Journal of Educational Controversy


Monday, December 19, 2016

The Trump Effect: A Follow-up After Election Day

The Trump Effect: A Follow-up
After Election Day
                With the 2016 election behind us and inauguration day right around the corner, schools are seeing the Trump Effect continue to be a present issue in their schools, classrooms, and communities.
The Southern Poverty Law Center has performed another online survey following the results of the November 2016 election in an attempt to gauge the mood of educators and students in our country. More than 10,000 teachers, counselors, administrators and others who work in schools responded and, “The survey data indicate that the results of the election are having a profoundly negative impact on schools and students.”
Ninety percent of respondents reported that the election results negatively impacted school climate and they believe that the effects will be long lasting. Eighty percent of respondents described concerns and heightened anxiety for students and families. Teachers reported that the issues they were describing were new and growing, “I have seen open racism, spoken, for the first time in 23 years of teaching.” stated a middle school teacher in Michigan. Another middle school teacher in Wisconsin stated, “I have never directly encountered race-related harassment in our school until after the election this year.” Most of these educators are reporting tension and fear among their students. Nearly 1,000 teachers reported fearing deportation, and family separation “as a concern among students.” Targeting and harassment has increased. A middle school counselor in Florida reported troubling events, “In a 24-hour period, I completed two suicide assessments and two threat of violence assessments for middle school students. This was last week, one week after the election... students were threatening violence against African Americans. Students were suicidal and without hope. Fights, disrespect have increased as well.” A kindergartner in Tennessee asked her teacher, “Are they going to do anything to me? Am I safe?” Communities are experiencing divisions opened by the election.
                There were a small number of exceptions to the overwhelming responses of negative effects following the election. There was a very small minority of reports from teachers that there was little impact on their students or schools following the election. Students at a high school in Alabama stated that “regardless of who won, we are still in this country together and we will make the most of it. They really did not see that whoever won would make a difference in their lives.” A high school teacher in Idaho reported, “They reacted, but they moved on faster than the adults are.” Other schools that were able to report little impact in their communities reported that they had worked hard to establish “inclusive welcoming communities”. One California high school teacher reported that, “The students were devastated by the election results, as were most of our faculty and staff members. However, the darkness of the election brought us all closer together and in a positive and proactive way!”
The study detailed in this report was not scientific. Over 10,000 people responded to this survey and submitted over 25,000 comments. All participants of this study chose to participate. The results show a disturbing nationwide problem highlighted in the report as the following:
• Nine out of 10 educators who responded have seen a negative impact on students’ mood and behavior following the election; most of them worry about the continuing impact for the remainder of the school year.
• Eight in 10 report heightened anxiety on the part of marginalized students, including immigrants, Muslims, African Americans and LGBT students.
• Four in 10 have heard derogatory language directed at students of color, Muslims, immigrants and people based on gender or sexual orientation.
• Half said that students were targeting each other based on which candidate they’d supported.
• Although two-thirds report that administrators have been “responsive,” four out of 10 don’t think their schools have action plans to respond to incidents of hate and bias.
• Over 2,500 educators described specific incidents of bigotry and harassment that can be directly traced to election rhetoric. These incidents include graffiti (including swastikas), assaults on students and teachers, property damage, fights and threats of violence.
• Because of the heightened emotion, half are hesitant to discuss the election in class. Some principals have told teachers to refrain from discussing or addressing the election in any way.
Much like their pre-election survey participants responded to open ended questions where they could provide free responses and were asked if they agreed or disagreed with a number of statements. The list of questions can be found in the report at:

Want to read the entire report, visit:

Friday, December 9, 2016

The “Gaslighting” of America and the Banning of Books in Schools

We are passing on information about an article from today’s Washington Post that may be of interest to our readers.
The article discusses the usual concerns raised about book censorship in schools, but of particular interest, is a quote from a teacher defending the teaching of Huckleberry Finn despite concerns over its use of racial slurs.  In “The Top 10 Books Most Challenged in Schools and Libraries,” the teacher provides an additional defense for teaching the novel in this new “Age of Trump.”
  The Top 10 Books Most Challenged in Schools and Libraries

