Supreme Court Arguments on Affirmative Action

I think the Supreme Court will likely gut or eliminate affirmative action based on the way this recent case is going.  The case challenges the University of Texas’s use of race as a factor to be considered in admission.  The policy follows prior Supreme Court guidelines for an acceptable affirmative action policy: it does not set a quota, it does not have a rigid point system, it considers every student individually.  The only reason the court is hearing the case, I imagine is to revisit precedent since based on precedent this policy is constitutional.

Looking over Nina Totenberg’s reporting on NPR, I think the crux of the matter is how vague and as a result unpredictable and unsettling the current state of affairs is.  The current rule is that a school can aim for a “critical mass” of diverse students and no one knows what that is.  It can’t be defined or else it would be a quota, but since it can’t be defined it gives affirmative action this feeling of perpetual vagueness.

I support affirmative action policies for a variety of reasons not the least of which being that all kinds of students (legacies, athletes, artists) get preferential treatment for what they bring to the community,  so why shouldn’t students of diverse backgrounds.  However, in most of those other cases there are more set numbers.  A football team can give X number of scholarships.  A college orchestra needs Y number of violinists.  The numbers involved may be less transparent with legacies, but I bet there is a numerical imit.

I actually do not think there would be anything wrong with saying a school can use affirmative action to maintain a balance in its population similar to the percentages in the high school graduates of that state.  Of course the complaint would be about “less” qualified students being taken over “more” qualified students, but then again what do we mean by qualified?

Since my idea would never be approved in the real world, I wonder what would happen then if a school took the radical step of admitting their entire class based on taking the top 10% from each high school in the state.  This would guarantee diversity if the high schools stayed segregated. It would be race blind and utterly fair in a statistical sense.   But imagine the side effects…

Well, with the Supreme Court likely to ban affirmative action, perhaps some state will implement this radical policy and everyone can watch to see what happens.

Since critical mass implies a specific number, the Justice Scalia wondered if instead one should use a less concrete term. He then suggested a cloud.

Supreme Court on Affirmative Action: Would A Ban Apply to Private Colleges?

With the opening of the Supreme Court term coming up there has been a lot of publicity around the court re-considering the use of race in college admissions.  The last ruling on the matter allowed the use in some situations, but the makeup of the court has shifting to include more opponents of consideration race in admissions.  Additionally, one of the typically liberal judges is recusing herself.

That being said, I think there is a significant chance the court will strike down any use of race in college admissions.  However, all cases so far have involved public universities.  Could a ban apply to private colleges and universities?  Private schools take federal money, but is that fact enough to extend a potential ban?  Does anyone out there with more of a legal background than I know the answer?  I would think any effort to extend the ruling to private universities would entail quite a fight–imagine all the lawyers the Ivy League could employ.

The United States Supreme Court (2010) Photo: Pablo Martinez Monsivais / AP

Sandra Day O’Connor: 1950 Sex Descrimination

Just had to post this part of an interview from Parade today.  It shows how far things have come from the 1950s but also shows the distance there was to come.

Parade: I’d like to go back in time now to 1952, the year you graduated from Stanford Law School. You were among the top students in your class, along with ­William Rehnquist. And yet, no law firm would hire you.
Sandra Day O’Connor: I applied to every firm that had a notice on ­Stanford’s placement bulletin board. Not a single one would even give me an interview. So I had an undergraduate woman friend whose father was a partner in Gibson, Dunn & Crutcher, and I asked her if she’d talk to her father and see if he could get me an interview. And she did and he did, and I went down to L.A. and [met] with this distinguished man. He looked at my résumé: “Oh, you have a fine résumé, Ms. Day, fine. But Ms. Day, this firm has never hired a woman lawyer. I don’t see the time when we will.”

Parade: Did he say why?

O’Connor: “Our clients wouldn’t stand for it.” That was his answer. [Then] he said, “Well, how well do you type?” I said, “So-so.” And he said, “If you can type well enough, I might be able to get you on as a legal secretary.” I said, “That isn’t the job that I want to find.”

Parade: Where did you go from there?

O’Connor: I heard on the grapevine that the county attorney in San Mateo once had a woman lawyer on the staff, so I wrote him a letter. He said, “I’ve hired everyone I’m ­authorized to hire and I’m not funded for another one, so I just don’t have a slot for you.” And he said, “In addition to that, I don’t have an empty office.” So I said to him, “Well, I really would like very much to work in your office. I’ll work for you for nothing until such time in the future as you get a little money and can pay me something.”

Parade: So that’s how you got your start. …

O’Connor: No pay. And I put my desk in with his secretary. And I loved my job. I really did.

