Fisher v. Texas: The Limits of Exhaustion and the Future of Race-Conscious University Admissions

1. Fisher v. Texas: The Limits of Exhaustion and the Future of Race-Conscious University Admissions Professor john a. powell Director, Haas Institute for a Fair and Inclusive Society; The Robert D. Haas Chancellor’s Chair in Equity and Inclusion February 22, 2014

2. 7-1 Decision Fisher v. Texas • Fisher on its face did not: • strike down UT’s holistic admissions policy • overrule Grutter • revise or otherwise alter the constitutional standards announced in Grutter • hold that UT’s admissions policy was not narrowly tailored • suggest deficiencies in the UT policy

3. "New Departures" Three ways in which Fisher departs from precedent • Yet, upon a closer reading, Fisher is a departure from settled law in a number of critical respects. • For the first time, 7Justices hold that the use of racial classifications – regardless of intent – in university admissions should be subject to strict scrutiny review • Narrow tailoring now requires “exhaustion” of race neutral alternatives instead of “consideration” of them. • “Good faith” consideration does not suffice. The court, not the University, is not responsible for assessing the availability of alternatives.

4. Exhaustion Requirement • Grutterheld that narrow tailoring • requires “serious, good faith consideration of workable race-neutral alternatives.” • “does not require exhaustion of every conceivable race-neutral alternative.” • To the contrary, Justice Kennedy’s Fisher opinion asserts • “the reviewing court must ultimately be satisfied that no workable race-neutral alternatives would produce the educational benefits of diversity.”

5. Unanswered Questions • What facts must be presented to satisfy a court that no workable race-neutral alternatives are viable? • What degree of certainty is called for in order to satisfy the reviewing court? • How are we to understand the standard of ‘tolerable administrative expense’? • Where is the threshold for tolerable expense or the line between tolerable and intolerable expense?

6. The sociological complexity of race illustrates the limits of exhaustion. • As a social construction, race is not an essential or static characteristic, but a dynamic one. • It is the interaction of domains such as housing, education, employment, and health, to take but a few, on each other that explains racialized outcomes. The attempt to explain or measure the effects of racial discrimination in any particular domain will be necessarily incomplete. • Gunnar Myrdal: • “The unity is largely the result of cumulative causation binding them all together in a system and tying them to white discrimination. It is useful, therefore, to interpret all the separate factors from a central vantage point – the point of view of the Negro problem…In an interdependent system of dynamic causation there is no ‘primary cause’ but everything is cause to everything else.”

7. Racialized Populations and Outcomes • The relative disadvantage of certain racialized populations results from dozens of demographic, social, and economic factors that may vary across geographic areas and local conditions. • The convergence of these factors with race makes race a particularly useful consideration in understanding life chances, but it also makes it vexing to analyze the various complex factors that explain race. • An admissions policy limited to race-neutral factors cannot easily capture their cumulative effect on educational opportunity.

8. Administrative Expense Caveat • “If a nonracial approach ... could promote the substantial interest about as well and at tolerable administrative expense, then the university may not consider race.” • The problem? • The administrative expense of developing race-neutral plans goes far beyond the resources of most admissions committees, let alone school boards and administrative staff, compared to the use of racial classifications in either student assignment or admissions review.

9. Complexity of Disadvantage • Multi-dimensional/multi-indicator approaches are the future. • A single indicator cannot capture the myriad factors that influence an individual’s life chances. • Multi-factor approaches are compelling because they not only paint a more vivid portrait of the underlying structural conditions, but are also narrowly tailored particular forms of disadvantage.

10. Alternative: Opportunity Enrollment • Opportunity scoring is a sophisticated multi-factor methodology that better captures disadvantages than a single indicator. • Opportunity scoring creates an index of factors which correlate to and causally explain life outcomes and projected life chances. • The opportunity mapping methodology seeks to understand the distribution of opportunity over space. Given this geographic dimension, these indices can be represented using geographic information technology in the form of opportunity maps. (See http://egis.hud.gov/affht_pt/)

12. Opportunity Enrollment Model cont. • Universities can use opportunity index scoring to target the most educationally disadvantaged students and generate racial and other forms of diversity. • Applicants can be given an opportunity score based on a mixture of both individual and geographic characteristics. • For example, given an index of a particular region, universities could set a hard quota that 20% of their enrollees are accepted from low opportunity census tracts. • Or, students who were raised or currently reside in neighborhoods in low or very low opportunity census areas could also be awarded a mechanical bonus in the admissions process.

13. Opportunity Enrollment Model cont. • Neither approach would violate the Court's prohibition against racial quotas or mechanical use of race, because such bonuses are based on geographic residence, not race. • Opportunity enrollment employs a mixture of geographic diversity and socio-economic diversity. • Because the vast majority of families residing in low or very low opportunity census areas are African-American, this would have a positive effect on racial diversity. • In addition, the intense hyper-segregation of Black and Latino families increases the probability that a geographic diversity plan would work.

