Colleges need affirmative action – but it can be expanded

Race-neutral affirmative action can help identify first-generation students like Blanca Diaz and LaQuintah Garrett.
AP Photo/Amy Anthony

Eboni Nelson, University of South Carolina

In 2003, Justice Antonin Scalia predicted that the Supreme Court’s sanctioning of race-conscious affirmative action in higher education would spark future litigation for years to come. And right he was. From defeated claims of discrimination against the University of Texas at Austin to an ongoing lawsuit against Harvard, colleges continue to come under attack for considering race as a factor in admissions decisions.

The recent report of the Department of Justice’s possible investigation of “intentional race-based discrimination in college and university admissions” demonstrates that the assaults aren’t likely to end anytime soon.

As a professor of law and scholar dedicated to ensuring equal educational opportunities for students of color, I believe now is an important time to earnestly consider other methods for diversifying student bodies. Race-neutral alternatives could effectively consider such factors as socioeconomic status and educational background, while supplementing more traditional affirmative action.

Lawyer Bert Rein and his client, Abigail Fisher, failed in their discrimination case against UT Austin’s affirmative action policies.
AP Photo/J. Scott Applewhite

‘Race-based’ vs. ‘race-conscious’

When thinking about affirmative action, it’s important to first define (and debunk) a few key terms, starting with “race-based” and “race-conscious” affirmative action.

“Race-based affirmative action” is a misnomer often used to describe some college admissions policies. “Race-based” implies that an admissions decision is made solely because of or based upon an applicant’s race or ethnicity, which could not be farther from the truth. A university’s decision to admit, deny or waitlist an applicant is based upon myriad criteria, ranging from standardized test scores to state of residency. Race is just one of many admissions factors a university may consider.

This approach is more appropriately termed “race-conscious.”

Schools that employ race-conscious admissions policies do so in order to achieve the educational, social and democratic benefits of a diverse student body.

As the Supreme Court held in Gratz v. Bollinger, race is not and cannot be the determining factor under a constitutional race-conscious plan. Therefore, when people claim that an African-American or Hispanic student was admitted because of race, they’re often not only inaccurate but also dismissive of the student’s other numerous attributes that played a role in the university’s decision.

Race-neutral alternatives

Opponents of race-conscious affirmative action often assert that such policies are racist or disproportionately benefit privileged minority students from middle- and upper-class backgrounds.

Justice Sandra Day O’Connor delivered the majority opinion in Grutter v. Bollinger, which asserted that schools must consider ‘workable race-neutral alternatives.’
AP Photo/Susan Walsh

For its part, the Supreme Court is also skeptical of using racial classifications in governmental decision-making. As a result, it has held that institutions of higher education must afford serious consideration to “workable race-neutral alternatives” before implementing a race-conscious policy.

Importantly, the court’s use of the term “race-neutral” does not mean “race-blind.” That is, universities are permitted to think about how alternative admissions criteria could help them achieve their diversity goals. Race-neutral criteria could include socioeconomic background, high school or undergraduate institution, or class rank. In other words, these are factors that may contribute to a school’s racial diversity, but applicants themselves are not considered based on race.

In some cases, it’s proven difficult for race-neutral admissions policies to achieve the same levels of racial diversity as those achieved through direct consideration of race. However, such measures have been useful in helping to diversify student bodies when used in conjunction with or in lieu of race-conscious affirmative action.

The viability of race-neutral alternatives

When coupled with the stark racial disparities that continue to plague some professions, the uncertain future of race-conscious affirmative action calls for a renewed focus on alternatives that look beyond race alone.

TV isn’t the only place where the legal profession remains one of the whitest.
USA Network

My co-researchers, Dr. Ronald Pitner and Professor Carla D. Pratt, and I recently took a look at one particular aspect of higher education diversity: law school admissions.

Law schools play a unique role in training our country’s next generation of leaders. It is, in fact, vital to the future of our democracy that we continue to provide students from historically underrepresented racial groups with access to legal education. And yet, the legal profession was recently determined to be “one of the least racially diverse professions in the nation.”

To help law schools improve their diversity, we examined the relationship between race and race-neutral identity factors in law school admissions. The project, which was funded in part by a grant from AccessLex Institute, surveyed over a thousand first-year law students at schools throughout the country and asked about various aspects of their identity, such as socioeconomic status and educational background.

