Center for Equal Opportunity

The nation’s only conservative think tank devoted to issues of race and ethnicity.

Tue07282015

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Minority Access to Higher Education

Last week I testified before the U.S. Commission on Civil Rights at their two-day event on minority access to higher education.  The Commission, which is now dominated 6-2 by liberals, deserves credit for inviting me, since I certainly did not tell the Commissioners what most of them wanted to hear.  Below is a summary of my statement; I’ve deleted the numerous legal and social-science citations, but you can read the full statement here.

Introduction.  Thank you very much, Mr. Chairman, for the opportunity to testify today. My name is Roger Clegg, and I am president and general counsel of the Center for Equal Opportunity, a nonprofit research and educational organization that is based in Falls Church, Virginia. Our chairman is Linda Chavez, and our principal focus is on public policy issues that involve race and ethnicity, such as civil rights, bilingual education, and immigration and assimilation.  We do a great deal of work in the field of higher education and, in particular, with regard to the use of racial preferences there.   Much of our work is posted on our website, www.ceousa.org.

Overview.  The invitation I received said this briefing would be “examining the possible civil rights impact that access to and completion of higher education has on minority socio-economic mobility.”

Reading that, and the rest of the invitation letter, suggested to me that many people may reason:  (a) You really need a college education these days to succeed, and at as prestigious a school as possible; (b) a disproportionate number of minorities are not admitted to the top schools or don’t go to college at all; and (c) therefore, we need laws and programs that target minorities for help in getting into college, especially the top schools.

Now, I am not going to dispute that having a college diploma can be a good thing, and a college diploma from a more prestigious school can be an even better thing, and so if people of any color are missing opportunities here then that can be a concern.  Nonetheless, there are some significant caveats here and, in my testimony today, I will raise them. 

My principal message is that it is a mistake to look at this area mainly through a racial lens in 2015.  The problems are not really about race, and the solutions will not be either.  If people are not going to the colleges they ought to, this is a problem regardless of the skin color of the people involved.

Here are my specific caveats.

First, you don’t have to have a college education to succeed in life, let alone a diploma from a top college.  In any event, not everyone should go to college, let alone a top college.  I don’t think that many would disagree with this in principle, though there are strong differences in opinion about the extent to which these points are true. 

And, indeed, there is a considerable literature on the issue of to what extent everyone should go to college and how much difference it makes what college you go to.

Second, “minorities” are not fungible. 

It is foolish to think that the issues here are the same for African Americans as for Asian Americans, or for Arab Americans as they are for American Indians.  And Latinos present different issues, too, and of course there are many different kinds of Latinos — Puerto Ricans, Cuban Americans, those with other Caribbean or Central or South America ancestry, Mexican Americans — and indeed there are also many different kinds of African Americans and Asian Americans and Arab Americans and American Indians.

To make only the most obvious points:  It is much more likely that Asian Americans are discriminated against in Ivy League admissions than that African Americans or Latinos are.  (There are pending complaints – one filed in federal court, and one filed with the Justice and Education Departments – against Harvard for anti-Asian American discrimination in undergraduate admissions, and those complaints include impressive documentation.)  Conversely, whatever you think of giving racial preferences to “underrepresented minorities” (typically blacks, Latinos, and Native Americans), no one can deny that it is aggressively practiced by many selective schools. 

And, as discussed in more detail below, there are differences among minority groups in terms of culture generally and family structure in particular — and those differences have a significant impact on educational outcomes.

One last point here: Just as “minorities” are not fungible, neither are “nonminorities” (i.e., non-Hispanic whites).  There are white groups and subgroups, and many difference in wealth, culture — you name it — among them and within them.

As I said at the outset, it is not a good idea to look at higher education issues through a racial lens and to use skin color as a proxy for the characteristics that are really relevant.

Third, if some students are not going to college who should be, or are not going to more selective colleges who should be, then programs — especially government-run or government-funded programs — that help identify them and then help them to go to college should do so without regard to race or ethnicity.   Diamonds in the rough come in all colors.

