Abstract
Despite being academically unqualified for admission to the University of Texas at Austin, Abigail Fisher, a White female, argued that she was not admitted due to the university’s diversity policy. In addition to framing postsecondary admissions as a zero-sum phenomenon, Ms. Fisher intentionally frames students of color who are admitted to the University of Texas at Austin as academically unqualified. The purpose of this article is to examine Ms. Fisher’s arguments against the University of Texas’ diversity policy as presented in Fisher v. University of Texas from a critical race theoretical perspective. In addition to obfuscating the fact that admission to the top colleges and universities in the United States has become more competitive, Ms. Fisher’s anti-diversity arguments are also consistent with a racial ideology and socially conservative agenda that frames people of color as undeserving of the opportunities traditionally associated with White people. The goal of this article is not only to situate Fisher v. University of Texas as a strategic project of Whiteness, but to also discuss what critical race theory can still teach scholars and researchers concerned with racial inequality in education.
Keywords
Introduction
The position advanced by opponents of minority admissions policies is not unlike that often heard after the Civil War: “They are free now, and must make their way like the rest of us.”
Since America’s founding, people of European ancestry have used race strategically to establish and maintain their societal advantage over people of color. Beginning with an economic system of human bondage “reserved exclusively for Black people and their children” (Baker, 1998, p. 13), to creating a political economy reliant upon the confiscation of American Indian land (Foner, 1998), White people have used lies, myths, stock stories, and other rhetorical tropes to justify the unequal existence of non-Whites in the United States. Still utilizing “racial folklore” (Fredrickson, 1988, p. 4), White people currently employ an amalgam of racially coded terms and symbolic constructs to maintain their historical advantage over people of color by opposing public policies intended to foster social equality (Lopez, 2014). For instance, opponents of affirmative action and diversity in higher education frequently contend that such policies are undemocratic because they are unmeritorious and discriminate against White people.
Despite the absence of systematic evidence to support the aforementioned assertions, many White people continue to believe that such inclusive policies in higher education are racism in reverse (Anderson, 2004). The reason for White antipathy toward socially inclusive policies is twofold. First, most Whites are accustomed to and prefer to participate in a racially anticompetitive environment among one another (Roithmayr, 2014). Second, and a corollary, the majority of White people in the United States prefer to leave in place the existing macro-level structures and institutionalized practices that lock in their historically derived advantages, rather than face the prospect of a “fundamental change in power” (Robin, 2011, p. 5). To thwart social policies meant to foster racial equality without appearing to be racist (Bonilla-Silva, 2003), White people often frame non-Whites as either unqualified or receiving preferential treatment to justify the policy’s abolishment. Stated differently, White people purposely deploy a set of discursive constructs associated with deeply held cultural values and ideological narratives regarding race, opportunity, and cognitive ability to proffer a “seemingly principled way of denying the moral [and social] legitimacy of egalitarian demands made on behalf of [subordinated] groups” (Jackman, 1996, p. 764).
The purpose of this article is twofold. The first is to contextualize the most recent iteration of White opposition to policy efforts to promote racial equality in education, Fisher v. University of Texas, using critical race theory (CRT). In this particular anti-diversity in higher education lawsuit, the plaintiff, Ms. Abigail Fisher (a White female), attributed her rejection for undergraduate admission to the University of Texas at Austin to its diversity policy despite being academically unqualified (Brief for Respondents, 2011). In addition to ranking in the “bottom 90 percent” (Brief for Respondents, 2011, p. 15) of her graduating high school class, Ms. Fisher also did not qualify for admission into the university’s summer program, which offers “provisional admission” (Brief for Respondents, 2011, p. 15) to applicants who were denied admission to the entering fall class (Brief for Respondents, 2011). Ms. Fisher’s decision to scapegoat the diversity policy of the University of Texas at Austin represents the latest instance of White backlash toward social policies aimed at actively enfranchising historically disenfranchised racial groups, such as African Americans and Latinos/as (Edsall & Edsall, 1992).
