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The Justice Department Is Rethinking Affirmative Action—That’s a Good Thing

A complaint against Harvard’s use of race in admissions may result in an end to this discriminatory practice.

I wrote the article below for the Weekly Standard back August, when the story first came out. Here at CEO we’ve been following the complaint. It’s taken longer than we thought it would for the Justice Department to decide whether to enter the case as a friend of the court or to file its own complaint or—the wrong course in my view—to do nothing. Yet in recent weeks issues over the government’s access to Harvard’s admissions records have been resolved. So there’s reason to think a decision out of Justice might be imminent. Harvard could be the defendant in arguably the most important affirmative action case in higher education since the Michigan pair of cases that the Supreme Court decided in 2003.

The Justice Department is pushing back against New York Times article that claimed it was preparing to investigate and sue universities over affirmative action admissions policies deemed to discriminate against applicants not of the preferred race or ethnicity.
The initial Times story was based on “an internal announcement to the civil rights division” that was leaked, and the leaker had a motivation not hard to guess—to warn civil right liberals about the project and stimulate opposition to it.

However, says the Justice Department, there is no such “project” to sue multiple universities. There is an effort to recruit volunteers “to investigate one administrative complaint filed by a coalition of 64 Asian-American associations in May 2015 that the prior administration left unresolved. The complaint alleges racial discrimination against Asian Americans in a university’s admissions policy and practices,” that university being Harvard. That the department should seek volunteers for this labor could mean that the career civil servants in the civil rights division are not keen on handling the complaint. Justice has not intervened in the case or filed a friend of the court brief—as the Times says in its story Thursday, accurately.

All of this is heartening news, for it reveals a Justice Department unwilling to ignore the racial discrimination in admissions that takes place in many elite schools, which have more applicants than seats. One benefit of the endeavor could be the advance of colorblind law, the only kind that makes sense in a multi-racial nation like ours.

It is worth noting that when race-based affirmative action in admissions was introduced, in the 1960s, its advocates vowed that it would be a temporary measure. Obviously, it has not been. Nor has the policy proved as beneficial to minorities as its sponsors have claimed. There are reasons to rethink affirmative action, and finally get it right with the law of non-discrimination.

Why Racial Preferences Remain Wrongheaded

Last week, Inside Higher Ed published my essay on racial preferences, which you can read here:

Why Racial Preferences Remain Wrongheaded

Those who defend them should consider whether they’d require them indefinitely and whether such a requirement is consistent with good race relations in the country America is becoming, argues Roger Clegg.

Last month, The New York Times reported that the U.S. Justice Department was preparing to begin “investigating and suing universities over affirmative action admissions policies deemed to discriminate against white applicants.” It turned out that what the Justice Department was really up to was investigating admissions discrimination against Asian-Americans at one university, named Harvard.

No matter. The Times story was enough to reignite the ever-smoldering debate over whether our universities should weigh, in a politically correct manner, of course, skin color and national origin in deciding who gets in. And the Times was right that the willingness of the Trump administration to consider that such discrimination might be wrong was newsworthy -- both because it upsets our university bien-pensants and because it signaled a possible break with the Obama administration’s aggressive support for race-based admissions.

The Center for Equal Opportunity, where I work, has actively opposed racial and ethnic preferences in university admissions since it began in the mid-1990s (I joined it in 1997), and I’ve worked against them even longer than that, during my time at the Justice Department in the Reagan and Bush 41 administrations. The arguments have changed a little, but only a little. (The most important changes are the increasing documentation of the “mismatch” effect and the increasing awareness that preferences now disadvantage some minority groups, notably Asian-Americans, in addition to whites.) Let’s review them.

To begin with, it has to be acknowledged that we are arguing about treating people differently -- some better, others worse -- because of skin color or what country someone’s ancestors came from. The proponents of such discrimination naturally resist having the issue framed that way, but it’s an undeniable fact. The fact that (perhaps) hard quotas are not used, or that other groups -- like children of alumni or athletes -- also receive preferences, or that factors other than race are also considered doesn’t change this.

If you consider race, it must be because sometimes it will tip the scale. (Otherwise, why consider it at all?) And the fact is that race is typically weighed quite heavily -- not as a mere tiebreaker, as innumerable studies by my organization and researchers from both sides of the aisle have shown -- so the quota/nonquota distinction is one without much of a practical difference. And the legal, moral and historical ramifications of treating people differently based on race are different from doing so on the basis of three-point jump shots.

Questionable Justifications

Well, if you are going to engage in racial discrimination, you had better have a good reason -- the U.S. Supreme Court and civil morality are agreed on this -- so what do its proponents adduce?

There are three candidates. Occasionally a prophylactic justification is claimed for racial preferences: that the only way to ensure that group X is not discriminated against is to insist on quotas or some other preference in their favor. One can imagine circumstances where this might be true -- the Supreme Court imposed hiring quotas on recalcitrant employers on this basis back in the day -- but university admissions in 2017 is not one of them. Those offices have been cheerfully and openly discriminating in favor of blacks and Latinos for some time now by weighing race and ethnicity to achieve diversity. Are we really to believe that if they weren’t allowed to discriminate in their favor, they would start discriminating against them?

The other two candidates are a broad remedial one, namely addressing institutional/historical/societal discrimination, and the claim that there are compelling educational benefits in a diverse student body and that the right kind of such diversity can be achieved only via racial and ethnic discrimination in admissions. The problem with the remedial one is that the Supreme Court has rejected it, so that legally it is a nonstarter -- and thus no college or university relies on it. The problem with the educational benefits argument is that nobody really believes it.