This nondiscrimination principle is true not only as a matter of fairness, but also as a matter of law, including constitutional law.   As the Commission may be aware, the Center for Equal Opportunity has written a great deal over the years about why politically correct racial and ethnic discrimination is wrong as a matter of policy and law, and I will not belabor that point in my written statement, though of course I’m happy to discuss it at greater length in our question-and-answer period.

Fourth, the reason for the disproportions among different racial and ethnic groups and subgroups here in 2015 is likely not present discrimination or even principally rooted in past discrimination.  Certainly there are many causes apart from racial discrimination.  Consider, for example, the fact that Asian Americans and Latinos have each been discriminated against in our history, but the educational outcomes in 2015 for the two groups are quite different — and, as noted earlier, there are many subgroups within each group, which in turn also have different educational outcomes.

To the contrary, there is much preferential treatment today that overtly favors underrepresented minorities in higher education (and often discriminates against Asian Americans) as studies by the Center for Equal Opportunity and others have documented.  Educators, both public and private, are the most politically correct people in the world.  And politically incorrect discrimination in just about any public transaction, and this includes education, has been illegal for decades.  That’s not to say it doesn’t exist, but it does mean that its explanatory value is greatly diminished for individuals who were, after all, born late in the Clinton administration — not in slavery or the Jim Crow era.

Consider:  The only academic requirement to be able to get into a college somewhere today is a high school diploma.  But, as this recent article discusses, there are real racial disparities in meeting even this requirement:

The question of why black men are often less competitive for jobs leads back to problems in school. Even among those without college degrees, on average black men have weaker academic skills than white men. Forty-three percent of black 17-year-olds were reading below basic proficiency in 2012, compared to only 19% of white 17-year-olds. These academic deficiencies translate into lower high-school graduation rates: 59% of black men graduate while 80% of white men do. In New York City, only 28% of black males complete high school on time; in Philadelphia, only 24% do. And black graduates, on average, have lower skill levels than white graduates.

If there are disparities in high-school graduation rates, then it will be hard to avoid disparities in college attendance rates.  Perhaps some of the former disparities can be blamed on racist teachers and racist school systems, but it is hard to imagine that in 2015 most of them can be.

Fifth, the principal reasons for the disproportions are, instead, cultural and thus not really a matter of “civil rights.”  In particular, some groups have higher out-of-wedlock birthrates than others, and as it happens these same groups also frequently put less of a premium on educational success than other groups. 

According to the most recent government statistics that I could find, 71.5 percent of African Americans are born out of wedlock, along with 66.4 percent of American Indians/Alaska Natives and 53.2 percent of Hispanics; versus 29.3 percent of non-Hispanic whites and only 17.0 percent of Asian/Pacific Islander Americans. 

Those are enormous disparities among the different racial and ethnic groups, and whether or not your parents are married when you are born makes an enormous difference in likely social outcomes, including educational outcomes.  It would actually be surprising if there were no racial disparities in education, given these marked racial disparities in out-of-wedlock birthrates and the high correlation between all kinds of social outcomes, including educational outcomes, and growing up in a home without a father. 

This truth is now recognized on both left and right

Frequently liberals have blamed social problems on “root causes” like poverty; well, there is more poverty among African Americans, so it should come as no surprise to liberals that there are more social challenges here, too.  And the disparities come as no surprise to conservatives either, though they blame both social problems like dropping out of school and illegitimacy on a common cultural “tangle of pathology,” to use Daniel Patrick Moynihan’s (another liberal’s) phrase.

There is also the problem confronting many African American children that academic success is derided by their peers as “Acting White” (a book by Stuart Buck with that title documents this unfortunate phenomenon).  Michael Barone’s book The New Americans documents the emphasis placed on educational excellence by Asian Americans (see pages 265-68).  He contrasts this with the experience of African Americans (pages 85-89) and Latinos (pages 169-74).

