Applications Quest http://www.diversefair.com Wed, 21 Nov 2012 16:08:42 +0000 en-US hourly 1 http://wordpress.org/?v=3.4.2 ‘Merit Plea’ Inherently Racist as Argument Against Affirmative Action http://www.diversefair.com/?p=809 http://www.diversefair.com/?p=809#comments Wed, 21 Nov 2012 16:08:42 +0000 cmaadmin http://www.diversefair.com/?p=809 Source: Ibram H. Rogers, in DiverseEducation.com



As many of you know, the 6th U.S. Circuit Court of Appeals in Cincinnati on Thursday declared Michigan’s ban on affirmative action in college admissions to be unconstitutional.

With the U.S. Supreme Court recently hearing a case about affirmative action at the University of Texas and Oklahoma voters banning affirmative action, we thought affirmative action was about to die. But with this 8-7 court decision, it has leapt up from its deathbed, ready to live a longer life, ready to deepen the shallow pool of opportunity.

Supporters are energized, looking for ways to inject even more life into a revived affirmative action. Opponents are reeling, returning to their old fatal tactics, resorting to toxic racism to once again send affirmative action back to its deathbed.

Michigan Attorney General Bill Schuette, who supports the state’s ban, says, “Entrance to our great universities must be based upon merit.”

Whenever you hear someone (White or Black) oppose affirmative action with the “merit plea,” you are listening to racism. The notion that merit and affirmative action cannot coexist is predicated on racist beliefs and/or an inability or unwillingness to view societal racism in all of its nastiness.

The merit plea suggests the playing field is equal — racism in K–12 education is non-existent. Affirmative action is not leveling the seesaw, they argue; it is tipping the seesaw and merit is sliding off. The merit plea presupposes that inferior Black students do not enter “our great universities” based on their merit and that superior White students do.

George Washington, the Detroit lawyer who argued the case against the ban, called the merit plea the “big lie.”

“The big lie told by the supporters of Proposal 2 is that grades and test scores are a neutral means for judging merit,” he said. “But that system is openly biased against Black, Latino and Native-American applicants.”

The affirmative action ban, instituted in 2006, is openly biased, as well. It has succeeded in decreasing the number of Black students at the University of Michigan over the last six years.

In the fall of 2006, there were 1,709 Black students at the University of Michigan, according to the university’s common data set. Their numbers have steadily declined since then: 1,633 (2007), 1,640 (2008), 1,531 (2009), 1,214 (2010), and 1,212 (2011). I could not find a common data set for 2012. In contrast, the White student population has steadily risen during this same period: 16,840 (2006), 17,116 (2007), 16,508 (2008), 17,038 (2009), 17,970 (2010), and 18,038 (2011). This fall, a mere 5.2 percent of freshmen are Black — 323 this fall down from 374 in the fall of 2008.

Clearly, the affirmative action ban has been a boon for White students and doom for Black students at the University of Michigan. But to the Michigan attorney general, the ban “embodies the fundamental premise of what America is all about: equal opportunity under the law.” Schuette says he is “prepared to take the fight for quality, fairness and the rule of law to the U.S. Supreme Court.”

Affirmative action has been resuscitated in Michigan. But it is not safe. From now on, it will have to dodge the lethal merit pleas, sharpened in racism.

Dr. Ibram H. Rogers is an assistant professor of Africana Studies at the University at Albany — SUNY. He is the author of The Black Campus Movement: Black Students and the Racial Reconstitution of Higher Education, 1965-1972 (Palgrave Macmillan, 2012). ]]> http://www.diversefair.com/?feed=rss2&p=809 0 6th Circuit: Michigan’s Proposal 2 (banning affirmative action) unconstitutional http://www.diversefair.com/?p=806 http://www.diversefair.com/?p=806#comments Wed, 21 Nov 2012 16:06:22 +0000 cmaadmin http://www.diversefair.com/?p=806 Source: Michigan Daily News

The U.S. 6th Circuit Court of Appeals ruled en banc Thursday that Michigan’s voter-approved ban on affirmative action was unconstitutional.

The court issued an 8-7 decision to overturn a state ballot initiative — commonly known as Proposal 2, which was voted into law in 2006 — that banned the use of “preferential treatment” in state decisions regarding university admissions or employment on the basis of race, sex, color, ethnicity or national origin.

The ruling was made by all 15 judges on the 6th Circuit Court of Appeals, at the request of Michigan Attorney General Bill Schuette, a defendant in the case. A three-judge panel of the 6th Circuit Court of Appeals made an initial ruling against Proposal 2 in July 2011.

The majority ruled that the ban on the basis of race is a violation of the Equal Protection Clause of the 14th Amendment to the U.S. Constitution and therefore unconstitutional. The decision overturns a previous decision made by the U.S. District Court for the Eastern District of Michigan at Detroit, which ruled Proposal 2 to be constitutional.

The majority opinion was based on two primary arguments, rested on the argument that admissions decisions can be considered a part of the political process. Judge R. Guy Cole Jr. wrote for the majority, arguing that Proposal 2 is unconstitutional based on the fact that it primarily harms minorities by reordering the political process and placing undue burden on them.

“Because less onerous avenues to effect political change remain open to those advocating consideration of non-racial factors in admissions decisions, Michigan cannot force those advocating for consideration of racial factors to traverse a more arduous road without violating the Fourteenth Amendment,” Cole wrote. “We thus conclude that Proposal 2 reorders the political process in Michigan to place special burdens on minority interests.”

Law Prof. Mark Rosenbaum, who helped argue the case on behalf of the plaintiffs, said he was overwhelmed by the decision and excited about its implications.

“It’s a landmark civil rights issue,” Rosenbaum said. “It is not about the constitutionality of affirmative action; it is a bigger story than that. It’s about access to the political process. It is about whether or not a popular initiative can cut minorities — people of color — out of the political process.”

Rosenbaum said even if the defendants, including Schuette, appeal the decision, the ruling will take immediate effect, meaning the University could choose to use race as a factor in admissions decisions.

In a statement, Schuette said he intends to appeal the decision to the U.S. Supreme Court on the basis that the Michigan Civil Rights Initiative — the amended section of the constitution that effectively banned affirmative action — is not only constitutional, but also approved by a majority of Michigan voters.

