Thursday, April 24, 2014

Affirmative Action: consider race until race is no longer a consideration

by Germar Derron
updated and cross-posted from http://www.azbar.org/media/689054/second_place_essay.pdf              

Photo by Andrew Burton/Getty Images
“Minorities are the problem!  You all should just get over it, get over it, GET over it!”  A law student-law review member-big firm-employed-student leader shouted those sentiments over and over at minorities, in a Gender and Race course, last year.  His law school admitted two classes, over three years without a single African-American member.  His law review staff, of 60, had two minority members.  His firm had not hired a non-white Summer Associate, from that law school, in years.  And no Hispanic, Native, or African-American students led any of that school’s student organizations, except for the Hispanic, Native, and African-American student organizations.  Maybe minorities are the problem.  Maybe minorities are inherently inferior, work less hard, or expect too much.  And if you’re nodding, racism thrives.  Something external to these groups drives the race-rooted disparities present today, just as something spurred, controlled, and even profited from slavery, and Jim Crow.

The Supreme Court upheld Michigan’s decision to ban considerations of race in academic admission’s processes.  This action expands an ever-increasing class divide, while providing tangible benefits to no one.  The number of minorities and women in top-tier colleges will decrease.  There will not be a comparable increase in the number of male and non-minority students.  Affirmative action is not a quota system.

Unfortunately, the anti-affirmative action law constitutes only one piece of a complex puzzle that perpetuates inequality (see incarceration).  Students, who attend top colleges, attain top jobs, and top pay.  Then, those students—as parents—can provide the tools to their children, and guide them to the top schools.  That cycle repeats in perpetuity, unless schools are allowed to consider attributes beyond the “tools of the cycle.”  The cycle defines and innately perpetuates one version of success, or achievement.  Consequently, race and ethnicity—or minority status—as key components of diversity, must be factored in any decisions based on majority rules or a historical framework.  Courts, scholars, and institutions have long recognized diversity, including race, as: 1) a compelling interest of the state; and 2) a measure used to counter discriminatory institutional harm.  
Photo by Chip Somodevilla/Getty Images
Diversity Defined

The Supreme Court officially recognized, and consequently began to define, diversity in Bakke. Considering the history of Brown v. Board and segregation generally, logic points to an education-based definition of diversity.  The First Amendment provided the foundation of diversity as an aspirational principle.  “Academic freedom, though not a specifically enumerated constitutional right,” is long held as a special grant of the First Amendment.  Justice Frankfurter found that academic freedom constitutes “four essential freedoms”: 1) who may teach; 2) what may be taught; 3) how it shall be taught; and 4) who may be admitted to study.  These “freedoms” permit institutions to mold their ideal body, distinctly.  Universities strive for a diverse body “to provide that atmosphere which is most conducive to speculation, experiment and creation.”  Though there is no unambiguous and universal legal concept of diversity, the Bakke court began the process of defining diversity as heterogeneousness, or a broad array of qualifications and characteristics of which race and ethnicity is a single, but important element.
Generally, courts let institutions define diversity in the way that best fits that institution’s goals, when the implementing actions are not violative of other rights or laws.  The Department of Education found that “colleges and universities [employ] definitions of diversity that include geography, socioeconomic status, age, religion, parental educational attainment, citizenship, special talents and academic interests.”  In Spurlock v. Metropolitan Government of Nashville, a district court accepted the broad definition of diversity applied by the school: “the benefit of different perspectives and backgrounds to the . . . system as a whole.”  In the context of academic institutions, diversity generally means diversity of viewpoint.  The Bakke court demonstrates this, but also notes the fluidity of diversity, due to its attachment to a social context. 
 
The Importance of Diversity
Photo by Mark Wilson/Getty Images

The diversity rationale simply suggests that merit may reside in other features of an individual's background besides that individual's record of academic achievement on standardized tests or in previous educational environments.”  That alternative merit basis promotes the “speculation, experiment and creation that is essential to the quality of higher education” as articulated in Bakke. A variety of perspectives, ideas, and experiences enriches education, and equips students to be productive members of a diverse society.  “The educational atmosphere . . . is improved by the presence of students who represent the greatest possible variety of backgrounds and viewpoints.”
Diversity Anecdote: Reverse-Racism or Reversing Racism? 
  
In the southeast region of the United States, historically black colleges and universities (“HBCUs”) exist as remnants of a time when African-Americans were not permitted to attend state schools, and could not afford their private counterpart.  Today, many HBCUs are known for exciting, dynamic, and extremely athletic marching bands.  These bands play Sousa standards and jazz.  They sing and dance, while high-stepping.  They somersault, spin, and split before playing Flight of the Bumblebee or Elsa’s Procession to the Cathedral.  Occasionally, a white virtuoso-musician, from a Midwest state, moves south and joins one of these bands. Here, that student is “Todd.” 

Todd arrives with numerous honors and scholarships.  His resume includes: section leader, student conductor, drum major, music instructor, composer, and Phillip-Sousa Award Winner.  But, Todd struggles in the HBCU band.
The “Todds” rarely find their way in the HBCU environment.  Todd struggles to play well, while dancing.  Often, he struggles to learn the choreographed routines, without the added difficulty of playing an instrument.  He struggles to memorize songs in minutes.  He struggles to adjust to the improvisational structure of fanfares, rehearsals, and sectionals.  He struggles to make friends, or find lovers.  He struggles.  Students laugh at Todd, the fish-out-of-water; they call him colorful and degrading nicknames, and constantly crack thinly-veiled “white” jokes.  Todd refuses their sincere offers of assistance.  Sometimes, he cries himself to sleep.  Todd hates his new school.
Todd’s struggles mimic those faced by most minorities who attend majority-ruled schools.  At the HBCU, Todd finds himself in a world that places far less value on his particular set of talents and knowledge.  He may adapt, or his environment may adapt to him, but it will take time, and hard work.  In essence, diversity highlights invaluable qualities that may go unrecognized or unappreciated by the dominant culture.  The importance of diversity—in education, where our society is refined—cannot be overstated.   
Photo by Alex Wong/Getty Images
Conclusion
Culture, race, and ethnicity must be accounted for in admissions’ processes, until the “Todd-difference” is thoroughly examined and abolished.  When any person or group lacks a specific knowledge, it does not necessarily relate proportionally to their potential or ability. Unfortunately, for the Todds—or more commonly the Juans and JaQuandas—the popularly cited, score-based, class disparities are consistently and undeniably tethered to cultural history.  Diversity’s power dwells in the greatest combination of histories that provide the broadest spectrum of knowledge.  With that spectrum of knowledge, we can begin to break down the barriers—between classes, races, genders, and sexes—until we all share a more common experience, and path.  That common experience should lead to the true equality that parties on both sides of race-based policy debates claim to covet.

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