The University of California has agreed to pay $4.5 million to settle a racial discrimination lawsuit brought by a surgeon at the medical school at the university's Los Angeles campus, the Los Angeles Times reported. Christian Head, a head and neck surgeon at UCLA, had accused the university of retaliating against him for filing complaints about discrimination through regular channels, and said that he had once been portrayed as a gorilla being sodomized in a slide show at an event for residents -- an incident for which the university apologized in the settlement.
The number of black and Latino students entering four-year colleges significantly outpaced the number of white students over the last three years, while the six-year graduation rate of the minority students edged up slowly, the Education Trust said in a new report. "Intentionally Successful," an analysis of new data from the U.S. Education Department, found that black and Hispanic enrollment at four-year colleges rose by 8.5 and 22 percent, respectively, between 2009 and 2011, compared to a 2.7 percent rise in white enrollment.
The six-year graduation rates of those groups rose by 2 percent, 4.7 percent, and 2.1 percent, respectively, between 2009 and 2011, and the graduation rate for black students in 2011 was still 2.2 percentage points lower than it was in 2006, Education Trust found.
Tom Joyner, the radio host and advocate for historically black colleges, has offered a full scholarship to the black college of her choice for Rachel Jeantel, the friend of Trayvon Martin who testified in the trial over his killing, CNN reported. Joyner made the offer after hearing Jeantel interviewed. "I will help you get tutors to get you out of high school, tutors to help you pass the SAT, and I will give you a full-ride scholarship to any HBCU you'd like," he said.
WASHINGTON -- A group of former presidents and chancellors of historically black colleges and universities have sent a letter to President Obama requesting more resources to make their institutions "comparable and competitive" with predominantly white colleges. The letter praises Obama's overall accomplishments, but goes on to say that "addressing the plight of the HBCUs has to be among the highest priorities" for the administration. Among the requests: locating the White House Initiative on Historically Black Colleges and Universities within the White House rather than the Education Department, and raising its director to the level of a deputy secretary; using the "bully pulpit" of the presidency to encourage support, including grants, for HBCUs; and directing the Office for Civil Rights to consider lawsuits against states that are in violation of the desegregation agreement.
College athletic programs lag behind professional teams in diverse hiring practices, and in some sports, are getting worse, according to a new “report card” released Wednesday by the Institute for Diversity and Ethics in Sport at the University of Central Florida. TIDES awarded college sports a “B” grade overall – same as last year -- noting that while colleges improved slightly on gender hiring practices (colleges scored 81.3 points on the report card scale, up from 80.7 last year), they also did slightly worse with racial hiring practices (scoring 81 points, down from 82.2). The report points specifically to Division I men’s basketball head coaches, 18.8 percent of whom are black, down 0.2 percent from last year and 6.6 percent from 2005-6. It also notes that the commissioners of all major Football Bowl Series conferences are white males, and 89 percent of athletics directors in all three divisions are white. Only 8.3 percent of Division I athletics directors are women, the report says.
London Mayor Boris Johnson is under attack for a quip suggesting that female students are still after Mrs. degrees.Times Higher Education reported that Johnson was on a panel on which Malaysia's prime minister was talking about the increasing number of women enrolling. Johnson said that women "have got to find men to marry." Twitter is full of outrage over the comment. One comment: "Women go to university to bag themselves a husband! Sure, it still being 1953!" Another: "Does this mean I can get a refund on my student loan?! Didn't find a husband at my uni... “
The Supreme Court just kicked the latest affirmative action case (Fisher v. University of Texas), back down to an appeals court, effectively avoiding the big issues of race and class in America – at least for now. Abigail Fisher claimed that the University of Texas at Austin violated her rights by considering race in its admissions process. Fisher is a white woman who was not admitted to the University in 2008.
The Supreme Court claims that the U.S. Court of Appeals for the Fifth Circuit did not subject the Fisher case to the appropriate standards, in particular: Are the means for ensuring campus diversity narrowly tailored to that goal? And can the university achieve diversity via mechanisms that do not require racial classifications?
