Saturday, September 29, 2012

Fisher v. Texas: Affirmative Action for Whites Only?


http://www.k-state.edu/maps/buildings/AC/ac.jpg
On September 19, I had the great privilege of speaking at Kansas State University as the Dorothy L. Thompson Lecturer on Civil Rights. KSU is one of the finest universities in the nation (with one of the most attractive college campuses I have seen). KSU students are simply top-notch. So, it was a great opportunity to have a serious conversation about civil rights in America today, with a more conservative audience than the norm in Chicago.

My topic was Fisher v. Texas, the upcoming Supreme Court Case re-addressing affirmative action programs designed to achieve a diverse learning environment. The Supreme Court settled this issue in 1978, in Board of Regents of the Univ. of California v. Bakke, and again in 2003, in Grutter v. Bollinger. In both cases, conservative appointees ruled that diversity in higher education is a compelling state interest justifying narrowly-tailored measures that consider race or ethnicity, in careful and balanced decisions. Justice Powell wrote the key opinion in Bakke and Justice O'Connor wrote the key opinion in Grutter.

The video of my lecture is available here, and includes shots of my entire PowerPoint presentation.

Here is a summary of my key points:

1) The drafters of the Equal Protection Clause of the Fourteenth Amendment, which the Supreme Court uses to limit affirmative action, intended to protect former slaves, not to protect those with the resources to attain equal protection on their own. According to the Supreme Court in 1880 the purpose of the clause was:

"to assure to the colored race the enjoyment of all the civil rights that under the law are enjoyed by white persons, and to give to that race the protection of the general government, in that enjoyment, whenever it should be denied by the States."

It is historically incorrect to read the clause to limit the power of the government to address continuing racial oppression in our country. For example, 40 percent of African American children live in poverty as do 35 percent of Hispanic children.

2) The meritorious contributions diverse students make to a diverse learning environment constitutes a compelling state interest as demonstrated by the continuing accumulation of empirical data of the educational benefits of diversity, as well as the manifest needs of our business sector and military for more diverse leaders. Because we still live in a highly racialized society, using race as one factor (in accordance with the Grutter mandate of an individualized and holistic analysis of diversity contributions) for unlocking those diverse contributions is a narrowly tailored means of achieving the compelling state interest in diverse leadership and diverse educational environments.

3) The most non-meritorious and morally suspect affirmative action benefits rich and powerful whites. As The Economist states:

"No less than 60% of the places in elite universities are given to candidates who have some sort of extra “hook”, from rich or alumni parents . . . . The number of whites who benefit from this affirmative action is far greater than the number of blacks. The American establishment is extraordinarily good at getting its children into the best colleges. In the last presidential election both candidates—George Bush and John Kerry—were “C” students who would have had little chance of getting into Yale if they had not come from Yale families. Al Gore and Bill Frist both got their sons into their alma maters (Harvard and Princeton respectively), despite their average academic performances. Universities bend over backwards to admit “legacies” (ie, the children of alumni). Harvard admits 40% of legacy applicants compared with 11% of applicants overall. Amherst admits 50%. An average of 21-24% of students in each year at Notre Dame are the offspring of alumni. When it comes to the children of particularly rich donors, the bending-over-backwards reaches astonishing levels. Harvard even has something called a “Z” list—a list of applicants who are given a place after a year's deferment to catch up—that is dominated by the children of rich alumni."

This 60 percent set-aside does not contribute to enhanced learning environments but instead just populates our elite universities with scions of privilege--almost always white privilege.

If the Supreme Court overturns the affirmative action plan of the University of Texas (involving 3 percent of entering slots) while remaining willfully blind to the 60 percent of the slots that entrench white privilege at our elite universities, they will effectively re-write the Fourteenth Amendment to mean: "When it comes to affirmative action, whites only need apply." That would pervert the whole purpose of the Fourteenth Amendment.

4) While one may speculate that race neutral measures may suffice to secure classroom diversity (such as living in poverty or a low income household), such measures are virtually never implemented. Indeed, the fact that so many universities use race or ethnicity as a "plus factor" suggests that it holds some degree of political plausibility that other alternatives do not. Conjuring-up other mechanisms of achieving diversity when such mechanisms enjoy little or no political viability hardly furthers the compelling state interest identified in Grutter.

