Just Say NO to Racial Preferences

The New York Times must really be afraid that the Supreme Court is about to do the right thing in Fisher v. University of Texas, in which the use of racial preferences in university admissions is challenged.   It ran an op-ed two Sundays ago that discusses the pending decision and acknowledges that, despite schools’ claims that race is considered as just one among many factors, it is in fact given huge weight today. This is despite warnings from the Court already (in 1978 and 2003) that the heavy and mechanical use of race is unacceptable.

But then the op-ed seems to suggest that the Court may want to give the schools yet another chance to consider race, so long as this time it is made clear that they really, really have to try not to. That is, it suggests that the Court “leave the door open to affirmative action, but only a form that makes the explicit consideration of race a last resort. Other factors would have to come first. As it happens, there are several officially race-neutral factors that would raise no constitutional risk — and help many minority applicants.”

The trouble is that, so long as the door is left open, we know from past experience that universities will drive a truck through it. They will find a way to claim that they have no choice but to take “explicit consideration of race.” They were willing to dissemble about how heavily and mechanically race was being weighed, and they will also dissemble about the need to weigh race at all. If there are other, class-instead-of-race factors that schools will consider if they are forbidden from making “explicit consideration of race,” fine, but there is no reason to leave the forbidden possibility open to them.

Then, this past Sunday, the New York Times ran another an op-ed that tries to salvage using racial preferences in university admissions. This time, the author tries to minimize the severity of the “mismatch” problem in admissions — that is, setting up African-American and Latino students for failure by admitting them to schools where their academic qualifications are significantly below other students’, when those same black and Hispanic students might well thrive were they to go to schools where their qualifications were on par with the other students’.  Here’s the response (expanded and edited slightly) I posted on the Times’ website and published at National Review Online:

I’ll leave it to others to decide how severe the “mismatch” problem is (I think it’s quite severe). But I would make two points.

First, this op-ed begins and ends by stating that the purpose of affirmative action is remedial (“From school admissions to hiring, affirmative action policies attempt to compensate for this country’s brutal history of racial discrimination by giving some minority applicants a leg up,” and “In essence, affirmative action is about how to fairly distribute opportunity after our long history of racial discrimination”). It is true that this is the only justification that anyone actually believes, but the trouble is that the Supreme Court has rejected it, and rightly so, since race is a poor proxy for disadvantage in 2013 (how does it justify, btw, giving Latinos a preference over Asians?). There are plenty of disadvantaged whites and Asians, and plenty of advantaged blacks and Latinos (indeed 86 percent of the African Americans admitted to the more selective schools come from middle- or upper-class backgrounds, according to The Shape of the River by William Bowen & Derek Bok). Instead, the University of Texas is arguing that its use of racial preferences is justified because white and Asian students will learn so much from black and Latino students in random interracial conversations (as I said, no one really believes this).

Second, whatever the severity of the mismatch problem — and, again, I believe it’s very severe indeed — it is only one of the many costs of using racial preferences, and together they overwhelm any benefit from those random interracial conversations: 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 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.

The Center for Equal Opportunity, which has played a key role from the beginning  in the Fisher case, is looking forward to a good Supreme Court decision soon so that the Times can stop running these op-eds.

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Speaking of which, CEO research fellow Althea Nagai, the author of numerous CEO studies that document just how heavily race and ethnicity are weighed in admissions at various schools, recently made a riveting presentation of her work at the annual conference of the National Association of Scholars, a group of conservative academics.  Read about it here

And I also commented unfavorably on an op-ed in Inside Higher Ed singing the praises of affirmative action, here.

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The Washington Post last week had a special section on “Children & Families,” which included a terrific opinion piece by Ron Haskins of the Brookings Institution, with the online title, “Three simple rules poor teens should follow to join the middle class.” And the three rules are: “At least finish high school, get a full-time job and wait until age 21 to get married and have children.” Indeed, “of American adults who followed these three simple rules, only about 2 percent are in poverty and nearly 75 percent have joined the middle class.”

Most of the piece is devoted to a discussion of the third rule, which makes perfect sense since it is the one that is the most controversial, even though it shouldn’t be.  It’s also a point that the Center for Equal Opportunity has hammered over the years.   As Haskins notes, “Children in female-headed families are four or more times as likely as children from married-couple families to live in poverty. In turn, poverty is associated with a wide range of negative outcomes in children, including school dropout and out-of-wedlock births.” Haskins also points out that, while nationally out-of-wedlock birthrates are “soaring,” that is not true across the socioeconomic spectrum: “The marriage culture seems to be alive and well for those with a college degree.”

The piece ends with a discussion of Mayor Bloomberg’s campaign to inform teenagers of the consequences of teen pregnancy and the attack on that campaign by, of all organizations, Planned Parenthood. Haskins skillfully defends Bloomberg, and concludes by urging him to double down: “Bloomberg should next launch a public campaign about the value of marriage to adults, children and society. There will be at least as many critics of this message as the message that young people should avoid teen pregnancy. Good. The bigger the controversy, the more the media will cover the debate, and the more the nation will have the opportunity to reflect on what is at stake. I am confident that most Americans will conclude that organizations like Planned Parenthood have it wrong, and Bloomberg has it right.”

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Last week the Justice Department’s inspector general released a 258-page report on the Civil Rights Division’s voting section, finding a dysfunctional work environment and “a disappointing lack of professionalism by some department employees over an extended period of time, across two administrations, and across various facets of the Voting Section’s operations.”

The timing is inauspicious for the Obama administration in two respects. First, the official in charge of the Civil Rights Division is Thomas Perez, whom President Obama is expected to nominate this week for Secretary of Labor. Second, this is the same voting section that is in charge of administering Section 5 of the Voting Rights Act, the constitutionality of which is being challenged before the Supreme Court. It cannot be helpful to the administration’s position defending Section 5 that the employees in charge of applying it to the states are so unprofessional and that the section itself suffers “deep ideological polarization.”

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Finally, we have frequently discussed the important role that CEO has played in that voting-rights case currently before the Supreme Court, challenging the constitutionality of Section 5 of the Voting Rights Act.  But we should mention that I also helped write and then joined a brief in another important voting case, defending the State of Arizona’s law—passed because of widespread illegal-alien voting—requiring some evidence of U.S. citizenship when registering to vote.  Last week, I also participated in a moot court to prepare counsel for the March 18 oral argument in the Supreme Court.