Justice Anthony Kennedy with Cal State San Bernardino Political Science Students and Faculty in 02/2015
On June 23, 2016, the U.S. Supreme Court ruled in Fischer v. Texas that the University of Texas at Austin (UTA) program which considered race, among many other factors, in undergraduate admissions is constitutional.
The outcome of the Fisher case was in great doubt in December 2015 when I wrote a commentary entitled, “The Soft Bigotry and Hard Hubris of Justice Antonin Scalia”.
I wrote that commentary incensed, outraged and deeply offended by the late Associate Justice Antonin Scalia’s insensitive remarks during oral arguments (at pp. 67-8) in the Fisher case.
Scalia dismissively and with manifest indifference remarked that African American students should attend “a less advanced school” because they are simply unable to compete successfully in the predominantly white universities. Scalia blathered:
There are — there are 11 those who contend that it does not benefit African-Americans to — to get them into the University of Texas where they do not do well, as opposed to having them go to a less advanced school, a less — a slower — track school where they do well. One of — one of the briefs pointed out that — that most of the most of the black scientists in this country don’t come from schools like the University of Texas.
They come from lesser schools where they do not feel that they’re — that they’re being pushed ahead in — in classes that are too — too fast for them.
I’m just not impressed by the fact that — that the University of Texas may have fewer. Maybe it ought to have fewer. And maybe some — you know, when you take more, the number of blacks, really competent blacks admitted to lesser schools, turns out to be less. And — and I — I don’t think it– it — it stands to reason that it’s a good thing for the University of Texas to admit as many blacks as possible. I just don’t think —
Justice Scalia died on February 13, 2016.
It is said that “Of the dead nothing but good is to be said”.
So I will say nothing good of Justice Scalia’s contemptuous, arrogant, degrading, demeaning, depraved, disgraceful, demoralizing and dehumanizing statements on the intellectual capacity, integrity and agility of young college-bound African American youth.
On June 23, 2016, the Supreme Court in a 4-3 decision said all that needs to be said to Scalia posthumously: The use of race as one factor among many is not a denial or equal protection of the law or discrimination.
In 1997, Texas enacted “The Top 10% Rule” which guaranteed Texas students who graduated in the top ten percent of their high school graduating class automatic admission to all state-funded universities.
In 2004, the UTA adopted a nine-factor “holistic review process” in its admission after completing a year-long study. One of the factors considered the applicant’s “special circumstances”, which included “socioeconomic status, experience in a single parent home, family responsibilities, cultural background, race and ethnicity”, among others.
In 2008, Abigail Fisher, who was not in the top 10 percent of her graduating, applied to the UTA and was not admitted.
Fisher sued alleging the top 10 percent rule’s use of race as a factor in the admissions decision discriminated against her and other Caucasian applicants like herself.
Fisher made four arguments to support her claim: 1) The UTA had not provided legally justifiable reasons (“compelling interest”) to support its aim for a “critical mass” of students of color (a situation where minority students feel comfortable expressing individual views and no longer see themselves as token members of their race at the university). 2) The UTA has no need to consider race in admission because it had “already “achieved critical mass’” by 2003. 3) Considering race “was not necessary because such consideration has had only a ‘minimal impact’ in advancing the [University’s] compelling interest.” 4) The Top Ten Percent Plan should be uncapped “and admit more—if not all—the University’s students through a percentage plan.”
Associate Justice Anthony Kennedy, writing for the majority, methodically dismantled and rejected Fisher’s arguments and upheld the UTA’s undergraduate admissions process.
By upholding the UTA plan, Justice Kennedy reaffirmed the court’s long-held view that enrolling a diverse student body “promotes cross-racial understanding, helps to break down racial stereotypes, and enables students to better understand persons of different races.” A diverse “student body promotes learning outcomes, and better prepares students for an increasingly diverse workforce and society.”
Rejecting Fisher’s arguments, the court found the UTA had articulated concrete and precise goals in its program as documented in its 2004 publication, “Proposal to Consider Race and Ethnicity in Admissions.” Among the educational values the UTA seeks to achieve through its admissions process include the promotion of cross-racial understanding, preparation of a student body for an increasingly diverse workforce and society and the cultivation of a set of leaders with legitimacy in the eyes of the citizenry.
Justice Kennedy observed, “A university is in large part defined by those intangible ‘qualities which are incapable of objective measurement but which make for greatness.’” He noted that there is an “enduring challenge to our Nation’s education system to reconcile the pursuit of diversity with the constitutional promise of equal treatment and dignity.” In striking a balance between diversity and the constitutional promise of equal treatment and dignity, “public universities, like the States themselves, can serve as “laboratories for experimentation.”
Justice Anthony Kennedy Talking to Cal State San Bernardino Political Science Students in 02/2015
Justice Clarence Thomas, the second African American appointment to the Supreme Court, dissented: “The Constitution abhors classifications based on race because every time the government places citizens on racial registers and makes race relevant to the provision of burdens or benefits, it demeans us all.”
