Center for Equal Opportunity

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CEO Releases New Studies Documenting Racial and Ethnic Preferences in U of A and ASU Admissions

The study is based on data supplied by the universities themselves. The study was prepared by Dr. Althea Nagai, a resident fellow at CEO, and can be viewed on the organization’s website, www.ceousa.org . The executive summaries of the studies are attached.

CEO chairman Linda Chavez said: “Racial discrimination in university admissions is always appalling. But the degree of discrimination we have found here, at both schools but especially at Arizona State, is off the charts.” She noted that the odds ratio favoring African Americans over whites was 250 to 1 at the University of Arizona and 1115 to 1 at Arizona State. “As a result, nearly a thousand white students during the years we studied were denied admission even though they had higher undergraduate GPAs and LSATs than the average African American student who was admitted--and over a hundred Asian and Latino students were in the same boat with them.”

CEO president Roger Clegg agreed, and stressed that, not only was race weighed, but it was weighed much more heavily that residency status. “For instance, a white Arizonan in 2007 was about eight times less likely to be admitted to the University of Arizona than a black out-of-state applicant, and at Arizona State he would be twelve times less likely to be admitted.”

CEO also analyzed undergraduate and medical school admissions at the University of Arizona, but found less statistical evidence of discrimination there, based on the data provided by the university pursuant to an information request filed by CEO and the Arizona Association of Scholars (AAS also joined CEO in its request for data from the University of Arizona law school). 

Arizona State University

 College of Law

University of Arizona

 College of Law

   


The Center for Equal Opportunity is a nonprofit research and educational organization that studies issues related to civil rights, bilingual education, and immigration and assimilation nationwide.

We’re Watching You, College Officials

The Pope Center for Higher Education Policy asked me to write about my recent appearance at a conference in Washington, D.C., at which I warned college officials that the Center for Equal Opportunity was watching their use of racial and ethnic preferences in admissions.  Here’s the essay that I sent the Pope Center and that it published (there’s also a link here):

The Gallup Organization and Inside Higher Ed co-hosted a conference in Washington on September 15. They called it “Not Out of the Woods: Colleges, Diversity and Affirmative Action after a Year of Protest and Court Battles.” Most of those in attendance were university officials of one kind or another.
I was the sole participant who takes a negative view of racial preferences in college admissions, which I regard as both legally defective and educationally damaging, among other pernicious defects.

Two subjects were up for discussion: the legal environment for racial preferences in college admissions following the Supreme Court’s recent decisions in Fisher v. University of Texas and a Gallup poll showing low levels of approval for racial preferences among the public. I spoke mainly on the former, but as to the latter, Ashley Thorne of the National Association of Scholars observed in this essay that “Educators and student affairs administrators found the survey results mysterious but chalked them up to white privilege, bias, and ignorance.”

I was introduced by Scott Jaschik of Inside Higher Ed who explained that my organization (the Center for Equal Opportunity) opposes racial preferences and then added, “For those of you who think you’re safe, Roger is watching you.” He’s right.

In my presentation, I argued that, following Fisher, college officials have three options.

First, they can choose not to use racial preferences at all.

Second, if they do consider a student’s race in admission decisions, they can do so in ways that are narrowly tailored to some legitimate objective (not merely to fill an arbitrary quota), showing that they have first tried race-neutral options. That is, they can follow the legal constraints that have been put on using racial preferences.

Third, they can use racial preferences illegally. But schools that appear to do that will be scrutinized, hit with Freedom of Information Act requests, and possibly sued.

I went on to explain why colleges should drop racial preferences: They are not only legally problematic but widely unpopular with the public, as the poll showed; using race as a proxy for disadvantage is unjust and inaccurate; and schools that don’t use preferences avoid a host of problems including stigmatization, resentment, mismatch, and the encouragement of an unhealthy obsession with race.

My arguments were not greeted with wild applause. As Ashley Thorne (who stayed for the entire event, which I could not) wrote in her essay, “The room seemed tense after Clegg spoke, but his fellow panelists and the audience basically ignored the substance of his remarks and did not refer to him again the rest of the day. After that panel, the atmosphere settled into one of complacency and the assumption that everyone agreed that racial diversity has educational benefits.”