Despite the decision to bounce the case back, interesting undertones can be gleaned from Justice Anthony Kennedy’s 7-1 majority opinion, and particularly the two concurring statements from Justices Clarence Thomas and Antonin Scalia. Thomas and Scalia took the opportunity to add their distaste for the entire idea that universities are entitled to use racial considerations in composing their communities. Justice Thomas asserted that "a state’s use of race in higher education admissions decisions is categorically prohibited by the Equal Protection Clause."
The rejection of affirmative action logic, found in Thomas and Scalia, was foreshadowed by Justice Roberts’s earlier slogan, from a 2007 decision, "the way to stop discrimination on the basis of race is to stop discriminating on the basis of
race." Foes of affirmative action, including some conservative members of the court, seem convinced that we’re now living in a post-racial society, and the policy ameliorations of the past have become the reverse discriminations of today.
One of Ronald Dworkin’s last articles (before his death in February) decried the conservative rejection of affirmative action, predicting that the court would probably overturn the 2003 Grutter v. Bollinger decision, which allowed for race considerations in admissions. That may still happen, but not yet.
Dworkin suggested that affirmative action is no more discriminatory than other preferential forms of college admission, including preference for good athletes where universities have strong athletic programs. Institutions are entitled to have reasonable preferences -- higher scoring on standardized tests, for example, puts lower-scoring individuals at a disadvantage. As Dworkin put it, "the Constitution does not prevent regulative legislation that gives advantage to some over
others – to optometrists over oculists, for example – when the legislation serves a ‘rational’ purpose that reflects no prejudice or favoritism." But this last clause was precisely the sticking point, since Abigail Fisher’s case asserted that race consideration in Texas admissions violated her constitutional rights with prejudiced policy. Dworkin found it absurd that the university could be interpreted as prejudiced against white students, since it is overwhelmingly white. Dworkin also dismissed any white resentment (for being passed over), suggesting that the wider moral perspective revealed rational preferences in the affirmative action policy, not just favoritism. He voiced the Left’s position that the higher social good of liberal tolerance is the rational grounding that renders resentments unjustified.
This underlying rational aspect of race consideration is articulated in Sandra Day O’Connor’s 2003 Grutter v. Bollinger endorsement of the Court’s earlier claim that student body diversity is a compelling state interest and justifies the use of race in university admissions. The moral reasoning is that greater campus diversity breaks stereotypes and xenophobia, and students will emerge from these experiences with greater tolerance and less prejudice.
Three important objections can be raised against affirmative action logic, and last month’s Court ruling expresses some of these critiques in its decision. First, this specific demarcation of rational preferential treatment from regular garden-variety discrimination seems to beg the question. The general point – that rational preferences can be positive and defensible – is not the issue. But this specific designation of good and bad preference is the aspect that needs greater warrant.
Using this logic, for example, Dworkin argued that it is not enough to get black students on campus in Texas – a task easily accomplished by an existing law that takes the top 10 percent of Texas high school students and therefore draws smart, poor, black students from geographically black high schools. Judge Alito suggested, while hearing the case, that this 10 percent rule sufficiently ensures the sought-after student diversity. But supporters of affirmative action, like Dworkin, argued that this would not be the right sort of diversity, because it would feed white stereotypes that blacks are poor. Supporters of affirmative action in Texas argued that the university should be encouraged to cherry-pick black students from middle- and upper-class backgrounds in order to break campus stereotypes.
Such fine-grained optimization of diversity is a multiple-edged sword for the state to legislate. For one thing, it’s hard to see why this cherry-picking isn’t already redundant to the existing mechanism of merit admissions, because if a smart black student is from a middle-class family then she already has many of the supportive ingredients to be selected by the institution like every other middle-class student. For this reason, a racial preference may fail the legal strict scrutiny requirement that it be the "least restrictive means" for achieving its goal.
Moreover, the very criterion of "breaking stereotypes" (as rational justification) is a sticky wicket, because it radically opens the floodgates of equally reasonable complaints. Latinos in every economic class will need to be cherry-picked, as will Asians and every other group. If there are not enough gays and lesbians on campus to defuse homophobia, institutions will need to protect slots for gays and lesbians in every economic and racial category. Transgender students will not just need representation, but representation from different economic backgrounds. And Asians who are bad at math and Jews who prefer football to studying will need special recruitment, in order to break down those pernicious widespread
stereotypes on campus. In short, "breaking stereotypes" is an over-inclusive criterion, and it seems to fail the strict scrutiny expectation that a law or policy be “narrowly tailored” to achieve its goal or interest.
