Ep. 18 – Race and Democracy in Higher Education: A Conversation with Dr. Liliana M. Garces

[0:00:07 Peniel] Welcome to race and democracy of podcast on the intersection between race, democracy, public policy, social justice and citizenship. Welcome to race in democracy. On today’s podcast, we have a conversation with Dr Liliana M. Garces, who is associate professor of educational leadership and policy in the College of Education at the University of Texas at Austin and affiliate faculty, Texas Law School. Some of her recent publications include a co authored article and educational researcher, a comprehensive and practical approach to policy guidance. The Office for Civil Rights is role in education during the Obama administration and in the American Journal of Education. Addressing racial health inequities, understanding the impact of affirmative action, bans on applications and admissions and medical schools. Ah, Dr Garcia is very good to have you on our show.

[0:01:09 Liliana] Thank you so much for having me. I really enjoyed listening to your podcast. I’ve learned a lot.

[0:01:15 Peniel] Well, my first question is, as a former attorney turned academic researcher scholar, what do you think about the role of race, democracy and really the law?

[0:01:27 Liliana] Well, as a zoo mentioned, I am a recovering lawyer in some ways, and my my work and education is really trying to understand how the law and education systems shape access and inequality for historically marginalized populations in higher education and the law. The what the courts decide in this area can have really big, significant implications for what education policy, um, practices we have in place to address racial inequity.

[0:02:05 Peniel] And when you think about those historically marginalized groups that you study, who are some of those groups?

[0:02:10 Liliana] African American students like that. Next, students mostly race and ethnicity, fundamentally.

[0:02:19 Peniel] And when you think about how has the law and court shaped both a lack of access and then opening up the doors in terms of higher education? Since I don’t know, I would say it is that mostly the 20th century since the 19th century certainly post slavery and reconstruction.

[0:02:40 Liliana] Well, a lot of my work has focused on race conscious policies of affirmative action policies, policies that were implemented in 19 sixties, that we’re really trying via executive order that President Lyndon B. Johnson enacted really trying Teoh require public institutions, including institutions of higher education, to take affirmative action to provide more equal opportunity for for populations that had been historically oppressed and to help level the playing the Plainfield. That that’s a policy that has seen AH, litigation and has been challenged in the courts, and the result of those challenges have led to a number of legal decisions that have really shifted our understanding of what those policies are and how they can actually be used and implemented and current practice.

[0:03:43 Peniel] I want to talk to you about affirmative action before the Baki decision. 1978. So when we think about affirmative action and sort of the Johnson administration and even the Nixon administration in terms of higher education, initially we see goals and timetables and frameworks where schools of higher education something everything from Berkeley, Toe Harvard but also City College City University of New York. I grew up in New York City, Stony Brook University. They have real goals and numbers that they’re trying to bring, and not just African Americans and Latin X populations, but also women to write in the pre Baki regime. And when we think about how admissions are conducted, people are looking at goals of saying, Hey, here’s how many we need And then suddenly there’s gonna be real major pushback against that now what? Why is that Is it just conservatives who are saying that this is reverse racism, that white people are being displaced and disadvantaged? If we look at people of color and we try toe intently, recruit them?

[0:04:49 Liliana] Well, that’s where we’ve ended up now with the legal developments. Is that kind of that framing? But what this really? So if you think about kind of two camps that when we if we think about affirmative action policies as representative of a debate over race in America and how it is that we address the effects of ongoing in past racial discrimination and oppression, you have those who have for a long time sought to who believe that, Um, and in some, you know a long time opponents of affirmative action policies, including some justices who are currently sitting in the U. S. Supreme Court. Clarence Thomas, Chief Justice John Roberts, um, who believe and argue that considering race by classifying on the basis of race that in itself is tantamount to racial discrimination. Um, you saw those very words reflected by Chief Justice John Roberts in a decision that he wrote in 2007 where, yeah, the white to stop discrimination on the basis of race is to stop discriminating on the basis of race. Right? The, um, perspective that really equates classifications with harmful discrimination.

