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Section 3: Politics and the Evaluation
and Research Context
Hiding the Politically
Obvious
Educational Policy
Volume 20 Number 1
January and March 2006 249-270
© 2006 Corwin Press
10.1177/0895904805285785
http://epx.sagepub.com
hosted at
http://online.sagepub.com
A Critical Race Theory Preview
of Diversity as Racial Neutrality
in Higher Education
Otoniel Jimenez Morfin
Victor H. Perez
Laurence Parker
University of Illinois at Urbana-Champaign
Marvin Lynn
University of Maryland–College Park
John Arrona
University of Illinois at Urbana-Champaign
What have colleges and universities done to increase student of color enrollment since the 2003 U.S. Supreme Court decisions in Grutter v. Bollinger and
Gratz v. Bollinger? This article provides a critical race theory (CRT) snapshot
of selective data and institutions since these landmark decisions. We find that
even though Grutter gives the go-ahead to use affirmative action, higher education has failed politically to take on this challenge. When taken together, the
Gratz and Grutter decisions allow higher education institutions to engage in
symbolic affirmative action measures that appear as diversity measures but are
operationalized as race neutral when one examines the data of continuing
overall declines of students of color at many institutions. The authors conclude with a CRT call for a more expansive affirmative action with higher education administrators doing more to justify affirmative action through Grutter.
Keywords:
critical race theory; higher education; affirmative action
T
he conflict surrounding affirmative action in higher education reached
an apparent resolution the spring of 2003 with two landmark U.S.
Supreme Court rulings. Grutter v. Bollinger (2003) and Gratz v. Bollinger
(2003) related to the use of race as a compelling government interest related
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to affirmative action in higher education admissions. In the Gratz decision,
the U.S. Supreme Court ruled that the process of assigning points related
to race for the weighting of undergraduate admissions decisions violated
the Equal Protection Clause of the 14th Amendment. Students should have
been treated as individuals under a comprehensive review process. However,
in Grutter, the U.S. Supreme Court upheld racial diversity as a compelling
state interest with respect to state institutions of higher education taking
affirmative measures to diversify their colleges and universities. Writing
for the majority, Justice Sandra O’Connor stated that admissions decisions
based on comprehensive evaluations of candidates can use race as one of
many factors to consider when evaluating applicants. Furthermore, the
majority opinion held that in the higher education context, an important
function of the democratic process is that the institutions and programs
responsible for preparing our future leaders reflect the diversity and talent
in our nation.
The initial reaction to the U.S. Supreme Court’s upholding of diversity
as a compelling interest in the Grutter decision was one of victory for affirmative action supporters and anger among politically conservative groups
(see for example, Greenhouse, 2003; Lewis, 2003). But in the aftermath of
this landmark ruling, the policy question must be raised as to what institutions of higher education are doing to affirm diversity as it was defined by
the Court in the Grutter decision. We posit that critical race theory (CRT)
provides a view of what some of the more selective colleges and universities are or are not doing with regards to undergraduate admissions. From a
CRT perspective, whereas Grutter should have bolstered support for affirmative action in higher education through diversity as a compelling governmental interest, the politics of higher education has imposed a climate
of racial neutrality in terms of actual institutional practice.
Our CRT analysis of the politics of higher education in a post-Grutter
world will begin with a general discussion of what CRT is, how it has
evolved, and why it is important to study racial inequality and discrimination. Part two of this article will briefly review the University of Michigan
Law School’s argument for diversity and the U.S. Supreme Court majority
opinion in Grutter and how the Court viewed diversity related to undergraduate admissions differently in the Gratz holding. In Part three, we will
present and discuss from a CRT perspective some preliminary evidence
from institutions of higher education to provide a preview as to what is
and is not being done to address student diversity after Grutter. In Part four,
we will link this evidence to other previous research on CRT and higher
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education and discuss the limitations of the law to serve the purposes of
diversity. The concluding section will return to the original question raised
in this article and offer some CRT policy perspectives to address the pervasive political racial neutrality after Grutter.
Defining CRT, Its Evolution, and
Inroads Into Education
Matsuda, Lawrence, Delgado, and Crenshaw (1993) articulated six unifying themes that have defined CRT:
1. Critical race theory recognizes that racism is endemic to American life.
2. Critical race theory expresses skepticism toward dominant legal claims
of neutrality, objectivity, colorblindness, and meritocracy.
3. Critical race theory challenges ahistoricism and insists on a contextual/
historical analysis of the law. . . . Critical race theorists . . . adopt a stance
that presumes that racism has contributed to all contemporary manifestations of group advantage and disadvantage.
4. Critical race theory insists on recognition of the experiential knowledge
of people of color and our communities of origin in analyzing law and
society.
5. Critical race theory is interdisciplinary.
6. Critical race theory works toward the end of eliminating racial oppression as part of the broader goal of ending all forms of oppression. (p. 6)1
In general, CRT views racism as a normal daily fact of life in society,
and the ideology and assumptions of racism are so ingrained in the political and legal structures as to be almost unrecognizable (Crenshaw,
Gotanda, Peller & Thomas, 1995; Delgado & Stefancic, 2000b). Legal
racial designations have complex, historical, and socially constructed
meanings that ensure the location of political subordination of racially marginalized groups. As a form of oppositional scholarship, CRT challenges
the experience of White European Americans as the normative standard.