Secondly, Dworkin and other supporters think it’s obvious that the university is not guilty of black favoritism, because the institution remains so demographically white. But this ignores the possibility that lefty academics (otherwise known as academics) could be prejudicially biased in favor of minority students, even when they are not themselves minorities. Reverse discrimination can be ideologically motivated. I take it this is a major critique of academe, from the Right – namely, the academy’s general obsession with the subaltern.
White guilt is stronger in the academy than in any other arena of American culture, so it’s not impossible that reverse discrimination has systemic reach in this narrow domain. One way to assess this possibility is to measure the number
of black applicants against the number of blacks admitted. Similar numbers there might be suggestive of institutional reverse discrimination, and this was essentially Justice Rehnnquist’s claim in his dissent for Grutter v. Bollinger. Moreover, Rehnquist argued, this bias was more troubling in the University of Michigan Law School case (Grutter), because the overall number of Latinos admitted from 1995-2000 was only half that of African Americans. The criterion of diversity, therefore, is not producing anything like a representational spread of U.S. demographics. Of course, none of this may indicate favoritism per se, but just a broken haphazard system that’s too unorganized to even have an agenda.
That’s not exactly good news either.
Thirdly, we have come a long way from the original purpose of affirmative action, if the conversion of on-campus white psyches is the new rational justification. President Johnson’s policy started as a legitimate leg-up for black people – a boost for opportunity. But the newer logic holds that affirmative action will better-ensure that white people will think better thoughts about people of color. This moral argument appears to underpin the Supreme Court’s logic in Grutter v. Bollinger, where Justice O’Connor argued that race preference policies would be a necessary evil for only another 15 years (25 years from the original opinion).
When President Johnson first instituted affirmative action, one of the underlying purposes was reparation to the descendants of former slaves, many of whom were victims of Jim Crow bigotry. African Americans who felt the sting of racism directly were helped by the policy. The goal of increased diversity, in schools and the workplace, was intimately connected to this reparation function of affirmative action, but that is no longer the case. In today’s America, many of the people who benefit from diversity policies are not disadvantaged African Americans, but Latinos, Indians, Africans, Vietnamese, Iranians, Pakistanis, Chinese, Koreans, and so on. While many of these groups have faced terrible hardships, they have not been enslaved with the approval of the United States.
We’re not living in a post-racial age, in the sense that we all see past skin color, speech accents and cultural differences. But we are living in a post black-and-white era of discrimination, in the sense that we now have many additional kinds of discrimination (brought on by melting pot trends). Prejudice is not as uniform as it used to be, and now we have micro-prejudices that cannot be legislated away; Puerto Rican Americans stereotype Mexican Americans, who turn around and stereotype African Americans, who in turn stereotype Korean Americans, who then stereotype Japanese Americans, who stereotype Chinese Americans, who tend to stereotype Pakistani Americans, who stereotype Indian Americans, and so on.
Just after the civil rights era, huge immigration spikes started for Asian and Latin American populations. In the 1960s most immigrants came from Europe, so the color question remained acute. Prejudice really was more of a black-and-white issue at that time. But starting in the 1970s there has been a huge influx of color. In 1960, only 9 percent of immigrants were Latin American and 5 percent were Asian. Compare that with 2011 immigration, when 52 percent were Latin American and 28 percent Asian. The color question has changed in America and this has had implications for the logic of affirmative action.
The "diversity argument" that Justice O’Connor proffered in Grutter will probably not survive a substantial challenge because it tries to catch a specific needy demographic – African Americans – with a wide net that also benefits many non-African Americans of color. It would have been better to keep the argument focused on reparation for descendants of slaves, because that smaller net captures the right demographic group. But this argument is problematic for other reasons, namely the historical distance between today’s African-American students and slavery. Switching to an economic criterion for preferential treatment results in two improvements: poor kids get into elite schools and poor minorities are captured within the criterion. But using only the economic criterion creates the stereotyping problems that Dworkin was worried about -- namely, only poor African Americans will be represented on campus.