[0:06:08 Peniel] Absolutely. So So when you think about these two camps,

[0:06:11 Liliana] so that’s one camp, right? That the camp of the belief that by just classifying in the basis of race, we’re going to, um that that is racial discrimination than the other camp, which is really where I fall based on my understanding and the working assumptions that I bring to my work is that race continues to matter, um, and that the way toe have it to attain more racial equity is to actually encounter the issue and address it head on. Um, and that’s Ah, that’s the perspective. That is also reflected in some of the Supreme Court justices currently sitting in the Supreme Court with Justice Sonia Sotomayor, Your there. Right now, it reflects a minority opinion where she also wrote in ah decision about seven years after that decision that Justice John Roberts wrote in almost direct conversation with that quote, Um, that the what we needed was to, um really have, um that the way to stop discrimination on the basis of race is to speak openly and candidly on the subject of race. Um, and in those in those two camps has been challenge. It’s it’s a fight over which of those interpretations and versions of the equal protection clause of the 14th Amendment we’re gonna have reflected through these legal decisions. Um, And after you had these original affirmative action policies, we start. We started to see the the case that starts with Baki. Um, where you have Alan Baki, white male applicant to medical school who’d been the night twice had been United Mission twice had been denied admission to all the other 12 schools, medical schools that he applied to any challenges. A specific policy that UC Davis Medical School has that reflected represented this this goal this set aside this quota, um, as as originally done through affirmative action

[0:08:18 Peniel] is the defining it as quota the opponents, because these are supposed to be goals and timetables tohave equal outcomes in the way that, um, President Lyndon Johnson described in the June 5th 1965 Howard University commencement address, where he says that we have to have not equality of opportunity, but equality of outcomes.

[0:08:38 Liliana] Exactly. I want to

[0:08:39 Peniel] talk about I want to talk to you about color blindness because really, when you think about the two camps, one camp is color blindness. And for all of our listeners, when you think about color blindness, this is, um, people like Ian Hanley Lopez and people have criticized this is color Blind Racism is the idea that, you know, since the civil rights era, what civil rights wanted with Dr King wanted was a colorblind Constitution, Right? So anyway, in which race is injected into the Constitution or law becomes racist from that perspective, Um, and what that perspective sort of color blind racism doesn’t talk about is outcomes. So it says that we’re sort of all equal by fiat. And then when we look at outcomes of educational access, how many kids are getting into UT getting into Harvard getting into elite institutions? If we don’t find a number of Latin X and African American and other kids, we say, Well, that’s just is because of some other reason it’s not. It’s not racialized. So I wanna ask you about how this color blind philosophy has made it much more harder toe argue in terms of civil rights, litigation for racial justice and really to prove racial injury not just in higher education cases but in a number of cases. Death penalty cases, Supreme Court. The standard has become so high you have to almost have a smoking gun of people plotting and planning against people of color in a way that no longer occurs so we can see institutional racism through outcomes. But the court wants even more in terms of to intervene.

[0:10:19 Liliana] Yes, and the way that I think about it is the way in which the legal developments in this area that have to do with how do we understand what the equal protection clause of the 14th Amendment requires, Um, and how the interpretation of that provision has really made it much more difficult for institutions to achieve their goals in the way that it’s been done is through this chipping away through legal attacks on affirmative action policy in a way that has read a more colorblind approach of the equal protection clause. Ah, for for institutions with very important significant implications, we’re not quite there yet. In terms of a full color blind reading of the equal protection clause. Um, what? That’s what I think the current challenges to practice and we can speak about, um, the the current challenges a little bit more later, um, are trying to do. But the, um this going back to this Baki case, which is really pivotal in terms of how we understand the practice, because I no longer call it affirmative action. What we have in place is not those kinds of policies. It’s ah, it’s a kind of race consciousness That’s a much more diluted ah, practice and the waves.