In saying that the broad remedial justification is a nonstarter legally, I don’t want to leave the impression that it makes any sense logically, either. We are talking, after all, about students born not into slavery or Jim Crow, but in 2000. We are talking about giving preferences to Latinos over Asian-Americans, which is supposed to remedy … what, exactly?

Sure, there are African-Americans who can claim disadvantage and may be able to trace it to historical discrimination of some sort, but the trouble is that the overwhelming majority of such students receiving preferences are really not socially and economically disadvantaged. (The classic defense of racial admission preferences, The Shape of the River by Derek Bok and William G. Bowen, acknowledged that only 14 percent of black students admitted to the selective schools that the authors studied came from backgrounds of lower socioeconomic status, and the rest came from upper- or middle-SES backgrounds.) If colleges and universities want to help those who are disadvantaged, they can do so on the basis of, well, disadvantage rather than using skin color as a proxy. Not all blacks and Latinos are disadvantaged, plus I have it on good authority that there exist in this country some whites and Asian-Americans who have parents who are not Ivy League alumni, and that some of them are not even rich.

In any event, universities are left to lean on the weak reed of the “diversity” justification, which boils down to this: University admission officials can with great confidence, by considering skin color and national origin, identify students who will, in random discussions inside and outside the classroom, provide white students and Asian-American students with insights that are “compelling” in their “educational benefit.” And, what’s more, those insights could not be attained in any way except (a) by these random discussions and (b) by university officials using racial discrimination in the admissions process to ensure that such students will be admitted to make them.

As I said, it’s hard to swallow that anyone really believes this. Whenever I debate this issue, within a few minutes we’re talking instead about slavery. And it’s always useful to put the shoe on the other foot in these debates: Suppose someone were to try to justify discriminating against blacks and Latinos based on this sort of social science -- would it be viewed as plausible, let alone “compelling”? (I will add, parenthetically, that sometimes you hear colleges and universities claim that they want a student body that reflects the population of their state. There is no legal pedigree for setting such quotas, which sound like what Justice Lewis F. Powell Jr. had in mind when he rejected such a rationale in Bakke in 1978 as “discrimination for its own sake” that is flatly forbidden by the Constitution. Such an aim would manifestly require discrimination against not only Asian-Americans but against any other group that is “overrepresented” in higher education -- Jews and now also Asian-Americans, high school graduates, nonfelons, children, senior citizens and so forth.)

Considering the Costs

But let’s suppose that you are not completely persuaded. That is, let’s suppose that you think, while the justifications for the use of racial preferences are not rock solid, there is at least something to them. Does that mean that we should continue to use them?
The answer is no, and the reason is the obvious one that, when one does a cost-benefit analysis, one has to consider not only possible benefits but also possible costs. So here’s my usual list of the costs of using racial preferences in university admissions.

  • t is personally unfair, passes over better qualified students and sets a disturbing legal, political and moral precedent in allowing racial discrimination.
  • It creates resentment and is otherwise and inevitably divisive.
  • It stigmatizes the so-called beneficiaries in the eyes of their classmates, teachers and themselves, as well as future employers, clients and patients.
  • It mismatches African-Americans and Latinos with institutions, setting them up for failure, so that not only are those discriminated against hurt but also those supposedly benefited.
  • It fosters a victim mind-set, removes the incentive for academic excellence and encourages separatism.
  • It compromises the academic mission of the university and lowers the overall academic quality of the student body.
  • It creates pressure to discriminate in grading and graduation.
  • It breeds hypocrisy within the college and encourages a scofflaw attitude among administrators.
  • It papers over the real social problem of why so many African-Americans and Latinos are academically uncompetitive.
  • It gets states and colleges involved in unsavory activities like deciding which racial and ethnic minorities will be favored and which ones not, and how much blood is needed to establish group membership -- an untenable legal regime as America becomes an increasingly multiracial and multiethnic society, and as individual Americans are themselves more and more likely to be multiracial and multiethnic.

To elaborate on just one point, because of its current salience: Telling African-Americans, in particular, that less is expected of them and, indeed, then requiring less of them is a sure way to reinforce racial stereotypes and to encourage identity politics and the self-segregation of a group that the selection process has guaranteed will be mismatched and marginalized. The unhappy consequences of this approach on a campus are, alas, all too visible. It is increasingly clear that racial preferences help no one -- and hurt everyone.

And I will add that, not only is the list of costs longer than the list of benefits, but also the costs are heavy and undeniable, while the benefits are marginal and dubious. And since renowned public higher education systems in, for example, California and Michigan are no longer allowed to use preferences and yet seem to be able to continue educating their students very well, it is increasingly difficult to assert that the use of preferences is essential at a top-notch institution.

Narrow Tailoring and Transparency

So now let’s return to where we began, with the Trump administration. One hopes that, while the administration was at pains to point out that the current initiative involves only anti-Asian-American discrimination at one university, it will be willing as well to investigate other institutions where there is evidence of illegal racial and ethnic discrimination against Asian-Americans and whites, just as it would if there were evidence of illegal discrimination against African-Americans and Latinos, or Native Americans or Arab-Americans.

The Supreme Court, after all, has emphasized repeatedly that even politically correct discrimination will be strictly scrutinized, and has set out, in particular, various “narrow tailoring” requirements that must be met. The Trump administration should make sure that those constraints are followed. There is no reason to think that colleges and universities are being very conscientious about following those rules; for example, the amicus brief we filed with Pacific Legal Foundation and others in Fisher II documents our FOIA efforts that showed the opposite.