Quote from English teacher Peter Greene’s blog, Curmudgucation, that appeared in the article:
But in 2016, as we enter the Age of Trump, there’s another reason we have to keep teaching these works. Call it the gaslighting defense.
Because among the many things that Trump has elevated further into the mainstream, we have the 6-year-old’s defense. “I never did that!” We are now taking denial to new heights with a president-elect who is willing to declare that he never said that which we have him on tape saying. 
Among the many things I’m braced for is the gaslighting of America, the attempt to talk our way out of past offenses with a determined, “I don’t know what you’re so upset about. That never happened.”
…And so to all the other defenses of classic literature, let’s make sure we’ve included the idea of gaslight protection, the necessity of reminding ourselves that, yes, this stuff did happen, and yes, it was bad, really bad, and, no, people aren’t just making it up for political leverage. The best antidote to gaslighting is reality, even if that reality is ugly and hurtful. It’s our job as educators to make sure that we aren’t just dropping the ugly reality on our students like a pile of railroad ties; we’re supposed to be right there to supply context and support and reassurance that, yes, this was just as wrong as you think it is even as we revisit our past through the eyes of authors who also knew that this treatment was wrong.
Yes, Huck Finn is a problematic text for many reasons. But it’s also the first real attempt to create a truly American novel, and consequently its problems are a reflection of America’s problems, from the ugly racism of slavery to the subtler racism of folks who believed they were anti-racism. But for me, that’s why in this day and age teaching it is more important than ever — to say, “Yes, this happened, and this is how we were, and don’t let anyone tell you different.
We are thinking about publishing an issue of the Journal of Educational Controversy on the theme: “Educating Citizens in the Age of Trump.”   If you have any ideas on the sub-topics for such an issue, pass them on to us.

Thursday, November 3, 2016

Michael Berenbaum Speaks of Education and Compassion for Ray Wolpow Institute Inauguration

Holocaust Studies scholar Michael Berenbaum came to Western October 19th to deliver the inaugural lecture for the Ray Wolpow Institute for the Study ofthe Holocaust, Genocide, and Crimes Against Humanity. With retired Western Professor Ray Wolpow and Holocaust survivor Noémi Ban in attendance, Berenbaum outlined the history of the Holocaust and looked to the future and the importance of the studies that will take place at the new institute.

Barenbaum began the evening on a light note by lauding Western and Ray Wolpow for the values embodied by the creation of the institute and a commitment to “honor excellence in education.” Berenbaum continued by saying, “The fact that this university focuses on holocaust education says in part that it’s trying to make its students better students, its teachers better teachers, and the world in which they inhabit a better place.” He then explained that his talk would focus on three main points: Holocaust history, its implications, and education.   

According to Berenbaum the history of the Holocaust can be broken down into six key terms: “definition, expropriation, concentration, mobile kill units, death camps, and deportation.” He spoke poignantly on the consolidation of power in Germany and how these six devastating points were able to arise out of a prospering country through political maneuvering and eventually “reduc[ing] the human being to raw material.” He expressed concern for the possibility of those circumstances recurring without education to create conscientious citizens.

In his extensive work with scholars and survivors of genocide, Berenbaum explained there is a constant theme. He said, “The survivors had a question. . . how do I get on with life? How do I rebuild?”

It was clear that Berenbaum sees awareness and education as the keys to moving on. He calls the Holocaust the “paradigmatic genocide.” When he gives lectures at West Point on how to recognize and behave when confronted by genocide he says, “The first lesson is to look at the Holocaust because it was done by an army under orders.” Berenbaum teaches people about these similarities and signs in the hope that future injustices can be prevented.

He talked further about the importance of education and awareness for everyone saying, “[the Holocaust] is an event that must be confronted.” He also cited repeated injustices occurring throughout the world including the crises in Rwanda, Syria, Sudan, Darfur, and Aleppo, and police brutality everywhere, and he encouraged students to become aware and fight against injustice. “Now,” he said, “we understand that not to be involved is also to be involved.” 

The distinguished speaker also spoke about compassion and empathy. He spoke of some of the words he likes to live by, saying, “In a world of ugliness create beauty. In a world of difference create empathy.”

In response to the popular question “what would you like most of all?” Berenbaum replies, “I would like to be irrelevant.” The acclaimed scholar and documentarian says that he would like to live in a world that is so educated and compassionate that his expertise would become unnecessary. He said, “the reason teachers teach Holocaust education is because most teachers really want to be good teachers and they find it works and this material speaks to the lives, the fears, the hopes, the desperations, and the aspirations of students…So I think Holocaust education is essential.”

It only makes sense then, that he expressed such excitement for the opening of the Ray Wolpow Institute and its commitment to Holocaust and genocide education. According to Berenbaum, “there is no greater tool of teachers of this generation to discuss some of the issues of racism and prejudice, discrimination and persecution, and all of the other elements involved than this tool called Holocaust education.”

