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Excerpted From: Rachel F. Moran, Diversity's Distractions Revisited: The Case of Latinx in Higher Education, 73 South Carolina Law Review 579 (Spring, 2022) (407 Footnotes) (Full Document)


RachelFMoranIn 2003, Professor Derrick Bell wrote an article entitled “Diversity's Distractions.” There, he provocatively argued that battles over diversity in higher education were “a serious distraction in the ongoing efforts to achieve racial justice.” In his view, the diversity rationale failed on its own terms because it obscured persistent barriers of race and class, invited ongoing litigation due to its conceptual weakness, and endorsed a status quo that favored privileged White applicants. In addition, Bell thought that diversity distorted the nation's policy priorities in higher education. As he explained, “The tremendous attention directed at diversity programs diverts concern and resources from the serious barriers of poverty that exclude far more students from entering college than are likely to gain admission under an affirmative action program.” As support, Bell noted that a 2003 Century Foundation report found that:

[I]f the nation's most selective colleges abandoned affirmative action and looked only at grades and test scores, about 5,000 fewer black and Hispanic students would make the cut each year; but next year, officials estimate that because of budget cuts at least 20,000 black and Hispanic students will be shut out of California's 108 community colleges.

In this Article, I revisit Bell's arguments about diversity's distractions in the context of a growing cohort of Latinx students entering America's colleges and universities. In Part II, I will address ongoing debates over affirmative action, as advocates contest the constitutionality of race-conscious admissions designed to achieve a diverse student body. As Bell predicted nearly twenty years ago, litigation over affirmative action at elite institutions of higher education has persisted. Despite the United States Supreme Court's consistent endorsement of holistic review that relies on race as one factor in admissions, challenges to the programs abound. In 2017, for example, the Department of Justice under President Donald J. Trump announced that it would be investigating race-based admissions policies at several colleges and universities. In addition, a nonprofit organization called Students for Fair Admissions (SFFA) filed lawsuits against Harvard University and the University of North Carolina in 2014. So far, those legal challenges have not succeeded in the lower courts, but there is widespread speculation that the Supreme Court will ultimately overturn affirmative action when it reviews these two cases.

As these legal battles demonstrate, affirmative action remains a high-stakes contest. Elite colleges and universities play an outsized role in developing leaders of national importance. If affirmative action disappears, the affected students will be the select few who attend prestigious schools, as Bell noted. However, the impact on the racial and ethnic make-up of the pipeline to prominent positions could prove considerable. That said, even at elite institutions with affirmative action programs, diversity in admissions has been far from a panacea because of its fragile claims to normative respectability. The Court has regularly made clear that race-based admissions policies are a second-best option and should be eliminated once schools can enroll diverse student bodies through race-neutral means. These pronouncements treat any consideration of race or ethnicity as presumptively undesirable. So, it should come as no surprise that critics of affirmative action continue to argue that the time has come to end the programs as an unnecessary departure from a principle of colorblindness. Reflecting ongoing doubt about the programs' legitimacy, some states have banned affirmative action in higher education admissions. When selective flagship public universities in these states responded by adopting race-neutral alternatives to diversify their student bodies, the successes were held up as evidence that race-conscious programs were no longer necessary. Experiences at these schools have only heightened demands to end race-based admissions as a violation of the collective commitment to colorblindness.

In addition to identifying inherent weaknesses of the diversity rationale, Bell pointed out that the affirmative action debate could be a diversion from other important barriers to obtaining a college degree. He did not devote nearly as much time to this observation, but in Part III of this Article, I will unpack the main ways in which affirmative action debates narrow our nation's policy focus and hamper access for traditionally underrepresented students, particularly those in the Latinx community. I will focus on Latinx students because this youthful population is expected to account for an expanding share of college and university enrollments in the coming years. Rates of college enrollment and completion for Latinx historically have lagged behind those for Whites. As Latinx seek to boost their participation in higher education, several key factors other than affirmative action will affect their odds of success. The first major challenge relates to ongoing stratification and segregation in higher education in the face of dramatic enrollment growth. In the years following World War II, colleges and universities underwent “massification” as post-secondary attendance expanded significantly. To accommodate the rapid increase, community colleges and less selective four-year institutions became the educational workhorses that made broad access possible. Today, as is true of students generally, most Latinx attend institutions like these rather than selective colleges and universities. In fact, Latinx are disproportionately concentrated at two-year schools. Massification has not dispelled patterns of stratification and segregation among institutions. Many Latinx go to institutions of higher education that are readily identifiable by race and ethnicity as well as class. Because affirmative action speaks only to the integration of elite campuses, it does not reach these issues of segregation in the higher education pyramid.

