5th Circuit, Affirmative Action, Constitutional Law, Education / Schools, Minority Issues, SCOTUS, Supreme Court, Texas

Affirmative Action Is Dead In The Water; Diversity Is The 21st Century Fight

Today, the Supreme Court surprisingly ruled 7-1 to vacate the Fifth Circuit in Fisher v. Texas. The opinion was a great big dodge. Anthony Kennedy, writing for the majority, said that the lower court failed to apply “strict scrutiny” to the University of Texas’s admissions policies. Cutting through the legalese, that means the Supreme Court actually upheld the case of Grutter v. Bollinger, which is the controlling case allowing affirmative action in college admissions. While conservative justices indicated that they would have overturned Grutter had they been asked, the majority found that they had not been asked.

If that all sounds like a bunch of legal mumbo jumbo to you that avoids the heart of the issue, you are not a lawyer. You are right, but you aren’t a lawyer.

This is no “victory” for affirmative action. There are still a majority of Supreme Court justices that want, almost desperately, to end racial preferences in college admissions. What the Court did today was threaten colleges and universities that want to use racial preferences to come up with really good justifications for their affirmative action policies. Schools that aren’t really committed to diversity, or that go about achieving diversity in a stupid way, will surely have their programs ruled unconstitutional in the future.

This is, I think, the end of affirmative action as a tool for “racial equality.” But affirmative action as a tool to promote “racial diversity” is alive and well.

Which, all things considered, is just fine by me. I think the Court signaled that it is just no longer buying the old reasons for affirmative action. While the rabid conservatives don’t seem to be wiling to consider any, it looks like moderates like Kennedy may listen to new justifications for using race as a factor in admissions, but you are going to have to convince him….

America can’t guarantee equal outcomes, but she tries to guarantee equal opportunity. We do a piss-poor job of guaranteeing equal opportunity for poor people (and I’ve argued before for economic affirmative action right along with the racial kind), but we try to have a country where everybody in the middle has the same opportunity to succeed as everyone else. Slavery held black people back and Jim Crow held minorities back, but affirmative action lifts up those people who were held back. Kumbaya. The first justification for affirmative action is that it balances the score.

Any more, it’s also one of the worst defenses for affirmative action. Not because it’s not true (Barack Obama did not end racism in America), but because nobody wants to hear it anymore. These aren’t your father’s white men anymore. White men used to acknowledge their inherent advantages, but now all you hear is the soft language of victimization. “Whaa… I might be white, but actually things are wreally wreally tough for me too.” I once heard a first generation German argue with an American Jew that his family has had it “way worse” than the Jew’s family because his family was poor in Germany while the Jewish guy’s family had been building a life here for generations. And since we were all having drinks on the Upper East Side, probably on top of a mound of dead Native Americans, I determined that whenever you get into a pissing match of “who had it worse,” everybody loses.

You can’t convince some white people that they have opportunities that need to be balanced by social policies of the state. And that’s not the best argument for affirmative action in the modern context anyway. The best argument is that diversity in college admissions creates a better educational environment for all involved. Any institution could admit people who are substantially similar to everyone else. But, like incest, without a little genetic diversity, things can get a little scary. Put simply, getting different people from different backgrounds all in one place creates a vibrant educational environment where learning and creativity spontaneously happens. It’s why New Orleans is New Orleans and not Nebraska.

Meanwhile, putting substantially similar people with similar backgrounds in the same place creates an echo chamber that frustrates learning and leads to an episode of Girls.

The diversity argument makes sense to people who have the opportunity to experience it. A Kaplan survey found that diversity is “very important” or “somewhat important” for 60% of high school student respondents. That’s a huge number. We might debate about how to achieve racial diversity in college or in the workplace, but most of us think that achieving diversity is important and benefits everybody. Nobody wants to go back to Mad Men times where every conference room is filled with white men and secretaries.

