August 9, 2013
THE “DISADVANTAGE OF DELIBERATE OBFUSCATION”
Last weekend an eye opening article appeared in The New York Times that should have sparked a California-wide, if not a national, discussion: Are public universities ignoring the US Supreme Court and violating California law to achieve a goal they think transcends the rule of law that most of us adhere to?
Specifically, the admissions process at UC Berkeley is being called into question by a former “external reader” who helped Berkeley evaluate applicants to the engineering program at the university. The author’s description of the subtle, and not so subtle, messages that were imparted to consider racial and ethnic diversity, despite the explicit law to the contrary, are troubling.
In June the US Supreme Court decision in Fisher v University of Texas affirmed the constitutionality of the goal of diversity in student admissions but it also laid out some fairly clear ground rules that effectively banned the use of racial/ethnic classifications in the admissions process (at least until “race neutral alternatives” are exhausted). In other words, the Court allows that diversity can be a goal of the admissions process but identifying and admitting applicants by race is a last resort that will be subjected to the strictest scrutiny and can only be justified if all else fails.
In California, public universities must also grapple with the strictures of Proposition 209, which was adopted in 1996 and bans the use of race and ethnicity as criteria for admission. That ban is not ambiguous or qualified, it is absolute.
In the face of those two bars on utilizing racial and ethnic criteria for admissions evaluations comes The New York Times’ piece by Ruth A. Starkman (a writing and ethics teacher at Stanford who served as an “external reader” for UC engineering applicants for the 2011 admissions class), who suggests that through winks and nods and not-so-subtle messages, the university made clear that certain applicant groups are favored (those subject to “stressors”) and some aren’t (“you’ll get a lot of them”) in their “holistic” evaluation process. If the evaluator didn’t discern the cues, she was told “to get with the program.”
Starkman describes how “officials were careful not to mention gender, ethnicity and race during our training sessions. Norming examples were our guide.” Yet their desires were implicitly communicated. When Starkman asked her trainer about an Asian student who,
Starkman was told that she “was not with the program”, she needed to adjust her rankings. “I was told I needed more 1’s and referrals. A referral is a flag that a student’s grades and scores do not make the cut but the application merits a special read because of “stressors’---socioeconomic disadvantages that admission offices can use to increase diversity.” Starkman observes,
In the Fisher case last June, Justice Ruth Bader Ginsburg dissented from the majority decision and perceptively warned about the deception that would come if race and ethnicity were eliminated as legitimate, legal criteria. She knew her customers. (Although the events described in the Times’ piece antedate the Supreme Court decision in Fisher, the ban that existed in California was already a decade and a half old and the prevailing law).
Ginsburg wrote, “Those that candidly disclose their consideration of race [are] preferable to those that conceal it.” She explained what she meant, “I have said before and reiterate here that only an ostrich could regard the supposedly neutral alternatives as race unconscious.” She quoted her former colleague, Justice Souter, “the vaunted alternatives suffer from ‘the disadvantage of deliberate obfuscation.’” As if she could divine the future and what the Starkman piece reveals, she warned that the “holistic” approach to admissions evaluation will result in “universities [who] cannot explicitly include race as a factor, many may ‘resort to camouflage’ to ‘maintain their minority enrollment.’”
The thrust of Starkman’s piece is that the “deliberate obfuscation” that Ginsburg warned about is taking place----an admissions process that considers race and ethnicity yet hides the processes it adheres to. Code words, a wink and nod, pressure to “get with the program” are the kinds of not very subtle messages that most evaluators will absorb and admit whom the officials prefer---the supposedly “race neutral” alternatives are anything but.
A debate must be engaged in to see whether the admissions processes at the University of California are what the people of California and Supreme Court of the United States have mandated they should be---non-discriminatory, color blind, transparent and fair.