CRT grounds its conceptual framework in the distinctive contextual experiences of people of color.2 Literary knowledge and storytelling are used to
challenge existing social constructions of race and racial oppression
(Delgado, 1989). A key aspect of the narrative scholarship in CRT is its
focus on how the stories of racism are quite personal and appear so for a
reason: They attempt to make the reader question whether any person
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should be subjected to the treatment detailed in the story (Johnson, 1994,
p. 817).3 Moreover, CRT challenges liberalism and the inherent belief in the
law to create an equitable, just society. CRT advocates have pointed out the
legal racial irony and liberal contradiction of the frustrating legal pace of
meaningful reform that has eliminated blatant hateful expressions of racism
and yet has kept intact exclusionary relations of power as exemplified by the
conservative backlash of the courts, legislative bodies, voters, and so forth
against special rights for racially marginalized groups (Bell 1988; Delgado,
1987; Matsuda, 1987).
Bell (1980) posited that racial progress on civil rights only comes for
African Americans when Whites make even more substantive gains to retain
their legal, social, and material superiority in U.S. society. Bell articulated
the interest-convergence principle, which can be defined as persons of color
in U.S. society only receiving political, economic, or other major gains
when these gains can be shown to somehow serve the interests of White
European Americans. Bell’s interest-convergence principle gives justification as to how and why Brown benefited White European Americans in
large measure during the civil rights era. That is, Brown helped improve
America’s image in an international community that was becoming increasingly critical of the United States’ civil rights legacy. As Bell argued, interest convergence, or the transient alignment of White European American
elite self-interest and the interest of Blacks, has served as a powerful
explainer for why, during certain periods of U.S. civil rights history, White
European Americans saw it in their best interest to support a progressive
civil rights agenda. As an example, Bell points to the international context
of the 1950s, in which the United States had championed the cause of freedom and democracy after World War II and the fight against communist
tyranny, which in turn prompted sharp rebuke and criticism from international leaders as to the hypocrisy of this stance when one looked at the virulent racism directed toward Blacks in the Jim Crow south. Bell argued that
White European Americans in the elite positions of legal, political, and economic power saw it to their advantage in the international context to converge their interest with Blacks by moving forward for a short time period
on a progressive civil rights agenda, exemplified by the U.S. Supreme
Court decision in Brown.4 Therefore, despite the genuine intent of some
aspects of the civil rights movement to champion the rights of Blacks discriminated by the “separate but equal” legal standard set forth in Plessy v.
Ferguson (1896), interest convergence in CRT demonstrates how White
European Americans will only support policies that will result in a clear
political or social advantage for them along with a lesser benefit for persons
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of color. Furthermore, White European Americans are quite willing to
tolerate disadvantageous conditions (i.e., poverty, poor schools, health care)
for persons of color as long as the former group is not compromised or
threatened. Harris’s (1993) landmark Harvard Law Review article entitled
Whiteness as Property examined the role of law in shaping the way in
which Whiteness is associated with status and power, thereby connected to
property rights of ownership. Whiteness was ideologically and legally
linked to the law and property in the way that private acquisition of property such as land and other material possessions and wants are linked. This
ideological concept led to Whiteness being associated with ownership and
power over Tribal Nations and African Americans. For instance, the connection of Whiteness to property rights was used against American Indian
tribes through the taking of land and relegation of these groups to reservations and subordinate dependent nation tribal status within the United
States. The connection of Whiteness to property has also been used legally
against African Americans regarding slavery and White ownership of African
chattel and subsequent separate-but-equal Jim Crow laws. In higher education, Harris posits that the U.S. Supreme Court legitimizes White property
rights through the Bakke decision (1978). According to Harris’s interpretation of Justice Powell’s opinion, Bakke was an innocent victim with regard
to how his property rights as a qualified medical school applicant were
taken by a lesser qualified minority student under the University of California
(UC)–Davis medical school admissions plan. Harris argued that the Court
was willing to validate Bakke’s expectation of a right to admission because
the UC–Davis plan was not in fact color-blind with decisions being based
on merit. The Court assumed that a fair admissions process based on the
seemingly objective criteria used (i.e., standardized test scores) should hold
legal sway over a seemingly rigid quota system. Therefore, despite Powell’s
description of an admissions process that was inclusive of race and other
areas of difference, which later became the legal standard in Grutter (2003),
Harris argued that the Bakke majority opinion should have been viewed
as a decision protecting the property rights of White Americans in higher
education.
Since the inception of CRT, a number of scholars have worked to frame
CRT and explain its relevance to education. Ladson-Billings and Tate (1995)
were among the first education scholars to do this. Building on Cheryl Harris’s
(1993) Whiteness as Property article, they established a set of propositions
connecting “race and property as a central construct” toward understanding
the “property functions of Whiteness” in relation to schooling (pp. 58-59).