According to a Western Today article, “The institute will provide Western students with global education rooted in the liberal arts that investigates the Holocaust, genocide and crimes against humanity from various perspectives and academic disciplines. The institute also will address the state’s recommendation to teach the Holocaust in public schools, by giving future teachers in training at Western this much-needed background. And new courses will be created at Western as part of an anticipated academic minor in Holocaust and Genocide Studies.”

Thursday, October 27, 2016

The Trump Effect: a Southern Poverty Law Center report.

One issue surrounding the 2016 presidential election has been the effect a candidate’s platform and behavior can have in areas outside of politics. More than ever before, classrooms across the country are seeing the campaign come home as increased bullying, confusion, and fear permeate education. The effect is noticeable. During the second debate the first question asked of the candidates was whether they felt they were “modeling appropriate and positive behavior for today’s youth?” [1] In the same debate, Secretary Clinton mentioned a phenomenon sweeping our nation’s schools, “You know, children listen to what is being said,” she said. “And there’s a lot of fear — in fact, teachers and parents are calling it The Trump Effect.”

The recent report The Trump Effect: The impact of the presidential campaign on our nation’s schools published by the Southern Poverty Law Center discusses the impact of the presidential campaign on our nation’s schools. It documents the “Trump Effect” in schools as heightened fear and anxiety in students accompanied by harassment and bullying. Teachers report being hesitant of bringing up the election to students who are afraid of the changes they see looming after the elections are finalized. According to one of the interviewed teachers from a Virginia school “My second-graders are scared. They’re scared of being sent back to their home countries. They’re scared of losing their education.” Also, teachers notice that their students adopt the hate speech and bullying tactics they see on television. “Teachers report that students have been ‘emboldened’ to use slurs, engage in name-calling and make inflammatory statements toward each other. When confronted, students point to the candidates and claim they are ‘just saying what everyone is thinking.’” It is clear that teachers face a difficult decision. If teachers discuss the election they face the obstacle of students who are terrified of this discussion, or passionate to the point of derailing a whole class at the mention of the election.

Long before the second debate many could feel the effects of this presidential election in the classroom. According to the report, “In response to the statement ‘I am hesitant to teach about the 2016 presidential election,’ 43 percent of K-12 educators answered ‘yes.’” In anecdotal responses to similar questions one teacher reports “I try to not bring it up since it is so stressful for my students.” Teachers affected by the Trump Effect feel the need to teach traditional civics lessons but are hesitant to use the current election because of the fear experienced by their students and because many believe the candidates themselves fail to embody the civic values they hope to teach.

As The Trump Effect states, “Preparing students for citizenship continues to be one of the three broad goals that all sides have agreed must be the purpose of schools: college, career and citizenship.”[2] As such, many teachers have traditionally assigned viewing the debates to teach their students about government and civic duty. However, the article raises questions of how to teach an ideal of citizenship when those who should embody that ideal fall short of the mark. It concludes with one teacher expressing concerns for the future of politics saying of their students “I hope they don’t walk away thinking this is what politics is all about.”

The study detailed in this report was not scientific. Researchers surveyed approximately 2,000 k-12 teachers and received 5,000 comments in response to the questions posed.[3]  All participants of this study chose to participate. The results show a disturbing nationwide problem highlighted in the report as the following:
• More than two-thirds of the teachers reported that
students—mainly immigrants, children of immigrants
and Muslims—have expressed concerns or
fears about what might happen to them or their families
after the election.
• More than half have seen an increase in uncivil political
• More than one-third have observed an increase in
anti-Muslim or anti-immigrant sentiment.
• More than 40 percent are hesitant to teach about
the election.[4]

Participants responded to open ended questions where they could provide free responses and were asked if they agreed or disagreed with a number of statements. The list of questions can be found in the report at:

Sunday, October 2, 2016

Holocaust Scholar Michael Berenbaum to Speak at Western Washington University

Press Release

Acclaimed Holocaust Studies scholar and Academy Award-winning film producer Michael Berenbaum will visit Western Washington University and deliver the inaugural lecture for the Ray Wolpow Institute for the Study of the Holocaust, Genocide, and Crimes Against Humanity at 7:30 p.m. on Wednesday, Oct.19, in Arntzen Hall 100 on Western’s campus.

The presentation is free and open to the public; free public event parking will be available in Lot 12A – formerly the “gravel lot,” but now paved - on South Campus.

Berenbaum is a writer, lecturer, and teacher consulting in the conceptual development of museums and the development of historical films. Currently, he is director of the “Sigi Ziering Institute: Exploring the Ethical and Religious Implications of the Holocaust” at the American Jewish University in Los Angeles, where he holds a professorship in Jewish Studies.