An excellent example of that complacency was this statement by one of the members of my panel, Art Coleman(managing partner and co-founder of the Education Counsel):“Forget the law.” If you want to do the “educationally right thing,” he declared, you should figure that out first, then the law. The University of Texas, Coleman stated, had told the Supreme Court “what the law should be.”

I agreed with Coleman that it is important to keep in mind that none of the Court’s decisions on racial preferences in university admission—Bakke, Gratz, Grutter, and Fisher I and II—has reversed any of the other decisions. And those decisions, while unfortunately keeping the door open for racial preferences, have also put constraints on their use. Schools must, the Court has held, document that the use of such preferences is the only way to achieve the “educational benefits” of a “diverse” student body.

And despite Coleman’s rather inartful suggestion that schools “forget the law,” he himself has actually made clear over the years that they should not do so, and has himself described the hoops that need to be, and should be, jumped through. Colleges that don’t comply with the law risk lawsuits.

I corrected Mr. Coleman’s suggestion that all of the justices accept the purported “educational benefits” of “diversity” as being a “compelling” enough interest to justify racial discrimination.  There’s certainly no reason to think that the Chief Justice, let alone Justice Alito and Justice Thomas, accept the claim that diversity produces any educational benefits, much less ones so substantial as to justify discrimination against American students who are not classified as being in a “diverse” group.

I also disputed Coleman’s suggestion that treating people without regard to skin color somehow deprives them of their “dignity.” I think it’s the other way around.

Morality aside, the problem with breaking the law here is that schools will be caught.

My organization, the Center for Equal Opportunity, has filed many, many FOIA requests with universities over the years, and that’s not going to change. We will ask for all documents related to the various hoops that schools are supposed to jump through: for example, the studies that Justice Kennedy wants done, the consideration of race-neutral alternatives, the periodic review of racially preferential measures, and so forth.

Schools that respond that they have no such records are admitting that they have not done what the law requires of them. They cannot blissfully engage in racial preferences without a paper trail, no matter how much officials may believe that they’re “doing the right thing.”

Trustees and alumni should take note of this. No matter how sympathetic one is to political correctness, it is irresponsible for a school to break the law and set itself up for a ruinous lawsuit.

Which brings us back to my message for college officials: You are being watched.

Destroying Records to Hide Race Discrimination

Stanford and Yale are destroying student records that would likely open them to charges of illegal racial discrimination.  See this news story in the Chronicle of Higher Education. 

This ought to be a very big deal. And note this:  “Students for Fair Admissions, an advocacy group that has filed lawsuits challenging the race-conscious admissions policies of Harvard University and the University of North Carolina at Chapel Hill, on Thursday sent Yale and several other Ivy League institutions letters warning that they put themselves at legal risk if they destroy such records.”

*          *          *

Maryland’s medical marijuana commission will be required by statute to “seek to achieve racial, ethnic, and geographic diversity when licensing medical marijuana growers,” to encourage “applicants who qualify as a minority business enterprise,” and to “seek to achieve racial, ethnic, and geographic diversity when licensing dispensaries.”

Now, the usual justification for race-based decision-making is remedying past discrimination in a particular industry or agency, but it’s hard to see how that would apply here, since the marijuana business — at least, the legal marijuana business — is quite new in Maryland. So it must be that pot grown and dispensed by African Americans is somehow different from that grown and dispensed by white Marylanders. Who knew?

*          *          *

Well, so much for sports uniting us:  The Washington Post reports, “ESPN 980 began developing a morning program built around [Jason] Reid and Chris Paul . . . The idea: a local sports-talk show hosted by two white personalities and aimed at white men . . . ”  

Just kidding!  Of course, the show was to be hosted by “two African American personalities” and was to be “aimed at African American men.”  That’s fine, whereas the former would have been illegal and racist.

*          *          *

John McWhorter casts a skeptical eye here on the “white privilege” fad, and rightly so.

My take: It is, for starters, a divisive phrase, much more likely to hurt race relations than help them, as it lumps together all white people – many of whom cannot be considered “privileged” by any reasonable standard – and points an accusatory finger at them, asserting, “You don’t deserve what you have.” It is, at bottom, just another way of complaining about stereotyping, even though all racial groups – indeed, all groups, period – face stereotyping, some negative and some positive, and there’s nothing new or remarkable about it. It overstates the extent to which stereotyping occurs and the consequences it has. And, finally, playing this particular race card suggests that racial disparities — and, indeed, racial stereotyping — are due solely to racism simpliciter, and have nothing to do with culture and, in particular, cultural dysfunctions.