“MCRI embodies the fundamental premise of what America is all about: equal opportunity under the law,” Schuette said. “Entrance to our great universities must be based upon merit. We are prepared to take the fight for quality, fairness and the rule of law to the U.S. Supreme Court.”

In order to have the case heard at the Supreme Court level, Schuette must file a petition of certiorari within 90 days of Thursday’s decision.

In his dissenting opinion, Judge Danny Boggs drew on the fact that Proposal 2 was enacted by voters to make his case.

“We have the citizens of the entire state establishing a principle that would, in general, have seemed laudable,” Boggs wrote.

Boggs also wrote in the dissent that the majority’s case was a stretch and relied on tenuous precedent.

He responded to the majority’s assertion that admissions decisions fall within the jurisdiction of political processes, contending that such an argument does not have historical backing and that Proposal 2 is inherently not discriminatory.

“Under these circumstances, holding it to be a violation of equal protection for the ultimate political authority to declare a uniform policy of non-discrimination is vastly far afield from the Supreme Court precedents,” Boggs wrote.

In a statement, University spokesman Rick Fitzgerald said the University is reviewing the decision, but because there are multiple lengthy opinions, it could take some time to fully understand the ruling’s implications.

George Washington, an attorney for By Any Means Necessary — a pro-affirmative action group that helped argue the case before the court — said he would like to see a turnaround from the drop in minority enrollment as a result of the decision.

“It is a tremendous victory for black and Latino students and for the movement that fought for affirmative action for many years,” Washington said. “It means that thousands of black, Latino and Native American students who would not have the chance to go to our most selective colleges will now have that chance.”

Residential College Prof. Carl Cohen, a leading proponent of Michigan’s Proposal 2, said the majority opinion is incorrect in its assertion that Proposal 2 violates the Equal Protection Clause because it places an undue burden on those who seek preference, adding that the opinion is based on ludicrous, circuitous logic.

“The argument upon which the 6th Circuit Court of Appeals based its reversal is absolutely unbelievable,” Cohen said. “That’s really acrobatic, that the constitutional amendment that says you may not give preferences violates the constitutional amendment that says you may not give preference.”

Daily News Editor Andrew Schulman and Daily Staff Reporter Peter Shahin contributed to this report.]]> http://www.diversefair.com/?feed=rss2&p=806 0 Justices Weigh Race as Factor at Universities http://www.diversefair.com/?p=803 http://www.diversefair.com/?p=803#comments Wed, 21 Nov 2012 15:45:42 +0000 cmaadmin http://www.diversefair.com/?p=803 Source: New York Times

WASHINGTON — With the future of affirmative action in higher education hanging in the balance, the Supreme Court on Wednesday grappled with two basic questions, repeated by Chief Justice John G. Roberts Jr. in various forms at least a dozen times.

He wanted to know how much diversity was enough. And he wanted to know when colleges would be able to achieve an acceptable level of diversity without using racial preferences.

“What is the critical mass of African-Americans and Hispanics at the university that you are working toward?” Chief Justice Roberts asked a lawyer for the University of Texas at Austin. The chief justice never received a specific answer from the university’s lawyer or from one representing the federal government.

Their reluctance to answer illuminated a tension in the court’s precedents, which reject quotas but allow public universities to use race in admissions decisions as but one unquantifiable factor among many.

Had the lawyers responded to the chief justice by proposing a percentage goal, they would have run headlong into cases prohibiting quotas. In failing to offer a number, though, they left the court with very little to do in the face of precedents requiring judges to look closely whenever the government draws distinctions among people based on race.

“You won’t tell me what the critical mass is,” Chief Justice Roberts told the university’s lawyer, Gregory G. Garre. “How am I supposed to do the job that our precedents say I should do?”

The questioning on Wednesday from the chief justice and his colleagues was by turns caustic, exasperated and despairing.

Justice Sandra Day O’Connor, who retired in 2006, attended the argument and listened attentively as her former colleagues debated whether to reaffirm, limit or overturn one of her legacies, her majority opinion in Grutter v. Bollinger, the 5-to-4 decision in 2003 that allowed public universities to take account of race as part of a “holistic review.”

Her replacement by Justice Samuel A. Alito Jr., who has been hostile to affirmative action programs, may have altered the balance on the court on whether such admissions programs are constitutional.

The member of the court who now probably holds the decisive vote, Justice Anthony M. Kennedy, tipped his hand only a little, asking a few questions that indicated discomfort with at least some race-conscious admissions programs.

Those questions, along with his voting record, suggested that Justice Kennedy may be prepared to limit the Grutter decision. He told Mr. Garre that he was uncomfortable with the university’s efforts to attract minority students from privileged backgrounds.

“What you’re saying,” Justice Kennedy said, “is that what counts is race above all.”

He asked a lawyer for Abigail Fisher, a white woman who was denied admission to the university and who filed the lawsuit before the justices, whether the modest racial preferences used by the university crossed a constitutional line. Then he proposed an answer to his own question.

“Are you saying that you shouldn’t impose this hurt or this injury, generally, for so little benefit?” he asked.

Justice Sonia Sotomayor summarized the central question in the case, echoing Chief Justice Roberts. “At what point — when — do we stop deferring to the university’s judgment that race is still necessary?” she asked. “That’s the bottom line of this case.”

In the 2003 decision, Justice O’Connor wrote that she expected it to stand for 25 years. “I know that time flies,” Justice Stephen G. Breyer said on Wednesday, “but I think only nine of those years have passed.”

By the conclusion of the argument, it seemed tolerably clear that the four members of the court’s conservative wing were ready to act now to revise the Grutter decision.

The court’s more liberal members said there was no reason to abandon the earlier framework. “What is it we’re going to say here that wasn’t already said in Grutter?” Justice Breyer asked.

Justice Elena Kagan disqualified herself from the case, Fisher v. Texas No. 11-345, presumably because she had worked on the case as solicitor general. That leaves open the possibility of a 4-to-4 tie, which would have the effect of affirming a lower-court decision upholding the Texas program.

Ms. Fisher, 22, recently graduated from Louisiana State University and works as a financial analyst in Austin, Tex. Her lawyer, Bert W. Rein, was questioned closely by the more liberal justices about whether she suffered the sort of injury that gives her standing to sue.

