Wednesday, July 10, 2013
IN LIGHT OF FISHER: WHY THE BLACK IMMIGRANTS SHOULD BE DISTINGUISED FROM ASCENDANT BLACKS FOR ADMISSIONS PUROPOSES
Last week I discussed the changing racial and ethnic ancestry of blacks on affirmative action. In that piece, I noted how quickly Black Multiracials and Black Immigrants (anyone with a foreign-born black parent) will soon constitute the overwhelming majority of black students at many (most?) selective higher education programs, if they don’t already. Earlier this week, I discussed how the changes in the way the Department of Education requires educational institutions to collect and report racial and ethnic data that went into effect in the fall of 2010 requires a new discussion about how to treat Black Multiracials in the admissions process. In this one, I want to argue that differences between Black Immigrants and Ascendant Blacks (those with two native-born parents who were considered black as defined by the one-drop rule) means that these two groups should not be treated alike for purposes of affirmative action.
In 1960, there were only 125,000 foreign-born blacks, who made up 0.7 percent of the black population in the U.S. In 2010, however, there were almost 3,600,000 of them and they made up 8.8 percent of the black population. Foreign-born blacks also have about 1 million U. S.-born children.
Black Immigrants share the commonality of being descendants of Africa with Ascendant Blacks. Nevertheless, there are a number of very important economic, social and cultural differences between the two groups. To begin with, the family income of foreign-born blacks is about 25 percent higher than that of native blacks. In addition, foreign-born blacks are far more likely to have college degrees than native blacks. Indeed, Africans are almost two and half times more likely to have college degrees than native blacks. The largest differences between Black Immigrants and Ascendant Blacks, however, may be in their socio-cultural experiences.
In Justice O’Connor’s opinion in Grutter, she explained why it was possible for colleges and universities to consider race and ethnicity in the admissions process. She stated:
“[j]ust as growing up in a particular region or having particular professional experiences is
likely to affect an individual’s views, so too is one’s own, unique experience of being a racial minority in a society, like our own, in which race unfortunately still matters. . . . By virtue of our Nation's struggle with racial inequality, such students are both likely to have experiences of particular importance to the Law School's mission, and less likely to be admitted in meaningful numbers on criteria that ignore those experiences.”
Clearly, the history of discrimination that justifies the use of racial classifications that O’Connor referred to was that which took place in the United States. This seems obvious. After all, no one seriously contends that selective higher education programs could justify affirmative action in the United States to target the effects of oppression in other parts of the world, including, for example, the exploitation of Koreans in Japan, the negative effects of untouchability on Dalits in India, or British imperialism in Africa or the New World. Thus, it is the experiences of individuals from underrepresented minority backgrounds derived from our nation’s struggle with racial inequality that explain why race and ethnicity can be considered. These experiences also explain why these groups are likely underrepresented in the first place.
There is no question that foreign-born blacks have their negative experiences with racism in the United States. Nevertheless, having grown up and matured in their countries of origin, Black Immigrants who come to the U.S. as adults do not have extensive years of experiencing the impact of the historical discrimination encountered by blacks in the United States. In immigrating, Adult Black Immigrants encounter conflicting sociological forces. They come to a land with a long history of voluntary immigration. Yet, they also come to a place where their race places them at the bottom of a racial hierarchy.
As voluntary immigrants, Adult Black Immigrants tend to have a more optimistic and positive outlook on their conditions in American society than Ascendant Blacks. For many Adult Black Immigrants, the racism and discrimination they encounter is part of cost to obtain the benefits they accrue from choosing to come to the U.S. Since most foreign-born blacks come from countries with substantial black majorities, race does not play an important role in their psychological and emotional development. Coming from countries with substantial black majorities also means that Adult Black Immigrants will be use to seeing blacks wield significant economic, political and educational authority. This may provide them with the empowering expectation that success in society is not tied to race, an idea that Ascendant Blacks with their experience growing up in the United States would find difficult to embrace. Since Adult Black Immigrants mature in their home country, many of them do not bring with them to the United States the strong desire to engage in the fight against the racial injustice here. This is something that was plain to me during my travels through South Africa, where I was the foreign-born black immigrant. While I was subjected to the same race discrimination that black South Africans encountered, I had a huge emotional and psychological distance from the experience of racial oppression there.
