Lucky Thekisho's response to UCT Senior Management

Dear Senior Management,

We refer to Mr Royston Pillay's email dated 9 July 2014 which asserts that the HETN Politicsweb article contains a number of errors of fact" pertaining to UCT's revised admissions policy and which further requests a telephonic meeting between Mr. Thekisho and Vice Chancellor, Dr. Max Price.

Mr. Crain Soudien, in his response in Politicsweb on 4 July 2014 also expressed a sentiment about supposed errors in the HETN article. Whilst we are not averse to a meeting, we seek clarification with respect to what errors of fact are contained in our article. We are committed to transformation in education generallyUCT's admission policy is a matter of fundamental importance to Black learners. When we interact, we want to make sure we are able to have a full understanding of your argument.

It is our humbled opinion that we observed a muddled and double meaning conveyed in your document First, it concedes "transformation is incomplete". It also claims your new policy is a "race conscious policy". Thereafter, the clear and simple meaning of the words veers in the opposite direction and suggests that race has less salience in the South African reality. Since UCT believes race is not a worthy criteria, it claims to advance a policy, which would level the playing field by diminishing the consideration of race and elevating the consideration of other variables.

Through some complex process, UCT wants us to believe that Blacks will fare better under their revised admission policy, which relegates race and elevates other criteria. The most critical factual dispute pertains to our respective polar positions on the reality of race. Your minimising the reality of race in the South African context, is a fusion of myth and distortion, which in effect constitutes the worse form of racism. HETN's views are grounded in another perspective of reality. HETN's prescription derives guidance from progressive comparative and international practice, with respect to the use of race to correct against a history of societal discrimination.

The UCT proposal raises two interrelated concerns; (a) a particular portrayal with respect to race and class in South Africa; and (b) a prescription to deal with UCT's portrayal of reality with respect to its admission policy. A trained medical doctor should appreciate that there has to be a nexus between the problem and the prescription. If you misdiagnose or misstate the problem, the prescription is bound to be problematic if not fatal. Before we can engage in mutual deliberations on the nuts and bolts and the fatal nature of your prescription, we would appreciate complete access to your thinking, as to how you arrived at your portrayal of reality?

We would also appreciate your views with respect to why the architects of this proposal employ the tools and notions, which emanates from the conservative judges on the United States SupremeCourt, in their affirmative action cases? Does this not demonstrate a common ideological axis? We will provide you with access to our thinking on the use of race in the corrective action context, which is based on international law and validated by progressive jurists.

You assert our views contain "errors of fact". Let's clear up the fog. It would be helpful if you would kindly clarify the following:

1) To address the double meaning in your document does your policy, despite the reality of race being a class determinant, seek to minimize race when it provides "75% of students would be selected without reference to race, while 25% would be race based."? The clear simple meaning tells us yes, it seeks to downplay race. Like in the United States, is there not a strong symbiosis between those advancing the idea that race has little relevance and those in the old days that supported the ideology of bigotry and fissures?

2) What do you mean when you state your policy is "taking account of the changing realities of race and class in South Africa since 1994?" Our reading of the facts is that race as a rule, is a class determinant. Moreover, despite exceptions, the economic divide between Blacks and whites has worsened since 1994. Do you really believe there is a changing realityfor the majority of Blacks? If you concede that the Black/white economic divide has worsened over the past two decades, is it not true that your policy is directed not towards addressing the norm, but towards the exceptions? Rather than nuance your policyfor possible exceptions, has UCT not conceived an unenlightened policy, unsuited to transformation, reflecting a perspective utterly unsuited to the norm?

3) Your policy seeks to reduce the number of admits based on race and further states it is concerned about policies "which impede opportunities for the individual". Does your policy not move away from a group strategy, towards an individualized strategy, in opposition to the international law of affirmative or corrective action? Does your individualized strategy not go against the Racial Discrimination Convention and the Convention on Discrimination Against Women, which recognize a group remedy for victims of past societal discrimination? Under our Constitution, are we not bound to apply rules of international law, when giving effect to our Bill of Rights?

