A Familiar Scene And An All-Too-Familiar Question: The Supreme Court Returns To The Question Of Race [UPDATED]

The U.S. Supreme Court
The U.S. Supreme Court
This morning I will be in front of the Supreme Court to discuss the expected rulings on same-sex marriage, voting rights, and racial diversity in college admissions.  It is the last ruling in Fisher v. University of Texas Austin that brings back many personal memories for me.  I will be with Jake Tapper giving legal analysis from virtually the identical place I was standing in 1977 when Regents of the University of California v. Bakke was argued before the Court.  I was a 16 year old congressional page during the large protests for and against affirnative action.  I remember walking out of the House of Representatives where I was a leadership page and getting swept away by the crowds.  I found a spot near today’s CNN site to watch this passionate display of free speech.  What is most striking is that 36 years later little has truly been resolved in how race can be considered by universities — or the struggle of the Court to find a consistent approach to the question. Update below: The Court ruled 7-1 to impose a higher standard for review under strict scrutiny.
With Fisher, the Supreme Court will again face the question of the use of race in higher education. It is question that the Court failed to definitively answer in 1978 and then again in 2003. Now in 2013, Fisher v. University of Texas Austin could create a bright-line rule that bars the use of race as a factor . . . or not.While the Court has repeatedly allowed the limited use of race for the purposes of achieving diversity in classes, the record of these programs suggests that this one factor is difficult to confine and tends to overwhelm other considerations. The Court now appears to have the votes to adopt a bright-line rule that ends decades of experimentation with this controversial factor.

While many defend race-conscious admissions in terms of the need for affirmative action to correct historic discrimination, the Supreme Court barred such affirmative action in 1978 in Bakke. Justice Lewis Powell allowed for only a limited use of race for the purpose of achieving “diversity” in classes. Notably, in Bakke, the Medical School at the University of California at Davis had a more modest program over all by setting aside 16 of the 100 seats for “Blacks,” “Chicanos,” “Asians,” and “American Indians.” Those slots were justified as a matter of diversity, but found unconstitutional by the Court. However, the Court was deeply fractured. Five justices Powell and the plurality found that Bakke had to be admitted and that the weight given race was unconstitutional.

The exception however soon swallowed the rule as schools fought to maintain levels of minority students as a diversity rather than an affirmative action program. Many academics privately admit that the real purpose of these programs remains the original affirmative action rationale to ensure greater numbers of minorities in higher education.

The fact that the case continues to be referred to as the “affirmative action case” shows how little has changed since Bakke when the Court supposedly closed the door on affirmative action in admissions. By allowing race to still be used for diversity, educators sought to achieve the same numerical goals as a matter of diversity and achieving a racial “critical mass.”

I am convinced that my classes are greatly improved from an educational perspective by a more racially diverse class of students. I also see similar benefits from diversity in religion and socio-economic backgrounds. Moreover, race is not always a good criteria for bringing in different social and cultural experiences since many minority students come from elite schools and backgrounds.

The main concern however remains the natural gravitation of diversity programs into de facto quota systems. These cases reflect a tendency to weigh race more and more heavily to achieve greater numbers of minority students rather than spend the money and time to attract more competitive minority students.

The gap in scores among students at Texas will be at the heart of this case. The Texas data on the freshmen (not admitted under the Top Ten Percent Law) show that Asian students had a mean SAT score of 467 points and white students a mean of 390 points above the mean for black students (on a maximum score of 2400). This meant that Asian students scored in the 93rd percentile and whites in the 80th percentile nationally while black students scored in the 52nd percentile. These scores are a verboten subject among academics since they highlight the unfairness to students rejected with much higher scores due to their race.

With race-conscious systems, the concern is that white students are denied any ability to compete on this criteria for admission and must overcome the weight given to it with even higher scores. The discomfort with race-based criteria in educational admissions is reflected on the Court itself. In Grutter v. Bollinger, the Court divided 5-4 on the question in upholding the admissions criteria for Michigan Law School. However, even the author of the 2003 majority opinion, Associate Justice Sandra Day O’Connor, stated that she did not believe the use of race would be acceptable for more than a couple decades more. The Court ruled that it “expects that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.” O’Connor’s statement was ridiculed by other justices (and others) since the constitutionality of affirmative action should not have an expiration date like one-percent milk. Yet, even under O’Connor’s view, affirmative action would only have an expected life of roughly 15 more years of constitutionality.