They also pressed the point that the Texas program should pass muster under the 2003 decision. “It seems to me that this program is no more aggressive than the one in Grutter,” Justice Ruth Bader Ginsburg said. “In fact, it’s more modest.”

Three-quarters of applicants from Texas are admitted to the university under a program that guarantees admission to the top students in every high school in the state. That program, which has produced substantial diversity, is not directly at issue in the case.

Students from Texas who missed the cutoff, like Ms. Fisher, and those from elsewhere are considered under standards that take account of academic achievement and other factors, including race and ethnicity.

Mr. Garre said the percentage program worked to create diversity only because “by and large, the minorities who are admitted tend to come from segregated racially-identifiable schools.” Justice Alito responded by questioning a passage in Mr. Garre’s brief, in which he told the justices that the university should be free to supplement that pool with more privileged minority students, thus “increasing diversity within diversity.”

“I thought that the whole purpose of affirmative action was to help students who come from underprivileged backgrounds,” Justice Alito said.

Justice Kennedy also seemed taken aback by the approach. “You want underprivileged of a certain race and privileged of a certain race,” Justice Kennedy told Mr. Garre. “So that’s race.”

A decision forbidding the use of race at public universities would almost certainly mean that it would be barred at most private ones as well under Title VI of the Civil Rights Act of 1964, which forbids racial discrimination in programs that receive federal money.

Justice Sotomayor told Mr. Rein, the lawyer representing Ms. Fisher, that she sensed an agenda. “You don’t want to overrule Grutter,” she said. “You just want to gut it.” ]]> http://www.diversefair.com/?feed=rss2&p=803 0 With Affirmative Action, India’s Rich Gain School Slots Meant for Poor http://www.diversefair.com/?p=788 http://www.diversefair.com/?p=788#comments Wed, 21 Nov 2012 15:16:40 +0000 cmaadmin http://www.diversefair.com/?p=788 Source: New York Times

CHENNAI, India — The two women both claim that affirmative action cost them coveted spots at elite public universities. Both cases have now reached the Supreme Court.

One of the women, Abigail Fisher, 22, who is white, says she was denied admission to the University of Texas based on her race, and on Wednesday, the United States Supreme Court is to hear her plea in what may be the year’s most important decision. The other woman is from the southern Indian state of Tamil Nadu, and two weeks ago the Indian Supreme Court ordered that she be admitted to medical school pending the outcome of a broader court review.

“When I came to know that I could not get into any medical college, I was really shocked,” C. V. Gayathri, the Indian student, said in an interview. “I didn’t speak to anyone for a week. I cried. I was very depressed.”

Though the outlines of the two cases are similar, differences between how the world’s two largest democracies have chosen to redress centuries of past discrimination are striking. While affirmative action in the United States is now threatened, the program in India is a vast system of political patronage that increasingly works to reward the powerful rather than uplift those in need.

Indeed, the caste-based affirmative action here raises questions for nations like Brazil and Malaysia that have adopted anti-discrimination programs that are in some ways similar to India’s. Without diligent judicial oversight, experts say, the efforts can help perpetuate inequality rather than redress it.

In Tamil Nadu, for instance, 69 percent of university admissions are now set aside for what the state has determined to be “backward castes.” Many of those favored with these set-asides have controlled Tamil Nadu’s government and much of its resources for generations, but they claim special status by pointing to a caste survey done in 1931. (Ms. Gayathri, 17, is a Brahmin whose parents are civil servants with modest incomes.)

Five prominent university officials in Tamil Nadu said in interviews that those given set-asides at their institutions were generally the children of doctors, lawyers and high-level bureaucrats. The result is that rich students routinely get preference over more accomplished poor ones who do not happen to belong to the favored castes. None of the officials would allow their names to be used for fear of angering the government ministers who benefit politically and personally from the program.

India’s caste system was created nearly 1,500 years ago to organize occupations in a feudal agricultural society. Those at the bottom of the system, now known as Dalits, were forbidden in some places from even allowing their shadows to fall on those at the top, known as Brahmins. Most castes were deemed “backward,” which meant that they were consigned to menial jobs.

Over the last 30 years, however, India’s economy has been transformed, much of its populace has moved from villages to sprawling cities, and once distinct castes have been scrambled. That has led to the erosion of historic differences in education and increased income mobility within castes in India, recent studies have found.

“Caste is no longer an economic restriction,” said Viktoria Hnatkovska, an assistant professor of economics at the University of British Columbia, and a co-author of several studies on the changing role of caste in India.

Nonetheless, quotas have transformed the taint of “backwardness” into a coveted designation.

The Gujjars of Rajasthan, for instance, held violent riots two years ago to protest the government’s refusal to declare them as “most backward.” Politicians win elections in India by promising to bestow this one-time curse, which has led to a dramatic expansion in those considered backward decades after the designation had true economic meaning.

Indeed, caste awareness among the young is sustained in part because of set-asides, so a program intended to eliminate the caste system is now blamed by many for sustaining it.

“When I was filling out my college application forms, there was this box for caste,” said Sneha Sekhsaria, 25, of Calcutta. “I had to ask my dad what our caste was, and he had to think about it for 15 minutes before telling me that we were in the general category.”

The general category meant that she received no preference, a fact that Ms. Sekhsaria blames for her failure to qualify for medical school. She went to dental school instead.

“Being a doctor was always my dream, but I got a dental degree instead and that’s O.K.,” she said.

But she remains bitter that some of her friends who scored more poorly than she did on entrance exams were able to become doctors even though she and others in her circle were entirely unaware that they were “backward.”

Nonetheless, the benefits that flow from caste quotas have made them popular, and supporting them is one of the few issues on which the present government and its opposition agree. Within the next few months, the Indian Parliament is expected to overwhelming approve a constitutional amendment that would allow caste-based quotas not just in educational settings and in government hiring but also in government promotions.

The Supreme Court has repeatedly tried to curtail the scope of caste quotas, but the Parliament has passed amendments in response to protect and even expand them. The court has ruled that quotas should not exceed 50 percent of university admissions, but Tamil Nadu has ignored this restriction and a case challenging the state’s larger quota has been pending since 1994.

