“Affirmative Action” In Real Life (Or At Least Toledo)

… Often appears to have little in common with affirmative action as it is debated by lawyers and decided by judges. In part that’s because law has a life (if not always a logic) of its own, so that the principles underlying and the rules governing affirmative action in higher education are different from those in K-12, and both are different from those governing affirmative action in employment, which in turn are not necessarily the same as affirmative action in  housing. Etc.

With regard to this issue and many others, however, most non-lawyers tend to be lumpers, not splitters. For us, if quotas are bad here they are also bad there, and we tend to look at those who oppose them in one venue but support them in another as hypocrites (or lawyers, but…). The same goes for “racial balancing,” and as it happens the Supreme Court has been unusually clear in consistently holding that “racial balance” is not an acceptable motive or goal of affirmative action. Here is Chief Justice Roberts (back before he got creative) summarizing precedent on this point:

We have many times over reaffirmed that “[r]acial balance is not to be achieved for its own sake.” Freeman [v. Pitts, 503 U.S. 467], at 494. See also Richmond v. J. A. Croson Co., 488 U.S. 469, 507 (1989) ; Bakke, 438 U.S., at 307 (opinion of Powell, J.) (“If petitioner’s purpose is to assure within its student body some specified percentage of a particular group merely because of its race or ethnic origin, such a preferential purpose must be rejected … as facially invalid”). Grutter itself reiterated that “outright racial balancing” is “patently unconstitutional.” 539 U.S., at 330.

Accepting racial balancing as a compelling state interest would justify the imposition of racial proportionality throughout American society, contrary to our repeated recognition that “[a]t the heart of the Constitution’s guarantee of equal protection lies the simple command that the Government must treat citizens as individuals, not as simply components of a racial, religious, sexual or national class.” Miller v. Johnson, 515 U.S. 900, 911 (1995)…. Allowing racial balancing as a compelling end in itself would “effectively assur[e] that race will always be relevant in American life, and that the ‘ultimate goal’ of ‘eliminating entirely from governmental decisionmaking such irrelevant factors as a human being’s race’ will never be achieved.”Croson, supra, at 495…. An interest “linked to nothing other than proportional representation of various races … would support indefinite use of racial classifications, employed first to obtain the appropriate mixture of racial views and then to ensure that the [program] continues to reflect that mixture.” Metro Broadcasting, supra, at 614 (O’Connor, J., dissenting). [Parts of citations omitted]

Thus it is not surprising that practitioners of racial preference affirmative action all deny that their “goals” or elaborate admissions contraptions designed to produce a “critical mass” of minorities have anything to do with quotas or racial balancing. In its Fisher reply brief, for example, the University of Texas heatedly denied that it was engaged in racial balancing simply because, as Abigail Fisher had pointed out in her main brief, it had pointed to the “demographic imbalance between its freshman class and the Texas population” to prove that it had not “achiev[ed] a critical mass of racial diversity” and to justify its re-introduction of racial preferences. At Texas, so UT’s argument goes, an effort to correct imperfect demographic mirroring is not racial balancing so long as there is no fixed target number. (The absence of such a number or number range, however, also makes it impossible to determine when or whether “critical mass” is ever achieved even as it requires preferences for some minorities — blacks and Hispanics — and discrimination against others such as Asians, a distinction that would make no sense absent a strong concern with demographic mirroring.)

As even these few paragraphs above demonstrate, the debate over “diversity” in higher education has become convoluted and abstruse. Thus it is almost refreshing to leave academia for a world that is somewhat more real and read of an affirmative action dispute over public housing in Lucas County (Toledo) Ohio, where a federal judge has denied the request of a civil rights group to amend a long-standing affirmative action plan.

The matter stems from a class-action case that stretches back to 1974, which alleged the Lucas Metropolitan Housing Authority … and the U.S. Department of Housing and Urban Development segregated minority and white tenants when building and renting out housing.

Federal courts found in favor of the plaintiffs — several public housing tenants or prospective tenants who were Mexican-American and African-American and wished to live in suburban areas — and ordered the housing authority to put in place an affirmative-action plan to provide more racial balance at its properties.

No squeamishness about requiring “racial balance” in Toledo.

One interesting element of this dispute concerns a demand for the use of vouchers by the complaining civil rights group, a demand that is usually opposed by liberal organizations.

Plaintiffs in the case, represented by Advocates for Basic Legal Equality, asked last year that the plan be modified. They alleged the housing authority had not achieved “any meaningful progress” on desegregation and the affirmative-action plan should include the Section 8 voucher program administered by LMHA, not just public housing.

Under the Section 8 program, tenants are given a voucher and are allowed to choose their own privately-owned rental housing, unlike traditional public housing that is owned and operated by a housing authority.

The federal judge denied the request, finding “that, based on measurements of the percent of minority and non-minority residents at various LMHA sites, ‘LMHA is making some progress towards desegregation (significant progress in elderly housing, moderate progress in family housing).’” Sufficient racial balance was being achieved, in short, without the vouchers. The judge’s complaint was not with the concept of racial balancing, which he seemed to recognize was implicit in the affirmative action requirement, but only that the Toledo plan “’is not well suited to contemporary realities,’ “with outdated ratios of minority and non-minority residents the housing authority is striving for at each site.”

Perhaps if universities justified preferential admissions as necessary to provide racial balance in the dorms instead of “diversity” in the classroom, they would not be forced to create and staff the elaborate “holistic review” camouflage that is running into stiffer and stiffer legal headwinds.