It is, in other words, the “conversation on race” that we have come to expect from the left: All whites must accept blame for all disparities of any kind, and any suggestion that some nonwhites have failed to act responsibly is blaming the victim.

*          *          *

Finally, the Federalist Society recently posted an interesting podcast, involving the 2008 financial crisis. The conventional narrative is that this crisis was caused by Wall Street’s actions and insufficient regulation of the financial system. But a competing narrative is that, in fact, the crisis was caused not by bad actors on Wall Street, but by government housing policies. In the podcast, Peter Wallison marshals evidence in support of this view, which is also the thesis of his recently-released book, Hidden in Plain Sight: What Really Caused the World’s Worst Financial Crisis and Why It Could Happen Again.

And what does all this have to do with the Center for Equal Opportunity?  Well, those “government housing policies” were largely race-driven — that is, the feds brought pressure to bear on lenders to “get their numbers right” and make more loans to certain people because of their skin color or national origin.  You can read the related testimony I gave to Congress here in the wake of the crisis. 

During the podcast, you can hear me read in this part of that testimony, to get Mr. Wallison’s reaction:

By the way, if there was an uptick in subprime lending in the recent past, it may have come about because lenders were being pressured by government and quasigovernment agencies to make more loans to individuals with marginal creditworthiness. The response of the lenders might have been, “Fine, but if we have to make these loans, we will have to charge higher interest rates to make them economically feasible.” Thus, the same people who are lamenting “predatory lending” may have caused it by pushing for more loans to members of this or that racial, ethnic, or income group.

Mr. Wallison agreed.  Another bad government policy, driven by race, with disastrous consequences.  Here’s how I concluded my testimony:

It seems to me, Mr. Chairman, that the last thing the government should do is encourage lenders to worry about anything other than creditworthiness in making loans. …. Ramping up the use of disparate-impact civil-rights enforcement, and any other kind of pressure on lenders to make sure that they get their racial and ethnic numbers right, is a bad idea.  … [O]ur fair housing laws should and do make it illegal for lenders to treat people differently on the basis of race or ethnicity, and that is how they should be enforced. As a matter of law, legal policy, and economics, those laws should not be used to coerce lenders into arriving at politically correct statistical results.

Racial Preferences in Higher Education

A couple of months ago, the Supreme Court handed down its disappointing decision in Fisher v. University of Texas, and race and higher education continue to be in the news.  This past week has seen controversy over student housing ads expressing a preference of “people of color” and separate student sections in courses for minority students, and there’s been a call this week for “diversity” to be graded in school rankings by U.S. News & World Report — all bad ideas, in my humble opinion, and each showing in its own way why politically correct racial discrimination should not be part of higher education, despite the Supreme Court’s pronouncement.

Here’s what I wrote about the Fisher decision at the time in Minding the Campus.  I thought it was important to make the point that, while the decision was disappointing, the fight is not over.

The Supreme Court today upheld the University of Texas’s use of racial preferences in student admissions.  The vote was 4-3, with Justice Kennedy writing the majority opinion, joined by Justices Breyer, Ginsburg, and Sotomayor (Justice Kagan was recused).  Justice Alito wrote a powerful, 51-page dissent, which he read from the bench.

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.  But the silver lining is that today’s decision is a narrow one.

As the Court says, UT’s program “is sui generis” and the way the case was litigated “may limit its value for prospective guidance.”

Justice Kennedy also warns the university repeatedly in his opinion that it has an ongoing duty to minimize its use of race.  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.

Now, much of this may be quite false as a matter of what really happens at the University of Texas, but other schools are now obliged to jump through the hoops that the Court says UT jumped through.

So look at it this way:  Barring a decision by the Court that overruled Grutter v. Bollinger and said that schools may never use racial preferences because the “educational benefits of diversity” are not compelling, lots of schools 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 the school can prove XYZ,” then every Ivy League president would swear that, what do you know, we have found XYZ.”  And it doesn’t matter what XYZ is.

