The Supreme Court’s Color Oblivious Constitution and the Road not Taken

            The Supreme Court’s Students for Fair Admissions, Inc. v. President and Fellows of Harvard College struck down affirmative action programs at both Harvard and the University of North Carolina in the name of the “color-blind” Constitution. Perhaps it would be better to describe the Court’s Orwellian fantasy doctrine as “color oblivious.” 

            The decision should have surprised no one and it well-telegraphed not just from its recent decisions chipping away at racial considerations when it came to college admissions, but perhaps from the very start of when the Supreme ever looked at the issue of affirmative action.

            The very first class I taught (co-taught) in college was a course entitled “Justice and Affirmative Action.”  It was  a long time ago.  I  have spent a life time and career thinking about race and affirmative action. What has always struck me is the unease Americans have when it comes to race.

            W.E.B. DuBois once proclaimed that the problem of color-line would be the problem of the twentieth century.  Yet the Supreme Court’s affirmative action jurisprudence has never really embraced it or understood the reality of American politics both historically and today.  Whether it was its 1857 Dred Scott v. Sanford which ruled that slaves were property and not persons, or the 1896 Plessy v. Ferguson  declaring separate but equal as an acceptable constitutional doctrine, the Court has more often than not failed to look beyond formal legal doctrines and see the reality of race in America. 

            The reality is of an American society that remains racist.  Our constitution was born of slavery and race. We fought a Civil War and a civil rights movement over it.    Yet the badges of slavery persist in all of our institutions including criminal justice, housing and education.  Affirmative action was never meant to be the sole tool to abate race, but instead one of several.  It recognized that there was a difference between the use of race for discriminatory as opposed to remedial reasons and that it was an illusion to say that simply passing law  making discrimination illegal would make it disappear.

            Affirmative action at the college admissions level recognized the failures of our society in confronting race.  Perhaps, just perhaps if we truly had integrated and quality schools for all and all students were free to pursue their excellence, affirmative action at the college level would not be necessary. But we do not live in that world.  We do not in part because of the Court’s own decisions such as San Antonio Independent School District v. Rodriguez declaring that there is no constitutional right to education and that discrimination based on wealth is not illegal,  or Keyes v. School District No. 1, Denver where the Court imposed limits on cross-district integration and thereby accelerated suburban white flight.  Both cases were from 1973—undermining civil rights and equal educational opportunities almost from the start.

            The 1978 Bakke v. University of California  was the Court’s first college affirmative action case.  It struck down the racial quota system in place, ruling that race could only be one of several factors  when making admission decisions.  The Court also declared that the only constitutional justification for racial considerations was to promote diversity in the classroom.  Yet Bakke ignored the fact that there was a small cluster of special admission’s slots given to the dean, presumably offered as legacy slots or for rich donors.

            Consistently the Court has ignored the privileged position of legacy admissions at Harvard and other schools. It has ignored the way rich donors can buy admissions for their children, as we say in the stories from a few years ago where individuals such as actress Lori Loughlin paid $500,000 to buy admission for her daughters. to USC.  The Court seems oblivious  to  how some private, prep, and boarding schools give some applicants a special advantage to get into elite schools such as Harvard and Yale. Such schools, one might note, that have produced the majority of Supreme Court Justices. 

            The Court in Bakke accepted the argument that racial considerations to help people of color  were a form of racial discrimination.  That assumption prevailed in all of the Court’s college affirmative action cases, as well as in its decisions, especially under the Rehnquist and then Roberts Courts, when it came to employment and redistricting.  Somehow just declare  the Constitution and the law racially neutral or blind and it will go away.

            Twenty years ago in  Grutter v. Bollinger the Court signaled its impatience with affirmative action when Justice O’Connor declared that she hoped in twenty-five years affirmative action would no longer be necessary. In the Fair Admissions, Inc case decided on June 29, the patience ended.  In part because Harvard and UNC could not say when they would no longer need to consider race to overcome discrimination, that is why the Court had to end it.  In effect, despite the fact that the Court in its decision discussed the history of race in America it was simply time to end it because it discriminated against white Caucasians (such as those individuals who brought the case) and because it just had to come to an end.

            The Supreme Court could have taken a different road in this case. It could have declared that the group bringing the case had no standing to sue because it had not suffered harm.  The Court could have said the Harvard plan was discriminatory toward Asian-Americans and ordered them to fix it without striking down all considerations of race.  But by the time we got to this case the Court had already gone down the wrong path.  It ignored how its own decisions have contributed to racial discrimination and the unequal educational opportunities  and how they have undermined  societal institutions to address racism. In effect, the color obliviousness of Fair Admissions, Inc. v. President and Fellows of Harvard College  was a long time coming.

