What to Do about a “Color-Blind” Supreme Court?

by Liliana M. Garces, Assistant Professor in the Higher Education Program and Research Associate in the Center for the Study of Higher Education at Pennsylvania State University

In the aftermath of recent U.S. Supreme Court decisions, colleges and universities face an important challenge: How can they further racial diversity in their student bodies and address racial inequities with policies that can only indirectly consider race? Legal decisions and state laws over the last few years have increasingly restricted the tools institutions of higher learning use to help assemble a racially and ethnically diverse student body and address gaps in educational opportunity. However, my research and that of other scholars suggest that furthering racial diversity in higher education requires directly tackling the ways in which race matters in shaping educational opportunities and students’ experiences. Not doing so risks further deepening educational and social inequities.

In Fisher v. University of Texas (2013), the most recent challenge to an affirmative action policy at the University of Texas, Austin, the Court reaffirmed a compelling interest in the educational benefits of diversity.  Simultaneously, the Court also emphasized the very limited ways in which race can be used to attain this goal. In a separate challenge to a state ballot measure that banned affirmative action in Michigan (Proposal 2), Schuette v. Coalition to Defend Against Affirmative Action (2014), the Court reversed a lower court ruling that found the law unconstitutional, leaving in place bans in 7 other states (California, Washington, Florida, Nebraska, Arizona, New Hampshire, and Oklahoma).

In the aftermath of these cases, the practice of considering race in admissions remains constitutional under federal law, when not otherwise banned by state law. However, the approach used to evaluate admissions practices in the legal arena has shifted, with important consequences for institutional policies and practices.  Rather than understanding race-conscious policies as a way to further diversity or to address persistent racial inequality, the various opinions in Schuette demonstrated that the majority of the justices on the Court view race-conscious admissions policies as “preferences” that embody racial discrimination, not policies that address it. This perspective equates any classifications on the basis of race with harmful racial discrimination. The use of race in admissions policies, therefore, is viewed as highly suspect, and, as the Court articulated in Fisher, must require the consideration of all other possible “race-neutral” alternatives before race is considered.

These legal developments reinforce what scholars have termed a “color-blind” approach to admissions and higher education policy, with important implications for strategies intended to address inequities. As scholars who focus on racial inequity have argued, a color-blind approach runs the risk of obscuring the ways in which race continues to matter in shaping students’ experiences and educational opportunities—ways that are extensively documented by social science research. A color-blind perspective also ignores important links, as established by social science research, between historical legacies of racial exclusion and contemporary reasons for racial inequality—legacies that institutions need to consider and address in order to expand access and opportunity for students of color.

The implications of these legal developments are significant and raise questions: How are institutions responding to a legal environment that asks for “diversity” work to be done within a color-blind approach? Do these institutional responses address, or risk further deepening, racial inequalities?

A substantial and growing body of evidence has already documented the detrimental consequences of a “color-blind” approach in education policy.  After bans on affirmative action passed in various states, the enrollment of underrepresented students of color declined across a number of important education sectors, including selective colleges, graduate fields of study, law schools, and medical schools at public postsecondary institutions in these states.  In addition to declines in the racial/ethnic diversity of the student body, a study I presented to a higher education audience found that these restrictive laws have had a negative influence on broader efforts to support and maintain racial diversity on campus. As described by key administrators, faculty, and staff leaders at the University of Michigan, Proposal 2 effectively silenced conversations around race and racism, rendering efforts around racial diversity less visible and making individuals feel less empowered to undertake efforts to support racial diversity at the university.

And even if institutions are not directly limited in considering race in admissions, they might still change their policies or practices in response to legal rulings like Fisher or Schuette to avoid the threat of litigation or preempt a ban. Such responses may further exacerbate educational inequities.

Colleges and universities, however, need not accept the illusion of color-blindness. Faced with demographic changes and realities of racial and ethnic inequities that threaten the health of our democracy and success as a nation, administrators and policymakers have an imperative to craft policies that serve the interests of all members of U.S. society. Doing so requires addressing the real ways in which race operates to shape educational access and success.

A starting point includes re-examining conventional ideas of qualification and merit in postsecondary admissions decisions. In an analysis of these legal developments, I’ve argued that legal decisions have contributed to a false dichotomy between our understandings of diversity and educational quality, as well as our understandings of efforts that promote diversity with those that address racial equity. Institutions have the power, through their policies and practices, to reframe the ways these concepts are perceived and enacted.  We’ve come to view racial diversity as coming at the expense of educational quality, when, in fact, educational quality may require it.

Another important area involves implementing policies that acknowledge the dynamic nature of diversity.  When educators or lawyers talk about diversity in postsecondary education and the related concept of “critical mass,” they talk about it primarily in terms of the number, or percentage, of students of color on a college campus. As my colleague Uma Jayakumar and I have suggested, achieving the educational benefits of diversity depends on a symbiotic relationship between the environment and students. While the number of students of color plays a significant role in shaping a campus climate and culture, the campus climate and culture, in turn, influence whether students feel welcome to attend the institution and their experiences while on campus.  This more dynamic understanding of diversity can help us answer the question in the legal debate as to when an institution has achieved a “critical mass” of students of color, move away from discussions of critical mass as a one-size-fits-all concept, and generate the evidence necessary to justify race-conscious policies in the legal arena and beyond.

Justice Sotomayor’s lengthy and powerful dissent in Schuette, joined by Justice Ginsburg, asked for members of the judiciary to directly address race as consequential in societal inequality:

As members of the judiciary tasked with intervening to carry out the guarantee of equal protection, we ought not sit back and wish away, rather than confront, the racial inequality that exists in our society. It is this view that works harm, by perpetuating the facile notion that what makes race matter is acknowledging the simple truth that race does matter.

In the spirit of her call, universities and social science researchers should not sit back and turn a blind eye to the extensive body of work demonstrating the harmful consequences of a nominally color-blind approach to educational policy.  With increased communication and collaborations among researchers, administrators, and legal counsel, institutions can re-envision admissions policies to more effectively capture students’ potential and prepare all students to fully participate in our multiracial society.

A condensed version of this argument will appear in: Center for the Study of Race and Equity in Education (2014). The elusive quest for civil rights in education: Evidence-based perspectives from leading scholars on the 50th anniversary of the Civil Rights Act. Philadelphia: University of Pennsylvania.

Follow Liliana Garces at Twitter at @garceslm

The author served as counsel of record in a friend-of-the court brief filed by 444 social science researchers in Fisher and a friend-of-the court brief submitted by the Civil Rights Project/Proyecto Derechos Civiles at the University of California, Los Angeles, in Schuette.