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Getting serious about racial discrimination

That’s the title I gave this essay, which I was invited to write for ScotusBlog and which was posted last week.  Here it is:

In my contribution to this symposium, I’m going to discuss how the Supreme Court should apply “strict scrutiny” to the use of racial and ethnic preferences in university admissions.  I will assume here that the door will be left ajar for this kind of discrimination, but must note briefly at the outset that I think the door should be shut on it, as I discussed at more length in the symposium for Fisher v. University of Texas at Austin’s earlier trip to the Court.  I noted then that there is no adequate answer to what ought to be the fundamental question in these cases:  “Just what is it that we expect African-American and Latino students to say to white and Asian-American students that will provide the latter with such compelling ‘educational benefits’ that racial discrimination by the government is justified to make it more likely that these conversations take place?”

Until the happy day when the door is slammed, though, a school should be required to answer two simple questions in order for its use of racial and ethnic preferences to be narrowly tailored: (a) What, precisely, are the educational benefits that the school wants to achieve for its particular student body, and how are they “compelling”?; and (b) how, exactly, is there no way to achieve these benefits except by using racial and ethnic preferences in admissions?

The nature and extent of the educational benefits in using race in admissions will vary among schools and disciplines, so this has to be explored in order to ensure that the use of race is narrowly tailored.  For example, the educational benefits of using racial preferences in admissions to a graduate chemistry program are going to be different from admissions to a law school, and both will be different from those in an English or anthropology class.

Thus, a linguistics department might believe that it is valuable to have a student body that includes students who grew up being familiar with a variety of different dialects.  This will be a different – and perhaps more plausible – educational benefit than, for example, a physics department could point to.  But the linguistics department would also have to take care to ensure that students with preferred racial or ethnic backgrounds actually had that familiarity, and that it would also consider that familiarity if it were possessed by a particular white student.  That is, the use of race and ethnicity would not be narrowly tailored if it gave a preference to an African-American or Latino student who knew nothing except standard English; likewise, the school ought to be willing to give special consideration to a white student – or, of course, an Asian-American student (our multiracial nation’s most rapidly growing group and, increasingly, the victim of this politically correct discrimination, by the way) – whose personal upbringing had given her expertise in an unusual dialect of one sort or other.

Candidly, I doubt that there will be many if any instances where it makes sense to weigh race per se in admissions, rather than looking directly for the quality in the individual that will supply the educational benefit.  But, in all events, the school should be required to identify the educational benefit and then explain why it is compelling and why considering race per se is necessary in order to attain it.

Some schools may argue that – while they can point to no such educational benefit in any particular discipline, nor even identify any race-correlated perspective or experience it wants generally shared – there is an overall educational benefit in students learning how to interact with students of different racial and ethnic backgrounds.  But such a general claim should be looked at very suspiciously, since it would justify the permanent and malleable imposition of racial and ethnic discrimination in admissions.  This claim is especially dubious when a school –  such as the university in this case – will certainly have a substantial degree of racial and ethnic diversity without the use of preferences.  Such a school should not be able to justify discrimination by saying, “But this particular black student(s) is a little different from most of the other black students we admit because of some quality X.”  There will always be that quality X, since no two human beings are exactly alike.

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Now, it may be objected that this framework, while it seems logical enough, is unacceptable because it is so rigorous that few schools’ use of racial and ethnic preferences will be able to pass muster if it is used.  Indeed, it might (horrors!) require documentation of the educational benefits that will result from those random interracial conversations I wrote about in the last Fisher symposium and mentioned above.  And of course my off-the-cuff reaction is:  Great.

But there is more to be said in its defense than just that.

I think that this rigor is entirely consistent with Justice Anthony Kennedy’s opinion last time around, as I discussed here right after it was handed down.  And I’m not alone.  For example, Arthur Coleman, a former deputy in the Office for Civil Rights at the Education Department in the Clinton administration, agrees that each particular school should be required to do a lot of narrow tailoring “homework,” as he puts it.  It’s a “myth” that each school “can rely on another college’s research”:  “Mr. Coleman urged colleges that consider race not to lean on the research and rationale behind other institutions’ race-conscious admissions practices. What worked for the University of Michigan at Ann Arbor might not make sense, legally or otherwise, on your campus. ‘Every institution has to roll up its sleeves and do the hard work,’ he said.”

The rigorous approach is also necessary because schools can’t be trusted.

You would think that, as the twenty-five-year clock set by Grutter v. Bollinger has been ticking, universities that use racial and ethnic preferences would be weaning themselves off them. But this isn’t happening, as studies conducted by the Center for Equal Opportunity show. Our post-Grutter study of undergraduate admissions at the University of Wisconsin found the severest discrimination that we’ve ever seen, before or after Grutter. We found the worst law-school discrimination we ever saw at Arizona State, also post-Grutter. We likewise found severe law-school discrimination and undergrad discrimination in, respectively, Nebraska and Ohio post-Grutter. And we found law, undergrad, and med-school discrimination even at the University of Michigan (before voters banned it) – and indeed worse undergrad discrimination than there was in the system that the Supreme Court struck down in Gratz v. Bollinger, on the same day it upheld the discrimination in Grutter.  Fewer schools may be using preferences – many states have banned them, and most other schools don’t use them since they are nonselective, and the sky has not fallen there, showing they are unnecessary – but those that continue have doubled down.

Nor have things improved after Fisher I.  That case required universities to reevaluate their use of racially selective admissions policies; presumably, if the costs of racial preferences were found to outweigh the purported benefits, or if less discriminatory means could achieve similar results, the discrimination would have to stop.  Consider one obvious potential cost, much discussed in the run-up to Fisher I:  Recent empirical research provides strong evidence that racial preferences cause significant harm to the very students who are supposedly the beneficiaries of racial admission preferences.   Even if some academics continue, in the face of all this evidence, to dispute the “mismatch” effect, Fisher I should have required that universities at least consider these potential costs and determine that the benefits of racial preferences outweigh them.

There is, however, no evidence that universities have undertaken this type of introspection in the wake of Fisher I.  To the contrary: Last year, the Center for Equal Opportunity sent public records requests to twenty-two public universities seeking information detailing how the institutions had considered the costs of their racially selective admissions policies after Fisher. In particular, CEO sought to find out how the universities had considered the mismatch effect on their students. Astonishingly, half (eleven) of those institutions responded that they had zero documents responsive to the request.