That’s what the law was before today’s decision, and it remains what the law is after today’s decision.  Sure, it would have been better if the Court had given the opponents of racial preferences more ammunition than it did today to attack those XYZ claims, but we still have plenty of ammunition from the Court’s earlier decisions.

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

So the challenges to racial preferences will continue; cases already filed against Harvard and the University of North Carolina–Chapel Hill that had been on hold will now proceed.  And the Supreme Court has also made clear that states are free to act on their own to ban racial preferences, through ballot initiatives or legislation.  The struggle goes on.

I had a similar take on National Review Online here.  You can listen to me talk about the case on this Federalist Society teleforum; I also was interviewed on a Chinese-American radio station, and I was quoted in the New York Times, Washington Post, and elsewhere.

*          *          *

And just before the decision, Columbia president Lee Bollinger had an essay in the New York Times favoring racial preferences, which I responded to in National Review Online

[Bollinger’s essay] makes three points, which can be briefly stated and refuted: 

  • As the book Mismatch and others have documented, while the number of African Americans and Latinos admitted to a couple of California universities may have gone down in the wake of banning racial preferences there, the number of students who have graduated in the University of California system has gone up dramatically.
  • Exposure to different viewpoints can be an educational positive, but it doesn’t justify something as ugly as racial discrimination, with all its costs, and in all events there is no reason to use race as a proxy for having a different viewpoint. 
  • As for using racial discrimination to achieve racial balancing, this is nothing more than the “discrimination for its own sake” that Justice Powell explicitly rejected decades ago in his Bakke opinion.

*          *          *

Finally, I should note that, no surprise, Justice Kennedy’s lame opinion did nothing to persuade the overwhelming majority of Americans that racial discrimination in university admissions is a bad idea. 

In the wake of the Supreme Court’s Fisher decision, a poll of the public by Gallup, with questions drafted with Inside Higher Ed, finds that the general public disagrees with the Court and college leaders. Nearly two-thirds (65 percent) of those surveyed by Gallup between June 29 and July 2, 2016, said they disagreed with the decision. The ruling was backed by 31 percent, and 4 percent had no opinion.

You can read IHE’s article here, which gives details on how deep and wide the public’s disapproval is. Note also that the article has a sidebar about a September 15 conference (I’ve agreed to be a panelist at the latter). 

I’m quoted at the end of the IHE article:

Roger Clegg, president and general counsel of the Center for Equal Opportunity, which opposes the consideration of race in admissions, said he was not surprised or alarmed by the poll results. “Americans have been brought up to believe that it’s a bad thing to treat people differently because of their skin color or where their ancestors came from,” he said. “None of this is surprising.”

Clegg said that public colleges and universities that feel secure in considering race in admissions should also remember that voters or legislators can pass laws that bar them from doing so. And in fact, that has happened. In 2003, the U.S. Supreme Court upheld the right (in some circumstances) of the University of Michigan to consider race in admissions. In 2006, the state’s voters barred public universities in the state from considering race in admissions–and that ban stands.

Asked about greater public support for considering athletic ability or alumni status than race in admissions decisions, Clegg acknowledged that the motivations of colleges for wanting to favor athletes or alumni children were not “the noblest” of all college motivations.
But he said that he agreed with the public that it’s better to consider those factors than race. “Discriminating against people on the basis of skin color is uniquely ugly, and I am not surprised and not bothered by the fact that more Americans should be offended by that than because applicants can throw a football well.

*           *           *

As I said, the fight will go on against racial preferences in higher education.

Affirmative Action Watch

Your Anti-Discrimination Hotline

In most instances, the use of preferences on the basis of race or ethnicity in education, employment, or government contracting violates federal law. This is true even in cases of "affirmative action" and "diversity" programs.

The Center for Equal Opportunity is interested in hearing about such discrimination. In many instances, we may be able to do something about it. This is especially true when the discrimination is openly stated--as is often the case, believe it or not. CEO will not serve as your attorney, but in many cases we will contact the alleged discriminator, and in other cases we may be able to help you find a lawyer.

Please reference the adjacent program types and fill the form linked to below to tell CEO about discrimination that you have witnessed.

