Co-authored with Alan Brownstein. Cross-posted from Justia's Verdict.

In the space below, we analyze an important and interesting decision, Demers v. Austin, involving the First Amendment academic-freedom rights of public school and university faculty members that was handed down last week by the United States Court of Appeals for the Ninth Circuit.  We are quite sympathetic to the thrust of the Ninth Circuit ruling, but we think that a more concrete and categorical framework for resolving academic freedom disputes needs to be fashioned, lest public schools and their faculties be embroiled in a great deal of time- and money-consuming litigation that will generate inconsistent and unpredictable results.

Some Background on the Demers Case

As is relevant here, the facts of the Demers case are pretty straightforward.  David Demers is a tenured member of the faculty at the Edward R. Murrow College of Communication at Washington State University, a large, public, research-oriented university located in Pullman, Washington.  While serving on a university committee charged with exploring possible changes to the way in which the Murrow College was organized and the way it should relate to other units of the University, Demers wrote and distributed a document called "The Plan."  The Plan was Demers's two-page blueprint for dealing with some of these issues of organizational structure and funding (and some other matters too).  Demers did not distribute The Plan to other members of the committee on which he served, but he did send The Plan to high-level administrators at Washington State, as well as to members of the media and others.  After suffering what he claimed were adverse employment actions, Demers brought suit against various members of the Washington State administrative hierarchy alleging that they had retaliated against him, in violation of his First Amendment rights, for distributing The Plan and the ideas contained in it.

The defendants denied that any action they ever took against Demers was in retaliation for his having distributed The Plan. They also argued that, in any event, The Plan was not protected speech under Supreme Court doctrine because it was written and circulated "pursuant to Demers's official duties."  The trial court ruled in the University's favor. On appeal, the Ninth Circuit reversed the trial court's decision, at least in part.

The Ninth Circuit's Decision That Garcetti Does Not Apply

The three Judges on the Ninth Circuit panel agreed with the University that "The Plan" was undertaken pursuant to Demers's official duties (even though he tried to characterize it as something he wrote and circulated in his private-person capacity) because it addressed much of the subject matter of the University committee on which he served, and because he sent it to, among others, University administrators who might have been able to act on it.  But the Ninth Circuit then definitively held that not all things that a public school academic employee writes and distributes in connection with his official duties are without First Amendment protection. In particular, the Ninth Circuit ruled that the complete-deference-to-the-government standard of Garcetti v. Ceballos-a 2006 United States Supreme Court decision-does not apply in the setting of public employees who are teachers and scholars.

Garcetti involved a memorandum written and publicly disseminated by a deputy district attorney alleging that a police search warrant affidavit contained problematic falsehoods and misrepresentations.  When higher-ups in the DA's office seemed to punish him for blowing the whistle in this way, he filed suit contending that he had been the victim of retaliation for his comments, in violation of the First Amendment.  The Supreme Court held that "when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline."

The Ninth Circuit in Demers held, building on language in some of the opinions in Garcetti and other cases discussing "academic freedom," that the Garcetti framework does not apply to "speech related to scholarship or teaching."  Instead, according to the panel, teaching and academic writing that are performed pursuant to the official duties of a teacher and professor should be governed by the two-part balancing test laid out by the Supreme Court in the pre-Garcetti case of Pickering v. Board of Education.  Under that test, the employee must show first that his or her speech addressed matters of public concern.  If this requirement is satisfied, then the employee's speech is protected from punishment if the employee's interest "in commenting outweighs the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees."

Our Evaluation of the Ninth Circuit's Course of Action

We well understand why the Ninth Circuit decided not to apply the Garcetti approach to the university-professor setting across the board.  But we are troubled by the indeterminate, ad-hoc character of the Pickering balancing test, and we think that more categorical boundaries need to be identified in order to provide an appropriate structure for the litigation between schools and their academic employees that will likely ensue once Garcetti is found not to govern these disputes.

Let us begin by explaining why we think there is a strong case to be made that university professors deserve First Amendment protection for at least some of what they say and do, even when they do it on the government's dime and pursuant to their public-employment duties. It is always dangerous to identify certain classes of public employees who should enjoy more free speech rights than others, but we think that a distinctive protection for professors can be derived from a functional analysis of the jobs that universities are supposed to play in modern society.  We focus on two functions, in particular:

First, many universities play a unique role in our society in pressing beyond accepted wisdom to critique and expand our knowledge of the world.  Universities are committed to certain methodological principles, but so long as research is done within that methodological framework-which requires, among other things, comparison of theory to empirically verifiable phenomenon, rigorous logic, and the careful separation of premises from conclusions and correlations from causes, and attention and responses to counterarguments that have been made or are likely to be made against any particular thesis-universities are committed to going wherever the search for truth leads.

Second, universities serve as an independent source of values and authority and as such they operate as a check on government power-a function that is comparable to the ways in which the press or organized religion can serve as a check on government abuses or mistakes. University academics have blown the whistle on many instances of government error or overreach.  The difficulty with applying this argument to public universities, however, is that we would be asking the government to fund a check on its own authority. But the idea is not implausible. The basic notion is, after all, intrinsic to all the separation of powers; the legislature funds the courts, for example, which themselves serve as a check on legislative authority.

For these reasons (which largely explain some of the stray Supreme Court language, extolling the virtues of academic freedom, on which the Ninth Circuit relied in rejecting the applicability of Garcetti), we see potential room to carve out special protections for academic speech. But if a functional analysis helps make the case for special protections for university scholars, it also substantially undercuts the claim for academic freedom by elementary- and high-school teachers (which the Ninth Circuit also recognized albeit in dicta.)  Elementary and middle schools, of course, serve different purposes than universities.   The range of stakeholders is broader. More importantly, public-school education involves a mixture of values and cultural inculcation-that is, teaching children what society wants and needs them to accept-as well as the development in students of intellectual maturity, independence, and the ability to think for themselves.  And there is no consensus (the way that there might be a consensus on the purposes of research universities) on how that mix should work. As a result, there is a much shakier foundation for judicial review. And simply substituting judges' opinions on pedagogical issues for those of school boards or administrators seems troubling in principle and chaotic in practice.

Relatedly, elementary- and high-school teachers are not in the business of generating new knowledge; it's not part of their function. As a result, there is no functional need to promote free inquiry in the performance of their jobs. In a similar vein, high schools are not intended to serve as sources of values that serve a checking function on government.  And finally, operating the public schools is a traditional local governmental function. Community interests, values, and needs may differ by location. Democracy is responsive to local differences and concerns. First Amendment doctrine might have the tendency to universalize, homogenize, and nationalize public-school curricula and pedagogical decisions.

Because universities are so different from elementary and high schools in this regard, we think that the Ninth Circuit should probably have limited its holding concerning Garcetti's applicability (or non-applicability) to the research-university setting.  Even though the Ninth Circuit observed that the Pickering test must be attentive to context, we can foresee much mischief if an ad-hoc balancing test like Pickering's leads to a flood of lawsuits brought by elementary-school and high-school teachers who object to the pedagogical decisions made by principals and local school boards on first amendment grounds.

And even within the realm of the university, we wonder whether the Pickering formula is too open-ended, and likely to produce costly litigation that is so fact-specific that it cannot be resolved short of full-blown and time-consuming trials.  The Ninth Circuit does say that some deference to universities is owed in some settings, but not all lower courts will be clear about how much deference to afford, and free-speech review involving tests that demand indeterminate balancing may be an invitation to constitutional litigation by every scholar who disagrees with the evaluation of his or her teaching or scholarship.

A more categorical approach is greatly preferable. Various substantive decisions, as long as they are clearly communicated to the faculty so as to avoid any notice/due process problems, should be beyond the scope of constitutional review. (State legislatures or public universities may elect to subject these decisions to judicial review, but the Constitution does not require that they do so. That way, if review becomes problematic and unreasonably costly, it can be modified without changing constitutional doctrine.)

For example, universities should be free to determine their curricula, and also be free to prescribe precisely what particular classes should cover. Professors can be required to teach assigned classes, notwithstanding their subject-matter preferences. Universities can determine classroom hours, etc. If an economics professor decides instead to write literary criticism, the department can reject his work as unacceptable within the discipline in which he was hired to teach. The Supreme Court case of Arkansas Public Television Comm. v. Forbes suggests that judicial review under the free speech clause is inappropriate when government engages in functions that require the exercise of substantial editorial discretion.

Clearly, that reasoning applies to many content-neutral and content-discriminatory university decisions. And even a fair bit of viewpoint discrimination may be permissible. For example, to our minds it does not necessarily violate the First Amendment for a university to require balanced teaching on controversial subjects in the classroom, even if a professor would have a preference to be more polemical.

In the space of this essay, we cannot, of course, construct all the categories we think should be identified to guide and reform otherwise standardless judicial balancing, but we hope that Demers is the first step in the direction of that enterprise by lower courts.

On Monday, the Supreme Court opted against a definitive ruling on the constitutionality of the University of Texas' race-based college admissions program and instead sent the case back to the U.S. 5th Circuit Court of Appeals for a closer look at the university's policy. Many will view the decision as a punt. But as football fans know, punts are often important plays in a game. And proponents of race-based affirmative action have every reason to see this play as working in their favor.

Affirmative action has tended to divide the court in consistent ways. Justices Antonin Scalia and Clarence Thomas (and, based on more general things they have said, likely also Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr., though these two did not tip their hands Monday) think that race consciousness is not a constitutionally permissible way to assemble a minimally diverse student body.

Other justices, especially Ruth Bader Ginsburg but also probably Stephen G. Breyer, Sonia Sotomayor and Elena Kagan, think universities should be allowed significant latitude to consider race to promote diversity, provided the schools are acting in ways that assist underrepresented racial minorities.

Justice Anthony M. Kennedy, who wrote Monday's ruling and whose views have held sway in recent affirmative action cases, has staked out an in-between space defined by a fundamental distrust of — but not an outright prohibition on — schools' use of race.

