Thursday, November 21, 2019

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Maurice C. Daniels and Cameron Van Patterson

Excerpted from: Maurice C. Daniels and Cameron Van Patterson, (Re)considering Race in the Desegregation of Higher Education, 46 Georgia Law Review 521 (Spring, 2012) (168 Footnotes omitted)

 

As Professor Derrick Bell argues in his theory of interest-convergence, [b]lack rights are recognized and protected when and only so long as policymakers perceive that such advances will further interests that are their primary This principle speaks to the heart of what the social construction of race in America has always been about: the competing interests and intersecting economies of wealth, education, and power. Bell asserts that white institutions have not historically advanced the interests of African-Americans through integration or inclusion without accruing equal or greater benefit to themselves or their interests in the process.

Bell's argument is supported by the social history of race in the United States and the contemporary assault on affirmative action in favor of race-neutral admissions policies that, regardless of their intent, have a race-specific impact on underrepresented populations. Declining African-American admission rates at major public research institutions within the University of California system, for example, suggest that not considering race has a disproportionate and pejorative effect on African-American and Latino matriculation rates. Racial neutrality and the emphasis on diversity in contemporary discourse on race in higher education represent two aspects of an ahistorical strategy to evade the realities of race and class inequality in American society.

While increasing diversity enriches the academic environment and enhances the curricular aims of education, the legal and rhetorical emphasis on diversity sidesteps the more challenging social issues of race and class inequality. As a rationale for the Supreme Court's decision in Grutter v. Bollinger -a case involving the University of Michigan Law School-recourse to diversity allowed the majority to tacitly acknowledge racial inequality without explicitly addressing race. Instead, the narrowly tailored consideration of race was deemed permissible to the extent that it served the compelling institutional interests of the university, which sought to ensure the educational benefits inherent in having a diverse student body. This decision, along with the ruling in Gratz v. Bollinger-a case involving undergraduate admissions at the University of Michigan in which racial consideration was held to be in violation of the Fourteenth Amendment -set a legal precedent for subsequent cases like Parents Involved in Community Schools v. Seattle School District No. 1. In Parents Involved, the Supreme Court ruled that racial balancing could not be invoked as a compelling justification for the integration of schools, despite the public school districts' stated investment in preventing racial isolation and fostering racial diversity.

As these holdings reveal, it took just four years for the diversity defense of racial consideration to be nullified at the primary and secondary level. By narrowly delimiting its use as a last resort within the context of diversity, these decisions have effectively invalidated the consideration of race despite the fact that race continues to matter in determining access to opportunity, quality education, and socioeconomic resources. As Professor Eric Foner argues, the judicial shift toward emphasizing diversity as a rationale for affirmative action in admissions policies fails to capture the root causes of racial disparities in education, wealth, healthcare, and a variety of other social indicators. Moreover, the decision in Regents of the University of California v. Bakke established that the value of race-conscious policies designed to correct for racial inequalities by addressing past discrimination will not be recognized as a compelling interest warranting racial consideration unless couched within the rhetorical frame of a narrowly tailored policy emphasizing diversity. However, as a proxy for racial inequality, diversity is especially weak because it fundamentally ignores the original, corrective intent of affirmative action. Reliance upon the diversity defense of affirmative action reveals the extent to which support for racial justice and equality in higher education is contingent upon instances of interest-convergence in which white-American access to social, economic, and educational resources is not perceived to be significantly threatened or diminished by minority inclusion. Even in instances where this convergence occurs, racial consideration must be narrowly tailored to have the least possible impact on those who have benefited the most from the history of racial caste in America.

In effect, the selective consideration of race in American society amounts to a kind of convenient colorblindness, which ensures that a statistically insignificant number of individuals from underrepresented groups are granted access to the American opportunity structure of higher education and the social rewards generally associated with educational advancement. Conversely, the targeted consideration of race in the form of racial profiling and documented disparities in sentencing within the criminal justice system ensure that African-Americans are disproportionately overrepresented in correctional institutions. Furthermore, by allowing a few fortunate members of various racial minority groups to successfully matriculate through institutions of higher learning, those individuals can be lauded as exceptional examples of hard work and used as evidence against the existence of institutional racism.

In his article entitled Diversity's Distractions, Bell argues that the focus on diversity avoids directly addressing the barriers of race and class in higher education. He begins by asserting:

For at least four reasons, the concept of diversity, far from a viable means of ensuring affirmative action in the admissions policies of colleges and graduate schools, is a serious distraction in the ongoing effort to achieve racial justice: 1) Diversity enables courts and policymakers to avoid addressing directly the barriers of race and class that adversely affect so many applicants; 2) Diversity invites further litigation by offering a distinction without a real difference between those uses of race approved in college admissions programs, and those in other far more important affirmative action policies that the Court has rejected; 3) Diversity serves to give undeserved legitimacy to the heavy reliance on grades and test scores that privilege well-to-do, mainly white applicants; and 4) The tremendous attention directed at diversity programs diverts concern and resources from the serious barriers of poverty that exclude far more students from entering college than are likely to gain admission under an affirmative action program.