Our findings indicated that African-American and Hispanic students were significantly more likely than both white and Asian/Pacific Islander students to have qualified for free or reduced lunch programs in elementary or secondary school, had a parent or guardian who received public assistance when the student was a dependent minor, and received a Pell Grant during their undergraduate studies – all of which are race-neutral factors that schools could consider in admissions decisions.

Race-neutral affirmative action can help identify first-generation students and students from low-income families.
AP Photo/Pat Sullivan

How admissions could change

Based on the sample of participants in our study, it’s clear that privilege did not catapult all students of color to law school. Many of them had to overcome the structural inequalities of poverty, race and public education to embark on a legal career. Expanding opportunities for these and other minority students will benefit not only legal education and the legal profession, but also society more broadly.

Race-neutral admissions policies could help identify and create opportunities for these students.

To be clear, I do not advocate for the wholesale substitution of traditional race-conscious admissions measures with the factors we studied. Race-conscious policies continue to be the most effective means by which to create diverse student bodies.

However, we encourage law schools and other institutions of higher education to utilize these and other race-neutral admissions factors as a means of complying with the Supreme Court’s affirmative action mandates and testing the viability of policies that take such factors into account.

The ConversationDoing so will help ensure that traditionally underrepresented students of color will continue to have access to colleges and universities that serve as gateways to career, financial and life opportunities.

Eboni Nelson, Professor of Law, University of South Carolina

This article was originally published on The Conversation. Read the original article.

Want to change federal policies? Here’s how

Protesters carry signs during a march for science Saturday, April 22, 2017, in Denver.
AP Photo/David Zalubowski

Mary Fisher, University of Washington; Natalie Lowell, University of Washington; Ryan Kelly, University of Washington, and Samuel May, University of Washington

What can those armed with facts – like scientists, professionals and knowledgeable citizens – do to shape policy?

In April, scientists and their supporters took to the streets. The March for Science was a public defense of science as an invaluable part of society and policy. We, as academic scientists, were among them. When everyone returned to their labs and offices, we saw our fellow marchers search for ways to build on the momentum.

One of the most accessible options to do so is the federal public comment process.

What is public comment?

Public comment subjects federal policies to peer review. Scientists and other professionals can use public comment to ensure that policy is based on the best available evidence, vetting the science behind regulations.

When Congress passes a law, it provides a framework for federal agencies on how to implement it. Figuring out the details of implementation is usually up to the agency by making rules and regulations. Since 1946, the Administrative Procedures Act has required that each new rule be subject to public comment, giving citizens the chance to comment on and change the proposed rule before it becomes legally enforceable. Proposed and final rules are all published in the Federal Register, a publicly accessible online government database.

The act also ensures that agencies cannot ignore these comments by requiring the agency to respond to all “material” comments. This qualifier is critical. For an agency to respond to the comment, it must be unique and fact-based, such that it could “require a change in [the] proposed rule.”

Snapshot of the number of federal documents open for public comment on Oct. 7, 2017. Only a subset of federal agencies are shown. Data taken from Federal Register API v2.0.
Public Comments Project

You may have already encountered a public comment if anyone has asked you to submit a prewritten letter regarding a proposed rule. These “form letters” are written by organizations – often nonprofits – and then a copy is signed and submitted by a large number of people. While agencies may note the impressive response a proposed regulation triggers, these form letters are legally considered a single material comment.

Yet form letters often make up a large percentage of comments received. For example, in 2004, the EPA was in the process of making a rule that would reduce emissions of mercury from coal-fired utility units. The majority of comments on this proposed rule submitted through MoveOn.org were duplicates of the same two-sentence form letter or slight variants of a broad claim about the inadequacy of the proposed rule. This meant that the EPA received little real information to which it had to respond.

Form letters are popular because they are easier than writing a unique, fact-based comment. But scientists and other professionals often have the knowledge required to do so. They are trained to read and summarize evidence from a variety of sources. They are also familiar with the general principles of subject fields like ecology, economics or nutrition, which are recurring themes across many regulations.

Federal agencies need the expert information that scientists and professionals can provide. An analysis by the U.S. Forest Service found that the majority of public input was value-based. While these comments provided agency employees with critical information on public opinion, value-based comments were not as helpful to the planning staff as detailed comments that provided technical feedback. Only 9 percent of the comments sampled were classified as having a high level of detail.

Why should scientists engage?

Public comment allows for flexibility. With an online submission portal, it doesn’t require participants to be in a certain place to have input. Its consistency across federal agencies avoids the need to reacquaint oneself with agency-specific processes. Perhaps most importantly, it allows for public participation, opening the process to scientists and professionals across sectors and career stages without a personal contact or advisory position at the agency.

