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Law Professor Cashin Makes Case for Building Affirmative Action

Anew

by Ronald Roach

WASHINGTON — It’s not surprising that, as a former law

clerk to the late U.S. Supreme Court Justice Thurgood
Marshall and daughter of civil rights activist parents,
Georgetown University law professor Sheryll Cashin
supports the use of affirmative action in American higher
education.

Rather than defend the practice of race-conscious

affirmative action that helps underrepresented minorities
gain admission into highly selective colleges and
universities, Cashin instead pushes for affirmative action
that’s based on structural disadvantage, or place, that a
student has to overcome to attain a high-quality education.
Sheryll Cashin’s new book, Place, Not Race: A New Vision of
Cashin’s new book, Place, Not Race: A New Vision of Opportunity in America, argues that place-based affirmative action
provides a race-neutral approach for helping disadvantaged students
Opportunity in America, argues that place-based as well as bringing diversity to elite colleges and universities.
affirmative action provides a race-neutral approach for
helping disadvantaged students as well as bringing
diversity to elite colleges and universities.

Although the 5th U.S. Circuit Court of Appeals on July 15 upheld the use of race in college admissions in the Fisher v.
Texas case, there’s not much optimism that race-conscious affirmative action has a long-term future in American
higher education. Among those who are advocating for race-neutral alternatives to race-conscious admissions
practices, Cashin in Place, Not Race offers a vision of how colleges and universities can achieve racial and ethnic
diversity while providing opportunity for disadvantaged students regardless of their race or ethnicity.

“I believe in affirmative action. I just want it to be better and fairer. I want to insulate it from legal and political attack,
but I also want to help strivers who really need the help,” Cashin told Diverse.

There’s little disagreement that the practice of race-conscious affirmative action has been on the decline since the
1990s, as the federal courts have limited its use and states have acted to prohibit public universities from considering
race. Over nearly two decades, the proportion of four-year public colleges that consider race in admissions has fallen
from more than 60 percent to about 35 percent. Just 45 percent of private colleges still consider race in admissions.

Countering race-based affirmative action

Cashin contends that race-conscious affirmative action is currently doing little to help the truly disadvantaged in
American society. It benefits, she asserts, primarily highly advantaged Black and Latino students, such as her own
children. In the book’s epilogue, which is in the form of a personal letter, the former Clinton administration official
informs her twin 6-year-old sons that she believes they do not “need or deserve affirmative action” that will consider
their race as a factor in college admissions.

“One irony is that race-based affirmative action, as it is practiced in highly selective institutions, really doesn’t help the
vast majority of Black and Latino students in this country,” Cashin said recently in a public forum.

Many students, “as do most Black and Latino kids in this country, have to overcome serious structural disadvantage”
to gain access to and complete college, Cashin explained. “[They] have to overcome serious structural disadvantage,
including under-resourced schools with less-experienced teachers, fewer higher-achieving peers that raise
expectations and model habits of success, and often exposure to violence,” she noted.

In addition to its failure to reach disadvantaged Black and Latino students, Cashin argues that race-based affirmative
action poses too high a social cost because “it engenders [racial] resentment,” particularly among working-class
Whites.

“White folks don’t like it. And it makes it more difficult to create coherent multiracial coalitions among the people who
struggle in this country to support the public policies that will redress these serious savage structural barriers that
most children of color face,” she said.

In the book, Cashin also makes clear the distinction between place-based and class-based forms of affirmative
action. Place-based affirmative action in academic admissions seeks to move beyond the scope of class-based
admission practices by taking into account the impact of racial history, such as the persistence of segregation in
African-American communities. Cashin writes that “mere consideration of [family] income differences does not
adequately reflect the structure of disadvantage in the United States.”

“It is not enough to promote affirmative action based upon class rather than race when there is a racialized, separate
and unequal K-12 pipeline,” she writes.

Proposals that Cashin recommends to bolster place-based affirmative action include making standardized tests
optional, replacing merit-based financial aid with need-based financial aid and recruiting high-achieving students from
overlooked places.

Joining the national debate

The book’s publication, which coincided with the 60th anniversary of the landmark Brown v. Board public school
desegregation decision, could not have come at a more opportune time. Since early May, Cashin has earned a place
among those scholars and advocates who are driving the national debate over affirmative action. She’s made
appearances on network TV news, national and local radio programs, a C-SPAN-covered forum and several public
events.