I am strongly in favor of addressing these cultural problems — but, again, it should not be done in a racially discriminatory way.  Out-of-wedlock birthrates, for example, have been climbing for non-Hispanic whites, too, with all the predictable and sad consequences.  There are plenty of non-Hispanic whites who fail to recognize the value of education for their children and could learn from other Americans, many of them racial or ethnic minorities, about that value.  I have pointed in my testimony today to aggregate data about different racial and ethnic groups, but only to show that the reasons for educational disparities are not about skin color or national origin per se, but instead about cultural habits.  And those cultural habits can be shared or rejected by individuals regardless of race or ethnicity.

Conclusion.  Thank you very much, Mr. Chairman.  I’m happy to try to answer any questions that the Commission might have.

The Court Should Grant Review (Again) in the Fisher Case

Earlier this year, the lawyers for Abigail Fisher asked the Supreme Court to grant review — again — of her lawsuit challenging the University of Texas’s use of racial and ethnic preferences in its admissions. The Court will consider whether to grant Fisher’s request at its conference on Thursday this week (May 21 — though I caution that sometimes the Court doesn’t decide immediately on what it will do). 

The Center for Equal Opportunity has joined and helped write a brief filed by Pacific Legal Foundation that highlights CEO’s work in this area and that urges the Court to grant review.  CEO has also discussed how Congress could act in this area.  Last week I wrote about all this (along with one of PLF’s lawyers) in a column that was posted on National Review Online:

Given that universities continue to ignore the constraints on the use of racial preferences laid out by the Court’s 2013 opinion in the same case, the justices should grant Fisher’s request for review. Congress could help here, as well.

The Court’s earlier decision wasn’t everything that opponents of racial preferences hoped for, but it was a step in the right direction. It reversed an appellate court that had given broad discretion to universities to use racial preferences in admissions. The justices’ near-unanimous decision explained that such discrimination would be tolerated only if it was truly “necessary” to attain the “educational benefits” of a racially diverse student body.

Accordingly, Fisher v. University of Texas required universities to reevaluate their use of racially selective admissions policies. 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.

In particular, 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. Academic “mismatch” begins when universities lower their academic standards to admit a more racially diverse student population. The result is a significant gap in academic qualifications between some (typically black and Latino) and other (typically white and Asian) students. This, in turn, leads to the former having significantly worse grades, higher dropout rates, and less rigorous majors, along with other significant costs. Even if some academics dispute the mismatch effect, Fisher should require that universities at least consider these 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.

To the contrary: Last year, the Center for Equal Opportunity (CEO) sent public records requests to 22 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, and it and CEO are still going back and forth on that.

In addition to CEO’s requests, state-based affiliates of the National Association of Scholars (NAS) 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 they had seriously considered race-neutral alternatives as Fisher requires, and not a single university responded with documents showing they had seriously considered the costs of their racially preferential admissions policies.

Accordingly, the Supreme Court should grant review again in Fisher, and try again to write an opinion that universities will take seriously. Perhaps this time the Court will conclude that it is futile to expect schools to do anything other than try to drive a truck through a door it has left ajar. The Court should shut that door — by holding that there is no compelling interest in the use of racially discriminatory admissions in the first place.

Meanwhile, Congress could act.

When Congress passed the 1964 Civil Rights Act, Title VI provided: “No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.”

Alas, this crystal-clear prohibition has been ignored by the Supreme Court, which has allowed racially discriminatory admissions.

But as long as racial preferences are allowed, Congress could at least require universities that receive federal funding to report annually whether they engage in such discrimination, and to provide evidence to show that any racial preferences they do use don’t exceed the limits imposed by the Court’s decisions.

Some insist that universities should continue to practice racial discrimination in admissions, but who can defend it being done secretly and without providing some rudimentary evidence of how it meets with the Supreme Court’s requirements? The U.S. Commission on Civil Rights has endorsed such legislation, and Representative Steve King (R., Iowa) introduced a bill nearly a decade ago along precisely these lines.

As Justice Louis Brandeis said, sunshine is “the best of disinfectants.”

If Congress were to act now, it would be interesting to hear any senator or representative — or anyone running for president, for that matter — try to explain his or her support for secret, illegal racial preferences. It would be even more interesting to hear President Obama’s justification if he vetoed such a bill.

