by Sheryll Cashin, Professor of Law, Georgetown University Law Center. This essay is adapted from parts of Cashin’s book Place, Not Race: A New Vision of Opportunity in America. Professor Cashin will also participating in a panel discussion, “Race and the law in 2014: Still Separate and Unequal?” at the ACS 2014 National Convention.
Despite the Supreme Court’s compromise decision in Fisher v. Texas, affirmative action is on life support. In Schuette v. Coalition to Defend Affirmative Action, the Supreme Court upheld the ability of Michigan voters to ban race-based affirmative action. Conservative opponents will continue to attack the policy in politics and the courts. There will always be another Abigail Fisher. One important response to the demise of race-based affirmative action should be to incorporate the experience of segregation into diversity strategies. I argue that use of place, rather than race, in diversity programming will better redress the separate and unequal schooling that most black and Latino children endure, while enhancing the possibility that we might one day move past the racial resentment that affirmative action engenders.
While I propose substituting place for race in university admissions, I am not suggesting that American society has become post-racial. My proposal accounts for the racial architecture of opportunity in this country through the race-neutral means of place. Ultimately, I conclude that the social costs of racial preferences outweigh any marginal benefits when race-neutral alternatives are available that will create racial diversity by expanding opportunity to those most disadvantaged by structural barriers. The truly disadvantaged—black and brown children trapped in high-poverty environs—are not getting the quality of schooling they need, partially because backlash wedge politics undermines any possibility for common sense public policies. Affirmative action as currently practiced in admissions at most elite institutions does little to help this group and may make matters worse by contributing to political gridlock borne of racial cleavage.