What O’Connor should have argued was not that "diversity" policies need 25 more years of legal protection (her actual argument), but slavery reparation needs those years of legal protection. That would have been the mechanism needed to keep African Americans inside the affirmative action cohort and other people of color outside the cohort. One wonders, however, how compelling that argument sounds to contemporary American ears, especially when we have a black president in office.
Many middle-class African Americans feel that we’ve outgrown affirmative action. President Obama, for example, has stated that his own privileged daughters don’t deserve affirmative action preferences. Instead, he argues, low-income students of all races should be given preferential treatment. At the same time, his Department of Justice supported the race-based admissions in the University of Texas case.
When Asians score their way into all the slots at the good colleges, will whites argue that they were discriminated against? Actually, Asian scholastic excellence is already so powerful that Asians have to be discriminated against to keep them from overpopulating competitive programs. As recounted by William Chase in an article in The American Scholar, a Princeton University study analyzed the records of more than 100,000 applicants to three highly selective private universities. "They found that being an African American candidate was worth, on average, an additional 230 SAT points on the 1600-point scale and that being Hispanic was worth an additional 185 points, but that being an Asian-American candidate warranted the loss, on average, of 50 SAT points.”
The time has come, I submit, for us to embrace a post-affirmative action future. There may be very good arguments for maintaining preferential treatment for African Americans specifically, but those arguments will probably need definitive detachment from current affirmative action logic. Since African Americans continue to be underrepresented in today’s universities – despite all-time-high representation of nonwhite students – some policies should probably return to the language and logic of reparation (rather than just equal opportunity). This battle is still fightable and winnable, but it will need to start afresh.
As far as overall diversity goes, we might bite the bullet and assert – independent of the affirmative action tradition – that we want a pluralistic campus that reflects our national melting pot. To that end, we might create a quota lottery that replicates, on campus, the same racial demographics of the whole nation (white = 75 percent, Latino = 15 percent, black = 12 percent, Asian = 5 percent, and so on). But the problem here is now obvious. We would need to actively restrain one of the most impressive academic racial groups (Asians) in order to force them to conform to their tiny demographic percentage. This seems both unethical and unwise.
Whatever remains of the diversity argument and the affirmative action mechanisms should be rerouted entirely and enlisted to address the bigger challenge of our time, economic disparity. Ensuring access to poor students of every race is not only pressing, but has the added benefit of being solvable by legislative means. Now that the Court has remanded the case, things will be status quo for the time being. But the demand for strict scrutiny here seems like a technical dodge, and won’t stave off the changing tides of American social justice.
Stephen T. Asma is professor of philosophy at Columbia College Chicago. He is the author of seven books, including Against Fairness (University of Chicago Press), On Monsters: an Unnatural History of Our Worst Fears (Oxford University Press) and The Gods Drink Whiskey (HarperOne).
Last month the U.S. Supreme Court announced its ruling in Fisher v. University of Texas, reiterating that race-conscious college admissions policies are subject to "strict scrutiny" – a rigorous legal standard. Writing the opinion for a 7-1 majority, Justice Anthony Kennedy stated that when universities use race-based affirmative action, the courts "must ultimately be satisfied that no workable race-neutral alternatives would produce the educational benefits of diversity."
In fact, the issue seems far from settled. Fisher will be reconsidered by the U.S. Circuit Court of Appeals for the Fifth Circuit, and the Supreme Court agreed to hear an additional case this fall – Schuette v. Coalition to Defend Affirmative Action – related to affirmative action in Michigan. At issue in Schuette is the constitutionality of statewide bans (usually enacted via popular referendum) on using race in admissions or employment. Because popular support for traditional, race-based preferences has dwindled over the past decade, and Fisher and Schuette are still in play, many Court observers suspect race-based affirmative action will be curtailed significantly if not struck down entirely. If that happens, it seems reasonable to think diversity at our nation's selective institutions of higher education will be radically diminished.