The response at the remaining eleven universities was no better. Two universities sent documents that likewise confirmed that they had failed to consider the costs of mismatch at their schools. Seven of the institutions refused to honor the request – saying it failed to meet their requirements for some reason or another. One university quoted a price for searching for the documents that was too expensive for CEO – even though CEO engaged in extensive attempts to negotiate around the cost difficulty. The last request went to the University of Texas itself, which is still going back and forth with CEO on that.

In addition to CEO’s requests, state-based affiliates of the National Association of Scholars likewise asked universities for documents confirming that they had considered the costs of racial preferences, and investigated race-neutral methods of achieving the same benefits. NAS’s requests met the same fate. Not a single university responded with documents showing it had seriously considered race-neutral alternatives as Fisher requires, and not a single university responded with documents showing it had seriously considered the costs of their racially preferential admissions policies.

That’s not enough bad faith for you?  Well, how about this:  Stanford and Yale are destroying student records that would likely open them to charges of illegal racial discrimination.  See this news story in the Chronicle of Higher Education.Still not enough?  Well, consider here and here and here and here for more examples of bad faith.

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Clearly the Court must do something stronger than just warn schools — for the fourth time, after  Regents of the University of California v. Bakke and after Gratz v. Bollinger and after Fisher I – that they can weigh race and ethnicity, but just not too much.  So long as universities are allowed to weigh race, there will be an irresistible tendency to do so mechanically and with an eye toward achieving a predetermined racial mix.  That tendency is partly bureaucratic and partly because of the ideological stubbornness of whom we’re dealing with.

If, on the other hand, the Court says that weighing race is not allowed, schools will instead consider an applicant’s life circumstances and perspectives – and race may even still creep into it, but at least now it will more truly be as part of the “individualized consideration” the Court demanded in Grutter and Gratz.  So, if what a Justice wants is a very limited, nuanced consideration of race as one part of assessing the individual’s whole background – and if what he or she wants to stop is a mechanical, numbers-driven consideration of race – then the Court should tell schools to stop weighing race.  That’s the only way to get there from where we are.

Politically Correct Discrimination in Silicon Valley and in the Groves of Academe

There was an article in the Washington Post a few days ago about Silicon Valley’s “diversity problem.”  The problem is that there aren’t enough minority workers there, if you define “minority” to exclude Asians of course.  But, have no fear, companies are trying hard to remedy this deficiency by hiring more African Americans and Latinos, under pressure from the likes of Jesse Jackson and his Rainbow PUSH Coalition.

Well, actually there is something to fear here.  It is illegal to sort, hire, and promote people based on race, color, or national origin, as I testified to the U.S. Equal Employment Opportunity Commission here.  So one wonders how the companies’ efforts are consistent with the law — let alone with the moral principle that it is wrong to favor some and disfavor others on the basis of these characteristics.  No surprise, then, that the article is a little vague on exactly how race and ethnicity get weighed in actual hiring decisions.

There are two exceptions there, though.  The article says that Facebook has a couple of internship programs that are for “minority” individuals only.  If those internship positions are paid, then making them available on a racially exclusive basis is a clear violation of Title VII of the 1964 Civil Rights Act.

The other exception is Intel’s “$300 million venture fund designated for minority-led start-ups.”  Assuming that at some point a contract is entered into between Intel and the start-up, this violates 42 U.S.C. section 1981, which makes it illegal to discriminate on the basis of race in contracting.

Maybe, in addition to hiring more “minorities,” these Silicon Valley companies should also hire some more lawyers.

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James Taranto of the Wall Street Journal has a recurrent joke in his column where he asks, “Fox Butterfield, Is That You?”  The reference is to a New York Times reporter who wrote about how crime was going down, yet the number of people in prison had increased.  That is, the clueless journalist saw a contradiction in two things that were not contradictory at all — in fact, conservatives might have predicted one to follow from the other.

Mr. Butterfield came to mind this week as I read an article in the Chronicle of Higher Education, headlined, “Colleges Seek Diversity, but ‘Admissions Calculus’ Hasn’t Changed.”  The first paragraph of the article notes that a report released this week by the American Council on Education found that “Few selective colleges have changed their admissions practices since the U.S. Supreme Court’s ruling in Fisher v. University of Texas at Austin two years ago,” and “Yet many institutions … have since embraced various strategies” for increasing racial “diversity” among their students.

The article, in other words, suggests that there is something inconsistent between schools ignoring the Supreme Court’s decision of two years ago — which said that schools had to be more careful about engaging in racial admissions discrimination — and schools continuing to engage in such discrimination.  There is, of course, no inconsistency at all between the two:  Schools are adamant about wanting to discriminate, and so they ignore a Supreme Court ruling that would get in their way.

Let me note another curiosity from the executive summary of the report itself.  That summary concludes:

Institutions across the selectivity spectrum are hungry for research and guidance in the Fisher context. When presented with four areas for additional research or guidance that could be the most helpful post- Fisher, participants prioritized them this way:

  1. Research on the educational impact of campus diversity (58 percent overall; 74 percent of more selective private institutions)
  2. Research and guidance on what constitutes a “critical mass” of diverse students within their institu­tional context and how to achieve it (54 percent overall; 82 percent of more selective public institu­tions)
  3. Research on the diversity effects of admissions strategies where race-conscious admissions prac­tices are prohibited (42 percent overall; 64 percent of more selective public institutions)
  4. Methodological research and guidance on assessing the diversity effects of alternatives to race-conscious admissions (38 percent; 69 percent of more selective private institutions)

Do you get the idea from this that schools have already decided that they are going to achieve “diversity,” by hook or by crook, and that they are looking for an after-the-fact justification for this decision?  In other words, they have not reached a good-faith, objective conclusion that diversity improves educational outcomes; rather, they have decided that they want to have diversity, and they want someone else to document the existence of those improved outcomes.  Trouble is, the Supreme Court’s decision in Grutter v. Bollinger is premised on the former being true, not that someone might be able to come up with the documentation desired in the latter.