In the meantime, the court has ordered the state to provide extra slots to at least some students who contest the higher quotas, including Ms. Gayathri, who has been admitted to Tirunelveli Medical College. In an interview, Salman Khurshid, India’s law minister and minister for minority affairs, said that wealthy beneficiaries of caste quotas should acknowledge that they no longer need set-asides and voluntarily bow out of the system.

Some rules forbid the wealthy — or “creamy layer” — from taking advantage of quotas, but those rules have not been implemented in many states and are widely ignored in others.

D. Sundaram, a retired professor of sociology from Madras University and a longtime member of Tamil Nadu’s now-disbanded Backward Classes Commission, defended the state’s quotas by saying that even three generations of wealth and power cannot reverse centuries of backwardness.

“The system has not been in place long enough,” Dr. Sundaram said.

To be sure, many Dalits and people from tribal backgrounds are still overwhelmingly poor, and even many critics of India’s caste-based quotas acknowledge that set-asides for them may still be worthy.

Ravi Kumar, general secretary of a Dalit political party in Tamil Nadu, agreed that many of those who benefit from the state’s vast caste-based quotas are wealthy and powerful. But his party supports quotas, also known as reservations, for the wealthy “because if we opposed them they would stop all reservations,” Mr. Kumar said.

Pratap Bhanu Mehta, president of the Center for Policy Research in New Delhi, said that caste-based quotas will gradually become less important as the quotas themselves make public universities less attractive to the most talented students. “The talented people will simply migrate away,” he said.

But that is no comfort to Ms. Sekhsaria, whose family ended up spending tens of thousands of dollars to send her to a private dental school after she was turned down for a government medical school, where the fees are modest.

“Of the thousands of reasons to hate the government, reservations is definitely one of them,” she said.

Niharika Mandhana contributed reporting from Chennai and New Delhi.

This article has been revised to reflect the following correction:

Correction: October 9, 2012

An article on Monday about unintended effects of caste-based antidiscrimination efforts in India included an imprecise comparison among such efforts in other countries. Questions have been raised for nations like Malaysia and Brazil by the similarities between their antidiscrimination efforts and those of India, not those of the United States.]]> http://www.diversefair.com/?feed=rss2&p=788 0 U. of Texas Aims at Supreme Court’s Likely Swing Vote in Defending Race-Conscious Admissions http://www.diversefair.com/?p=776 http://www.diversefair.com/?p=776#comments Tue, 07 Aug 2012 11:01:37 +0000 cmaadmin http://www.diversefair.com/?p=776 Source: Peter Schmidt, Chronicle of Higher Education

Washington—The University of Texas at Austin is defending race-conscious admissions before the U.S. Supreme Court with arguments that explicitly seek to win over Justice Anthony M. Kennedy, widely regarded as the court’s swing vote on the issue.

In a brief submitted to the court on Monday, the university focuses much of its energy on offering Justice Kennedy assurances that the policy is distinct from one he found troublesome when the Supreme Court last weighed in on such admission practices, in 2003.

More broadly, the university argues that its policy exemplifies the type that the Supreme Court approved in its previous decisions on affirmative action, and accuses those challenging its admission policy as unconstitutional of seeking to overturn 35 years’ worth of Supreme Court precedents dealing with colleges’ consideration of the race or ethnicity of applicants.

The brief argues that Abigail Noel Fisher, the rejected Texas applicant who filed the lawsuit now before the court, “really is just asking this court to move the goal posts on higher education in America.” It argues that a Supreme Court decision to overrule, or effectively gut, past court decisions allowing race-conscious admissions “would jeopardize the nation’s paramount interest in educating its future leaders in an environment that best prepares them for the society and work force they will encounter.”

In a videotaped announcement that the brief had been filed, William C. Powers Jr., the flagship campus’s president, said, “We’re confident that we’ll prevail in this case, and that this will bring benefit to American higher education and to our nation and to the State of Texas.”

The Supreme Court is scheduled to hear oral arguments in the case, Fisher v. University of Texas at Austin (No. 11-345), in October. One its more liberal members, Justice Elena Kagan, has recused herself, having been involved in her previous position as U.S. solicitor general in the Obama administration’s submission of a brief supporting Texas when the case was before the U.S. Court of Appeals for the Fifth Circuit.

Of the court’s eight remaining members, four—Chief Justice John G. Roberts Jr. and Justices Samuel A. Alito Jr., Antonin Scalia, and Clarence Thomas—are regarded as so skeptical of race-conscious government policies they probably will seek to abandon the court’s 2003 Grutter v. Bollinger decision, which declared that narrowly tailored race-conscious admission policies can serve a compelling government interest. Three others, Justices Stephen G. Breyer, Ruth Bader Ginsburg, and Sonia Sotomayor, are seen as likely to fully support Texas.

Justice Kennedy stands out as a swing vote because in the Grutter decision he accepted the idea that such policies provide educational benefits that serve a government interest, but rejected the policy at issue, from the University of Michigan’s law school. In the separate dissent he penned as part of the court’s 5-4 Grutter ruling, Justice Kennedy argued that the Michigan law school gave too much weight to race for its policy to be considered narrowly tailored. He accused the law school of using race as “an automatic factor” in most admission decisions. Citing evidence that the law school’s admissions officers consulted daily reports breaking down the racial composition of each incoming class, he argued that the school was using “numerical goals indistinguishable from quotas,” which the Supreme Court had struck down in 1978 ruling in Regents of the University of California v. Bakke, involving a medical school.

The brief that the University of Texas filed on Monday said its policy “lacks the features that Justice Kennedy found disqualifying in Grutter: It is undisputed that UT has not established any race-based target; race is not assigned any automatic value; and the racial or ethnic composition of admits is not monitored during the admissions cycle.”

Texas’s brief accuses Ms. Fisher’s lawyers, who submitted their own brief to the court in May, of going back on factual concessions they had previously made in the case by freshly accusing Texas of trying to strike a particular racial balance in its enrollment. The university says that it considered the state’s demographic breakdown only in considering whether black or Hispanic students were underrepresented on the Austin campus, and that the way its admission process is structured precludes any attempt to pass decisions on applications with race- or ethnicity-based enrollment targets in mind.