Their critical race analysis “move[d] beyond the boundaries of the educational
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research literature to include arguments and new perspectives from law and
the social sciences” (p. 48) and demonstrated the centrality of racial inequalities in U.S. schools. Ladson-Billings and Tate (1995) portrayed U.S. racism as
a persistent historical and ideological construct that could account for inequalities such as dropout rates and school suspension rates for African Americans
and Latinos. They also made important links between property values in the
United States and the quality of schools. In addition, they illustrate how
poverty and low social status is racialized with African Americans and other
people of color routinely having access to low-value property. This, in turn,
affects the inherent value of the schools attended by those students. LadsonBillings and Tate expand their analysis of property to include notions of educational property, such as curriculum and pedagogy in urban schools.
Tate (1997) provided an in-depth review of the legal literature that
encompasses CRT and describes the relationship between education theory
and the law, focusing first on pseudoscientific research on race and its role
in shaping the field of education. He connects the nature of educational discourse to the legal history of the United States:
Both educational research and the law have often characterized “raced” people
as intellectually inferior and raised doubts about the benefit of equitable
social investment in education and other social services. This paradigmatic
kinship built on conceptions of inferiority suggests the need for a theory that
explicates the role of race in education and the law. (Tate, 1997, p. 202)
After explaining the rationale and the historical precedents for CRT, Tate
discusses the intellectual terrain that mapped out CRT. Tate suggests that
CRT as a theory of race and racism in the law was influenced by fields such
as sociology, theology, political science, and education. Although CRT is
interdisciplinary, it also owes much to its predecessor in the law—Critical
Legal Studies (CLS), which is based on Marxian and Gramscian critiques
of the social order. CLS scholars viewed the law as ideological and often
biased against society’s dispossessed. In that sense, they critiqued the
notion that the law was objective. In addition, they rejected the individualist nature of the law with its firmly entrenched individual rights discourse.
As Tate explains, this aspect of the CLS critique was in conflict with the
way some CRT scholars viewed the rights discourse in the American law in
terms of the lack of attention paid to race and placing racism in the center
of the legal analysis. Instead, class was the major tool of analysis; therefore,
CRT scholars began to formulate a discourse that focused on issues of race
and racism in the law (Crenshaw et al., 1995).
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To summarize, CRT makes racism the center of legal review and critique
in terms of how the law is developed and administered regarding its impact
on people of color. The central themes of storytelling and counternarratives,
interest convergence, and Whiteness as property have been used as benchmark lenses of analysis under CRT. More recently, Tate (2005) challenged
those who apply CRT to education to make its links to the law and legal
criticism more explicit in terms of an analysis of court decisions and its
CRT ramifications in educational policy and research. Dixson and
Rousseau (2005) argued for using CRT’s grounding in the law and its
untapped potential in educational research to build more complex understandings of the origins and impact of racism in educational settings. In the
next section, we will attempt to make this education link to case law
through a discussion of the U.S. Supreme Court decisions in Grutter v.
Bollinger, and Gratz v. Bollinger, and then in subsequent sections, use CRT
to analyze the general higher education response to this landmark case.
A Summary of Grutter v. Bollinger
and Gratz v. Bollinger
The University of Michigan implemented a series of admissions policies
in the early 1990s that sought to diversify its student body (Green, 2004).
Consequently, the law school admissions criteria focused on the academic
ability of its applicants, combined with a flexible assessment of applicant
capabilities to determine admission to the law school. Part of this flexible
assessment was defined under the rubric of diversity, which would potentially enrich the experience of the entire law school’s incoming class. The
law school argued that racial diversity should be one of many factors to be
considered in the admissions review in terms of achieving a critical mass of
underrepresented students of color, which would potentially make a unique
and noticeable contribution to the law school at Michigan.
Barbara Grutter, a White Michigan resident who had an undergraduate
GPA of 3.8 and a 161 LSAT score and was denied admission to the
law school filed suit alleging that they had discriminated against her on
the basis of her race in violation of the Fourteenth Amendment, Title IV
of the Civil Rights Act of 1964, and 42 U.S.C 1981. She claimed that
the University of Michigan Law School used race as a predominant factor in the admissions process, that she was a victim of reverse discrimination because of her race, and that lesser qualified students of color were
admitted.
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The district court decision in Grutter was in favor of the plaintiff, but on
the appeal, the Federal 6th Circuit Court of Appeals reversed. The U.S.
Supreme Court granted certiorari to decide the legal question of national
importance: Is diversity a compelling state interest that can justify the narrowly tailored use of race in the selection of applicants for admission to
public institutions of higher education?
Using strict scrutiny under equal protection analysis to determine the
constitutionality of racial classifications if they are narrowly tailored to further compelling governmental interests, the U.S. Supreme Court, by a 5-to4 majority, held that diversity was a compelling interest and that the
University of Michigan Law School’s admissions policy was indeed narrowly tailored to further this interest. Writing for the majority, Justice
O’Connor articulated three key reasons for supporting the University of
Michigan in this case. First, there was no indication that the use of race in
the admissions process operated as a quota. Race was used in a flexible way
and was considered along with many other diversity factors. This was in
line of reasoning with former Justice Powell’s opinion in the Bakke v.
Regents of University of California (1978), in which he established that
race could be one of many variables to ensure diversity in admissions.
