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Affirmative Action and Hispanic Americans

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).

US Supreme Court

US Supreme Court


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).

Justice Sandra D. O'Connor 1981-206 Wikepedia

Justice Sandra D. O’Connor 1981-206

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.

President John Fitzgerald Kennedy 1961-1963

President John Fitzgerald Kennedy

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).

Justice Sonia SotoMayor from The New York Times

Justice Sonia Sotomayor
New York Times

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).

SUNY Administration

SUNY Administration

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.

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October 24, 2015 · 8:53 pm


It is not premature to announce the death of Affirmative Action.  For some, Affirmative Action is on life support. However, for minorities, and specifically for Hispanic Americans, is not that the end of Affirmative Action in sight, rather that it is a fait accompli. For all purposes, the recent US Supreme Court ruling upholding its ban by the state of Michigan, sealed the coffin on Affirmative Action and widened the floodgates for other states to follow suit. https://www.insidehighered.com/news/2014/04/23/supreme-court-upholds-right-state-voters-bar-consideration-race-admissions  Http://appellate sixth court Michigan proposal 2


Some factors furthering the dismissal of Affirmative Action.

        The outlook of the majority of U.S. Supreme Court Justices constitute an important force behind the nation’s anti-Affirmative Action and anti-Diversity activism. Following, is a reflection on such outlook. For relevant court decisions see: http://www.ncsl.org/research/education/affirmative-action-court-decisions.aspx

For starters, there is the State’s right doctrine, which one can argue, takes front and center in informing decisions on Affirmative Action and Diversity by the Justices majority. Indeed, the application of this concept in their 6-2 ruling affirming the state of Michigan ban, known as Proposal 2, constitutes an incontrovertible example of the Justices leaning.. http://blogs.findlaw.com/decided/2014/04/mich-affirmative-action-ban-upheld-by-us-supreme-court.html. For Hispanic Americans this decision pattern is significant in that it strengthened the nation’s movements dismantling Affirmative Action and Diversity.

Moreover, the record shows the Justices added to their 6-2 ruling (4/22/2014), the opinion that the state of Michigan’s Proposal 2 did not violate the U.S. Constitution’s guarantee of equal protection. By inserting this opinion the Justices in effect shut the door on the possibility of any remedying action on the part of the federal courts. (See Justice Sotomayor dissenting discussion, below, and related discussion in http://law2.umkc.edu/faculty/projects/ftrials/conlaw/epcscrutiny.htm

The higher Court use of the Strict Scrutiny doctrine may lead to rejection of diversity policies enacted by public colleges and universities because such institutions may find it difficult to satisfy the narrow limits imposed by the Supreme Court. – see: Aditi Mukherji, JD in Find Law on June 24, 2013 (insert “Strict scrutiny…” and Brett Snider, Esq, report, April 22, 2014 in:  also, http://blogs.findlaw.com/decided/2014/04/mich-affirmative-action-ban-upheld-by-us-supreme-court.html  and http://law2.umkc.edu/faculty/projects/ftrials/conlaw/epcscrutiny.htm

In the view of some Justices, the states that may follow Michigan legislative ban, are likely to do so because of what the Court’s majority refers to as the “existing resentment on some parts of the public,”due to affirmative action and diversity practices. For Hispanic Americans this apparent sentiment among Court Justices is hard to swallow. It raises question about whether they are giving comfort to those in society seeking to dismantle the Affirmative Action and Diversity apparatus.

For Dismantling Affirmative Action and Diversity  

There is disagreement among legal scholars as to whether Affirmative Action practices constitute in fact illegal racial discrimination. But an active segment of the population legally challenges Affirmative Action as a form of reverse discrimination, one giving preference to historically marginalized groups, in order to address present inequalities. Within that active segment are individuals representing organizations legally challenging affirmative action who were quick to respond to the decision.

Among them is Roger Clegg, president of the Center for Equal Opportunity, CEO, who stated that he hoped the ruling would lead other states to follow Michigan: “Where ballot initiatives are not available, state legislatures should act; where state legislatures won’t act, then action should be taken at the local level”. Clegg made reference to a coauthored paper published by the Heritage Foundation that discusses such legislation. That paper can be found at: http://www.heritage.org/research/reports/2014/02/what-states-can-do-to-stop-racial-discrimination. He asserted: “CEO studies helped lead to the passage of Michigan’s Proposal 2…”

Another opponent, is the Chairperson of the Center for Equal Opportunity, Linda Chavez, who quickly praised the Court’s action: “This is a welcome decision, and in fact any other outcome would be been ridiculous. The Center for Equal Opportunity hopes that all states will join Michigan and the other states that have already banned preferences and discrimination – and that Congress will do so as well.”  See more at: http://www.ceousa.org/about-ceo/press-center/790-center-for-equal-opportunity-applauds-scotus-s-affirmative-action-decision#sthash.35WxXwG7.dpuf

One other individual opposing consideration of race is Jennifer Gratz, who is CEO of the XIV Foundation. She also issued a statement praising the Supreme Court; the XIV Foundation sued the University of Michigan over its affirmative action policies and was a key figure in the campaign to pass Proposition 2. She goes on to affirm that “Much progress has been made over the past 15 years in challenging discriminatory policies based on race preferences and moving toward colorblind government,” Gratz said. “Today’s ruling preserves this foundation and is a clear signal that states are moving in the right direction when they do away with policies that treat people differently based on race, gender, ethnicity or skin color.”