The second goal of this article is to discuss what CRT can still teach scholars and researchers concerned with racial inequality in education. While significant social progress has been achieved in the 20 years since CRT was introduced to the field of education, race remains a fundamental determinant in shaping the education quality for students of color in the United States. For example, African American and Latino/a students are more likely than are their White counterparts to be taught by unqualified or ineffective teachers, despite, respectively, constituting 16% and 24% of the total number of students enrolled in public schools (Center for American Progress, 2014; U.S. Department of Education & U.S. Department of Justice, 2014).
Similarly, the overall life experiences for people of color are qualitatively distinct, despite comprising only 13% of the U.S. population (U.S. Department of Justice, Office of Justice Programs, 2007). According to the U.S. Department of Justice, Office of Justice Programs (2007), African Americans “had higher rates of violent victimization than Whites, Hispanics, and Asians” (p. 3). In fact, “only American Indians had a higher rate of violent crimes than African Americans” (U.S. Department of Justice, Office of Justice Programs, 2007, p. 3). Indeed, what the foregoing examples illustrate is that the lives of people of color remain disproportionately less promising due in large part to race.
Organization of the Article
This article is comprised of four sections. The first section of this article provides an overview of Fisher v. University of Texas. Included in this overview is a discussion on the decisions by the U.S. District Court for the Western District of Texas and the Fifth Circuit Court of Appeals to uphold the constitutionality of the University of Texas’ undergraduate admissions policy, which subsequently prompted Ms. Fisher’s writ of certiorari to the U.S. Supreme Court. The goal of this section is twofold. The first is to provide the reader with a working understanding of the case, while the second goal, more importantly, is to illustrate how White anti-equal opportunity policy arguments in education are framed and pursued in a court of law.
The “What Is CRT?” section of this article presents an overview of CRT and Lopez’s (2014) strategic racism construct. A collection of nuanced theories that examine the interrelationship between race and social inequality, CRT disrupts the dominant social narrative regarding race, equal opportunity, color blindness, and post-racialism in the United States by highlighting the law’s role in constructing and preserving unequal sociopolitical relationships according to race (West, 1995). In particular, strategic racism refers to a White person’s purposefully using “racial animus and racial fear as leverage to gain material wealth and political power of heightened social standing” (Lopez, 2014, p. 46). According to Lopez, this particular form of racism is operationalized when persons of European ancestry invoke coded racial appeals to activate other White people’s hostility and fear toward non-Whites.
In the case of Fisher v. University of Texas, Ms. Fisher’s decision to scapegoat the diversity policy of the University of Texas, rather than accept the fact that she was academically unqualified for admission was racially motivated. As a social policy with legacy linkages to The New Deal and The War on Poverty, diversity, which is the progeny of affirmative action, is viewed by many Whites as a breach of their “negative liberties” (Quadagno, 1994). In contrast to “positive liberties,” whereby an individual has the “freedom to act on [his or her] own conscious purposes and to develop [his or her] capacities” (Quadagno, 1994, p. 6), “negative liberties” refers to the freedom from “external constraints on speech, behavior, and association” (Quadagno, 1994, p. 6). Included within negative liberties is the freedom from governmental efforts to prevent racial discrimination (Quadagno, 1994). The “Fisher v. University of Texas as a Strategic White Racial Project” section of this article provides an explanation of how Fisher v. University of Texas is a strategic project of White racism, and the “What CRT Can Still Teach Us About Race in Education” section presents what CRT can teach scholars and researchers interested in understanding race in education in light of this legal case.