The term “Black Immigrants,” includes foreign-born blacks who immigrated as adults, as well as those who immigrated as minors and the children of foreign-born blacks. These latter two groups come of age in the United States and, thus, are exposed to more of the historic experience of being an underrepresented minority with a history of discrimination than their parents. Nevertheless, their foreign-born parent(s) and their foreign heritage are likely to have a very important impact on their experiences of race in the United States. Simply put, it is wrong to equate the experience of history of discrimination in the United States that Ascendant Blacks have undergone with that which Black Immigrants experience. To do so, devalues the experiences of Ascendant Blacks.
Tuesday, July 9, 2013
IN LIGHT OF THE FISHER DECISION: WHY THE ADMISSIONS PROSPECTS OF BLACK MULTIRACIALS MUST BE ADDRESSED
Last week I discussed the changing racial and ethnic ancestry of blacks on affirmative action. In that piece, I noted how quickly Black Multiracials (those individuals with one non-black and one black parent, as defined by the one-drop rule) and Black Immigrants will soon constitute the
overwhelming majority of black students at many (most?) selective higher education programs, if they don’t already. I suggested that in light of the Supreme Court’s decision in Fisher, now is the time to turn our attention to this issue. In this blog, I want to discuss how conditions have changed with regard to the admissions process of Black Multiracials that makes it imperative to have such a
discussion, regardless of how the ultimate treatment should be worked out.
Race is a socially constructed concept. Nowhere is this more obvious than when dealing with the historical issue of the treatment of mixed-race individuals with some African ancestry in the United States. The current recognition of Black Multiracials as distinct from other blacks is an emerging and relatively recent phenomenon. For virtually the entire 20th century, the one-drop rule determined who was black. As late as the 1960 census, there was no separate category for Latinos. They were classified based on their race, not their ethnicity. Thus, at the time that affirmative action policies were being formulated, 99.4% of Americans were considered either black or white. The one drop rule allowed everyone in American society to know virtually any person’s
race based on their physical appearance. As a result, race was a socially ascribed trait, not a characteristic that resulted from self-identification. As long as American society socially constructed race in this way, regardless of the feelings of mixed-race blacks, simply put, there were no Black Multiracials.
During the late 1980s and early 1990s, a multiracial movement developed that sought to add a separate “multiracial” category to all state and federal forms. According to Kim Williams who
studied this movement, most of the leaders were white women married to black men who did not feel that it was right to identify their children as black. In response to these complaints, in 1997, the federal government adopted new regulations for the collection and reporting of racial and ethnic data (1997 Standards). The 1997 Standards specified that self-identification is the preferred method to determine a person’s race. While the government rejected the inclusion of a “multiracial” category, it did requires that those collecting racial and ethnic data use forms that provide individuals with the opportunity to answer whether they are Hispanic/Latino and then to designate all of the racial categories that apply to them from a list that must include American Indian or Alaska Native; Asian American; Black or African American; Native Hawaiian or Other Pacific Islander; and White. The 2000 and 2010 censuses were conducted consistent with these requirements.
The 1997 Standards also require that other federal agencies adopt new regulations for collecting and reporting racial/ethnic data that comply with it. The Department of Education (DOE) corresponding regulations went into effect in the fall of 2010 (the Guidance). Under the Guidance, individuals who indicate that they are Hispanic/Latino are reported to the DOE as such, regardless of which racial categories they check. Non-Hispanic/Latinos who indicate black and at least one other racial category are included in a new “Two or More Races” category, along with other multiracials. In other words, self-identified Black Multiracials are no longer counted by educational institutions as black. The federal government has abandoned the one-drop rule and forced public and private educational institutions to do so as well.
The 1997 Standards and the Guidance reject the notion that race is a socially ascribed characteristic. Rather they make self-identification the preferred means in which to determine a
person’s race. This change alone may not have been enough to allow individuals with some black ancestry to truly self-identify their race. However, the substantial influx of immigrants of color from Asia, Latin America, the Middle East and North Africa, over the past 50 years altered the complexion and the facial features of American society. In 1960, those who were neither black nor white made up less than 1 percent of the American population. In 2010, they made up almost 24 percent, almost double the percentage of black population. As a result of this new wave of immigrants, the application of the one-drop rule no longer provides a reliable approach to
determine the race of a large number of those who used to be socially ascribed as black. With respect to racial identity, as the 21st century unfolds blacks with lighter skin complexions and racially ambiguous features increasingly encounter the question from others, “what are you?” Thus, the massive new immigration of people of color from the rest of the world helped to
enhance the ability of Black Multiracials to self-identify as multiracial as opposed to black..