In fact, one can find numerous organizations and individuals actively seeking to dismantle affirmative action and diversity policies, not only in the seven States that have passed banning legislation, but in all the remaining states of the Union. states banning affirmative action/Word. Read also the germane article by Jared Taylor, The Myth of Diversity/Web.

Defending Affirmative Action and Diversity

Justice Sonia Sotomayor is featured in this blog as the stalwart defender of Affirmative Action and Diversity in American higher Education, below. This meritorious distinction notwithstanding, is no reason to ignore the existence of what can be termed a “cottage industry” of individuals, private and public organizations and institutions, as well as official entities at the federal, state and local level promoting, implementing and defending Diversity and Affirmative Action policies and programs.

Justice Sonia Sotomayor’s dissent 

Justice Sonia Sotomayor gave credit to affirmative action when responding to the question Do you think you would have been admitted to Yale Law School if you were not Puerto Rican?” with the following: “It probably didn’t hurt,” a stunned Sotomayor said, “but I imagine that graduating summa cum laude and Phi Beta Kappa from Princeton had something to do with it too.”  http://news.yahoo.com/justice-sonia-sotomayor-affirmative-action-opened-doors-life-194015559–abc-news-politics.html.  However, notice that in writing and reading her dissent from the bench in the Michigan affirmative action case, Justice Sonia Sotomayor warned that minority students now face an increased burden to have their historical circumstances taken into consideration. Factoring in “legacy” status is possible by petitioning a school’s admissions board, but racial factors may only considered by re-amending the state constitution”.

Justice Sonia SotoMayor from The New York Times

Justice Sonia Sotomayor
New York Times

Justice Sotomayor continues: “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. “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.” http://news.yahoo.com/justice-sonia-sotomayor-affirmative-action-opened-doors-life-194015559–abc-news-politics.html

Justice Sotomayor added that the voter initiative “restructures the political process” in Michigan to place unique burdens on racial minorities.  She says further, “Race matters. Race matters in part because of the long history of racial minorities’ being denied access to the political process.” “Race matters to a young man’s view of society when he spends his teenage years watching others tense up as he passes, no matter what neighborhood he grew up. Race matters to a young woman’s sense of self when she states her hometown, and then is pressed, ‘No, where are you really from?'” http://news.yahoo.com/justice-sonia-sotomayor-affirmative-action-opened-doors-life-194015559–abc-news-politics.html

Anther staunch defender is Mr. George B. Washington, a lawyer for BAMN. He  said in an interview shortly after the Supreme Court ruled that it was “a terrible decision … equivalent to Plessy v. Ferguson,” the 1896 ruling that upheld the doctrine of “separate but equal.” Washington said that the Supreme Court has “turned over to the states what rights minorities have,” and that measures like Proposition 2 “have already led to the resegregation of the University of California and the University of Michigan.” “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. “”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.””     http://www.insidehighered.com/news/2014/04/23/supreme-court-upholds-right-state-voters-bar-consideration-race-admissions#ixzz32TM5R19s

The view of an apparent majority of Justices (see paragraph above) is that rejection of Affirmative Action and Diversity policies is rooted in resentment. This may or may not be so, however, Hispanic Americans should take note: 1st, that Justices should not consider themselves in the business of justifying prejudice and its ill consequences; and 2nd, that any such antagonistic feelings may be more the consequences of demographic changes. For instance, in the May 2014 issue of The Atlantic, Robert Jones summarized a survey research undertaken by C.E.O. of P.R.R.I, concluding, “The core of Sotomayor’s dissent was that even after significant civil-rights legislation has passed, the Southern Baptist denomination has apologized, and the nation has elected a black president, race still matters. The data suggest we are still living in a liminal time, when outright racism is nearly universally condemned but when white Americans still carry significant unspoken anxiety and negative feelings about the shifting racial balance in the country.”{On the Precipice of a ‘Majority-Minority’ America,” by Maureen A. Craig and Jennifer A. Richeson,, —survey conducted on 2013 of 1,028 respondents, which was designed “to assess anxieties concerning the changing racial makeup of the country”. http://journalistsresource.org/studies/society/race-society/majority-minority-america-perceived-status-threat-white-citizens .}

Affirmative Action was a “gift” out of the magnanimity of the political elite of the American Nation. However, with the U.S. Supreme Court affirming of the Michigan ban, together with the above mentioned negative factors, among others, Hispanic Americans should pause, and ask a future determining question: should young Hispanic Americans keep hoping for equality in higher education and elsewhere to materialize from the top down, or should they bring it about from the ground up? “Should Hispanic keep pinning their hopes on the currently ideologically locked U.S. Supreme Court!Definitely, for Hispanic Americans, Affirmative Action is Dead. Long Live Affirmative Action. 

An important Note:

There seems to be a widespread agreement that blacks have been submitted to egregious – in times subhuman – conditions throughout the history of the American nation. Currently, however, there is also considered disagreement as to whether the nation still needs to make restitution to the American citizens of the black race. In this sense, Gunnard Myrdal is still relevant, and his assertion is still current; the United States society is still mired in an AMERICAN DILEMMA. The Negro Problem and Modern Democracy. 1962. Written by Gunnar Myrdal. With the Assistance of Richard Sterner and Arnold Rose. Harper & Row Publishers, New York. Thus, for blacks in America, equality in higher education constitute a very special and pressing case. http://www.nytimes.com/2015/11/10/us/university-of-missouri-system-president-resigns.html?_r=0.

In this and related future blogs, however, I will be commenting exclusively on the plague of Hispanic Americans in light of the recent US Supreme Court decision on affirmative action.




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