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Speaking of affirmative action, it was part of my talk to the Cleveland lawyers chapter of the Federalist Society last week.  I imagine that, with the Supreme Court’s decision to grant review again in the Fisher case — at the urging of an amicus brief that the Center for Equal Opportunity joined and helped write, by the way — I’ll be talking a lot about this topic over the next few months.  I’m looking forward to it.

Update on the Struggle against Universities’ Affirmative Discrimination

Last week, National Review Onlineposted my column on “Affirmative Discrimination in Higher Education:  Notes on the Continuing Struggle.” Here it is:

Racial and ethnic admission preferences will probably have to be pried from the cold, dead fingers of university officials, but the pressure to end this affirmative discrimination continues.

For starters, such preferences are unpopular with most Americans, and most Americans have a dog in this fight. I’ll cite just two recent polls, from somewhat surprising sources. A survey conducted last April by MTV of “millennials” aged 14 to 24 found that 90 percent “believed that everyone should be treated the same regardless of race” — and so, unsurprisingly, 88 percent opposed affirmative action. The Boston Globe in July discussed a survey that resoundingly confirms the view of Massachusetts as a very liberal state – with one notable exception. “Amid those liberal tendencies, though, was an outlier: a stark opposition to affirmative action. Just 24 percent agreed that qualified minorities should receive special preference in hiring and education, while 69 percent disagreed.”

Here’s hoping decision-makers will listen. They did in California, another blue venue: “California voters will not be asked this year to decide whether to roll back California’s ban on racial preferences in college admissions,” Assembly speaker John A. Perez announced this spring, according to the Sacramento Bee. The story notes, “The move came a week after three Asian-American state senators — who had previously supported putting the question to voters — asked Pérez to put a stop the measure.” That is, what doomed the measure was, in particular, opposition from Asian Americans.

Even among the intelligentsia, there is more and more call for schools to admit economically and socially disadvantaged students of all racial and ethnic backgrounds. Here are two thematically similar pieces appearing recently in two liberal bastions: from the New York Times, “If Affirmative Action Is Doomed, What Next?,” by David Leonhardt; and, from the Chronicle of Higher Education, “What Sotomayor Gets Wrong about Affirmative Action,” by Richard D. Kahlenberg. Both talk about income/locale-based alternatives to racial preferences in university admissions, since both believe that such preferences are dying, and both discuss two new works on the alternatives, Place Not Race, by Sheryll Cashin, and a chapter in The Future of Affirmative Action by Anthony Carnevale, Stephen J. Rose, and Jeff Strohl.

Sometimes the support given for ending racial preferences is not only unlikely but inadvertent. Janet Napolitano, now head of the University of California system, wrote a Washington Post op-ed this spring that was illogical and dishonest in predictable ways — mischaracterizing the state’s ban on racial preferences, ignoring the costs of such discrimination and overstating the benefits, etc. — but she grudgingly admitted that the “educational benefits” of “diversity” can be achieved without racial discrimination. So her complaining actually amounts to an admission that other schools in other states are required to forgo racial and ethnic discrimination, too — since the Supreme Court has made clear that they can engage in such discrimination only if there is no alternative way to achieve diversity.

Likewise, Columbia University president Lee Bollinger’s recent defense of racial preferences made clear that the principal reason he favors them is based not on the “diversity” rationale but on a remedial rationale long rejected by the Supreme Court.

And sometimes the case is made forthrightly: A particularly comprehensive critique of affirmative action in university admissions was recently published by Peter Schuck in National Affairs

Napolitano’s op-ed was prompted by the Supreme Court’s decision on April 22 in Schuette v. BAMN. There the Court upheld the constitutionality of the ballot initiative passed in 2006 by voters in Michigan to ban, among other kinds of affirmative action, the use of racial and ethnic admission preferences at its public universities. The initiative was prompted by the Court’s 2003 decision that had allowed (but of course not required) the use of such preferences at the University of Michigan.

The Schuette decision opens the door for other states to end the use of racial preferences in university admissions. The list of states that either do not use or at some point in recent years have not used such preferences is long and growing: Michigan, California, Washington, Nebraska, Arizona, Oklahoma, Florida, Texas, Georgia, Iowa, and New Hampshire. States in which bans in recent years have been actively considered include Utah, Missouri, Virginia, Ohio, and even Wisconsin.

There is a role for the national legislature, too, if only it would play it. The fiftieth anniversary of the 1964 Civil Rights Act would be a good time for Congress to clarify what the Supreme Court ignored in the Bakke case, namely that the act prohibits the use of racial preferences in admissions to federally funded universities. At a minimum, it should include in the reauthorization of the Higher Education Act a requirement that federally funded schools (i.e., all American colleges and universities except Hillsdale and Grove City) report publicly whether they use such preferences and, if so, how they meet the legal requirements put on them by the Supreme Court.

In all likelihood, however, the federal action will remain in the courts. And that brings us, of course, to the continuing saga of Fisher v. University of Texas.

In June 2013, the Supreme Court overturned a Fifth Circuit decision upholding the University of Texas’s use of racial and ethnic admission preferences, sending the case back because the lower court’s scrutiny of the discrimination had been insufficiently strict. This summer, alas, a divided Fifth Circuit panel on remand again upheld the university’s discriminatory admissions policy (here are the judges’ opinions), and a request for the full circuit to rehear the case has been filed and is now awaiting decision.

The panel’s majority opinion says that it is all right to engage in racial discrimination in order to achieve the educational benefits that purportedly accrue from having a critical mass of this or that racial group. Yet the precise nature of the “educational benefits” at the University of Texas is never defined, nor is the term “critical mass.” And how, in particular, can a court ensure that there is the “narrow tailoring” that Justice Kennedy’s 2013 opinion for the Supreme Court demanded in this case — that, specifically, there are no race-neutral ways of achieving the relevant educational benefits — when these terms are undefined? As a practical matter, it seems that the framework erected by the Supreme Court in Grutter v. Bollinger – the 2003 decision in which the Court upheld the use of racial preferences — is not working very well.

So it’s good that the legal team that is litigating the Fisher case is looking for other lawsuits to bring, and is targeting in particular Harvard, the University of Wisconsin, and the University of North Carolina–Chapel Hill.