Next, there are challenges related to privatization and declining intergenerational mobility. During the post-war period of enrollment growth, public support for institutions of higher education grew steadily. In the 1980s, however, government funding began to erode as officials insisted on norms of personal responsibility and self-help. Politicians increasingly categorized higher education as a private good, one that mainly benefited the students themselves. College graduates therefore should pay for their own schooling by borrowing against enhanced future earnings. As government support declined and tuition rose, the United States ceased to lead the world in college completion rates, and the prospects for intergenerational mobility declined. Of course, correlation is not cause, but there are grounds to suspect that financial obstacles played a role in deterring people from enrolling in and completing college. The burden of paying for a degree has put a strain on middle-class families but has proven even more daunting for working-class and poor families. In fact, the gap in college attainment for high-achieving students from low-income and high-income families has become so striking that one leading political scientist wonders whether it has undermined a shared faith in the American dream. Again, affirmative action does not speak to these difficulties, focusing only on admissions and not financial aid. Yet, for Latinx students, who are disproportionately likely to grow up in families with limited income and wealth, these barriers are palpable when deciding whether to pursue a college degree.

Finally, there are difficulties related to the ways in which affirmative action debates have destabilized the identity and legitimacy of Minority-Serving Institutions (MSIs), including Hispanic-Serving Institutions (HSIs). The ideal of colorblindness has cast doubt on the ongoing vitality of any form of race-consciousness in higher education. In debates over whether to recognize HSIs and create a program of federal grants, some critics have worried that this kind of race-conscious commitment is unconstitutional. Congress ultimately declared a college or university to be an HSI if it enrolls at least 25% Latinx in its undergraduate student body. That definition is numbers-driven rather than normative: it does not require any deliberate effort to diversify the student body, nor does it demand any intentionality in serving Latinx students. The federal grants program reflects a similarly limited conceptualization of HSIs. Like MSIs more generally, HSIs receive very modest federal funding, and with the rapid growth in Latinx college students, grants have not kept pace with expanding enrollments. Moreover, the funds can be used for buildings and programs that serve all students and confer only incidental and uncertain benefits on Latinx students. Even as colorblindness weakens the definition of HSIs, ongoing segregation in higher education means that Latinx students rely heavily on these institutions to obtain a college degree. Questions of funding are important because most HSIs are resource-strapped two-year and four-year public universities, and only a handful are highly selective research universities. As a result, controversies over affirmative action are largely irrelevant to many HSIs' admissions programs. Instead, these institutions must focus on strategies to support and retain students as administrators stretch their thin resources.

In Part IV, I turn to how an engagement with diversity's distractions can enable policy makers to transcend the narrow conflict over affirmative action and advance broader policy reforms needed to promote Latinx access to higher education. The debate over affirmative action has only grown more complicated as proponents of corrective justice, much like Bell, criticize selective colleges and universities for overlooking the most disadvantaged students. These normative disagreements cast doubt on the ongoing propriety of race-conscious admissions, intensify controversies over affirmative action, and deflect attention from other key dynamics that bear on students' opportunity and mobility. With respect to massification, a critically important consideration is how to strengthen the educational workhorses that serve most college students. To that end, state governments must revisit funding formulas that lead to huge per-pupil gaps in resources for two-year and four-year public institutions. Although equalization of funding is unlikely, policy makers should consider how much per-capita funding is necessary to operate a rigorous academic program. Otherwise, disparities in instructional quality can become significant obstacles to successful transfer from a two-year to a four-year institution. Despite various proposals to strengthen community colleges as gateways to a bachelor's degree, Congress so far has failed to take any action. Even so, the issue remains on the reform agenda.