[0:11:37 Peniel] Justice Blackmun, who says that? You know, it could be one of many different things. Blackman. In that case, he says, You know, you know, you have to think about whether it’s a kid who’s from Nebraska or a kid might be African American. He just dilutes, and he mixes up sort of race class geography in

[0:11:57 Liliana] its and it’s done through through this interpretation of these provisions through a very conservative, concerted attack. Um, on these policies, um, the way that the Baki case turned is that, you know, at the time that the challenge was brought it there was no, um there was no test that had been decided of what would apply for how we interpret what equal protection means, right? Um and, um, you know, provision that was enacted to ensure equal citizenship for freed recently freed slaves. Um, and it’s a question of, you know, for equality. Do we need to consider it’s important to consider the context right, that we’re not starting from unequal Plainfield. Um and so we might need to treat people differently in order to be equal. But as at the time in the court, you didn’t have a final test that was going to apply. And you had, um, 44 justices who represented a what’s called in the legal lease the anti classification approach, Which is more that first perspective that I mentioned. Ah, the perspective. That what if you had any classifications on the basis of race, it was going to be really harmful. And so we’re going to require the strictest test for for institutions to have to show if they’re gonna have any kind of policy that looked at race explicitly. Um, you had four other justices who had a different perspective. The anti subordination approach to use more legalese that represent that second perspective that actually, in order for that well, that under that perspective the policies that look at race that are harmful are those that are intended to oppress particular groups, not those that are intended to achieve more equality, which is really what was at play with the policy at UC Davis. So

[0:14:04 Peniel] the law can be color conscious and negative ways, but it could be color conscious and positive ways as well. From that

[0:14:09 Liliana] perspective, yes, from that,

[0:14:11 Peniel] you think about Supreme Court, you think about Plessy vs Ferguson is color conscious in a very negative way. Yet the Brown decision is color conscious in a in a positive way in terms of saying that were desegregating in schools have to be desegregated when we think about the doll test and what what the Warren Court decides openly from in 1954.

[0:14:33 Liliana] Yes, and you had. So you had that division and then you had Justice Powell, who had was really aligned with the anti classifications approach, and as a result of his decision, we have the application of a very strict test that’s called called strict scrutiny that has a couple of components. One it requires institutions to show that they have a very compelling interest for what they’re trying to achieve through these policies. And second, that there that they need to get there through the, um, kind of merely tailored ways that they’ve considered all other approaches. Um, before they resort essentially to race. And once you have the application of that test for that policy, it really shifted. It provided a legal shift that then gave power for its for individuals to use the equal protection clause, um, as a way to challenge practices that were intended to promote equal opportunity for African Americans in our society. In equate that with potential practice that would be potentially discriminatory against whites. And that’s where you then have. This reversal of thinking of these policies has potentially reverse discrimination, and then it leads to a really important shift in practice as well for institutions where because the court also Justice Powell says Yes, we’re gonna apply this strict scrutiny test. So you have a very, very hard test for institutions to pass. And when it comes to that compelling interesting that you can achieve, it can’t be addressing the effects of racial discrimination, which is really what the policy at UC Davis Medical School was trying to dio it. Set aside 16 spaces out of a class of 104. Historically, this advantage students in order to address the ongoing effects of racial discrimination. But Justice Powell said it couldn’t have that policy to address that goal, that the goal could only be the educational benefits of diversity and that in order to get there, it couldn’t have thes set asides thes quotas that it needed to be a holistic review off the applicant, where race was only one factor among many. So you have this different goal that takes you away from being able to look at racial discrimination more head on and directly, but also ways that dilute the way that we might get there.

[0:17:10 Peniel] Absolutely So really, What’s so extraordinary is really about a decade into affirmative action’s practical application. The Supreme Court and really white supremacy rears its ugly head again and really says we can’t have these outcomes that are more equalized because that’s somehow gonna be discriminatory against against. In Bakkies case white men, I think it’s usually pernicious, um, an extra extraordinary in the sense of it’s such a small window. And I know for African Americans, educational parody and higher education was coming by the late 19 seventies, you know. So it’s right around the time where if Baki hadn’t happened, you would have had much more educational parody in higher education, including, We Think about a Pipeline for Presidents, a pipeline for Professors and All the Stem and All the Sciences and Humanities of Pipeline for Administrators. So this is really not something by accident. This is really weaponized public policy that’s anti black and anti Latin X as well. So this is really extraordinary.

