is reality. The Court majority opinion’s deep skepticism regarding the use of race in admissions at the University of Texas ignores practices that are ubiquitous in America. Focusing on what the law says ignores what lawmakers do. Despite proclamations on the virtues of color-blindness, both major political parties practice race-consciousness. The first step to a sound debate on university admission policies is acknowledging that Americans, both red and blue, still pay attention to skin color.
