Campus Unrest and the Fisher Affirmative Action Case

Posted in: Civil Rights

Recent protests against administrators at Yale, the University of Missouri (leading to the resignation of the president and chancellor at the latter), and on other campuses have already sparked a backlash. Critics who have long regarded college campuses as bastions of liberal political correctness see the protesters as shouting down anyone who disagrees with their views, self-segregating, and making symbolic lightning rods of administrators at the cost of their jobs and reputations. For example, essays last week in USA Today and The Atlantic accuse the student protesters of immaturity, entitlement, and intolerance.

If one focuses narrowly on the unfortunate conduct of some of the students, and on the controversies that immediately provoked the protests, there does appear to be some truth to the claims of the critics. As a constitutional law professor, I feel a special responsibility to defend free speech, due process, and integrated spaces. Moreover, seen in isolation, an email about Halloween costumes (at Yale) or the submission of racial incidents to a slow-moving bureaucratic process (at Missouri) does not necessarily constitute grounds for demanding the resignation of administrators.

Yet the flash points for student protest are just that. As students at both Yale and Missouri have insisted, their real complaints go much deeper. They object to a campus culture that repeatedly challenges their sense of belonging—occasionally directly through the use of racist language and imagery but more often through subtle, perhaps even unconscious, signals from fellow students, faculty, and administrators. They want colleges to do more—much more—to make them feel welcome on campus.

Seen in that broader context, the recent campus protests hold lessons for how to view race-conscious affirmative action admissions programs that aim to boost minority enrollment at academically elite campuses beyond token levels. With the Supreme Court scheduled to hear oral argument next month in an affirmative action case from the University Texas, these lessons are especially timely now.

At first blush, the pending Supreme Court case, Fisher v. University of Texas at Austin, poses a relatively narrow technical question: whether the U.S. Court of Appeals for the Fifth Circuit correctly applied the “strict scrutiny” standard to UT’s use of race in undergraduate admissions following a remand by the Supreme Court in the same case two years ago. Yet lurking in Fisher are more fundamental questions about the legality of any use of race in university admissions and more broadly. The recent campus protests bear on those questions—although how they do so depends on how one understands the nature of the underlying complaints.

Seeing Failure

Supreme Court case law permits race-based affirmative action in order to promote student-body diversity, which, in turn, is thought to promote a “robust exchange of ideas,” as students from different walks of life bring their various perspectives to the educational process. In his controlling opinion in the 1978 case of Regents of Univ. of California v. Bakke, Justice Lewis Powell termed such diversity “a goal that is of paramount importance in the fulfillment of its mission.” Twenty-five years later, in Grutter v. Bollinger, a majority of the Court endorsed this approach. “In order to cultivate a set of leaders with legitimacy in the eyes of the citizenry,” Justice Sandra Day O’Connor wrote for the majority, “it is necessary that the path to leadership be visibly open to talented and qualified individuals of every race and ethnicity.” The Court emphasized that everyone in “our heterogeneous society must have confidence in the openness and integrity of the educational institutions that provide this training.”

Yet if minority students and their allies insist on a campus culture in which only their viewpoint is heard—as critics of the protesters charge—then racial diversity does not lead to intellectual diversity. It leads instead to political correctness and conformity.

For example, while not exactly dismissing the idea of “safe space” in all contexts, Conor Friedersdorf, writing in The Atlantic, accuses some of the University of Missouri protesters of “weaponizing” safe space, turning a means of taking refuge from the micro-aggressions of daily life—a shield—into a means of bullying dissenters—a sword.

Indeed, even without weaponization, the very idea of safe space can be, and has been, challenged on the ground that it is incompatible with the free-speech and integrative ideals said to underlie diversity programs. Dissenting in Grutter, Justice Antonin Scalia condemned “those universities that talk the talk of multiculturalism and racial diversity in the courts but walk the walk of tribalism and racial segregation on their campuses.”

Taken together, these critiques would see the latest campus unrest as a sign that programs to increase the racial diversity at universities have failed in their promise to promote intellectual diversity and achieve what the Court in Grutter called “the dream of one Nation, indivisible.”