Indeed, the Trump administration ought to take a proactive approach, and its Department of Education could and should require colleges and universities that receive federal money to report (a) whether they consider race and ethnicity in admissions and, if so, (b) the steps each has taken to ensure that the resulting discrimination is in fact narrowly tailored to a compelling interest, in the way the Supreme Court has demanded.

This is a simple transparency requirement, and it imposes no burden on colleges and universities to do anything except report what they should be doing anyway, by law. Some favor racial and ethnic discrimination in admissions -- fine, but who can defend secret and illegal racial discrimination in admissions in higher education institutions that receive the taxpayers’ money? If the Trump administration won’t enforce such a requirement, then Congress should legislate it. The resulting data would be available to both sides of the aisle as we continue to debate this important issue.

Ultimately, I would ask those who defend the use of racial and ethnic admission preferences to give some thought to whether they would require them indefinitely and whether such a requirement is really consistent with good race relations in the country America is becoming.

I am no fan of the president, although he has made some fine appointments in this area, and am under no illusions about him. I also abhor identity politics and racial politics of all kinds, politically correct and incorrect alike. I don’t like the alt-right, and I don’t like antifa and Black Lives Matter.

I suspect that the reason the Times jumped to the conclusion it did was its belief -- and the belief of the career civil-rights lawyers who leaked the relevant memo to it -- that the Trump administration saw some race card to be played in challenging anti-white discrimination.

But if that prospect is offensive, in the long run isn’t the way forward to get the government, and our institutions, out of the business of all racial discrimination? How long can we tenably tell people that, while others may not be discriminated against, it is fine for them to be? (And again, it is not just whites who are now told this but also minorities like Asian-Americans.)

In writing about Charlottesville, Va., a few weeks ago, I suggested a deal: Take down the statue there of Robert E. Lee, in exchange for an abolition of racial preferences at the University of Virginia. My tongue was only partly in cheek. The larger deal is to embrace E pluribus unum and treat all Americans without regard to skin color or what country their ancestors came from. Starting now.

More Cypress, Less Facebook

George Leef has a fine column in Forbes that discusses why it’s a bad thing if the federal government leans on corporations to have more “diversity” on their boards.  The whole discussion is excellent, but I especially liked this:

In May, 1996, Sister Doris Gormley wrote a letter to T.J. Rodgers, the founder and then-CEO of Cypress Semiconductor. She argued that Cypress ought to diversify its board by adding some women.

Replying to her, Rodgers wrote, “Choosing a Board of Directors based on race and gender is a lousy way to run a company. Cypress will never do it. Furthermore, we will never be pressured into it, because bowing to well-meaning, special-interest groups is an immoral way to run a company, given all the people it would hurt. We simply cannot allow arbitrary rules to be forced on us by organizations that lack business expertise.”

We need more companies like Cypress and fewer like Facebook — which, as I discussed a couple of weeks ago, is happy to engage in illegal “diversity” discrimination.

Thoughts on Georgetown’s Announcement – Lots of ink is being spilled on Georgetown University’s announcement last week that it will give preferential treatment in admissions (on the order of that given legacy applicants) to the descendants of slaves that Maryland Jesuits sold to Southern sugar plantations in 1838 in order to help pay off the school’s debts.  On this, a few observations.

My first reaction is to say that this makes a lot more sense than simply giving preferential treatment to all applicants of a particular skin color or national origin, as so many schools now do.  While, as I will discuss, there are serious policy problems with it, I see no legal objection. After all, this is not actually a racial preference, and most African Americans would not be eligible for Georgetown’s preference and, with intermarriage, it may even be that some of those eligible will self-identify as white.  It’s also more targeted to Georgetown’s specific wrong and its specific victims. 

But of course this preference won’t be instead of racial preferences at Georgetown: It will be in addition to them.

Second, and mark my words, it won’t take long for the other shoe to drop.  The argument will be made that all universities of that era benefited, directly or indirectly, from slavery, and that all black people suffer and continue to suffer, directly or indirectly, from slavery and/or Jim Crow and/or continuing “implicit bias” and/or microaggressions and/or on and on.  

And not just universities but individual wealth and corporations and governments and in fact the whole country was built by oppressing African Americans.  And so we should have not only across-the-board admissions and hiring and contracting racial preferences but also, ideally, reparations. After all, most of those suffering the effects of past and ongoing racial discrimination are not college applicants to Georgetown.  (You can read my testimony before Congress against reparations here.)

Third, the fit between the historical wrong and this particular remedy is not very good when you think about it.  That is, it’s pretty tough to show that there is a particular ill-effect being suffered by some slave descendant here in 2016, many generations and 178 years later, that is going to be appropriately remedied by the rather odd trinket of an admissions preference to Georgetown University.

To elaborate on this:  It’s hard to trace current circumstances, which will include both good and bad, back that far, and why is the best currency for paying any debt an admissions preference?  On this first point, there’s even the argument that maybe a particular descendant is, for whatever reason, actually better off for his ancestor having been sold off by those Maryland Jesuits — maybe the ancestor got freed sooner (Maryland was not covered by the Emancipation Proclamation), or ended up in a place where he was better off either before or after he was freed, who knows?  And, again, on the second point, why is the best currency for paying the debt an admissions preference — why shouldn’t Georgetown just write out a check to all the descendants, most of whom aren’t interested in going to school there?  Cheap grace.  (In fact, a friend points out to me that it’s even cheaper than that, since African American students already are likely to get more preferential treatment on the basis of race than they will get as quasi-legacy applicants!).

It’s all very symbolic and touchy-feely.  There’s nothing necessarily wrong with that, but it shows its limitations as a model for others to follow.  Remember also the students who are better qualified (than the descendant-applicants) who now will not get in. College admissions is very much a zero-sum game, and that cost to innocent bystanders who might be of any color — along with all the other usual costs of preferences, like mismatch — has to be weighed. 