What is interesting is that the University of Texas-Austin achieved remarkable levels of minority students under the earlier race-neutral system of admissions. In the year before the school changed to a race-conscious system, Hispanic and African American students constituted a total 21.4% of the entering freshman class. Asian students made up another roughly 18% of the class. This impressive success was achieved in large part by the Texas legislature enacting the 10% Law, which required the University of Texas to admit all Texas high school seniors ranking in the top 10% of their classes. That law not only achieved racial diversity but geographic and economic diversity at the university. For those of us uneasy with the use of race-conscious criteria, that record was encouraging and suggested that it is indeed possible to achieve considerable diversity without the use of race.

However, the university said that this roughly 40% minority rate was not sufficient because it wanted to see a greater percentage in individual programs and classes – requiring an even higher percentage. The school turned back to race-conscious admissions and the federal appellate court upheld the change. The race conscious rules are also likely to result in further discrimination on the basis of race. For example, while Asian Americans are indeed a minority and presumably would bring diversity to a class, they outperform blacks and Hispanics in scores by a significant degree. Their scores are also higher than white students. Thus, there is a growing trend to count the race of Asian students against their admission at some universities. Thus, if you are white or Asian, your performance in school and tests may be effectively negated by the color of your skin.

Under the current system, a student’s race is displayed on the front of their application. Significant numbers of minorities are still admitted under the Top 10 Percent law, but minority students are then given a preference if they do not make that cut based on their race. The result has been to increase minority admissions to over 50 percent of the entering class at UT. The goal and result are the same as the pre-Bakke affirmative action programs. Indeed, in a statement that likely had his lawyers wincing, the UT’s President proudly announced that his incoming classes achievement of 52 percent minority students would finally “reflect[] the changing demographics of the state” – an apparent reference to the affirmative action rationale.

Universities were given the opportunity to show how race can be used as a limited factor to achieve diversity. If a majority has finally solidified on the Court, schools would then have to seek diversity (as many law schools do) through scholarships and targeted recruitment. Fisher would become a tale of an opportunity lost and perhaps the start of a new chapter in the struggle of diversity in education.

UPDATE: The Kennedy decision does not rule out the use of race as a factor and appears to continue its support for race elements in diversity. However, it rejects the use of good faith as a showing. Instead, it wants proof that a race-nuetral approach is not possible. That could present a challenge since the top-ten-percent program in Texas achieved a far degree of diversity without using race as a factor.

Here is the ruling: Fisher decision

141 thoughts on “A Familiar Scene And An All-Too-Familiar Question: The Supreme Court Returns To The Question Of Race [UPDATED]”

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  2. Racism has as it’s root word Race. 100 years ago their was a popular logic, based on accepted human ignorance and lack of scientific knowledge, that Race was significant and therefore the word Racism, was a logical conjugation to justify injustice, hatred, inferiority, superiority, between and among perceived racial differences. This is no longer true.

    Six hundred years ago we thought the sun revolved around the earth. The church and science supported this belief.
    Earth-Centrist or “Earthist” were in denial when Galileo challenged “Earthism” with science. Galileo and 1000s more continued on and proved the earth revolves around the sun. …. The Earth-Centrics (Earthist) had to admit and accept scientific proof, “Earthism” no longer exists.

    Science has proven today that Race is zero factor in the present development of the Human species. The ease of sharing alleles and phenotypes between all humans, obliterates any significance of human worth based on the melanin content of each individual.

    RACISM NO LONGER REVOLVES AROUND RACE. It revolves around ignorance. (as in PERIOD)

    Modern day scientific study has destroyed the “caveman” definition of Race. Racism with it’s roots are still embedded in this false caveman definition. The word Race, the modern scientific definition of Race, has no accurate nor logical reason to be associated with the word Racism. I suggest we change the word Racism to Stupidism, and we call Racist …Stupidist.
    The root word for racism no longer exists as a justification for racism. I would like to see the Supreme Court rule on that…..

  3. http://www.understandingrace.org/about/statement.html

    The following statement was adopted by the Executive Board of the American Anthropological Association, acting on a draft prepared by a committee of representative American anthropologists. It does not reflect a consensus of all members of the AAA, as individuals vary in their approaches to the study of “race.” We believe that it represents generally the contemporary thinking and scholarly positions of a majority of anthropologists.

    In the United States both scholars and the general public have been conditioned to viewing human races as natural and separate divisions within the human species based on visible physical differences. With the vast expansion of scientific knowledge in this century, however, it has become clear that human populations are not unambiguous, clearly demarcated, biologically distinct groups. Evidence from the analysis of genetics (e.g., DNA) indicates that most physical variation, about 94%, lies within so-called racial groups. Conventional geographic “racial” groupings differ from one another only in about 6% of their genes. This means that there is greater variation within “racial” groups than between them. In neighboring populations there is much overlapping of genes and their phenotypic (physical) expressions. Throughout history whenever different groups have come into contact, they have interbred. The continued sharing of genetic materials has maintained all of humankind as a single species.