As we move beyond the Supreme Court’s decision in Fisher, for purposes of affirmative action it is not whether Black Multiracials self-identify as black or with all of their racial categories that
is significant. What is important is the demise of the one-drop rule, coupled with the ability of individuals to self-identify their race. These developments have created the social reality that Black Multiracials can now choose a racial identity other than “Black or African American.” Because Black Multiracials can choose their racial identity, admissions policies and procedures based on their inability to do so, like affirmative action, need to be adjusted to take into account this new reality.
Tuesday, July 2, 2013
Over the past five years, I have mentioned the issue several times. I have discussed this problem with officials of the American Bar Association, the American Association of Law Schools and the Law School Admissions Council. See here. In each of those discussions, I have emphatically speculated that if current trends continue, first and second generation black immigrants (Black Immigrants) and mixed-race blacks (Black Multiracials) will come to make up 80% of the black students in most law schools throughout the country by the year 2020. While all of the officials agreed that this was a distinct possibility, the most disconcerting thing is that none of them believed that anything should be done about it!
Many of us who are staunch supporters of public education do so because of our strong belief that education is the best (or perhaps, the only) way to address the problems of large numbers of poor, urban minority blacks. While we advocate for improvements in K-12 urban education, we see this as only one part of the pipeline necessary to achieve the ultimate goal of a large percentage of these students graduating from four year colleges and universities and, for many, successfully completing graduate programs. For educational pipeline believers, affirmative action is essential. It allows us to know that students most victimized by our society’s history of racism can graduate from selective higher education programs. It is with this preface that I want to discuss the changing racial and ethnic ancestries of blacks attending selective higher education programs.
We were first introduced to this issue by Harvard professors Lani Guiner and Henry Louis Gates in the same month that the Supreme Court decided Grutter. They pointed out that Black Immigrants and Black Multiracials comprised two-thirds of Harvard’s black undergraduate population. Following the “Harvard Revelation,” a 2005 article in Diverse Issues in Higher Education noted the findings of a Princeton study of the “black” students who in 1999 entered twenty-eight selective colleges and universities, essentially the same ones William Bowen and Derek Bok examined in Shape of the River. The study revealed that 41 percent of these black students were either Black Multiracials or Black Immigrants. A follow up study concentrated just on the presence of Black Immigrants. It discovered that Black Immigrants made up 35.6 percent of the blacks in the ten most selective institutions and 40.6 percent in the four Ivy League schools. According to a 2005 statement by Dr. Michael T. Nettles, Vice President for Policy Evaluation and Research at the Educational Testing Service, “[i]f Blacks are typically 5 percent and 6 percent of the population at elite colleges, then the representation of native United States born African-Americans might be closer to 3 percent.” In regards to Black Multiracials, a 2007 study of 31 of the most elite private colleges and universities in the country that compose the Consortium on Financing Higher Education disclosed that Black Multiracials made up 23 percent of the black students at those institutions. To demonstrate how widespread the changing racial ancestry of blacks benefiting from affirmative action has become, statistics from the admissions office of Indiana University-Bloomington showed that Black Multiracials comprised 18.7 percent of the black students in the combined incoming freshman classes for the fall of 2010 and 2011.
No matter how over represented the above evidence suggests Black Multiracials and Black Immigrants are among black students, those numbers understate the problem. The percentages of both groups among blacks of college age will skyrocket between 2010 and 2020. For example, the percentage of blacks in the country who are foreign-born has increased from 1.1 percent in 1970 to 4.9 percent in 1990 to 8.8 percent in 2010. According to the 2010 census, at that time the percentage of mixed-race blacks among blacks age 15 to 19 was 6.5 percent. However, their percentage increases to 13.7 percent for those between the ages of 5 and 9. Thus, if current enrollment trends continue, well before the expiration of the 25 year window for affirmative action provided by Justice O’Connor in her opinion in Grutter, a virtual prerequisite for blacks attending selective higher education programs will be that they must have either a foreign-born black or non-black parent.
The problem I am alluding to is not that Black Immigrants and Black Multiracials benefit from affirmative action. Surely, a strong argument can be made that they should receive some positive considerations in the admissions process. The problem is that selective higher education institutions, including our own law schools, are in the process of excluding the black students with two native-born parents who were considered black, as defined by no longer applicable one-drop rule. I call this racial/ethnic group of blacks, “Ascendants” because of this group’s ascendency out of slavery and segregation. The Ascendants were the ones responsible for affirmative action. But, for them, the Fisher decision creates no sigh of relief.