Second, diversity was a compelling state interest because the function and
role of law schools, such as the University of Michigan, is to prepare the
future political, social, and business leaders of our nation. The diversity
standard attempts to reflect the diversity of population at large and prepares
students for a diverse workforce. Third, a critical mass was important under
the diversity standard because students could be potentially educated
through a wide exposure to different ideas from students of different backgrounds, and race could be considered as part of that diversity to achieve
this important government goal. To be sure, O’Connor did not define a critical mass in actual numbers, but she and the majority did agree that a critical mass served the purpose of contributing to cross-racial understanding,
breaking down racial stereotypes, and helping achieve overall better understanding of different races.
The diversity standard was also at issue in the Gratz holding in terms of
how far an undergraduate admissions process can go in attempting to
ensure a racially diverse freshman class. Jennifer Gratz, a White European
American female applied to admission to the University of Michigan’s liberal arts and sciences college in the fall of 1995. When she was rejected, she
too claimed reverse discrimination based on her race and said that race was
a determining factor in why she was rejected whereas other students of
color with lower standardized test scores and grade point averages were
admitted. The Court found that the University of Michigan’s use of a point
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system—in which students are awarded points based on their geographic
region, high school grade point average, standardized test score, quality of
high school attended, and underrepresented minority status—established a
system of admissions that violated the compelling government interest of
diversity. The Supreme Court majority held that this system was not narrowly tailored to achieve the educational diversity that the University of
Michigan sought to justify in their undergraduate admissions system.
Relying on Powell’s reasoning in Bakke, the Court majority reasoned that
undergraduate applicants were not reviewed and assessed on an individual
basis to evaluate their potentially unique contribution to the freshman class.
This reasoning led to the Court invalidating the numerical system of undergraduate admissions used by the University of Michigan.
A CRT Preview of Higher Education Post-Grutter
Given that the general concept of affirmative action was defended, a
diversity standard was articulated in Grutter, and the use of a rigid system
of admissions was held in violation of the Constitution in Gratz, we would
expect that many selective colleges and universities would have embraced
Grutter and moved toward a comprehensive admissions process resulting in
more racial diversity. To review what has been done so far in this area, we
used CRT through an analysis of data to see what initial progress, if any, has
been made in higher education since the U.S. Supreme Court upheld the
diversity standard in Grutter in 2003. To be sure, students of color have
made some progress in overall college access in the post–civil rights era.
In the eyes of many, students of color are achieving academic success at
unprecedented levels in U.S. colleges and universities. The American
Council on Education’s (2001) Annual Status Report of Minorities in Higher
Education notes that in 1997, students of color achieved their greatest percentage gain in enrollment at both the undergraduate and graduate levels.
These students experienced an almost 3% enrollment increase at the undergraduate level and more than 5% increase at the graduate and professional
school levels. The U.S. Department of Education, National Center for
Education Statistics (2000) reported similar increases for students of color,
noting that there were nearly 1.3 million minority students enrolled at these
institutions in 1988 and slightly more than 2 million in 1998. By comparison, there were roughly 6.5 million White students enrolled in 4-yr institutions in 1988 and 1998. The number of baccalaureate degrees conferred to
students of color also demonstrated increases. The U.S. Department of
Education, National Center for Education Statistics (2002) reported that
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in the 1976 to 1977 academic year, White students received 88% of total
baccalaureate degrees at degree-granting institutions, African American
students received 6.4%, Hispanic students received 2%, Asian Pacific Islander
students received 1.5%, American Indian and Alaskan Native students
received 0.4%, and nonresident undocumented students received 1.7%. The
percentage of students of color receiving baccalaureate degrees has increased
ever since, with very small drops in isolated years. For example, during the
1980 to 1981 academic years, White students received 86.4% of total baccalaureate degrees, and students of color students received 13.6%. In the 1990
to 1991 academic years, White students received 83.5% of total baccalaureate degrees, whereas students of color received 16.5%. In the 2000 to 2001
academic year, White students received 74.7% of baccalaureate degrees and
students of color received 25.3%, with African American, Hispanic, and
Asian Pacific Islander students leading at 8.9%, 6.2%, and 6.3%, respectively
(U.S. Department of Education, National Center for Education Statistics,
2002). Similarly, the number of doctoral degrees conferred on students of
color, who are U.S. citizens, increased by 4.4% from 1997 to 1998.
Nevertheless, despite these tremendous increases, students of color
remain significantly behind their White peers in enrollment and completion
across the postsecondary landscape. To be blunt, Whites remain overrepresented in elite institutions of higher education. Asian Americans have been
given tentative honorary White status in the admissions process as long as it
does not result in majority Asian American students on these campuses
(Takagi, 1993). This was also evident in the 1st year in California when race
was no longer used as a criterion for admission to the UC campuses after the
passage of Proposition 209. In the fall of 1998, the number of African
Americans, Chicano, and Latino and Latina students plummeted at the
UCLA, UC–Berkeley, and UC San Diego (Morfin, 2005), and this trend has
continued at UCLA in terms of the lower numbers of Chicano and African
American applications, admissions, and enrollment at the undergraduate
level (see Charts 1 to 4, University of California, Office of the President factsheets, 2005).5 One major point drawn from these data is that although
African American students are applying to UCLA in high numbers, their
admission rates are very low compared to other groups, and their actual
enrollment at UCLA is even lower. These talented students may be going to
other institutions. Yet given the Grutter decision, the rationale for diversity
at an institution such as UCLA is made even more compelling with this large
discrepancy among applications, admissions, and enrollment of African
Americans. Even more crucial is the projected Chicano and Chicana and
Latino and Latina student enrollment in the California K-12 schools versus
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Figure 1
California K-12/CSU/UC Latina and Latino Freshman Enrollment
60
50
47
43
40
33
30
25
22
20
16
13
51
Under
Enrollment
Gap
22
15
10
0
1995
2000
K-12 Enrollment
2003
CSU Enrollment
2008
UC Enrollment
Note: CSU = California State University; UC = University of California.