Fisher v. University of Texas at Austin: An Overview
Beginning her challenge to the University of Texas at Austin’s diversity policy in the Western District of Texas in 2008, Ms. Fisher sought a court decree that would order the university to cease using race as a criterion in its undergraduate admissions process, and to reconsider her denied application for undergraduate admission using “race-neutral criteria”. Upon the Western District Court’s determination that the university’s admissions and diversity policy were constitutional, and that she had not “established a substantial likelihood of success on the merits of [her] complaint”, Ms. Fisher appealed to the U.S. Fifth Circuit Court of Appeals, contending that the university’s consideration of race as a “factor among a factor among a factor” (Brief for Respondents, 2011, p. 12) in its undergraduate admissions process does not advance diversity. According to Fisher, the University of Texas at Austin “employs race in an open-ended fashion, untethered to any educational goal . . . [and] has never made any effort to determine what level of enrollment of underrepresented minority would constitute a ‘critical mass’”. Viewing race as both mechanical and fixed, Ms. Fisher questioned the legitimacy of racial diversity as a criterion for increasing non-White undergraduate student enrollment on campus, as the university purportedly (a) did not consider Asian students as an underrepresented student population, (b) conducts race-neutral (i.e., color-blind) outreach programs to increase non-White student enrollment, (c) employs a policy that works to the detriment of White and Asian students, and (d) did not establish a sunset date (i.e., a specific end date) for the diversity policy. For the aforementioned reasons, Ms. Fisher sought to have the diversity policy of the University of Texas declared unconstitutional.
Similar to the Western District of Texas, the Fifth Circuit Court of Appeals ruled in favor of the University of Texas, determining that its admissions procedure not only followed the guidelines established by the Supreme Court in Grutter v. Bollinger (2003), 1 but was in “some respects superior to the Grutter (italics taken from original source) plan because the University does not keep a running tally of underrepresented minority representation during the admissions process” (Petition for Writ of Certiorari, 2011, Appendix A, p. 71a). According to the Fifth Circuit, the University of Texas’ decision to treat race as a dynamic and open-ended construct in its undergraduate student admissions process represents a “serious, good faith consideration” (Petition for Writ of Certiorari, 2011, Appendix A, p. 71a) for increasing student diversity on campus. Dissatisfied with both lower court decisions, Ms. Fisher petitioned the U.S. Supreme Court, contending that her rejection for undergraduate admission to the University of Texas at Austin caused her to suffer an injury. The following is a synopsis of the arguments in Fisher’s writ of certiorari to the Supreme Court.
The Constitutional Issues in This Case Are Critically Important
In contrast to her initial challenges in which the judicial relief sought was personal, Ms. Fisher, in petitioning the Supreme Court, took a more expansive approach, contending that her case had national and Constitutional implications. For example, in contesting the Fifth Circuit Court’s decision that the University of Texas acted in good faith, Fisher suggests that responsibility for ensuring an individual’s equal protection shifts from the courts to university administrators (Petition for Writ of Certiorari, 2011). For Ms. Fisher and her lawyers, “individual rights are at stake” (Petition for Writ of Certiorari, 2011, p. 19), and individual students are being asked to bear a burden in the name of diversity (Petition for Writ of Certiorari, 2011).
This supposed transfer of legal authority in Fisher’s view, replaces the judicial standard review of strict scrutiny for the lower courts’ good-faith, process-oriented review, which can potentially include the matters “unrelated to educational quality” (Petition for Writ of Certiorari, 2011, p. 20). Similarly, the lower courts’ decisions, in Ms. Fisher’s view, justify a form “racial gerrymandering” (Petition for Writ of Certiorari, 2011, p. 22) in college admissions, because universities will be exempted from demonstrating how race is specifically integrated into a holistic admissions program that assigns racial minority points (Petition for Writ of Certiorari, 2011).
The Fifth Circuit’s Analysis Conflicts With the Supreme Court’s Equal Protection Decisions
Similar to her previous argument, Ms. Fisher claims that the Supreme Court’s standard of review of strict scrutiny was misapplied by the Western District of Texas and the Fifth Circuit Court of Appeals (Petition for Writ of Certiorari, 2011). Again, viewing the lower courts as too deferential to the University of Texas, Fisher posits that the university uses a system of racial preferences that has “negligible gains in minority enrollment” (Petition for Writ of Certiorari, 2011, p. 30). In other words, the University of Texas is not interested in pursuing racial diversity to enhance the educational dialogue in college classrooms by “keeping minority students from feeling ‘isolated or like spokespersons for their race’” (Petition for Writ of Certiorari, 2011, p. 30). Instead, the university’s effort to promote diversity, according to Fisher, “exacts a cost disproportionate to its benefit” onto White students (Petition for Writ of Certiorari, 2011, p. 29).
