Confirming my earlier blog prediction, http://algueroltd.com/2014/06/, “Affirmative Action is Dead”, the US Supreme Court decided to rehear a major case challenging affirmative action in higher education, during its next term (2016). . National Law Journal Marcia Coyle (Word) The plaintiff, MS Abigail Fisher from Texas, follows precisely, the script I foresaw when stating that “… the U.S. Supreme Court support of the Michigan ban of affirmative action opened the door for other states to join those that already passed similar legislation”. http:// abigail-fisher-and-university-of-texas1.docx (Word).
Below I continue to expand on the impact of the U.S. Supreme Court actions on Hispanic Americans. http://Hispanic Americans definition I elaborate also, on the social dynamics in American society underpinning the challenges to affirmative action and diversity, including US Courts rulings.
Justice O’Connor’s vision not realized for Hispanic Americans
In 2003 Justice Sandra Day O’Connor supported Affirmative Action while stating “…We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today” (Gutter v. Bollinger, 539 U.S. 306 (2003).
A few weeks ago, that is, 11 years after Justice O’Connor’s expressed vision, I affirmed “Affirmative action is dead” – no pun intended – following the U.S. Supreme Court decision upholding as constitutional the Michigan state ban on affirmative action. As reported by Scott Jaschik in: http://Insidehighered. Declaring that Affirmative Action is no more, does not derive from the realization of Justice O’Connor’s prediction. On the contrary, any hope that Affirmative Action may contribute to usher her vision are quickly vanishing. As I argue in my previous blog, www.malguer1.com, the U.S. Supreme Court support of the Michigan ban on affirmative action, opened the door for other states to join the seven states that have passed similar legislation. http://states banning affirmative action For Hispanic Americans, these legislative developments have serious implications. Mainly, due to the fact that by most key outcome criteria Hispanic Americans continue to lag in higher education (enrollment, retention, graduation rates). http:// Latinos continue to lag in higher education. Due the fact also, that the nation can ill afford to marginalized its growing Hispanic population, because no college preparation. Hispanic American population projection
My interest in blogging on Affirmative Action
The premise of my previous blog was that the recent affirmation of the Michigan ban on Affirmative Action by the US Supreme Court signaled the court’s blessings on current and future state level groups, actively seeking to abolish any vestiges of higher education Affirmative Action and Diversity policies across the land. Moreover, the purpose of that previous blog was to expose the reader to the social forces in the American society, including the deciding majority Justices, whose nativism and strong resentment leads to consider the demise of the Diversity and Affirmative Action apparatus, a necessary and legitimate aspiration.
And presently, the purpose of this blog is to bring awareness to the reader from minority groups, and more specifically to the reader of Hispanic heritage about the challenges and the imperatives presented by the demise of Affirmative Action.
America’s conflicting impulses
America’s Egalitarian impulses led in 1961 (President J.F. Kennedy) and 1967 (President L.B. Johnson) to the issuing of an Executive Order as a policy calling for contractors to “take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, color, or natural origin” and gender.
America’s Libertarian impulses, on the other hand, nurtured and continue to nurture, the challenges to Diversity and Affirmative Action. Such challenges have taken the form of state voters banning affirmative action as well as federal and US Supreme Court filings. The arguments put forth against affirmative action and diversity stem from a seemingly immovable commitment to individual liberty and to the belief in the free market’s “invisible hand”.
Alternative courses of action for Hispanic American
American Egalitarian impulses moved Justice Sonia Sotomayor and Mr. George B. Washington to react, dissenting from the Supreme Court decision upholding the Michigan ban on Affirmative Action. However in doing so, each presented Hispanic Americans with alternative courses of action, while seeking equal treatment in admission to the nation’s public college and universities.
In championing one alternative, Justice Sotomayor, an Ivy League college graduate, seems to attribute her admission into Princeton University to Affirmative Action and its associated Diversity concept when stating “…much has changed” in the thinking about affirmative action “since those early days when it opened doors in my life” (reported by Arians De Vogue, in ABC News, April 22, 2014).
