As a white student sues a university for alleged racial discrimination, is this the end of affirmative action?

An educational system that has historically been set up to reinforce inequalities will take a lot of work to dismantle, says Lola Adesioye.

In 2008, high school graduate Abigail Fisher of Sugar Land, Texas, was disappointed to find that her application to the University of Texas at Austin, a leading public college, had been rejected.

If Miss Fisher had finished in the top ten percent of her year, which she didn’t, she would have been granted automatic admission to the university under Texas’ merit-based top 10 per cent rule, which admits to the public university system any high school student in the state who finishes in the top ten percent of his or her graduating class.

Fisher’s application, on the other hand, went into a pool in which a variety of factors are taken into consideration. Fisher – who is white - believes that her application to the University of Texas was denied because of her race.

On Wednesday, her case against the University of Texas, which she claims violated her rights under the Equal Protection Clause of the 14th amendment, will go up before the Supreme Court for review.

Although Fisher's case has already been seen by lower federal courts, and the constitutionality of UT's actions upheld, it is possible that this case could result in an overturning of a landmark 2003 ruling which allowed the University of Michigan’s Law School to use race in a "narrowly tailored" way to "further a compelling interest in obtaining the educational benefits that flow from a diverse student body" and which set the precedent for UT.

Justice Sandra Day O’Connor, one of the judges who presided over the 2003 case, stated at the time that:

The Court expects that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.

However, if Fisher and her lawyers have their way the disbanding of affirmative action may happen far sooner than Justice O’Connor predicted.

This potential smackdown of affirmative action is good news for those who believe that racial diversity can be achieved through race-neutral policies alone. In a report released last week researcher Richard Kahlenberg claims that "universities [in states in which race-conscious admissions are prohibited] have implemented creative methods of assuring diversity."

However, this is not what the University of California – which is the largest selective higher education institution in America and operates a race-neutral admissions process and  – says about its own experiences. A case study released this summer revealed that

Although applications to the flagship campuses have doubled since 1995,and all groups have seen reductions in the percent of applicants offeredadmission, African American and Latino admittees have been reduced by 70 to 75 percent at UCLA and UC Berkeley, compared to just 35 and 40 percent for Asian and white applicants.

It goes on to say:

This disproportionate decline reflects the inequalities in the California educational system that fails to prepare African American, Native American and Latino students for highly competitive selection processes irrespective of their intellectual ability or likelihood of succeeding in their studies.

In fact, in a brief submitted to the Supreme Court in support of the University of Texas in this case, the University of California makes it clear that it does not believe that race-neutral policies are sufficient:

"[our] experience establishes that in California, and likely elsewhere, at present the compelling government interest in student body diversity cannot be fully realized at selective institutions without taking race into account inundergraduate admissions decisions…"

While race-neutrality sounds good in theory, I am not convinced that it is even possible in a country which is permeated by racial inequality, and in which racial disparities in the education system remain so stark. How is it possible to measure students in a race-neutral way if race plays such a role in educational outcomes and achievements? In order to have an effective race-neutral process at the top of the education chain, surely that would also require that there is race-neutrality from the outset?

Yet, the fact is that the inequalities that affirmative action originally sought to redress still remain. For example, while segregation in education is no longer legal, it is still ongoing, with some suggesting that it is even worse today than it was in the 1950s. This is partly as a result of continued residential segregation. In New York City, for example, it has been found that:

A student’s educational outcomes and opportunity to learn are statistically more determined by where he or she lives than their abilities.

In America, the achievement gap in education begins before kindergarten and continues through high school where African American and Latino students lag far behind their white counterparts. It would seem strange for there to be no policies at a higher education level which seek to take into account these ongoing racially-based structural imbalances. 

Education has long been considered the pathway to social mobility and in a world that requires better educated and more knowledgeable workers, not having equal opportunity of access to that education presents not only an issue for the individuals, who are more likely to find themselves consigned to lower-income work that requires lower skills, but also for the country which must maintain its competitiveness in the global marketplace.    

Unless more effective policies are put in place to address the deeper issues – racial inequalities, poverty, poor schools and low expectations, decaying urban areas, residential segregation and more – the result of stopping affirmative action can only be decreased chances for minority students and an increasingly unequal society.

Addressing these fundamental issues would have to go far beyond affirmative action in higher education, to a thorough review, revision and reform of the very nature of American society, as regards its minority citizens. It would actually require America to put in a great deal of work to ensure that from the very environment that the minority child is born into is a nurturing and more expansive one.