I know I have to be careful opposing a program not because of something inherently wrong with it but in large part because it will be twisted into something that is objectionable.  But the fact is that I don’t trust the motives of those who would have us obsess over America’s sad past of slavery. 

I worry that the idea is to keep white guilt alive, the better to advance an ideological agenda that is all about permanent division and identity politics, about making race relations raw rather than any genuine interest in continuing our nation’s remarkable progress.  It is insisted that there can be no healing without acknowledgment.  But this is dishonest, because it’s obvious that that there is plenty of acknowledgment.  What is wanted is obsession and skin-colored guilt and grievance, and that doesn’t heal.  Our historical failings shouldn’t be ignored or denied, but we should be looking forward more than backwards. 

CEO Praises Justice Department

Last week was a busy one here at the Center for Equal Opportunity. After word broke in the New York Times late Tuesday that the Justice Department was planning to take on affirmative action in college admissions (a story I was quoted in), a predictable media frenzy was unleashed to cover the story. Of course, the usual suspects on the Left attacked the Trump administration and played the race card, labeling any effort to stop racial preferences in college admissions as “racist,” but the Center for Equal Opportunity was out in full force to applaud the Justice Department and educate the public on the legal and moral problems created by college and universities treating applicants differently based on their skin color or ethnicity.
We gave literally dozens of interviews on radio, TV, print media and the internet throughout the week, many of which are posted on our website ( We were quoted in both the original New York Times story and the follow up on Wednesday, as well as The Washington Post. CEO chairman Linda Chavez appeared on CNN Wednesday and CEO Executive Director Rudy Gersten’s full statement was carried by verbatim.
It’s unclear exactly what the Trump administration’s future plans are for taking on these pervasive race-based preferences in college admissions, but we have been encouraging by this development and have been urging them to do so since Day 1. And we will continue to.
Below  is our press release on the announcement.
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CEO Praises Justice Department on Affirmative Action plans 
Affirmative action in college admissions should be examined
The Center for Equal Opportunity (CEO) applauds the Justice Department for its plan to take on affirmative action  in college admissions. It is a welcome and overdue development that the administration will be taking a hard look at schools that insist on weighing skin color and national origin in deciding who gets admitted. Such discrimination is lamentable, although, unfortunately, the Supreme Court has not shut the door on it. However, the Court has made clear that the exception it has carved out for legal racial discrimination is a very narrow one. 
Unfortunately, the evidence is that many schools use racial preferences sloppily and don’t follow the constraints the Court has set out. By using race and ethnicity rather than actual social and economic disadvantage, racial preferences harm many low-income Asians as well as whites. But it also places many black and Hispanic beneficiaries at a disadvantage, too. Students admitted with lower test scores and GPAs often struggle at institutions where their preparation isn't sufficient, resulting in higher drop-out rates, lower college GPAs, and failure to graduate in a timely manner, increasing their debt. These same students might well have succeeded at schools where their grades and test scores were the same as those admitted without regard to race or ethnicity.
We welcome the scrutiny of the Justice Department and the Education Department as appropriate and necessary to root out all forms of discrimination and move toward a truly colorblind society.

A Disappointing Decision in Fisher II

The Supreme Court ruled last Thursday in Fisher v. University of Texas, upholding that school’s use of racial and ethnic preferences in undergraduate admissions.  It’s a disappointing decision, but there are a few silver linings.  I discuss all this in the essay below which Inside Higher Ed requested and published:

The U.S. Supreme Court has upheld the University of Texas’s use of racial preferences in student admissions. The vote was 4 to 3, with Justice Anthony M. Kennedy writing the majority opinion, joined by Justices Stephen G. Breyer, Ruth Bader Ginsburg and Sonia Sotomayor (Justice Elena Kagan was recused). Justice Samuel A. Alito wrote a powerful 51-page dissent, which he read from the bench.

The decision came on the unlucky 13th anniversary, to the day, of Gratz v. Bollinger and Grutter v. Bollinger. And Fisher I, by the way, came down on a June 24, with Regents of the University of California v. Bakke coming down on a June 28. Something about these higher ed racial preference cases always causes the court to struggle with them to the bitter end of the term.

Needless to say, for those of us opposed to racial discrimination in university admissions, the decision is disappointing, for all the reasons that Justice Alito explains. The discrimination that is upheld is untenable in our increasingly multiracial, multiethnic society -- indeed, a society where individual Americans are more and more likely to be multiracial and multiethnic (starting with our president), and where the victims of this politically correct discrimination are more and more likely to be members of racial and ethnic minority groups.

But the silver lining is that today’s decision is a narrow one, both in its scope and in the extent to which it allows the use of racial preferences.

As the court says, UT’s program “is sui generis” and the way the case was litigated “may limit its value for prospective guidance.” A big reason for this, of course, is the university’s use of a “top 10 percent plan,” which was not challenged. Rather surprisingly, by the way, Justice Kennedy seems to suggest that perhaps it should have been. He’s right: If a facially neutral plan is adopted for racial reasons, as quite arguably the percent plan was -- by automatically granting admission to any student graduating in the top 10 percent of their high-school class, the plan was sold to the state legislature as guaranteeing a fair proportion of black and Latino admittees -- then it is unconstitutional. Put the shoe on the other foot: What if Ole Miss had, back in the day, put its demographers to work and then refused to admit anyone living in a (heavily black) zip code?