The Supreme Court Should Clarify or Reconsider Grutter v. Bollinger to the Extent It Can Be Read to Justify the University of Texas’ Use of Race in Undergraduate Admissions
Reiterating the illegality of the diversity policy, because it “lack[s] a meaningful termination point” (Petition for Writ of Certiorari, 2011, p. 33), Ms. Fisher calls on the Supreme Court to reverse the lower courts’ decision because it conflicts with precedent. Specifically referring to the Grutter v. Bollinger (2003) decision, Fisher contends that the lower courts erred in determining that the University of Texas’ diversity policy was aligned with the procedures as outlined by the Supreme Court. As a result, Ms. Fisher calls on the Supreme Court to either clarify or reconsider its decision in Grutter v. Bollinger as a means to “restore the integrity of the Fourteenth Amendment’s guarantee of equal protection” (Petition for Writ of Certiorari, 2011, p. 35). As previously mentioned, Fisher’s contestation of the University of Texas’ diversity policy in light of her academic shortcomings is neither benign nor superfluous. Instead, her choice to appeal the decision of two lower federal courts, and petition the Supreme Court regarding a university’s freedom to attain a critical mass of underrepresented minority students is a calculated one.
What Is CRT?
An “intellectual movement” rooted in U.S. jurisprudence scholarship, CRT examines and critiques the law’s role in constructing and preserving unequal social and political relationships according to race (Crenshaw, Gotanda, Peller, & Thomas, 1995; West, 1995). Treating race as a socially constructed phenomenon rather than as an immutable biological fact or a set of fixed physical attributes, CRT views race as a “fluctuating, decentered complex of social meanings that are formed and transformed under the constant pressures of political struggle” (Lopez, 1996, p. 13), intended to maintain White hegemonic supremacy. Situating the U.S. legal system at the nexus of the race-making process, CRT explains how professed American ideals and legal principles, such as liberty, freedom, equality of opportunity, color blindness, and post-racialism, simultaneously maintain a “regime of white supremacy,” while subordinating people of color (Crenshaw et al., 1995, p. xiii). The primary reason for this paradox, according to critical race scholars, is the law’s incongruent and amorphous philosophical underpinnings (Foner, 1998; Freeman, 1988). According to Freeman (1988), equality of opportunity rests upon a peculiar blend of many philosophical concepts: “Kantian” individualism (the rights of “free” and “autonomous” beings), personality and desert theories of property (you realize yourself through your action upon the external world and deserve to keep what you have fashioned from it), pessimistic behaviorism (people, like laboratory animals, will exert themselves only for rewards, and exert themselves even more for even bigger rewards), and some kind of utilitarian aggregation theory (more is better, and “we” want more). (p. 377)
Conversely, for critical race theorists, equality of opportunity assimilate[s] both the demand and the object against which the demand is made—it is to participate in an abstract discourse that carries the moral force of the [civil rights] movement as well as the stability of the institutions that the movement opposed. (Crenshaw et al., 1995, p. 106)
For instance, color blindness, the legal corollary to equality of opportunity and the idealized goal of the Black Civil Rights Movement of the 1950s and 1960s, is currently used by Whites to justify the status quo by asserting that policies originally intended to improve the fortunes of people of color (i.e., affirmative action and desegregation) are now discriminatory toward White people (Brown et al., 2003). What this means is that to demand equality of opportunity, according to CRT, is to “demand nothing . . . [because] society’s adoption of the ambivalent rhetoric of equality of opportunity law has made it that much more difficult for [non-Whites] to name their reality” (Crenshaw et al., 1995, p. 106). Furthermore, historically subordinated groups (i.e., African Americans, Latinos/as, American Indians, and Asian Americans/Asian Pacific Islanders) are foreclosed from exercising effective legal remedies, because the law actually promotes and entrenches their subordination (Harris, 2001).