As for privatization, state governments must decide whether to provide more means-tested scholarships that allow students from low-income and working-class families to attend college without incurring significant debt. One difficulty is that constituents often fear that any shift in financial aid priorities will come at the expense of merit aid, which emphasizes grades and test scores and often benefits students from affluent families. Yet, as the class divide in college-going and completion widens, means-tested aid could be an important way to ensure that needy students receive enough funding to make college an affordable option. Similarly, the federal government must decide whether it is willing to revisit the eligibility for and size of Pell grants, traditionally used to help low-income students but now expanded to include some middle-class students. Like state governments, Congress has to determine whether to increase awards to keep up with the cost of attendance, even if that requires focusing funds on only the neediest students. It is worth noting that steps like these would not only improve college access for disadvantaged youth but also bolster the resources of two-year and less selective four-year institutions that many of these students attend.

Finally, state and federal officials must determine whether they will provide robust support to MSIs. Although these colleges and universities are sometimes treated as anomalies in a colorblind system of higher education, they continue to serve a large proportion of traditionally underrepresented racial and ethnic minorities. To ignore the plight of these schools is to disregard ongoing patterns of stratification and segregation among institutions of higher education. Those patterns in turn correlate with substantial disparities in per-pupil funding, suggesting that diversity has indeed been a distraction from the separate and unequal characteristics of colleges and universities today. There have been repeated calls for Congress to enhance allocations to MSIs. Historically Black colleges and universities (HBCUs) have made the most forceful case for increased resources. However, there has been little in the way of decisive action on funding for HBCUs, much less HSIs. As a matter of policy, federal officials should consider how to strengthen MSIs, including HSIs, as they do the yeoman's work of preparing historically underrepresented students to obtain a college degree.

[. . .]

Nearly twenty years ago, when Professor Bell wrote “Diversity's Distractions,” he made valuable points that remain relevant to concerns about access to higher education today, especially for the burgeoning Latinx student population. Affirmative action at highly selective colleges and universities is still a significant policy issue because of the gatekeeping role that these schools play when students aspire to positions of national prominence. Without admissions programs that weigh race and ethnicity, Black and Latinx students would be severely underrepresented at America's elite institutions of higher education. Even with affirmative action, getting admitted is only part of the struggle for full inclusion. Exclusive social networks on elite campuses can make it difficult for the most disadvantaged students, including Latinx from high schools segregated by race, ethnicity, and poverty, to thrive.

Moreover, efforts to enroll a diverse student body are just one part of ensuring equitable access to a post-secondary degree. As Latinx students attend college in substantial numbers, they encounter the elevator effect, a deeply embedded feature of a highly stratified and segregated system of higher education. Due to this effect, greater access does not necessarily translate into equitable outcomes as more privileged peers find ways to retain their previous advantages. Illustrating this phenomenon, Latinx often attend schools at the bottom of the higher education pyramid where gaining admission is not a significant challenge. Instead, students' difficulties relate to obtaining a degree, given the limited resources that these schools have to provide financial support and a quality education. Latinx also confront the problems of self-financing their degrees in an increasingly privatized system of higher education. Here, too, there is access, but without affordability, inequities persist in the ability to complete an educational program. Finally, despite high-profile efforts to enroll diverse student bodies at elite schools, most Latinx attend colleges and universities that are readily identifiable by race and ethnicity. Many of these schools are HSIs, yet a norm of colorblindness often has led to ambivalence and uncertainty about whether to use federal grants to target Latinx students' needs. As a result, access does not necessarily translate into support dedicated to advancing newcomers' success. For all these reasons, Latinx have made gains in access but have not yet closed the gap in college completion rates.

To overcome diversity's distractions, policy makers must grapple with the elevator effect that crimps Latinx students' full participation in higher education. To do so, officials should consider how best to support the workhorses of higher education that educate a large share of underrepresented students of color, including Latinx. In addition, educators must work to make the college application process transparent so that first-generation students from modest backgrounds can make informed choices with their families about where to enroll. Both federal and state legislators must consider how to make a college degree affordable and attainable for the neediest students, including Latinx. Finally, Congress and federal administrators must acknowledge the dramatic expansion in HSIs, amplify and target support for these schools, and plan for a future in which diversity will transform the make-up of all institutions. Far from being anomalous, MSIs, including HSIs, could become the rule rather than the exception. Only by reckoning with diversity's distractions and the demographic changes underway in our country can policy makers ensure that higher education remains responsive and relevant to our nation's needs as a robust democracy and a world economy.

Distinguished Professor of Law, UC Irvine School of Law.

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