Justice Kennedy also warns the university repeatedly in his opinion that it has an ongoing duty to minimize its use of race. And race is, the court says, only a “factor of a factor of a factor” at UT, was considered contextually, does not automatically help members of any group and could in theory help the members of any group, including whites and Asian-Americans. “The fact that race consciousness played a role in only a small portion of admissions decisions should be a hallmark of narrow tailoring ….”
Now, much of this may be quite false as a matter of what really happens at the University of Texas, but other colleges and universities are now obliged to jump through the hoops that the court says UT jumped through. They must, for example and in addition to what’s already been described, do a careful study at the outset to document why using racial preferences is essential to providing the purported educational benefits of diversity and “articulate concrete and precise goals.” Note that, at UT, the ultimate decision makers supposedly did not even know the race of the individual applicants.

More broadly, any college or university’s use of racial preferences must pass “strict scrutiny,” and any institution using preferences must bear the burden of proving that a nonracial approach would not promote its interest in the “educational benefits of diversity” about as well.

Look at it this way: barring a decision by the court that overruled Grutter v. Bollinger and said that colleges and universities may never use racial preferences because the “educational benefits of diversity” are not compelling, lots of institutions would continue to use such preferences, even if the court had left the door open only a tiny crack. If the court had said, “You can use racial preferences only if you can prove that the moon is made of green cheese,” then a number of true-believer presidents would swear on a stack of Bibles that, what do you know, our institutions have found by careful study that the moon is made of green cheese.

That’s why I had hoped that the court would, indeed, overturn Grutter. But since that has not happened, and now likely will not happen for the foreseeable future, then there is no choice but to proceed institution by institution. That’s what the law was before today’s decision, and it remains what the law is after today’s decision. And, realistically, we could not have expected it to be otherwise as we awaited Fisher II.

Sure, it would have been better if the court had given the opponents of racial preferences more ammunition than it did today, but we still have plenty of ammunition on “narrow tailoring” requirements -- for which, by the way, colleges and universities receive “no deference” -- from Bakke and Grutter and Gratz and Fisher I and now from Fisher II.

The bottom line is that the court’s decision leaves plenty of room for future challenges to racial preference policies at other institutions -- and at UT itself for that matter. It’s interesting that, in the run-up to the decision, there was much discussion among liberals that maybe indeed there are better approaches to student admissions than UT’s. Here’s hoping that those discussions continue, prodded along by lawsuits and FOIA requests to ensure that all of Justice Kennedy’s (and Justice O’Connor’s and Justice Powell’s) hoops have been jumped through.

And here’s hoping, as well, that the research continues to document the high costs of the use of racial preferences versus the paltry benefits. The latter are the “educational benefits” for white and Asian students of random observations by black and Latino students. (Yes, that’s what the justification for this discrimination boils down to, as I discuss here.)

And the costs? Just these: it is personally unfair, passes over better qualified students and sets a disturbing legal, political and moral precedent in allowing racial discrimination. It creates resentment. It stigmatizes the so-called beneficiaries in the eyes of their classmates, teachers and themselves, as well as future employers, clients and patients. It mismatches African-American and Latino students with institutions, setting them up for failure. It fosters a victim mind-set, removes the incentive for academic excellence and encourages separatism.

And more: it compromises the academic mission of the university and lowers the overall academic quality of the student body. It creates pressure to discriminate in grading and graduation. It breeds hypocrisy within the college or university and encourages a scofflaw attitude among its officials. It papers over the real social problem of why so many African-American and Latino students are academically uncompetitive. And it gets states and higher education institutions involved in unsavory activities like deciding which racial and ethnic minorities will be favored and which ones not, and how much blood is needed to establish group membership --an untenable legal regime, as I said before, as America becomes an increasingly multiracial, multiethnic society.

So the challenges to racial preferences will continue. Cases already filed against Harvard University and the University of North Carolina at Chapel Hill that had been on hold will now proceed. The struggle goes on.

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As the Center for Equal Opportunity said in its press release last week on the day of the decision:  The Fisher II decision is a narrow one, and leaves plenty of room for future challenges to racial preference policies at other schools.  Those challenges will continue, and CEO looks forward to participating in those challenges – and ensuring that the public is aware of the extent and severity of the discrimination.

Cognitive Diversity versus P.C. Diversity

We are constantly being told by the proponents of racial, ethnic, and gender preferences in business and academia that diversity results in better problem-solving, learning, and so forth. Now, there are a number of rebuttals to this justification for discrimination, but one of them has always been that, to the extent that there is truth here, it is cognitive diversity that matters rather than diversity of superficial characteristics like skin color. And it does not make sense to use skin color as a proxy for different perspectives and backgrounds.

Well, The Harvard Business Review has published an article that provides powerful support for the conservative view. Some snippets:

Received wisdom is that the more diverse the teams in terms of age, ethnicity, and gender, the more creative and productive they are likely to be. But having run the execution exercise around the world more than 100 times over the last 12 years, we have found no correlation between this type of diversity and performance.


Someone being from a different culture or of a different generation gives no clue as to how that person might process information, engage with, or respond to change.


Cognitive diversity has been defined as differences in perspective or information processing styles. It is not predicted by factors such as gender, ethnicity, or age.

Read the whole article here.

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I made a similar point, by the way, in testimony before the U.S. Equal Employment Opportunity Commission a decade ago: 

[T]he title of Scott Page’s new book The Difference: How the Power of Diversity Creates Better Groups, Firms, Schools, and Societies might lead one to believe that it proves racial and ethnic diversity is good for business, but in fact its claims are more limited than that. Indeed, much of what Professor Page has to say is similar to [my] testimony — specifically, that for many jobs diversity of any sort is irrelevant; that in any event it is what he calls “cognitive” diversity that ultimately matters, not skin-color diversity per se; and that employers should “avoid lumping by [racial] identity” and should “avoid stereotypes” (and, of course, Professor Page does not address the legal prohibition on racial discrimination, even when it is said to be justified by believed “cognitive” differences).