4) Your document provides that your policy seeks not to "distribute resources and opportunities based on one's membership of or classification into race groups." You project a tension between race based remedies and equality. Where do you derive this view of a tension, which justifies the calibration in the manner you propose? Is your policy not a pivot towards an individualized strategy, in the direction of the conservative judges on the United States Supreme Court, as exemplified in their opinions in cases such as Grutter, Grutz and the Seattle School Districtcases to name a few?

Our reading tells us that the authors of this document borrowed "liberally" from the conservative Supreme Court justices of the US such as CJ John Roberts and Antonin Scalia, who wrote in the Seattle School Districtand other cases, the Constitution is color-blind and does not tolerate racial differences among citizens. Our view on the use of race is found in the views of the progressive judges such as Brennan, Blackman, Marshall, Ginsburg and others, who write that affirmative action is caring and there is no indicia of suspectness in providing a group remedy, in the context of corrective action, to correct against a policy of past discrimination. Our view is also supported by international law as referenced above.

5) We also share the views of these progressive judges, who wrote in a litany of decisions that affirmative action is a group remedy, given that Blacks were discriminated against as a group in society, by whites as a group in society. As such, it is not racism but a necessary response. We repeat, it is not racism but a necessary response.On what basis to do you take issue with the above views and the views of the Indian Supreme Court in cases such as State of Kerala, that race based affirmative action is required in order to ensure equality, as opposed to being in tension with equality? Would you contest that not only are there similarities in the legacy of racial subjugation in South Africa, India and the United States, but the gravity of the historical subjugation in South Africa is much deeper? On what basis would you dispute that the deeper cleavages in South Africa requires a more concerted race and group based remedy, which has not, and is really impossible to address in a generation?

6) Does UCT really believe that many black applicants are no longer "significantly disadvantaged and nolonger need affirmative action interventions", or whether only a tiny strata of the Black population are economically advantaged? Our reading of the facts tells us that at best, only a tiny strata of the Black population have made significant economic gains and therefore cannot be punished for having made such gains and that does not make them white.

7) Your reference in footnote 3 of your document to Blacks feeling stigmatized by affirmative action, is this not a prism, reflected in the views of right wing ideologues such as Justice Clarence Thomas, who wrote in opposition to race based remedies, in a series of cases, about the recipients of affirmative action, feeling a sense of inferiority? This view is contested and refuted by progressive jurists and judges.

8) Your reference in footnote 4 of your document to whites resenting the advantages given to Blacks, how is this different from the views of the conservative justices in the US in cases starting with Bakke, and a myriad other cases, where they talk about the burdens imposed on "innocent whites"? Our view of this matter is found in the views of the progressive judges such as Blackman, Marshall, Ginsburg and others who show that there is no indicia of suspectness, in the context of corrective action, to correct against a policy of past discrimination. Why is it not disturbing that your authors reference these conservative notions, even though these concepts have been employed by conservative judges, to stymie progressive policies by universities, who use race to employ affirmative action, or to achieve diversity in educational institutions? Why is it not a matter of grave concern that UCT, has moved to this conservative position on their own volition and with considerable confusion ant attempt to nurture these misguided notions into our reality?

9) Do you really believe that the legacy of three hundred years of racial privilege in South Africa has been sufficiently combated over two decades, which justifies the diminished use of race in your admissions policy?The view that race should have no salience finds great favour with a particular subset of society, such as the Democratic Alliance (DA) and the Freedom Front (FF). It might be of comfort to go jogging with DA leader, Helen Zille. The DA's view on the use of race in the affirmative action context is not a view to run with, but a perspective to run away from. Are you using your control over UCT to institute DA politics into the admissions process?