So why should universities feel comfortable about being confined to Kennedy's middle-ground territory? Because Kennedy could have moved into the ranks of the more conservative justices and adopted a rigid prohibition, but chose not to.

Writing for the majority, Kennedy expressed his long-standing view that "strict scrutiny" must be applied to any university's use of race. (Indeed, he chided the 5th Circuit precisely because it deferred to the university's judgment and failed to undertake an independent inquiry into whether the school had adequate justification for using race.)

And he added that a reviewing court "must ultimately be satisfied that no workable race-neutral alternatives would produce the educational benefits of diversity." By this, Kennedy was referring to the University of Texas' race-neutral Top 10 Percentage Plan (wherein the top 10% of each Texas high school is guaranteed admission regardless of standardized test scores or other metrics) that was already generating some diversity at the university. But, importantly, he did not require (or even come close to requiring) that all colleges try such percentage plans before adopting race-based programs.

Although Kennedy's "almost never" approach might seem analytically similar to the "colorblind" approach of more conservative justices, what counts most in the real world of affirmative action is the court's bottom-line answer to the question of whether the use of race is categorically forbidden. In this setting, a door for affirmative action that is slightly ajar is closer to being wide open than it is to being slammed shut; if the door is cracked at all, universities can maintain race-based programs. As the line from "The Princess Bride" goes, "There's a big difference between mostly dead and all dead."

Kennedy's stance has been that, although race consciousness is very hard to justify, it is not completely improper, and nothing in Monday's decision departs from that position. What this means practically is that most universities are still not prohibited from considering race as part of their admissions criteria. There is an exception, of course, in states that have passed laws prohibiting race as a criterion, such as California's Proposition 209.

In most states (and at private schools) though, we're likely to see universities continue to do what they've been doing. They will simply be careful to justify doing so in the precise terms Kennedy seems to want.

Of course, whether schools are truly complying with the letter or even the spirit of Kennedy's vision is another matter. Any justice saying "rarely but not never" faces the difficulty of crafting language that articulates precisely what is allowed and what is forbidden.

Kennedy tries by saying race consciousness must be "necessary" and "narrowly tailored" to the goal of diversity, but these words are inevitably susceptible to broader and narrower interpretations, especially because Kennedy makes clear that the proper understanding of these terms depends on context. Indeed, the fuzziness of this language enabled a wide range of justices (including Alito, Breyer and Sotomayor) to join Kennedy's opinion, even if they don't all agree on precisely what the standard means in every application.

As a result, universities — even those acting in good faith — can't know precisely where the line is, and thus can operate somewhat aggressively, adopting a reading of Kennedy's yardstick that, while debatable, permits them to continue to consider race in admissions decisions. And any challengers will have to take on the specific policy of each school, one at a time. This will remain true even if the 5th Circuit, on remand, strikes down the University of Texas' plan.

For good or ill, there is often a gap between what the law requires in the abstract and what the law means on the ground. And this gap may be wider the less absolute the governing legal principle is. That is one reason why some judicial umpires, most notably Scalia, prefer bright-line rules to case-by-case tests.

Cross-posted from The Los Angeles Times.

One of the most e-mailed items in the New York Times for the past day or so has been Claire Vaye Watkins "The Ivy League Was Another Planet." (The alternative headline is "Elite Colleges Are As Foreign as Mars.") In her op-ed, Watkins recounts her journey from nonmetropolitan Pahrump, Nevada to college at the University of Nevada, Reno. Her story is that of a kid from a working class family in "rural" Nevada (her description; technically, Pahrump is not rural because, though unincorporated, its 2010 population is more than 35,000) who didn't know about colleges or how to pick one.  Lucky for her, Watkins went on to get an MFA from Ohio State and is now an assistant professor of English at Bucknell.

Watkins writes of getting her wake-up call about dramatic variations in educational resources when she was a high school senior, vying for a prestigious state-funded scholarship. That's when she met a peer from a Las Vegas high school who attended a magnet school, took college prep courses, had a tutor, and had spent time abroad.  The variations in resources, she realized, were based on geography:  he was an urban kid and she was a rural one.  But they were also based on class.  She doesn't specify the background of the Vegas teen, but she mentions that her mother and step-father had not gone to college.  I note that Pahrump's poverty rate is a fairly steep 21.1%.  Just 10.1% of residents there have a bachelor's degree or better, compared to about 30% nationwide.

Even after meeting the privileged teen from Vegas, however, Watkins didn't know what she didn't know.  She remained ignorant of the world of elite colleges, a sector that represented the "other planet" or "Mars" of the headline.  Instead, Watkins applied to UN Reno, she explains, because she had once taken a Greyhound bus to visit friends there. As Watkins expresses it, when poor rural kids apply to college (which, I might add, is altogether too rare), they typically apply to those institutions to which they have been "incidentally exposed."

Commenting on what admissions deans at elite schools might do to reach out to high-achieving, poor rural kids--whom they purport to be interested in for reasons of diversity and excellence--Watkins suggests, tongue in cheek, that they do "anything." More specifically, Watkins cleverly contrasts Ivy League efforts to recruit rural kids, which might be characterized by the terms "zip" and "nada," with military efforts to recruit the same kids, which might be characterized as "fulsome" and "robust." Guess who's winning that contest? The military, of course.  Here are just a few of the points Watkins makes:

• No college rep ever showed up at Pahrump Valley High school, while the military brought a stream of alums through there on a regular basis.
• The school devoted half a day each year to ensuring that every junior took the Armed Services Vocational Aptitude Battery (ASVAB); that test was free, while taking the ACT and SAT was  not.  
• "But the most important thing the military did was walk kids and their families through the enlistment process."

Watkins closes by noting that elite colleges need to do more to reach those she calls "the rural poor," concluding that, until they do, "is it any wonder that students in Pahrump and throughout rural America are more likely to end up in Afghanistan than at N.Y.U.?"

The jumping off point for Watkins' op-ed is a recent paper by two profs (from Harvard and Stanford, no less), Caroline Hoxby and Christopher Avery, "The Missing 'One-Offs':  The Hidden Supply of High-Achieving, Low Income Students."  That paper was publicized in the Times last week-end in David Leonhardt's story, "Better Colleges Failing to Lure Talented Poor."  The summary and conclusions of the Hoxby and Avery paper do not talk in terms of rural-urban difference in relation to these missing "one-offs."  (They do, however, employ a tiny bit of geographical nuance in Table 9, listing two categories of "rural" students, those near an urban area and those far from one). Instead, Hoxby and Avery focus on the benefits to students of being in "geographic concentrations of high achievers."  They write in their abstract, for example, that these high-achieving students who fail to apply to elite schools

come from districts too small to support selective public high schools, are not in a critical mass of fellow high achievers, and are unlikely to encounter a teacher or schoolmate from an older cohort who attended a selective college.  

And where might those students be?  mostly in rural schools.  For folks like Watkins, it isn't hard to read between the lines and see that the high achievers most likely to slip between the cracks are kids in rural schools.    

All of this brings to me my own experience.  Like Watkins, I can see that many of the "missing" students Hoxby and Avery are talking about are rural.  My own K-12 school in rural Arkansas had an enrollment of about 400--and no counselor whatsoever to advise on college admissions. The first Ivy League graduates I ever met were professors at the University of Arkansas. I was there because, like many who Hoxby and Avery studied, I assumed it was the best bargain for me.  I didn't apply elsewhere.

I have to trust that the numerous people reading Watkins' tale will believe her revelations of her naiveté regarding college.  I certainly hope so, though I have been struck over the years at how many people are incredulous at my similar tale.  How, they marvel, disbelief in their voices, could you not have known to go to a "good school"?  People of privilege can find it remarkably difficult to believe that other people could really not know the things that are the very intellectual and emotional wall-paper of a life of privilege.

But there is another, related problem:  poor rural kids and the diversity they represent often go unvalued by educational decision makers.  Because these rural kids Watkins is talking about are often white, they don't appear, at first blush, to represent diversity.  Plus, I find privileged whites are just as uncomfortable around working class whites as they are around people of color--maybe more so in this day and age.  That discomfort--unmitigated by the need be politically correct because no PC imperative exists regarding poor whites--may deter the privileged from reaching out to recruit poor whites.  After all, as Watkins points out, it's not like these elite colleges are hurting for applicants.

Finally, privileged metropolitan and cosmopolitan types tend to hold the limitations of rural education against those who are products of it, discounting what these kids have achieved because of the absence of AP classes, the right extracurricular activities, and such.  (Read more here and here).  I recall being on the selection committee for the first round of elite Sturgis Fellows at the University of Arkansas in the late 1980s.  When I spoke up for a candidate with what I considered to have stellar credentials, a professor on the selection committee quickly countered by noting that the student was from a rural school, suggesting that the student's achievements had to be kept in proper perspective--namely that s/he had not been subjected to true intellectual rigor.  I recall meekly pointing out that I, too (then the University of Arkansas's undergraduate valedictorian) was the product of a rural school.  What was I?  chopped liver?  or just an anomaly?  I'll never know how the selection committee saw me.  But perhaps because I protested so meekly, my comment--and the outstanding rural candidate--got no traction.  All of that inaugural group of Sturgis Fellows, as I recall it, were from sizable high schools.    

Cross-posted to ClassCrits, UC Davis Faculty Blog, and SALTLaw Blog.    

Cross-posted from Justia's Verdict.

One of the most closely watched cases—if not the most closely watched case—on this year’s Supreme Court docket is the challenge to the University of Texas’ race-based affirmative action program, Fisher v. University of Texas.  In Fisher, the Court will decide whether the Constitution leaves any room for public universities to use the race of individual student applicants in the admissions process. To put the point more technically, the Court will decide whether the “strict judicial scrutiny” applied to such programs is always fatal or, instead, allows a narrow space for public institutions to undertake such programs in order to enhance the racial diversity of the student body.