Invoking the US Constitution, Justice Sonia Sotomayor wrote in her dissent — joined by Justice Ruth Bader Ginsburg — saying that the Michigan measure violated the rights of minority individuals in the state. “We are fortunate to live in a democratic society. But without checks, democratically approved legislation can oppress minority groups. For that reason, our Constitution places limits on what a majority of the people may do,” the dissent says. Referring to the Michigan ban, she continues, “This case implicates one such limit: the guarantee of equal protection of the laws. Although that guarantee is traditionally understood to prohibit intentional discrimination under existing laws, equal protection does not end there. Another fundamental strand of our equal protection jurisprudence focuses on process, securing to all citizens the right to participate meaningfully and equally in self-government. That right is the bedrock of our democracy, for it preserves all other rights.”
Faithful to Affirmative Action and Diversity, Justice Sonia Sotomayor rejected the notion that alternatives to affirmative action such as income or residency could achieve similar results in diversifying the nation’s colleges and universities. “When asked whether other “less fractious” measures could achieve similar results for schools, she said that statistics show the alternatives simply don’t work.” “She also pointed out that some students boost their prospects for attending a school based on their family history. “”Look, we have legacy admissions. If our parents or your grandparents have been to that school, they’re going to give you an advantage in getting into the school again”” “” Legacy admission is a wonderful thing because it means even if you’re not qualified as others you’re going to get that fight advantage””(See Associate Press 4.23.2014).
By contrast, Mr. George B. Washington, advocates a more activist approach in his dissenting argument, i.e. “In a state like Michigan, where the electorate is overwhelmingly white, the Supreme Court has given the white majority “veto power over the political rights and educational futures of black citizens, and that is not acceptable,” he said. Referring to the deciding majority of US Supreme Court Justices, “Frankly, our sense is that they have taken off the gloves, and now we have to take off the gloves, and go back to the sit-ins and strikes and all the things that won the civil rights movement.” As reported by Scott Jaschik in: http://www.insidehighered.com/news/2014/04/23/supreme-court-upholds-right-state-voters-bar-consideration-race-admissions#ixzz32TM5R19s
For relevance, it was George B. Washington, among others, who mounted the challenge against the Michigan measure as a lawyer for the Coalition to Defend Affirmative Action, Integration, and Immigrant Rights and Fight for Equality By Any Means Necessary (BAMN). In an earlier legal challenge, Calling for action in seeking equality, the Coalition (BAMN), obtained a short lived victory, with a 6th Circuit Court decision declaring a “voter-passed ban on the use of race-conscious admissions by Michigan’s public colleges, holding that the measure had unconstitutionally put racial-minority members at a distinct legal disadvantage in seeking from public colleges the same preferential treatment that other categories of students enjoy” (see Chronicle of Higher Education, 11/15/2012).
The above two diametrically different approaches present clear challenges to Hispanic Americans, as well as other minority groups, in their quest for equal treatment in admission to public colleges and universities. Most definitely the imperative is to choose between these two egalitarian alternatives.
One option is to determine the wisdom of continuing to follow courses of action such as appealing to the American judicial system, or to rely on the good will of higher education leaders (read The Shape of the River; Long Term Consequences of Considering Race in Colleges and University Admissions.1998. William G. Bowen and Derek Bok. Princeton University Press. Princeton, New Jersey. ). Or to expect remedies through the political process, like in the case of Michigan, which required participation in a banning referendum, later upheld by the U.S. Supreme Court. Justice Soto Mayor seems to subscribe to this approach (see above.) An example of good will from politicians and higher education leaders is the University Of Texas (UT)’s admissions system that used race as one factor. The earlier U.S. Court decision is an acknowledgement the University of Texas admission policy may still be constitutional. However, this “good will” policy is being challenged once more (see above reference to US Supreme Court 2016 docket on UT policy).