High poverty areas – in which African-American, American Indian and Latino children are six to nine times more likely than to live than white children – would need to be transformed. There would need to be a deeper level of commitment from the government to the eradication of poverty, which appears to have been overlooked in this election cycle with the focus being on the middle class and wealthy.

Ironically, the more one thinks about what is needed, the more it is clear that lack of educational opportunity and access is itself the main barrier to the solution of these issues. But an educational system that has historically been set up to reinforce inequalities will take a lot of work to dismantle.  

Some have suggested that class-based affirmative action would be a better, or perhaps more palatable, alternative to race-conscious affirmative action. Of course, there are minority students who are not from economically disadvantaged backgrounds, and white students who are. President Obama has said that his daughters, for example, would not need the benefit of a race-based affirmative action. 

However, although the inclusion of class is welcomed and necessary in order to facilitate and formulate a more nuanced look at the various factors that affect opportunity and achievement, this is inadequate on its own. Race and class intersect, yet they are not the same thing and therefore one cannot be replaced with another. Research also suggests that the effect of this would be to increase the number of low-income white students and would not make up for racial inequality. Research from the University of California’s case, has found that:

While African American and Latino youth are much more likely to come from low-income homes than either whites or Asians (53 per cent of African American and 59 per cent of Latino youth are low-income compared to just 22 per cent of white and 28 per cent of Asian youth in California), less than half of the low-income students admitted to the freshman class in 2011 at UC were from underrepresented groups.

I am of the opinion that for as long as race continues to affect people's chances in life, it must be considered as a factor, because it is indeed a factor.

Perhaps if affirmative action is struck down, this would shine more of a spotlight on America’s education system as a whole and more work will be done to narrow the achievement and opportunity gaps between white Americans and minorities from an earlier age. Affirmative action may go away, but the reasons for its implementation still, unfortunately, remain. 

Although all eyes are on the forthcoming presidential election, the case of Fisher v University of Texas has the potential  to usher in a new reality into America and to change the course of this nation. Let’s hope that the Supreme Court justices make the right decision.

The clock tower of the University of Texas at Austin. Photograph: Getty Images

Lola Adesioye is a British-born, New York-based political commentator, writer and broadcaster of Nigerian heritage. She tweets @lolaadesioye.

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Stop saying identity politics caused Trump

It's a wildly unsophisticated analysis that ignores the fact that all politics is inflected by identity.

Look, I don't mean to be funny, but is there something in the water supply? When Mark Lilla wrote his jeremiad against "identity liberalism" in the New York Times, it was comprehensively picked over and rebutted. But this zombie take has risen again. In the last 24 hours, all these tweets have drifted across my timeline:

And then this (now deleted, I think, probably because I was mean about it on Twitter).

And finally, for the hat-trick . . .

Isn't it beautiful to see a Blairite, a Liberal Leaver and a Corbynite come together like this? Maybe there is a future for cross-spectrum, consensual politics in this country.

These are all versions of a criticism which has swilled around since Bernie Sanders entered the US presidential race, and ran on a platform of economic populism. They have been turbocharged by Sanders' criticisms since the result, where he blamed Clinton's loss on her attempt to carve up the electorate into narrow groups. And they are now repeated ad nauseam by anyone wanting to sound profound: what if, like, Black Lives Matter are the real racists, yeah? Because they talk about race all the time.

This glib analysis has the logical endpoint that if only people didn't point out racism or sexism or homophobia, those things would be less of a problem. Talking about them is counterproductive, because it puts people's backs up (for a given definition of "people"). She who smelt it, dealt it.

Now, I have strong criticisms of what I would call Pure Identity Politics, unmoored from economics or structural concerns. I have trouble with the idea of Caitlyn Jenner as an "LGBT icon", given her longstanding opposition to gay marriage and her support for an administration whose vice-president appears to think you can electrocute the gay out of people. I celebrate female leaders even if I don't agree with their politics, because there shouldn't be an additional Goodness Test which women have to pass to be deemed worthy of the same opportunities as men. But I don't think feminism's job is done when there are simply a few more female CEOs or political leaders, particularly if (as is now the case) those women are more likely than their male peers to be childless. Role models only get you so far. Structures are important too.

I also think there are fair criticisms to be made of the Clinton campaign, which was brave - or foolish, depending on your taste - to associate her so explicitly with progressive causes. Stephen Bush and I have talked on the podcast about how hard Barack Obama worked to reassure White America that he wasn't threatening, earning himself the ire of the likes of Cornel West. Hillary Clinton was less mindful of the feelings of both White America and Male America, running an advert explicitly addressed to African-Americans, and using (as James Morris pointed out to me on Twitter) the slogan "I'm With Her". 