For critical race scholars, the law is more than the amalgamation of abstract ideas or concepts. Instead, universal concepts and legal principles, such as freedom, liberty, equality of opportunity, and color blindness, shape and determine one’s individual and collective existence. Thus, as a human rights and racial justice project, CRT’s goal is to “map the mutually constitutive relationship between race and the law” (Harris, 2002, p. 1217) in the hopes of eliminating all forms of oppression (Bell, 1979, 1987; Crenshaw et al., 1995; Harris, 2001; Matsuda, Lawrence, Delgado, & Crenshaw, 1993).
Strategic Racism
In essence, strategic racism refers to the “cold, calculating decision to use racial divisions to pursue one’s own ends” (Lopez, 2014, p. 9). Similar in purpose to the dehumanizing and disenfranchising race-specific language used by Whites from 1880 to 1964 (Edsall & Edsall, 1992), racism in the 21st century, discursively speaking, operates surreptitiously and subliminally. Specifically situated within mainstream claims and public policy arguments that involve morality, fairness, the cultural and personal failings of non-Whites, or an overly active federal government, strategic racists manipulate existing racial antipathies and ideas of racial differences established during slavery for personal gain by excluding non-Whites from meaningful sociopolitical resources and opportunities (Lopez, 2014).
Fisher v. University of Texas as a Strategic White Racial Project
As previously mentioned, not only did Ms. Fisher not graduate in the top 10% of her high school class, which rendered her ineligible for automatic admission to the University of Texas at Austin through the State of Texas’ Top 10% Law, she also possessed a scholastic aptitude test (SAT) score that was below the 80th percentile (Brodin, 2014). As a result, she instantly became “one of 16,000 applicants competing for only 1,216” (italics taken from original source) available seats at the University of Texas at Austin (Brodin, 2014, p. 265). According to Lopez (2014), “[s]trategic racists carr[y] a strong element of self-delusion” (p. 48). Moreover, individuals who utilize race divisively, such as Ms. Fisher, “stand within their own fictions because those seeking power typically will themselves to believe their own fabrications” (Lopez, 2014, p. 48). In the case of Fisher v. University of Texas, the fictional narrative propagated is the stock story of qualified White college applicants who are systematically being denied admission to the university of their choice in favor of less qualified persons of color (Anderson, 2004; Brodin, 2014; Brown et al., 2003; Cokorinos, 2003; Edsall & Edsall, 1992; Feagin, 2013; Flagg, 1998; Katznelson, 2005; Liu, 2002; Schmidt, 2007; Skrentny, 1996).
Upon examining the undergraduate admissions and enrollment data for the year that Ms. Fisher applied to the University of Texas, however, it is readily apparent that the likelihood of her being accepted was extremely low (Brief for Respondents, 2011). For example, Table 1, which presents, by race and ethnicity, the total number of the top 10% versus non-top 10% applicants who were admitted the same year that Ms. Fisher sought admission, shows that, proportionately, White applicants constituted the majority of the University of Texas’ non-top 10% admissions.
Racial and Ethnic Breakdown of Top 10% and Non-top 10% Applicants Admitted for Summer and Fall 2008 (N = 12,843).
Source. University of Texas at Austin, Office of Admissions (2008a), Student Profile: Admitted Freshman Class of 2008.
Similarly, Table 2 presents the total number, by race and ethnicity, of the top 10% and non-top 10% applicants who enrolled at the University of Texas at Austin in 2008. This information shows that Whites comprised more than half of the non-top 10% students that year.
Racial and Ethnic Breakdown of Top 10% and Non-top 10% First-Year Students (n = 6,715).
Source. University of Texas at Austin, Office of Admissions (2008b), Student Profile: Enrolled Freshman Class of 2008.
Finally, Table 3, which presents the SAT scores for the top 10% and non-top 10% applicants admitted to the University of Texas for the summer and fall of 2008, shows that less than 1% of all non-top 10% applicants were admitted to the University of Texas at Austin. In fact, the average SAT score for the majority of applicants admitted to the University was 620 points higher than Ms. Fisher’s. Indeed, upon closer examination of the empirical data, it is apparent that the majority of individuals who were admitted and subsequently enrolled at the University of Texas at Austin the same year that Ms. Fisher sought admission were not only White but were also more academically qualified.