Berenbaum is the author of more than 20 books, scores of scholarly articles, and hundreds of journalistic pieces and has been in leadership positions at the United States Holocaust Memorial Museum in Washington D.C. and the Survivors of the Shoah Visual History Foundation at the University of Southern California. In film, his work as co-producer of “One Survivor Remembers: The Gerda Weissman Klein Story” was recognized with an Academy Award, an Emmy Award and the Cable Ace Award. Berenbaum was the historical consultant on The Shoah Foundation’s documentary “The Last Days” that won an Academy Award for the best feature-length documentary of 1998.

His lecture will focus on the importance of international Holocaust education, exploring why and how it is relevant in our contemporary world. 

This event is made possible with the generous support from the Friends of the Ray Wolpow Institute Fund, the Kohlmeier Mikulencak Fund for Holocaust & Genocide Studies, the President’s Office, the Equal Opportunity Office, the Graduate School, the College of Business and Economics, the College of Fine and Performing Arts, the College of Humanities and Social Sciences, the College of Science and Technology, the Western Libraries, the Institute for Global Engagement, the Karen W. Morse Institute for Leadership, the departments of English, History, and Modern & Classical Languages, and Sociology, as well as the AATG Center of Excellence German program.

For more information, contact Sandra Alfers, director, Western Washington University’s Ray Wolpow Institute for the Study of the Holocaust, Genocide, and Crimes Against Humanity, at (360) 650-7427, or


Saturday, September 3, 2016

WWU Creates the Ray Wolpow Institute for the Study of the Holocaust, Genocide and Crime Against Humanity

Editor:  Western Washington University has created a new Institute for the Study of the Holocaust, Genocide and Crime Against Humanity in honor of my colleague, Ray Wolpow, who has recently retired from our department. It will be a continuation of Ray’s earlier work.  In 1998, Ray developed the Northwest Center for Holocaust, Genocide and Ethnocide Education “to assist educators in the design and implementation of Holocaust, genocide and ethnocide-related studies.” The center was “dedicated to remembering and learning from the past in order to promote the human rights of all people,” and was consistent with House Bill 2212 passed by the Washington State Legislature that stated: “Every public high school is encouraged to include in its curriculum, instruction on the events of the period in modern world history known as the Holocaust, during which six million Jews and millions of non-Jews were exterminated. The instruction may also include other examples from both ancient and modern history where subcultures or large human populations have been eradicated by the acts of mankind. The studying of this material is a reaffirmation of the commitment of free peoples never again to permit such occurrences....”  Ray often brought to the campus survivors of the Holocaust to speak to our students.  We are pleased that one of them Noémi Ban has agreed to an interview on our blog that we will be publishing shortly.
WWU Creates the Ray Wolpow Institute for the Study of the Holocaust, Genocide and Crime Against Humanity

Press Release:

Western Washington University has created the Ray Wolpow Institute for the Study of the Holocaust, Genocide, and Crimes Against Humanity and named Sandra Alfers, professor of German in Western’s Department of Modern and Classical Languages, its founding director.
The institute is named after retired Western Professor Ray Wolpow.
“We are very pleased to have created this institute and grateful to the faculty and staff who pushed for its creation. The Holocaust and genocide more generally are difficult subjects, but their study is vital if we hope to prevent such tragic events in the future,” said Brian Burton, associate vice president for Academic Affairs at Western. “I can think of no more appropriate name for the institute than that of Ray Wolpow, who has done so much to educate so many people – at Western and in the public schools – on the Holocaust, genocide, and ethnocide. And I can think of no better person as the founding director than Sandra Alfers, who has led the process of forming the institute.”
The mission of the Ray Wolpow Institute for the Study of the Holocaust, Genocide, and Crimes Against Humanity is to advance knowledge about the Holocaust and genocide, including ethnic and religious conflict as well as attendant human rights abuses. While the institute will focus, first and foremost, on the Holocaust and genocide, broadening the scope of the institute to include crimes against humanity will enable the university to take advantage of additional expertise among Western faculty.
“Ray has been a tireless advocate for Holocaust, genocide, and ethnocide education on campus and in the community, and I look forward to continuing his important work,” Alfers said.
The new institute will build on work pioneered at Western by Wolpow, faculty emeritus at WWU’s Woodring College of Education and founder of the Northwest Center for Holocaust, Genocide, and Ethnocide Education (NWCHGEE) at Western. The NWCHGEE originally was established in 1998 to assist educators in the design, and implementation of Holocaust, genocide, and ethnocide-related studies. 
“I am honored to have the institute bear my name.  However, it is important to remember that our seminal work here at Western was possible only with the guidance of Holocaust survivors Noémi Ban, Fred Fragner, and Magda Dorman.  It was their courage, their willingness to bear witness to unfathomable events, their dedication to the pursuit of painful truths that inspired faculty and students alike.   I trust that our institute will continue to grow the knowledge, compassion and willingness to use the lessons of the past to advocate for the human rights of all people,” Wolpow said.
With Wolpow’s retirement in 2014, members of the campus community discussed how NWCHGEE in Woodring College could continue its work, and how other departments could be involved in furthering its mission and visibility on- and off-campus.  Western’s Dean of Libraries Mark Greenberg convened an interdisciplinary group of interested faculty members. With support from Woodring College Dean Francisco Rios, a committee – which included faculty from several colleges and academic departments at Western – was formed. Also, Western’s Provost’s Office, where the new institute will be located, supported the committee with funds for a speakers’ series.
The institute will provide Western students with a global education rooted in the liberal arts that investigates the Holocaust, genocide and crimes against humanity from various perspectives and academic disciplines. The institute also will address the state’s recommendation to teach the Holocaust in state public schools, by giving future teachers in training at Western this much-needed background. And new courses will be created at Western as part of an anticipated academic minor in Holocaust and Genocide Studies.
Through teaching, research, and outreach, the institute will complement and add to already existing programs and entities on campus – for example, the Center for Education, Equity and Diversity at Woodring College, the Center for Law, Diversity and Justice at Fairhaven College, and the Institute for Global Engagement.

