The U.S. Supreme Court ruling of 4 to 3 in Fisher v. University of Texas at Austin was a close call. For months, supporters of affirmative action in higher education were worried that a majority of the justices would find the University of Texas’ race-conscious affirmative action plan unconstitutional. Opponents were worried about just the opposite. The court upheld affirmative action, as it has done in all the major college affirmative action cases since 1978. So why was it such a closely watched case?
Fisher comes at a moment in history defined by our first black president, as well as by discussions of whether race still matters in public life. It also arrives during a long shift in the debates over how best to address issues of equality of educational opportunity -- whether through the equity-focused policies of the civil rights era or the test- and achievement-focused policies of today.
In her majority opinion in the 2003 Grutter v. Bollinger case, former Supreme Court Justice Sandra Day O’Connor suggested that increasing access to higher education through affirmative action is justified by a commitment to a diverse democracy. But opposing camps in the affirmative action debate may have divergent interpretations about what a “diverse” democracy means. To improve the democratic dialogue about affirmative action, stakeholders in the policy process must understand the moral and political beliefs underpinning the terms of the debate.
Although I am a strong supporter of affirmative action, I believe the measured compromises coming out of major college affirmative action rulings over the past 40 years exemplify the strength of our democracy. The debate over affirmative action is an example of an enduring moral disagreement, one that is characterized by different interpretations and emphases of key democratic ideals and values such as equality, liberty and diversity.
After all, the court had previously decided that narrowly tailored affirmative action plans are acceptable ways for universities to create diversity, and in this case, the court agreed with the university that race is “a factor of a factor of a factor.” And the preponderance of research evidence points toward affirmative action as fostering educational opportunities worth wanting as well as more racially and ethnically diverse educational institutions. But the disagreement about affirmative action has never been related to straightforward questions of evidence or what the law allows. If that were the case, then the 1978 Regents of the University of California v. Bakke decision affirming the constitutionality of using race-conscious affirmative action admissions decisions ought to have put out the fires of controversy.
We in America often overlook an important part of these debates: moral and political disagreements are essential parts of democracy. Ideally they stimulate meaningful dialogue across difference so that those with opposing views can -- at the very least -- understand and respect other reasonable perspectives, or even more productively, move toward what Martin Benjamin calls integrity-preserving compromises over contentious policy issues. That is something that the candidates for president would do well to remember.
In fact, all of us, whatever side we come down on in the affirmative action debate, should remember that disagreements are inevitable in a democracy. The key to a thriving democracy is citizens’ ability to discuss those disagreements, to work to understand the values and beliefs that shape our differences. Democratic dialogue allows us to stand in others’ shoes and see one another’s humanity despite disagreement. Such dialogue is the heart of both education and democracy. Without it, the promise of democratic education and politics will remain unfulfilled.
The U.S. Supreme Court today upheld the University of Texas’s use of racial preferences in student admissions. The vote was 4 to 3, with Justice Anthony M. Kennedy writing the majority opinion, joined by Justices Stephen G. Breyer, Ruth Bader Ginsburg and Sonia Sotomayor (Justice Elena Kagan was recused). Justice Samuel A. Alito wrote a powerful 51-page dissent, which he read from the bench.
The decision came on the unlucky 13th anniversary, to the day, of Gratz v. Bollinger and Grutter v. Bollinger. And Fisher I, by the way, came down on a June 24, with Regents of the University of California v. Bakke coming down on a June 28. Something about these higher ed racial preference cases always causes the court to struggle with them to the bitter end of the term.
Needless to say, for those of us opposed to racial discrimination in university admissions, the decision is disappointing, for all the reasons that Justice Alito explains. The discrimination that is upheld is untenable in our increasingly multiracial, multiethnic society -- indeed, a society where individual Americans are more and more likely to be multiracial and multiethnic (starting with our president), and where the victims of this politically correct discrimination are more and more likely to be members of racial and ethnic minority groups.
But the silver lining is that today’s decision is a narrow one, both in its scope and in the extent to which it allows the use of racial preferences.
As the court says, UT’s program “is sui generis” and the way the case was litigated “may limit its value for prospective guidance.” A big reason for this, of course, is the university’s use of a “top 10 percent plan,” which was not challenged. Rather surprisingly, by the way, Justice Kennedy seems to suggest that perhaps it should have been. He’s right: if a facially neutral plan is adopted for racial reasons, as quite arguably the percent plan was -- by automatically granting admission to any student graduating in the top 10 percent of their high-school class, the plan was sold to the state Legislature as guaranteeing a fair proportion of black and Latino admittees -- then it is unconstitutional. Put the shoe on the other foot: What if Ole Miss had, back in the day, put its demographers to work and then refused to admit anyone living in a (heavily black) zip code?