SAT Score Intervals of Admitted Top 10% and Non-top 10% First-Year Applicants (N = 12,843).
Source. University of Texas at Austin, Office of Admissions (2008a), Student Profile: Admitted Freshman Class of 2008.
An additional element that makes Fisher v. University of Texas a strategic White racial project is the auspices under which the lawsuit was filed. The University of Texas at Austin employs a two-step holistic individualized methodology (i.e., qualitative) in its undergraduate admissions process for Texas residents who do not graduate in the top 10% of his or her high school. In the first part, all applicants are ranked according to an Academic Index (AI) score, which predicts a prospective first year’s student grade point average by combining their respective high school class rank with their standardized test scores (Brief in Opposition, 2011).
In the second part, which is more rigorous, an applicant is evaluated according to his or her Personal Achievement Index (PAI) and Personal Achievement Score (PAS; Brief for Respondents, 2011; Brief in Opposition, 2011). According to the University of Texas at Austin, an applicant’s PAI is calculated based on his or her two essays for admissions and the applicant’s PAS score, which considers individual attributes and experiences, such as “leadership potential, extracurricular activities, honors and awards, work experience, community service, and special circumstances” (Brief for Respondents, 2011, p. 13; Brief in Opposition, 2011, p. 5). In addition to equally weighing the aforementioned considerations, essays are scored on a “race-blind basis from one to six” by “specially trained readers” (Brief for Respondents, 2011, p. 13).
To further individualize a prospective non-10% student’s application, the University of Texas considers additional material and experiential factors, such as a person’s socioeconomic status, the socioeconomic status of an individual’s high school, and special circumstances, such as “any special family responsibilities” (Brief in Opposition, 2011, p. 5). Interestingly, racial diversity, like the other aforementioned PAS factors, is not assigned an “automatic advantage or value” (Brief for Respondents, 2011, p. 14). Instead, race, according to the University of Texas at Austin (2011), is considered in conjunction with an applicant’s demonstrated sense of cultural awareness, not in isolation. Race is contextual, just like every other part of the applicant’s file, and the consideration of race helps [the University of Texas] examine the student in their totality. . . . Consistent with the holistic and modest way in which race is considered, it is impossible to tell whether race is considered a tipping factor for any given admit. (Brief for Respondents, 2011, p. 14)
In sum, race is treated as a categorical variable in the undergraduate admissions process at the University of Texas at Austin.
Thus, Ms. Fisher’s decision to file a lawsuit while knowing that she did not graduate in the top 10% of her high school class, and possessed low AI and PAI scores is self-serving and racially pernicious. The “causation fallacy” that Ms. Fisher advances not only exaggerated her academic credentials, more importantly, it overstated the impact of the diversity policy of the University of Texas at Austin, and the purported preference accorded to non-White applicants (Liu, 2002). In other words, the idea of being unqualified to attend one of the preeminent institutions of higher education in the country was inconceivable to Ms. Fisher. Moreover, as the daughter and sibling of University of Texas alumni, Ms. Fisher viewed attending the University of Texas at Austin, the state’s flagship institution, as a birthright rather than as a privilege. As Ms. Fisher stated, I took a ton of AP classes, I studied hard and did my homework—and I made the honor roll. I was in extracurricular activities. I played the cello and was in the math club, and I volunteered. I put in the work I thought was necessary to get into UT. (Tolson, 2012, n.p.)
What CRT Can Still Teach Us About Race in Education
Since its introduction to the field of education (Ladson-Billings & Tate, 1995), CRT has been used by scholars in education to examine and understand a multitude of issues, such as school resegregation (Chapman, 2005); race and teacher pedagogy (Ladson-Billings, 1998, 2000, 2013; Parker & Stovall, 2004); microaggressions and campus climate (Solorzano & Yosso, 2001); race, gender, and academic achievement (DeCuir & Dixson, 2004); and research methods (Ladson-Billings, 2000; Ladson-Billings & Donnor, 2005; Parker, 2015). While the foregoing topics are not exhaustive, a consistent shortcoming of CRT scholarship in education is the absence of legal literature, including case law (Donnor, 2005, 2015; Ladson-Billings, 1998, 2013; Tate, 1997).