In response to arguments by Ms. Fisher’s lawyers that the court should consider overturning Grutter, the university argues that a court decision to change its stand after just nine years “would upset legitimate expectations in the rule of law,” not to mention society’s interest in training America’s future leaders in a diverse campus environment. The university accuses Ms. Fisher’s lawyers of improperly raising an issue that had not been before the lower courts and was beyond the scope of its request that the Supreme Court hear the case.

Much of the university’s brief is devoted to countering the other side’s argument that the university had been achieving sufficient levels of diversity through a race-neutral means, a state law guaranteeing admission to any public university to young Texans in the top tenth of their high-school class.

Such an argument, it says, “ignores the importance of diversity among individuals within racial groups” and the educational benefits of considering individual applicants’ race to ensure that, for example, it can enroll minority students from relatively advantaged backgrounds who can help break down stereotypes. ]]> http://www.diversefair.com/?feed=rss2&p=776 0 Texas Lawsuit Complicates Presidential Race http://www.diversefair.com/?p=770 http://www.diversefair.com/?p=770#comments Wed, 01 Aug 2012 14:19:37 +0000 cmaadmin http://www.diversefair.com/?p=770 Source: Chronicle of Higher Education.com

Being rejected by the University of Texas at Austin has not kept Abigail Noel Fisher from having a big influence on the nation’s affairs. Her lawsuit challenging Texas’ race-conscious undergraduate admission policy has landed at the U.S. Supreme Court just in time to inject the politics of affirmative action into this year’s presidential campaigns.

Read more at chronicle.com]]> http://www.diversefair.com/?feed=rss2&p=770 0 2 complaints about racial bias at TJ high school take different tacks http://www.diversefair.com/?p=772 http://www.diversefair.com/?p=772#comments Thu, 26 Jul 2012 10:57:45 +0000 cmaadmin http://www.diversefair.com/?p=772 Source: Emma Brown, Washington Post

Nine years ago, law professor Lloyd Cohen filed a federal civil rights complaint alleging racial discrimination in admissions to Fairfax County’s prestigious Thomas Jefferson High School for Science and Technology.

But he didn’t argue that the system was biased against black and Latino students, as the Fairfax chapter of the NAACP and a local advocacy group alleged in a similar complaint filed Monday with the Department of Education. African American and Latino students make up 4 percent of the rising freshmen at Thomas Jefferson, or TJ, but make up 32 percent of the county’s entire student body.   Instead, Cohen contended that it was white students who were losing out, the deck stacked against them as the school system sought to boost black enrollment at the high-flying school.   Fairfax officials reject that accusation. The school system “was not discriminating against whites in the admissions process,” spokesman John Torre wrote in an e-mail.

Federal authorities ruled on Cohen’s complaint in a letter dated May 25. Apologizing for the “substantial delay” in responding, they said that school systems may legally consider race in admissions decisions — but in the case of TJ, they “did not find sufficient evidence that race was a factor in admissions” between 2000 and 2004, the period in question.

Cohen, a father of three Fairfax graduates — including two TJ alumni — filed an appeal in early June. So, now, federal authorities are faced with two civil rights complaints — each based on a different perspective on who is losing out in the battle to attend TJ and each a sign that the vaunted Fairfax school occupies a special role as a lightning rod for arguments about race, equity and opportunity.

“The community believes in the value of Thomas Jefferson,” said Ilryong Moon (At Large), chairman of the county School Board. “That is why a lot of people are taking an interest, rightfully so.”

Cohen’s complaint was distilled from a long article he wrote in 2003 for the Albany Law Review, in which he used statistical tools and other information to analyze TJ admissions decisions made in 2002.

That year, 11 black students made it into a pool of about 800 semifinalists based on the strength of their grades and scores on a math admissions test. Ten of them — including some who scored lower than white students who were rejected — were admitted after teacher recommendations and essays were considered.

According to Cohen’s analysis, black students were substantially more likely to be admitted than white students with similar credentials. Hispanic and Asian students also had an advantage over their white counterparts, he wrote, although a smaller one.

“The true purpose of the current admissions regime is to engage in invidious racial discrimination,” Cohen wrote.

His argument triggered a response from then-Superintendent Daniel Domenech, who called Cohen’s accusations “offensive and untrue,” and it touched off a firestorm at TJ and across Fairfax.

Cohen said he was working from a basic set of principles to which he still adheres.

“I have very simple values in this regard,” Cohen said in an interview Tuesday. “No government institution should discriminate against people based on race. They shouldn’t do it implicitly; they shouldn’t do it explicitly. They shouldn’t do it.”

In response to Cohen’s complaint, Education Department authorities analyzed five years of admissions data — from 2000 to 2004. Using a different set of statistical tools, they came to a different conclusion: There was no significant disparity between admission rates for black vs. white students.

The federal authorities also reviewed TJ admission policies and said they found no evidence that race was a factor, a claim that Cohen rejects.

In 2002, committees making admissions decisions were told in written guidelines that “standardized testing for minority students does not necessarily reflect their abilities” and that other factors, including teacher recommendations and essays, should be considered as indicators of success.

That reference to race was deleted in 2004 when the admissions process was overhauled. Since then, the population of black and Latino students has remained essentially unchanged and disproportionately low, triggering Monday’s complaint that the school system has systematically discriminated against those students.

That complaint, authored largely by former School Board member Tina Hone, alleges that the discrimination begins in elementary school through the underidentification of black and Latino kids for gifted-education programs.

Even as the population of those two minority groups has stayed stable, the proportion of white and Asian students has shifted dramatically.

Five years ago, white students made up 52 percent of the rising freshmen admitted to TJ, while Asian students accounted for 38 percent. By this year, those numbers had flipped: Of the ninth-graders entering TJ next year, 26 percent are white and 64 percent are Asian.

Meanwhile, Asians are only 19 percent of the county’s total student body.

Moon, the School Board chairman, said he hasn’t analyzed the reasons for the growing number of successful Asian applicants. But many of those students, he said, might have parents with backgrounds in math and science who encourage their kids to excel in those fields.

Moon said he doesn’t think that there is racial discrimination at work in TJ admissions. The board will weigh the concerns voiced by community members with advice from school system staff members as it moves forward with a decision on whether and how to tweak the admissions process, he said.