Justice Kennedy also warns the university repeatedly in his opinion that it has an ongoing duty to minimize its use of race. And race is, the court says, only a “factor of a factor of a factor” at UT, was considered contextually, does not automatically help members of any group and could in theory help the members of any group, including whites and Asian-Americans. “The fact that race consciousness played a role in only a small portion of admissions decisions should be a hallmark of narrow tailoring ….”
Now, much of this may be quite false as a matter of what really happens at the University of Texas, but other colleges and universities are now obliged to jump through the hoops that the court says UT jumped through. They must, for example and in addition to what’s already been described, do a careful study at the outset to document why using racial preferences is essential to providing the purported educational benefits of diversity and “articulate concrete and precise goals.” Note that, at UT, the ultimate decision makers supposedly did not even know the race of the individual applicants.
More broadly, any college or university’s use of racial preferences must pass “strict scrutiny,” and any institution using preferences must bear the burden of proving that a nonracial approach would not promote its interest in the “educational benefits of diversity” about as well.
Look at it this way: barring a decision by the court that overruled Grutter v. Bollinger and said that colleges and universities may never use racial preferences because the “educational benefits of diversity” are not compelling, lots of institutions would continue to use such preferences, even if the court had left the door open only a tiny crack. If the court had said, “You can use racial preferences only if you can prove that the moon is made of green cheese,” then a number of true-believer presidents would swear on a stack of Bibles that, what do you know, our institutions have found by careful study that the moon is made of green cheese.
That’s why I had hoped that the court would, indeed, overturn Grutter. But since that has not happened, and now likely will not happen for the foreseeable future, then there is no choice but to proceed institution by institution. That’s what the law was before today’s decision, and it remains what the law is after today’s decision. And, realistically, we could not have expected it to be otherwise as we awaited Fisher II.
Sure, it would have been better if the court had given the opponents of racial preferences more ammunition than it did today, but we still have plenty of ammunition on “narrow tailoring” requirements -- for which, by the way, colleges and universities receive “no deference” -- from Bakke and Grutter and Gratz and Fisher I and now from Fisher II.
The bottom line is that the court’s decision leaves plenty of room for future challenges to racial preference policies at other institutions -- and at UT itself for that matter. It’s interesting that, in the run-up to the decision, there was much discussion among liberals that maybe indeed there are better approaches to student admissions than UT’s. Here’s hoping that those discussions continue, prodded along by lawsuits and FOIA requests to ensure that all of Justice Kennedy’s (and Justice O’Connor’s and Justice Powell’s) hoops have been jumped through.
And here’s hoping, as well, that the research continues to document the high costs of the use of racial preferences versus the paltry benefits. The latter are the “educational benefits” for white and Asian students of random observations by black and Latino students. (Yes, that’s what the justification for this discrimination boils down to, as I discuss here.)
And the costs? Just these: it is personally unfair, passes over better qualified students and sets a disturbing legal, political and moral precedent in allowing racial discrimination. It creates resentment. It stigmatizes the so-called beneficiaries in the eyes of their classmates, teachers and themselves, as well as future employers, clients and patients. It mismatches African-American and Latino students with institutions, setting them up for failure. It fosters a victim mind-set, removes the incentive for academic excellence and encourages separatism.
And more: it compromises the academic mission of the university and lowers the overall academic quality of the student body. It creates pressure to discriminate in grading and graduation. It breeds hypocrisy within the college or university and encourages a scofflaw attitude among its officials. It papers over the real social problem of why so many African-American and Latino students are academically uncompetitive. And it gets states and higher education institutions involved in unsavory activities like deciding which racial and ethnic minorities will be favored and which ones not, and how much blood is needed to establish group membership --an untenable legal regime, as I said before, as America becomes an increasingly multiracial, multiethnic society.
So the challenges to racial preferences will continue. Cases already filed against Harvard University and the University of North Carolina at Chapel Hill that had been on hold will now proceed. The struggle goes on.
Roger Clegg is president and general counsel of the Center for Equal Opportunity, which has joined numerous amicus briefs on behalf of the plaintiff over the course of the Fisher litigation.
The higher education community breathed a sigh of relief today as the U.S. Supreme Court ruled that the University of Texas at Austin's race-conscious holistic-review admissions policy is lawful under federal constitutional principles. The decision ended nearly a decade of litigation for UT and clearly preserved existing precedent that allows institutions with an interest in the educational benefits of diversity to include the limited consideration of race in enrollment decisions.