5) Stare Decisis matters. The principle that courts should be guided by precedent in resolving disputes (and therefore restrained from indulging their personal preference, political goals and ideological preferences) forms the bedrock of our common law system. Judges are appointed, not elected, and in a system that values democratic rule-making they should say what the law is, not rewrite the law. Bakke and Grutter extend back 35 years. Only an activist Court pursuing politics rather than law would reverse such longstanding precedents. In the end, it is not appropriate for unelected judges to destabilize the rule of law and render it up for grabs based upon transient political preferences of the judiciary, unless the precedent is egregiously wrong or times have changed to such an extent that the precedent is simply too costly to maintain. Bakke and Grutter do not fit that bill.

Consequently, it seems extreme to just reverse 35 years of precedent and eliminate all affirmative action seeking to diversify American universities through the consideration of race or ethnicity. The students at Kansas State largely agreed with the idea that expanded educational opportunity for disadvantaged students made sense; yet, they evinced real discomfort with the use of race to address this concern or as a means of achieving educational diversity. At the end of the evening an informal poll found support for continued affirmative action based upon race (but in accordance with Grutter) by nearly a two to one ratio.

As part of the lecture event, I also did an interview with Richard Baker of KSU, for his outstanding Perspective series on Kansas Public Radio, which also summarizes the key points of the lecture: Play Interview

18 comments:

  1. Steve, you look completely white to me... have you ever benefited from racial preferences even though you're probably genetically 80%+ European?

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  2. With respect to your simplistic use of whiteness, you need to understand that it is socially constructed and historically as well as geographically contingent. I have never claimed whiteness and am in fact 100% Hispanic in ethnicity (all four grandparents).

    As for preferences, I am certain it is a mixed bag--benefits and burdens in unknown quantity--an unfortunate reality for all Americans.

    I reject whiteness as an artifice intended to inflict oppression. To believe in whiteness is to believe in racial hierarchy.

    For more: http://en.wikipedia.org/wiki/White_people

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  3. "The drafters of the Equal Protection Clause of the Fourteenth Amendment, which the Supreme Court uses to limit affirmative action, intended to protect former slaves ..." -- Steven Ramirez

    Former slaves benefit less and less from affirmative action policies.

    "Another reality is redefining and probably weakening the meaning of affirmative action. Although few schools publicize the fact, one of the central historic principles giving rise to affirmative action is being undermined. President Johnson's speech assumed that affirmative action would help the descendants of former slaves (he made no mention of Hispanics). That assumption from yesteryear is out of sync with today's realities. Affirmative action more and more functions to open the campus not only to the descendants of former slaves but to black students with different cultural and political heritages. Once championed, as in Johnson's speech, as a means of reparation or restitution, affirmative action now turns out to be helping hundreds and hundreds of young people who have suffered the wounds of old-fashioned American racism little or not at all. More than a quarter of the black students enrolled at selective American colleges and Universities are immigrants or the children of immigrants. African-American students born in the United States thus turn out to be more underrepresented (given their presence in the U.S. population) at selective colleges than one might imagine. At some of the most exclusive institutions (Columbia, Princeton, Yale, and the University of Pennsylvania) no less than two-fifths of those admitted as 'black' are of immigrant origin. Such facts, as they come into view, blunt the force of arguments favoring affirmative action. … Restitution seems less and less in play." -- Wesleyan University and Emory president William M. Chace, writing in "The American Scholar"

    http://www.mindingthecampus.com/originals/2011/03/a_desperate_defense_of_affirma.html

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  4. "The most non-meritorious and morally suspect affirmative action benefits rich and powerful whites ... This 60 percent set-aside does not contribute to enhanced learning environments but instead just populates our elite universities with scions of privilege--almost always white privilege." -- Steven Ramirez

    Putting aside the idea that there is anything real that can be called "white privilege" - other than the ugly, racist assumptions underlying such a concept - I would agree that these legacy admissions should cease. I doubt very much, however, that eliminating these admissions and relying only on academic preparation and achievement would result in an increase in "diversity" since almost all of these privileged admits are probably taking the place of more qualified, but less wealthy and connected, white and Asian applicants.

    "... since the same institutions that give no special consideration to poor white applicants boast about their commitment to "diversity" and give enormous admissions breaks to blacks, even to those from relatively affluent homes -- Espenshade and Radford in their survey found the actual situation to be much more troubling. At the private institutions in their study whites from lower-class backgrounds incurred a huge admissions disadvantage not only in comparison to lower-class minority students, but compared to whites from middle-class and upper-middle-class backgrounds as well. The lower-class whites proved to be all-around losers. When equally matched for background factors (including SAT scores and high school GPAs), the better-off whites were more than three times as likely to be accepted as the poorest whites (.28 vs. .08 admissions probability). Having money in the family greatly improved a white applicant's admissions chances, lack of money greatly reduced it. The opposite class trend was seen among non-whites, where the poorer the applicant the greater the probability of acceptance when all other factors are taken into account. Class-based affirmative action does exist within the three non-white ethno-racial groupings, but among the whites the groups advanced are those with money.