“I believe in the value of diversity,” he said. “If the student population does not reflect the diversity of the county, we certainly need to do a better job. At the same time, that doesn’t mean we’re going to diminish the rigor and the standards and the quality of students at TJ.”]]> http://www.diversefair.com/?feed=rss2&p=772 0 Diversity’s Evidences http://www.diversefair.com/?p=763 http://www.diversefair.com/?p=763#comments Tue, 17 Jul 2012 19:31:28 +0000 cmaadmin http://www.diversefair.com/?p=763 Source: Len Niehoff in Inside Higher Ed

This fall, the United States Supreme Court will consider the case of Fisher v. University of Texas, which asks whether that university’s use of affirmative action in admissions passes constitutional muster. I served on the legal team that defended the University of Michigan Law School admissions policy in Grutter v. Bollinger, where the Supreme Court held that fostering a racially diverse student body is a compelling state interest that colleges and universities can pursue in a narrowly tailored way. I believed that the Court correctly decided Grutter when I was helping to litigate the case, but I believe it even more firmly in my newer role as a law school faculty member.

For a number of technical reasons, it seems unlikely that the Supreme Court will treat Fisher as an occasion to revisit Grutter. If the Court does do so, however, then it should let Grutter stand.  The reason is simple: The primary reason to leave Grutter alone is that the Court there got it exactly right.

Grutter recognized that having a diverse student body serves a variety of important educational objectives. One of those objectives can be described syllogistically: personal characteristics help determine our experiences; our experiences inform our thoughts and perspectives; therefore, having students with a wide array of personal qualities helps enrich the educational environment by infusing it with a rich variety of ideas and points of view. Of course, a diverse student body serves other educational goals as well, for example, by challenging stereotypes and building cross-cultural understanding. But the heart of the Grutter decision rests on an understanding of the unique value of learning in an environment where we encounter people whose characteristics, experiences, and perspectives differ from our own.

For many years, I have seen the benefits of having a diverse student body in one of the courses I teach — Legal Ethics. This seems unremarkable in light of the fact that the discussion of ethical matters tends to draw out the philosophical, religious, cultural, and experiential differences among the participants.  It is therefore unsurprising that I have witnessed many lively exchanges in that class between students who brought dramatically contrasting orientations to the questions at hand.

Perhaps more surprising are the benefits of having a diverse student body in another course I teach — Evidence. In this class, students learn the principles that determine whether a document, object, or witness’s testimony will be admitted at trial for consideration by the jury. Evidence is what law students sometimes call a “rulesy” course and it does not put variations in individual identity, experience, perspective, or conscience on display in the same obvious way as a course on ethics.  And, yet, in my evidence class those variations push their way to the surface repeatedly and unexpectedly.

Sometimes this results from an aspect of a student’s background that does not seem particularly significant or self-defining. Consider, for example, an incident that occurred when my evidence class was studying a doctrine that allows non-expert layperson witnesses to testify to their opinions on certain matters. The rules limit such testimony to the sorts of educated guesses we make in everyday life: How far is it from here to there? How fast was the car going? Is that person drunk?

To explore with my students our capacity to make such inferences based on our experiences, I conduct a simple experiment. I produce two unlabeled cups containing soft drinks and ask for a volunteer to take a sip from each and tell us which contains Coke and which Pepsi. Every year, almost all of the students in the class says they can do this; every year, the student who volunteers to try succeeds.

One year, however, my student volunteer did something unexpected. She came to the front of the class, glanced at the cups, and said confidently: “I can tell by the smell.” She picked up one cup; sniffed it; and correctly declared that it contained the Pepsi. Her fellow students burst into applause. She explained that she had worked in a restaurant that served both products and that she had acquired this skill so she could help out on those occasions where the waitperson who had poured the beverages lost track of which was which.

This immediately led to an interesting debate: Was this student a layperson offering an educated guess based on her personal experience or an expert offering an informed opinion based on her specialized knowledge? For a variety of reasons, this distinction matters under the rules of evidence. This student had shown — much more clearly and memorably than I could have done by lecturing about it — that under some circumstances the distinction is very fine indeed, and perhaps even vanishes.

In many other instances, a more self-definitive characteristic that a student possesses has ended up shaping their contribution to the classroom discussion in a poignant and powerful way. I recall, for instance, one day when we were working through a problem that involves the hearsay doctrine. In very general terms, that doctrine prohibits witnesses from repeating things in court that were said outside of court. Students often find the doctrine maddeningly complicated.

Part of the doctrine’s complexity arises from the fact that it is subject to dozens of exceptions. This includes exceptions for statements that were made under stress or excitement and for statements that describe an event and were made while or right after the event was occurring. These exceptions rest in part on the assumption that statements made under these circumstances are typically less calculated and therefore more reliable.

We were discussing a scenario — based on an actual case — that presented the question of whether the tape of a phone call to a 911 operator should be admissible. In the tape, a woman who lived in an apartment building reported that several large dogs, owned by one of her neighbors, were attacking another neighbor in the hallway. The caller described the dogs, the people who owned them and were trying unsuccessfully to restrain them, and the location and severity of the attack. During the entire call, the woman remained in her apartment with the door closed.

I had taught this scenario for many years and the discussion consistently played out along the same lines. The students would recognize that the tape presented a hearsay problem. They would identify the exceptions discussed above as potentially applicable. And then they would spot a difficulty in applying those exceptions: because the woman listened to the commotion through her door and never left her apartment, she arguably did not have personal knowledge about the matters she was describing. This is how the discussion always had gone; this is how it always had ended.

On this occasion, however, a student raised his hand just as we were about to move on. “I’m sorry,” he said, “but I disagree with the conclusion. You’ve all wrongly assumed that you need to see something to have personal knowledge about it. This woman knew what her neighbor’s dogs sounded like. She could hear that they were attacking someone. She could recognize her neighbors’ voices. She could tell where the sounds were coming from. Granted, she didn’t see anything. But she certainly had personal knowledge of what was happening.”

The class sat in stunned silence. Of course, this student was right. He also happened — not incidentally — to be blind.

When the Supreme Court decided Grutter in 2003, race mattered. It shaped experience in myriad and unique ways. It informed perspectives, ideas, and opinions. It still does.

