Fisher v. Texas: The Limits of Exhaustion and the Future of Race-Conscious University Admissions...
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Fisher v. Texas: The Limits of Exhaustion and the Future of Race-Conscious University Admissions Professor john a. powell Director, Haas Institute for a Fair and Inclusive Society; The Robert D. Haas Chancellor’s Chair in Equity and Inclusion February 22, 2014
Fisher v. Texas: The Limits of Exhaustion and the Future of Race-Conscious University Admissions Professor john a. powell Director, Haas Institute for
Fisher v. Texas: The Limits of Exhaustion and the Future of
Race-Conscious University Admissions Professor john a. powell
Director, Haas Institute for a Fair and Inclusive Society; The
Robert D. Haas Chancellors Chair in Equity and Inclusion February
22, 2014
Slide 2
Fisher v. Texas 2 Fisher on its face did not: strike down UTs
holistic admissions policy overrule Grutter revise or otherwise
alter the constitutional standards announced in Grutter hold that
UTs admissions policy was not narrowly tailored suggest
deficiencies in the UT policy 7-1 Decision
Slide 3
"New Departures" Three ways in which Fisher departs from
precedent Yet, upon a closer reading, Fisher is a departure from
settled law in a number of critical respects. 1.For the first time,
7Justices hold that the use of racial classifications regardless of
intent in university admissions should be subject to strict
scrutiny review 2.Narrow tailoring now requires exhaustion of race
neutral alternatives instead of consideration of them. 3.Good faith
consideration does not suffice. The court, not the University, is
not responsible for assessing the availability of
alternatives.
Slide 4
Exhaustion Requirement Grutter held that narrow tailoring
requires serious, good faith consideration of workable race-neutral
alternatives. does not require exhaustion of every conceivable
race-neutral alternative. To the contrary, Justice Kennedys Fisher
opinion asserts the reviewing court must ultimately be satisfied
that no workable race-neutral alternatives would produce the
educational benefits of diversity.
Slide 5
Unanswered Questions What facts must be presented to satisfy a
court that no workable race-neutral alternatives are viable? What
degree of certainty is called for in order to satisfy the reviewing
court? How are we to understand the standard of tolerable
administrative expense? Where is the threshold for tolerable
expense or the line between tolerable and intolerable expense?
Slide 6
The sociological complexity of race illustrates the limits of
exhaustion. As a social construction, race is not an essential or
static characteristic, but a dynamic one. It is the interaction of
domains such as housing, education, employment, and health, to take
but a few, on each other that explains racialized outcomes. The
attempt to explain or measure the effects of racial discrimination
in any particular domain will be necessarily incomplete. Gunnar
Myrdal: The unity is largely the result of cumulative causation
binding them all together in a system and tying them to white
discrimination. It is useful, therefore, to interpret all the
separate factors from a central vantage point the point of view of
the Negro problemIn an interdependent system of dynamic causation
there is no primary cause but everything is cause to everything
else.
Slide 7
Racialized Populations and Outcomes The relative disadvantage
of certain racialized populations results from dozens of
demographic, social, and economic factors that may vary across
geographic areas and local conditions. The convergence of these
factors with race makes race a particularly useful consideration in
understanding life chances, but it also makes it vexing to analyze
the various complex factors that explain race. An admissions policy
limited to race-neutral factors cannot easily capture their
cumulative effect on educational opportunity.
Slide 8
Administrative Expense Caveat If a nonracial approach... could
promote the substantial interest about as well and at tolerable
administrative expense, then the university may not consider race.
The problem? The administrative expense of developing race-neutral
plans goes far beyond the resources of most admissions committees,
let alone school boards and administrative staff, compared to the
use of racial classifications in either student assignment or
admissions review.
Slide 9
Complexity of Disadvantage Multi-dimensional/multi-indicator
approaches are the future. A single indicator cannot capture the
myriad factors that influence an individuals life chances.
Multi-factor approaches are compelling because they not only paint
a more vivid portrait of the underlying structural conditions, but
are also narrowly tailored particular forms of disadvantage.