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Here’s my recent published response (titled, “Disciplinary quotas are absurd”) to an article in the Richmond Times-Dispatch

Disparity does not equal discrimination. But Richmond Public Schools have been labeled as racist based on that idea. The recent news story, “Richmond Public Schools target of civil rights probe,” described a discrimination complaint against RPS over the fact that black students and students with disabilities have higher-than-average suspension rates.

When a school system in North Carolina was accused of racism because most of the students it suspended were black, the federal appeals court in Richmond rejected the accusation, ruling that “disparity does not, by itself, constitute discrimination.” In its ruling in Belk v. Charlotte-Mecklenburg Board of Education (2001), the court rejected the idea that suspension rates should be equal among all groups, declaring that the notion that a school system “should have a disciplinary quota is patently absurd.”

Given the breakdown of the black family, these disparities are not surprising. As the Brookings Institution has observed, “black students are also more likely to come from family backgrounds associated with school behavior problems; for example, children ages 12–17 that come from single-parent families are at least twice as likely to be suspended as children from two-parent families.”

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The Center for Equal Opportunity has been involved for a long time in a case involving a proposed plebiscite in Guam that would exclude everyone but Chamorros (the native group indigenous to Guam) from voting.  But now a federal trial court in Guam ruled unconstitutional such a plebiscite. That’s the right decision, since such racial discrimination is banned by the 14th and 15th Amendments.

By the way, you might have thought that the U.S. Department of Justice would have played some role in vindicating the voting rights at stake here, but you would have been wrong: The Obama administration stayed conspicuously on the sidelines. Here’s hoping that if there is an appeal from or outright resistance to this court ruling the Trump administration will get in the game.

There’s now a Federalist Society teleforum/podcast on this topic, which you can listen to here (I participated at the 0:20:40–0:24:20 mark and the 0:44:25–0:47:07 mark).

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Speaking of Federalist Society telefora/podcasts, you may recall that I recently flagged another one, here, about a lawsuit claiming that there is an illegal “disparate impact” on the basis of age when companies focus there interviewing for certain jobs on college campuses.  Sheesh, I said.  Well, I raise this again because the principal speaker was Eric Dreiband, who has now been tapped to head the Justice Department’s Civil Rights Division, the most important civil-rights agency in the federal government (and where I used to work).  I know Eric from his stint as general counsel at the Equal Employment Opportunity Commission under Bush43.  

By the way, I come in on Eric’s show at the 0:42:40 mark, making the point that the time is long past due to get rid of the disparate-impact approach to civil-rights enforcement altogether — and that the executive branch can do this unilaterally with respect to many regulations, and that Congress should clarify and/or change the relevant statutes.  I hope Eric was taking notes!

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ProEnglish Announces Executive Director Position – One of the Center for Equal Opportunity’s directors is Rosalie Pedalino Porter, who is also a director for our fellow traveler, ProEnglish.  That organization is looking for a new Executive Director, and we are happy to assist in the search by posting this job description in case any of our readers is interested, or knows someone who might be interested:

ProEnglish, a 501(c) organization in Washington, D.C., that promotes laws or constitutional amendments declaring English the official language of the Unites States and of individual states, invites applicants for the position of Executive Director.  The ED makes all policy decisions, manages day-to-day operations, and is the principal public speaker for the organization.  A qualified candidate will have experience in public policy and/or government relations, research and writing skills with a record of published columns in print and on-line media.  Letters of interest, with a resume, two letters and a salary history should be addressed to with “Executive Director” as the subject line.

The Disappointing Decision in Fisher v. University of Texas


Thursday June 23, 2016   
CONTACT: Roger Clegg
(703) 442-0066

The Disappointing Decision in Fisher v. University of Texas

CEO Weighs in on SCOTUS’s Affirmative Action Decision

(Falls Church, VA)Linda Chavez, chairman of the Center for Equal Opportunity (CEO), said today:  “We are disappointed in today’s decision, which upholds the use of racial preferences in student admissions at the University of Texas.  Such discrimination is untenable in our increasingly multiracial, multiethnic society – indeed, a society where individual Americans are more and more likely to be multiracial and multiethnic, and where the victims of this politically correct discrimination are more and more likely to be members of racial and ethnic minority groups.”

Roger Clegg, president of the Center for Equal Opportunity, said: “Today’s decision is a narrow one, and leaves plenty of room for future challenges to racial preference policies at other schools.  Those challenges will continue, and the Center for Equal Opportunity looks forward to participating in those challenges – and ensuring that the public is aware of the extent and severity of the discrimination.”

The Center for Equal Opportunity has been involved in this case for years, joining and helping write multiple briefs before the Supreme Court and the court of appeals.  Those briefs emphasized the many studies that CEO has done over the years, documenting the heavy weight schools give to race and ethnicity in their admissions.  Even before the litigation began, CEO filed a complaint against the University of Texas with the U.S. Department of Education, challenging the discriminatory admissions policy that the school uses.

The Center for Equal Opportunity is a nonprofit, nonpartisan research and educational organization that studies issues relating to race and ethnicity nationwide.


7700 Leesburg Pike, Suite 231 • Falls Church, VA 22043 • (703) 442-0066 •

Diversity Myths

The Washington Post has a “Five Myths about …” series, and over the weekend Valerie Strauss focused on college admissions.  Here’s her fifth “myth”:  “Schools don’t need affirmative action to make diverse classes.” 