One of the conceptual problems with the concern about the disappearance of Ascendants I raise is that it requires us to draw racial and ethnic distinctions among blacks. Historically, American society has largely been oblivious to such distinctions. In addition, over the past 100 years the African-American Community has been very hostile to efforts to divide the Community. In the following two entries, I want to discuss why it now makes sense to draw distinctions between Black Immigrants, Black Multiracials, and Ascendant Blacks for the limited purposes of affirmative action.
Friday, June 14, 2013
A rich scholarship on implicit bias is constantly expanding, but most of what I have read in the past proceeds at a general level or focuses on contexts other than education, such as policing, employment, juries, etc. I am glad to see that the Kirwan Institute's new report, State of the Science: Implicit Bias Review 2013, includes an entire chapter devoted to implicit bias in education. The chapter begins:
Implicit bias can permeate educational settings in several forms, all of which can yield disadvantageous consequences for students of color. Teacher expectations of student achievement, teacher perceptions of students behavior, and students' self-perceptions are three key themes highlighted in the literature.
In other words, the reports indicates that implicit bias plays a role in the black-white achievement gap, the disproportionate disicpline of minority students and the "school to prison pipeline," and students aspirations.
Wednesday, June 12, 2013
The Connecticut Department of Education just released its annual report on school discipline. The good news in the report is that suspensions are down overall statewide. The bad news is that the suspension rate for minorities continues to be off the charts, as does the suspension rate in charter schools. The suspension rate for African Americans is just short of 20% and nearly 4 times the rate as whites. The data on charter schools was even more shocking. The suspension rate in charter schools was almost 10 times the rate of regular elementary schools. While I have heard charges for some time that charter schools push out children, I had never examined data to substantiate the charge. The data in this report, however, is not conclusive on that point. First, comparing all elementary schools to charters is probably unfair, as charters tend to draw disproprotionately poor and minority students in many places. If one compared the suspension rates of charters to similarly situated regular schools, they disparaty would likely be smaller. Second, these suspensions may not lead to push outs. Rather, it could be evidence of new student populations adjusting to new environments (as many charters are new and have more strict behavior expectations). For more analysis of the report, see here.
Thursday, June 6, 2013
Last week, a federal district court in M.D. v. School Bd. of City of Richmond, 2013 WL 2404842 (E.D. Va. 2013), dismissed a six-year old African American child's claim that his school had been deliberately indifferent to racial and sexual harassment. The child alleged:
Between February and the end of April 2013, other children—identified only as
children of Hispanic ethnicity—persistently teased Plaintiff on the basis of his
race and perceived sexual orientation. ( Id. at ¶¶ 9–12.) Specifically,
the other students repeatedly and continuously directed vulgar and offensive
racial epithets at Plaintiff, verbally abused him, physically assaulted him, and
stole his property. ( Id. at ¶¶ 10–12, 23.) The other students also
insinuated that Plaintiff was gay, apparently owing to Plaintiff's non-violent
demeanor. ( Id. at ¶ 12.) In short, the Plaintiff was subjected to what
might be properly characterized as severe bullying. ( Id. at ¶ 23.)
Ultimately, this led Plaintiff to suffer extreme emotional damage and a fear of
school, even after he later enrolled in a new school. ( Id. at ¶¶ 13–14,
The court reasoned that: a) the sexual harassment was based on perceived sexual orientation rather than gender, the later of which the court indicated is necessary to state a claim; and b) the student transferred to another school before the defendant had an opportunity to address the problem; thus, it was not deliberately indifferent to his parents' complaints.
The court's recitation of the facts is limited, but this case raises a few serious issues. First, other courts have not so easily dismissed claims related to sexual orientation claims, as they posit the question is whether a student is being harassed for failure to conform to gender stereotypes. Nabozny v. Podlesny,92 F.3d 446 (7th Cir. 1996);Higgins v. New Balance Athletic Shoes, Inc., 194 F.3d 252, 261 n.4 (1st Cir. 1999); Schmedding v. Tnemec Co., 187 F.3d 862, 865 (8th Cir. 1999); Doe v. S.E. Greene Sch. Dist., 2006 U.S. Dist. LEXIS 12790 (W.D. Pa. Mar. 24, 2006); Schroeder ex rel. Schroeder v. Maumee Bd. of Educ., 296 F. Supp. 2d 869, 879-880 (N.D. Ohio 2003); Montgomery v. Indep. Sch. Dist. No. 709, 109 F. Supp. 2d 1081 (2000); Carrasco v. Lenox Hill Hosp., 2000 U.S. Dist. LEXIS 5637, 2000 WL 520640, at *8 (S.D.N.Y. Apr. 28, 2000). This court does not address this precedent.