Type A Programs

Select this if the discrimination you have witnessed is advertised or described as being open only to some racial or ethnic groups, or where it is advertised that members of certain racial or ethnic groups are preferred.

    Examples:
  • Minority job fairs
  • Minority-only or nonminority-only scholarships or financial aid
  • Minority-only summer programs or internships
  • Private or government (municipal, state, or federal) contract set-asides
  • On-the-job training or mentoring programs open only to members of certain racial or ethnic groups.

TYPE B PROGRAMS

Select this if the discrimination you have witnessed comes about because of a desire to reach a predetermined racial or ethnic quota or goal. Describe the statement or announcement of the quota or goal, and a brief description of the discrimination that resulted from it.

TYPE C PROGRAMS

Select this if the discrimination you have witnessed involves racial preferences or quotas that you can describe but cannot be documented by a paper trail. Describe as specifically as possible the use of racial preferences or quotas that you have witnessed.

REPORT THE DISCRIMINATION YOU WITNESSED

Trump Talking Points for Fisher

As we await the Supreme Court’s decision in Fisher v. University of Texas–Austin, challenging the school’s use of preferences for African Americans and Latinos in admissions, I was thinking about what I would like to hear Donald Trump say when asked about the opinion (I know what Hillary Clinton will say).  Normally, I would hope that the Republican nominee, at least, would be supportive of the expected Court decision rejecting or at least limiting such preferences, but it’s more complicated with Mr. Trump. 

The trouble is that, if he said the right thing, then the response of the Left, the media, and others would be, “Well, there you go.  We always said that those opposing affirmative action are bigots, and sure enough, Donald Trump — whom we all know to be a bigot — opposes affirmative action.”  Not helpful.

So here’s a response from Mr. Trump that would better advance the ball:  “The Court’s decision is a yuuuuuuuuuge disappointment.  I think it’s very important for schools to be able to get the Mexican perspective in classroom discussions, as well as of course the perspective of the blacks.  There’s a time and a place for everything.  I mean, I don’t want the Mexican perspective when it comes to the lawsuit against Trump University, so I don’t want a Mexican judge there.  But it’s different in the classroom.  So, sure, schools should be able to admit the right number of the Mexicans and the blacks to get their perspective, since they think about things differently.  And on this I’m sure that Hillary and I agree.” 

And then the press could ask Secretary Clinton whether in fact she agreed with Mr. Trump on this and, if not, then exactly what her disagreement was.

Diversity without Discrimination – And speaking of the Fisher case, there’s an interesting article in the College Fix here, headlined, “Texas A&M sees 114% growth in diversity without affirmative action, it admits students based on merit.”  This is in contradistinction to the Aggies’ rival, the tea-sips at the University of Texas, whose use of racial preferences in admissions has, as noted above, been challenged in a case that that the Supreme Court will decide any day now. 

The principal argument made by the plaintiff in Fisher is that UT has had and can have plenty of diversity without discrimination; the College Fix article seems to say the same thing.  Go Aggies!  Gig the ‘Horns!

Meet That Quota! – Last week the Office for Civil Rights in the Obama administration’s Education Department sent out a “Dear Colleague” letter on “gender equity” in career and technical education. The accompanying press release ties this in with the White House’s “United State of Women” summit, which immediately raises eyebrows: Why is this “significant guidance” regarding, supposedly, complying with the law being timed to coincide with a political event? 

Oh, well. As you might expect, the principal bogeyman here is not having enough females in auto repair programs and not enough males in nursing programs — that sort of thing. It’s made clear that mere equal opportunity is not enough if there aren’t equal results accompanying it, and that you better get your numbers right.

Some examples: States must “meet negotiated targets for participation and completion rates of males and females in programs that are nontraditional for their sex“; “Despite efforts to increase enrollment of male and female students in fields that are non-traditional for their sex, disparities persist in certain fields”; and so let’s “tak[e] proactive steps to expand participation of students in fields where one sex is underrepresented.”

There are also a couple of warnings about “implicit bias” and “ambient bias.”

One way to ensure that the numbers come out right is to take the beloved (to the Obama administration) “disparate impact” approach to civil-rights enforcement. Even though the language of Title IX prohibits only actual “disparate treatment” on the basis of sex, the educrats and their rules and regulations look askance at any policy that has a disproportionate effect. It doesn’t matter if the policy is nondiscriminatorily written, intended, and applied.