A More Hopeful—and Fairer—Reading of the Protests

The latest campus protests do reflect a failure, but not the failure of diversity. Rather, they reflect the failure of campus administrators, faculty, and students to follow through on promoting diversity beyond the admissions process. As Annie Murphy Paul explains in a Time magazine essay, what the minority students want is what she—as a white private prep-school graduate who attended Yale in the early 1990s—took for granted: a sense of belonging. Black students at the University of Missouri interviewed for a story last week in The New York Times made much the same point. Not just overt racism, which continues to exist, but suspicious stares, patronizing and ignorant questions from white classmates, and the relative paucity of minority faculty take a cumulative toll.

Does that mean that political correctness is not a problem on college campuses? Certainly not. But it is a profound mistake to treat a few incidents of irresponsible behavior as indicative of an entire movement.

For example, the person whom Friedersdorf identifies as the most aggressive “weaponizer” of safe space—a white assistant professor of communications who called for “muscle” to remove a student journalist attempting to record the protest—has resigned her courtesy appointment from the University of Missouri’s School of Journalism and apologized for her conduct. Both departments condemned her actions, and the student protesters themselves issued a statement endorsing the First Amendment rights of journalists to cover their protests.

More broadly, the student protests are an outgrowth of the civil rights movement, which was central to the development of both racial equality law and modern free speech law. Any attempt to associate civil rights demonstrators in the U.S. with political correctness, censorship, or segregation must rely on a highly selective and unfair sample of events.

Likewise, whatever one might make of Justice Scalia’s invitation to litigation against particular university programs that permit the formation of minority enclaves, the motivation behind many such programs must be understood in larger context. As a black senior at the University of Missouri told the New York Times, “It can be exhausting when people are making assumptions about you based on your skin color . . . . It can be exhausting feeling like you’re speaking for your entire race.” When universities provide spaces where minority students can spend some—not all—of their time avoiding being stereotyped and just relaxing, they can ultimately facilitate the broader mission of integration.

Over the last generation, we as a nation have made considerable progress in addressing the stains of three centuries of slavery and a century of Jim Crow, but it would be naïve, willfully blind, or just plain dishonest to claim that we live in a color-blind society. Progress towards racial equality must be made on many fronts, including at universities. It is no accident that it is the University of Missouri where the most dramatic protests have occurred. Many of the activists on campus are veterans of the Black Lives Matter campaign, which first emerged in Ferguson, Missouri.

Thus, it would be a tragic mistake to regard the campus protests as a reason to abandon the goals that the Supreme Court endorsed in Grutter and, twenty-five years before that, in Bakke. One of the lawyers for the University of California in Bakke was Berkeley law professor Paul Mishkin. He was no liberal, let alone a practitioner of political correctness. But he viewed “race relations [as] our most durable domestic crisis,” and he understood that race-based affirmative action in higher education has a critically important role to play in helping to heal this nation and chart a more promising future. The protests around the country should be regarded as a signal that, as far as we have come on race since the late 1970s, when Bakke was decided, we still have a considerable way to go.

Special thanks to Professor Neil S. Siegel for a helpful conversation and editorial suggestions on an earlier draft of this column.

  • kramartini

    It is hard to see how the racial classifications typically used by universities are anything other than arbitrary and capricious.

  • Batters Box

    Michael Dorf, “They object to a campus culture that repeatedly challenges their sense of belonging—occasionally directly through the use of racist language and imagery but more often through subtle, perhaps even unconscious, signals from fellow students, faculty, and administrators. They want colleges to do more—much more—to make them feel welcome on campus.”

    This is all subjective and as such by groups that have vested interests in promoting the view of injustice.To offer this as an argument using Sandra J O’Conner’s opinion might be considered logical if it didn’t it’s self show the lapse of her unrealistic reasoning and the consequences of unattainable idealism.The backlash is based on the the real behavior and demands of the protesters that these latest black student movements are based on. A disfunctional reward system more interested in the idealism and politics of multi-culturalism than effective governance then addressing any actual and observed grievance’s is doomed to cause resistance as it can be gamed and is being gamed.

  • Batters Box

    Well my comment was deleted I’ll need to research and see if my civil rights were violated, but if I do need a civil rights attorney you’d be the last I’d call.