Saturday, August 13, 2016

We are the Constitution’s Founders: a Lesson for the Generations

We are the Constitution’s Founders: a Lesson for the Generations

Someone at the recent Democratic Convention mentioned that we are all the founders of the Constitution. I don’t remember now who said it, but it remained in my memory like so many quotes that have gotten implanted only to take hold later in more fertile ground. I have been often amazed at the almost reverential ways we treat the constitution and its founders as if the document were some kind of religious tract and its founders its prophets. Quote from it as if it were a document meant as revelatory truth to be used by all sides to bolster whatever view they support, rather than an embodiment of 18th century classical liberal ideas that provided a universal set of ideas that were capable of increasingly including more and more of its citizens into its language, but one which its founders exhibited a very limited vision of who the “WE” included.

One of my teachers years ago, the educational historian Lawrence Cremin, used to always say that we became a nation before we knew who we were as a people. (Another one of those quotes that remained dormant until ready to take root) Unlike so many nation states that can trace their origins in a murky past, we instead announced nationhood at a particular historical moment and have been trying to figure out what we meant by it ever since. Bringing others into the “WE” has always involved more than a rational argument or linguistic effort, but rather has followed long fought out battles by those at Seneca Falls, the tragic Triangle Shirtwaist factory fire, the bridge at Selma, the voices at Stonewall, and so many others, who eventually expanded the meaning of “WE” to include the other. In effect, we are all the founders of this document as we expand the meaning of “WE” to include the other who had been excluded.

Rather than a reverential document, the Constitution is a clarion call to each generation to think anew about its fundamental meaning.  As the editor of an educational journal, I have been thinking about the meaning this has for the education of our children. It raises the question about what education is really all about. Education is a shortcut for the next generation to start at the point where we left off, but as history has often shown, it becomes only words until that generation can actually experience it in their own lives and in their own times. One of my mentors years ago used to liken the educational journey to that of a monk (he was a Jesuit and an educator of teachers) one encounters on the road of life who lets you know the price of the choices you are meeting at a particular fork in the road. The choice is always the travelers to make. Needless to say, my colleague was not very popular in a world and a school system and a teacher preparation program that increasingly demand that all learning be reduced to a set of concrete objectives that can be taught and tested in some standardized way. But education, he insisted, was a journey with an unpredictable outcome. Unfortunately, what we cannot assure as a learning outcome has often been omitted from our curriculum.

But perhaps, that is the lesson. In facing our role with greater humility, we recognize that our influence is indeed limited. But rather than abandon what we might accomplish, we should amplify it. I often told my students when they were making choices about the courses they will select to meet their liberal arts requirement for their college degree, to not just select a course because it fits a particular time slot or was recommended by their classmates for its easy grade, but rather to ask themselves what am I becoming as a result of this course, what am I allowing myself to be influenced by, who am I becoming as a human being. Although it offers no answers for our students, it will provide them with the questions that just might make them see their role as the future “founder” of a constitution that keeps changing its meaning as it includes them as its author. Perhaps, all we can really do is to plant a seed that may flower when the moment is ready for it to take root just as a casual, probably long-forgotten comment at the Democratic Convention did for me.