 

Blue-Collar Education in a White-Collar University

Is American higher education closing its door to the poor and blue-collar students?  According to a recent  New York Times  article the answer is yes. In “Better Colleges Failing to Lure Talented Poor” the Times discusses a recent study finding that poor but talented students are increasingly unlikely to apply to elite colleges, instead opting to attend community and weaker state schools that offer lesser prospects and educational challenges for them.  The study suggests that schools are not doing a good job in enrolling blue-collar students because of poor recruitment techniques.
    The NY Times and the study it reports on have largely missed the point.
    The failure of elite colleges to recruit and retain the talent poor is not just  a problem of financial aid and bad communication to prospective students.  It is also about attitudes, culture, and a failure to foster a learning environment welcoming to working class students and faculty.  It is about the hierarchy of higher education, and the problem of class in America.
    I am one a dying breed of first-generation college students who became a professor and see first hand the return of higher education in American into what it was before World War II–a citadel for the affluent.  Since the 1970s the number first generation college students who go on to get their doctorates has declined, and with that, the percentage of faculty who come from blue collar roots has deteriorated.  The faculty who teach our students increasingly are detached and removed from understanding a working class world.  Blue-collar students have few role models who appreciate their experiences.
    I am also the editor of the Journal of Public Affairs Education.  In a recent issue of the journal  several working class faculty told their stories about life as students and professors.  My story is also included.  The stories recounted ivy league schools with legacy admissions that discriminate against first generation students and even if accepted, fail to appreciate the different ways blue-collar students experience the world, be it in how they talk, dress, or forgo spring break to exotic places because  they need to work.   The faculty stories also point to the same schools unwilling to recruit faculty from state schools because they and their students and parents want to see professors with ivy league degrees next to their names.  It is the good old boy network of high education that  recruits their professors from the ranks of their former students.
    There is a class hierarchy among universities. At the apex come the Ivy League schools, the Seven Sisters, and then the many small-private Ivy League–like schools. It then descends to big research state universities and eventually to community colleges. We all know the hierarchy. We know it from which schools we want our children to attend and from the schools we covet teaching in. The Ivies are supposed to be the most selective, but certainly they are among the most expensive. Working-class and first-generation students are often priced out of going there, and recent studies suggest that admissions officers are focusing more on students who can pay the full tuition.  Research documents that first-generation college students amass far greater debt than those who are not first generation, thereby precluding them from attending these schools.  Other studies also indicate that in general, cost has become a new barrier to higher education and is forcing many first-generation students to drop out of college and perhaps never graduate. The dropout rate for first-generation college students is four times greater than that for those whose parents attended college.
    One may argue that cost is reflective of academic competitiveness and quality. But that is not necessarily the case. Take Harvard, for example. Several studies recount how legacies—children of parents who previously attended Harvard— have a greater chance of securing admission than those whose parents did not attend the school.  Legacy admissions at Harvard are near 30%, nearly four times the rate for the general population.  For supposedly the most selective school in the country, the legacy applicant pool is not as competitive. Additionally, applicants who attend a select number of preparatory schools also seem to benefit in terms of admissions. Children whose parents can afford to send them to the Harvard-Westlake School and Phillips Academy as well as other private schools experience significantly better chances of securing admission to the Ivy League schools than those attending public high schools. Finally, as Ross Douthat  discusses in his aptly titled Privilege, those attending Harvard do so with a sense of entitlement and are rewarded with connections and networks that replicate themselves well beyond school. Overall, students from lower socioeconomic backgrounds face difficulty getting into good high schools that serve as a feeder to elite colleges. Once a parent has attended an elite institution, his or her child has an advantage in being admitted as a legacy. Now one may contend that in fact these children represent the best and the brightest, and that is why they enjoy these advantages. However, given the declining social mobility in America, many students from blue-collar families never have the opportunity to compete fairly—they are economically restricted in their ability to compete.
    Higher education reflects a hierarchy that mirrors the social-economic inequalities and decreasing mobility of American society.  But the bias against the poor is also  cultural, reflecting a world view largely ignorant if not hostile to the experiences of many.  This is what they NY Times and higher education in America largely fail to grasp.
    So how do my blue-collar working-class experiences affect my teaching? I have never held out myself as a role model specifically to blue-collar students. I do not discuss my family background or politics in class. I do not think of myself in terms of identity politics, nor do I approach students by categorizing according to specific identities or background. Yet class affects my teaching in the sense that I do not give anyone special treatment because of their backgrounds, including their socioeconomic status. I emphasize hard work and smarts, and not connections, in my approach to teaching. All my students realize that. Moreover, I am more comfortable with working class students and the most rewarding teaching I ever did was at Minneapolis Community College where I taught  mostly first generations and those on welfare.
    I  have both sympathy and empathy for my students from working-class backgrounds. I can appreciate the situation they are in and respect that they are struggling to go to school and trying to earn a living. But at the same time, from my own life I have learned that these students are not asking for special treatment, just a fair chance and opportunity. I did receive financial aid and support to pay for school, but to succeed academically I learned I had to do it on my own. I showed professors I was willing to work hard and expected them to help me by putting in the time to teach and talk to me. I recognize that my blue-collar students have many obstacles to overcome, they are hesitant to ask for help, and they feel they have to do it on their own. I will provide mentoring and support; I reach out to talk to them; but I expect them to work. My role model, if one exists, is that merit and hard work will be rewarded.
    Conversely, I accept few excuses based on anyone’s background. I teach in a graduate program that includes many working adults. I do my best to appreciate that they are attending school and working, but I cut little slack for them. If I could grunt out work and school, they too should be able to do that. They are expected to deliver and perform. This is the message I learned from my experiences, and that is the message I impart—it is about performance. My blue-collar students understand this message and thrive with it.
    As blue-collar students and faculty we do not want anyone to cut us slack. We accept we have to work harder than the more affluent and we do. We simply want to be given  a fair shot to compete.