Focusing on the first two points of Bell's thesis, the rhetorical, legal, and political distraction of diversity represents a compromise between proponents and opponents of affirmative action that obfuscates the real questions surrounding racial representation in higher education: First, what constitutes merit? Second, how should merit be evaluated? And, finally, what compelling civic interests should govern decisions about who is granted access to the long-term socioeconomic benefits of higher education within the capitalist marketplace? The dictates of meritocratic capitalism, despite being socially constructed in ways that are antithetical to pure democracy, hinge upon a hierarchical value system to both perpetuate and justify social inequality. At the same time, racial disparities in America are exacerbated by a number of socioeconomic factors, including unequal access to economic and educational resources. In its original framing, affirmative action sought to address this problem. And while it did so imperfectly, the program made significant strides toward desegregation. The logic of decisions like the one reached in Gratz supports the assumption that considering race necessarily translates into a less or differently qualified minority applicant-as opposed to another white applicant-taking the admissions opportunity that might otherwise have gone, in that case, to Jennifer Gratz. This decision exemplifies what Bell and Professor Charles W. Mills describe as the ideological investment in whiteness as a propertied right in which access to socioeconomic opportunities like higher education inhere to white racial status. Within this paradigm, when Gratz was denied admission to the University of Michigan, her property rights were violated, and the university was found by the Supreme Court to be in breach of an invisible racial contract. Thus, Gratz's claim that she was entitled to admission could be verified by identifying an instance in which a less or differently qualified nonwhite applicant was admitted. The implication of this thinking and the Supreme Court's jurisprudence in this case suggest that [t]he current Court's concept of equal protection has essentially boiled down to supporting white plaintiffs who claim to be disadvantaged by affirmative

Such cases add to the prevailing misrepresentation of affirmative action as a reverse-racism policy that gives unqualified students of color an unfair advantage over their white counterparts. However, far from being a policy of unwarranted racial preference, affirmative action was designed and intended to allow for the consideration of race as a form of redress for past forms of racial discrimination that have contributed to present racial inequalities. This, rather than diversity, is the original justification for affirmative action, and for this reason-which has only become more relevant today-the attack on affirmative action has become a referendum on the existence of racism itself. Thus, proponents of affirmative action now have to prove that racism exists, while so-called reverse-discrimination is evidenced by the mere recognition of race or the consideration of racial inequality. But to take account of race while trying to mitigate the effects of [racism] cannot plausibly be seen as the moral equivalent of the discrimination that produced the subjugation of blacks in the first Due to the difficulty of proving explicit and institutional racist intent, proponents of affirmative action have been compelled to argue their position by appealing to the redeeming social and educational value of diversity. In his discussion of Grutter, Foner asserts,

Michigan's lawyers decided to emphasize not persistent racial inequality but the educational value of racial diversity. The diversity argument presents affirmative action not as a program that primarily aids minorities but as one that improves the educational environment, a more politically palatable case. But it runs the risk of suggesting that access for nonwhite students is desirable mainly because it enhances the educational experience of whites by exposing them to classmates from different backgrounds. Diversity is undoubtedly a worthy goal. But a single-minded focus on diversity deflects attention from the need to combat numerous inequalities . . . .

The selective (in)validation of the use of race in university admissions processes and in American society more broadly speaks to Bell's second point, which highlights the inconsistency with which race is applied and supports his theory of interest- convergence. Examining the terms and conditions under which race is considered reveals that even in the age of de jure, colorblind social policy, the idea of race is deployed strategically. Given Bell's critique of diversity as an argument for desegregation, we must seek to craft admissions policies that pragmatically and progressively confront the inextricably linked issues of race and class. Without such policies, racial disparities in education-whether or not they result from intended or explicit racial bias-will continue to plague institutions of higher learning. The erosion of affirmative action programs reveals that over the past twenty years the courts have adopted a strategy of racial disavowal that passively attempts to address racial disparities created by centuries of active racial discrimination. This problem is exacerbated by lingering forms of institutional racism and increasing levels of social inequality that make it challenging for a wide array of Americans from different racial backgrounds to afford college. Without an active initiative that considers race in relationship to class, the underrepresentation of African-Americans and other minorities in higher education could result in the de facto resegregation of public education in America.

Affirmative action needs reform, but to ignore race in college admissions altogether or treat diversity as a panacea for inequality is to invest in the illusion of a colorblind society. As James Baldwin wrote, [p]eople who cling to their delusions find it difficult, if not impossible, to learn anything worth Therefore, rather than ignoring race under a de jure policy that refuses to recognize the social efficacy of race in America, institutions of higher education entrusted with our collective public interests should develop holistic admissions policies that take a variety of academic, extracurricular, social, and personal criteria into consideration. As socially significant variables in an environment that is increasingly characterized by economic inequality and racial segregation, race and class are too important to disregard.

Vernellia R. Randall
Founder and Editor
Professor Emerita of Law
The University of Dayton School of Law

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