Sunday, July 3, 2016

U. S. Supreme Court Again Rules on the Use of Race in Higher Education Admissions: an Analysis

U. S. Supreme Court Again Rules on the Use of Race in Higher Education Admissions: an Analysis

 Editor:  The U.S. Supreme Court again ruled on the use of race in Higher Education admissions.  The case, Fisher v. University of Texas at Austin, decided on June 23rd, follows several earlier pivotal affirmative action cases: the 1978 Regents of the University of California v. Bakke, the 2003 Gratz v. Bollinger, the 2003 Grutter v. Bollinger and the earlier Fisher v. University of Texas at Austin in 2013.  (See chart at the bottom)

Although we have yet to publish articles on this issue, the Journal of Educational Controversy did devote an issue to the use of race in public school admission policies in its 2007 issue (Volume 2, Number 1).  In that issue, we considered the U.S. Supreme Court decision in PICS v Seattle School District, with legal arguments on both sides against a background of Washington state history and politics. Because the case was not decided until after the issue was published, we followed up with a discussion of the decision on our rejoinder page. We may address this issue as it affects higher education in the future.

Below is an analysis of the recent Fisher case by Scott Jaschik, editor of Inside Higher Ed.  Mr. Jaschik has given us permission to reprint his analysis of the decision.

Supreme Court Upholds Consideration of Race in Admissions
Scott Jaschik, Editor, Inside Higher Ed
The U.S. Supreme Court on Thursday upheld the University of Texas at Austin’s consideration of race and ethnicity in college admissions. Some parts of the decision in the case, Fisher v. University of Texas at Austin [1], related to features unique to that university.

But other parts of the case will likely apply to admissions and financial aid policies in most of American higher education.

The court ruled [2] that the primary reason that the plaintiff in the case was denied admission to the university was not its consideration of race in admissions, but its “10 percent plan,” in which the top 10 percent of high school graduates are admitted to the public college or university of their choice.

The university does have “a continuing obligation” to meet the legal test of “strict scrutiny” by “periodically reassessing the admission program’s constitutionality, and efficacy, in light of the school’s experience and the data it has gathered since adopting its admissions plan, and by tailoring its approach to ensure that race plays no greater role than is necessary to meet its compelling interests,” the decision says.

At the time that the plaintiff was rejected for admission, however, the decision said, the university had met that burden.

“The record here reveals that the university articulated concrete and precise goals -- e.g., ending stereotypes, promoting ‘cross-racial understanding,’ preparing students for ‘an increasingly diverse workforce and society,’ and cultivating leaders with ‘legitimacy in the eyes of the citizenry’ -- that mirror the compelling interest this court has approved in prior cases,” said the decision.

The decision was written by Justice Anthony M. Kennedy, generally considered a swing vote on many issues, but who has consistently in the past been skeptical of education policies based on race. He was joined by Justices Ruth Bader Ginsburg, Stephen G. Breyer and Sonia Sotomayor.

In a dissent, Justice Samuel Alito Jr. -- joined by Chief Justice John Roberts and Justice Clarence Thomas -- strongly criticized the decision and the University of Texas policies. The dissent calls the university’s arguments “shifting, unpersuasive and, at times, less than candid.”

Justice Elena Kagan, who worked on the case as solicitor general before she joined the Supreme Court, recused herself from the case. When Justice Antonin Scalia died in February, the stage was set for a ruling by only seven justices. Scalia consistently opposed the consideration of race in admissions [3], so his death may have cleared the way for today’s decision. A four-four tie on the case would still have left the University of Texas policies intact, but would have not have the same power as a precedent on the issue.

A defeat for affirmative action had been widely expected because, with Kagan not voting, only three justices on the court are considered reliable backers of affirmative action.

Michael A. Olivas, the William B. Bates Distinguished Chair in Law at the University of Houston and interim president of the university’s downtown campus, is one of the few legal observers who has consistently predicted that affirmative action would survive the legal challenge brought by Abigail Fisher, a white woman rejected for admission by the University of Texas. Via email on Monday, he said, “It is about time that Fisher accepts that she was inadmissible, and that she lost, once again. No applicant of color would ever get so many bites at the apple, and whites still make up a disproportionate percent of percentage plan admits and discretionary admits at UT.”