    Physical variations in any given trait tend to occur gradually rather than abruptly over geographic areas. And because physical traits are inherited independently of one another, knowing the range of one trait does not predict the presence of others. For example, skin color varies largely from light in the temperate areas in the north to dark in the tropical areas in the south; its intensity is not related to nose shape or hair texture. Dark skin may be associated with frizzy or kinky hair or curly or wavy or straight hair, all of which are found among different indigenous peoples in tropical regions. These facts render any attempt to establish lines of division among biological populations both arbitrary and subjective.

    Historical research has shown that the idea of “race” has always carried more meanings than mere physical differences; indeed, physical variations in the human species have no meaning except the social ones that humans put on them. Today scholars in many fields argue that “race” as it is understood in the United States of America was a social mechanism invented during the 18th century to refer to those populations brought together in colonial America: the English and other European settlers, the conquered Indian peoples, and those peoples of Africa brought in to provide slave labor.

    From its inception, this modern concept of “race” was modeled after an ancient theorem of the Great Chain of Being, which posited natural categories on a hierarchy established by God or nature. Thus “race” was a mode of classification linked specifically to peoples in the colonial situation. It subsumed a growing ideology of inequality devised to rationalize European attitudes and treatment of the conquered and enslaved peoples. Proponents of slavery in particular during the 19th century used “race” to justify the retention of slavery. The ideology magnified the differences among Europeans, Africans, and Indians, established a rigid hierarchy of socially exclusive categories underscored and bolstered unequal rank and status differences, and provided the rationalization that the inequality was natural or God-given. The different physical traits of African-Americans and Indians became markers or symbols of their status differences.

    As they were constructing US society, leaders among European-Americans fabricated the cultural/behavioral characteristics associated with each “race,” linking superior traits with Europeans and negative and inferior ones to blacks and Indians. Numerous arbitrary and fictitious beliefs about the different peoples were institutionalized and deeply embedded in American thought.

    Early in the 19th century the growing fields of science began to reflect the public consciousness about human differences. Differences among the “racial” categories were projected to their greatest extreme when the argument was posed that Africans, Indians, and Europeans were separate species, with Africans the least human and closer taxonomically to apes.

    Ultimately “race” as an ideology about human differences was subsequently spread to other areas of the world. It became a strategy for dividing, ranking, and controlling colonized people used by colonial powers everywhere. But it was not limited to the colonial situation. In the latter part of the 19th century it was employed by Europeans to rank one another and to justify social, economic, and political inequalities among their peoples. During World War II, the Nazis under Adolf Hitler enjoined the expanded ideology of “race” and “racial” differences and took them to a logical end: the extermination of 11 million people of “inferior races” (e.g., Jews, Gypsies, Africans, homosexuals, and so forth) and other unspeakable brutalities of the Holocaust.

    “Race” thus evolved as a worldview, a body of prejudgments that distorts our ideas about human differences and group behavior. Racial beliefs constitute myths about the diversity in the human species and about the abilities and behavior of people homogenized into “racial” categories. The myths fused behavior and physical features together in the public mind, impeding our comprehension of both biological variations and cultural behavior, implying that both are genetically determined. Racial myths bear no relationship to the reality of human capabilities or behavior. Scientists today find that reliance on such folk beliefs about human differences in research has led to countless errors.

    At the end of the 20th century, we now understand that human cultural behavior is learned, conditioned into infants beginning at birth, and always subject to modification. No human is born with a built-in culture or language. Our temperaments, dispositions, and personalities, regardless of genetic propensities, are developed within sets of meanings and values that we call “culture.” Studies of infant and early childhood learning and behavior attest to the reality of our cultures in forming who we are.

    It is a basic tenet of anthropological knowledge that all normal human beings have the capacity to learn any cultural behavior. The American experience with immigrants from hundreds of different language and cultural backgrounds who have acquired some version of American culture traits and behavior is the clearest evidence of this fact. Moreover, people of all physical variations have learned different cultural behaviors and continue to do so as modern transportation moves millions of immigrants around the world.

    How people have been accepted and treated within the context of a given society or culture has a direct impact on how they perform in that society. The “racial” worldview was invented to assign some groups to perpetual low status, while others were permitted access to privilege, power, and wealth. The tragedy in the United States has been that the policies and practices stemming from this worldview succeeded all too well in constructing unequal populations among Europeans, Native Americans, and peoples of African descent. Given what we know about the capacity of normal humans to achieve and function within any culture, we conclude that present-day inequalities between so-called “racial” groups are not consequences of their biological inheritance but products of historical and contemporary social, economic, educational, and political circumstances.

