Proof: Fisher vs. The University of Texas

MR. GARRE, UT’s lawyer: What — what we look to, and we think that courts can review this determination, one, we look to feedback directly from students about racial isolation that they experience. Do they feel like spokespersons for their race.

CHIEF JUSTICE ROBERTS: So, what, you conduct a survey and ask students if they feel racially isolated?

MR. GARRE: That’s one of the things we looked at.

CHIEF JUSTICE ROBERTS: And that’s the basis for our Constitutional determination?

MR. GARRE: Your Honor, that’s one of the things that we looked at.

CHIEF JUSTICE ROBERTS: Okay. What are the others?

MR. GARRE: Another is that we did look to enrollment data, which showed, for example, among African Americans, that African American enrollment at the University of Texas dropped to 3 percent in 2002 under the percentage plan.

CHIEF JUSTICE ROBERTS: At what level will it satisfy the critical mass?

MR. GARRE: Well, I think we all agree that 3 percent is not a critical mass. It’s well beyond that.

CHIEF JUSTICE ROBERTS: Yes, but at what level will it satisfy the requirement of critical mass?

MR. GARRE: When we have an environment in which African Americans do not –

CHIEF JUSTICE ROBERTS: When — how am I supposed to decide whether you have an environment within particular minorities who don’t feel isolated?

MR. GARRE: Your Honor, part of this is a -­ is a judgment that the admin — the educators are going to make, but you would look to the same criteria -­

CHIEF JUSTICE ROBERTS: So, I see — when you tell me, that’s good enough.

MR. GARRE: No, Your Honor, not at all. You would look to the criteria that we looked at, the enrollment data, the feedback from the students. We also took into account diversity in the classroom. We took into account the racial climate on campus.

This was an exchange yesterday during the oral arguments at the Supreme Court of the United States for Fisher vs. The University of Texas, a case that will determine if universities can use race as a factor in determining admissions. (the full transcript for the oral argument is here – it’s a .pdf)

I could have quoted much more but this back and forth between Mr. Garre, the counsel for UT, and the chief justice of SCOTUS, John Roberts, gets at the heart of the tension in this case: how can anyone determine when affirmative action is working and is doing what its proponents want it to do?

Mr. Garre is adamant that one way in which you determine if a university campus is a diverse enough space is to measure whether minority students feel isolated in that environment. While Roberts concedes this point, he wants Garre to give him a definitive answer for how a university can quantify the experience of minority students in order to say, “critical mass of diversity now met.” Garre, though, is steadfast that the university cannot quantify it, that it takes many different kind of data including, “enrollment data,” “feedback from students,” accounting for “diversity in the classroom,” and attempting to measure “the racial climate on campus.”

In a very dismissive way, Roberts puts down that the Constitutional determination of this case can rest in asking minority students at a university through surveys if they feel isolated and how severe that isolation is. Now, no one (NO ONE) thinks that the entire case around affirmative action should ONLY be built on surveys of the lived experience of minority university students. But I do think it’s telling that Roberts scoffs at those surveys in particular.

This reminds me of a post I recently wrote about a new study that FINALLY proves that scientists as a group discriminate against female scientists. I say “FINALLY” because there have been previous studies. But more than that, women in the sciences have been saying for a long time that discrimination is their reality. As I wrote previously, this new study finally being good enough to offer definitive proof shows that women scientists saying they are discriminated against is not, in and of itself, proof that women scientists are discriminated against.

Here is the connection for me: in both of these cases, a group that has much less power is saying, in some collective way, that their lived experiences = x. And the group in power responds by saying, “Your claim to your lived experience isn’t enough. We need hard numbers. Where are the numbers?”

I got a lot of push back on my article about discrimination in the sciences because people want numbers, even those people whose voices have been dismissed in favor of those numbers. Let me be clear: it is good that there are now numbers that prove a systemic gender bias exists among scientists. I’m not going to ever argue against that. I agree it’s good.

But I refuse to stop pushing on the idea of how limited our definition is of good “evidence” as well as the broad range of what is dismissed as “hearsay.” Yes, there have to be limits – I’m not some sort of evidence anarchist. But the limits we have in place disproportionately negatively affect those whose voices and experiences are already marginalized.

It is no coincidence that science and law share common terms. Rose-Mary Sargent, in The Diffident Naturalist: Robert Boyle and the Philosophy of Experiment, has argued that in the seventeenth-century, when experimental science as we know was first being practiced widely and seen as a legitimate way in which to interrogate the world, scientists (I use that loosely when discussing the early moden period) turned to the language of the law to describe their work. This was especially true in England where common law played a large role. Under common law, precedence is central to determining the outcome of trials. As Sargent has argued, “Experience must form the foundation of the law, because only from experience could one come to the knowledge necessary for rational legal decisions….This same broad notion of experience, and the type of demonstration grounded upon it, played an integral role in the attempts by English experimentalists to justify the knowledge-producing character of their enterprise.”

For both science and the law, knowledge is borne from experience, from what has come before. But what counts as “knowledge”? How does one measure what is good evidence? Who determines which knowledge is valid and which extraneous? Perhaps even more so for this blog post, what experiences inform or create or reveal that knowledge? Or even whose experiences?

Whether it is minority students in a university stating that they feel isolated or female scientists saying they face gender bias in their careers, they run up against these powerful institutions of law and science that demand better proof, more quantifiable evidence, harder facts.

Yes, I believe in science and the law. But I think we can all admit that they are extremely flawed systems, even as we rely on them. It is in moments like these where these flaws come to the fore.

For Roberts to dismiss that surveys of minorities students are not good enough evidence on which to base the constitutionality of a law, you have to wonder what kind of evidence would count for Roberts. He demands a number, something he can point to on a piece of paper and say, “there is the evidence of the absence of isolation.” This is just so incredibly convenient. The exact kind of data that would count for Roberts is the exact kind of data that is nearly impossible to adequately quantify.

Here is the crux of it all: part of the reason that it is so hard to quantify is that the experiences of students of color will never really be deemed good enough evidence. Never. Their voices will always be suspect. Being already marginal voices is why anyone is trying to determine their experiences in this particular moment. And the systems in place to evaluate those experiences and make them into data are cultural products, too. The system evaluating the system will find that the data that doesn’t support the system is just not good enough data.

Only once the experiences of “them” are somehow filtered through a more objective platform do they possibly count as part of the “us.”

In the case of those surveys that Roberts quips about, discrimination and cultural isolation is part and parcel of the explanation for why those surveys will never be good enough to determine if there is discrimination and cultural isolation.

How do you get outside of that? How do we expand, as a society, what counts as “proof” or what is considered valuable “evidence”? At what point do we start recognizing the collective voices of those who have not historically been listened to or considered? It all feels so hopeless in moments like this.

5 Responses

  1. john says:

    Convincing argument, and the point about Fisher’s slender evidence–which nevertheless weighs more than UT’s evidence–is especially good. I find myself wishing, though–not for the first time–that we who support affirmative action hadn’t been backed into the corner of arguing only from diversity, since an appeal to fairness (specifically fairness through restitution) has been ruled out. (Was that the burden of Bakke? Can’t recall.) I suspect “how fair is fair enough?” is an easier question to answer than “how diverse is diverse enough?” and maybe that’s why the fairness argument is no longer acceptable.

  2. zb says:

    Thank you for this! I need to share this with my majority white law in higher ed class, who still see affirmative action as only RACIAL and see it as only benefiting people of color, specifically blacks.

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