Wednesday, November 18, 2015

Diversity and Remediation

by Michael Dorf

In his NY Times column on Monday, Charles Blow began his discussion of recent campus activism over racial inequality with an apology of sorts: In the aftermath of the Paris attacks, the campus protests appear to have left the news cycle. Others--especially right-wing pundits--make the point much more ferociously. For example, in the immediate aftermath of the attacks, noted former NY Times Iraq War fabulist Judith Miller tweeted "Now maybe the whining adolescents at our universities can concentrate on something other than their need for 'safe' space." That view has been expressed widely by people who were inclined to see the campus activists as whiners even before Paris. How can they complain about an email about hypothetical offensive Halloween costumes when there are real human monsters killing people in Paris?

The complaint has a surface appeal, but only in the way that a parent chastising a child for failing to clean her plate while children on other continents go hungry does. Yet calling the campus activists whiners because they are not being shot to death by religious fanatics raises the bar on complaints impossibly high. Indeed, one might be inclined to turn the tables on the likes of Miller by asking: How, at a time like this, can she whine about students whining on campus? But that would be a cheap shot, so I won't take it. Accordingly--and without apology--I turn again to the campus unrest.

My latest Verdict column discusses what bearing the student protests have on Fisher v. University of Texas at Austin, now back at the Supreme Court for the second time. I acknowledge that one could take the recent protests as a signal that race-based affirmative action programs have failed to contribute to intellectual diversity in the way that was said to justify such programs in the Bakke and Grutter cases. However, I argue that this reading--seeing the protesters as insisting on their viewpoint as a matter of political correctness--misreads what is actually going on. The protesters are not hostile to viewpoint diversity. Instead, the underlying discrimination to which the protesters point is evidence that administrators and faculty must make greater efforts to promote diversity beyond admissions, by making minority students feel comfortable on campus.

Here I want to add a small but potentially important doctrinal point. Bakke and Grutter treat viewpoint diversity as a compelling interest sufficient to justify race-based affirmative action in college admissions, in the process rejecting a number of other justifications that have sometimes been offered. But the Court has long accepted that universities also have a compelling interest in remedying their own prior (or ongoing) acts of discrimination.

Bakke and other cases reject the idea that remedying past societal discrimination can be a compelling interest that justifies a race-based classification, but these cases acknowledge that a state institution can remedy its own discrimination. To be sure, there is some ambiguity about what that means. The strictest view would say that a state institution can only invoke a remedial justification for race-based affirmative action where there has been an adjudication of illicit racial discrimination. However, that view has never been endorsed by a majority of the Supreme Court, and it shouldn't be. State institutions should not be required to submit to litigation in order to undertake on their own to remedy their acts of discrimination. Properly understood, the case law (especially the Croson case) requires state entities to identify their own past or ongoing acts of discrimination in order to invoke a remedial justification for a race-based affirmative action program, but does not require them actually to be sued and lose.

Thus, in addition to the points made in the column, I would add this one: Insofar as the campus protesters point to ways in which current policies at public universities give effect to private racial discrimination, the universities might have a remedial basis for their race-based affirmative action programs. If less than a critical mass of minority students feel stigmatized, beleagured, and tokenized in virtue of their relatively small numbers, and if the university's culture is insufficient to combat those effects, then that suggests that a "critical mass" policy of the sort upheld in Grutter and defended in Fisher could be justified in remedial terms.

To be clear, the remedial argument is in addition to the diversity argument, which is sufficient by itself. But many critics of the Powell opinion in Bakke argue that it took the most compelling reason for race-based affirmative action off the table. I am suggesting that, at least in the current climate, perhaps it ought to be deemed back on the table.


Shag from Brookline said...

Let's give a little (but only a little) slack to " ... former NY Times Iraq War fabulist Judith Miller ... " who may still be mourning the recent demise of Ahmad Chalabi as well as her own chops as a journalist.

Campus unrest builds up over time. Recall Kent State. I recall well in the Spring of 1970 as I was well into developing my law practice the shut down by students of a university in Boston because of the Vietnam War. I was a part time graduate student taking my degree course. This didn't happen overnight. Issues of Vietnam had been smoldering on many campuses, much having to do with the draft college students were subject to. Small protests grew over the years. I was not a protester as I had performed my military obligation post-Korea and pre-Vietnam. But I could understand this protest and those at other campuses. Times were difficult.

The current campus unrest has also been building up for decades following the Civil Rights Acts of the mid 1960s. But it's a minority that perhaps has been ignored because of other things happening domestically and internationally. No, America has not been post-racial since the election of President Obama. These protesters are not whiners. They want a more level playing field. They and their forbears have been here for generations even preceding 1776. Patience is a virtue, but it's time (long overdue) to truly address the issues of these campus protests. We must overcome the fear of some (too many?) of a level playing field.

David Ricardo said...

Mr. Dorf takes as a given that if a minority feels stigmatized, beleaguered and tokenized this can be remedied by enlarging the minority group in a given situation to a ‘critical mass’.

“If less than a critical mass of minority students feel stigmatized, beleaguered, and tokenized in virtue of their relatively small numbers, and if the university's culture is insufficient to combat those effects, then that suggests that a "critical mass" policy of the sort upheld in Grutter and defended in Fisher could be justified in remedial terms.”