Ms. Strauss begins by noting that [1] some schools have rejected racial preferences — a.k.a. affirmative action — and still improved racial diversity, and that some critics have pointed out that racial preferences “are [2] unfairly discriminatory and [3] don’t help minority students” and that [4] if “diversity” were really the goal of racial preferences, “`then preferences would be given on the basis of unusual characteristics, not on the basis of race.’”

So, how does Ms. Strauss refute 1, 2, 3, and 4?  Well, as a matter of fact she doesn’t.  She doesn’t even try.  She just ignores them.

Instead, she simply asserts that racial preferences “do appear” to increase diversity, and she defines diversity to be simply the percentages of black and Hispanic students at some schools and how close they come to their percentages “in the general population.”  In other words, she says that if you give an admissions preference to people of a particular race, you will admit more of them.  Wow, that’s amazing.

She concludes with a paragraph that bemoans, “Today, affirmative action has lost much judicial support” and that public support is “mixed” (actually public support is much less than judicial support, but never mind).  She’s unhappy that under Supreme Court precedent schools are stuck with the “diversity” justification for racial preferences; she’d apparently prefer a compensatory rationale — a dubious one under any circumstances (since, for example, the overwhelming majority of blacks admitted to more selective schools are not from poor backgrounds), and especially now that Latinos outnumber African Americans among groups getting preferential treatment and that those losing out now are more and more likely to be Asian Americans.  Ms. Strauss must think that for hundreds of years in this country Asian Americans owned Latino slaves.

And here’s Ms. Strauss’s last sentence:  “Meanwhile, most minority groups remain underrepresented on college and university campuses, even though most students enrolled at the country’s K-12 public schools are minorities.”  The “most minority groups” phrasing is to acknowledge that Asian Americans and Arab Americans, for example, are not underrepresented, which is why they are now discriminated against.  And the reason that some groups are “underrepresented” on college campuses is not because of slavery, but because of the sad state of our public schools (the solutions for which are more likely to be conservative than liberal), the belief that studying hard is “acting white” (or, worse, acting Asian), and especially the fact that some groups have many more children growing up in single-parent families (which is, unsurprisingly, correlated with not doing well in school).

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I should stress that Ms. Strauss’s aim of “making diverse classes” is a misguided one in any event.  The aim should be to admit the best qualified students, regardless of race or ethnicity.  The notion that there are “educational benefits” from racial and ethnic diversity is unpersuasive.

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?

The purported existence of such conversations — which is what the “diversity” justification boils down to — is, as Ms. Strauss concedes, the only justification for admission preferences that schools can now use.  So we need to think carefully about what these conversations might be.  Now, I am going to discuss why I think it is hard to imagine anything that will fit the bill, but those who disagree ought to spell out what oral observations they think do fit the bill.  Fair enough?

For starters, I say “oral” because they really ought not to be something that could just as easily be read, since then the observations might simply be assigned as class reading.  It would be better if the lessons were not simply about equality or tolerance or treating other people as human beings, if it is likely that such straightforward lessons have already been learned (at home or grade school or church or on Sesame Street) or can be learned elsewhere (say, at work).   And the observations should really be about something that only black and Latino students are likely to know.

So it can’t be an observation about growing up poor, because there are poor people of all colors; and, again, the overwhelming majority of, say, African Americans who are admitted to our more selective schools — that is, the ones likely to weigh race and ethnicity — are from middle- or upper-class backgrounds (eighty-six percent, according to the race-preference bible, The Shape of the River).

It can’t be an observation about growing up as a slave, or under Jim Crow, or during the Civil Rights Era — because the eighteen-year-old students getting these preferences in 2017 were born in, let’s see, 1999, thirty-five years after the passage of the 1964 Civil Rights Act.  True, these students may have faced other discrimination — but then, so may have Asian American students and Middle Eastern students (and, for that matter, the European-American students who’ve recently applied to college).   

If it’s not socioeconomic disadvantage or history, then perhaps there is a particular African-American perspective on calculus, or a Latino perspective on economics.  I mean, to be compelling it must have something to do with something weightier — less stereotypical — than food or rap music.  No?

Well, there must be something that middle-class eighteen-year-old African Americans and Latinos can tell eighteen-year-old whites and Asians that they are incapable of thinking of or reading about on their own.  Perhaps whites and Asians have never heard of racial profiling or the Trayvon Martin case, for example.

Whether the lesson schools are trying to teach is that African Americans have a particular point of view or, rather contradictorily, that African Americans don’t have a particular point of view — both are urged with equal vigor, even though the former relies on stereotyping and the latter seems rather obvious in a country that includes Condoleezza Rice and Whoopi Goldberg, Ben Carson and Barack Obama — it is odd that schools use racial essentialism in admissions and expect students to use it when listening to someone.  At least, it is odd if students are being taught not to judge other people by their skin color.

What’s more, schools have to have faith not only that these observations can be made, but that they will be made.  That is, they can’t know for sure what observations (if any) a black or Latino student might make in class; it is even harder to predict what observations that student will make outside of class.  So they have to have faith that those observations will be offered — and that a lot of counterproductive statements won’t be offered — as well as that the benefits from them being offered will justify something as ugly as racial discrimination.

Perhaps it’s not so much what the student says as it is how he or she says it.  That is, what schools are really hoping that whites and Asians will learn from “diversity” is that African Americans and Latinos are just as smart as they are (by the way, is there any evidence that, in a country whose laws and popular culture systematically condemn racial bigotry, this is a widespread problem?).  Of course, if it is of compelling importance that this point get made, it would be foolish to create a campus where the white and Asian students are systematically required to have better academic qualifications than the black and Latino students — which is exactly what schools are doing, of course.