14. EDUCATION HOUSING & NEIGHBORHOOD HEALTH Economic Health Multi-Indicator Approaches • Student poverty rates • Reading/Math test scores • Adult educational attainment • Teacher qualifications • Graduation rate • Proximity to employment • Commute times • Job growth trends • Business start trends • Unemployment rate • Public assistance rate • Home ownership rates • Crime incidence • Vacancy rates • Home value appreciation • Neighborhood poverty rates • Population change • Proximity to parks/open space • Proximity to toxic waste release sites

15. HUD’s Affirmatively Fair Housing App • http://egis.hud.gov/affht_pt/

16. Next:Stephen Menendian will cover post-Fisher alternatives and specific examples where Opportunity Enrollment Models and Mapping have been used.

17. Fisher v. Texas: Implications for K-12 Integration Stephen Menendian Assistant Director, Haas Institute for a Fair and Inclusive Society February 22, 2014

18. K-12/Post-Fisher Environment • A complex landscape: • Increased racial polarization • Justice Kennedy’s concern for white resentment • Increased racial and economic inequality • Varying commitments to integration

19. Criticism of 10% Plan • Less qualified students are admitted • Relies on underlying patterns of segregation, which we should be working to integrate • Abandons racial diversity as an explicit goal as we pursue other forms of diversity.

20. Opportunity Mapping Opportunity Mapping and Education • Since the racialized nature of opportunity isolation is a spatial phenomena, maps are naturally an effective way to represent it • Maps allow us to understand volumes of data at a glance through layering • Mapping is a very powerful tool in looking at educational inequity & opportunity

21. Opportunity Mapping For Schools • Mapping the geographic distribution of opportunity helps us to evaluate where these opportunity mismatches exist in a community and to design interventions to move people to opportunity • Student assignment policies can be created using indicators, drawing attendance Zones, boundaries, or through controlled choice plans.

22. Opportunity Models: Voluntary Integration Plans Using Multiple Indicators (Multi-Factor Approaches)

23. Berkeley Zones Source: Civil Rights Project at UCLA

24. Diversity Map Source: Civil Rights Project at UCLA

25. Cal. Ct. of Appeals “We conclude that the particular policies challenged here – which aims to achieve social diversity by using neighborhood demographics when assigning students to schools – is not discriminatory. The challenged policy does not use racial classifications; in fact, it does not consider an individual student’s race at all when assigning the student to a school.” - ACRF v. Berkeley Unified School Districts

26. Opportunity Zones in Montclair • Modeled several educational zones for Montclair, based on five equally weighted factors. • # of Free and Reduced Lunch Students • Parental Education Levels • Median Household Income • Household Poverty Rates • Race, by neighborhood • Each of these factors was calculated at the neighborhood level, by census block group.

27. Montclair *Step 3: From this database, a wait list system is utilized

28. Montclair

29. Montclair

30. Three Zone Integration Model: Montclair, NJ • Under the plan, the township would be divided into three zones, labeled Zone A, Zone B and Zone C. • Students would be assigned to zones based on individual census data, including household income and Title 1 status (eligibility for Free or Reduced Lunch). • Students from all  three zones would then be represented in each school.

31. Three Zone Integration Model: Montclair, NJ GOAL: Each school has diversity of students from each zone, within 5% point deviation of K class zone baseline. K and transfer students are assigned based on parental preference and zone balance.

32. Three Opportunity Zone Model Without Race With Race

33. Four Opportunity Zone Model Without Race With Race

34. Why race still matters • Alternatives lead to greater complexity, which places a burden on school districts • Empirical evidence is so far mixed on the success of these plans • Multi-factor approaches may better capture particular forms of disadvantage, but they do a less effective job of producing raw numerical racial diversity than individual racial classifications do • Alternative factors, including socioeconomic status, are imprecise • Approximating race is resource intensive and requires outside expertise and consultants

35. Justice Kennedy’s opinion is controlling as the fifth vote. The Court in Parents Involved

36. Justice Kennedy, Concurring That the school districts consider these plans to be necessary should remind us that our highest aspirations are yet unfulfilled. School districts can seek to reach Brown’s objective of equal educational opportunity. But the solutions mandated by these school districts must themselves be lawful.

37. “If school authorities are concerned that the student-body compositions of certain schools interfere with the objective of offering an equal educational opportunity to all of their students, they are free to devise race-conscious measures to address the problem in a general way without treating each student in a different fashion soley on the basis of systematic, individual typing by race. School boards may pursue the goal of bringing together students of diverse backgrounds and races through other means, including strategic site selection of new schools; drawing attendance zones with general recognition of the demographics of the neighborhoods; allocating resources for special programs; recruiting students and faculty in a targeted fashion; and tracking enrollments, performance, and other statistics by race. These mechanisms are race-conscious but do not lead to different treatment based on a classifications that tells each student he or she is to be defined by race.

38. Conclusion • Opportunity-enrollment model may well offer an ideal alternative or complementary admissions policy. • Pursuit of policies such as these will illustrate for the courts the limits of a strict exhaustion requirement, and perhaps lead to the development and use of admissions processes that can better measure forms of advantage relative to discrete and insular minorities.