What to Celebrate and Lament About the Fisher Decision

From the June 25, 2013 Edition of the National Law Journal

About the Author
	Tanya K. Hernandez is a Professor of Law at Fordham University School of Law, where she teaches Comparative Employment Discrimination, Critical Race Theory, The Science of Implicit Bias and the Law: New Pathways to Social Justice, and Trusts & Estates. She received her A.B. from Brown University, and her J.D. from Yale Law School, where she served as Note Topics Editor of the Yale Law School Journal.
	Professor Hernandez’s scholarly interest is in the study of comparative race relations and anti-discrimination law. Her work in those areas has been published in the California Law Review, Cornell Law Review, Harvard Civil Rights Civil Liberties Law Review, and the Yale Law Journal, among other publications. She recently authored “Racial Subordination in Latin America: The Role of the State, Customary Law and the New Civil Rights Response,” (Cambridge Univ. Press), and its Spanish translation, “La subordinación racial en Latinoamérica: El papel del Estado, el derecho consuetudinario y la nueva respuesta de los derechos civiles” (Siglo del Hombre Editores, Ediciones Uniandes, Colección Nuevo Pensamiento Jurídico, Bogotá Colombia, 2013).

In the U.S. Supreme Court’s June 24 Fisher v. Texas decision, the court reaffirmed the constitutionality of affirmative action. The 7-1 majority decision specifically states that “the attainment of a diverse student body is a constitutionally permissible goal for an institution of higher education” and that “racial classifications are constitutional if they are narrowly tailored to further [this] compelling governmental interest.” At the same time, the decision narrows a public university’s ability to use race-conscious policies to pursue racial diversity, by mandating that a university first exhaust all “nonracial” methods for promoting diversity and only turn to race-conscious policies after finding that “no workable race-neutral alternative would produce the educational benefits of diversity.” In short, racial diversity is upheld as a value at the same time that an additional hurdle is imposed on effectively pursuing it.

In the aftermath of the court’s decision, those committed to inclusive and democratic education and societies will now be obligated to first explore “race-neutral” alternatives such as “pipeline” projects that seek to mentor younger students in preparation for their application to universities, socio-economic based affirmative action and other polices using proxies for race-based stratification. Unfortunately such endeavors are too expensive for many under-resourced institutions to use effectively. Moreover, even the marginal success of such programs fails to address what race-based affirmative action usefully confronts head on — the operation of unconscious discrimination.

Research in the field of cognitive psychology reveals that we all harbor biases and that race-conscious affirmative action policies assist in addressing those biases. Part of the reason for enduring social hierarchies is that individuals rely on stereotypes to process information and have biases that they don’t know they have. These implicit biases, as psychologists call them, are picked up over a lifetime, absorbed from our culture and work automatically to color our perceptions and influence our choices.

In the educational context, studies of school teachers indicate that teachers generally hold differential expectations of students from different ethnic origins and that implicit prejudiced attitudes were responsible for these differential expectations as well as the ethnic achievement gap in their classrooms. This is because teachers who hold negative prejudiced attitudes appear more predisposed to evaluate their ethnic minority students as being less intelligent and having less promising prospects for their school careers.

The pervasive existence of implicit bias in society and its manifestation in the educational setting strongly suggest that the selection of students can be similarly affected by unexamined stereotypes and implicit biases. Bluntly stated, university admission offices are not immune from the operation of implicit bias.

But we are not slaves to our implicit associations. The social science research indicates that biases can be overridden with concerted effort. Remaining alert to the existence of the bias and recognizing that it may intrude in an unwanted fashion into judgments and actions can help to counter the influence of the bias. Instead of repressing one’s prejudices, if one openly acknowledges one’s biases and directly challenges or refutes them, one can overcome them.

Race-conscious affirmative action programs provide admission officers the needed space for acknowledging and addressing implicit bias. Having a race-conscious admissions policy encourages decision makers to consider the accomplishments and potential of students that their unexamined implicit bias might have otherwise overlooked. When institutionally activated, egalitarian goals undermine and inhibit stereotyping. This is endeavor is now hampered by the Supreme Court’s Fisher v. Texas decision.

Ironically, just as the United States has narrowed the ability to use race-based affirmative action, other jurisdictions, in Latin America and elsewhere, are broadly adopting it. Even France, which has long resisted race-conscious policies because of their unfortunate association with Vichy regime Nazi tactics, has begun to implement policies closely aligned with a concern for racial integration.

Specifically, in 2001, the elite university L’Institut d’Études Politiques de Paris (commonly known as Sciences Po) implemented the Priority Education Conventions Program. This program waives the entrance examination for 10 percent of its entering class in favor of having 85 secondary schools serving disadvantaged areas refer their best students to Science Po for in-depth interviews. Science Po then seeks to admit those underprivileged students with the best intellectual potential. Admitted students are provided all necessary financial aid and a tutoring program for academic support.

Since then, other “grandes écoles” (publicly financed elite private universities) have adopted the policy as well, which on its face is race neutral but is designed to reach the “visible minorities” of North African descent who constitute a substantial proportion of the public secondary schools that are specifically targeted by the programs. In fact, Daniel Sabbagh, a senior research Fellow at Science Po’s Center for International Studies and Research, has called the program “an indirect, race-based affirmative action policy.” In other words, while the program is officially structured as a general social inclusion policy, it purposefully operates to address racial inequality and provide the university officials space to work through their own implicit biases. As Justice Ruth Bader Ginsburg noted in her Fisher dissent regarding the presumably race-neutral University of Texas Ten Percent Plan — “[i]t is race consciousness, not blindness to race, that drives such plans.”

If the United States is to continue working toward its national goal of advancing equal opportunity, it will need to devise mechanisms for purposeful confrontation with implicit bias within the constraints the Supreme Court has imposed on race-based affirmative action. It is an endeavor that benefits us all.

Reprinted with permission from the “June 25, 2013 edition of the “National Law Journal”© 2013 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited. ALMReprints.com – 877-257-3382 – reprints@alm.com <mailto:reprints@alm.com> .

Professor Hernandez’s book, “Racial Subordination in Latin America: The Role of the State, Customary Law and the New Civil Rights Response,” can be obtained at http://www.cambridge.org/us/knowledge/isbn/item6865338/?site_locale=en_US

The Spanish translation, “La subordinación racial en Latinoamérica: El papel del Estado, el derecho consuetudinario y la nueva respuesta de los derechos civiles,” can be obtained at http://www.siglodelhombre.com/shop.asp