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Fearless Predictions on How Racial Preferences Will End

Loyal supporters of the Center for Equal Opportunity know that we don’t like racial preferences in university admissions (a.k.a. “affirmative action”). For example, they can read here and here how I’ve urged the Supreme Court to rule in Fisher v. University of Texas, where we have played a leading role and in which that practice is challenged.  They should also make generous year-end donations to the Center for Equal Opportunity, because I’m pretty sure the Supreme Court has already mandated that.

This week, however, rather than discuss what the Court should do, I thought I would discuss in broad terms how this issue will play out by giving straight answers and making fearless predictions on a series of questions that are critical to that discussion. Here we go.

How will the Fisher litigation end? The University of Texas will lose. A majority of the Supreme Court will vote against the university, and there won’t be a remand. The decision will be broad enough to make it harder for higher education institutions to continue the use of racial preferences, but alas, it will not foreclose them altogether.

All of that is tentative, of course. It’s possible that the university could win, in a couple of ways. There might be an affirmance of the Fifth Circuit’s decision upholding the institution’s use of racial preferences by an equally divided Supreme Court, if Justice Anthony M. Kennedy decides that he’s sick of the case and votes with the three liberals. (Justice Elena Kagan is recused.) Or there might be a remand for a full trial, and the university might win there, and the inevitable appeal might fail, and the Supreme Court could refuse further review.

On the other hand, it’s also possible that the Supreme Court will not only rule against UT when it hands down its decision but also overturn its unfortunate 5-4 decision in Grutter v. Bollinger in 2003 and declare that racial preferences in college and university admissions are illegal, period. That’s what I’m hoping for.

Barring that happy outcome, however, the end of the Fisher litigation will not mean the end of the struggle. So we have to ask and answer some more questions.

Will lawsuits continue even after Fisher? Of course. Two already have been filed: one against Harvard University and another against the University of North Carolina at Chapel Hill. There will probably be more.
Our side, including of course the Center for Equal Opportunity, is not going to give up. We really don’t like racial discrimination and what political correctness in all its manifestations is doing to our country.

And the outcome in Fisher cannot possibly result in insulating the use of racial preferences at other colleges and universities from legal challenges. Justice Kagan is recused, remember. The best the left can hope for is a 4-4 vote that will leave the state of the law essentially unchanged.

Who will win the presidential election in 2016? Barring my dream decision in Fisher, that’s what is really important, because it will determine the shape of the judiciary, and in particular the Supreme Court. If a Republican wins, then there’s a good chance that in a few years there will be a majority of justices willing to overturn Grutter. If Hillary Clinton wins, then an overturning of Grutter becomes much less likely for the foreseeable future, once Justices Kennedy, Antonin Scalia, and Clarence Thomas are replaced by her appointment of Justices Lani Guinier, Che Guevara, and Bill Clinton.

Fortunately, however, our next president will in fact be Marco Rubio, and he will nominate two excellent justices — replacing Justices Stephen G. Breyer and Ruth Bader Ginsburg with Justices Ted Cruz and Hans von Spakovsky — whom the Republican-controlled Senate will quickly confirm. President Rubio will also name Donald Trump as U.S. Representative to the United Nations, by the way, and will make Ben Carson surgeon general and Secretary of Health and Human Services.

Will the public ever accept racial preferences in college and university admissions? No. Of course not. Parents don’t like to see their children treated differently because of their skin color or what country their ancestors came from. That’s not going to change, no matter how unhappy that makes Lee Bollinger or his evil twin, Al Sharpton.

Will college and university officials ever voluntarily renounce racial preferences? No. I mean, are you kidding? Have you seen how these people have reacted to the student protests lately, and then you ask if they are voluntarily going to get rid of racial preferences? Sheesh, what a stupid question.

Will the political process ban racial preferences? It has in some states, and it could in other states. It’s even possible that Congress could ban them — but that would take a Republican president and strong Republican majorities in both houses, and a spine among Republican politicians heretofore completely lacking when it comes to this issue. So don’t hold your breath.

So, in summary, what are the possible scenarios? The use of racial preferences will end when the Supreme Court rules against them (or if the relevant political bodies ban them).

When that happens, there will still be programs that result in racial and ethnic diversity — more or less legally (by race-neutral means like top 10 percent plans, aggressive recruiting, ending legacy preferences and the like) and more or less illegally (by admission officials outright cheating or by their smuggling racial considerations into their “holistic” review of applicants). But don’t get me wrong — there will be much, much less of racial preference if it is driven completely underground in this way, so I’m all for it.

Conversely, the use of racial preferences will continue so long as courts and the political branches allow it. The academic culture is too politically correct for that to change in the foreseeable future.
At oral argument this week — in addressing the reaction to his carefully wrought opinion saying that colleges and universities had to show that they had tried really, really hard to achieve the educational benefits of diversity without using racial preferences before they could use racial preferences — Justice Kennedy lamented, “It is as if nothing happened.”