Now, how compelling do these “educational benefits” have to be?  At a minimum, they have to be compelling enough to outweigh the costs of using racial preferences.  In fact, they must significantly outweigh those costs, since if something does as much harm as good, or even just a little more good than harm, the benefits can hardly be compelling.

So here’s a list of the costs of using racial preferences in university admissions: It is personally unfair, passes over better qualified students, and sets a disturbing legal, political, and moral precedent in allowing racial discrimination; it creates resentment; it stigmatizes the so-called beneficiaries in the eyes of their classmates, teachers, and themselves, as well as future employers, clients, and patients; it mismatches African Americans and Latinos with institutions, setting them up for failure; it fosters a victim mindset, removes the incentive for academic excellence, and encourages separatism; it compromises the academic mission of the university and lowers the overall academic quality of the student body; it creates pressure to discriminate in grading and graduation; it breeds hypocrisy within the school and encourages a scofflaw attitude among college officials; it papers over the real social problem of why so many African Americans and Latinos are academically uncompetitive; and it gets states and schools involved in unsavory activities like deciding which racial and ethnic minorities will be favored and which ones not, and how much blood is needed to establish group membership — an untenable legal regime as America becomes an increasingly multiracial, multiethnic society and as individual Americans are themselves more and more likely to be multiracial and multiethnic.

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“Justice-Involved’ Individuals” – The Trump administration’s Department of Labor headlines a press release last week with that “euphemism of the decade” used by the Obama administration. Come on — don’t elections have consequences?

Obama Disavows Diversity Hiring (Sort Of)

President Obama spoke at the University of Chicago law school last week about his nomination of Merrick Garland — a white male (tsk, tsk) — to the Supreme Court.  At one point, he was asked about “diversity” in this context, and the answer he gave is interesting (search for the word “diversity” to find the relevant question and answer). 

The president professed not to make judicial appointment decisions on the basis of race, ethnicity, or sex, instead insisting only on a process that ensures that all the best candidates are identified and looked at.  He said the same thing for other kinds of recruiting, hiring, and promotion, too.

What’s interesting is that this is an answer that honors the principle of colorblindness.  There’s no argument in it about favoring some to correct past discrimination, or about weighing race, ethnicity, and sex to ensure a “diversity” of outlooks. 

Now, to be sure, the president talks out of both sides of his mouth, because in the same answer he brags about the fact that he has set records for appointing racial and ethnic minorities, that “it’s important that our courts are reflective of a changing society,” and so forth.  But, again, he is professing that his decisions were made on a colorblind basis, and that no one got appointed on account of his or her skin color or what country his or her ancestors came from.

Hypocrisy is the tribute that vice pays to virtue.  It is significant that even this president is unwilling to challenge the principle that colorblindness is a virtue and that race-based decisionmaking is a vice. Too bad that this principle is violated on a daily basis by the rest of his administration.

Housing Segregation at the University of Connecticut – Center for Equal Opportunity ally Michael Meyers is taking the University of Connecticut to task for its plan to encourage racial segregation in dorm-room assignments there (as has CEO itself). 

A Happy GVR Thought -- There are a pair of promising petitions for review before the Supreme Court, both involving racial preferences and both likely to be taken up by the Court at conference soon. 

The first, Shea v. Kerry, challenges racial preferences in employment at the State Department. The second, Dunnet Bay Construction Co. v. Blankenhorn, challenges racial preferences in government contracting. Review in the latter is important because of, among other things, conflicts in the way the courts of appeals have handled similar cases.  Review in the former is likewise important because the Court’s two pro-employment-preference decisions are dated, dubious, and in tension with later Court rulings — and because such politically correct discrimination is nonetheless commonplace. 
So both cases are worthy, but it will take five votes to overturn the pro-preference decisions below. With Justice Scalia’s death, that is less likely unless and until someone with something close to his judicial philosophy is appointed as the ninth justice. And that’s likely a year away.
But here’s a thought: The Court will be ruling at some point in the next few months, for a second time, in Fisher v. University of Texas – Austin. In that decision, the justices are likely to say something of interest about the right way to approach racial preference cases generally (indeed, the briefing in Shea and Dunnet Bay discusses Fisher I). So perhaps the Court plans to hold the two pending cases until after it has issued its decision in Fisher II, and then send both cases back to their respective courts of appeals — “grant, vacate, and remand” in light of Fisher II, to use the Court’s parlance — for them to reconsider in light of what will likely be an important new precedent.

That would keep these two worthy cases alive, and also avoid the futility of having them briefed and argued at a time when, realistically, all that will likely result is an inconclusive 4-4 affirmance.

By the way, the Center for Equal Opportunity helped write and joined amicus briefs in both cases.

The Nanny State, Literally -- It might have a dubious record of success with ISIS, the economy, and any number of other issues, but the Obama administration is going to save us from gender-biased toys, thank heavens. 

Simple Question Re: Evenwel v. Abbott -- By a vote of 8–0 last week in Evenwel v. Abbott, the Supreme Court ruled that Texas is permitted to use total population numbers in its districting, rather than having to use voter population instead.  This was disappointing to many Republicans, since the former tends to favor urban areas (which are generally more likely to vote Democratic).   But what I want to do here is not to comment on the rightness or wrongness of that ruling, but to ask whether — had the shoe been on the other foot — there is any matter in which the Court’s Democrat-appointed justices would have voted against their party’s interests?

The answer, of course, is no — and that’s why, if we are to have any hope of pretending to be a country that follows the rule of law, we have to hope that the next justice is appointed by a president who understands the rule of law, too.