In June, Cashin appeared as a guest at the release of The Future of Affirmative Action: New Paths to Higher
Education Diversity after Fisher v. University of Texas, The Century Foundation book whose chapter authors include
nationally prominent experts, such as Dr. Anthony Carnevale, Rutgers University-Newark chancellor Nancy Cantor
and Vassar College president Catharine Hill.

Richard Kahlenberg, a senior fellow at The Century Foundation and editor of The Future of Affirmative Action, has
been a leading proponent of class-based affirmative action. He edited the book to broaden the national conversation
on affirmative action so that it presents a wide range of race-neutral affirmative action strategies.

In a review of Place, Not Race published in The New Republic magazine, Kahlenberg praised Cashin for “skillfully
blending her personal story as an upper-middle-class Black professional with a wide range of research on what
constitutes the biggest barriers to success. … Cashin provides a compelling blueprint for a new, much stronger, form
of affirmative action based on actual disadvantage.”

Kahlenberg’s review takes note of the contrast between the affirmative action stance Justice Marshall took in the
1978 Bakke affirmative action decision and that of his former law clerk in her new book. “More than 30 years later, a
former Supreme Court clerk to Justice Marshall, [Cashin] makes a powerful case that it’s time to rethink her former
boss’s support for racial preferences,” he writes.

A month prior to the Century Foundation book release, Place, Not Race drew praise from Roger Clegg, a longtime
opponent of race-conscious affirmative action and the president and general counsel of the Center for Equal
Opportunity. During an event televised by C-SPAN at the Joint Center for Political and Economic Studies in
Washington, D.C., he characterized Place, Not Race as “a courageous book” and that “it does take guts [for a liberal]
to say that racial preferences are … no longer a good idea.”

“I won’t say I disagree with all of her premises and all of her reasoning, but I disagree with a lot. Nonetheless, I do
agree with her conclusion that the time for racial and ethnic preferences is over and we ought to move beyond that,”
Clegg added.

Although Cashin’s colleague, Georgetown law professor Girardeau Spann, strongly defended the use of race-
conscious affirmative action during the C-SPAN event, he urged viewers and audience members to read the book.
Cashin explains that only in recent years has she arrived at a position to support place-based affirmative action over
the race-based version. “I wouldn’t say there’s raging enthusiasm in the traditional civil rights community” about
Place, Not Race, she said.

Some liberal critics have complained that Cashin neglects to carefully consider the position of “non-affluent” middle-
class Black families. Writing in The American Prospect magazine, economist Richard Rothstein takes up the cause of
African-Americans who are “sitting between the very poor and the rich.”

“These are children not of inherited wealth and status but of ordinary lawyers, engineers, administrative workers, civil
servants, paraprofessionals, police, firemen, bus drivers, or blue-collar workers — children of men like Michelle
Obama’s father, who worked in Chicago’s water plant,” he writes.

Rothstein concedes that Cashin’s proposals would likely see some middle class African-Americans benefiting from
place-based affirmative action. However, with most middle-class Blacks not residing in predominantly Black
neighborhoods, much of the African-American middle-class “will not benefit from place-based plans that Cashin
supports — and they will be underrepresented without race-conscious affirmative action,” he writes.

Cashin recently fired back at Rothstein and North Carolina State University historian Blair L.M. Kelley, a left-leaning
critic who wrote about Place, Not Race in TheRoot.com. Also writing in TheRoot.com, Cashin noted that roughly “30
percent of Black children live in a middle-class neighborhood, defined as one where more than half of residents are
not considered poor.”

“Proximity to poverty is a common, lived experience for African-American families of varying incomes,” she writes.
“But if universities were to follow my proposal … of giving special consideration to any high achiever who lives in a
neighborhood or attends a school where 20 percent or more of their peers are poor, this would help the vast majority
of Black and Latino children who currently suffer the disadvantages of segregation.”

In describing much of the early reaction to Place, Not Race, Cashin notes that she occupies a unique space on the
affirmative action issue while being a member of the civil rights community. Her previous two books, The Agitator’s
Daughter: A Memoir of Four Generations of One Extraordinary African-American Family and The Failures of
Integration: How Race and Class are Undermining the American Dream, have emphasized her connection to the civil
rights community.

“I’m part of this community. And my friends in the community are open to the argument,” Cashin said. “I think they
appreciate where my heart is. They appreciate all of the analysis about the underlying systemic disadvantage.”

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