As a practicing lawyer, I have argued that institutions of higher education have a compelling interest to admit a diverse student body based upon legal principles and social science. As a faculty member, I now make the same argument based upon my experience. Indeed, I have come to believe that Grutter is wise and right in ways that I did not even understand when I was busy working on it.

I have seen the evidence.
Read at insidehighered.com
]]> http://www.diversefair.com/?feed=rss2&p=763 0 Asian-American group urges Supreme Court to bar race-conscious admissions http://www.diversefair.com/?p=759 http://www.diversefair.com/?p=759#comments Thu, 31 May 2012 22:16:08 +0000 cmaadmin http://www.diversefair.com/?p=759 by Scott Jaschick, Inside Higher Ed

WASHINGTON — A brief filed Tuesday with the U.S. Supreme Court seeks to shake up the legal and political calculus of a case [1] that could determine the constitutionality of programs in which colleges consider the race or ethnicity of applicants. In the brief, four Asian-American organizations call on the justices to bar all race-conscious admissions decisions, arguing that race-neutral policies are the only way for Asian-American applicants to get a fair shake.

Much of the discussion of the case has focused on policies that help black and Latino applicants. And the suit that has reached the U.S. Supreme Court was filed on behalf of a white woman, Abigail Fisher, who was rejected by the University of Texas at Austin.

But the new brief, along with one recently filed on behalf of Fisher [2], say that the policy at Texas and similar policies elsewhere hurt Asian-American applicants, not just white applicants. This view runs counter to the opinion of many Asian-American groups that have consistently backed affirmative action programs such as those in place at Texas.

It is impossible to know how much weight the Asian-American issue will have with the justices. But the briefs have renewed a debate about who benefits — and who loses — from race-conscious admissions. While the briefs portray Asian Americans as victims of affirmative action, other Asian-American groups are planning a brief backing affirmative action, and some experts on Asian-American educational trends caution that the new briefs have oversimplified a complicated issue, identifying the wrong culprit and ignoring the benefits some Asian Americans receive from affirmative action. Generally, those Asian-American leaders backing affirmative action stress the significant diversity among Asian-American students in the United States — including many recent immigrants who are not achieving instant academic success.

The case before the Supreme Court challenges the right of UT-Austin to consider race and ethnicity when it has been able to achieve some levels of diversity in the student body through a race-neutral means: the “10 percent” law that has assured all graduates in the top 10 percent of high schools in the state admission into any public university in the state. The university maintains that it should have the right to use other measures as well, and two lower courts have backed that position. Fisher’s lawyers disagree.

One test the Supreme Court has set for race-conscious decisions by public entities is that such efforts must be “narrowly tailored,” and the briefs focused on Asian-American applicants appear to suggest that the Texas program cannot meet that test in part because the programs are (in the plaintiff’s view) hurting some minority students to help others.

The brief filed Tuesday on behalf of Asian-American groups Tuesday focused less on the Texas admissions policy than on the consideration of race generally in college admissions. “Admission to the nation’s top universities and colleges is a zero-sum proposition. As aspiring applicants capable of graduating from these institutions outnumber available seats, the utilization of race as a ‘plus factor’ for some inexorably applies race as a ‘minus factor’ against those on the other side of the equation. Particularly hard-hit are Asian-American students, who demonstrate academic excellence at disproportionately high rates but often find the value of their work discounted on account of either their race, or nebulous criteria alluding to it,” says the brief.

It was filed on behalf of the 80-20 National Asian-American Educational Foundation, the National Federation of Indian American Associations, the Indian American Forum for Political Education, the Global Organization of People of Indian Origin and the Louis D. Brandeis Center for Human Rights Under Law. (The latter group focuses on discrimination against Jewish Americans, and the brief argues that today’s admissions policies have the same impact on Asian-American applicants as previous generations’ policies had on Jewish applicants.)

The brief focuses heavily on research studies such as the work that produced the 2009 book, No Longer Separate, Not Yet Equal: Race and Class in Elite College Admission and Campus Life [3] (Princeton University Press), which argued that — when controlling for various factors — one could find the relative “advantage” in admissions of members of different ethnic and racial groups. [4]

The book suggested that private institutions essentially admit black students with SAT scores 310 points below those of comparable white students. And the book argued that Asian-American applicants need SAT scores 140 points higher than those of white students to stand the same chances of admission. The brief also quotes from accounts of guidance counselors and others (including this account [5] in Inside Higher Ed) talking about widely held beliefs in high schools with many Asian-American students that they must have higher academic credentials than all others to gain admission to elite institutions.

The brief filed on behalf of Fisher does focus on Texas policies — and specifically their impact on Asian-American applicants. Texas has stated that it considers black and Latino students “under-represented” at the university, based in part on their proportions in the state population. And the Fisher brief considers that illegal.

“UT’s differing treatment of Asian Americans and other minorities based on each group’s proportion of Texas’s population illustrates why demographic balancing is constitutionally illegitimate….  UT gives no admissions preference to Asian Americans even though ‘the gross number of Hispanic students attending UT exceeds the gross number of Asian-American students attending UT.’ This differing treatment of racial minorities based solely on demographics provides clear evidence that UT’s conception of critical mass is not tethered to the ‘educational benefits of a diverse student body.’ UT has not (and indeed cannot) offer any coherent explanation for why fewer Asian Americans than Hispanics are needed to achieve the educational benefits of diversity.”

A footnote in the brief seeks to drive home the point: “Recognizing representational diversity as a compelling state interest might allow universities in racially homogenous states to employ race to the detriment of qualified minority applicants in order to maintain a student body that mirrors the state population. Indeed, that is precisely the problem facing Asian-American students in Texas, as they are ‘over-represented’ demographically but highly qualified academically.”

University of Texas officials are not giving interviews on the briefs. But an affidavit in the case from Kedra Ishop, currently director of admissions at UT-Austin and, at the time she gave the statement, associate director there, suggests that Texas may contest the idea that Asian-American applicants could not benefit from affirmative action at the university.

In the statement, Ishop outlines factors that could be considered in admissions, listing them this way: “the socioeconomic status of the applicant’s family and school, whether the applicant is from a single-parent home, whether languages other than English are spoken at the applicant’s home, the applicant’s family responsibilities and (starting with the fall class of 2005) the applicant’s race.” These criteria suggest that some Asian-American applicants could in fact receive some assistance on the university’s approach to admissions.