Thus: “Recipients also may not use any test or criterion for admission to a school or degree program that has a disproportionately adverse effect on individuals of one sex unless certain criteria are met” — i.e., “A school may use such a test or criterion for admission [only] if it is shown to predict validly success in the education program or activity in question and alternative tests or criteria that do not have such a disproportionately adverse effect are shown to be unavailable” (emphasis added).

Here’s a specific example the letter helpfully gives: “A community college requires students who wish to enroll in its construction management program to have taken classes in construction technology in high school. Few female students are enrolled in the college’s construction management program. Each year a number of female students who express interest in the program are not able to enroll because they did not take classes in construction technology in high school. [OCR will] prohibit schools from using admissions criteria that have a disproportionate adverse effect on students of one sex unless the criteria are validated as essential to participate in the program and are shown to predict success in the program.”

Gotta meet those quotas, interest and qualifications be damned.   

*          *          *

A recent Washington Postcolumn complained about racial disparities and preschool suspensions.   It relied on an article by a couple of professors (Skiba and Williams) but, the suggestion of that article to the contrary notwithstanding, there is plenty of evidence that at least part of the reason “black students are suspended at higher rates [is] because their behavior is worse.”   See this article from the Journal of Criminal Justice.  And see also this discussion, by an attorney who used to work at the Education Department’s Office for Civil Rights.

Note that the Journal of Criminal Justice article addresses a number of earlier articles by Skiba.  Conversely, the Skiba & Williams article did not cite the JCL article, though to be fair it’s not clear which one first appeared (since both were 2014 articles).  

After bringing all this to the Post columnist’s attention, I urged him in the future to reach out to experts with a different view.  I told him that I’m open to the possibility that school discipline policies can be improved (conservatives have been among the critics of zero-tolerance policies, for example), including for preschoolers, but we shouldn’t be so quick to play the race card.

We’ll see.

*          *          *

In the wake of the Orlando mass shooting, and the fact that the killer was America-born but obviously not America-loyal, I thought I would repost my top-ten list of what we should expect from those who want to become Americans — and those who are already Americans.  It’s a list, then, of what assimilation means:  We don’t all have to eat the same foods and listen to the same music, but we do have to have some common values if our multiracial, multiethnic, multifaith society is to work.

The list was first published in a National Review Online column, and it is fleshed out in Congressional testimony:

1. Don’t disparage anyone else’s race or ethnicity.
2. Respect women.
3. Learn to speak English.
4. Be polite.
5. Don’t break the law.
6. Don’t have children out of wedlock.
7. Don’t demand anything because of your race or ethnicity.
8. Don’t view working and studying hard as “acting white.”
9. Don’t hold historical grudges.
10. Be proud of being an American.

Keeping an Eye on College Admission Officers

Ashley Thorne, executive director of the National Association of Scholars, recently posted an essay on Minding the Campus (“Dismissing the Reality of Affirmative Action”) that was both kind and accurate regarding the word of the Center for Equal Opportunity.

The Gallup Organization and Inside Higher Ed co-hosted a conference in Washington on September 15, “Not out of the Woods:  Colleges, Diversity and Affirmative Action after a Year of Protest and Court Battles.”  Most of those in attendance were university officials of one kind or another. 

Ms. Thorne, who attended the whole conference (I did not), said those officials were

determined to ignore the results of a Gallup survey for IHE showing that nearly two-thirds of Americans oppose affirmative action in college admissions. About 75 to 100 attendees, mostly college administrators, focused on reaction to the Supreme Court decision last June 23rd— Fisher v. University of Texas at Austin – in which the court upheld racial preferences. Educators and student affairs administrators found the survey results mysterious but chalked them up to white privilege, bias, and ignorance.

She continued:

Only one person on the conference program represented the opinion of the public to this audience. That was Roger Clegg, president of the Center for Equal Opportunity, who spoke in the opening session on the court’s decision. Inside Higher Ed editor Scott Jaschik introduced him saying, “For those who think you’re safe, Roger’s watching you.”