Sources: California State Department of Finance, November 2000; UCOP, 2004; provided
by Daniel G. Solórzano (UCLA).
Figure 2
African American Applications, Admissions,
and Enrollment at UCLA
1800
1600
1400
1200
1000
800
600
400
200
0
Applications
Admissions
Enrollment
1995 1996 1997 1998 1999 2000 2001
1387 1450 1272 1247 1308 1480 1531
661 606 488 294 313 325 326
259 230 201 138 147 147 137
Applications
Admissions
Enrollment
Source: University of California, Office of the President (2005).
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Figure 3
Chicano Application, Admission, and Enrollment at UCLA
4500
4000
3500
3000
2500
2000
1500
1000
500
0
Applications
Admissions
Enrollment
1995 1996 1997 1998 1999 2000 2001
2645 2708 2578 2968 2985 3399 3954
1453 1305 1134 716 751 849 964
540 533 425 312 364 391 439
Applications
Admissions
Enrollment
Source: University of California, Office of the President (2005).
their lower projected percentages in the UC and California State University
systems. This future trend data (which resembles projections elsewhere in
the United States) indicates that states must address diversity as a compelling government interest, and this interest is directly tied to the state’s
changing demographics and future state needs from higher education.
Based on this evidence, our position is that colleges and universities have
not been aggressive in terms of taking advantage of the diversity principle
established in the 2003 U.S. Supreme Court ruling. Selingo (2005, p. A21)
reported that although the Grutter decision gave the “green light” in support
of affirmative action, the conservative local and state political context may be
a factor in stopping many institutions from implementing the diversity standard as a compelling government interest in admissions. Even though Grutter
salvaged a form of affirmative action, it can be argued that the victory in reality was a loophole for the retreat from race and that Gratz was a political
public relations policy way for universities to go on public record against the
use of quotas or rigid point systems. The UC system has no affirmative action
as a result of Proposition 209. Even though the university may attempt to
re-establish affirmative action in the admissions process, what needs to be
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pondered is if the will and desire exists. For example, when Gratz and Grutter
were decided, President Atkinson of the UC system applauded the U.S.
Supreme Court’s ruling in Grutter, but argued that the UC was constrained to
re-implement affirmative action because of proposition 209. Was the UC system really constrained by the proposition or by a lack of administrative leadership?6 In a survey of 29 institutions with competitive admissions policies,
The Chronicle of Higher Education (Selingo, 2005) found that 7 institutions
experienced a drop in the percentage of African American and Latino and
Latina freshmen from 2002 to 2004. At 11 colleges, the percentage of Latino
and Latina freshmen rose, but African American enrollment fell, whereas 11
institutions experienced gains in African American and Latino and Latina
enrollment during this period. One of the institutions that suffered a drop in
both categories was the freshman class of 2004 at the University of Illinois at
Urbana-Champaign, where of the 7,248 students enrolled; 410 were Black,
whereas the figure for the previous year for Black students was 602. Latino
student enrollment for 2004 also saw a decrease—dropping to 483 from 503
in 2003—and the number of American Indian students also fell, from 25 in
2003, to 19 in 2004 (Lamothe, 2004). From a CRT perspective, these figures
should be cause for alarm and action for higher education leaders. Given that
they have the legal justification to pursue diversity as a compelling government interest, the argument for affirmative action can be made on both political and philosophical grounds through the perspective of opening up
institutional doors to minority students. Otherwise, the soft affirmative action
responses will not deal with the locked-in qualities of current racial discrimination that is tied to the material conditions of many students of color and
their families in lower socioeconomic areas of the United States. Roithmayr
(2004) argues that for affirmative action to really work post-Grutter, much
more is needed in terms of politically addressing disparities in housing,
wealth, employment, public services, and finances. A more comprehensive
view of affirmative action argues for fundamental social justice changes
resulting in opening societal doors and subsequent preparation for college
access, which is still foreclosed to many groups of color that live in lower
socioeconomic areas. Narrowly tailored programs will not markedly lower
racial disparities in admissions and achieve a critical mass unless they are
done in consort with broader remedies to address societal lock-in discrimination and hostile racial campus climate issues.
CRT and Higher Education Policy and Practice
The data reported in the previous section illustrate a picture of missed
opportunity by some institutions of higher education from a CRT perspective.
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To be sure, some of these institutions have attempted to increase their
enrollment of African American and Latino and Latina students for the fall
2005 freshman class or have openly defended their use of affirmative action
(Schmidt, 2005; Sewell, 2005). Furthermore, we hope this snapshot picture
will change in the near future if more institutions become aware of this
issue and become more assertive in their admissions and enrollment initiatives. But the missed opportunity stems from not initially using the Grutter
decision as a way to affirm a broader concept of affirmative action that
would take on the problem of underrepresented racial groups of color on
predominantly White selective campuses.