Assuming that the Court does not entirely foreclose race-based affirmative action in Fisher (and, as I explained in an earlier column, Justice Anthony Kennedy, whose vote will probably be dispositive, is unlikely to go that far), the Court will then likely have to take up another affirmative action case, this one recently decided by the Sixth Circuit Court of Appeals sitting en banc.

The Sixth Circuit case, Coalition to Defend Affirmative Action v. Regents of the University of Michigan, focuses not on whether a state may permissibly make use of race-based programs, but rather (somewhat non-obviously) on how a state that tries to abolish affirmative action may, in doing so, violate the Constitution.

The Background of Michigan’s Proposal 2, and the Sixth Circuit’s Coalition to Defend Affirmative Action Case

The Sixth Circuit’s en banc decision, handed down about a week after last month’s election, invalidated Proposal 2, a voter-initiated amendment to the Michigan Constitution.  Proposal 2, adopted six years ago, was itself seemingly prompted by the Supreme Court’s 2003 ruling in Grutter v. Bollinger.  In that case, involving a race-based admissions program used by the University of Michigan law school, the Court, by a 5-4 vote, held that although a state’s use of race to classify individuals is “suspect” and triggers “strict judicial scrutiny” under the Equal Protection Clause of the Fourteenth Amendment, a narrowly tailored plan in which the race of higher education applicants is considered alongside numerous other factors, in order to admit a critical mass of minority students, is a permissible way to accomplish the compelling government interest of ensuring a diverse law school student body.

Proposal 2 responded to Grutter by amending the Michigan Constitution to completely forbid Michigan’s public colleges and universities from granting “preferential treatment to[] any individual or group on the basis of race, sex, color, ethnicity or national origin.” Proposal 2 thus attempted to close, as a matter of state constitutional law, the small window of federally permissible race-based affirmative action that had been identified in Grutter.  The 8-7 en banc ruling by the Sixth Circuit (following up on a 2-1 ruling by a three-judge panel of the same court earlier this year), reflects an attempt to keep that window open, at least for the moment.

To understand the Sixth Circuit case and the issues it raises, let us start by remembering that most race-based affirmative action programs are in no way required by the Constitution—and indeed are, as noted above, assessed by the courts under a stringent standard dictated by the Fourteenth Amendment.  The programs at issue, designed to diversify public institutions (and also perhaps to provide some remedy for past discrimination against racial minorities), are voluntary, in that nothing in the federal Constitution requires their existence.  How then,  readers may wonder, can their abolition be even arguably problematic under the federal Constitution?

The answer, derived from a group of Supreme Court cases decided a generation ago, lies in the fact that sometimes programs (like affirmative action) that benefit minorities are abolished in a way that leaves all programs that benefit other groups untouched, and that makes reenactment of the programs that minorities prefer especially difficult.  And when minorities are subjected to greater political obstacles in the adoption (or readoption) of the programs they might support than are other groups, such disparate political-process treatment, said the Supreme Court, raises equal protection problems.

Consider, for example, the 1969 Supreme Court case of Hunter v. Erickson.  In Hunter, the people of Akron, Ohio—responding to an ordinance that prohibited racial discrimination in housing that had been enacted by the City Council—amended the city charter to prevent the implementation of any such ordinance that had failed to gain the express approval of a majority of Akron voters.

The amended charter defined the ordinances that were to be subject to the newly created popular-approval requirement as those laws regulating real estate transactions “on the basis of race, color, religion, national origin or ancestry . . . .”  The charter amendment, the Court pointed out, “not only suspended the operation of the existing ordinance forbidding housing discrimination, but also required approval of the electors before any future [housing discrimination] ordinance could take effect.”

By an 8-1 margin, the Justices struck down the charter amendment as a violation of equal protection. The Court declined to rest its decision on a finding of racist intent on the part of voters (which today would be a conventional rationale for invalidating laws that seem to reflect invidious attitudes towards racial minorities). Instead, the Court nullified the law because it effectively drew a “racial classification [which] treat[ed] racial housing matters differently [and less favorably]” than other matters.

The Court found it crucial that the law, while neutral on its face in the sense that it drew no distinctions among racial and religious groups, would nonetheless uniquely disadvantage the beneficiaries of antidiscrimination laws—racial minorities—by forcing such laws to run a legislative gauntlet of popular approval that other laws, and thus other interest groups, were spared.

A dozen years later, in Washington v. Seattle School District No. 1, the Court applied and extended Hunter in a way that has direct implications for the Sixth Circuit’s treatment of Proposal 2. The essential background of the Seattle case is this: In order to cure widespread de facto racial segregation in Seattle-area schools, Seattle School District No. 1 adopted a voluntary integration plan that extensively used pupil reassignment and busing to eliminate one-race schools.  The Seattle program, in turn, prompted the people of Washington State to enact Initiative 350.

On its face, Initiative 350 provided broadly that “no school board . . . shall directly or indirectly require any student to attend a school other than [the geographically closest school].” The initiative, however, then set out so many exceptions to this prohibition that the effect on local school boards was to bar them from ordering reassignment or busing for the purpose of racial integration, but to permit them to order reassignment or busing for all other educationally valid reasons (sibling attendance, access to particular educational programs, etc).

By a 5-4 vote, the Court struck down the plebiscite. As in Hunter, the Court declined to rest its holding on a finding of invidious intent on the part of the electorate. Instead, the Court invalidated Initiative 350 because it singled out racial busing—a program of particular importance to racial minorities—and moved it from the control of local decision-making bodies to central management at the statewide level, where minorities were less likely to enjoy democratic success; if racial busing—but racial busing alone—were ever to be reenacted anywhere in the state, its proponents would need to lobby and win at the state, rather than the local school district, level. This selective and unfavorable treatment of public programs that were distinctively beneficial to minorities, the Court held, denied such minorities the equal protection right to “full participation in the political life of the community.”

In both of these cases, the Supreme Court applied (with varying degrees of clarity) a two-pronged test: First, someone who challenges a given law must show that the law in question is “racial” or “race-based” in “character,” in that it singles out for special treatment issues that are particularly associated with minority interests.

Second, the challenger must show that the law imposes an unfair political-process burden with regard to these “minority issues” by entrenching their unfavorable resolution at a level, or in a process, of state government where it is distinctively hard for minorities to prevail.

Strict scrutiny is triggered only if the challenger satisfies both parts of the test. A law that imposes special political-process burdens on classes that are not associated with race does not directly implicate the cases.  Similarly, a law that deals explicitly with “racial” issues but does not impose any entrenching political process burdens—for example, a law that simply repeals pro-minority policies at the same level of government at which they were originally enacted—is also unproblematic.

The Sixth Circuit’s Application of the Hunter-Seattle Doctrine

Utilizing this two-part test, the Sixth Circuit concluded that Proposal 2 was constitutionally flawed. First, it held that the measure was racial in character, in that it dealt specially with an issue—race-based affirmative action—that is of distinctive interest and benefit to racial minorities. Indeed, the racial busing programs in the Seattle case were just one type of “voluntary” race-based affirmative action; if elimination of those programs affected minorities especially, then elimination of the broader category of which they were a part would seem to do so, as well.

Moving to the second part of the test, the Sixth Circuit held that Proposal 2 dealt with this racial issue by entrenching a policy that was unfavorable to minorities at a level of government—that of the state constitution—at which minorities are less likely to succeed than they are at lower levels, such as local government or university administration. Although Michigan is free to repeal affirmative-action programs, the Sixth Circuit suggested, it cannot repeal such programs at a level higher than the one at which those programs were initially adopted, just as the State of Washington could not repeal racial busing at the statewide level, rather than the local level.

As the Sixth Circuit explained in its opening sentences, “[a] student seeking to have her family’s alumni connections considered in her applications to one of Michigan’s . . . public universities could do one of four things to have the school adopt a legacy-conscious admissions policy:  she could lobby the admissions committee, she could petition the leadership of the university, she could seek to influence the school’s governing board, or, as a measure of last resort, she could initiate a statewide campaign to alter the state’s constitution.  The same cannot be said for a black student seeking adoption of a constitutionally permissible race-conscious admissions policy.  That student could do only one thing to effect change: she could attempt to amend the Michigan Constitution—a lengthy, expensive and arduous process—to repeal the consequences of Proposal 2.  The existence of such a comparative structural burden undermines the Equal Protection Clause’s guarantee that all citizens ought to have equal access to the tools of political change.”

What Is Likely to Happen in the Supreme Court

The Sixth Circuit’s reasoning is careful, and its result is defensible under current law; there really is a powerful logical sense in which the structure and reasoning of the Seattle case applies with full force to doom Proposal 2.  But the case will almost certainly be presented to the Supreme Court, and unless the Court eliminates race-based affirmative action entirely in Fisher, the Court will most probably grant review.  The Sixth Circuit en banc ruling openly disagrees with a Ninth Circuit case from the 1990s in which that court upheld California’s state- constitutional ban on race-based affirmative action (Proposition 209) in the face of a Hunter-Seattle challenge.  Many observers (myself included) thought that the Ninth Circuit’s reasoning did not convincingly distinguish the Seattle case or otherwise explain why that case did not control, but that is neither here nor there now that there is a sharp circuit conflict that the Supreme Court will likely feel the need to resolve.

And when the Court takes the Proposal 2 case, I would expect Proposal 2 to be upheld, perhaps overwhelmingly, by the Court.  Why?  For starters, none of the Justices who were on the Court at the time of the Seattle case are still there. Stare decisis applies, to be sure, but stare decisis may tend to have more weight when some member of the Court who voted in the majority in the original case is present to defend it when the Court revisits the matter.  It also bears noting that the “liberals” on the Court today (e.g., Ruth Bader Ginsburg, Steve Breyer, Elena Kagan) are not nearly so liberal as the liberals who were on the Court in the early 1980s (e.g., William Brennan, Thurgood Marshall).  (We saw some evidence of that last Term, in which Justices Breyer and Kagan joined in the 7-2 invalidation of the Medicaid spending conditions that were at issue in the Obamacare case.)

