Two Cautions for Educators to Consider in the Aftermath of Affirmative Action Decisions
As influential as the U.S. Supreme Court’s forthcoming decisions on affirmative action will be, it’s important to remember that court opinions do not implement themselves — all educators in our various professional roles give them meaning, and the meaning will have consequences for our multiracial democracy. It will impact our ability to connect with one another across racial, ethnic, socioeconomic status, religious affiliation, gender identity, and political differences; and it will influence the racial and ethnic makeup of practicing lawyers, doctors, and other professionals who are going to go on tackle systemic inequities in our society. As higher education administrators move forward in the aftermath of the Court’s decisions, they must do so while being mindful of two important dynamics that will ultimately shape how far the decisions reach: the urge to overcorrect and the use of language that masks racial inequality.
A Caution About Repressive Legalism
The first dynamic, which I call “repressive legalism,” comes from my co-authored research on how the interpretation and implementation of legal decisions can be more restrictive than necessary. That is, even when a legal opinion does not prevent a particular practice, it can still lead to responses that are motivated by fear, including fear of the threat of litigation. This overcorrection can result in more restrictive policies and practices than the law requires.
In a recent chapter, my co-author and I explain this dynamic of repressive legalism in the context of affirmative action policy and practice. We illustrate, through a review of empirical research, how administrators can interpret the law to unnecessarily suppress equity-focused policies. For example, we explain how repressive legalism is at play when institutions choose not to adopt race-conscious admissions even though they are in states that permit the practice. Another example is in findings from research examining how administrators charged with supporting the educational experiences of students of color after they were admitted felt in the aftermath of a statewide ban on race-conscious admissions. Administrators explained that they could not “talk” about race or make their work visible, even when that work was outside the context of admissions.
As educators, we must empower ourselves with balanced interpretations of the Supreme Court’s requirements. We cannot rely solely on media accounts, but on careful analysis of the opinions, particularly by civil rights groups and organizations that are attentive to the goals and educational mission of higher education institutions, such as the Legal Defense Fund and the Lawyers’ Committee for Civil Rights.
Within higher education, general counsel will play a critical role in guiding how the decision is interpreted and implemented. For general counsel, and others, the guiding question needs to be: What’s required of us under principles of equal access and opportunity — in the context of racial inequality — to meet our educational mission? All too often the leading motivation, particularly for those of us trained in law, is to be risk-averse. In the aftermath of the decision, the risk is that we will fail to serve our educational mission. That is a risk we cannot afford to take.
How Legal Terminology Masks Racial Inequality
The second related dynamic, which I’ve previously written about here, relates to how legal terminology can mask racial inequality. It is illustrated in a scenario that Justice Ketanji Brown Jackson presented during the historic five-hour oral arguments on the cases last October.
Justice Jackson asked counsel to imagine two students applying to University of North Carolina- Chapel Hill. One student is from a family who has been in the state since before the Civil War and family members attended UNC for four generations; the other student is from a family who has been in the state before the Civil War, but prior generations were enslaved and unable to attend the university. They each want to attend to honor their family. The first by continuing the tradition of attending and the second by being the first to attend the state’s flagship. But under the admissions process that plaintiffs are asking the Court to endorse, admissions professionals would be prevented from considering the personal history of only one student — the Black student. They would be asked to suppress the experience, motivation, and drive for attending of only one — the Black student.
And if Students for Fair Admissions president Ed Blum, the architect of past and current challenges to affirmative action, has his way, we would call this patently unequal treatment in admissions, “race-neutral.” This is a potential outcome that speaks to the power of the law to create fictions that plainly contradict reality. To hide inequality and leave us with language that ultimately hides the underlying unequal treatment taking place, while simultaneously allowing efforts that seek to promote greater equity to be misrepresented as racial discrimination. In short, the law can shape our practice in powerful ways by creating legal fictions. This idea of “race-neutrality” is one of those fictions.
For educators and administrators who will give meaning to the Supreme Court’s decision through everyday practices, it will be essential to resist the pull of “race-neutrality.” For example, in the aftermath of the decisions, colleges and universities may turn to considering “race-neutral” factors in admissions, by continuing to use standardized test scores or legacy admissions. Under a legal definition, these factors would be viewed as “race-neutral.” But calling them so can mask how race plays a role in these factors. Standardized tests, for example, are far from objective measures of academic merit, potential, or talent, and are instead better predictors of family wealth and resources. This is something that postsecondary institutions have begun to recognize as some begin to make the tests optional in their applications.
So, we must remember that “race-neutrality” is a racial ideology that shrouds attention to race. It makes it more difficult to connect historical legacies of racial oppression to its contemporary manifestations. It makes us less fluent in naming a social context marked by racial inequality. It makes us unable to check against racial biases that we all hold — often unconsciously. If we don’t have the language to name problems in the system, we misplace the problems on our students.
Developing Racially Literate Policies and Practices
Instead, we must engage in the difficult challenge of developing racial literacy (a term coined by late Harvard Law Professor Lani Guinier) in our everyday policies and practices. We improve our racial literacy by understanding the mechanisms that render current practices racially biased. We are racially literate when our policies and practices reflect the fact that a student’s agency is connected to larger environmental and institutional factors. We are racially literate when we stop framing individual students as the problem but focus instead on the broader structural constraints they may have faced.
Another question that should lead the work is: What tools, levers, and strategies are necessary to build racially literate practices and approaches in admissions?
As administrators confront this challenge, one essential element to consider is to transform how we think about merit. A reimagination, if you will, of the factors that we value in admissions so that they are aligned with the important role that colleges play in sustaining the health of our democracy. If we view admissions as an incentive system that rewards actions we value in a multiracial democratic society, such as the ability to cooperate across racial differences, to give back to marginalized communities, and to disrupt racial inequities, then the admissions process should reward students who demonstrate the potential to contribute to these values.
The health of our multiracial democracy depends on it, and our students deserve nothing less than our very best to help them realize their potential. That includes the courage to engage in the difficult work of becoming racially literate so that we can continue to work toward a system in which students’ success and opportunities are not constrained by race, ethnic background, socioeconomic status, or other marginalized identity.
Liliana M. Garces is the W.K. Kellogg Professor in Community College Leadership at the University of Texas at Austin. Her scholarship examines how legal and education systems shape educational opportunity and create inequality for historically marginalized student populations; her areas of research include race-conscious policies and practices in postsecondary admissions, freedom of expression and racial equity on college campuses, and the use and influence of research in law.