So we're done with this stuff, right?
Not exactly. We should celebrate the decision today but be prepared to roll up our sleeves and get back to work tomorrow. Here are a few reasons why:
The decision does preserve existing precedent, but it gives much more specific insight into what it looks like to align with the court's framework and expectations. It's a bit like the court has for decades instructed institutions to wear clothes -- but now they've made clear that those clothes should be a three-piece suit. Specifically, the court noted that UT was able to show a clear set of diversity-related goals and objectives, a deliberate decision-making process that involved university’s highest leadership and stakeholders across the campus, and an impressive arsenal of qualitative and quantitative evidence about the negative impact of its years of solely race-neutral admissions. Though lockstep adaptation of UT's effort is not likely to be an expectation by future courts, all institutions that consider race in enrollment decisions should prepare themselves to make their own case for carrying the "heavy burden" of passing court scrutiny of these practices, informed by the kind of case UT presented.
The court was very clear that institutions have an "ongoing obligation to engage in constant deliberation and continued reflection regarding its admissions policies" (emphasis added). For UT specifically, the court instructed, "The university must continue to use [its] data to scrutinize the fairness of its admissions program; to assess whether changing demographics have undermined the need for a race-conscious policy; and to identify the effects, both positive and negative, of the affirmative-action measures it deems necessary." Notably, Justice Anthony M. Kennedy did not repeat Justice Sandra Day O'Connor's 2003 prediction in Grutter v. Bollinger that race-conscious programs will not be needed in the next 25 years. But he did make clear that any institution that intends to use race-conscious admissions policies should plan to commit to a continuing process of reflection and evolution over time.
Not everyone agrees with the court's conclusion. Justice Samuel A. Alito, joined by Chief Justice John G. Roberts and Justice Clarence Thomas, wrote a lengthy dissent -- and took the somewhat rare step of reading it from the bench today. In it, he expressed concerns about: 1) the "black box" of admissions and other institutional decision-making processes, 2) whether UT provided a sufficient evidence base to support its policies (especially the link between what happens in the admissions process and what happens after students arrive on campus), 3) how race really fits into admissions decisions, and 4) what kind of diversity is really valued in holistic review. In the weeks ahead, we in higher education should spend more time understanding the views of the dissenting justices and think through ways in which they may inform institutional judgments moving forward. That may be especially important given the other cases pending in federal courts and new complaints filed with federal agencies that ask many of the same questions of a new batch of institutions.
As student demonstrations and demands clearly illustrated over the course of the past months, many campus stakeholders do not believe that colleges and universities have yet fully authentically achieved the diversity goals they assert they have. That is, in part, because of the need to consider not only the diversity of the student body but also whether different members feel included and able to participate fully in campus life. After all, the compelling interest at stake isn't about student body diversity as an end in itself. It is a means toward improved teaching and learning, personal and intellectual development, better civic outcomes, and a lively campus environment where all individuals, ideas and perspectives are welcomed.
And, indeed, the court today noted with approval that, along with statistical information that minority enrollment was decreasing under the solely race-neutral regime, UT included minority students’ experiences of feeling lonely and isolated on the campus. Moving forward, colleges and universities should aim to look for evidence not only of the negative effects of the absence of diversity but also, perhaps even more importantly, of the positive effects of a broadly diverse student body on all members of the institutional community -- with attention to ways in which they can advance fully inclusive learning environments for the benefit of all students.
The decision in Fisher II gives colleges and universities greater confidence that they can continue to use race-conscious enrollment policies to pursue important educational benefits associated with diversity. But it also makes clear that doing so requires "constant" effort and the contributions of almost every member of an institutional community. As the decision concludes, "Considerable deference is owed to a university in defining those intangible characteristics, like student body diversity, that are central to its identity and educational mission. But still, it remains an enduring challenge to our nation’s education system to reconcile the pursuit of diversity with the constitutional promise of equal treatment and dignity."
I am confident that institutions across the country -- working with their partners in research, law, business and their communities -- will be able to meet the challenge. But the ball is in institutions' court. We must get to work.
Terri Taylor is a senior policy and legal adviser with EducationCounsel LLC. She co-authored the amicus brief submitted by the College Board, the American Association of Collegiate Registrars and Admissions Officers, the Law School Admissions Council and the National Association for College Admissions Counseling to the Supreme Court in Fisher II and helps lead the College Board's Access and Diversity Collaborative.