10) You write about "a society which does not distribute resources and opportunities based on one's membership of or classification into race groups". We conceive that as an ideal we should aspire towards. However, as long as the playing field remains tilted in favour of whites, to ignore race, in the words of several progressive judges in the US and India is to be a racist. These two countries have struggled for over two hundred years and sixty years respectively and have still not sufficiently empowered the historically disadvantaged.

Our reality and comparative experience instructs us that the playing field will be tilted in favour of white applicants for many decades. Does UCT really believe that the Black majority has progressed sufficiently in twenty years, which is half a generation, to minimize the consideration of race? Does UCT not accept that whites have tangible and intangible benefits? Despite a middle-class Black student attending a high performing school, or having parents that attended university, does UCT not recognize that there are intangible advantages that a white applicant will have for many decades, because of their historical privilege?

11) When the Constitution in article 9(2) speaks about promotion of equality and the adoption of "legislative and other measures designed to protect or advance persons, or categories of persons, disadvantaged by unfair discrimination", do you think it speaks primarily about race, or are other slow variables more worthy of consideration? Is our Constitutional Court and other courts misguided in applying and validating race conscious remedies to correct against past discrimination?

12) Does UCT believe it is private property, as the signage which litters UCT proclaims? Our reading of the facts is UCT is a state institution. This among many of our views is not opinion. It is a fact!

Two decades ago, we embarked on a truth and reconciliation process, as an attempt to move beyond the divisions of the past. We ignored the highest norms of international law, from which there can be no derogation, by granting amnesty to individuals that committed gross human rights violations and who violated the dignity of the Black majority. Most perpetrators went entirely untouched. As our article in Politicsweb demonstrated, UCT showed considerable spite and animus towards Black students, which many argue is still prevalent in the fiber of the institution. This is a truth which has not been dealt with, to the detriment of transformation.

Once again, UCT's descriptions and prescriptions exemplify a lack of heart and concern about the realities of the majority. Unfortunately, we have shown devastating apathy, by failing to transform the UCT faculties, management and Senate. This largely explains why UCT can continue to agitate destructive policies. Dr Max Price mentioned in a Sunday Times article of 13 July 2014 that the low level of Black professors at UCT is based on the small pool to choose from. Do you think this is accidental? Do you think Blacks have consciously chosen not to become academics, which explains why UCT currently has only five male African professors and one female? HETN will address this matter separately, accept to emphasise that your malign policies and an elite and racist institutional culture prevents the advancement of Black academics.

Your doctrinal views and framework, if implemented, will take us backwards in less than one generationWe are sure that you will not win this battle. We are willing to engage you provided you engage us with an open mind and you don't attach any pre-determined decisions taken by UCT. Despite your proclamation of UCT being private property, ultimately, UCT is a state institution. The government is entitled to intervene to ensure the realization of the imperative of transformation.

We are ready and willing to engage UCT concerning your prescriptions, which are also fundamentally flawed. There is ample evidence in the comparative experience, in societies with a history of racial subjugation, which demonstrates that elimination of race as a determinant for admission to tertiary institutions has resulted in the plummeting in admissions of historically disadvantaged learners. However, the critical above mentioned questions needs to be exhaustively addressed before we dialogue about the prescriptions. Equally we will appreciate if the DHET can also be part of the proposed dialogue on this critically important matter.

In conclusion, your pivotal ideas on race, which are front and centre in the UCT admission policy, we find appalling and irretrievably separated from reality. UCT needs to justify and explain their diagnoses of the "problem" which is not practically grounded. They also need to explain and justify the tool kit they use, which mirrors the prism employed by conservative judges on the US Supreme Court.Their notion of an admission policy for a color blind society, not contextual to our reality is difficult to comprehend, unless one is hell bent on preserving the privileges of a historical elite. On the basis of the above we humbly request the Higher Education Minister to urgently establish a standardized Central Admission System in order to manage admissions in all institutions of higher learning.

We await your response with keen interest.

Mr Lucky Thekisho is Chairperson of the Board Higher Education Transformation Network

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