But that’s by no means inevitable. Many states have already faced prohibitions on race-conscious admissions, and have developed innovative admissions strategies to maintain and even increase diversity at their flagship institutions. In some cases, they’ve also managed to increase an even more underrepresented population on campus – poor students.
That’s what happened in 2008, when Colorado faced a ballot initiative seeking to prohibit consideration of race in college admissions. In response, the University of Colorado Boulder (CU) developed a class-based affirmative action system that would serve the university’s interest in admitting a broadly diverse class while complying with the proposed ban on race-conscious admissions. Even though the initiative did not pass, CU went ahead and enhanced its admissions process to give additional consideration to disadvantaged applicants. In 2011, when this class-based system was fully used for the first time, CU enrolled the most socioeconomically and racially diverse freshman class in its history.
So how did CU do it?
The university developed two statistical measures, which its admissions officers now use to identify not only those applicants who have faced adversity, but also those who have demonstrated extraordinary academic achievement in light of their circumstances. The first measure – the "Disadvantage Index" – essentially tells us how an applicant’s socioeconomic background has impacted his or her chances of enrolling in college. The second measure – the "Overachievement Index" – tells us how an applicant’s high school academic credentials (e.g., SAT or ACT scores) compare to those of students with similar backgrounds. Ultimately, the disadvantaged and overachieving applicants identified by these indexes receive a leg up in the admissions process.
Controlled experiments, summarized in an upcoming issue of Harvard Law & Policy Review, showed promising results. First, using the race-neutral indexes to replace race-conscious admissions increased acceptance rates not only for economically disadvantaged applicants, but also for racial minorities. Moreover, analyses suggest some “class-based admits” – those who wouldn’t be accepted without a class-conscious admissions policy – may fare well in college. Specifically, those identified by the Overachievement Index are predicted to earn higher grades and graduate at higher rates than typical CU undergraduates.
The unprecedented diversity of the freshman class of 2011 seems to validate the experimental findings, but to be fair, many factors outside admissions policy can influence campus diversity. At CU, for example, expanded recruitment, outreach, and student retention efforts deserve much of the credit. Class-based affirmative action cannot sustain socioeconomic and racial diversity on its own; universities need comprehensive strategies that not only grant additional consideration to disadvantaged applicants during the admissions process, but also encourage them to apply in the first place and support their academic development once they’ve arrived on campus. In their report "A Better Affirmative Action," Richard Kahlenberg and Halley Potter document this sort of thoughtful planning in nine states where race-conscious admissions have already been banned.
Through coordinated recruiting and outreach and carefully designed admissions policies, universities in most of those states have boosted the socioeconomic and racial diversity of incoming classes. Stanford economist Caroline Hoxby has uncovered another promising approach – personalized recruitment materials – that may substantially increase college access for thousands of high-achieving, low-income students who aren’t applying to selective colleges. This research has not gone unnoticed. In recent months, we’ve seen a rising tide of calls from across the ideological spectrum to seriously pursue class-based affirmative action, at a time when enthusiasm for race-based preferences seems to be waning.
The point here is not that universities should revamp their recruitment materials or adopt the Disadvantage and Overachievement Indexes and expect a seamless transition away from race-conscious admissions. Rather, the point is that social scientists have been hard at work for quite some time developing, refining, and studying class-conscious strategies that can advance the goals and social purposes of the universities that use them. The University of Colorado recognized the value in this line of research, and took proactive steps to support campus diversity by considering class in its admissions process.
Given last month's Fisher ruling and the Schuette decision to come, other university administrators should follow suit. Sooner would probably be better, to avoid the hasty adoption of class-based policies in the scramble of legal uncertainty. As Greg Roberts, the dean of admission at the University of Virginia, recently pointed out, "If there are changes to how we define diversity then I expect schools will really work hard at identifying low-income students." For those of us who care deeply about equal opportunity and social justice, class-conscious admissions policies offer unique promise: They focus our attention on socioeconomic integration, and may open new pathways to higher education for students who have traditionally faced economic, social, and institutional barriers.
Matthew Gaertner worked with the University of Colorado Boulder office of admissions to create these class-based admissions indexes. He is currently a research scientist in the Center for College & Career at Pearson.