As the legal and policy arguments advanced in Fisher v. University of Texas illustrate, race, specifically a “White racial logic” of victimhood (Feagin, 2013; Zuberi & Bonilla-Silva, 2008), and fictional injury under the auspices of fairness and color blindness are at the core of this particular education policy challenge. As outlined in this article, an education policy that supports the modest proportional admission of non-Whites to the state of Texas’ flagship institution of higher education triggered not only a concerted and unrelenting legal challenge, but also an epistemic refutation that was neither fact based nor conceptually coherent. In other words, contemporary White challenges to diversity in higher education, such as Fisher’s, are analogous to White contestations of affirmative action dating back to the 1970s (e.g., Allan Bakke). Like its predecessors, contemporary White opposition to diversity is rooted within a collective subconscious imaginary and ideological terrain, whereby the sumptuary policy arguments advanced are intended to lead to the policy’s dismantling and recapitulate the racial-social status quo ante of separate and unequal.
Beyond referencing the law review articles that contain specific CRT analytical constructs that are used to examine race and inequality within one’s particular area of interest in education, a majority of the CRT scholarship in the field lacks the conceptual capacity to link the contemporary moment to the past or to articulate a “dynamic understanding of the temporal, institutional, and disciplinary emergence CRT provides for engaging today’s ‘post-racialism’” epoch (Crenshaw, 2011, p. 1261). Put differently, the critical race scholarship in education would be better served by a cross-discipline approach to study many of the present-day issues, which have historical roots. For example, a reason for the doctrinal and conceptual durability of Derrick Bell’s (1987) interest convergence principle is not only its historical analysis of judicial precedent; but also its capacity to illustrate White people’s ability to distort reality, both historically and contemporaneously. In explaining the circuitous benefit of civil rights litigation to Whites, Bell stated, [i]t is simply too comforting for many white people to ignore the facts, to hearken to their fears, and say with real belief that [B]lacks are demanding privileges that they have not earned to remedy injustices they have not suffered. And under the steady reiteration of the marvels of “freedom” and “equality,” [W]hites not only become anesthetized to the injustices [B]lacks suffer, but also are rendered incapable of comprehending the fact that . . . “Americans bought their independence with slave labor” and then have systematically denied [B]lacks both freedom and equality. (p. 73)
Hence, the coupling of education policy analysis literature with the legal literature in the topical area of race, access, and equality of opportunity not only illuminates discipline similarities and dissimilarities, but also further enhances the former’s understanding of (a) the policy-framing process, specifically the language and ideas that are evoked during policy debates and contestations (Brown & Donnor, 2011; Feagin, 2013; Lakoff, 2004); (b) how Whites seek to lock in racial advantage and disadvantage in education (Brown & Donnor, 2011; O’Connor, 2001; Schneider & Ingram, 1993); and (c) how governing institutions are brought into service for the second point (McDonnell & Elmore, 1987).
A focus on the law from a precedential point of view provides a richer understanding of the interrelationship between race and ideology, individuals and social groups, institutions, opportunity, and inequity. As applied fields of study, education and the law not only convey a material and cultural basis of legitimacy, but also communicate a metanarrative of “which citizens are deserving, and what kinds of attitudes and participatory patterns are appropriate in a democratic society” (Schneider & Ingram, 1993, p. 334). From a CRT perspective, education policy analysis, when partnered with case law along with existing critical race methodologies (Parker, 2015), have the potential to reveal new and insightful ways of speaking back to the post-racial and color-blind narrative. Finally, to not include a more historical and doctrinal understanding of interrelationship between race, education, and opportunity in education CRT scholarship is to affirm critical race theory’s critics that all “crits” are doing are telling stories.
Footnotes
Declaration of Conflicting Interests
The author(s) declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.
Funding
The author(s) received no financial support for the research, authorship, and/or publication of this article.