Our Amicus Brief in Fisher v. University of Texas

This week the Center for Equal Opportunity joined in the filing of the friend-of-the-court brief it helped write in Fisher v. University of Texas.  In this brief, we ask the full U.S. Court of Appeals for the Fifth Circuit to reconsider what we believe to be an erroneous decision by a three-judge panel last month, upholding the University’s use of racial and ethnic admission preferences. 

As our supporters know, this is a case in which the Center for Equal Opportunity has been deeply involved from the beginning.  I thought that we would devote most of my email this week to a condensed version of what we just filed (court rules limited the length to seven pages anyway); in particular, the opening and closing sections and most legal citations have been omitted.

A. The Educational Benefits that Flow From the University’s Race-Conscious Admissions Plan Are Highly Dubious

There is ample reason to doubt whether the evidence relied upon by the [Supreme] Court for its finding a compelling interest in the educational benefits flowing from diverse student body can apply to the University’s invocation of racial preferences here. In the years since that opinion, new research has been published that significantly questions the benefits that accrue from a diverse student body. See, e.g., Roger Clegg, Attacking “Diversity”: A Review of Peter Wood’s Diversity: The Invention of a Concept (collecting studies that the social science evidence purporting to tout diversity’s educational benefits was and is seriously flawed). 

But even assuming the continued validity of the research underlying the educational benefits of the a diverse student body at the University of Michigan law school in 2003, those educational benefits of considering race cannot be assumed to be the same for all disciplines at all places at all times.

There are many reasons to find that the University [of Texas]’s use of race differs from [the University of Michigan law school’s]. [T]he reason racial preferences are being used here is not related to the University’s inability to attain a critical mass through race-neutral means. To the contrary, racial preferences are needed here because the Top Ten Percent Plan (Plan) admits “too many” lower-class black and Latino students.  Are the incremental benefits of preferring some upper-class minority students really necessary to secure the educational benefits of a diverse student body? The panel never answers that question, but instead incorrectly assumes that this marginal increase in racial/economic diversity is “indistinguishable” from the interest recognized in [the University of Michigan law school case].

It is quite true that one cannot assume that all African Americans and all Latinos think alike or have the same backgrounds. There is nothing intrinsic in racial categories that assures a commonality of experience.  But individual differences are precisely the reason that all stereotyping, preference, and discrimination based on race should be rejected—it is not a reason to overlay racial preferences on top of an already racially diverse student body.

And there is no reason to think that the educational benefits that result are so clear and overwhelming that it is “necessary” for the University to discriminate against student applicants.

B. Any Benefits that Flow from the University’s Race-Conscious Admissions Plan Must Be Weighed Against the Costs

Because the [Supreme Court in the Fisher case] explained that a narrow tailoring inquiry requires that universities prove racial preferences are necessary to secure the educational benefits of a diverse student body, it follows a fortiori that those benefits must outweigh the costs. And the costs of racial preferences are inherent, undeniable, and well-known. [Quoting a recent Supreme Court opinion]: “If the need for the racial classifications . . . is unclear, . . . the costs are undeniable.” Government imposed racial classifications tear at the very fabric of our society, dehumanize us as individuals, and significantly hamper the very students they are designed to protect.

The costs of racial preferences are many and widely recognized by the courts. The specific costs added in the higher education context must be weighed. Due to space limitations, [we] will only discuss one of those costs—mismatching individuals and institutions.

“Mismatch” has been widely discussed in recent years, see Richard H. Sander & Stuart Taylor Jr., Mismatch (2012)—yet remarkably was not mentioned at all in the panel’s opinion.  Many studies reveal that racial preferences in college admissions result in an “academic mismatch” that leads to lower grades and higher drop-out rates among minority students.

Academic mismatch begins when elite universities lower their academic standards to admit a more racially diverse student population. Schools one or two academic tiers below must do likewise, since the minority students who might have attended those lower ranking universities based on their own academic record are instead attending the elite colleges. The result is a significant gap in academic credentials between minority and nonminority students at all levels.