Not only has the Court’s personnel evolved; so has its doctrine.  The Seattle case and its underlying reasoning would not appear to reflect current thinking at the high Court. Over the past twenty years, City of Richmond v. J.A. Croson (an affirmative action case involving the City of Richmond) and its progeny have justified strict scrutiny for purportedly “benign” race-conscious programs by emphasizing (among other things) certain costs that affirmative action programs threaten to impose on minorities (whether uniquely or along with others).

These cases reflect an equal protection doctrine that embraces formally symmetrical rules governing members of all races, and the cases seemingly downplay the significance of traditional contextual concerns, such as the political powerlessness or historical oppression of racial minorities in particular.  The “feel” of these recent decisions thus diverges from the more nuanced and asymmetrical “feel” of Hunter and Seattle. It is for that reason that I have elsewhere written that Hunter and Seattle may not “make[] sense in today’s world.”

Of particular relevance, the Court has observed in recent decades that race-based affirmative action programs threaten to embrace and “foster harmful and divisive stereotypes,” which might “balkanize us into competing racial factions.” Proposal 2, its supporters would thus contend, does not frustrate valued minority interests. Rather, the Initiative simply moves Michigan law into line with the Supreme Court’s current disparaging attitude toward affirmative action programs. Another way of making the point is to observe that Grutter (the 2003 Michigan law school case) is the exceptional result over the last two decades; most of the time it has visited these issues, the Court has invalidated racial affirmative action, or at least urged lower courts to do so.

Finally, the societal backdrop against which the Proposal 2 case will be heard is very different from that against which the Seattle and Hunter cases arose. In those cases, the Justices in the majority may very well have smelled a rat—in the form of an evil racist motive on the part of the voters—but were too genteel to say so explicitly.

Indeed, there may be many cases in many areas of constitutional law that are, in fact, driven by unstated intuitions harbored by the Justices about impermissible legislative intent.

For example, the Court’s invalidation on federalism grounds of the so-called “Gun Free Schools Zone Act” and the “Violence Against Women Act” in the Lopez (1995) and Morrison (2000) cases, respectively, may have been partially attributable to the Court’s (unarticulated) sense that Congress was not sincerely motivated by the commercial/economic implications that these laws had, and so could not properly rely for their defense on the Commerce Clause.  (For many of those of us who taught and studied the Obamacare case, this aspect made that case—which focused on a policy choice that was sincerely motivated in significant part by economic aspirations—very different from these earlier laws that the Court had struck down.)  But for complicated reasons, the Court may not always be open about the extent to which improper legislative intent is influencing its rulings.

In any event, in Twenty-First Century Michigan, the Court may infer racist intent from Proposal 2 far less readily than it may have from a state’s ban on racial busing over 30 years ago. One possible lesson that may emerge after the Supreme Court resolved Proposal 2 is that sometimes, grounding a decision in invidious intent directly—insulting though it may seem to the polity that is rebuffed—may reduce the doctrinal complexities that are caused by more elaborate, but less intuitive, theoretical explanations of the kind offered in the Seattle case.

Co-authored with Professor Alan Brownstein and cross-posted from Justia's Verdict.

In the space below, we explore some very interesting and complex First Amendment issues that are implicated in a recent lawsuit in Texas. The suit was brought by a group of public high school (Kuntze High School) cheerleaders against the school district that told them to stop displaying religious-themed banners bearing bible verses and proclaiming things like “If G-d is for us, Who Can Be Against Us?” at football games.  The district barred the religious banners, through which the football players had run as they came onto the field, after complaints by The Freedom From Religion Foundation that the practice of displaying such banners at football games of a public high school violates the Establishment Clause of the First Amendment.

The cheerleaders who filed suit seeking to continue the practice claim not only that the Establishment Clause does not forbid what they are doing, but also that that they have a First Amendment right themselves, under the Free Speech Clause, to continue to display the banners.  The case is set for trial next year, but in the meantime, a Texas state court judge last month granted preliminary relief in favor of the cheerleaders, directing the school district to permit the cheerleaders to display the banners, because of his view that the cheerleaders will likely prevail on their claims when the case is fully resolved.  As we explain below, we think—in light of the facts that are alleged by the cheerleaders in their Complaint—that under existing Supreme Court case law, both the Establishment Clause and the Free Speech Clause of the First Amendment cut against the cheerleaders in this case.  (We should make clear that although some of the current Justices might disagree with the case law currently on the books, we analyze the cheerleaders’ dispute under current doctrine that is binding on lower courts and litigants.)

The Establishment Clause Analysis

Our starting point is that if the school officials themselves had decided—or had directed the cheerleaders—to use banners that included religious messages, this would violate the Establishment Clause.  It seems pretty clear under current case law that such state action would be unconstitutional.

But the cheerleaders (supported by positions adopted by Governor Rick Perry and the Texas Attorney General) argue that this situation is different, because the banners constitute private speech on behalf of the cheerleaders that is not attributed to the school.  Under the selection procedures used by Kuntze High School, cheerleaders are not selected by school officials, but rather are chosen, after tryouts, by a panel of (Lamar) University cheerleaders.

According to the allegations in the Complaint, Kuntze cheerleaders decide what goes on the banners; there is no control exercised by school employees over the content of the displays.  Moreover, the banners are paid for by cheerleaders, using money that comes from private sources, rather than public school funding.  And the school district regulations identify activities such as banner displays at football games as a limited public forum, suggesting that the school is permitting individual students to speak, but not associating itself with the messages students express.

Even in light of these facts, we think the cheerleaders’ display of bible-verse-bearing banners raises serious Establishment Clause problems.  A high school football games is a quintessential traditional school-sponsored activity, and providing banners for the players to run through is a part of that school-sponsored activity.  For that reason, to any objective outside observer, the cheerleaders and the banners they display bear the imprimatur of the school.  In a case (Hazelwood) permitting public high school officials to censor high school newspaper articles—even though the articles bore the bylines of individual student authors—the Supreme Court reasoned that school-sponsored activities implicate government promotion of speech, rather than just the toleration of speech.  As a result, even if the school disclaims any approval of a student’s message, the overall public imprimatur remains.

Putting a disclaimer on the school newspaper doesn’t change its status as a school-sponsored activity any more than a one-paragraph disclaimer can transform high school football games from school-sponsored activities into private events.  Although the high school newspaper could be considered to be part of the school’s curriculum, which creates an even greater imprimatur of school support– and football games are less easily characterized as part of the school curriculum—we think the analogy has some force.

What about the fact that the school does not pay for the banners?  We think that under existing case law, the private nature of the funding of religious displays does not necessarily control the Establishment Clause analysis. The key point is that the religious message is displayed on public property during a school-sponsored event, a football game.  Cases involving the prominent display on public property of privately created nativity scenes (such as the Allegheny County case) demonstrate that private religious displays, standing alone on public property, can violate the Establishment Clause.  Given the sensitivity in the case law to religious coercion and endorsement in the context of public schools, the possibility of an Establishment Clause violation might be even stronger here than it was in cases like Allegheny County—which involved a crèche in the foyer of a public building used for conventional governmental purposes.

Another key factor to be considered under the Supreme Court’s cases is the extent to which other students might be made to feel unwelcome because religious banners are displayed as part of the organized, pre-game activities.  Santa Fe Ind. Sch. Dist. v. Doe (a case forbidding a high school from permitting a student-elected Chaplain to lead a prayer at a high school football game) makes clear that football games are school-sponsored activities that are important to many students, and that it is not permissible to force students to have to choose between attending games or being exposed to unwelcome religious displays or messages.

When we widen the constitutional focus to locate Establishment Clause disputes in a larger perspective, we readily see that a government’s decision to delegate authority to private individuals as to what messages will be permitted at publicly sponsored events cannot reasonably be understood to avoid constitutional constraints. This would be obvious if we were talking about delegating authority that did not focus on expression. Suppose, for instance, that a school delegated authority to a student committee to decide where graduates sit on graduation day, and the committee decided that all the black graduates should sit in the back of the auditorium.  No one could deny that this would violate the Equal Protection Clause, even though the individual students on the committee, not school officials, made the discriminatory decision.

And the same reasoning often applies to decisions about who gets to speak and what they can say.  Kuntze High School is alleged to have delegated its authority to decide what messages are communicated on the banners the players will run through to enter the field at school football games to the high school cheerleaders. And it also seems that the very decision about which students get to be cheerleaders in the first place is delegated to cheerleaders from Lamar University.  But the school can’t escape constitutional responsibility for its decisions by giving authority over school-sponsored expressive activity to a private group of students or anyone else.

This almost has to be true if we care about safeguarding Establishment Clause values. If a school can delegate authority to student groups with regard to these kinds of activities and avoid constitutional review, then the cheerleaders could decide to lead the students at football games in prayers, rather than school cheers (and the Supreme Court’s decision in Santa Fe v. Doe clearly forbids that). Or the school could delegate to a student group the authority to decide upon whatever banners the group’s members want to hang on the interior walls of the school building.

If the student group decided to hang 30’ by 10’ banners proclaiming sectarian messages on the walls of the school building, would we say there would be no Establishment Clause violation here either, simply because the school had delegated its authority to students, rather than exercised its power directly? The Court rejected this kind of an argument in Santa Fe v. Doe when it held that a public high school could not avoid Establishment Clause requirements by ceding the power to decide whether or not to have a prayer at school football games to the student body.

Free Speech Analysis

But what about the free speech rights of the cheerleaders?  Plaintiffs argue that because the speech on the banners is not attributable to the school, it is private speech protected by the Free Speech Clause of the First Amendment. They thus suggest that they have a constitutional right to control the content of these banners free from government interference. They argue that the school has the authority to permit them to display their banners at the football game for the football players to run through, and that once the school does so, the Constitution protects them against regulations that would restrict the content of what they say.