I’m grateful to Mr. Jaschik for inviting me, even if I was the only one on my side of the aisle there, and I could not have asked for a better encapsulation of the message I wanted to send those attending:  You’re being watched.
Ms. Thorne then summarized what I had to say — which I will do, too, in a moment — and concluded:

[Mr. Clegg] said his organization will bring FOIA requests and lawsuits against colleges that use racial preferences without jumping through all the necessary hoops.

The room seemed tense after Clegg spoke, but his fellow panelists and the audience basically ignored the substance of his remarks and did not refer to him again the rest of the day. After that panel, the atmosphere settled into one of complacency and the assumption that everyone agreed that racial diversity has educational benefits.

Even during his panel, another speaker, Art Coleman (Managing Partner and Co-Founder, Education Counsel) said, “Forget the law.” He said if you want to do the “educationally right thing,” you should figure that out first, then the law. The University of Texas, he said, had told the Supreme Court what the law should be.

All accurate, as I said.

More on What I Said

On my panel were, in addition to Art Coleman, Art Rodriguez (dean of admission and financial aid at Vassar College), and Harold Levy of the Jack Kent Cooke Foundation.

I began by agreeing with Art Coleman that it is important to keep in mind that none of the Court’s decisions on the use of racial preferences in university admissions — Bakke, Gratz, Grutter, and Fisher I and II — has reversed any of the other decisions.

And those decisions, while unfortunately keeping the door open for racial preferences, have also put constraints on their use.   In a word, schools must document that the use of such preferences is the only way to achieve the “educational benefits” of a “diverse” student body.  I had elaborated on those constraints for IHE here (Fisher II), as I had earlier for the Chronicle of Higher Education here (Fisher I).

And despite Mr. Coleman’s rather inartful suggestion that schools “Forget the law,” he’s actually made clear over the years that they should not do so, and has himself described the hoops that need to be, and should be, jumped through.  He’s not the only left-of-center person to recognize this reality; Mark Yudof and Rachel Moran made the same point, post–Fisher II, in the Chronicle of Higher Education.

I corrected Mr. Coleman’s suggestion that all of the justices accept the purported “educational benefits” of “diversity” as being a “compelling” enough interest to justify racial discrimination.  There’s certainly no reason to think that the Chief Justice, let alone Justice Alito, let alone Justice Thomas, would be unwilling to overturn Grutter.

I also corrected Mr. Coleman’s suggestion that treating people without regard to skin color somehow deprives them of their “dignity,” to use Justice Kennedy’s word of the moment, which Mr. Coleman had quoted.

And then, as Ms. Thorne notes, I structured the rest of my remarks around the three choices that schools now have in the wake of Fisher II with regard to the way they use admission preferences on the basis of race and ethnicity.

The first and best choice is simply to end the use of racial preferences.  This is not a complete pipe dream:  Most schools, indeed, do not use preferences, if for no reason other than the fact that they are not terribly selective.  One hopes that some schools, whose use of preferences in only marginal, might be persuaded to take the pledge and adopt colorblind admissions.  Consider, after all, the strong pros for that approach, and the strong cons against continued discrimination; Ms. Thorne summarized what I said this way:

  1. Not factoring race into admissions is what most people favor, as the Gallup poll showed.
  2. There are no legal problems with not using racial preferences.
  3. It is fairer. Poverty and privilege come in all colors. Using skin color as a proxy for disadvantage is unjust.
  4. It avoids the costs of discrimination, including stigmatization, resentment, mismatch, and encouragement of an unhealthy obsession with race that spills over into protests. 

The second choice schools might adopt is to continue to use racial and ethnic admission preferences, but to do so in a way that is legal — that is, that jumps through the hoops that the Supreme Court has set out.  On this point, I noted that the courts might be headed to requiring extensive documentation of the necessity for using racial preferences before they can be used, analogous to the “disparity studies” now required prior to using such preferences in government contracting.  Professor George La Noue, of the University of Maryland/Baltimore County, is an expert on the latter and has made this point; I also noted that these studies can be expensive and must be frequently updated.

The third choice available to schools is, I noted, the worst choice but the one that many would, alas, make:  To use racial preferences illegally.