Debating the Asian-American Perspective

Much of the reaction to the new brief focused on the wisdom of Asian-American groups taking a stand against the consideration of race.

S.B. Woo, a retired professor of physics at the University of Delaware, and president of the 80-20 group, said he knew that Tuesday’s action was a significant step. Nine years ago, when the U.S. Supreme Court last considered the issue of race in admissions, the group considered filing a brief, but opted not to do so. “We didn’t know enough then to take a clear stand, but now we do,” he said.

In the years since, he said, it has become clear that consideration of race in admissions is not solving the nation’s educational problems and “we now realize how much we have been discriminated against.”

Four other Asian-American groups — the Asian Pacific American Legal Center, the Asian American Justice Center, Asian American Institute and Asian Law Caucus — filed a joint brief backing the University of Texas [6] when the case was considered by the U.S. Court of Appeals for the Fifth Circuit. And these groups are planning to file another brief with the U.S. Supreme Court.

Woo said he realized that those groups had been speaking for Asian Americans generally in the affirmative action debate, but he said that students and families don’t agree with them. He said he wasn’t bothered that other Asian-American groups would be challenging his positions. “They will be, as we will be, accountable. Let’s see how it will play out,” he said.

Several experts on Asian Americans in higher education agreed with Woo that many parents and families are frustrated by the college admissions process, and perceive it as hostile. But they questioned whether affirmative action programs really are responsible.

Mitchell J. Chang, professor of higher education, organizational change and Asian-American studies at the University of California at Los Angeles, said that it is true that many Asian Americans “seem to be the ones who have the lowest chances, all things being equal, of getting into the most selective institutions.” Chang said that part of the problems is the “hypercompetitive” environment in selective college admissions.

But to the extent that Asian-American applicants are being held to a higher standard, Chang said, that is primarily compared to white students, who aren’t benefiting from affirmative action. “There is an issue we have to deal with: Why aren’t Asian Americans with the same qualifications getting into the institutions at the same rate as white students? That’s the question we have to address.”

He said briefs like those filed Tuesday will reinforce the sense that it is other minority students taking slots from Asian Americans, something Chang does not believe to be true. “But that sentiment is out there, and that’s where [the brief filed Tuesday] is going to have a real impact.”

Robert Teranishi, associate professor of higher education at New York University and author of Asians in the Ivory Tower: Dilemmas of Racial Inequality in American Higher Education (Teachers College Press), said he believed Tuesday’s brief was based on “a couple of false assumptions,” one of them being that programs for black and Latino students should be a target. Teranishi asked, for example, why those concerned about the admission of Asian Americans to elite colleges — especially private institutions — were not focused more on preferences for alumni children. While so called “legacy admits” do include non-white applicants, such preferences overwhelmingly favor white people.

Teranishi also said he was worried by a narrative that diversity efforts help only black and Latino students, and that discussions of diversity should focus on elite institutions. He said that many non-elite institutions do quite a bit to recruit, admit and graduate Asian-American students who come from recent immigrant groups to the United States and who typically do not fare well in traditional admissions. Those programs are vital, he said, but could disappear if Texas loses at the Supreme Court. “I fear we are seeing Asian Americans used as a wedge group, which is really problematic, based on narrow interpretations of what affirmative action is.”

Further, he said that he worries that the current focus will distract Asian-American leaders from emerging threats in higher education. For instance, he said that he worried that the current emphasis of many colleges to recruit many more international undergraduates (many of whom are from Asia) was creating a false sense that higher education has “too many Asians.” While Teranishi said he was in no way opposed to international recruitment, he said he wanted to know how this emphasis on foreign students (who can pay their own way) was affecting other diversity efforts.

Over all, he said, Asian Americans benefit not from attacking affirmative action, but from “broader inclusion.”]]> http://www.diversefair.com/?feed=rss2&p=759 0 Supreme Court Is Urged to Consider Scrapping Its 2003 Endorsement of Race-Conscious Admissions http://www.diversefair.com/?p=756 http://www.diversefair.com/?p=756#comments Fri, 25 May 2012 11:40:59 +0000 cmaadmin http://www.diversefair.com/?p=756 Source: Peter Schmidt Chronicle of Higher Education

Washington-Lawyers for a white student who is challenging the race-conscious admissions policy of the University of Texas at Austin have told the U.S. Supreme Court that the dispute may give the justices reason to revisit, and potentially overrule, a landmark 2003 decision upholding the use of affirmative-action preferences to promote campus diversity.

In the lower courts, the student’s lawyers focused on arguing that the University of Texas’s admission policy was too heavy-handed and unnecessary for diversity to comply with guidelines set forth by the Supreme Court in its 2003 Grutter v. Bollinger decision, involving the use of race-conscious admissions by the University of Michigan’s law school. In a brief submitted to the Supreme Court on Monday, however, the lawyers entertain the possibility that the court might find Texas to have been in compliance with Grutter, and argue that such a finding would give the court reason to either overrule Grutter or, at the very least, clarify the reasoning set forth in that decision so that it is not seen as allowing policies like those Texas has adopted.

“To the extent that Grutter condones what the University of Texas has done, then Grutter needs to be overturned,” said Edward Blum, director of the Project on Fair Representation, a legal-defense foundation which has helped represent Abigail Noel Fisher, the plaintiff in the case.

In an interview Tuesday, Mr. Blum said his legal team had not strongly challenged the Grutter decision in the lower courts because its members needed to work within the confines of established legal precedent and were confident they could defeat the Texas policy as violating the guidelines articulated by the court in 2003. Now that the Supreme Court has taken up the case, however, revisiting the Grutter precedent is appropriate and represents a potentially effective legal strategy, he said.

The brief submitted to the Supreme Court on Ms. Fisher’s behalf also differs from past filings by her lawyers in that it places much more emphasis on allegations that Texas’s policy discriminates against Asian Americans by holding them to higher standards than other minority students. The university “has not (and indeed cannot) offer any coherent explanation for why fewer Asian Americans than Hispanics are needed to achieve the educational benefits of diversity,” the brief says.

The University of Texas has until early August to submit its brief in the case, which the Supreme Court is expected to hear in the fall.]]> http://www.diversefair.com/?feed=rss2&p=756 0