This isn’t to say that there are no barriers. For example, proposed regulations are often filled with jargon and organized in unclear ways. But there are sources designed to coach you through the process, including Regulations.gov. Material specifically oriented toward helping scientists and other professionals is available through the Public Comment Project, a website that we created with other colleagues and maintain. It includes how-to guides and helps you find rules of interest that are open for comment.

Has it made a difference?

Changes to rules as a result of public comment happen often. For example, in a 2016 proposed rule by the Centers for Medicare Medicaid Services, the agencies expanded the definition of “patient” in the final rule. The expansion was in response to comments by the Midwest Health Initiative and the American Hospital Association, among others. This effectively changed the scope of data that could be extracted for providers, suppliers, hospital associations and medical societies.

Or, take a National Marine Fisheries Service proposed rule to designate critical habitat for a marine snail, the black abalone. A comment written by one of us expanded the critical habitat designation so that all life stages of the species would be covered.

A formal analysis on a 1992 Environmental Protection Agency proposed rule on certain cancer-causing pesticides found that the agency was was more likely to bar the use of a particular cancer-causing pesticide when faced with evidence of high risk to human health or the environment. Public comment by environmental advocacy groups increased the probability of cancellation.

Why comment now?

Experts, from scientists to professionals, have an increasingly important role to quality-check the research that makes its way into policy – see, for example, this statement by the American Association for the Advancement of Science, one of the world’s largest scientific societies. Although the devaluation of science in public policy is a long-term issue, it has recently escalated rapidly. A few of the most recent examples include the removal of climate change-related data and research from government websites, proposed reduction in federal budgets for science including the complete removal of certain programs like NOAA’s Sea Grant, and the request of agencies for scientists to censor their language.

The ConversationResponding to a call for public comment is one way to check the facts that make up public policy. We call all scientists, professionals and knowledgeable members of the public to apply their specific expertise to this process.

Mary Fisher, M.S. Student, Aquatic and Fishery Sciences, University of Washington; Natalie Lowell, Ph.D. Candidate in Fisheries Science, University of Washington; Ryan Kelly, Assistant Professor, Marine and Environmental Affairs, University of Washington, and Samuel May, Graduate Student in Fisheries Science, University of Washington

This article was originally published on The Conversation. Read the original article.

What it’s like to be gay and in a gang

Some gay gang members are open about their sexuality, but others remain in the closet, fearing they could endanger themselves or the status of their gang.
Devin/Pexels, FAL

Vanessa R. Panfil, Old Dominion University

There are many stereotypes of and assumptions about street gangs, just as there are many stereotypes and assumptions about gay men. Pretty much none of those stereotypes overlap.

In movies and television, some of the most recognizable gay characters have been portrayed as effeminate or weak; they’re “fashionistas” or “gay best friends.” Street gang members, on the other hand, are often depicted as hypermasculine, heterosexual and tough.

This obvious contradiction was one of the main reasons I was drawn to the subject of gay gang members.

For my new book “The Gang’s All Queer,” I interviewed and spent time with 48 gay or bisexual male gang members. All were between the ages of 18 and 28; the majority were men of color; and all lived in or near Columbus, Ohio, which has been referred to as a “Midwestern gay mecca.”

The experience, which took place over the course of more than two years, allowed me to explore the tensions they felt between gang life and gay manhood.

Some of the gang members were in gangs made up of primarily gay, lesbian or bisexual people. Others were the only gay man (or one of a few) in an otherwise “straight” gang. Then there were what I call “hybrid” gangs, which featured a mix of straight, gay, lesbian and bisexual members, but with straight people still in the majority. Most of these gangs were primarily male.

Because even the idea of a gay man being in a gang flies in the face of conventional thought, the gang members I spoke with had to constantly resist or subvert a range of stereotypes and expectations.

Getting in by being out

Male spaces can be difficult for women to enter, whether it’s boardrooms, legislative bodies or locker rooms.

How could I – a white, middle-class woman with no prior gang involvement – gain access to these gangs in the first place?

It helped that the initial group of men whom I spoke to knew me from years earlier, when we became friends at a drop-in center for LGBTQ youth. They vouched for me to their friends. I was openly gay – part of the “family,” as some of them put it – and because I was a student conducting research for a book, they were confident that I stood a better chance of accurately representing them than any “straight novelist” or journalist.