The key problem with this argument is that even if we assume for purposes of argument that plaintiffs are correct that they are engaged in private speech (not attributable to the school), the school has not opened up its property (the football field) for expression by any other students. No one else besides the cheerleaders gets to place their banners in front of the football players entering the field; only the high school cheerleaders get access to this location for whatever expressive message they choose to communicate or facilitate.  This kind of selective control of, and access to, public property for private expressive purposes is constitutionally problematic.

Let us be clear:  This is not a situation in which the school here is passively opening up a public location and event to allow various private speakers to express their various messages.  Instead, the school (under plaintiffs’ argument) is authorizing a single private group, the cheerleaders, to decide (presumably by majority vote, although that is not clear) what messages get expressed on specific public property, without any guidance to limit the discretion they exercise in making such decisions.  No one gets access to have their message expressed on banners that the team will run through without the cheerleaders’ permission. The cheerleaders have complete discretionary control over the messages that may be communicated on banners leading the team in each and every football game.  The cheerleaders can express sectarian messages of only one faith while rejecting suggestions of messages of other faiths. They can embrace the virtues of one race and denigrate the worth of others.  They can express political messages for particular parties or candidates while rejecting messages from competing candidates or parties. They can adopt suggestions from their parents, friends, or pastors while ignoring messages proposed by people whose views they find objectionable.

This kind of unbridled latitude given to a select group of private citizens but denied to others to use public property resources for expressive purposes is inconsistent with free speech values and, indeed, quite possibly itself would violate the Free Speech Clause.  In other words, far from creating a free speech First Amendment right on the part of the cheerleaders, the school’s actions (under the cheerleaders’ characterization of them) here might themselves create a violation of the Free Speech Clause.

The Supreme Court has made it clear in Lakewood v. Plain Dealer Publishing Co. that giving unbridled discretion to government officials to decide who gets to speak in a public forum (limited or otherwise) is unconstitutional, because doing so raises “the specter of content and viewpoint discrimination.” That danger isn’t meaningfully avoided when government confers unbridled discretion to decide what messages are permitted to be expressed on public property upon a private group, rather than upon a government official.

Indeed, to return to the Establishment Clause, this is precisely the kind of unbridled discretion given to select private individuals that the Court rejected in Santa Fe v. Doe.  Giving the majority of the cheerleader squad the authority to determine whether scripture is displayed on banners, or prayers are offered before games, isn’t substantively different from allowing the majority of students to vote on whether a prayer will be offered at football games, the policy struck down in Santa Fe.  Reducing the number of students who get to make the decision doesn’t eliminate (and indeed may increase) the danger that minority viewpoints can (indeed, are likely to) be ignored by the students who are given the authority to determine what messages will be communicated.

Nor should it make any difference whether the group making the decision is selected on the basis of cheerleader athletic skills, or some other characteristic such as school spirit or how loud the students can yell. What is problematic about giving one group of private individuals the discretionary authority to decide what messages will be expressed on public property is that they may exercise that authority in content- and viewpoint-discriminatory ways.

Assessing The Two Clauses of the First Amendment Together

Of course, the school might avoid the restrictions imposed by the Free Speech Clause that we just described by accepting responsibility for the cheerleaders’ banners. Even though government cannot give unbridled discretion to a group of private individuals to control speech on public property, government can engage in its own speech, and in so doing necessarily engages in content or viewpoint discrimination when it expresses or sponsors its own message. The Free Speech Clause does not limit the state’s discretion to express its own messages on public property.

But if the school accepts responsibility for the religious messages on the banners, then it endorses religion in violation of the Establishment Clause principles that we described earlier.  And if (as the cheerleaders argue) the school has no constitutional responsibility for the messages on the banners (a proposition which we find less than convincing) then, in any event, the school would be seen as providing one group of private students discretionary control over access to public property for only those messages that the group favors. Giving that kind of discretionary, long-term control over access to public property to any private group undermines our constitutional commitments to open access to public property for minorities, religious or otherwise.

So under either characterization, it seems the only way for the school to obey the Constitution is to prohibit the religious display, which is why we think the cheerleaders could very likely lose their lawsuit if and when it winds its way up the appellate ladder.

Cross-posted from Justia's Verdict.

The Supreme Court Term that begins in October, like the one that wound down this past June, features some potentially momentous cases. Perhaps the biggest case on the Court’s 2012–13 docket so far is Fisher v. University of Texas, a case in which the Justices will take up once again the extent to which public higher educational institutions can make use of an individual’s race at the admissions stage. (I have written a number of other columns on Fisher, including one viewable here (Part One) and here (Part Two), that provide additional background.)

One big question the Fisher case raises is whether the U.S. Court of Appeals for the Fifth Circuit properly applied the Supreme Court’s 2003 ruling in Grutter v. Bollinger, in which a narrowly divided Court purported to apply strict judicial scrutiny to, but ultimately upheld, the University of Michigan Law School’s use of race alongside many other factors in its admissions process. But in addition to the question whether Grutter was properly applied in Texas is the question some have raised about whether Grutter should itself be overruled. And one challenge to Grutter that I have seen discussed in some recent academic commentary is whether the “diversity” rationale of Grutter—the idea that admitting minority applicants even in part because of their race helps create a better learning environment for nonminority students—problematically uses, instrumentalizes and commodifies minority applicants. In the space below, I take up this idea and offer some responses.

The Foundation of the Constitutional Concept of Educational Diversity: The Bakke Case

To assess the diversity rationale, a good starting point is the Bakke v. Regents of the University of California case from 1978. There, a splintered Supreme Court struck down an affirmative action admissions program undertaken by the medical school at the University of California, Davis, saying that the Davis plan, under which 16 out of 100 entering medical school slots were reserved for members of traditionally underrepresented racial minorities (e.g., Blacks and Latinas/os), violated federal law (either the Equal Protection Clause of the U.S. Constitution, federal statutes that prohibit discrimination on the basis of race, or both.)

Justice Powell wrote a famous opinion (parts of which were joined by other Justices) that controlled the outcome of the Bakke case. In it, Justice Powell said that medical schools (and, by extension, other institutions of higher education) had a legitimate and compelling interest in assembling a student body that was diverse along many lines, including race, but that the Constitution forbade the particular means—racial quotas—that Davis had used to further that interest.

Instead, said Justice Powell, an individual applicant’s minority race can be used as a factor in admissions only when the university also considers a number of diversity aspects other than race, and only when each applicant is compared—taking into account traditional academic strength, the various dimensions along with s/he might add diversity, and other criteria—individually against all other applicants, rather than being evaluated only as against applicants of the same race for a set of pre-designated slots. Justice Powell lauded the racial “plus” plan (which he said was embodied in the way Harvard had structured its admissions system) even as he criticized the quota approach.

Grutter and Gratz: A Supreme Court Majority Embraces Powell’s Approach

In 2003, 25 years after Bakke, the Supreme Court again took up the question of race-conscious affirmative action in higher education, in a pair of cases involving the University of Michigan. In Grutter v. Bollinger, the Justices, by a 5-4 vote, with Justice O’Connor writing for the majority, adopted the approach of Justice Powell in Bakke in upholding the University of Michigan Law School’s race-based affirmative action plan. Whether or not Justice Powell’s view—that racial diversity was a compelling interest that could be permissibly furthered by a narrowly tailored policy that looked at the entirety of the personal and academic attributes of each candidate (including her race) in a system where no slots were reserved for people of particular races—was a “holding” for the Court in 1978, the Court adopted that approach in 2003 in Grutter and made it indisputably the law of the land.

And because, said the Court, the Michigan law school plan at issue in Grutter did not use quotas, but rather took into account race and other characteristics of each applicant in a person-specific and holistic way, the plan survived the “strict scrutiny” that is required under the Constitution for all governmental consideration of an individual’s race. Chief Justice Rehnquist, joined by Justices Scalia, Kennedy, and Thomas, dissented.

In the companion case, Gratz v. Bollinger, the University of Michigan’s undergraduate admissions program, which used race in a more systematic and mechanical way, was struck down by the Court because it operated too much like the forbidden Bakke quota system.

Fisher, the Direct Challenge to Grutter’s Premise it Presents, and a Possible Response

That brings us to Fisher, where one of the questions the Court might take up is whether to retain or overrule Grutter. One line of criticism of Grutter can be found in the recent writings of a venerable constitutional scholar at Vanderbilt Law School, James Blumstein. In some recent scholarship, Professor Blumstein expressed concern over the fact that under the diversity rationale, race-conscious policies are justified “not for the sake of the black and minority students’ own education but largely for the sake of affording educational benefits to others.” In Grutter itself, he points out, the “students who secured the lion’s share of the educational benefits from student body diversity were white students who matriculated to the [Michigan] Law School.” This leads him to suggest that “[w]hatever one might think of group-based racial preferences targeted remedially . . . one should take pause at the non-remedial commodification rationale underlying Grutter. [Grutter] treat[s] minority-student presence as instrumental, a means toward achieving the end of improved quality of education at a public institution of higher learning.”

What are we to make of this? For starters, I should say (and have written) that I lament the doctrinal demise (caused by what I view as intellectual missteps of the Court itself) of the remedial rationale for race-based affirmative action, in favor of an exclusive focus on educational diversity. And I have noted that, technically speaking, the Court has not required that diversity-based affirmative action programs help the admitted minority students in order to survive strict scrutiny. Moreover, race-based commodification, in the form of slavery, remains the single most egregious insult to liberty and justice in American constitutional history.

And yet I am still not as worried by the “commodification/instrumentalization” problem created by the diversity theory as Professor Blumstein appears to be, for three related reasons.