    [Note: For further information on human biological variations, see the statement prepared and issued by the American Association of Physical Anthropologists, 1996 (AJPA 101:569-570).]


    As a result of public confusion about the meaning of “race,” claims as to major biological differences among “races” continue to be advanced. Stemming from past AAA actions designed to address public misconceptions on race and intelligence, the need was apparent for a clear AAA statement on the biology and politics of race that would be educational and informational. Rather than wait for each spurious claim to be raised, the AAA Executive Board determined that the Association should prepare a statement for approval by the Association and elicit member input.

    Commissioned by the Executive Board of the American Anthropological Association, a position paper on race was authored by Audrey Smedley (Race in North America: Origin and Evolution of a Worldview, 1993) and thrice reviewed by a working group of prominent anthropologists: George Armelagos, Michael Blakey, C. Loring Brace, Alan Goodman, Faye Harrison, Jonathan Marks, Yolanda Moses, and Carol Mukhopadhyay. A draft of the current paper was published in the September 1997 Anthropology Newsletter and posted ont the AAA website http://www.aaanet.org for a number of months, and member comments were requested. While Smedley assumed authorship of the final draft, she received comments not only from the working group but also from the AAA membership and other interested readers. The paper above was adopted by the AAA Executive Board on May 17, 1998, as an official statement of AAA’s position on “race.”

    As the paper is considered a living statement, AAA members’, other anthropologists’, and public comments are invited. Your comments may be sent via mail or e-mail to Damon Dozier, Director of Public Affairs, American Anthropological Association, 2200 Wilson Blvd., Suite 600, Arlington, VA 22201, ddozier@aaanet.org.

  4. Yeah, neither of them play to the bases they see as responsible for them being elected. If a particular stand just happens to be either Constitutional and/or principled, it’s happy coincidence. It’s all just an illusion. The illusion of distinction and the illusion of choice.

  5. http://www.understandingrace.org/resources/pdf/rethinking/thompson.pdf

    Leroi’s defense is that race is “a
    shorthand that seems to be needed.” But in fact, there are better, more useful,
    more accurate ways to talk about our genetic inheritance than race; and ones
    that do not necessarily have “the problematic, even vicious, history of the word
    An Alternative Line of Thinking
    Where needed, a term and concept such as “lineage” would be preferable
    to “race.” I am not so naïve to believe that lineage could not be put to many of the
    same socially divisive and inhumane purposes that have haunted the history of
    the concept of race. A change in terminology is not going to fundamentally
    change all the conditions and impulses that accompany the horrors of race,
    ethnicity, nationalism and similar ideological schemes. But to me, lineage offers
    to be more useful than race for all of the reasons that Leroi outlines—descriptive,
    utilitarian and aesthetic.
    First and foremost, lineage is descriptively better than race. Race implies
    that everyone belongs to one and only one group. Everyone has two immediate
    lineages—from one’s mother and from one’s father. And one’s lineage multiplies
    with each receding generation. Considered in this way, one’s lineages
    emphasize the plural inheritances that make up each of us as an individual.
    Fractions (or rather, multiples) make sense in terms of lineage in a way that they
    do not in terms of race.

  6. Christopher Hayes ‏@chrislhayes 2m

    Lefties who say that “both parties are the same” should look at how each party responds to VRA decision. It will not be the same.

  7. The first link is a web site with many scholars discussion of race.
    The second is an excerpt of one of the many papers here.
    I will read a little more, and either build a bigger slingshot or lay it down.



    Analyzing the Cultural Dimension
    There are two basic problems with asserting “race is socially constructed.”
    The first is that it butts up against peoples’ deeply engrained sensibility that race
    is actually very real and palpable, something that they both experience and can
    “see.” Obviously, this is something that we want to disrupt, but we must also
    recognize that the profundity of this challenge often leads to it being resisted
    entirely rather than taken seriously. This links to the second problem: though this
    basic claim invokes the “social,” generally it involves a fairly meager elaboration
    of what and how culture matters in such perceptions. Most often, the assertions
    of social construction lead directly to claims that race is really just a “myth,” a
    form of false consciousness, or that it is entirely a function of racism. When the
    “social” dimension of this formulation is equated completely with racism, many
    whites entirely shut out this important message.

  8. Yes she did, thanks for the link SWM. The only problem with the list (considering that the the Republicans have been suppressing the vote for the last few years) is that it wasn’t long enough. The next couple of years on the voting laws front is going to be interesting.

    Ha! no doubt in my mind the governors in a dozen states made Anthony Weiner look like a piker when the decision was announced. LOL, NSA’s eyes must be bleeding. 🙂

    just sayn’

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