This picture of missed opportunity to affirm diversity can be linked to
other CRT research in the higher education context that has documented the
experiences of students and faculty of color and the historical evolution of
racism in educational policy in higher education. To illustrate this point, we
can draw from Anderson’s (2002) historical findings of institutional racism
at the University of Michigan from student interviews that were reported in
university reports such as this passage:
On Tuesday, January 27, 1987, a group of Black women were holding a
meeting in a dormitory lounge in Couzens Hall. A racist flier was slipped
under the door. It announced the beginning of a “hunt” against Black people
and used a variety of pejorative terms: Be it known that due to severe drought
and fire this past season, and due to decreased animal populations; the hunting of DEER, BEAR, RABBIT, QUAIL and POSSUM, has been prohibited.
. . . The government has provided by special decree for a substitute animal
to be hunted, so that no hunter will lose his skill during the season. . . .
There will be an OPEN SEASON on PORCH MONKEYS (Regionally
known as Jigaboos, Saucerlips, Jungle Bunnies, and Spooks). (Anderson,
2002, p. 86)
The incidents of the past year remind us, however, that persons who are not
white who accept the University of Michigan’s offer to join this community
experience a world that the university does not advertise. They are thrown
into the company of white students who are amused by the kinds of ‘humor’
displayed on a certain radio [The Tenacious Slack Show] show. They are
likely to be subjected to ridicule, abuse, and threat within Universitycontrolled residence halls, even within their own dormitory rooms. In the
classroom students of color encounter instructors who make openly racist
comments, inside and outside of class. . . . If the testimony of the students,
faculty, and staff who testified at the [Hood] hearings is accurate the show
[Tenacious Slack Show] is only a symptom of a pervasive atmosphere on this
campus. (Kennedy & Payton, 1987, as cited in Anderson, 2002, p. 91-92)
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The aforementioned passages are excerpted from a report conducted
by Anderson (2002) on the historical documentation of racism at the
University of Michigan. The evidence gathered from news articles and
other archival sources from university hearings on racial harassment paints
a portrait of a campus policy culture that supports the overall goal of affirmative action but a campus climate that has historically racially profiled
African American and Latino and Latina students. Most of the evidence in
this report illustrates how these students felt that the campus did not belong
to them or that they were not fully accepted as students. Toward the end of
the report, Anderson (2002) concludes that there are general perceptions of
a more positive racial climate in terms of current campus diversity. However,
these examples represent some of the past racial barriers that minorities had
to face and overcome at the University of Michigan. Furthermore, these
incidents and the historical patterns of past discrimination connect to
the current debate about the meaning of diversity and affirmative action.
Researchers who explore the experiences of students and faculty of color in
higher education also use critical race counterstorytelling often as a way in
which to tell important stories about social justice in higher education.
For example, Solórzano (1998) used counterstorytelling as a method to
examine how Latino and Latina postdoctoral students who were awarded prestigious fellowships still suffered from the discrimination of invisibility as they
were continually ignored by the faculty and administrators at their Research
I home institutions. These students experienced racial microaggressions, or
small and subtle acts of racist aggression, at three elite predominantly White
universities, which had a decidedly negative impact on the overall racial climate of these campuses. Solórzano and Yosso (2001) conducted a CRT and
LatCrit qualitative research study, which used counterstorytelling as a method
to explore the experiences of Latina faculty and graduate students at a predominantly White institution. Their findings creatively chronicled their experiences with discrimination, self-doubt, and confusion as they grapple with
surviving in hostile contexts. Villalpando and Delgado Bernal (2002) used both
empirical data and counterstorytelling to tell a story about a Latina faculty
member engaged in the battle for tenure at a predominantly White university.
The story is told from two perspectives: a “majoritarian” story that focuses on
the professor’s deficits and her supposed pro–student of color (i.e., perceived
anti-White) teaching practices. The counterstory, on the other hand, focuses on
the researchers’ strength as community-oriented scholars who engage in
research and teaching that makes a difference in the lives of marginalized
peoples. The article underscores the contradictions between the experiences
and perspectives of faculty of color in higher education and the predominantly
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White faculty who evaluate their professional academic work by an
unexamined set of cultural norms, standards, and beliefs. These conflicting
worldviews—left unresolved in the two mirroring narratives—ground the
authors’ critical race analysis of the barriers that impede the success of faculty
of color in these mirrored perspectives on a Chicana faculty member’s qualifications for tenure. Taylor (2000) used CRT as a tool to explore the “backlash
against affirmative action” in Washington State. He offered a critical race counterargument that deconstructed the core of arguments for race neutrality and
colorblindness. In addition, he argued that CRT could not only be used to help
situate arguments for affirmative action, but it could also be used as a way to
enliven strong activist agenda for multicultural education in higher education.
Finally, Solórzano and Yosso (2001) used critical race counterstories as a
method for exploring affirmative action debates in higher education. The counterstory is set in the midst of student intervener arguments in the Michigan case
and evokes the spirit of Thurgood Marshall to illustrate the complexity of the
arguments in the complex legal battles over affirmative action. They use majority opinions, dissents, and compromises from the Bakke (1978) decision while
also reaching back to the broader historical struggles of Brown I and Brown II
(1954, 1955). This nuanced counterstory relies on history, legal analysis, and
fictionalized historical accounts as a way to illuminate the lived history of the
students of color who participated in the efforts to challenge the normative
social experiences and assumed legal standard of equal opportunity for all at
predominantly White Research I institutions.