Justice Thomas did not mention in his dissent that that he was one of “about 10 African Americans lacks in a class of 160 who had arrived at Yale Law School in an affirmative action program after the unrest of the 1960s.”
In 1996, California passed Proposition 209 to prohibit state institutions, including universities, from considering race, sex, or ethnicity in public education, employment and contracting. Prop. 209 effectively banned affirmative action programs at the state universities and colleges.
The impact of Prop. 209 on African American student admissions was immediate.
African American and Latino enrollment plunged. “The number of African American freshmen enrolled at UCLA fell by nearly half – from 264 in 1995 to 144 in 1998, the first year the ban took effect. At Berkeley, over the same period, it dropped from 215 to 126.”
In California, in 2014, the “Latino” population was reported at 39 percent; 5.8 percent for “Black”.
Freshman enrollment at the state’s flagship University of California, Berkeley, has remained virtually the same for nearly 20 years:
Ethnicity 2013 Fall 2014 Fall 2015 Fall
African-Amer. 133 (2.8) 159 (2.9) 157 (2.8%)
Mex. Amer./Chicano 395 (8.4%) 557 (10.2%) 500 (9%)
The picture at UCLA is not much different.
Fall 2015 admissions at UC Davis shows 3 percent African American student enrollment and 19 percent Hispanic.
At the University of San Diego, freshman African American enrollment in 2005 was 1 percent. In 2015, it was 2 percent. In 2005 Mexican-American enrollment was 8 percent; in 2015, it was 13 percent.
In 2015, at the California State University, Long Beach, African American freshman enrollment was 3.8 percent; Latino/Latina was 39 percent.
In 2015, at California State University, San Bernardino, African American freshman enrollment was 7 percent; and 62 percent Hispanic/Latino.
The need for affirmative inclusion of students of color in American higher education is a manifest necessity. There are those who talk about the “browning of America” and “graying of America”. A brown workforce may be called upon increasingly to take care of a graying population.
The fact that Justice Kennedy wrote the majority opinion may surprise some legal observers and others to question his “conservative” credentials. He was the swing vote in 2015 in the Obergerfell case which granted same sex couples the right to marry. Now he is the swing vote for upholding affirmative action in Fisher. These two decisions will no doubt directly affect the lives of millions of Americans for generations to come. Was the 78 year-old justice thinking about his legacy?
My personal observation and impression having talked to him and listened to the talk he gave to my students in February 2015 is that Justice Kennedy is not a conservative ideologue in a single-minded pursuit of judicial implementation of a political agenda like the late Justice Scalia.
He impressed me as a sincere jurist and a man who believes in the power of young Americans to become the vanguard defenders of the U.S. Constitution.
As he talked about the Magna Carta and the rule of law, he emphasized the importance of the rule of law as means to enjoying freedom. He talked about the need to be committed to freedom not just for oneself but also others who yearn for it. He expressed his concern that without constant attention to the constitutional garden, it could wither and die. He talked about the shrinking world in the cyber age and encouraged the students to remain true to their constitutional heritage and preserve it. He suggested to the students that the Constitution belongs to them and not the judges, lawyers and politicians. It is their moral duty to make the case for law and freedom and to preserve, protect, and defend the Constitution. But they must inform themselves on the Constitution for one cannot defend or preserve what one does not know.
I venture to guess that Justice Kennedy became the swing vote in Fisher because he understood the impact of his vote in opening up educational opportunities for those who have earned their spot, fair and square, in the top 10 percent of their graduating class. I suspect he understood that without an enlightened and informed citizenry, the Constitution will be “dead, dead, dead”.
I would add that I and my students were inspired by Justice Kennedy’s talk. I am proud to say that California State University is the only university in the United States to have a student-sponsored celebration of the 800th Anniversary of the Magna Carta. (I should be glad to be corrected if my bold assertion is not true.)
I feel especially honored to have my commentary on the Magna Carta posted on the official website of the Magna Carta Trust, the successor to the Magna Carta Society.
Affirmative Action” should be renamed “Affirmative Inclusion”
The phrase “affirmative action” is loaded with negative political connotations. It is a far cry from its origin in the Wagner Act (the National Labor Relations Act of 1935). Raging against affirmative action has been a favorite pastime of the conservative culture warriors backed by their secret wealthy donors for decades.
When it comes to correctly understanding the need for “affirmative action” to deal with the lingering effects of slavery and racism and the state-enforced inequality or segregation, I believe President Lyndon Johnson, whose monumental achievements have yet to be fully recognized by the American people, got it right.
Johnson in his 1965 Commencement Address at Howard University said:
You do not take a person who, for years, has been hobbled by chains and liberate him, bring him up to the starting line of a race and then say, ‘you are free to compete with all the others’, and still just believe that you have been completely fair. Thus it is not enough just to open the gates of opportunity. All our citizens must have the ability to walk through those gates. This is the next and the more profound stage of the battle for civil rights. We seek not just freedom but opportunity. We seek not just legal equity but human ability, not just equality as a right and a theory but equality as a fact and equality as a result…. To this end equal opportunity is essential, but not enough, not enough. Men and women of all races are born with the same range of abilities. But ability is not just the product of birth. Ability is stretched or stunted by the family that you live with, and the neighborhood you live in—by the school you go to and the poverty or the richness of your surroundings. It is the product of a hundred unseen forces playing upon the little infant, the child, and finally the man….