Another alternative is to assess the extent to which Affirmative Action and Diversity policies have or have not meant that today Hispanic Americans enjoy the fruits of equal opportunity in education, in employment, in housing, and other existential pursuits. In this regard a 2010 report by Stephanie Banchero in the Wall Street Journal shows graphically that Hispanics “continue to trail” in college graduation rates comparing to other nation’s racial and ethnic groups. http://www.wsj.com/articles/SB10001424052702304510704575562352066596296. See also Bethany Bump report in the Times Union 9/11/2015 on “SUNY aiming for greater diversity”. Suggesting that SUNY campuses still lag in diversity across several factors (enrollment, graduation rates, faculty and non-teaching personnel employment, etc.). A surprise admission, given the fact that the State University of New York – SUNY – came into existence in 1948 precisely because of documented exclusionary practices. http://www.deweydefeatstruman.com/Deweybio.htm
Hispanic Americans may also consider the activists course advocated by individuals and groups like the coalition BAMN, which while upset by the U.S. Supreme Court decision upholding the Michigan ban of affirmative action, are at the same time urging a collective activism to arrest, what appears inevitable, the dismantling of Affirmative Action (see above reference to BAMN and statements by its lawyer Mr. George B. Washington).
Another available course for Hispanics is to dismiss any attempt at requesting or demanding more remedial actions of the political and higher education elites of the country. That is, no more palliatives similar to Affirmative Action and Diversity policies. In fact, this course of action forces Hispanic Americans and other minorities to acknowledge the fact that in the case the Michigan ban, the US Justices did not decide on Affirmative Action per sé, but instead rested their decision on the States Rights doctrine. The US Supreme Court’s sense is that the voters’ rights take precedence over palliatives like Affirmative Action. Should Hispanic Americans and other minorities, now seek equality in the admission process by focusing on the Equal Protection clause of the 14th Amendment?
Last on this list of alternative courses of action, is for Hispanic Americans to get organized, and promote the realization of equality of opportunity as a raison d’être for the American society. For instance, by denying validity and legitimacy to the arguments advanced by Libertarians and supporters of the Michigan State ban, that admissions based on merit are neutral, when in fact colleges and universities consider several other factors, including legacy, in admissions decisions.
These challenges are not limited to Hispanic Americans. The US Supreme court demise of Affirmative Action also challenges the leadership of American higher education and of the nation at large. For the country to continue failing to response to Hispanic Americans aspiration to equal access to higher education and other existential means, is to plant in fertile ground “the unthinkable…” that in today’s America – “…in fact, democracy is more fiction than it is fact.” As stated by Auletta (1982) and quoted by Manuel Justiz, in Minorities in Higher Education. 1994. American Council on Education. Orix Press p.19.
If Hispanic Americans students, faculty and administrators, do in fact expect equal opportunity and access to public colleges and universities, they need to go beyond harboring “audacity of hope”. They need to follow the road map of previous ethnic groups in America, who used education, entrepreneurial action, the media (including its ownership), and Hollywood productions, among other strategies, to make real their claims for equal treatment. And lately the women movement is offering examples to follow, like very effectively taking advantage of: the changes in legislation brought about by the civil rights movement, their solid education base, use of social media, and what I will call “guerrilla” tactics. In fact, just recently the women movement has been using two very effective strategies. One tactic is using public venues to express vocally the glaring gaps in compensation for equal work as well as in employment opportunities in key economy sectors, i.e. Hollywood and television productions and technology companies. Another tactic is to graphically showing the absence of women in positions of leadership in American society. Indeed, this “guerrilla” tactic consists in showing two images: the first one includes all men and women in positions of leadership in particular institutions or companies; the second one shows the same picture but without the men, the result? the graphic invariable shows how much our society is failing to afford equal treatment for women.
It is up to Hispanic Americans to learn to live without Affirmative Action and, to lead America’s democracy to a future with equal justice.