    When lower-class whites are matched with lower-class blacks and other non-whites the degree of the non-white advantage becomes astronomical: lower-class Asian applicants are seven times as likely to be accepted to the competitive private institutions as similarly qualified whites, lower-class Hispanic applicants eight times as likely, and lower-class blacks ten times as likely. These are enormous differences and reflect the fact that lower-class whites were rarely accepted to the private institutions Espenshade and Radford surveyed. Their diversity-enhancement value was obviously rated very low." -- Minding The Campus

    http://www.mindingthecampus.com/originals/2010/07/how_diversity_punishes_asians.html

    "Our study of the University of Michigan, for example, found that in 2005 an in-state male with no parent ties to the school, a 1240 cumulative SAT, and 3.2 high-school grade-point average had a 92 percent chance of admission if black and an 88 percent chance if Latino – but only a 14 percent chance if white and a mere 10 percent chance if Asian. Our study of six North Carolina schools – North Carolina State and the University of North Carolina campuses at Asheville, Chapel Hill, Charlotte, Greensboro, and Wilmington – found the same pattern." -- Pope Center

    http://popecenter.org/clarion_call/article.html

    I guess that "white privilege", like all forms of privilege, only applies to whites with money and/or connections. Go figure.

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  5. "... continuing racial oppression in our country. For example, 40 percent of African American children live in poverty as do 35 percent of Hispanic children." -- Stevn Ramirez

    That large percentages of non-whites in this country live in "poverty" is in no way evidence of "racial oppression".

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  6. "I have never claimed whiteness and am in fact 100% Hispanic in ethnicity ... I reject whiteness as an artifice intended to inflict oppression. To believe in whiteness is to believe in racial hierarchy." -- Steven Ramirez

    "Hispanic" denotes an individual or group of people who draw an ethnic and racial relationship with Spain. Post-Conquest, a persons position within the socio-racial hierarchy was determined by their Spanish blood. The Spaniards developed a complex caste system based on race and used it as a means of determining a persons place in society. Mixed race persons, or "castas", were arranged within this scheme based on the quantity of Spanish blood they possessed. By the end of the colonial period there were scores of categories based on countless variations. To believe in being "Hispanic" is to believe in racial hierarchy. So, it seems that if you want to reject "whiteness as an artifice intended to inflict oppression", you should reject being "Hispanic".

    This brings up another problem with U.S. affirmative action policies, they enable those with no history of racial oppression here, but with a family legacy of inflicting and benefiting from racial oppression elsewhere, to simply cross our border, pose as "oppressed", and claim entitlements that they have no legitimate right to claim.




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  7. Well, way back in 1954, the US Supreme Court ruled in a 9-0 decision that the Equal Protection Clause protected Mexican-Americans (Hernandez v. Texas, 347 U.S. 475 (1954)). Do you disagree with that decision?

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  8. White privilege benefits every white person in America regardless of wealth. White privilege and wealth privilege provide double benefits to those that are white and wealthy. White privilege allows a white person, regardless of class, to enjoy the following societal benefits often unavailable to all persons of color(From Peggy McIntosh, author of "White Privilege"):

    As a white person . . .:

    1. If I should need to move, I can be pretty sure of renting or purchasing housing in an area which I can afford and in which I would want to live.

    2. I can be pretty sure that my neighbors in such a location will be neutral or pleasant to me.

    3. I can go shopping alone most of the time, pretty well assured that I will not be followed or harassed.

    4. I can turn on the television or open to the front page of the paper and see people of my race widely represented.

    5. When I am told about our national heritage or about "civilization," I am shown that people of my color made it what it is.

    6. I can be sure that my children will be given curricular materials that testify to the existence of their race.

    7. I can be pretty sure of having my voice heard in a group in which I am the only member of my race.

    8. I can go into a music shop and count on finding the music of my race represented, into a supermarket and find the staple foods which fit with my cultural traditions, into a hairdresser's shop and find someone who can cut my hair.

    9. Whether I use checks, credit cards or cash, I can count on my skin color not to work against the appearance of financial reliability.