[0:18:18 Liliana] It ISS, and it’s a use of the courts to do that with an education policy in an arena that, um, it’s kind of this anti political arena, right, because you don’t need that kind of coming together from different interest groups to come to a certain outcome. It’s a very strategic use of the courts to to affect education policy.

[0:18:40 Peniel] I want to ask you about the Obama administration, but I want to ask about before that, um, Sandra Day O Connor and affirmative Action and how Sandra Day O Connor became a kind of swing vote here, decided not to end it. But I remember reading her decision and she said something like, You know, in 25 years we shouldn’t have any of these, Ah, kind of looking at race anymore. So what’s so interesting is the impatience of whites, whether it’s men in the case of Powell or women. In the case of Sandra Day O Connor, who is lauded by many white feministas, this feminist icon Ah, but that when it comes to racial justice, they really weren’t having it, you know? And so there’s a timeline. There’s a time of saying, Well, there’s gonna be a time where we can talk about this anymore, Really, Irrespective of the political realities people are facing on the

[0:19:37 Liliana] ground, Yes, And so that decision comes out in the next set of challenges after Baki what? Which was a 1978 decision. After that, you had thes legal challenges by two female white white female applicants to University of Michigan, um, the undergraduate school, as well as to the University of Michigan’s law school. That’s the Gruber and Gratz v. Bollinger decisions, and by that time you had a much more robust body of evidence that supported the educational benefits of diversity. You had the social science community coming together to take advantage of this sliver that had been left by Baki before, which is the diversity. Rational

[0:20:26 Peniel] diversity is not the struggle for black equality and Latino, absolutely ex equality.

[0:20:31 Liliana] It is not its diversity. And after Baki, it was diversity very broadly defined as well. So it wasn’t just not being able to address racial discrimination as well as having diversity in a very broad definition where race could only be even just one factor

[0:20:49 Peniel] and when they are at in context of what’s going on right now, we’ve had the big college admission scandal and all these different things that’s happened this year. It also seems that the opponents of affirmative action were very well aware that this was gonna open up the playing field and it was going to create a new set of winners and losers. To the extent that the set asides historically have been for white males at all these universities in corporate America right now, 70% of corporate boards are white male. You know, Facebook is just adding, uh, you know, an African American American Express CEO Kenshin ought to their to their board. So do you think that the legal system understood this and wanted to make sure, in terms of policy wise, you think about Sandra Day O Connor saying 25 years or else Powell that there’d be You still have that basically a protection of white privilege through through the courts?

[0:21:47 Liliana] Yes, I believe so. The strategy within And this is where you see, you know, the tension of working within the legal system to push the boundaries, but understanding that that legal system is really in a lot of ways being used to protect white supremacy. Um, but so the litigation in those cases with with, uh, the group and Gratz cases that led to Justice O Connor’s opinion. And I would argue that those 25 years, that’s that’s dicta, as we say in legalese, which is, um, not really part of the holding, but a more kind of aspirational words that that she mentioned. But of course, those who opposed the practice altogether well, hold on to those words and say that it is part of this requirement. My understanding is that it was something that came from ah, law clerk that she that she had who suggested that, You know, it’s been about 25 years since Baki. Maybe we could include this language in the opinion again. I don’t know if that’s true or not, given that we’re not supposed to really have insight into the inner workings of the Supreme Court. But but the litigation and the strategy for that case was really trying to hold on to that to that sliver of diversity and argue for the benefits that that brings to white students as well. So it was really this. The strategy, based on interest convergence of focused on the kind of outcome of protecting the small part that Baki left open for institutions to be able to use race as a factor in admissions. Um, not to have affirmative action that was ruled really is unconstitutional after Baki, and in to try to convince specifically Justice O’Connor off the benefits of diversity, not just for the classroom, which is what really justice Powell was focused on in the importance of you know that diversity has a lot of important benefits for the education of, of all students approving critical thinking skills, addressing racial stereotypes, breaking down those kinds of racial stereotypes that we might bring. But also with her opinion, she expanded the ability for institutions to use race in order to also to maintain the health of our democracy, right to have a pathway, toe positions of leadership that was open toe all, regardless of race or ethnicity. That became an important rationale in that decision. But still, with the constrains of diversity as the rationale in that really racial discrimination