Likewise, the Center for Individual Rights has filed a lawsuit in Connecticut on behalf of Pamela Swanigan, a graduate student in English at the University of Connecticut. The suit alleges that Ms. Swanigan was not allowed to compete for a highly prestigious merit-based scholarship despite being the top applicant the year she applied to UConn. Instead she was routed into a less prestigious and largely segregated scholarship program intended to increase “diversity” (Ms. Swanigan is biracial). As a result, she was deprived of the opportunity to compete for an academic award that would have benefited her career; what’s more, the diversity scholarship did not provide funds for off-campus dissertation work, an option that Ms. Swanigan wanted and thought she was getting.

I’m not at all convinced that there is a “compelling” interest in considering race for admissions into an English graduate program, even under the Court’s misguided precedents, let alone that the racially discriminatory award of scholarships is “narrowly tailored” to whatever that interest might be.

But here’s the fundamental question in this whole area: Just what do we expect African-American and Latino students to say to white and Asian-American students that will provide the latter with such compelling “educational benefits” that racial discrimination is justified to make it perhaps more likely that these random conversations take place? The purported existence of such conversations — which is what the “diversity” argument boils down to – is the only justification for admission preferences that the University of Texas, or any other university, is using or can use.

Any such benefits are flimsy, debatable, and marginal, while the costs are heavy, indisputable, and numerous, as I discuss here. Among those heavy costs is, for example, the mismatch effect — the presence of which is increasingly well documented, and which harms, in particular, the African-American and Latino students who are supposed to be the beneficiaries of this discrimination.

One last thing: As legally dubious as the use of racial and ethnic preferences is by universities in student admissions, they are even more indefensible in faculty hiring and promotion.

Just hire the best qualified!

This week I thought I’d share with you an exchange of emails that is typical of one part of the day-to-day work that the Center for Equal Opportunity does. 

This exchange started when one of our routine searches — conducted several times a day, every day — hit an article about a school district’s “equity plan.”  Since the plan seemed clearly to embrace hiring with an eye on race, ethnicity, and sex, this in turn prompted us to send one of our frequent emails to a local government official (here, the school superintendent), pointing out that there are laws against even “politically correct” discrimination.  We got a fairly positive response, and so we followed up with some elaboration.  We seem to have hit a nerve, and here’s hoping the school district — and its lawyers — revise the plan.

Here’s the (slightly edited and redacted) exchange:

April 28, 2015

Dear Mr. [School Superintendent] X,

We are writing with regard to this news story today [link provided]. 

We respectfully suggest that, at a minimum, you ask your lawyers to look at this “equity plan” if they have not already done so.  Recruiting and hiring with an eye on race, ethnicity, and sex violates Title VII of the 1964 Civil Rights Act, and raises constitutional problems, too, when engaged in by a government body, which of course includes public school systems.  There are some very limited exceptions, but they do not apply here.

These links discuss the legal problems, and of course there are also policy problems (it is unfair and divisive to engage in politically correct or politically incorrect discrimination, and this also results in someone other than the most qualified individual being hired, which is counterproductive):

In our view, the school system should ignore skin color, national origin, and gender and just recruit and hire the best qualified individuals.

We respectfully request that you share this email with the school board (we could not find their email addresses on your website).

Thank you very much for your attention to our concerns.


Roger Clegg
President and General Counsel
Center for Equal Opportunity

Good morning Roger,

Thank you for writing to share your concerns. One of the core components of the human resources department is to hire the best and brightest for all positions. This equity plan does not prevent us from doing that. I have forwarded your email to the board and I have forwarded your email to the human resources department to request an additional legal review.

[/s/ School Superintendent X]

Thanks very much for your fast and positive response, [School Superintendent X].  I hope you're right about the equity plan being consistent with hiring the best and brightest, and I appreciate your forwarding my concerns to the relevant folks.

I know that news stories can be inaccurate and incomplete, but we were especially concerned about the emphasis in the article on meeting various numerical goals.  Experience shows that such goals often become hard — or at least soft — quotas, and of course quotas mean that the best and brightest are not being hired.  For example, the article makes it sound like 11 percent won't do if the target is 15 percent, which sounds like a pretty firm quota.  It also sounds like a 50-50 gender target is going to be used to try to cut down the number of women, which ought to raise some eyebrows.  And here again, one of the categories is already 57-43, so insisting on 50-50 is more evidence that quotas are going to result from the plan. The case law is clear that setting numerical goals triggers antidiscrimination laws. 

Note that (as the first link we sent discusses) the law is different — and stricter in its prohibitions — for race-conscious measures involving employees than it is for students (Title VII versus Title VI).

Even with respect to students, however, we favor race-neutrality, and would note that, with respect to school discipline in particular, it is dangerous and legally problematic to set numerical racial targets.  The fact is that, for a variety of reasons, there is not uniformity among different racial groups in their disciplinary infractions, and insisting that disparities be eliminated will result in either some students not being disciplined who ought to be, or other students being disciplined who ought not to be, or both.  And if, say, African American students who ought to be disciplined are not, then the students who will suffer the most will be their classmates, who are also more likely to be African American.  The links in the excerpts from this recent article might be useful on these points, which involve both law and policy:

Misconduct rates are not the same for different races. A 2014 study in the Journal of Criminal Justice by criminologists like John Paul Wright found that racial disparities in student discipline result from more frequent misbehavior by blacks, not racism. The study, entitled “Prior Problem Behavior Accounts for the Racial Gap in School Suspensions,” concluded that higher black suspension rates are “completely accounted for” by students’ own behavior. …

Indeed, as expert James P. Scanlan notes, harsh “discipline policies tend to yield smaller racial differences in discipline rates than more lenient ones.” The “Department of Education’s own report shows that relative racial” differences in discipline rates “are larger in districts with zero tolerance policies than those without such policies,” such as Los Angeles and Denver.