To summarize, the research highlighted in this section points to missed
opportunities to engage in positive affirmative action. CRT research in
higher education has illustrated how faculty of color have to deal with
microaggressions and racial harassment. The CRT studies have also shed
light on how students of color have to tolerate a hostile racial climate and
racial profiling on predominantly White campuses. From a CRT perspective, the counterstories show how different their narratives of racial discrimination are from the mainstream White European American students,
such as those given by plaintiffs in the Grutter and Gratz cases, and faculty
and what we have to learn from the mistakes of the past so we are not
doomed to repeat them (Delgado & Stefancic, 2000a).
Conclusion: Diversity as a Compelling State Interest
Equal to the Politics of Racial Neutrality?
A CRT analysis of education and affirmative action law, particularly in
terms of the evidence generated through counternarratives and counterstories,
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can serve as a potential link with other movements (e.g., gender, social class)
in terms of galvanizing progressive coalitions for political opportunity and
activism. The diversity as compelling state interest standard should be fostered and moved on by higher education leaders. As the chancellor of
Syracuse University, Nancy E. Cantor, said, “What needs to happen is that
every major institution in this country has to be fired up to make this front and
center. . . . We have to see to it as our responsibility to maintain and foster the
commitment to diversity” (Selingo, 2005, p. A23).
However, from a CRT perspective, the unresolved issue is that the diversity
standard set in Grutter does not completely address the remedial usage of
race and provide a social justice remedy that takes on historical racial discrimination and influences current institutional racism (Yosso et al., 2005).
From an interest-convergence perspective, the Grutter and Gratz decisions
represent socially palatable reasons regarding diversity in higher education
because rigid numerical systems for admissions were struck down, but
an individualized student review to create a critical mass was accepted
by the Court.
Furthermore, students from low-income families and students of color
who access selective Research I post-secondary institutions face new legal
and political challenges from right-wing conservative forces (e.g., Cato
Institute, Center for Individual Rights, Heritage Foundation, Mountain
States Legal Defense), which seek to undermine other higher education
diversity goals. From a CRT perspective, what we are witnessing is the conservative legal groups’ political emphasis on a color-blind interpretation of
civil rights law as a strong movement driven to dismantle an array of outreach and recruitment efforts (Yosso, Parker, Solórzano, & Lynn, 2005).
This, in turn, will create a host of new legal and political challenges for
groups. CRT should be one of many intellectual tools used to aggressively
counter this trend on behalf of fighting racial discrimination, both overt and
institutional (Yosso et al., 2005).
Ladson-Billings (2004) argued that Brown, despite its symbolic importance, had limited effectiveness for substantively changing educational
opportunity for the vast majority of Black students, Latino and Chicano
students, and other students of color. What is needed is for us to see Brown
as a first potential step to a different way to envision a future for real education to happen, particularly in terms of potential coalitions of poor and
middle-class Whites and other racial minority groups to demand higher
quality schooling that provides them with future opportunities (LadsonBillings, 2004). In doing so, we believe that through CRT, affirmative
action through Grutter now has to be seen broadly in terms of the following:
(a) changing the material conditions of the lives of low-income persons and
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persons of color through a wide range of measures (e.g., affordable housing,
better health care, job training and higher wages, etc.), (b) challenging conservative forces to “ante up” more resources and energy to eliminate racial
inequities at the elementary and secondary school levels, and (c) proactively
recruit and retain students and faculty of color and deal with the microaggressions that they face and the sometimes hostile racial climate documented
by CRT researchers in higher education. From a CRT and praxis perspective (Yamamoto, 1997), it might be that students and/or parents and
communities of color and their allies may put their own political pressure
on higher education administrators in the future to enforce the compelling
government interest of diversity that was central to the Grutter decision.
Notes
1. As critical race throry (CRT) continues in different directions, it has taken up new discourses and has offered new challenges to legal doctrine in American jurisprudence. Carbado
and Gulati (2003) identify two strands within CRT, which he refers to as first-generation and
second-generation scholarship. They argue that the first generation of CRT scholars, such as
Bell (1980) Crenshaw (1988), Crenshaw et al. (1995), Harris (1993, 2002), Angela Harris
(1994), and Williams (1987, 1991), and focused mainly on the material manifestations of racism
as a way to argue for social justice and focused much-needed attention on the inclusion of the
subjugated voices of racially marginalized peoples into the debates on race, racism, law, and
society. The second generation of scholars have taken Bell, Delgado, Williams and Crenshaw’s
ideas and extended them to address issues of gender, ethnicity, language, culture, sexuality,
and other key markers of difference. Borrowing heavily from postmodernism, poststructuralism and critical theory, these works focus more attention on teasing out the multivaried meanings of race and their interaction with other forms of domination. This new hybridity is clearly
laid out in Crossroads, Directions and a New Critical Race Theory, edited by Valdes, Culp,
and Harris (2002). This work seeks to shift CRT in a new direction by discussing how CRT as
a legal framework of analysis interfaces with concepts of identity (e.g., gender, sexual orientation), the impact of globalization on understandings about race, critical postcolonial thought
on race and racism, critical race activism, and the development of coalitions across difference.