Fisher, through her lawyers, released this statement: “I am disappointed that the Supreme Court has ruled that students applying to the University of Texas can be treated differently because of their race or ethnicity. I hope that the nation will one day move beyond affirmative action.”

Leaders of many higher education groups praised the ruling. President Obama spoke about the decision at a White House briefing, saying, “I’m pleased that the Supreme Court upheld the basic notion that diversity is an important value in our society, and that this country should provide a high-quality education to all our young people, regardless of their background. We are not a country that guarantees equal outcomes, but we do strive to provide an equal shot to everybody. And that’s what was upheld today.”

Hillary Clinton, the presumptive Democratic nominee for president, tweeted her approval.
Hillary Clinton’s Tweet:

The Supreme Court's Fisher decision is a win for us all. The doors to higher education should be open to every American, not just some. -H


Donald Trump, the presumptive Republican nominee, has not weighed in since the decision was announced.

Today’s ruling is the second time the Supreme Court has considered the Fisher case.

Ruling 7 to 1 [8], the court in 2013 found that the U.S. Court of Appeals for the Fifth Circuit had erred in not applying “strict scrutiny” to the policies of UT Austin, which were challenged by Fisher. She said that her rights were violated by UT Austin’s consideration of race and ethnicity in admissions decisions. Fisher’s lawyers argued that the University of Texas need not consider race because it has found another way to assure diversity in the student body, the 10 percent plan.

Fisher was a high school senior when she first sued UT Austin [9] in 2008. She enrolled at and graduated from Louisiana State University after she was rejected by UT but has continued the legal case over her rejection.

The 2013 ruling essentially raised the bar for colleges in terms of how they had to justify the consideration of race and ethnicity in admissions, but did not bar its use.

In July 2014, a three-judge panel of the U.S. Court of Appeals for the Fifth Circuit upheld, 2to 1, the UT admissions plan [10]. And it is an appeal of that ruling on which the U.S. Supreme Court ruled today.

The majority decision from the appeals court said that just because Texas could get some diversity based on the percentage plan alone does not mean it can’t do more than that. “An emphasis on numbers in a mechanical admissions process is the most pernicious of discriminatory acts because it looks to race alone, treating minority students as fungible commodities that represent a single minority viewpoint,” the judges wrote. “Critical mass, the tipping point of diversity, has no fixed upper bound of universal application, nor is it the minimum threshold at which minority students do not feel isolated or like spokespersons for their race.”

Further, the appeals court said that the University of Texas is correct not to rely solely on the percentage plan, which in turn works because of segregation. The plaintiff’s “claim can proceed only if Texas must accept this weakness of the top 10 percent plan and live with its inability to look beyond class rank and focus upon individuals,” the decision says. “Perversely, to do so would put in place a quota system pretextually race neutral. While the top 10 percent plan boosts minority enrollment by skimming from the tops of Texas high schools, it does so against this backdrop of increasing resegregation in Texas public schools, where over half of Hispanic students and 40 percent of black students attend a school with 90 [to] 100 percent minority enrollment.”

Justice Alito's dissent argued that the majority decision did not comply with the Supreme Court’s 2013 decision. “At best, the university’s attempted articulations of ‘critical mass’ before this court are subjective, circular or tautological,” the dissent says. “The university explains only that its ‘concept of critical mass is defined by reference to the educational benefits that diversity is designed to produce.’ And, in attempting to address when it is likely to achieve critical mass, the university explains only that it will ‘cease its consideration of race when it determines … that the educational benefits of diversity can be achieved at UT through a race-neutral policy ….’

“These articulations are insufficient. Under the rigors of strict scrutiny, the judiciary must ‘verify that it is necessary for a university to use race to achieve the educational benefits of diversity.’ It is not possible to perform this function when the university’s objective is unknown, unmeasurable or unclear.”

Anxious Presidents

College and university presidents, most of whom backed the University of Texas, have been waiting anxiously for today's ruling.

Michael V. Drake, president of Ohio State University, was formerly chancellor of the University of California, Irvine, which is banned by the California Constitution from considering race or ethnicity in admissions. He said that the California limits "make the job of creating inclusive higher education that much more difficult."

He said that Ohio State, like Texas, does consider race and ethnicity, but as one factor among many. "We are looking for the very best, looking at a variety of factors," he said. "This decision affirms the real value of inclusion in a society like ours -- particularly in bringing people from traditionally marginalized groups into our system."

Thomas Sullivan, a lawyer and legal scholar who is president of the University of Vermont, said he saw the decision as a strong victory for higher education. The court could have ruled strictly on technical grounds that Fisher didn't have standing, or ordered more hearings. Instead, he said, the court affirmed prior rulings on the value of diversity and also of the appropriate role for colleges in determining (within some limits) their admissions policies.