But I also suspect that my own masculine presentation allowed them to feel more at ease; I speak directly, have very short hair and usually leave the house in plaid, slacks and Adidas shoes.

While my race and gender did make for some awkward interactions (some folks we encountered assumed I was a police officer or a business owner), with time I gained their trust, started getting introduced to more members and began to learn about how each type of gang presented its own set of challenges.

Pressure to act the part

The gay men in straight gangs I spoke with knew precisely what was expected of them: be willing to fight with rival gangs, demonstrate toughness, date or have sex with women and be financially independent.

Being effeminate was a nonstarter; they were all careful to present a uniformly masculine persona, lest they lose status and respect. Likewise, coming out was a huge risk. Being openly gay could threaten their status as well as their safety. Only a handful of them came out to their traditional gangs, and this sometimes resulted in serious consequences, such as being “bled out” of the gang (forced out through a fight).

Despite the dangers, some wanted to come out. But a number of fears held them back. Would their fellow gang members start to distrust them? What if the other members got preoccupied about being sexually approached? Would the status of the gang be compromised, with other gangs seeing them as “soft” for having openly gay guys in it?

So most stayed in the closet, continuing to project heterosexuality, while discreetly meeting other gay men in underground gay scenes or over the internet.

As one man told me, he was glad cellphones had been invented because he could keep his private sexual life with men just that: private.

One particularly striking story came from a member of a straight gang who made a date for sex over the internet, only to discover that it was two fellow gang members who had arranged the date with him. He hadn’t known the others were gay, and they didn’t know about him, either.

Becoming ‘known’

In “hybrid” gangs (those with a sizable minority of gay, lesbian or bisexual people) or all-gay gangs, the men I interviewed were held to many of the same standards. But they had more flexibility.

In the hybrid gangs, members felt far more comfortable coming out than those in purely straight gangs. In their words, they were able to be “the real me.”

Men in gay gangs were expected to be able to build a public reputation as a gay man – what they called becoming “known.” Being “known” means you’re able to achieve many masculine ideals – making money, being taken seriously, gaining status, looking good – but as an openly gay man.

It was also more acceptable for them to project femininity, whether it was making flamboyant gestures, using effeminate mannerisms, or wearing certain styles of clothing, like skinny jeans.

They were still in a gang. This meant they needed to clash with rival gay crews, so they valued toughness and fighting prowess.

Men in gay gangs especially expressed genuine and heartfelt connections to their fellow gang members. They didn’t just think of them as associates. These were their friends, their chosen families – their pillars of emotional support.

Confronting contradictions

But sometimes these gang members would vacillate about certain expectations.

They questioned if being tough or eager to fight constituted what it should mean to be a man. Although they viewed these norms with a critical eye, across the board they tended to prefer having “masculine” men as sexual partners or friends. Some would also patrol each other’s masculinity, insulting other gay men who were flamboyant or feminine.

Caught between not wanting themselves or others to be pressured to act masculine all the time, but also not wanting to be read as visibly gay or weak (which could invite challenges), resistance to being seen as a “punk” or a pushover was critical.

It all seemed to come from a desire to upend damaging cultural stereotypes of gay men as weak, of black men as “deadbeats” and offenders, and of gang members as violent thugs.

But this created its own tricky terrain. In order to not be financial deadbeats, they resorted to sometimes selling drugs or sex; in order to not be seen as weak, they sometimes fought back, perhaps getting hurt in the process. Their social worlds and definitions of acceptable identity were constantly changing and being challenged.

Fighting back

One of the most compelling findings of my study was what happened when these gay gang members were derisively called “fag” or “faggot” by straight men in bars, on buses, in schools or on the streets. Many responded with their fists.

Some fought back even if they weren’t openly gay. Sure, the slur was explicitly meant to attack their masculinity and sexuality in ways they didn’t appreciate. But it was important to them to be able to construct an identity as a man who wasn’t going to be messed with – a man who also happened to be gay.

Their responses were revealing: “I will fight you like I’m straight”; “I’m gonna show you what this faggot can do.” They were also willing to defend others derided as “fags” in public, even though this could signal that they were gay themselves.

These comebacks challenge many of the assumptions made about gay men – that they lack nerve, that they’re unwilling to physically fight.

The ConversationIt also communicated a belief that was clearly nonnegotiable: a fundamental right to not be bothered simply for being gay.

Vanessa R. Panfil, Assistant Professor of Sociology and Criminal Justice, Old Dominion University

This article was originally published on The Conversation. Read the original article.