For example, Valdes (2000) has discussed how upper class queer males from Latin American
countries may come to the United States as queer nonracialized persons, but when they come
to a racially polarized city such as Miami, they might be placed in a racialized group and face
racial discrimination and homophobia. However, he observes that their social class position
allows them entry into other sectors of the city’s political economy that are off-limits to
Miami’s low-income population. Iglesias (1999) and Valdes et al. (2002) argue for using this
new form of CRT as a way to think about race and other areas of difference as a set of shifting bottoms and rotating centers, in which not one category (e.g., race, social class, sexual orientation) dominates but multiple ways. These ways of thinking about race can become
potential avenues of solidarity for common legal causes.
2. Carbado and Gulati (2002) argue that initially, CRT was conceived as an effective tool
in terms of articulating the nuances of racism in a legal theoretical sense, particularly in terms
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of formal and informal barriers to job entry, law school admission, and so forth. In addition,
they contend that CRT has helped to articulate a conception of race that is operationalized as
a social construction at the larger level of institutional entry. Yet CRT has not been as effective
in terms of paying attention to the interpersonal way in which race is produced, and the new
approaches in CRT begins to deal directly with this issue. For example, Carbado and Gulati
(2002) emphasized that CRT often ignores the racial productivity of the choices people of
color make about how to present themselves as racialized persons. As a general matter, CRT’s
race-as-a-social-construction thesis does not include an analysis of the race-producing practices that are reflected in the daily negotiations people of color perform in an attempt to shape
how (especially White) people interpret their non-White identities. Therefore, Cabado and
Gulati make the case for using CRT with a combination of law and economics. It is important
to use CRT with a more nuanced analysis that combines CRT analysis and applies the use of
econometric principles to show how and why race is operationalized within the economic
sphere of the workplace. Carbado and Gulati argue that CRT can be used to explore the ways
employers will use, for example, ideal racial profiles of model minorities in a consumerist culture in which race is commercialized. From their perspective, second-generation CRT analyses need to focus on the development of workplace identity and the interactions of class,
gender, sexuality, and race in forming a unique set of experiences for men and women in the
workplace.
3. There have been numerous critiques of CRT generally and specifically in the use of storytelling in the law. One of the more substantive critiques has come from Daniel Farber and
Suzanna Sherry (1997). In Beyond All Reason: The Radical Assault on Truth in American Law,
they argue that (a) outsiders’ stories are not typical of outsider experiences and therefore
unrepresentative; (b) outsiders’ stories overemphasize the unique perspective of the author
and/or “the voice of color” and thus are not generalizable to the overall outsider population;
(c) because storytelling lack clarity and analysis, they are not academically rigorous; and (d)
storytelling distorts the truth.
4. Dudziak (2000) provides strong added historical documentation to the thesis that it was
in the self-interest of powerful political forces to move on civil rights if only to disrupt the
Communist ideological campaign of the Soviet Union in Africa, Asia, and Central and South
America.
5. The sources for this compiled chart information was retrieved December 14, 2005, from
http://www.ucop.edu/news/factsheets/flowfrc0503.pdf
6. UC President Richard C. Atkinson issued the following statement (June 23) regarding
the U.S. Supreme Court’s decisions on affirmative action:
As a supporter of affirmative action, I am gratified by the Supreme Court’s decision
today in the University of Michigan law school admissions case. The court’s action to
uphold the principles of affirmative action sends an important message that diversity
can be one of many compelling considerations in admitting students to our nation’s
most-selective universities. As president of the University of California, I also respect
the decision of the California voters, who in 1996 eliminated consideration of race and
ethnicity in state university admissions. The University of California will continue to
comply with Proposition 209, and we will continue to work through other legal means
to achieve excellence and diversity on our campuses.
Retrieved December 13, 2005, from http://www.universityofcalifornia.edu/news/michigancase.
html
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Otoniel Jimenez Morfin is a doctoral student in the Department of Educational Policy
Studies at the University of Illinois at Urbana-Champaign. His research specialization is on
social stratification and access issues related to higher education for students of color.
Victor H. Perez is a doctoral student in the Department of Educational Policy Studies at the
University of Illinois at Urbana-Champaign. His research interests include access and diversity in higher education, the governance of higher education, policy analysis, and program
evaluation.
Laurence Parker is a professor in the Department of Educational Policy Studies at the
University of Illinois at Urbana-Champaign. His area of interest is critical race theory and educational policy analysis and his most recent publication is a coauthored chapter on affirmative
action in higher education in the 2004 Review of Research in Education.
Marvin Lynn is an assistant professor in the Department of Curriculum and Instruction at the
University of Maryland–College Park. His area of research specialization is critical race theory
and its connections to the sociology of race, critical pedagogy, and African American education. He has recently coauthored a chapter in the 2004 Review of Research in Education and a
forthcoming article in Teachers College Record.
John Arrona is a graduate student in the Department of Educational Policy Studies at the
University of Illinois at Urbana-Champaign. He currently works for a Latino public policy and
advocacy organization that examines the impact of state legislation on the Latino community
in California.
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