Even supporters of racial preferences have had to acknowledge that students who attend schools where their academic credentials are substantially below those of their fellow students will tend to perform poorly. [Quoting from one well-known defense of racial preferences]:  “College grades [for students admitted based on race] present a . . . sobering picture,” and “The grades earned by African-American students . . . often reflect their struggles to succeed academically in highly competitive academic settings.” These struggles tend to result in shifting majors as minority students find the coursework too advanced given their skill level (“African American students at elite schools are significantly less likely to persist with an interest in academia than are their counterparts at nonelite schools.”). The lower an African American student’s academic credentials are relative to the average student at his undergraduate college or university, the lower his grades are likely to be and the less likely he is to graduate.  

Racial preferences in college admissions impose significant costs on minority students. No matter where academic mismatch occurs, lower grades lead to lower levels of academic self-confidence, which in turn increases the likelihood that minority students will lose interest in continuing their education and drop out.

The panel decision failed to consider the costs of racial preference—including mismatch—when determining that the University’s admissions policy was narrowly tailored ….

*          *          *

One other item:  I noted a couple of months ago a bad (indeed, unconstitutional) idea being floated by the Obama administration, namely the creation of a government-to-government relationship between the United States and Native Hawaiians.  Now four U.S. Senators – Jeff Flake (R-AZ), Lamar Alexander (R-TN), Tom Coburn (R-OK), and Mike Lee (R-UT) – have written an excellent letter to the administration criticizing the proposal, which you can read here.

The administration is attempting an end-run of Congress here (sound familiar?), which has repeatedly refused to go down the road of making Native Hawaiians into some sort of Indian tribe — and rightly so. The Supreme Court has made clear that Native Hawaiians are an ethnic group — and they are, conversely, not a political entity — so that singling them out for special treatment is unconstitutional, as well as divisive and unfair. The Bush administration and the U.S. Commission on Civil Rights said so, too, but apparently the Obama administration is committed to playing the race card, whenever and wherever possible.

Talking about Affirmative Action with Law Students

Last week, I accepted some warm invitations from the Federalist Society chapters at law schools in the chilly Midwest to speak at Indiana University, Notre Dame, and the University of Michigan about Fisher v. University of Texas, the case before the Supreme Court challenging the use of racial preferences in university admissions.  Here’s a somewhat shortened version of what I said (you can read a longer version here).

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Racial Discrimination Found in University of Oklahoma Admissions

UPDATE (10/24/12) - CEO Responds to University of Oklahoma Statement

(Oklahoma City, OK)  A study released today by the Center for Equal Opportunity found evidence of racial discrimination in law, undergraduate, and medical school admissions at the University of Oklahoma.  Highlights from the study are attached.

The study, which analyzes data obtained from the University itself, found that African Americans were admitted to all three schools with lower academic qualifications than students from other racial and ethnic groups.  There was some evidence of preferential treatment for American Indian applicants as well.

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Top Ten Reasons to Oppose Race Preferences in University Admissions

John Rosenberg, editor of the excellent “Discriminations.us” blogsite, and I have published an article that catalogues ten strong reasons for opposing racial and ethnic preferences in university admissions—making the case that the “diversity” rationale for such discrimination is full of holes.  The article is forthcoming in the Fall issue of Academic Questions, the journal of the National Association of Scholars, and it’s already available online here and on the NAS website, here.

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CEO Praises Supreme Court’s Decision to Hear Fisher v. University of Texas

(Falls Church, VA) The Center for Equal Opportunity praised the Supreme Court’s decision today to grant review in Fisher v. University of Texas, a case challenging the use of racial and ethnic preferences by the university in undergraduate admissions.

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Racial Preferences in Wisconsin

The campus at the University of Wisconsin-Madison erupted this week after the release of two studies documenting the heavy use of race in deciding which students to admit to the undergraduate and law schools. The evidence of discrimination is undeniable, and the reaction by critics was undeniably dishonest and thuggish.

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