    10. I do not have to educate my children to be aware of systemic racism for their own daily physical protection.

    11. I can be pretty sure that my children's teachers and employers will tolerate them if they fit school and workplace norms; my chief worries about them do not concern others' attitudes toward their race.

    12. I can swear, or dress in second hand clothes, or not answer letters, without having people attribute these choices to the bad morals, the poverty or the illiteracy of my race.

    13. I can speak in public to a powerful male group without putting my race on trial.

    14. I can do well in a challenging situation without being called a credit to my race.

    15. I am never asked to speak for all the people of my racial group.

    16. I can criticize our government and talk about how much I fear its policies and behavior without being seen as a cultural outsider. . . .

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  9. (continued)

    17. I can be pretty sure that if I ask to talk to the "person in charge", I will be facing a person of my race.

    18. If a traffic cop pulls me over or if the IRS audits my tax return, I can be sure I haven't been singled out because of my race.

    19. I can easily buy posters, post-cards, picture books, greeting cards, dolls, toys and children's magazines featuring people of my race.

    20. I can go home from most meetings of organizations I belong to feeling somewhat tied in, rather than isolated, out-of-place, outnumbered, unheard, held at a distance or feared.

    21. I can be pretty sure that an argument with a colleague of another race is more likely to jeopardize her/his chances for advancement than to jeopardize mine.

    22. I can be pretty sure that if I argue for the promotion of a person of another race, or a program centering on race, this is not likely to cost me heavily within my present setting, even if my colleagues disagree with me.

    23. If I declare there is a racial issue at hand, or there isn't a racial issue at hand, my race will lend me more credibility for either position than a person of color will have.

    24. I can worry about racism without being seen as self-interested or self-seeking.

    25. I can take a job with an affirmative action employer without having my co-workers on the job suspect that I got it because of my race.

    26. I can be pretty sure of finding people who would be willing to talk with me and advise me about my next steps, professionally.

    27. I can think over many options, social, political, imaginative or professional, without asking whether a person of my race would be accepted or allowed to do what I want to do.

    28. I can choose public accommodation without fearing that people of my race cannot get in or will be mistreated in the places I have chosen.

    29. I can be sure that if I need legal or medical help, my race will not work against me.

    30. If I have low credibility as a leader I can be sure that my race is not the problem.

    31. I can easily find academic courses and institutions which give attention only to people of my race.

    32. I can travel alone or with my spouse without expecting embarrassment or hostility in those who deal with us.

    33. My children are given texts and classes which implicitly support our kind of family unit and do not turn them against my choice of domestic partnership.

    -- Peggy McIntosh

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  10. "Well, way back in 1954, the US Supreme Court ruled in a 9-0 decision that the Equal Protection Clause protected Mexican-Americans. Do you disagree with that decision?" -- Steven Ramirez

    The Equal Protection Clause should apply to everyone. ALL people, regardless of the color of their skin or their ethnicity, deserve to be treated equally before the law. Do you disagree with that?

    The only minority that matters is the individual . We need to put down the crayons and the coloring books and start judging individuals, not by the color of their skin, but by the content of their character.

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  11. "White privilege benefits every white person in America regardless of wealth ..." - Anon

    I will not bother responding to the litany of gibberish you've posted, except to say that most, if not all, of it is refuted by everyday experience - i.e., reality.

    I suppose that one could make a similar argument in support of black privilege in most of the nations of Africa, or Asian privilege in almost every part of Asia and it would be just as meaningless.

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  12. "The meritorious contributions diverse students make to a diverse learning environment constitutes a compelling state interest ..." -- Steven Ramirez

    "The University of California, San Diego has done it again. Last year, it announced the creation of a new diversity sinecure: a vice chancellor for equity, diversity, and inclusion. Campus leaders established this post even as state budget cuts resulted in the loss of star scientists to competing universities, as humanities classes and degree programs were eliminated to save money, and as tuition continued its nearly 75 percent, five-year rise. The new vice chancellorship was wildly redundant with UCSD’s already-existing diversity infrastructure. As the campus itself acknowledges: “UC San Diego currently has many active diversity programs and initiatives.” No kidding. A partial list of those “active diversity programs and initiatives” may be accessed here.