As a member of a religious minority I can testify that this is not correct. Being a member of a statistically significant minority means that the individual will be stigmatized, beleaguered and tokenized by the majority. Yes society, government and institutions should strive to minimize this, but it will not be eliminated and probably not significantly reduced. Sorry, but being stigmatized, beleaguered and tokenized is part of being a minority. (As I feel certain Mr. Dorf and Ms. Colb can testify with respect to their veganism.) If you are a member of a minority fight bigotry and intolerance and hatred as best you can, quit whining and get on with your life. The playing field will never be level.

Shag from Brookline said...

David, your " ... quit whining and get on with your life." seems to suggest you might agree with Judith Miller. Rather than whining, this minority is seeking justice. Would you have given that advice to your forbears many decades ago when they sought justice? Didn't your forbears make it more comfortable for you?

David Ricardo said...

Actually I thought that the comments by Judith Miller were condescending and disgusting.

And yes, I would have given the advice to my forbearers, many of whom suffered grievously so that I could live in this nation. But actually I don’t think that would have been necessary, as they did fight bigotry and intolerance and hatred, sometimes to the death rather than just whine about it.

If you look at the entire post and not just one phrase taken out of context from one sentence you will see that the post was designed to make two points.

1. It is a call for action, not complaining.

2. Every member of a minority must recognize that he or she will not gain total acceptance, and that increasing the critical mass of a minority but still leaving it far from a minority will not cure the problem of intolerance or relieve that minority from feeling uneasy, unwelcome and discriminated against.

A personal note if you may. As a member of the Jewish faith I must live in a nation of Mike Huckabee’s, of Ted Cruz’s and a Christian majority some of whom would deny me basic rights because of my religion.

Think I am exaggerating about the radical right wing? Take a look at this story about Republicans in Virginia arguing that one must vote Republican to preserve Christian Heritage and that the founders only wanted Christians to run for office.

These people, members and officials of a major political party would declare that I am unfit to run for office because of my religion. (Actually I am unfit to run for office for a whole lot of other reasons.) And I would provide the link to where leaders of the Republican party repudiate this but I could not find any such story. Oh yes, in this particular district the Republicans won overwhelmingly.

So no, don’t accept bigotry and injustice, don’t tolerate it but take action rather than complaining that “____________ is not being nice to me”. In the real world they won’t be, and one cannot make them be nice but collective action can prevent them from acting to the detriment of the minority. The successful fight for marriage equality is emblematic here.

Joe said...

"being stigmatized, beleaguered and tokenized is part of being a minority"

It's not a matter of diversity getting us to nirvana ... it is that some "critical mass" will help the situation. He says it will "combat" not "solve." Likewise, one can point out that Jesus noted once that the poor will always be with us while supporting various things that can HELP the situation.

"If you are a member of a minority fight bigotry and intolerance and hatred as best you can, quit whining and get on with your life. The playing field will never be level."

Part of fighting is opposing wrongs including in protests that some will say is "whining." So, what whining should they quit exactly? The protests being sneered at by some here are of the type that in the past helped improve harmed groups' lives in various respects. Their ability to be THERE in the first place to dissent, in colleges, in public places in general etc., helped. Again, part of the "critical mass" argument.

David Ricardo said...

Two points again.

1. It appears that many but not all of the protests revolve around the theme that “I don’t feel safe, I don’t feel wanted, there seems to be prejudice against me” which is almost certainly true. But again, that is life as a minority in the United States today, tomorrow and for the foreseeable future. People hate. Increasing minority representation in the student body by a few percentage points will not change things.

2. There are huge problems in higher education today. State governments particularly those run by Republicans are underfunding state higher education to the point where state schools are no longer state schools. Students graduate with crushing debt. The federal government has diverted billions in student loans to for profit private schools, schools who leave students with little or no education and huge debts while they themselves make millions. Elite universities can cost $250,000 for a four year degree, and admission is often made on the basis of the check the family wrote to the school endowment.

Athletics has corrupted most major institutions and the most powerful, well paid employees of most schools are the athletic coaches. UNC Chapel Hill sent thousands of so-called student athletes and other enrollees through no show, no work classes, and there is no punishment. Anyone who thinks that scandal was unique to Chapel Hill is hopelessly naïve. The protests at Missouri close out of town without the football team getting involved.

So if students are upset they can write and post grievances on various social media or they can organize, vote, litigate and be part of the solution. Since the latter involves hard work and sacrifice the former seems to be the weapon of choice. But against powerful right wing factions with tens of millions to spend on politics at every level who are intent on cutting support for higher education and continuing to make it a source of entertainment rather than a source of learning just complaining or getting a few extra minority students will not get the job done.

Shag from Brookline said...

David, that closing sentence of yours sounds much like a concession to that powerful right wing, or a whine. We are not doomed.

Joe said...

"just complaining or getting a few extra minority students will not get the job done"

You say a lot here worthy of thinking about & clearly are seriously concerned about things but end with a lame strawman. It's a bit sad.

Angela Emely said...

Each of these terms should have a concrete and separate meaning but very difficult to apply in practice. However, broad majorities support efforts to increase ―diversity.