Monday, July 1, 2013

Rothstein on Fisher v. Texas

Richard Rothstein, Senior Fellow at Chief Justice Earl Warren Institute on Law and Social Policy University of California (Berkeley) School of Law, asked that we share his article on Fisher v. Texas

What the Fisher Decision Ignores: "Diversity " Should Not Replace Integration as Our Goal

The Supreme Court yesterday did not, for the time being, prevent the University of Texas from continuing its affirmative action plan.

Nonetheless, like the voting rights decision issued today, the Fisher case decision was another setback for racial justice. For one thing, the Court invited another challenge after the case again goes through the lower courts. There, the University will have to prove that it could find no other way to get a diverse student body without explicitly considering race, and will have to prove that it used “good faith” in use of race to achieve diversity. If challengers can show that the University’s examination of applicants’ overall qualifications is really a cover for enrolling black and other minority students—for example, if it is more intent on having black students than violin players, or students from different parts of the state, or other “diverse” factors—affirmative action will be in trouble.

The University and its civil rights group allies have, from an understandable tactical need to defend affirmative action by whatever means are available, accepted a Supreme Court framework that undermines equal rights in the long run.

That framework is “diversity.” According to it, we pursue affirmative action not to remedy the legacy of slavery, Jim Crow, and continuing discrimination, not because equal opportunity for African Americans is an end in itself, but because

  • having a diverse student body improves the educational experience for white students, and because
  • it trains corporate and military leaders who will be more effective if they look like and have a better understanding of those they lead.

Forgotten has been the idea that African Americans are underrepresented at the University of Texas and at other elite institutions because, as Justice Ginsburg put it in her lonely dissent, they suffer from “the lingering effects of an overtly discriminatory past, the legacy of centuries of law-sanctioned inequality.” In reality, affirmative action is necessary not to make white students more comfortable in the presence of blacks, but to remedy those effects. . . .

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Rothstein's article goes on to discuss the extent of segregation in schools and the need to address it.  You can find the full article here.

http://lawprofessors.typepad.com/education_law/2013/07/rothstein-on-fisher-v-texas.html

Racial Integration and Diversity | Permalink

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