A total of 90 anti-Semitic incidents were reported on campuses in 2015, up from 47 in 2014, according to a report released Wednesday by the Anti-Defamation League. In 2015, incidents were reported on 60 campuses, up from 43 the year before.
This academic year, a number of college campuses across the country became sites for vocal clashes between student groups, the administration and larger political movements. And just last month, our campus, California State University, Fullerton, made headlines following Univision anchor María Elena Salinas’s keynote speech at the Department of Communications’ graduation ceremony. As she addressed a graduating class of more than 800, she spoke of the role of identity in our society and the responsibility of journalists, and she made brief remarks to the crowd in Spanish. As she spoke, the crowd began to boo, at various times shouting, “Make America great again!” “English!” and “What about us?”
Almost immediately, backlash occurred on Twitter and Instagram, as users admonished the Univision anchor to speak in English. A graduate who had attended the ceremony wrote about it in the OC Weekly, with The Washington Post, Los Angeles Times and The New York Timespicking up the story soon after. While many of the headlines focused on Salinas’s mention of Donald Trump, many of the student comments referred to the address as too Latino-centric, saying Salinas focused on Latinos at the expense of other groups.
This expression of hostility toward the perceived “Latino threat” is not an isolated incident.
Donald Trump began his presidential bid describing Mexicans as rapists and drug dealers, deportation has been one of his most consistent campaign promises, and he had Salinas’s co-host, Jorge Ramos, removed from a press conference last year. Trump’s rhetoric defies the conventions of political correctness and plurality.
In this case, Salinas’s speech and the resulting fallout are a synecdoche for what is at stake in the larger zeitgeist in this country. After years of championing diversity and inclusion, we now have to complete the move from relying on rhetoric to ensuring that diversity becomes a substantive practice.
Campuses are often a site of contestation, where students are negotiating the challenges of pluralism, belonging and diversity while preparing to engage in the broader society as both citizens and professionals. As faculty members, we firmly believe that the goal of a college education is to provide students with the opportunity to confront new ideas, engage with the complexity of contemporary social life and develop intellectual positions that result from careful consideration and study.
In furtherance of this goal, diversity has been championed on college campuses. This comes from the belief that campuses, in both faculty and student populations, should be representative of the people, experiences and ideas within the larger population. As the Census Bureau reports, by 2020 the more than half of the children in the United States will be part of a minority race or ethnic group. By 2060, only 36 percent of the population will be single-race, non-Hispanic white. Given the changing demography of the nation, it is encouraging that colleges and universities are taking steps to reduce the disparities in higher education achievement and aiming to have faculty and student populations that reflect our contemporary society.
As faculty members in the Department of Communications at CSUF, we are proud that our department takes an interest in serving a diverse student body that is reflective of our Southern California location. Our university has been designated a Hispanic-serving institution, ranked No. 1 in California and fifth nationally in awarding bachelor’s degrees to Hispanics. Our department is ranked first nationally in awarding communications degrees to Latinos. To broaden the professional opportunities for our students in journalism, advertising, public relations and entertainment and tourism, we recently launched the Latino Communication Initiative as a way to provide guidance and experience for students interested in the growing Latino communications industry. As part of that initiative, we have begun a Spanish-language news program, Al Día.
A Small Effort at Inclusion
It is in this context that Salinas’s speech, and the negative reaction by some to her remarks, occurred. According to the video of Salinas’s remarks, she spoke in Spanish for exactly 25 seconds, saying she was very proud of the students and their achievements and that she encouraged them to continue working and writing for their community. Switching to English, she then remarked that it is wonderful to be bilingual, because it allows to one to move between cultures. In an era where study abroad initiatives and diversity are encouraged for exactly this purpose, these comments should hardly be controversial or exclusionary.
As the events at our department’s commencement began to attract national attention, we received a number of emails from students, which led to long phone calls during which students expressed their varying perspectives on the incident. Many students saw nothing wrong with Salinas’s remarks. For example, Alana Garrett, a 25-year-old African-American graduate who does not speak Spanish, said, “It didn’t bother me. It wasn’t like she just spoke in Spanish the whole time. She said a couple of sentences. That’s what she should do -- she works for Univision. Why would that upset people?”
Similarly, graduate and Al Día reporter Alfredo Sanchez, 21, whose family is from El Salvador and for whom Spanish is his first language, said, “There should not be shame in speaking one’s language. She was just talking about Hispanic students making a difference and being able to reach the stage of commencement.”