Slide 10
Alternative: Opportunity Enrollment Opportunity scoring is a
sophisticated multi-factor methodology that better captures
disadvantages than a single indicator. Opportunity scoring creates
an index of factors which correlate to and causally explain life
outcomes and projected life chances. The opportunity mapping
methodology seeks to understand the distribution of opportunity
over space. Given this geographic dimension, these indices can be
represented using geographic information technology in the form of
opportunity maps. (See http://egis.hud.gov/affht_pt/)
http://egis.hud.gov/affht_pt/
Slide 11
Slide 12
Opportunity Enrollment Model cont. Universities can use
opportunity index scoring to target the most educationally
disadvantaged students and generate racial and other forms of
diversity. Applicants can be given an opportunity score based on a
mixture of both individual and geographic characteristics. For
example, given an index of a particular region, universities could
set a hard quota that 20% of their enrollees are accepted from low
opportunity census tracts. Or, students who were raised or
currently reside in neighborhoods in low or very low opportunity
census areas could also be awarded a mechanical bonus in the
admissions process.
Slide 13
Opportunity Enrollment Model cont. Neither approach would
violate the Court's prohibition against racial quotas or mechanical
use of race, because such bonuses are based on geographic
residence, not race. Opportunity enrollment employs a mixture of
geographic diversity and socio-economic diversity. Because the vast
majority of families residing in low or very low opportunity census
areas are African-American, this would have a positive effect on
racial diversity. In addition, the intense hyper-segregation of
Black and Latino families increases the probability that a
geographic diversity plan would work.
Slide 14
Multi-Indicator Approaches EDUCATION Student poverty rates
Reading/Math test scores Adult educational attainment Teacher
qualifications Graduation rate ECONOMIC HEALTH Proximity to
employment Commute times Job growth trends Business start trends
Unemployment rate Public assistance rate Home ownership rates Crime
incidence Vacancy rates Home value appreciation Neighborhood
poverty rates Population change Proximity to parks/open space
Proximity to toxic waste release sites HOUSING & NEIGHBORHOOD
HEALTH
Next: Next: Stephen Menendian will cover post-Fisher
alternatives and specific examples where Opportunity Enrollment
Models and Mapping have been used.
Slide 17
Fisher v. Texas: Implications for K-12 Integration Stephen
Menendian Assistant Director, Haas Institute for a Fair and
Inclusive Society February 22, 2014
Slide 18
K-12/Post-Fisher Environment A complex landscape: Increased
racial polarization Justice Kennedys concern for white resentment
Increased racial and economic inequality Varying commitments to
integration
Slide 19
Criticism of 10% Plan Less qualified students are admitted
Relies on underlying patterns of segregation, which we should be
working to integrate Abandons racial diversity as an explicit goal
as we pursue other forms of diversity.
Slide 20
Opportunity Mapping and Education 20 Since the racialized
nature of opportunity isolation is a spatial phenomena, maps are
naturally an effective way to represent it Maps allow us to
understand volumes of data at a glance through layering Mapping is
a very powerful tool in looking at educational inequity &
opportunity Opportunity Mapping
Slide 21
Opportunity Mapping For Schools 21 Mapping the geographic
distribution of opportunity helps us to evaluate where these
opportunity mismatches exist in a community and to design
interventions to move people to opportunity Student assignment
policies can be created using indicators, drawing attendance Zones,
boundaries, or through controlled choice plans.
Slide 22
DistrictIndicatorsStepsNotes Jefferson County/Louisvill e, KY
1)Median HH Income 2)Racial Composition of Neighborhood 3)Ed.