    Now UCSD has filled the position and announced the new vice chancellor’s salary. Linda Greene, a diversity bureaucrat and law professor from the University of Wisconsin-Madison, will pull in $250,000 a year in regular salary, but that’s just the beginning: she’ll receive both a relocation allowance of $60,000 and 100 percent reimbursement of all moving expenses, a temporary housing allowance of $13,500, two fully paid house-hunting trips for two to the San Diego area, and reimbursement for all business visits to the campus before her start date in January 2013. (By comparison, an internationally known expert in opto-electronics in UCSD’s engineering school, whose recent work has focused on cancer nanotechnology, received a little over $150,000 in salary from UCSD in 2011, according to state databases.) The UCSD press office did not respond to a request for the amount the university paid the “women-owned executive search firm with a diverse consulting team” it used to find Greene..." -- Heather MacDonald, writing in "City Journal"

    http://www.city-journal.org/2012/cjc0920hm.html

    The loss of "star scientists"; the elimination of humanities classes and degree programs as tution increases dramatically; the "wildly redundant" diversity infrastructure; are these things evidence of the "meritorious contributions" that a diverse learning environment brings?

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  13. "Diversity," as everyone surely knows by now, is the sole remaining justification for racial preference in higher education allowed by the Supreme Court. Defenders seem to regard it as even more essential to a good education than books in the library or professors behind the podium. But a funny thing has been happening on the way to the Supreme's Court revisiting racial preference in the Fisher case next fall: an increasing array of academic studies has been demonstrating that the "diversity" emperor has no clothes ... "if anything should cause thoughtful supporters of race-preferential admissions policies to reverse course--or at least refrain from proceeding further--it is the mounting empirical evidence showing these policies are doing more harm than good for their intended beneficiaries." -- John S. Rosenberg, writing at "Minding The Campus"

    http://www.mindingthecampus.com/originals/2012/04/diversity_takes_more_lumps.html

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  14. "I will not bother responding to the litany of gibberish you've posted, except to say that most, if not all, of it is refuted by everyday experience - i.e., reality." -- Che is Dead

    To whose "everyday experience" do you refer? Whose "reality" are you describing? Yours? Is that reality a black man's in America? Or a Latino female's reality in America? The "gibberish" to which you refer connects the lived experiences of many minority citizens in the United States. Daily microaggressions and instances of discrimination that continue to pervade are the "reality" for many minority Americans, regardless of class or wealth.

    mortgage discrimination:
    http://www.urban.org/publications/309090.html

    microaggressions:
    http://www.apa.org/monitor/2009/02/microaggression.aspx

    I often find it stunning that those that benefit the most from white privilege or wealth privilege (or both) are completely blind to the reality of their own privilege. It is funny really, and depressing.

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  15. "I often find it stunning that those that benefit the most from white privilege or wealth privilege (or both) are completely blind to the reality of their own privilege. It is funny really, and depressing." -- Anon

    "Microagggressions"? How exquisitely practiced and nurtured your hatreds are. I don't find anything about people like you funny. Depressing, yes. Funny, no.


    "Whose "reality" are you describing? Yours? Is that reality a black man's in America? Or a Latino female's reality in America? The "gibberish" to which you refer connects the lived experiences of many minority citizens in the United States." -- Anon.

    Yes, life in the U.S. is so racially oppressive and terrible that millions of non-whites are willing to literally risk their lives in order to get here and experience it. And, once they are here, they almost never want to leave and to return to countries and societies that are run almost exclusively by people who look just like they do. Go figure.

    Here's a suggestion, unlike the former Soviet Union or progressive Cuba, we've never felt compelled to keep people here against their will. Paradise, as defined by people like you, is a short plane ride away. Don't let the door hit you on the way out.

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  16. "Paradise, as defined by people like you, is a short plane ride away. Don't let the door hit you on the way out." -- Che is Dead

    Ah yes, the always profoundly intellectual "don't let the door hit you on the way out," argument. Of course, the subject on the table is not immigration policy or those that risk life and limb to get into this great country, but the discrimination that continues to be perpetrated against minority citizens in so many ways. The reality of a lived experience where one is treated unfairly based on race or gender. The evidence that these discriminations continue today are numerous. And those that benefit from white privilege and wealth privilege are often the perpetrators.

    See "The New Jim Crow," Michelle Alexander

    See "Life is So Good," Richard Dawson

    Any logical arguments and supporting evidence on the topic of white privilege or continuing racial and gender discrimination in the U.S. are invited.

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  17. See "Life is So Good," by George Dawson and Richard Glaubman

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  18. This post seems vindicated by today's decision.

    http://www.supremecourt.gov/opinions/12pdf/11-345_l5gm.pdf

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