There are those who argue that affirmative action is “reverse discrimination” and that past discrimination against African Americans and other discriminated groups does not justify present discrimination against Caucasians. They say affirmative action goes against the grain of the U.S. Constitution and destroys the idea of meritocracy. They claim it is harmful to students and employees and stigmatizes them by reinforcing stereotypes and racism. They argue affirmative action does not promote diversity only the illusion of diversity on campus and the workplace.
I believe the “reverse discrimination” and crippling stigma arguments against affirmative action are red herrings.
Legally enforced segregation in American public schools was not declared unconstitutional until 1954, and massive resistance to desegregation continued throughout the 1970s.
The Supreme Court unanimously decided to desegregate higher (professional) education at the University of Texas Law School in 1950.
My alma mater, the University of Maryland Law School, denied admission to Thurgood Marshall in 1930 because he was black. Marshall led the court battles for equality as the lead attorney of the NAACP until he became an associate justice of the U.S. Supreme Court in 1967. In 1980 when the school named the law library after Justice Marshall he refused to attend the dedication ceremony because he wanted his conspicuous absence to be a historical lesson on the inhumanity of discrimination.
I spent many days at the Marshall Law Library and never forgot that the door to that library remained open for me because they were slammed shut in Marshall’s face 54 years earlier; but Marshall kept on knocking so I could get in. That is what the expression “standing on the shoulder of giants” (to get through the door) means to me personally.
I have always wondered how Marshall felt when he read the letter that informed him he could not be admitted because he was black.
But I do not wonder for long because the dismal admissions figures for African Americans at California’s (and elsewhere) elite undergraduate, graduate and professional institutions speak volumes.
The National Center for Education Statistics recently reported that “Black women are now the most educated group in the U.S.”
But for black males it is a state of emergency. A 2015 study by the Schott Foundation for Public Education revealed absolutely dismal high school graduation rates for African American males.
Malcom X said, “Without education, you are not going anywhere in this world.” Without education, African American males are not going anywhere in America or the world.
Affirmative action can get a student into the university hall, but it means very little without affirmative inclusion.
The fact of the matter is that significant numbers of African American students at the predominantly white institutions do not feel at home. Many find these institutions hostile learning environments in which they have to constantly fend off demeaning and patronizing comments about their intellectual capacities and achievements.
Last year, African American students launched the “I, Too, Am Harvard” campaign to register the fact that they “often go unheard on this campus, our experiences are devalued, our presence is questioned.”
If African American students at Harvard, many of whom are valedictorians and stellar academic performers (and I know a whole lot of them), feel so alienated at the nation’s most selective university, what can be expected at the other institutions of less renown?
This year, African American students have been protesting racism and mistreatment on various campuses and demanding changes.
The African American student reaction to campus racism has partly been to engage in what I would call defensive self-segregation. In an environment where there are few faculty and administrators of color to provide moral and academic support and at institutions where students do not feel welcome, racial tensions are simmering and there is a prevailing sense of alienation, self-segregation is a predictable outcome.
Recent studies show campus climate is significantly related to academic achievement of African-American students.
So the critical issue is how to make campuses more inclusive so that the promise of ethnic, racial, gender, religious and other diversity is achieved.
As I reflected on the Fisher decision and the constitutionality of admitting the top ten percent of high school graduates, I had an unsettling feeling in the pit of my stomach.
In 1903, W.E.B. DuBois published a piece entitled, “The Talented Tenth”. DuBois wrote:
The Negro race, like all races, is going to be saved by its exceptional men. The problem of education, then, among Negroes must first of all deal with the Talented Tenth; it is the problem of developing the Best of this race that they may guide the Mass away from the contamination and death of the Worst, in their own and other races…
I despair for the forgotten 90 percent.
When I think of the 90 percent, I recite to myself Langston Hughes’ poem, “A Dream Deferred”.
What happens to a dream deferred?
Does it dry up
Like a raisin in the sun?
Or fester like a sore–
And then run?
Does it stink like rotten meat?
Or crust and sugar over–
like a syrupy sweet?
Maybe it just sags|
like a heavy load.
Or does it explode?
I am often asked by those who oppose affirmative action, “When will affirmative action programs end?”
Justice Anthony Kennedy and Cal State San Bernardino President, Political Science Faculty and Others in 02/2015
I say affirmative action will end when America becomes colorblind!
“When will America be colorblind?”, I tack my own question.
America will be colorblind when America becomes “a nation where Americans will not be judged by the color of their skin but by the content of their character” and development of their intellect.
Is that possible?
I have a dream that one day America will be colorblind.
Expressing disappointment over the Supreme Court’s decision, Abigail Fisher said, “I hope that the nation will one day move beyond affirmative action.”
I DREAM that the nation will one day move beyond affirmative action!