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Indians and Affirmative Action

Steve Russell
5/4/12

All racial discourse has been nonsensical since we’ve understood H. sapiens as one species with common ancestors. “White” is about color, and there are more differences among whites than there are between whites and other “races.” “Indian,” all Indians know, simply refers to persons indigenous to the Americas, and the only time we have more similarities than differences is when we are attacked for being Indian.

However, the demand that our children be exposed to a first rate education is not nonsensical, and that demand has the mud of racial discourse all over it. For Indians, however, there may be a way to press that demand outside of racial fantasies, at least on the college level.

Those who wish to make the phrase “affirmative action” distasteful need to understand its origins. When the newly elected President John F. Kennedy inquired about racial discrimination in federal employment, he met the refrain that there were “no qualified Negroes.” The result was Executive Order 10925, requiring the government to take “affirmative action” to find qualified applicants.

Subsequently, the term “affirmative action” found its way into the regulations implementing Title VII of the Civil Rights Act of 1964, which banned all discrimination in hiring by businesses involved in interstate commerce, excepting tribal employers. Is it fair that an Indian can sue a white employer for race discrimination but a white person can’t sue a tribal employer for the same thing? Yes, for reasons I hope to make clear.

As a result of generations of inferior education, or because of racial differences in intelligence—depending on your point of view—whites continued to dominate higher education even after overt racial exclusion was struck down. Some colleges then undertook “affirmative action” to diversify their student bodies.

Inevitably, a rejected white student filed suit alleging racial discrimination in college admissions. Federal courts had no problem recognizing that so-called reverse discrimination is unlawful but that institutions with a history of racial exclusion could consider race in admissions as a remedy for past discrimination.

Leaving aside how that logic stinks of “corruption of blood,” punishing children for the sins of parents, the effects of past discrimination get harder to prove over time. In 1978, the Court in University of California Regents v. Baake deadlocked over whether considering race as a “plus factor” in medical school admission was a remedy for past discrimination. The swing vote, Justice Lewis Powell, offered an alternative rationale: “diversity.”

My university teaching was performed at one very diverse school and one less so. I’m here to tell you Justice Powell was onto something. What the affirmative action critics do not understand is that diverse voices in the classroom are a benefit principally to the white majority. The benefit to minority individuals who earn more over time and are able to offer their children similar opportunities is not insignificant, but the immediate results in terms of the classroom experience are easier to see.

After Baake, any notion of “racial quotas” was dead but the goal of diversity as an educational value was very much alive. I thought at the time that the drawback of “remedy for past discrimination” is that it would end in a generation, while the value of teaching in a diverse environment will outlive even the idiotic fiction of “race.”

So I thought until 2003, when the Supreme Court took up a pair of cases challenging affirmative action admissions at the University of Michigan. In Grutter v. Bollinger, the Court both adopted the diversity rationale and set a time limit of 25 years on using it. As a teacher, I find this preposterous, but as a lawyer, I smell a compromise in that time limit.

If such an illogical compromise was necessary to uphold the diversity rationale in 2003, the chances that a more conservative Court will continue to recognize diversity as a value this year are not good.

This is a tragedy for education, but the impact on Indians can be limited by tribal governments willing to go to bat for access to universities. This is legal because a preference for educated Indians is not about “race.” It’s about tribal citizenship. Neither is Indian hiring preference by tribal governments about race, but rather about a dire necessity every government faces to see its citizens employed.

Every time a tribal government has to enter negotiations with a state government over anything, Indian set-asides in college admissions could and should be on the table. You want a cut of casino money? You want your law enforcement officers deputized on our land? You want an easement over our land? Educate our kids.

This does not solve the problem, because the root of it is inferior K-12 schools that do not produce test scores that are competitive in the regular admissions process. An even more robust predictor of test scores than per pupil expenditures is parental involvement in the process. This is how lack of education becomes hereditary.

Whoa, what’s the big deal about test scores? Aren’t they culturally biased? No doubt. So is education generally. That’s why the scores correlate with college grades. No point in getting our kids in if they cannot do the work. Tribal governments and Indian parents have to work the problem from both ends.

Steve Russell, Cherokee Nation of Oklahoma, is a Texas trial court judge by assignment and associate professor emeritus of criminal justice at Indiana University-Bloomington. He lives in Georgetown, Texas.

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