“Removable Alien” or “Illegal Immigrant”

Charles Garcia’s piece for CNN “Why Illegal Immigrant is a Slur” makes a strong argument that this is a loaded term and should be avoided.  This is not a new argument and I do not intend to rehash the all the arguments on both sides.  I will point out that what I see as one original point and that is Garcia’s invocation of language from the recently decided Supreme Court case, Arizona v. United States.

In the majority decision, Justice Anthony Kennedy writes, “As a general rule, it is not a crime for a removable alien to remain present in the United States.”

This quotation alone gives clear support to those like me who oppose the use of “illegal immigrant.”  If it is not a crime for an individual stay in the country when his or her status is such that he or she could be deported, how is he or she “illegal”?  As Justice Kennedy points out immigration violations are civil not criminal offenses.  Therefore, there are much more accurate terms to use (like Kennedy’s “removable alien”) that do not presuppose criminality the way “illegal alien” does.

It is also worth noting that in this entire decision, except when quoting other sources, the justices do not use the term “illegal alien.”   The Supreme Court is obviously fallible (see Plessy v. Ferguson for example), but I am happy to be able to use the weight of this august institution in making this linguistic point.

Reminders of Japanese Internment

Gordon Hirabayashi, who resisted Japanese internment during World War II, is receiving the Presidential Medal of Honor.  This story connects with a slideshow of “Top 10 Iconic Japanese American Photos” posted recently which also emphasizes the internment experience and reactions to it.  When I lived in California,this part of history received a lot of emphasis and I remember going to the Japanese American Museum.  Now that I am in Ohio, I do not hear as much about these historical events.  Still, I think it is important though to remember the way United States government imprisoned its own citizens.  ”Today is the first time, so far as I am aware, that we have sustained a substantial restriction of the personal liberty of citizens of the United States based on the accident or race or ancestry” wrote Justice Murphy concurring in the Supreme Court decision authorizing the internment.  It is also important to note that the government and the Supreme Court make mistakes, that bodies comprised of human beings are fallible, and that the key is to recognize, admit, and rectify errors. Individuals like Gordon Hirabayashi play a key role in forcing this process to occur.

Internment camp barracks flying the American flag

Japanese American children behind barbed wire

Bainbridge Island, Washington, Japanese American mother and child

Affirmative Action on the Chopping Block

With the Supreme Court agreeing to hear a case from Texas on affirmative action in college admissions, it seems that based on the increasingly conservative nature of the court affirmative action at least in terms of race may soon be a thing of the past.  I predict the court ruling that race cannot be a factor in admissions, even if it is only one of many elements in a holistic review.

However, I think some form of affirmative action should stay around as long as legacies get a boost in the admissions process.  A legacy is someone whose relative went to the school before them.  For this to happen the person’s relative had to have been in a position of privilege of some sort in the past.  In the past privilege was distributed extremely unequally in American society based on race.  (That unequal distribution based on racial privilege also exists today but was greater in the past. )

For example, I was admitted to Amherst College.  One reason I got in was because my father went there.  My father had access to Amherst College for a number of reasons but back when he was applying (the late 1940s) being well-off, white, and male were part of the package.  Thus, one reason I got into Amherst as a well-off white male was because my father was a well-off white male who got into Amherst College back when being well-off, white and male were essential to admission.  As long as this inheritance of privilege continues to have a positive role in the admissions process, I think applicants of color should receive a countervailing positive benefit.

There is, of course, the question of limits.  If someone gets into Amherst today as a legacy because his or her mother or father went there in the the late 1980s he or she is not as much a beneficiary of white privilege.  So, as time goes on  the need for affirmative action to balance out unfair legacy privilege decreases.  However, what about the overall trends in society, for example the rates of black male incarceration;, do they play a role?

I am conflicted.  On the one hand I know the history of oppression and privilege and know society is not fair.  On the other hand I see progress and understand that it is hard  to tell someone they are complicit in a system of structural racism and therefore do not get into the college of their dreams, a college for which they believe they are amply qualified.  Then again the definition of qualified is so flexible.  Why can’t bringing a unique background or experience be a qualification?  Why can’t overcoming the history of racism in America be a qualification?

Perhaps we should construct a new version of affirmative action using a mix of these concepts:

1. Admission preference given to students from limited economic means

2. Admissions preference given to students who will be the first in their family to attend college

3. Admissions preference given to students from high schools in neighborhoods with high rates of poverty, or from schools with high rates of participation in the federal school lunch program

4. Automatic admission to any student who graduates in the top 10% of his or her class (already done in Texas).

Some of these might be taken as proxies for race, but taken together they could achieve diversity goals. Affirmative action based on race may still have a role, at least as long as legacies are in play, but given the alignment of the Supreme Court, it looks like a new way of thinking may become a matter of necessity.  Given that the nation may be as conflicted as I am on this topic, this middle ground may be a promising way out.