First, it seems to me that university admissions folks instrumentalize or commodify applicants no matter which admissions criteria they employ. If a public college looks only at high school grades and standardized testing scores—and does not consider race or other elements of the whole person—it is doing so at least in part to produce a student body that will make the school look more elite and prestigious in the rankings game and to the outside world. Surely traditional admissions criteria are not designed simply to reward hardworking applicants—use of grades and scores rewards not just hard work but also innate academic aptitude. Nor are colleges that use only “objective” criteria trying simply to identify those applicants who themselves could make the best use of the college’s educational resources; to be sure, the colleges care about the students, but they also care about the short- and long-term success of the colleges themselves. Indeed, it is somewhat ironic that looking at more, rather than fewer, aspects of a candidate’s overall personhood would generate a greater sense of impermissible commodification.

My second response follows closely from my first: Under the diversity rationale that focuses on a number of different kinds of diversity (not racial diversity alone), virtually all admitted students, not just racial-minority students, are in some sense being commodified. The standardized-test whiz, the musician, the computer geek, the older “returning” student, the actor, the farm kid from the underrepresented rural Midwest, the athlete from the big inner-city school, all are being admitted—and I suppose, in some respect, all are being used—by the university to enhance the institution and the educational experience of other students. When commodification/instrumentalization is so broad and pervasive, it loses much of its normative taint under the Constitution—this is why taxes (which instrumentalize all of us) are viewed differently than takings (which make public use only of some of us.)

Finally, we must bear in mind the voluntary nature of participation in an affirmative action program. Minority applicants needn’t choose to attend a school in which their race likely played a factor in their admission; they are free to instead attend a school where their “objective” academic indicators (e.g., prior grades and standardized test scores) place them more comfortably in the mainstream. Because matriculation is voluntary, I think we can infer that the vast majority of minority students who do choose to attend schools where their minority race played an admission role believe that the access to the (presumably) more elite institution outweighs any stigmatic or psychological cost of being “used” for the benefit of other students. In this respect, at least if we are to credit the market-based choices minority applicants make, educational diversity can be seen as “win-win.” In short, the commodification/instrumentalization present in affirmative action seems to me no worse than, and probably much less troubling than, the use that universities make of Division I athletes in exchange for a scholarship and a first-rate education. Certainly, it is nothing like the commodification represented by slavery.

I do have a caveat here, though: If indeed minority students are making choices to attend institutions based on misinformation, or insufficient information, about whether they would be helped or hurt by attending the more elite institution, then that information glitch needs to be addressed for my confidence about the win-win nature of the diversity-based affirmative action to continue. That is why even though I am dubious about many of their substantive hypotheses, I support the efforts of so-called “mismatch” theorists to obtain the best possible information from educational institutions in order to test their claims that minorities would likely be better off if they chose not to attend institutions that made use of their race to admit them. At a minimum, if these claims have merit (and, again, I am far from convinced that they do), then applicants would need to be so informed, so that they could make choices about their own individual circumstances that guarantee that, even if they are being used, they are not being misused.

The Occupy Wall Street movement has drawn national attention to economic inequality, and several new studies and a book just published also invite us to consider the acuteness of this inequality, as well as its causes and/or consequences.   These publications all highlight education, to one degree or another, as a key indicator of class and class mobility.

The New York Times, NPR and the Los Angeles Times all ran features this week on Charles Murray's new book, Coming Apart:  The State of White America, 1960-2010.  Murray, labeled "a libertarian social scientist" by NPR (and worse things by other liberal pundits), is a controversial figure due in large part to his co-authorship of The Bell Curve.  In that 1994 book, Murray described  a "cognitive elite" who, he argued, get ahead in large part because of their superior IQs.  The controversy was understandable given his assertion that whites tend to have higher IQs than African Americans and some other minorities.

I want to focus here, however, on some of the less controversial information featured in Coming Apart. By this, I mean to steer clear of the book's commentary on values and related suggestions for remedying the problem.  (I do, however, recommend Paul Krugman's op-ed and Nicholas Confessore's review, both of which offer incisive observations regarding those aspects of the book).  Also, to be clear, I have yet to read the book and so rely here on characterizations from media reports.

Murray asserts that class divides us more than race or ethnicity.  Having expressed my desire to avoid controversy, I acknowledge that this may be seen as a controversial assertion if it is read as claiming that we are in a post-racial era.  Nevertheless,  less controversial sociologists such as UC Berkeley's Claude Fischer and Oberlin's Greggor Mattson made similar assertions in their 2009 article in the Annual Review of Sociology, "Is America Fragmenting?"  Plus, the burgeoning significance of class is a common theme among recent studies.  I do not believe we are in a post-racial era, but I am deeply concerned about the ways in which class divides and the consequences of those divisions.

To continue on the sensitive topic of race for a moment, I note that Murray explains his focus on class divisions among whites in order "to concentrate the minds of my readers" whose "reflexive response" to the discussion of the various social problems discussed in the book might be to assume that these problems exist only within minority communities.  Murray says he wishes to make the point that these are white problems, too.  (I have made a similar argument in asserting that if we want to understand how severe a handicap class can be, we might best look at whites--even white men--those privileged on the basis of race and gender yet struggling for economic security and upward mobility). The final chapter of Murray's book apparently shows how the impact of this class divide  among whites holds true across other racial and ethnic groups.

Murray emphasizes differences between what he calls the "new upper middle class" and the working class.  The way Murray slices and dices class, the former are 20% of white adults, and the latter constitute 30%.  The media coverage I have consumed does not indicate the income levels associated with these groups, nor does it indicate clearly whether Murray is focusing on the top and bottom segments of the white adult population or whether there might be a group below this "working class," such as the 15% or so of Americans living in poverty, or a group above the upper middle class, i.e., the very rich, the 1%.

Murray's depiction of these two groups focuses on educational, cultural and lifestyle differences between them.  (Read more here and here on the link between the cultural  and the material in relation to class).  Here is an illustrative quote from the NPR story:

Over the past 50 years the two groups have branched away from each other culturally and geographically. The "educated class," Murray tells NPR's Robert Siegel, has developed distinctive tastes and preferences in a way that is new in America, evinced in everything from the alcohol they drink and the cars they buy to how they raise their children and take care of themselves physically.

Added to that, spatial segregation has resulted in "ZIP codes that have levels of affluence and education that are so much higher than the rest of the population that they constitute a different kind of world," he says.

The economic and social balkanization is potentially very pernicious.

Murray asserts that even going back to 1923, an era of "great social and religious division," successful people tended to have working-or middle-class roots.   They thus had some shared experiences.  Now, however, many decision makers are "second or third generation affluent," leaving them completely out of touch with the working class experience.

"The people who run the country have enormous influence over the culture, politics, and the economics of the country. And increasingly, they haven't a clue about how most of America lives. They have never experienced it."

Murray contrasts the present situation with Eisenhower's 1952 cabinet, sometimes referred to as "nine millionaires and a plumber."  Murray points out that those millionaires were mostly the sons of farmers and merchants and thus had not grown up in affluence.  Compared to President Obama's cabinet, which is highly diverse in terms of gender, race and ethnicity, Eisenhower's cabinet reflected greater socioeconomic diversity.  (I have written about this here).

I have noted other contexts in which we see this evidence of this disconnect and its harms.  One is in the judiciary, as expressed by Judge Alex Kozinski in his 2010 dissent in Pineda-Moreno:

There’s been much talk about diversity on the bench, but there’s one kind of diversity that doesn’t exist: No truly poor people are appointed as federal judges, or as state judges for that matter. Judges, regardless of race, ethnicity or sex, are selected from the class of people who don’t live in trailers or urban ghettos. The everyday problems of people who live in poverty are not close to our hearts and minds because that’s not how we and our friends live.

617 F.3d 1120, 1123 (9th Cir. 2010).

Another context in which we see evidence of upper middle class obliviousness to the working class (and to their own class privilege) is in elite higher education admissions.  A prominent recent study shows that admissions officers tend to hold against applicants their high school work experiences, labeling working students as "careerist."  Instead, admissions officers look for the sort of enrichment activities, e.g., international travel, music and arts training, associated with affluence. This suggests to me that admissions officers at posh colleges and universities know nothing about and therefore have no appreciation for the working class experience.  Needless to say, those admissions officers are also aggravating the class divide which Murray describes because they exclude those who could bring much needed socio-economic diversity to these career-making institutions.

The greater controversy associated with Murray's book is that he makes culture (a euphemism for laziness, lack of discipline) a culprit in the decline of the working class, while ignoring structural changes that have undermined their economic stability.  On this point, I tend to agree with Frederick Lynch, who reviews the book for the Los Angeles Times.  Lynch points out that Murray's focus on culture obscures something else:  "The destruction of values, economic sectors and entire occupational classes by automation and outsourcing."

But those aspects of globalization aren't all that Murray overlooks, as Lynch observes:

Murray inexplicably ignores a long line of studies showing that 21st century elites are post-American "citizens of the world" and that they're too busily involved with building a new global economy to know — or care about — what happens to less fortunate people in their own or others' nation-states.

The disconnect between rich and poor is not grounded merely in difference, it is grounded in disinterest at best, disdain at worst.

On the heels of this burst of media attention to Murray's book comes a story in Friday's New York Times headlined, "Education Gap Grows Between Rich and Poor, Studies Say."  In it,  Sabrina Tavernise reports on several recent studies which document and analyze burgeoning education inequality between upper and lower  classes--and also how these inequalities transcend race and ethnicity.  Tavernise describes how the "gap between rich and poor students has grown substantially" in recent decades, while the gap between white and black achievement has narrowed during the same period.  She discusses a number of studies by researchers at Stanford, Michigan, Chicago, UCLA, and the University of Pennsylvania, among others.

One study, forthcoming in Demography, found that "in 1972, Americans at the upper end of the income spectrum were spending five times as much per child as low-income families" but that gap had widened to nine times as much in 2007.  The comment of one author of that study, Frank Furstenburg, suggests that the divide is cultural as well as material: “The pattern of privileged families today is intensive cultivation.”  (I am reminded of the distinction that Joan Williams describes in her 2010 book between parenting styles of the affluent and the working class, the former fostering self-actualization and the latter self-discipline).