Watching back old Barack Obama clips (look, everyone needs a hobby), it's notable how many times he stressed the "united" in "united states of America". It felt as though he was trying to usher in a post-racial age by the sheer force of his rhetoric. 

As Obama told Ta-Nehisi Coates during his last days in office, he thought deeply about how to appeal to all races: 

"How do I pull all these different strains together: Kenya and Hawaii and Kansas, and white and black and Asian—how does that fit? And through action, through work, I suddenly see myself as part of the bigger process for, yes, delivering justice for the [African American community] and specifically the South Side community, the low-income people—justice on behalf of the African American community. But also thereby promoting my ideas of justice and equality and empathy that my mother taught me were universal. So I’m in a position to understand those essential parts of me not as separate and apart from any particular community but connected to every community."

Clinton's mistake was perhaps that she thought this caution was no longer needed.

So there are criticisms of "identity politics" that I accept, even as I wearily feel that - like "neoliberalism" - it has become a bogeyman, a dumpster for anything that people don't like but don't care to articulate more fully.

But there are caveats, and very good reasons why anyone pretending to a sophisticated analysis of politics shouldn't say that "identity politics caused Trump".

The first is that if you have an identity that any way marks you out from the norm, you can't change that. Hillary Clinton couldn't not be the first woman candidate from a major party running for the US presidency. She either had to embrace it, or downplay it. Donald Trump faced no such decision. 

The second is that, actually, Clinton didn't run an explicitly identity-focused campaign on the ground, at least not in terms of her being a woman. Through the prism of the press, and because of the rubbernecker's dream that is misogyny on social media, her gender inevitably loomed large. But as Rebecca Solnit wrote in the LRB:

"The Vox journalist David Roberts did a word-frequency analysis on Clinton’s campaign speeches and concluded that she mostly talked about workers, jobs, education and the economy, exactly the things she was berated for neglecting. She mentioned jobs almost 600 times, racism, women’s rights and abortion a few dozen times each. But she was assumed to be talking about her gender all the time, though it was everyone else who couldn’t shut up about it."

My final problem with the "identity politics caused Trump" argument is that it assumes that explicit appeals to whiteness and masculinity are not identity politics. That calling Mexicans "rapists" and promising to build a wall to keep them out is not identity politics. That promising to "make America great again" at the expense of the Chinese or other trading partners is not identity politics. That selling a candidate as an unreconstructed alpha male is not identity politics. When you put it that way, I do accept that identity politics caused Trump. But I'm guessing that's not what people mean when they criticise identity politics. 

Let's be clear: America is a country built on identity politics. The "all men" who were created equal notably excluded a huge number of Americans. Jim Crow laws were nothing if not identity politics. The electoral college was instituted to benefit southern slave-owners. This year's voting restrictions disproportionately affected populations which lean Democrat. There is no way to fight this without prompting a backlash: that's what happens when you demand that the privileged give up some of their perks. 

I don't know what the "identity politics caused Trump" guys want gay rights campaigners, anti-racism activists or feminists to do. Those on the left, like Richard Burgon, seem to want a "no war but the class war" approach, which would be all very well if race and gender didn't intersect with economics (the majority of unpaid care falls squarely on women; in the US, black households have far fewer assets than white ones.)

Those on the right, like Daniel Hannan, seem to just want people banging on about racism and homophobia to shut up because he, personally, finds it boring. Perhaps they don't know any old English poetry with which to delight their followers instead. (Actually, I think Hannan might have hit on an important psychological factor in some of these critiques: when conversations centre on anti-racism, feminism and other identity movements, white men don't benefit from their usual unearned assumption of expertise in the subject at hand. No wonder they find discussion of them boring.)

Both of these criticisms end up in the same place. Pipe down, ladies. By complaining, you're only making it worse. Hush now, Black Lives Matter: white people find your message alienating. We'll sort out police racism... well, eventually. Probably. Just hold tight and see how it goes. Look, gay people, could you be a trifle... less gay? It's distracting.

I'm here all day for a discussion about the best tactics for progressive campaigners to use. I'm sympathetic to the argument that furious tweets, and even marches, have limited effect compared with other types of resistance.

But I can't stand by while a candidate wins on an identity-based platform, in a political system shaped by identity, and it's apparently the fault of the other side for talking too much about identity.

Helen Lewis is deputy editor of the New Statesman. She has presented BBC Radio 4’s Week in Westminster and is a regular panellist on BBC1’s Sunday Politics.