"This is a big win in terms of saying colleges should have some discretion," he said. At the same time, he noted that the decision continues to outline requirements (as past decisions have done) for colleges to meet before they use race or ethnicity as a factor in admissions.

Deference to Higher Education

A key part of the first Supreme Court ruling in Fisher was that colleges and universities were, as Sullivan noted, owed some deference on these issues. The earlier ruling limited that deference, and Justice Kennedy cited that limit. "No deference is owed when determining whether the use of race is narrowly tailored to achieve the university’s permissible goals," he noted.

But while that provision attracted considerable attention last time around, Kennedy stressed areas where colleges should in his opinion receive deference. He quoted from the earlier decision: "The decision to pursue ‘the educational benefits that flow from student body diversity’ … is, in substantial measure, an academic judgment to which some, but not complete, judicial deference is proper."

In this case, Kennedy also said that it was relevant that the University of Texas was acting under the percentage plan -- even if Fisher didn't challenge that -- and that the Texas Legislature imposed the percentage plan as a race-neutral way to promote some level of diversity. Justice Kennedy noted that without Fisher having challenged the plan, there wasn't a legal record on the plan itself.

"That legislative response, in turn, circumscribed the university’s discretion in crafting its admissions policy," Kennedy wrote. "These circumstances refute any criticism that the university did not make good-faith efforts to comply with the law."

While Kennedy strongly defended the constitutionality of the Texas admissions policies, he also stressed the obligations of the university (and presumably other colleges) to constantly evaluate whether they need to consider race and ethnicity to achieve diversity. Colleges, he said, must gather data on various strategies to promote diversity.

"As the university examines this data, it should remain mindful that diversity takes many forms. Formalistic racial classifications may sometimes fail to capture diversity in all of its dimensions and, when used in a divisive manner, could undermine the educational benefits the university values," the decision says. "Through regular evaluation of data and consideration of student experience, the university must tailor its approach in light of changing circumstances, ensuring that race plays no greater role than is necessary to meet its compelling interest."

The Influence of Race

In his dissent, Justice Alito argued that in fact the university is doing what Kennedy would bar: making race the key factor in admissions.

"Although UT claims that race is but a 'factor of a factor of a factor of a factor,' UT acknowledges that 'race is the only one of [its] holistic factors that appears on the cover of every application,'" Alito wrote, quoting from depositions. "Consideration of race therefore pervades every aspect of UT’s admissions process."

Further, Alito questions why Latino applicants receive more of an edge in admissions than do Asian-American applicants, who also add to diversity. And he adds that the university's argument that it needs a "critical mass" of minority students is too vague to be a justification.

Alito argues that the majority is ignoring the earlier Fisher decision in not sufficiently questioning the university's arguments.

"The majority’s uncritical deference to UT’s self-serving claims blatantly contradicts our decision in the prior iteration of this very case, in which we faulted the Fifth Circuit for improperly 'deferring to the university’s good faith in its use of racial classifications,'" Alito writes. "As we emphasized just three years ago, our precedent 'ma[kes] clear that it is for the courts, not for university administrators, to ensure that' an admissions process is narrowly tailored."

It is possible that there will be further challenges to colleges' consideration of race. Parts of the decision do rest on unique factors at the University of Texas. But many critics and supporters of affirmative action expected this to be the case that might change things dramatically. For now, a legal battle that started in 2008 appears to be over.

Affirmative Action [11]


Source URL:












The Supreme Court on Affirmative Action in Higher Education

  • 1978: In Regents of the University of California v. Bakke, the court ruled that the medical school at the University of California, Davis, could not reserve some slots with separate admissions standards for minority applicants. But the court also ruled that colleges could consider race and ethnicity in admissions decisions in ways that did not create quotas.
  • 2003: In Gratz v. Bollinger, the court ruled that the University of Michigan at Ann Arbor had unconstitutionally used an undergraduate admissions system in which underrepresented minority applicants received points on the basis of their ethnic or racial background.
  • 2003: In Grutter v. Bollinger, the court ruled that the University of Michigan's law school was within its constitutional rights in considering applicants' race and ethnicity because it did so through a “holistic” review and not by simply awarding points based on race and ethnicity.
  • 2013: In Fisher v. University of Texas at Austin, the court ruled that lower courts needed to apply “strict scrutiny” and not give colleges deference in reviews of challenges to the consideration of race and ethnicity in admissions decisions.