[Equating disparities with discrimination] contradicts the Supreme Court’s ruling in U.S. v. Armstrong. It rejected the “presumption that people of all races commit all types of crimes” at the same rate, which is “contradicted by” reality. …

The only way to equalize suspension rates for all races would be to adopt racial quotas that curb discipline for black offenders. But an appeals court ruled in People Who Care v. Rockford Board of Education (1997) that schools cannot use racial quotas in discipline, striking down a rule that forbade a “school district to refer a higher percentage of minority students than of white students for discipline.” …

Quotas would harm, not help, African-Americans, who are often victims of black-on-black violence. As Professor Joshua Kinsler found, “in public schools with discipline problems, it hurts those innocent African American children academically to keep disruptive students in the classroom,” and “cutting out-of-school suspensions in those schools widens the black-white academic achievement gap.”

Again, many thanks for your response, and I’m happy to provide further input to you or anyone else out there who’s interested!

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A couple of nice shout-outs for the Center for Equal Opportunity this week:  Terry Eastland — one of the executive editors of The Weekly Standard — positively cited a paper opposing felon voting that I recently coauthored, and Workforce magazine published a caveat I sent them on “disparate impact” causes of action under the Pregnancy Discrimination Act (I pointed out that the Supreme Court has never resolved whether such lawsuits can be brought, and that the Justice Department — when I was there — opposed them).

Affirmative Action, Here and There and Everywhere

This recent Wall Street Journal article, “The Trouble with Diversity Initiatives,” covers a new study that identifies problems with using affirmative action in corporate hiring and promotion.  The article notes that, according to the study, companies “looking to diversify their employee ranks should brace for a potential backlash.” Rachel Feintzeig reports: 

A meta-analysis from researchers at New York University, University of Michigan and George Mason University traces the roots of stigma that can erupt in organizations that implement affirmative action policies to attract women and racial minorities. The study dug into 45 previous pieces of research to identify the mechanisms that cause these programs to go awry. . . .

Companies that have affirmative action programs – some with a government contract are required to do so – risk subjecting minorities and women to increased scrutiny from their peers, [the] research suggests.

“When you implement policies like this it signifies that certain groups need extra help,” [one of the study’s authors] said. Other employees infer that the minority and women workers aren’t competent or able to nab roles on their own.

In addition, the research found that minority workers hired at companies with affirmative action policies are seen as less warm and less likeable. That’s because the policies are seen as making minorities and women more competitive, giving them a leg up in the race for resources and jobs.

“We tend to make negative attributions about people we compete with,” [the author] said, for example assuming they’re not nice. That can lead to less positive performance reviews from superiors.

And there can be a double blow to negative performance reviews, she added. Sensing the stigma of the policies, women and minorities can become anxious. Their confidence fades and their actual performance can suffer.

I’ll just add that corporate discrimination on the basis of race, ethnicity, and sex is also illegal, as I discuss here.

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There’s a good discussion of the economic costs of one of the Obama administration’s new affirmative-action regulations for government contracting, here.

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The Chronicle of Higher Education has short summary of a much more dubious “affirmative action” study.  This one involves “an experiment in which students in the fifth through eighth grades competed for cash prizes and were paid according to their relative performance on a national mathematics examination”; students who were considered “disadvantaged” were given prizes even though they did not do as well, and the study found that this policy narrowed achievement gaps.  The abstract of the study says that the experiment “creates a microcosm of the college admissions market.”

Here’s the comment I posted:

For starters, the study does NOT really replicate higher ed admissions, because here we do not have a zero-sum game — that is, no one is disadvantaged by the advantage given to the preferred students. And it appears from the abstract that no attention is given to the costs of preferential treatment (divisiveness, resentment, stigmatization, mismatching, etc. etc. etc.); instead the focus is just on one possible benefit, namely creating more incentive for the preferred students (a benefit that has never been recognized as “compelling” by the Supreme Court, by the way). And it seems hard to believe that demanding less of the preferred students is not ultimately a bad message to send to them. Finally, in deciding which students to prefer, there’s no reason to choose based on race rather than some other, less problematic factor — like, say, economic disadvantage.

On the last point, indeed, while the Chronicle summary talks about “demographic groups,” the abstract of the summary itself does not, defining “disadvantage” instead as those “who on average have less mathematics training and practice.”

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Finally, we have an update from the Ministry of Truth:  In this discussion of how Department of Labor regulations apply to academia, it’s noted that the American Association for Affirmative Action has changed its name to the American Association for Access, Equity, and Diversity.

Incidentally, as I’ve discussed, those regulations are unconstitutional, if any university or university employee (including of course faculty members) would like to challenge them.

Jeb Bush, the Washington Post, and Affirmative Action

There was a front-page story in the Washington Post last week, headlined “Black enrollment dwindles at major Florida colleges.”  The article takes Jeb Bush to task for his claim that, as governor, he was able to abolish racial preferences in public university admissions in that state and still have a system “where there were more African American and Hispanic kinds attending” than before the preferences were ended.  Bush replaced the racial preferences with a guarantee that the top 20 percent of each graduating high-school class could go to a state university, and added other measures like more college preparatory courses and grants for first-generation college students. 

The point the article makes is that at the state’s two top schools, the University of Florida in Gainesville and Florida State University in Tallahassee, the percentage of black students has gone down.

Now, in the first place, you would expect the percentage of African Americans to go down somewhere immediately after preferential treatment for them in admissions ended.  That's what preferential treatment does:  It increases the number of those getting the preference. 

Bush was right to end the policy of racial discrimination in admissions, and no school should have such a policy.  People can argue about what other steps ought to be taken to ensure that students of all colors get the access to schools that they need and deserve, but those steps should likewise be colorblind, and their success should not be judged on whether they achieve a particular racial and ethnic mix.

But some other limitations and weaknesses in the Post article are noteworthy, too.

The article does not quarrel with Bush’s claim with respect to Latinos.  It also acknowledges that the numbers of all ethnic groups have increased, including African Americans.  So its claim is the very limited one that the “as a proportion of the overall student population, black enrollment has declined – most noticeably at UF and FSU.”  And note that even that claim has an asterisk next to it, since that decline is no surprise if the black percentage of the general population is also declining – as is likely the case, given, to quote the Post, the “booming Hispanic population, which has led to a large increase in the share of Hispanic students attending Florida colleges.”

As for the apparent reshuffling of some black students from the more selective to less selective schools:  If students are still going to college, and are simply going to schools where their admissions qualifications are on par with the other students’, it’s hard to see how that is a problem for anyone.  It’s certainly not bad for the nonblack students who are no longer being discriminated against, and it’s also not bad for the black students, who are now less likely to be “mismatched” at their school – and, thus, more likely to get good grades and to graduate. 

