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This term, the Supreme Court heard a case about affirmative action in university admissions, Fisher v. University of Texas, where my alma mater was on the side of diversity for a change (  Most observers agreed diversity was likely to lose, but the SCOTUS punted the case back to the lower courts and an uncertain fate.  Whatever happens in Fisher, it does not mean Indians have to quit banging on the doors of higher education.

Indians know diversity, and knew it before Columbus got lost.  My people, woodland hunters and farmers, traded with salt water fishermen on the coast and some copper ornaments smelted in Cherokee country turned up in Southwestern pueblos, where they grew the Three Sisters crops on dry land farms and built with stucco.  When the Spanish proved unable to keep track of their livestock, many tribes took up the buffalo culture on the Great Plains.  Athabascan speakers live in icy Alaska and desert Utah.  We know diversity.

To the colonists, we are all “Indians,” one of the most exotic minorities in modern politics.  We all have this experience at some point if we leave home: “Do you want to be called Indian or Native American?”  Tribal identity requires explanation, and it does get tiresome.

African-Americans, by the tragedy they have endured, bigfoot any discussion of diversity in the United States.  The Civil War was, much as the Confederates denied it afterwards, about slavery.

The Civil War added the 14th Amendment ( to the Constitution, importing into law the statement of faith in the Declaration of Independence ( that “all men are created equal.”

Republicans, then the anti-slavery party, controlled the Congress and the Presidency, but the Supreme Court changes much more slowly and it remained in the hands of Democrats.  The Democratic Court quickly gutted the Privileges and Immunities Clause in The Slaughterhouse Cases (1873) ( and the Equal Protection Clause in Plessy v. Ferguson (1896) (, and legal equality died for another half century.

Homer Plessy’s case was particularly ironic.  Plessy was one-eighth African-American by blood quantum, and so considered himself a white man—but the Court found he was not white enough to sit where he pleased on public transportation.  There things stood until Rosa Parks ( came along not claiming to be a white woman, but insisting she was a human being.

The fight to pry education loose from “separate but equal” started at the graduate level, where facilities were too scarce to be made equal.  Texas was sued in the seminal law school case, Sweatt v. Painter (, a case that began in the courthouse where I spent my first career.  

The first thing the state court did was give Texas time to create a “Negro Law School.”  This law school was staffed by practicing black lawyers, not the widely published scholars found at any top law school like the University of Texas (

In 1950, the Supreme Court cut though this transparent nonsense.  On any level, schools are not “equal,” and the Justices on the Supreme Court, graduates of excellent law schools, knew that.  It would be satisfying to end this by pointing out that the state courthouse where Sweatt vainly sought justice was renamed in 2005 “The Heman Marion Sweatt Travis County Courthouse,” ( but the fight for equality goes on, as does Texas’ role in it.

The “separate but equal” fiction finally died as a matter of law in the famous 1954 case, Brown v. Board of Education (  Prevailing counsel in that case was Thurgood Marshall, who himself had been denied admission to the University of Maryland School of Law on account of his race.  Later, President Lyndon Johnson appointed Marshall to the Supreme Court and today the University of Maryland Law Library ( is named after Marshall, the man not good enough to study there.

Brown killed segregation as a matter of law, but housing patterns continued segregation as a matter of fact.  For a few years, there were attempts to achieve racial integration by having kids ride school buses, but that turned into a cultural wedge issue and was eventually beaten back.  I personally bought a house in a racially integrated neighborhood in Austin both because I favored integration and because I would rather my son be able to walk to school.

As the Harvard Civil Rights Project has documented (, schools in the United States have been re-segregating since 1988.  It should be no surprise that predominantly minority schools lag in per pupil spending, teacher salaries, and results, whether measured by test scores or by college admission rates.  The race that experiences the most going to school with children of the same color is…the “white” race.

That’s diversity in K-12.  It takes little imagination to see how segregating whites in K-12 leads to mostly white universities.  For reasons I shall explain, Indians are better fixed to push into those white universities than other minorities, no matter how Fisher v. University of Texas finally gets decided.

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 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.

At least Tribal government and Indian parents will still have something to work with after affirmative action generally is destroyed by what might be termed the legal white power movement.  The precedents are clear that when the US government singles out American Indians, whether to help them in Morton v. Mancari ( or to hurt them in U.S. v. Antelope (, it does not create a racial classification within the meaning of the Equal Protection Clause of the Fourteenth Amendment.

This is the bastard child of a line of cases that began with the government justifying the internment of Japanese-Americans during WWII, which we all know was not based on race (cough, cough) but rather on nationality.  But the nationality was American?  And they didn't do the same to Italians and Germans?  But I digress, and I could never improve on Justice Jackson's dissent in Korematsu v. U.S. (

If this were the most irrational and racist trope in federal Indian control law, it would be worth denouncing at length.  It's not and so I won't.  This is just one of a tiny number of times when the irrationality cuts in our favor, so Indians should ride that horse until the SCOTUS shoots it out from under us, as they certainly will eventually.

Originally posted to l on Sat Jul 06, 2013 at 03:53 PM PDT.

Also republished by Native American Netroots, Invisible People, and RaceGender DiscrimiNATION.

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Comment Preferences

  •  Posting comment in the hopes this gets more eyes (6+ / 0-)

    Excellent work.

  •  Hey - I stumbled upon Plessy's tomb in NOLA (2+ / 0-)
    Recommended by:
    indubitably, mollyd

    recently... thought it was really cool to find it.

    I had no idea he was a French-speaker (his remembrance was not in English) and that brought on an unanticipated spate of introspection concerning my Anglo-bias...realized I'd assigned in my mind that pivotal movers of our Civil Rights history have spoken English.  There are always ways for me to grow in humility.

    "This is the best bad idea we have by far..." ~Argo

    by MsGrin on Sat Jul 06, 2013 at 04:28:03 PM PDT

  •  Some hidden history (4+ / 0-)

    While most people seem to be aware that Japanese-Americans were placed in concentration camps during WWII, what is less well known is that Native Americans were also placed in camps at this time.

    In 1942, the U.S. Army removed the Unangan people from the Aleutian Islands and placed them in makeshift camps on the mainland where they suffered from hunger, cold, and disease. Many of the elders died. Their abandoned villages were vandalized by the American military.

  •  Welcome Steve (0+ / 0-)

    I used to be one of the few who posted on NDN law and policy over here -- and gave up long ago --but I'm glad you're here to do some proper educating.

  •  Thank you for a very informative article (1+ / 0-)
    Recommended by:

    It was infuriating and depressing in equal measure to read:

    If this were the most irrational and racist trope in federal Indian control law, it would be worth denouncing at length.  It's not and so I won't.
    Out of curiosity (and honest ignorance), I was under the impression that 'Indian' was not the favored nomenclature (it being the result of Columbus' error in thinking that he had 'discovered' India) and that 'Native American' is and has been for some time. Am I laboring under a misapprehension?

    Lightly Seared On The Reality Grill

    by Retroactive Genius on Sun Jul 07, 2013 at 12:40:24 AM PDT

    •  Yes (1+ / 0-)
      Recommended by:

      While you may be laboring under a misapprehension, since most of the Indians I know (and all of the more traditional types) call themselves Indians in those few times they need a collective term, any Indian who takes offense at Native American has too much time on his or her hands and/or an odd set of priorities.

      To a person, we prefer to be known by our tribal designations.  But given the size of the problems we face, that matter is SOOO trivial....

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