Other students expressed an understanding why some non-Spanish-speaking students would feel excluded by Salinas’s Spanish remarks. David Leos, a 42-year-old graduate born to two Mexican immigrants, said, “The two students I was sitting next to were an Arab Muslim and a white Christian, and I can tell you they both felt excluded. I appreciated Salinas’s spotlighting of Hispanics’ successes and adding Spanish dialogue, but I also felt sorry for other non-Hispanic students.”
Indeed, in articles published in the aftermath of the event, some people expressed a belief that the delivery of these remarks in Spanish was exclusionary. However, this perspective disregards the fact that many of the parents, grandparents and extended family in the audience speak Spanish more fluently than English, or do not speak English at all, and were therefore excluded from the entire remainder of the ceremony. Delivering less than 30 seconds of her remarks in Spanish was a way for Salinas to include such individuals. Arely Martin, 23, had family members in attendance who did not speak English. “She actually told me, ‘Finally we go somewhere where we understand. There is actually someone talking to us,’” Martin said of her mother, who was born in Mexico.
The question we must ask is why this small effort at inclusion resulted in such hostility from a segment of the audience.
Much of the news media coverage has emphasized that Salinas’s remarks in Spanish were met with heckling and a distinct call for “English!” That is audible on the video of the speech. The focus on the language spoken by Salinas takes for granted the very real ways in which language and race are correlated.
Specifically, complaints about the speaking of Spanish are a way in which “color-blind” racism against Latinos can rear its ugly head. As Eduardo Bonilla-Silva explains in his seminal work Racism Without Racists (Rowman and Littlefield, 2009), because it is acknowledged that racism is “bad,” people use proxies for race to express beliefs that, if stated directly, would be considered racist. Arguments favoring “English only” in public spaces have a very long, very racialized history in this region. Well into the 20th century, the Southwest was sprinkled with signs that proudly boasted, “We Serve Whites Only. No Spanish or Mexicans.” Bilingual education has been banned in California public schools since 1996 under Proposition 227, the repeal of which will be on the ballot in this November’s election. Such a long history of contestation over the use of Spanish in the United States maps onto the history of the legitimacy of Latinos’ presence in this country.
While diversity and inclusion are contentious civic terrain, for anyone hoping to enter the workforce, linguistic, ethnic and racial diversity are de facto values. The Harvard Business Review has reported on how workplace diversity increases innovation and how diversity-centric strategic goals led to IBM’s turnaround success story. A study published in PNAS found that diverse teams outperformed high-ability teams on problem-solving tasks -- suggesting that diversity of thought is more important than simply high aptitude. Most crucial for our graduates, industry journals such as Advertising Age have published articles on the need for the media industries to diversify, arguing, “This will give us the insights and the skills to evolve alongside the massive demographic, technological and social shifts that we’ll see in the coming decades.”
When Salinas spoke last month, the fact that some students and families felt excluded at times is indicative of the previously limited experiences they have had in engaging with difference. Other students and families appreciated that the remarks reflected their own experiences. These reactions are reflective of the larger political terrain, where Trumpism pits an essentialist national identity against our contemporary realities. But the fact remains that exposure and engagement with difference is necessary in order to navigate our multilingual, multiethnic, multiracial society.
What remains to be seen is if these exhortations of the value and importance of diversity will retreat to the dustbin of rhetorical canards or if we can build a sustainably diverse public life -- one that is too deeply engaged with the benefits of multiplicity and diversity to crumble under an attack on political correctness. CSUF graduate Arely Martin took hope from Salinas’s address that her generation can do the work to build a diverse society. “She said, ‘You are the generation that’s going to build bridges, not walls.’ I thought, that’s so true. How could anyone be offended by that?”
Christina M. Ceisel and Vanessa Díaz are assistant professors of communications at California State University, Fullerton. The opinions expressed in this article are their own.
The U.S. Supreme Court -- as soon as Thursday and almost certainly next week -- will rule on whether or how colleges and universities may consider race and ethnicity in admissions decisions. While we doubt the justices are going to change votes based on public debate, some individuals are trying to score points on the issues.
Georgetown University's Center on Education and the Workforce on Tuesday released a new analysis that seeks to rebut claims (made during the oral arguments in the case by the late Justice Antonin Scalia) that some minority students are better off attending less selective institutions than those they might be admitted to through affirmative action. The study finds that "average" students have a better chance of graduating from selective colleges than open-admissions institutions.
Meanwhile the Texas A&M University System is circulating copies of an article in The Texas Tribune that details growing diversity in the Texas A&M student body without the consideration of race, as is the practice at the University of Texas at Austin, whose admissions system is the one before the Supreme Court.