Attain of Parents 1) Parental Choice within Resides Zone Two-Zone
model Berkeley, CAL 1)Average Nbhd Income 2)Ed. Attain of Adults in
Nbhd 3)Racial Composition of Nbhd 1)Sibling 2)Parental Choice
within Zone assignment Controlled Choice, 3 Attendance Zones;
Upheld by Cal. Ct. of Appeals Montclair, NJ 1)Median HH income 2)HH
Poverty Rates 3)# of F/R Lunch Stds 4)Ed. Attain of Adults in Nbhd
5)Racial Composition of Nbhd 1)Special needs 2)ESL 3)Siblings
4)Parental Choice within Zone Assignment Magnets Plan,
Freedom-of-Choice, 3-Zones, K students only Chicago, IL 1)Median
family income 2)Adult Ed. Attainment 3)% of Single-Parent HH 4)% of
Owner-Occupied Homes 5)% Of ESL students 1)Siblings 2) of remaining
seats proximity lottery 3)Remaining Seats by SES census block zone
4 Census Block Zones
Slide 23
Berkeley Zones Source: Civil Rights Project at UCLA
Slide 24
Diversity Map Source: Civil Rights Project at UCLA
Slide 25
Cal. Ct. of Appeals We conclude that the particular policies
challenged here which aims to achieve social diversity by using
neighborhood demographics when assigning students to schools is not
discriminatory. The challenged policy does not use racial
classifications; in fact, it does not consider an individual
students race at all when assigning the student to a school. - ACRF
v. Berkeley Unified School Districts
Slide 26
Modeled several educational zones for Montclair, based on five
equally weighted factors. # of Free and Reduced Lunch Students
Parental Education Levels Median Household Income Household Poverty
Rates Race, by neighborhood Each of these factors was calculated at
the neighborhood level, by census block group. Opportunity Zones in
Montclair
Slide 27
*Step 3: From this database, a wait list system is utilized
Montclair
Slide 28
Montclair
Slide 29
Montclair
Slide 30
Three Zone Integration Model: Montclair, NJ Under the plan, the
township would be divided into three zones, labeled Zone A, Zone B
and Zone C. Students would be assigned to zones based on individual
census data, including household income and Title 1 status
(eligibility for Free or Reduced Lunch). Students from all three
zones would then be represented in each school.
Slide 31
Three Zone Integration Model: Montclair, NJ GOAL: Each school
has diversity of students from each zone, within 5% point deviation
of K class zone baseline. K and transfer students are assigned
based on parental preference and zone balance.
Slide 32
Three Opportunity Zone Model Zone Model Without RaceWith
Race
Slide 33
Four Opportunity Zone Model Without RaceWith Race
Slide 34
Why race still matters Alternatives lead to greater complexity,
which places a burden on school districts Empirical evidence is so
far mixed on the success of these plans Multi-factor approaches may
better capture particular forms of disadvantage, but they do a less
effective job of producing raw numerical racial diversity than
individual racial classifications do Alternative factors, including
socioeconomic status, are imprecise Approximating race is resource
intensive and requires outside expertise and consultants
Slide 35
35 Justice Kennedys opinion is controlling as the fifth
vote.
Slide 36
That the school districts consider these plans to be necessary
should remind us that our highest aspirations are yet unfulfilled.
School districts can seek to reach Browns objective of equal
educational opportunity. But the solutions mandated by these school
districts must themselves be lawful.
Slide 37
37 School boards may pursue the goal of bringing together
students of diverse backgrounds and races through other means,
including strategic site selection of new schools; drawing
attendance zones with general recognition of the demographics of
the neighborhoods; allocating resources for special programs;
recruiting students and faculty in a targeted fashion; and tracking
enrollments, performance, and other statistics by race. These
mechanisms are race-conscious but do not lead to different
treatment based on a classifications that tells each student he or
she is to be defined by race. If school authorities are concerned
that the student- body compositions of certain schools interfere
with the objective of offering an equal educational opportunity to
all of their students, they are free to devise race- conscious
measures to address the problem in a general way without treating
each student in a different fashion soley on the basis of
systematic, individual typing by race.
Slide 38
Conclusion Opportunity-enrollment model may well offer an ideal
alternative or complementary admissions policy. Pursuit of policies
such as these will illustrate for the courts the limits of a strict
exhaustion requirement, and perhaps lead to the development and use
of admissions processes that can better measure forms of advantage
relative to discrete and insular minorities.