[0:24:31 Peniel] I want to ask about, um, the U T. Fisher. You know, Fisher vs UT University of Texas Case to preserve the top 10% rule at U T. And where do you think top 10% is going to go? But I want to ask it within the context of 2009 to 2017. January 20th 09 January 20th 17 is the administration of Barack Obama. And how do you think that administration? Because we hadn’t had a Democratic president since Clinton, Um, you know, there have been eight years of a George George W. Bush administration, which was certainly more more hostile toe ideas of open access and inclusion, especially affirmative action. How did the Obama administration and that that both Department of Education and Justice Department, When you think about education policy, four African Americans for Latin X population, people of color, How was it? Um, in terms of defending basically the principles of affirmative action but also open access in terms of higher education?

[0:25:33 Liliana] Um, well, the Obama administration played an important role through its policy guidance that it can issue as as part of its powers to help institutions navigate and understand the parameters of Supreme Court decisions. For example, um, and you had them play a role, um, with interpreting the the outcome of Fisher in what institutions could dio So that was that was important in as well. If I remember correctly, they, um they refer back to the group congrats, decisions as well. So that that was an important piece because you could Legal decisions are not. They don’t enact themselves, right? They, um the way in which they’re applied on the ground really depends on interpretation. And the policy items that the Obama administration issued was very clear in clarifying that the ability for institutions to use race as a factor remained constitutional again within the parameters of promoting diversity not going back. Teoh. Affirmative action, but really a much more kind of race conscious approach

[0:26:51 Peniel] while in policy. So important and impactful to institutions.

[0:26:56 Liliana] Um, well, there. So they don’t necessarily change the law, but they do help institutions understand where the administration is with respect to, um, it’s it’s interpretation and its understanding and that they were not gonna be open to the threat of litigation. For example, if they implement a particular approach versus not eso after Gruner, the next set of challenges to affirmative or really race conscious policies by now, Um, come with the Fisher case against diversity of Texas. And here you have a plaintiff who was recruited by Edward Blum, a long time conservative, um, attack individual who’s organized, very concerned, concerted attacks against affirmative action. He’s, ah, financial advisor. No, no, like really legal training. But has hat falls under this camp of thinking of racial classifications as racial discrimination recruits Abigail Fisher as someone who can be a plaintive to initiate a lawsuit against University of Texas at Austin, which had reintroduced race as ah factor in its admissions decisions in about 2007 to 2008 which it was able to do after Groot ER came down and overruled the prior case that had prevented the university from doing that. So that’s Ah, that’s a case That’s a challenge to the race conscious part of the university’s admissions policy, not the top 10% plan. That was not what was at issue in that case. It was used to, um to argue that the university had this alternative policy to achieve its diversity. So under this, this requirement that I mentioned previously about nearly tailored means to get there The top 10% plan was used in arguments against the University of Texas, saying, You’ve got this policy that allows you to get to where you’re trying to get to You don’t need the consideration of race, and U T seeks to defend that through a lot of evidence showing that the top 10% plan is not helping it realize its goals. Um, and ultimately you end up with after in the case, goes back to the Supreme Court twice. Um, I won’t go into all those details, but you end up with this kind of compromise decision that no one expected. Um, from Justice Kennedy. Really providing the majority vote there, still preserving race conscious admissions for institutions of higher education. While those challenges air happening and they’re going back, go Supreme Court. Once he gets gets sent back to the fifth Circuit, it goes back to the Supreme Court. They agree that it is constitutional. In the meantime, you have Edward Blum initiating a new round of challenges to the policy recruiting through a, um, the Students for Fair Admissions, which he begins, um advertises through websites to have Asian American plaintiffs in a new case against Harvard University. Um also seeks new plaintiffs in a case that is now making its way through the courts against UNC Chapel Hill as well, um, cases that alleged that race conscious admissions are discriminatory against Asian American applicants, in the case of Harvard White applicants in the case of UNC Chapel Hill. But what that really represents is again a concerted effort to get back to the Supreme Court on an issue that’s already been ruled on various times and have, um, the ability Teoh to have that very strict reading of the Equal protection clause has not won yet. But with this new, concerted effort to bring it back to the spring court at a time that we have a change composition in the potential votes to enact a much more restrictive rating of the equal protection clause is where we might find ourselves