The gap between rich and poor is also reflected in college completion rates.  A University of Michigan study considered two cohorts of students.  Students in the first were born between 1961 and 1964, and students in the other were born between 1979 and 1982.  Among upper income students, college completion rates were high for both generations, but they increased significantly over time.  About a third of the upper income students in the first cohort completed college, but more than half of the latter cohort did so.  Among low-income students, however, the rates of college completion were much, much lower--at 5% for the earlier cohort, 9% for the latter.

Most studies that Tavernise discusses suggest that lower-income children and youth are held back educationally by a combination of the fiscal and cultural consequences of being lower income.

One thing increasingly clear from our nation's newfound attention to class divisions is that the divide is grounded more in educational disparities than in any other single factor, e.g., income, parental occupation.   Educational access is thus critical to class migration--to access to the rarefied upper middle class.  Yet other studies remind us that--contrary to assertions like that of Murray that the cognitive elite get ahead because of their high IQs--"wealth, race and schooling are more important to the inheritance of economic status, but IQ is not a major contributor."  (Bowles & Gintis 2002).  Other studies tell us that income is a better predictor of college completion than are test scores.

These studies highlight another cost of the class divide: precious human capital.  And that loss should concern every American in this highly competitive, global economy.

Here's a provocative piece about the class divide in the particular context of fine dining--the affluent diners on one side of the kitchen door, the working class kitchen staff on the other.  It also features the story of restauranteur Barbara Lynch's class migration; she grew up the daughter of a taxi driver.

Cross-posted to ClassCrits and SALTLaw Blog.

The Chronicle of Higher Education this week released data summarizing the tertiary education (or lack thereof) of state legislators across the country.  An interactive map is available here, permitting you to see the percentage of lawmakers in each state who attended college, completed college, and/or completed a graduate or professional degree.  The map also tracks whether lawmakers attended public schools or private ones, and it features some data about whether they went to college within their state or outside it.

The big headline is that about 75% of all state lawmakers have four-year college degrees, compared to 94% of those serving in the U.S. Congress.  The percentage of state legislators with such a degree varies considerably by state, however, from a high of 89.9% in California to a low of 53.4% in New Hampshire (where the Chronicle acknowledges it had greatest difficulty verifying educational attainment of the numerous legislators, who serve part time for just $100/year!).  South Carolina leads states in percentage of lawmakers who attended some college but did not receive degrees (97.7%), while Arkansas makes the poorest showing on this metric, with only 67% of its legislators having completed any college at all.  Stated another way, that means that a full third of Arkansas’s lawmakers have only a high school diploma.

The New York Times reports that the Chronicle’s editor, Jeffrey J. Selingo, explained that the publication decided to gather the data “after hearing complaints from college administrators that they were losing state aid and scholarship money because legislators had never been to college themselves and did not understand higher education.”  What they found, however, is that “even in statehouses with an abundance of college degrees, ‘that doesn’t necessarily translate into higher support for higher institutions.’”

While this Chronicle data may not easily explain recent and often precipitous drops in public funding for higher education, they are interesting for so many reasons—not least because they can provide insights about class, budgeting priorities and law-making.  The significance of state-controlled spending in comparison to federal spending has increased dramatically in this era of devolution, so we should care more about the decisions being made by state legislatures—and about the profiles of those who are making them.  Over the course of several posts, I am going to discuss a few reasons why critical class scholars should be interested in the Chronicle’s  findings.

First, education level is often considered the single best proxy for class.  In particular, having earned at least a bachelor’s degree is generally seen as the broad and fuzzy dividing line between the upper/professional/managerial class on the one hand, and the lower middle class/working class on the other.  To the extent that more than a handful of legislators in a given state do not have college degrees, then, critical masses of lawmakers of different classes are serving together.  We well-educated folks might initially shudder that so few legislators have college degrees, especially in states where the less educated comprise a significant minority.  But if a critical mass of working-class folks are present in statehouses, this is surely a good thing in the sense that it makes these legislatures more truly diverse and representative of the state’s populace.   After all, just about 28% of U.S. residents have a bachelor’s degree or better, which means that people without four-year degrees represent a much larger faction of each and every state’s population than do those with college degrees.  So, if each state’s better educated lawmakers must rub elbows, negotiate and compromise with some less-educated colleagues—colleagues who in many instances are also sure to be less affluent—this cannot be all bad. It seems more likely that a range of views and life experiences are represented.   Indeed, this related Chronicle story features an interview with Maine lawmaker, Emily Ann Cain, a part-time administrator at the University of Maine who holds a Masters from Harvard.  Cain explains the opportunity represented by such cross-class interaction:

 Ms. Cain, 30, says her background gives her insight into a world too often misunderstood by other legislators. … ‘The stereotype is that faculty members are aloof, ivory-tower people who work on problems that don't concern average people in Maine,' she says.

But she doesn't have a bias against representatives without degrees. In fact, she says, state legislatures ought to comprise members with a wide array of backgrounds—small-business owners, millworkers, union leaders—including people from fields or career paths that may not require education beyond high school.

Ms. Cain provided an example of her efforts to bridge the divide between her legislative colleagues and her academic ones:  Last year, when a Maine legislator was pushing for legislation to eliminate gender studies programs from public universities, she changed his mind by sending him information on the importance of these programs.  Ms. Cain calls for legislators with expertise in education to reach out to "education skeptics."

A number of state legislators interviewed for the same piece reiterate the value of diversity of viewpoints and experiences.  But then, it would not be politic for well-educated legislators to suggest that their less educated colleagues add no value, which would highlight the ivory tower phenomenon.  Perhaps more persuasive for intellectuals are the views of four highly educated academic types interviewed for this related Chronicle story.  Most acknowledge that a college degree is hardly indispensable for serving a legislature and that many skills learned outside college contribute to lawmakers’ effectiveness.

In future posts, I plan to discuss elitism in education as related to state law-makers; rural-urban differences and education levels among state legislatures; and some unanswered questions these data raise.

Cross-posted to ClassCrits and SALTLaw.Blog.

In a prior post about Thomas Espenshade and Alexandria Walton Radford’s book, No Longer Separate, Not Yet Equal: Race and Class in Elite College Admission and Campus Life, I mentioned Ross Douthat’s assertion that “the downscale, the rural and the working-class” whites were most disadvantaged in elite college admissions. In this second installment about the book and Douthat’s 2010 column comments on it, I want to discuss the rural issue, which Douthat characterizes as bias against rural or “Red America.” Douthat wrote:

“[W]hile most extracurricular activities increase your odds of admission to an elite school, holding a leadership role or winning awards in organizations like high school R.O.T.C., 4-H clubs and Future Farmers of America actually works against your chances.”

In his response to Douthat’s initial column, Espenshade clarified that rural-oriented extracurriculars are not the only ones whose value is discounted by admission offices. Espenshade wrote:

“These extracurriculars might include 4-H clubs or Future Farmers of America, as Douthat mentions, but they could also include junior ROTC, co-op work programs, and many other types of career-oriented endeavors. Participating in these activities does not necessarily mean that applicants come from rural backgrounds. The weak negative association with admission chances could just as well suggest that these students are somewhat ambivalent about their academic futures.”

As a related matter, Espenshade clarifies that applicants from “Red” states have better odds of getting into an elite university than those from more populous states, many of which are “Blue.”

“Compared to otherwise similar applicants from California, those from Utah are 45 times as likely to be admitted to one of our elite colleges or universities. The advantage for applicants from West Virginia or Montana is 25 times greater, and nearly 10 times greater for students from Alabama. Because top private schools seek geographic diversity, and students from America’s vast middle are less likely to apply, it stands to reason that their admission chances are higher.”

This part of Espenshade’s response essentially skirts the rural issue by ignoring the fact that entire states are not rural, even if they are popularly perceived as “Red.” In short, Espenshade gets the scale wrong. If the goal is geographic diversity beyond a very superficial level, we should be considering not an applicant’s state of origin, but rather county of origin. I would guess that those being admitted from Montana are far more likely to hail from Billings, Bozeman, Missoula or Kalispell, less likely to have grown up in Columbus, Harlowton, Derby, or Plentywood. As Douthat points out, admitted Alabamans hardly represent meaningful geographic diversity and do nothing to enhance socioeconomic diversity if they are products of elite institutions such as Indian Springs School in Birmingham, which is a feeder institution to the Ivy Leagues. Further, Salt Lake City, Montgomery, and Charleston are metropolitan areas, not exactly the hinterlands.

Returning to the finding regarding the impact of rural-type extracurriculars, I find it problematic for several reasons, even with the career-orientation spin that Espenshade puts on it. My annoyance is attributable to my own education in a poor rural school where—guess what?—the only extra-curricular activities were Future Homemakers of America, Future Business Leaders of America (we learned typing and two-column bookkeeping, not portfolio management), a science club (this, ironically, although the school’s science curriculum was so limited that it offered chemistry and physics only on alternate years), basketball, and cheerleading. In the nearly three decades since I graduated, the school has acquired an ag/vo-tech shop program, begun participating in Future Farmers of America, and expanded its sports offerings. In just the last couple of years, it has added music/band. Apparently, only the last of these curricular changes makes students there any more appealing to elite college admission officers.

At the risk of taking this too personally and thus undermining my argument, I’ll continue to use myself as an example. As a high school senior, I applied only to the University of Arkansas, where I was admitted and given a scholarship based strictly on “the numbers.” Had I known I “should” apply to an elite college and done so, I apparently would have looked incredibly uninteresting to those making admission decisions—even though I had held leadership posts and won awards in all of my school’s organizations, participated in 4-H (a community activity, not a school one), and had a 4.0 GPA (no AP courses on offer). My ACT score that was probably in about the nation’s top quartile (no prep course—didn’t know they existed and would have had to travel hours to reach one).