Unfortunately, most people (black, white, or other) don’t actually understand how affirmative action even works. Chris Rock has this joke where he says, “I don’t think that if I get a lower score on a test than a white guy that I should get a job or get into school over him. But if it’s a tie… f**k him.” Which is funny, but of course not at all how affirmative action works in college admissions.

Admissions officers are taking a bunch of factors into account when putting together their class. Test scores, sports, clubs, leadership, recommendations, legacy status, gender diversity, geographic diversity, academic diversity, and probably a bunch of soft things like essays, impressions from interviewers, and feel. Race is a part of that. It’s one factor among many.

But break down that joke a little bit. Even black people think that “just giving” something to a person “just because they are black” is unfair. Nobody wants that. There was a recent Washington Post poll showing 76% opposition to “race as a factor in deciding which students to admit.” Of course, when you think about it the way Chris Rock sets it up, in this fictitious world where there are two people who are exactly the same besides their skin color, the whole social policy seems unfair.

But when you think about it in terms of diversity — when you are looking at having a college class (or a professional environment) that achieves the Muppets Take Manhattan ideal of having MORE dogs and cats and chickens and things — looking at a lot of factors, including race, makes a lot more sense.

Enter Anthony Kennedy. How does a university survive strict scrutiny of its affirmative action policy? From his opinion today in Fisher:

The reviewing court must ultimately be satisfied that no workable race-neutral alternatives would produce the educational benefits of diversity.

Now, I have no idea if the University of Texas’s admission policies survive this kind of analysis. Don’t forget, Abigail Fisher is not exactly the most hard-luck white person opponents of affirmative action could have trotted out there. Texas has a policy where if you graduate in the top ten percent of your high school class, you can go to any state school you want to. This policy has helped a lot of minority kids go to UT. Fisher did not finish in the top ten percent of her class. Texas admitted white people with lower scores than Fisher — so arguably she got out-competed by white people in her own high school and from around the state. But she turned around and sued the school because, yada yada, minorities took her spot. Whatever. In terms of “race-neutral alternatives,” finishing in the top ten percent of your high school class seems like a good start to me.

But the larger point here, I think, is that schools (or states) that try to do it this way, with arbitrary cut-offs and what have you, are in trouble. We already know that quotas are illegal. I think where we’re going with this is that this kind of statistical diversity will be unconstitutional too. To put it into a law school context, I don’t think it can be something like, “We don’t accept people who score below 165 on the LSAT… unless they’re black.” Which isn’t how it works now anyway. Instead, colleges and universities are going to have to look at the fullness of each person’s application. And that will include their race, and their gender, and where they are from, and whether their parents went to the school, and their test scores, and recommendation letters, and everything else.

At some institutions, they’ll have to put in a little more work, and at most institutions, they’ll have to do a better job of showing their work.

Against them will be people who do not believe in the educational benefits of diversity. They’ll use the same arguments of “merit,” but what they’re really saying is that it doesn’t matter from an educational perspective if a college is 95% white kids — I say “white kids” because something tells me that a lot of those same people would think it mattered a great deal if their cherished alma maters ended up 95% Asian kids, you know, “just based on merit.”

But I don’t think that is a majority view, not on the Court and not in America. For better or worse, I think America is done “affirmatively” taking action to ameliorate the effects of this country’s legacy of slavery and oppression. Black people didn’t achieve full equal legal rights in this country until the 1960s, and we didn’t get full social equality until… ??? The Chronic??? But whatever, America is like sitting in bar saying, “C’mon, why can’t we just be cool about this?” Honestly, any minute now I expect Martin Luther King to come back down from the mountain and throw some tablets at this golden, post-racial calf you fools made Barack Obama construct.

But everybody wants to have a black friend. And everybody wants to have a gay friend. And everybody wants to know somebody from Texas. Right ese? And that’s really what diversity is all about. That’s the argument of the future. Not one based on guilt and shame and recuperation, but one based on a celebration of our similarities and differences and what we can learn from each other.

Affirmative action is dead, long live affirmative action.

Earlier: The Supreme Court Surprises in Fisher v. University of Texas

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