Second, at such a young age, it seems extremely dangerous to speculate as to what this child's sexual orientation is or is not. This court seems to suggest he is heterosexual, but other students perceive him as gay. Again, I am not sure it matters if the question is whether he is being harassed for failure to confirm to gender stereotypes.
Third, the court's best argument is that none of this matters because the district's reaction cannot be shown to be clearly unreasonable because the student transferred by the time the district expressed a willingness to come up with an intervention plan. The court, however, does not explain why as a matter of law plaintiff's allegations that the school did almost nothing for over a month (which is what led to the transfer and distrust) does not state a claim. I wonder how long any parent would leave their six-year child in this situation if the parent had other options. Is the implication of the court's holding that a parent only has a claim if they take a wait and see approach with the harassment?
Thursday, May 16, 2013
A little over a month ago, a coaltion of community members and local organizations in DC sued the DC Public School System in an attempt to stop the continued policy of school closings. Cribbing from the court's order:
"All fifteen schools on the final closure list lie east of Rock Creek Park, a historical dividing line within the city. East of the Park, residents are generally poorer and overwhelmingly black and Hispanic; west of the Park, residents are wealthier and mostly white. The halls of the closing schools reflect those demographics. In DCPS schools as a whole, 68.4% of students are black; 13.8% are Hispanic; 3.7% are Asian, other, or unknown; and 9.2% are white. In the schools slated for closure, by contrast, 93.7% of students are black; 5.9% are Hispanic; 0.4% are Asian, other, or unknown; and less than 0.1% (2 out of 3053) are white. The figures skew similarly, if less starkly, for disabled students: 27.7% of students in the closing schools are in special education, versus 14.2% of students in DCPS overall."
The plaintiffs alleged that the plan was racial discriminatory, violated the rights of special education students, and that the process by which DCPS made its decision violated the city's notice requirements. Yesterday, the federal district court rejected plaintiffs' motion for preliminary injunction, finding that plaintiffs had a low likelihood of success on the merits. The district court's opinion is here: Download School Closings --- Order.
In most respects, the opinion is a straightforward application of existing law and doesn't break new ground. Interesting, however, is the issue of what it means to discriminate in the context of facts where one knows a policy will affect only minorities. From the perspective of the Supreme Court's seminal opinion on the meaning of intentional discrimination in Mass. v. Feeney, one must act because of, not in spite of, disparate impacts. This principle makes a great deal of sense in the context of the facts of Feeney, where the state was seeking to benefit veterans, which is a legitimate goal. The only way to benefit veterans is "to benefit veterans."
The principle is not so obvious in the context of school closings where the district is picking which ones to close. There are necessarily multiple options and no obvious legitimate goal to benefit or burden any group. Ultimately, the district needs to operate fewer schools and closing any schools, including ones currently at capacity, can achieve that goal. Thus, the question is not necessarily which schools are the most underutilized, but rather, which students will feel the burden of school closing. When minority students are the only ones that feel that burden, one can legitimately ask whether the district would ever undertake a policy in which whites were the only ones feeling the burden.
You might also find in the subtext of the opinion the role of charter school growth in the closing of traditional public schools. Charter schools have rapidly expanded in minority communities in DC, and the under-enrollment in the schools slated for closure is closely connected to the growth of charter schools.
Monday, May 13, 2013
A few days ago, the Sixth Circuit in Spurlock v. Fox rejected a claim by an African American community challening Nashville's student assignment plan. Nashville's school district was under court ordered desegregation until 1998. The current challenge centers around the district's adoption of a neighborhood schools plan that retained some transfer options for students, but which retained few options and less integration.
An interesting aspect of the case was the plaintiffs' allegation that the mere consideration of racial demographics in adopting the new plan amounts to a racial classification that should trigger strict scrutiny. This same argument was recently made in Doe v. Lower Merion, 665 F.3d 524 (3d Cir. 2011), although there the challenge was to a racially integrative plan. Both Spurlock and Doe rejected this argument, relying on Justice Kennedy's controlling opinion in Parents Involved v. Seattle. Thus, the opinion, although a negative outcome for African American students seeking access to better schools in Nashville, is favorable precedent for school districts that want to consider racial demographics to create integrative assigment policies. The Spurlock opinion is available here: http://www.ca6.uscourts.gov/opinions.pdf/13a0135p-06.pdf
The case also raise key issues about equal access to quality educational opportunities and the meaning of intentional discrimination, which I will address in upcoming posts.