The Post article, by the way, includes no graduation rate numbers, which is typical of liberal reporting in this area.  The same phenomenon took place in California when racial preferences in state university admissions were eliminated there.  That is, the number of black and Hispanic students admitted to some schools went down, at least initially, but the number of black and Hispanic students who graduated from a university increased “dramatically” (page 12 of an amicus brief written by Richard Sander and Stuart Taylor).

One last statistical point:  The Post article also acknowledges that “the dwindling numbers seemed more drastic after 2010, when changes to the way the U.S. Department of Education classified race made it more likely for minorities to identify as Hispanic or ‘multiple race.’”

Much of the second half of the Post article is just a desultory discussion of how many students are voluntarily choosing to go to schools other than UF-Gainesville and Florida State, and the unhappiness of black students at those schools.  The Post also tries to suggest that the decline in the number of black students makes them less likely to be judged on their merits, because “it is not unusual for strangers to ask whether they attend the nearby community college” (huh?); and that some people still think they got into their school because of affirmative action (hardly Bush’s fault).

All this said, let me end by cautioning that I’m not a big fan of the way that Bush replaced racial admission preferences with a 20 percent plan, precisely because the latter was adopted with eye on achieving racial results, too.  But it was a big improvement compared to overt racial preferences – and the Post’s article criticizing Bush is just silly.

And it’s good news that Jeb Bush is proud of abolishing racial preferences and willing to brag about it.  It is too rare for politicians to take this stance – which is surprising, when all the evidence is that the overwhelming majority of Americans don’t like them.

Fisher Fissures

Last week, the New York Times’s Linda Greenhouse predictably praised the recent court of appeals decision upholding the University of Texas’s use of racial and ethnic preferences in admissions.  The Washington Post has now followed suit.  But as I noted in response to both: 

“The court’s analytical framework is obviously wrong: The purported educational benefits of adding racial preferences … were not demonstrated, and there was no discussion at all of the costs of such discrimination. The alleged benefits are dubious and trivial, while the costs are many, heavy, and undeniable. To give just one example of the latter: Despite all the attention lately that has been given to the well-documented problem of mismatching students and schools — setting the ‘beneficiaries’ of racial preferences up for failure — there is not a word about it in the court’s opinion.”

I also cannot let pass Ms. Greenhouse’s casual and false reference in her piece to “the world of higher education, where race is commonly — even if marginally — a factor in the overall admissions picture.” Commonly, yes — but not marginally. As studies from conservative — including, most prominently, the Center for Equal Opportunity — centrist, and liberal scholars have all confirmed, race is weighed very heavily indeed in university admissions.  

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Despite Ms. Greenhouse et al., however, those of us who oppose racial preferences in university admissions have gained some unlikely allies of late.

Here are two thematically similar pieces, both worth a read:  first, from that very same New York Times, “If Affirmative Action Is Doomed, What Next?” by David Leonhardt; and, second, from the equally left-of-center Chronicle of Higher Education, “What Sotomayor Gets Wrong about Affirmative Action” by Richard D. Kahlenberg.  Both talk about income/locale-based alternatives to racial preferences in university admissions, since both believe that such preferences are dying, and both discuss two new books on the alternatives, Place Not Race by Sheryll Cashin and The Future of Affirmative Action by Anthony Carnevale, Stephen J. Rose, and Jeff Strohl.

The Chronicle of Higher Education also recently published its annual “Special Report:  Diversity in Academe,” and  at least three pieces offered more or less direct support for getting rid of racial and ethnic preferences (of course, probably they all provide indirect support for it, one way or another).  There’s an excerpt from Sheryll Cashin’s above-mentioned new book, Place Not Race, which argues that preferences should be based on socioeconomic status rather than skin color. There is also a Latina student who doesn’t like being labeled “underprivileged” just because of her ethnicity.

And there is an article by a mixed-white-and-Asian academic who has decided he will now check the “white” box instead of the “Asian” box, because Asians in his department are no longer considered “underrepresented” and are, in fact, probably now considered to have met their quota. Now, this professor is, I suspect, not yet at the point where he will be tithing to the Center for Equal Opportunity, but the realization that some nonwhites are getting discriminated against in the name of “diversity” has certainly got him thinking.  (Silliest line in his piece:  “A white colleague remarked that no one seems to complain that we have too many white faculty members when we add to their numbers.”  Uh huh.)

One other thing:  As I’ve often noted, just because it is, alas, legal to use racial and ethnic preferences in choosing students does not mean it is legal to use racial and ethnic preferences in selecting faculty. The fact is, the applicable statutes are different, and the federal courts have never recognized (and some have rejected) the notion of a “diversity” defense for employment discrimination.

Here’s another unlikely ally:  Janet Napolitano, now head of the University of California system, is not happy with the constraints — set out by the voters of California, an approach recently upheld by the Supreme Court in Schuette v. BAMN — she must face in discriminating among student applicants on the basis of their skin color and what country their ancestors came from. Her Washington Post op-ed recently is illogical and dishonest in predictable ways — mischaracterizing the state’s ban on racial preferences; ignoring the costs of such discrimination and overstating the benefits; etc. — but she grudgingly admits that the “educational benefits” of “diversity” can be achieved without racial discrimination. So her complaining actually amounts to an admission that other schools in other states are required to forego racial and ethnic discrimination, too — since the Supreme Court’s Fisher decision last summer made clear that they can engage in such discrimination only if there is no alternative way to achieve diversity. So, Janet, even if you’re not happy, we’re happy that you wrote!

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Here’s some more antipreference ammunition, and again it’s not from where you might expect it:  “For the first time, the number of Latinos from California offered freshman admission to the University of California was larger than that for whites,” reports the Los Angeles Times, in a recent article about the latest University of California admissions figures.  But they aren’t 1-2, they are 2-3, because Asian Americans remain number one.  While some might see a historical sense in which favoring blacks over whites might be justified, what happens when most of the preferences are going to Latinos over Asians, as is increasingly the case?  Well, as always, the future is now in California — or would be if racial preferences were allowed there. 

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But let’s end with something from a more consistent ally.