Morality aside, the problem with breaking the law here is that you’ll be caught.  Our organization, the Center for Equal Opportunity, has filed many, many FOIA requests with universities over the years, and that’s not going to change.  We will ask for all documents related to the various hoops that schools are supposed to jump through:  for example, the studies mentioned above that Justice Kennedy wants done, the consideration of race-neutral alternatives, the periodic review of racially preferential measures, and so forth.  Schools that respond that they have no such records are admitting that they have not jumped through those hoops; you cannot do all this without a paper trail.

And they’ll be sued. CEO will turn over this information to a litigating organization, or to Edward Blum’s lawyers, or at least to friendly members in a state legislature, and the fun will begin.

Brisk Business Likely

Initial indications are that we’ll have plenty of business.  Inside Higher Ed had a story recently on its latest survey of college and university admission directors, and it contains much of interest.

For example, “in a potentially notable finding, a significant minority of college admissions directors now say (in contrast to past surveys but consistent with the views of many advocates for Asian-American applicants) that their colleges generally admit only Asian applicants with higher grades and test scores than other applicants.”  That is, four out of ten directors at both public and private schools indicated that they believe Asian-American applicants are held to a higher standard at “some” places; and 41 percent of public-school respondents and 30 percent of private-school respondents admitted that this was the case at their own university or college.  That is, indeed, “notable.”

Another juicy tidbit has to do with the Supreme Court ruling in Fisher II.  The new IHE report notes that the Court “cited the research the school did over the years to show why it needed to consider race in admissions — and the decision said that colleges need to have conducted such studies to consider race.” But, the report continues, the recent “survey results suggest that relatively few colleges have done or plan to do such studies.”  Indeed, “only 13 percent of colleges said they conducted studies similar to those the Supreme Court cited as making the Texas approach legal. And only 24 percent said they planned to either start or continue such studies.” And this, the report correctly notes, “could make some colleges vulnerable to lawsuits.”

To look at it another way, three out of four schools interpret Fisher as giving them a green light to engage in admissions discrimination for the foreseeable future, and only 4 percent said they planned to change admissions practices in light of the Court’s ruling.
Trustees and alumni should take note of this, by the way.  No matter how sympathetic one is to political correctness, it’s irresponsible for a school to break the law and set itself up for a ruinous lawsuit.

Which brings us back again to my main message for the college officials:  You’re being watched.  If you use racial preferences, we’ll find out.  You’ll then be required by the FOIA laws to document that you have jumped through the hoops that the Supreme Court has set out; and if you can’t do that, you will be sued, and you will lose.

Answering Linda Greenhouse’s Question

Linda Greenhouse recently had a meandering New York Times column about Fisher v. University of Texas – in which  the Supreme Court is considering a challenge to racial and ethnic preferences in student admissions –  in which she unhappily concedes that the “diversity” rationale is the only way that universities can legally justify their use of such preferences. And she poses the core question that follows this way: “If diversity is the only acceptable rationale for taking account of race, as the court insists, then what is the rationale for diversity?”

Luckily (or unluckily) for her, I answered this question earlier on ScotusBlog.  It’s a detailed answer, but I think an important one, and I hope worth devoting this week’s email to:

Here’s the basic question in Fisher:  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 the only justification for admission preferences that the University of Texas is using or can use.  The Court has rejected the remedial justification in this context (and rightly so); it has rejected the role model justification (and rightly so); there is nothing else left (and rightly so).

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 of course 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 2012 were born in, let’s see, 1994, thirty years after the passage of the 1964 Civil Rights Act.  True, these students may have faced other discrimination – but then, so may have Asian students and Middle Eastern students (and, for that matter, the European-American students who’ve recently applied to college).   One reason that, say, Justice O’Connor might have assumed that all black people and all white people live in different worlds growing up was that, for her when she was growing up, there was a lot more truth to that than there is today.

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, Bill Cosby and Snoop Dogg, Herman Cain 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 (starting with our president).

By the way, the social-science evidence that there are compelling educational benefits that outweigh the costs is underwhelming, as discussed in the amicus briefs filed in Fisher by Abigail Thernstrom et al., Richard Sander and Stuart Taylor, Jr., Gail Heriot et al., the Pacific Legal Foundation et al., (including my organization), and a group of economics and statistics scholars.  My point in this post is that, simply as a matter of logic, it could hardly be otherwise.

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Finally, we hope that all of you who were in the way of this weekend’s big snowstorm are safe and warm!