[0:31:28 Peniel] or end race consciousness and admissions completely,

[0:31:31 Liliana] completely, right? Yeah, that that would be the the extension of that. That interpretation would now prevent any kind of race consciousness in admissions practices.

[0:31:44 Peniel] And so what do you think the future holds in terms of the court and raise consciousness when we think about the current makeup of the court current make up of our federal political system?

[0:31:58 Liliana] Um, it’s not looking good. I don’t know that I, You know a lot depends on how the lower courts rule. Who decides to appeal If it does make to the Supreme Court. If it does make it back to the Supreme Court, you do have the votes to have a much more restrictive reading that would prevent institutions from using race as a factor in their admissions decisions, which is really right now. The way that the practice plays out is not this sense of preferential treatment, which is what we had before. Baki that’s what Baki. In some ways, um, this kind of set aside or quota ruled is unconstitutional. What we have now is just the ability for all students to present their full cells to admissions officers, right to, um, to understand that race continues to play a role in people’s experiences and shaping educational opportunities and in preserving that ability for students of color to present that part of their identity in applications. And it’s really to maintain a much more, um, even ability for all applicants to be considered. And if you were to remove that, you end up with a process that would essentially discriminate against students of color because you would not.

[0:33:26 Peniel] It’s already

[0:33:26 Liliana] more than it already is exactly.

[0:33:30 Peniel] Well, thank you. We’ll leave it on that note and optimistically hope that this so, um, continue,

[0:33:38 Liliana] I would say, Well, let me if I couldn’t add to that, um, as well is if we if we were to get there. What we really need is a re imagination in in higher education of how we look at merit and how it is that we define it because in some ways, what affirmative action represents or race conscious admissions. It’s kind of it’s this band aid on a system that is much more unequal, and it and it keeps us from looking at those structural inequities that we have in place with focus on standardized test course, which are, um, really discriminate against students of color. Um, they’re they’re much research has shown that there measures of wealth and family resource is much more than any kind of innate intelligence or potential. Um, we have other practices in place that really favor the wealthy white applicants, like legacy preferences. So if we could re imagine merit and, um in a line that the factors that we use in admissions with the factors that we might value for institutions of higher education within a democracy, then we might have a very different kind of system that would not require that wouldn’t be based on thinking of race conscious admissions as this piece. That is really just a very small Band aid to a larger a larger problem.

[0:35:19 Peniel] All right, we’ll end on that optimistic note. Ah, it’s been great talking to Dr Liliana M. Garces, who is associate professor of educational leadership and policy in the College of education at the University of Texas at Austin and also affiliate faculty at the Texas Law School. And, um, really an expert in race, higher education and the law and access to the students of Color and other marginalized groups. It’s been a great conversation. Thank you so much for joining us.

[0:35:50 Liliana] Thank you so much for having me, Peniel.

[0:35:52 Peniel] Thanks for listening to this episode and you can check out related content on Twitter at Peniel Joseph. That’s P-e-n-i-e-l  J-o-s-e-p-h and our Web site, CSRD.LBJ.utexas.edu and the Center for Study of Race and Democracy is on Facebook as well. This podcast was recorded at the Liberal Arts Development Studio at the College of Liberal Arts at the University of Texas at Austin. Thank you.