Justice Scalia began his concurring opinion in Schuette v. BAMN this spring by writing that, in that case, “we confront a frighteningly bizarre question: Does the Equal Protection Clause of the Fourteenth Amendment forbid what its text plainly requires?” And he’s right that the Fourteenth Amendment and the Michigan ballot initiative at issue in Schuette each bars racial and ethnic discrimination in university admissions.

But the juxtaposition is even more “frighteningly bizarre” when we place side-by-side the text of the Michigan Civil Rights Initiative (which covers public university admissions, among other things) and Title VI of the federal 1964 Civil Rights Act (which covers public university admissions, among other things).

Here’s the language of the MCRI:  Public universities “shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin.” And here’s the language of Title VI of the 1964 CRA: “No person in the United States shall, on the ground of race, color, or national origin, be … be subjected to discrimination” by a public university.

Putting sex aside, which is admittedly odd in the university context, to say that the two prohibitions are not identical requires one to argue that you can give a “preference” to some racial/ethnic groups without “discriminating” against the other racial/ethnic groups. Well, that’s silly, although of course there is no doubt that the Left would so argue if this were all there was between it and preserving racial discrimination, I mean preference.

The reason that courts apply the Equal Protection Clause rather than Title VI these days, by the way, is that a majority of the justices held in Bakke that the two are coextensive and that the former contains some wiggle room that the plain text of the latter does not. Too bad.

Two Steps Forward, One Back

Two good items of note this week so far, and one bad. 

National Review Online (for which I am a contributing editor) has an excellent article on smashing the bamboo curtain — that is, ending anti-Asian American discrimination in university admissions — here.  It includes an amusing discussion of how “Vijay Chokal-Ingam, an Indian American who happens to be the brother of Fox comedy star Mindy Kaling, revealed that he won acceptance to medical school by claiming to be black. Frustrated at being rejected by medical schools in part because of mediocre test scores and a 3.1 grade point average, Chokal-Ingam shaved off his slick black hair in 2001, began using his middle name, ‘Jojo,’ and checked the ‘black’ box on his applications.”

And Professor Nicholas Rosenkranz has a fine post on an intriguing package deal for Congress, namely coupling immigration reform with, again, ending racial preferences (and not just in university admissions either).  Professor Rosenkranz links to a Center for Equal Opportunity study on racial preferences at the University of Wisconsin law school, here.   CEO supporters may recall that our Wisconsin study was not well-received in Madison, and a mob there overran our press conference.  

On the other hand, there is a bad article on faculty “diversity” efforts in Inside Higher Ed.  And here’s my posted response:

This is really an appalling article. There is no discussion of the fact that it is almost always illegal to hire and promote with an eye on race, ethnicity, and sex. And there is very little discussion of why the principle of nondiscrimination should be subordinated here in order to achieve a predetermined racial and ethnic and gender mix. The fact that such an article could be written, edited, and published without these fundamental issues being addressed shows how entrenched but mindless the "celebration of diversity" has become. See this link (and the articles cited in it) for more on why this is wrong and illegal.  I hope that those on university hiring committees will, as the link discusses, "push back."

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To be fair, it’s not just university faculties that seem to have forgotten that it is illegal to give preferential treatment on the basis of race, ethnicity, and sex — plenty of private companies are guilty of this, too.  Workforce Magazine’s current issue has published my reminder to them:
Executives who have read “Ceiling Is Believing” (Workforce Magazine, February 2015, p. 32) should not forget that it is illegal under Title VII of the 1964 Civil Rights Act to discriminate or give preferential treatment on the basis of sex in hiring and promoting. 

This ban applies to politically correct as well as politically incorrect discrimination.  There are only limited exceptions, and none of them applies in the circumstances discussed in the article.  Executives should simply recruit, hire, and promote the best qualified individuals, regardless of sex, and not worry about achieving a predetermined gender mix.  

Anything else is not only illegal, but unfair and divisive, and ultimately damages the company by favoring less-qualified people.

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It occurs to me that there is a common denominator in the recent controversies in Indiana/Arkansas (over gay rights and religious freedom) and Ferguson (over race and policing): The Left is so insistent on a radical egalitarianism that it will obliterate all standards that might lead to unequal outcomes for its favored groups, no matter how rooted in reason or faith.

This is disturbing if you like social standards or religious faith, especially since the Left will demagogically play the race card and the homophobe card against anyone who disagrees with it. Social standards inevitably will have a “disparate impact” on some basis or other; religion-based beliefs in right and wrong, likewise, inevitably are unaccepting of certain behaviors.

The conflict is further sharpened because the decline, among many demographics, of traditional marriage before children is the root cause of many or most social problems (and a matter of central concern to people of faith).

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I should note that I’ve made a similar point about the Left’s war on standards before, in this article (that began and ended with a tie-in to Bill Cosby’s controversial remarks a few years ago along these lines): 

There are really two principles at stake in the current debate over racial and ethnic preferences or, more broadly, civil rights, or, more broadly still, racial and ethnic relations. The first is whether we ought to encourage discrimination on the basis of race and ethnicity; the second is whether we ought to allow discrimination on the basis of merit.

Once upon a time, the Left opposed racial discrimination. It argued that it was unfair to let racial considerations trump qualifications based on merit. The principle of nondiscrimination carried the day in the 1960s, and it was enshrined into law in various statutes. But these statutes have not resulted in proportional representation for some groups, particularly African Americans, at the upper reaches of our elites. And so now, ironically, it is the Left that pushes racial preferences and denigrates merit.

There are both charitable and uncharitable ways to explain this. The charitable explanation is that the Left cares so deeply about integration that it is willing to sacrifice or bend considerations of merit. If you insist on integration, and merit stands in the way, then you must sacrifice merit. The less charitable explanation is that the Left has never been comfortable — or, perhaps, with the ascendancy of deconstructionists and other certain kinds of Leftists, it has become less comfortable — with the whole notion of merit.