I’m hopelessly biased, of course, but I think I was a pretty interesting 17-year-old—regardless of how this dossier might have looked to an elite college. Certainly I was ambitious, but because my parents were working class, I had very limited knowledge of how to get ahead in the world, and my high school did not then have a counselor. In terms of diversity of life experience, I would say I offered a great deal to the nation’s elite colleges.

As a white class migrant in academia, I suspect I am relatively rare—especially among my generational cohort. As a rural, working-class student with promise, however, I am sure that my 17-year-old self was/is not alone. How many such working-class white students—especially rural ones with credentials that are even less cognizable to and appreciated by admission officers—might get ahead and achieve their potential if they had the sort of opportunities and encouragement that gets them in the pipeline to an elite college (or, for that matter, any college)? We must ask the same question re: working class minority students, of course, but at least we know that elite college admissions officers are on the lookout for them. Those same admissions personnel don’t appear to be looking for—or perhaps even to know how to identify—working-class whites, rural or not. Read more here. If they do, they appear to dismiss them as uninteresting or unworthy, using the euphemism “career-oriented.”

Justice Powell wrote of the value of diversity in Bakke v. University of California Regents (1978):

“[A] great deal of learning occurs informally. It occurs through interactions among students of both sexes; of different races, religions, and backgrounds; who come from cities and rural areas, from various states and countries; who have a wide variety of interests, talents, and perspectives; and who are able, directly or indirectly, to learn from their differences and to stimulate one another to reexamine even their most deeply held assumptions about themselves and their world.”

Ironically, Powell was quoting a Princeton University admissions officer, who is also quoted in Espenshade and Radford’s book. In Bakke, Justice Powell also referred to diversity as a “tenet of Harvard College admissions,” writing:

“Fifteen or twenty years ago … diversity meant students from California, New York, and Massachusetts; city dwellers and farm boys; violinists, painters and football players, biologists, historians and classicists; potential stockbrokers, academics and politicians. The result was that very few ethnic or racial minorities attended Harvard College. In recent years, Harvard College has expanded the concept of diversity to include students from disadvantaged economic, racial and ethnic groups. Harvard College now recruits not only Californians or Louisianans, but also blacks and Chicanos and other minority students.

***

[T]he race of an applicant may tip the balance in his favor just as geographic origin or life spent on a farm may tip the balance in other candidates’ cases. A farm boy from Idaho can bring something to Harvard College that a Bostonian cannot offer. Similarly, a black student can usually bring something that a white person cannot offer. The quality of the educational experience of all the students at Harvard College depends in part on these differences in the background and outlook that students bring with them.”

Thus, the rural-urban axis was at one time prominently recognized in relation to diversity, and the rural-urban divide has only become more marked in the several decades since Bakke. Yet Espendshade and Radford’s study suggests that elite college admissions offices know precious little about the far rural end of the rural-urban continuum. They don’t seem to know, for example, that extra-curricular activities are extremely limited at many rural schools, and they tend to put those that are mostly available in the death knell category: “career-oriented.” Admission officers are perhaps not aware of the impact of spatial inequality and isolation, rural poverty, and other aspects of rural disadvantage (e.g., limited curriculum) on students’ lives, as well as on their college aspirations and applications. Or, maybe they are aware are and just have a “too bad,” “tough break” attitude.

If geographical context is beyond the knowledge of those assessing the presumably rare applications from rural students—those effectively denying these students access to elite education and its apparently snowballing benefits—how can the expansive view of diversity endorsed by the Bakke Court be achieved? Just as admission offices seem to know little of the realities of white working class, so they know little about the rural sub-set of that group. This blind spot seems to me one more reason that elite colleges should affirmatively seek to admit rural and other white working class youth. If we don’t facilitate their class migration, how are we going to know what we know—and what we don’t know—about the lived realities of these socially and spatially removed groups?

Cross posted to ClassCrits Blog, SALTLaw Blog, and Legal Ruralism.

(Parts I and II of this series appeared in August, 2010 here and here.)

Ever since Ross Douthat discussed No Longer Separate, Not Yet Equal: Race and Class in Elite College Admission and Campus Life in a July 2010 column, I’ve been fretting about some of the book’s findings.  This 2009 book discusses the authors' exhaustive study of college admissions, with particular attention to elite colleges.  Among the conclusions of Princeton sociologists Thomas Espenshade and Alexandria Walton Radford is that whites and Asians needed higher grades and SAT scores to gain admission, while blacks and Hispanics were favored in the admissions process.  Stated thusly, I am not troubled by the finding.  But then Douthat makes a related point, about the consequences of this fact on “lower-class” whites:

For minority applicants, the lower a family’s socioeconomic position, the more likely the student was to be admitted. For whites, though, it was the reverse. An upper-middle-class white applicant was three times more likely to be admitted than a lower-class white with similar qualifications.

Douthat goes on to explain that this failure to admit more working- and other “lower-class” whites may be “a money-saving tactic.”  Specifically, “Espenshade and Radford suggest that these institutions, conscious of their mandate to be multiethnic, may reserve their financial aid dollars ‘for students who will help them look good on their numbers of minority students,’ leaving little room to admit financially strapped whites.”

Douthat characterized this as “unsurprising,” noting also that the “downscale, the rural and the working-class” whites were most disadvantaged in the admissions process.  I will discuss the “rural” part of his assertion in a future post, but for now I want to focus on the working-class white part, geography aside.

I initially blogged last summer about Douthat’s column on my Legal Ruralism Blog here, but I was a bit skeptical of his summary so I ordered the Espenshade and Radford book.  By the time it got to me, the NYT had published Espenshade’s response to the Douthat column.  An excerpt follows:

We find that applicants who demonstrate a strong commitment to career-oriented extracurricular activities while in high school have a slightly lower chance of being admitted to a top school.  This outcome affects only students who have won awards or assumed leadership positions in these activities, not those known for their extensive involvement.

I do not understand the distinction Espenshade is making between leadership and awards on the one hand and extensive involvement on the other.  I would expect the two to go together, and I am unclear as to why winning awards and being a leader would be looked on less favorably than extensive involvement. In any event, Espenshade continues:

These extracurriculars might include 4-H clubs or Future Farmers of America, as Douthat mentions, but they could also include junior ROTC, co-op work programs, and many other types of career-oriented endeavors.

Espenshade thus challenges Douthat’s association of these activities with rurality.  Espenshade asserts instead that such activities “could just as well suggest that these students are somewhat ambivalent about their academic futures.”

This is consistent with what Espenshade and Radford say in their book, presenting the “bias,” if you will, as one against students whose interests run to what they characterize as “career-oriented.”  In a somewhat similar vein, they find that holding a part-time job during high school also hurts one’s admissions prospects.

In response to Espenshade’s clarification, Douthat points out the difference between admissions and acceptances, stating:

It’s a question of admissions offices looking at students who went to the effort of applying to elite schools (an act that already suggests a strong interest in an academic future of some sort) and downgrading their chances, for whatever reason, because they excelled in ROTC or the 4-H club or a co-op work program.

While I found Espenshade’s clarification helpful and agree that Douthat initially failed to provide adequate context, I tend to agree with Douthat’s point that the current system is not achieving optimal diversity.  If we really want diversity, shouldn’t we admit proven high school leaders with good grades and such, regardless of the nature of the extra-curricular activities in which they demonstrated their leadership?  I also must admit that I’m not really sure what sort of high school activities do not look “career-oriented.”  (But maybe that comment reflects both my age and my place of origin …)  It is, after all, high school.  Perhaps involvement in the arts or some such seems more impressive and more academic?  But opportunities to participate in the “right” enrichment activities may not be available in all schools or all communities.  Further, working class families may not be able to afford the costs associated with participation of some enrichment activities, just as educational travel may be beyond their reach.

In addition, it seems just plain wrong to me to hold against an applicant the fact s/he held a part-time job.  Where I come from, a part-time job is a reflection of industry, not lack of ambition.  (It is also often a reflection of need.)  I suppose, however, that more affluent parents discourage their children from working for pay because it diminishes the time they would have to invest in their studies and in the “right” extra-curricular and enrichment activities.  (For a fascinating discussion of the different child rearing priorities and practices of the white working class compared to the professional/managerial class, read the “Learning Class at Your Mother’s Knee” section of Joan Williams’ 2010 book, Reshaping the Work-Family Debate: Why Men and Class Matter.)

Some aspects of the Espenshade and Radford study fly in the face of the pervasive notion that we are a nation in which social mobility is attainable for everyone, including working-class whites--indeed, maybe especially for them because they enjoy white privilege.  Maybe the lesson is that lower/working class folks are only supposed to ascend the socioeconomic ladder one rung at a time.  It’s OK if working-class whites get to college—maybe we even want them to—but perhaps we think they do not belong at elite colleges.  Maybe an elite education is actually a rung or two farther up the ladder, rungs reserved for a future generation, for the kids or grandkids of the generation that first makes it to college.

It nevertheless saddens me that this thwarting of class mobility for working-class whites is partly a consequence of the absence of admissions officers who actually know something about working-class families, not only their fiscal limitations but also the ethic of industry associated with them.   Otherwise, why would career-oriented activities be held against these students who—by engaging in such activities—may be hedging their bets in the event they don’t “make it” in higher education or, as the case may be, even get admitted to elite colleges.

Must everyone who gets into an elite college be either pre-ordained by (1) circumstances of birth into relative affluence or (2) the all-too-rare and lucky racial or ethnic minority who gets an affirmative action slot?   To my mind, the tunnel vision of elite college admissions officers is one more reason to be concerned about the relative absence of class migrants—including white class migrants (read more here)—from influential positions, including the ranks of college admissions officers.

Cross-Posted to ClassCrits Blog and SALTLAW Blog.