As African Americans disproportionately failed to succeed, in any event, excuses were made. Once upon a time, segregation and institutionalized discrimination were serious, formidable, ubiquitous obstacles. Removing them improved blacks’ status and opportunities, but other obstacles remained, or grew, like illegitimacy, crime, substance abuse, and failing to make the most of the greater opportunities given. To attack these problems, however, was not in the Left’s repertoire; it was “blaming the victim.” It was easier to continue to blame discrimination, present and past — even if present discrimination is dramatically and undeniably less, and even if the legacy of past discrimination must be exaggerated. And the Left also started to attack merit itself.

I am using “merit” broadly to mean “standards” of all kinds. I am not saying that reasonable people cannot differ about whether high-school grades are more or less important than SAT scores in predicting academic performance in college, to give an obvious example. The Left likes to paint the opponents of preferences as wishing to make university admissions mechanically. This is not so. Choose whatever standards you like, but do so honestly and apply them equally to all. But one suspects that a significant part of the Left really doesn’t want standards, period.

They don’t like the SAT, of course, and they really don’t like the whole notion that some individuals are thought to be smarter or to work harder than others. They love making it illegal for employers and educators to use selection criteria that have a “disparate impact” on minority groups — having a high-school diploma, for instance — no matter that the criteria are neutral on their face, as applied, and as intended, and were adopted for nondiscriminatory reasons. They don’t like laws that say convicted criminals can’t vote, even those still in prison.

They love multiculturalism. The relativists favor multiculturalism because they don’t believe that one culture can be superior to another. They oppose assimilation for the same reason. Assimilation can be favored only if we believe that one culture is preferable to others and ought to be dominant.

So long as applicants meet “a minimum test score,” liberal civil-rights professor Lani Guinier is happy to have university admissions made by “what is in effect a lottery for admission among the applicants who meet the minimum standard.” Of course. This makes it statistically certain that no group will be “underrepresented” or “overrepresented,” whether that group is racial, ethnic, sexual, whatever (so long as they all apply in the right proportions). The only problem is that the less qualified are as likely to get in as the more qualified. But if you reject the whole concept of qualifications, then what does that matter?

Well, there are in fact many problems with this kind of egalitarianism. By not rewarding talent and industry, we fail to encourage them. There are, likewise, benefits to a stratified higher education system. It better ensures that each student can have the most demanded of him or her, can be given an environment most tailor-made to his or her potential. Society — as well as the individuals involved — ultimately reaps the rewards when hard work and industry are rewarded. And society will suffer if we refuse to acknowledge differences between, say, criminals and noncriminals.

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One last item:  The Department of Justice filed a statement of interest last week supporting a transgender prisoner, who alleges that the Georgia Department of Corrections failed to provide adequate care for her gender dysphoria (which is, according to Wikipedia, “the formal diagnosis used by psychologists and physicians to describe people who experience significant dysphoria (discontent) with the sex and gender they were assigned at birth”).  You can read DOJ’s press release here and the statement of interest here.

There Is No “Resegregation”

Last Saturday was the 60th anniversary of Brown v. Board of Education, and that prompted many on the Left to claim that any celebration should be tempered by a recognition that “segregation” and/or “resegregation” continues.  Below is an op-ed I wrote for USA Today that explains why these claims are specious.  Center for Equal Opportunity board member Abigail Thernstrom and her husband Stephan likewise set the record straight in their excellent Wall Street Journal op-ed here.

On May 17, we will celebrate the 60th anniversary of the Supreme Court's landmark decision in Brown v. Board of Education. And that is certainly something worth celebrating.

The only fly in the ointment is that this event will also prompt many solemn pronouncements that, alas, our schools are just as segregated as ever and/or that they are resegregating. We will be told that therefore the promise of Brown remains unfulfilled, and that this is the reason for continuing racial disparities in education.

But this is not true.

Here’s the key statistic that must always be borne in mind: The number of segregated (or resegregated) public schools in the United States in 2014 is ... zero.

Segregation means sending children to separate schools because of their race; it does not mean a failure to have socially engineered racial balance. So we can celebrate, unreservedly, the fact that we no longer have racial segregation in our public schools.

It is true that there are educational disparities across racial and ethnic lines, but racial imbalances in classrooms have little if anything to do with this. It is not necessary for there to be a certain number of white children in a classroom in order for black children to learn.

As Justice Clarence Thomas once wrote, "It never ceases to amaze me that courts are so willing to assume that anything that is predominately black must be inferior." Some intellectuals and academics, unfortunately, are even quicker than the courts to jump to this conclusion.

Indeed and ironically, the real reasons for existing racial disparities are generally left unaddressed by the same well-meaning people who complain about "resegregation."

When you think about it, a child's environment has three major components — parents, schools and peers — and in all three respects African American children, in particular, face more hurdles. That is, they are more likely to grow up in single-parent homes, go to a substandard school and have peers who are, to put it mildly, unsupportive of academic achievement.

It may be politically incorrect, but we must acknowledge that out-of-wedlock births are a bad thing and that anti-"acting white" peer pressure exists. And while liberal groups will admit that substandard schools are a problem, they will also resist (partly because of recalcitrant teacher unions) the most promising reforms — involving competition among schools, merit pay for teachers and more choice for parents and children — in favor of just throwing more money at the problem. But lack of money is not the problem, any more than lack of racial balance is.

The only way to achieve the politically correct balance that some misguidedly demand is not by ignoring students' skin color, but by using it to sort, assign and bus them. This is flatly at odds with Brown, which prohibited race-based assignments of students.

And it's not even true that there is a declining lack of racial balance. Sometimes an "Index of Exposure" has been used to bolster that claim, but this is a flawed measure, as explained by Abigail and Stephan Thernstrom in their 2003 classic No Excuses: Closing the Racial Gap in Learning. The Thernstroms conclude that "minority students are not becoming more racially isolated; white students typically attend schools that are much more racially and ethnically diverse than 30 years ago, and the modest decline in the exposure of black and Hispanic children to whites is solely due to the declining share of white children in the school age population."

There is also good reason to be skeptical, as Justice Thomas warned, of the claim that more racial-balance means better education. To quote two other leading experts in this area, David Armor and Christine Rossell, "there is not a single example in the published literature of a comprehensive racial balance plan that has improved black achievement or that has reduced the black-white achievement gap significantly."

Bottom line: Let's celebrate the anniversary of Brown. And let's forget about racial bean-counting and, instead, focus on improving our schools, regardless of their racial makeup.