Sorry, Justice Kennedy, but that’s right, and it encapsulates a truth even broader than you might have meant: Don’t expect university officials to operate in good faith on this issue. Unless you prohibit racial preferences, their use of race will remain heavy-handed and mechanical. The only way to get the nuanced and highly individualized use of race that you (and Justice Sandra Day O’Connor before you and Justice Lewis F. Powell before her) want is to ban them outright.

It doesn’t matter how unpopular racial preferences are or how ineffective or counterproductive or unfair or stigmatizing or divisive. College and university officials don’t care.

And that’s not a fearless prediction — that’s just the way it is.

Just hire the best qualified!

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

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

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

April 28, 2015

Dear Mr. [School Superintendent] X,

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

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

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

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

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

Thank you very much for your attention to our concerns.


Roger Clegg
President and General Counsel
Center for Equal Opportunity

Good morning Roger,

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

[/s/ School Superintendent X]

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

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

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

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

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

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

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

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

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

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

*          *          *

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

Actual versus Superficial “Diversity”

The Chronicle of Higher Education has a commentary piece titled, “Want More Innovation?  Get More Diversity.”  As you would expect, it is a plea for universities to hire more African American faculty, in particular, because diversity in background and perspective will (according to some dubious data) result in more creative and innovative thinking.  The piece concludes that since “even if people from different backgrounds have exactly the same skills and knowledge, diverse teams may still do better than more homogeneous ones,” therefore administrators should “[s]top hiring people who look like you.”  My posted response:

Three obvious problems with this (there may be additional, methodological ones, too): (1) It assumes that skin color diversity should be used as a proxy for diversity of background and perspective. Of course, this is just stereotyping: Two people of different color may have very similar backgrounds and perspectives, and two people of the same color may have very different backgrounds and perspectives. (2) It assumes that skin color diversity can be achieved without sacrificing qualifications based on “skills and knowledge.” That’s not true either: If you weigh race in addition to merit, then you are going to be weighing merit less. (3) It ignores the fact that it’s illegal to “Stop hiring people who look like you.” The courts have, alas, allowed a limited amount of race discrimination in student admissions, but they have not done so (thankfully) for faculty hiring. More here.

*          *          *

Along the same lines, I was interviewed by a reporter recently who was doing a story on a new faculty diversity initiative at the University of Texas.  Here’s the first part of that article (I’ve embedded a couple of links where I’m quoted to document what I say):

A hiring policy announced last week by Chancellor Bill McRaven of the University of Texas System is racially discriminatory and may well violate federal civil rights law, two experts told

The new policy would apply to hiring for deans and above at all 14 campuses in the system. “No senior position can be filled without allowing a qualified woman or minority candidate to be interviewed all the way to the last round of the process,” McRaven said.

This sort of policy is known as a “Rooney rule” after the National Football League team owner who first proposed the requirement for all head coach job openings.
“The Rooney rule is illegal, and I think that the McRaven application of it to UT is even more illegal, since it violates not only Title VII but also the Equal Protection Clause of the Constitution,” according to Roger Clegg, president of the Center for Equal Opportunity, a conservative think tank dedicated to issues of race and ethnicity.

While the Supreme Court has interpreted Title VI of the Civil Rights Act of 1964 in a way that allows race for the sake of diversity to be used in university admissions, university hiring is covered by Title VII of the act.

“The federal courts have never recognized a ‘diversity’ exception to Title VII,” Clegg said.

During a Board of Regents meeting last week, McRaven pointed out in a slide show 32 percent of the System’s students and 62 percent of the faculty were white. While 39 percent of the students were Hispanic, just 11 percent of the faculty is Hispanic.

“This slide makes it very clear that we are not doing the job we ought to be doing in driving equal opportunity and fairness in our hiring and promotion processes,” McRaven said. “Making sure our faculty and staff reflect the changing look of Texas is not just about fairness. It’s also about effectiveness. We need faculty, administrators, and campus leaders who understand the people they’re serving, who come from the same kinds of places.”

McRaven’s statement undermines the policy’s legality, Clegg said.

In two cases, the Supreme Court has rejected the idea that schools can discriminate in hiring and firing so that the faculty better reflects the student body.
Former Gov. Ann Richards tried to do the same thing McRaven is doing now, directing state agencies in 1991 to “produce a workforce that reflects the ethnic and gender diversity of the state’s population.”

That got the Texas Education Agency sued. The federal Court of Appeals for the region ruled affirmative action in government hiring was unconstitutional unless there was some “past provable discrimination.”

“This is a dubious argument as a policy matter, but what is amazing is that the argument continues to be made even though the Supreme Court rejected it, as a legal matter, over 20 years ago,” Clegg said.

*          *          *
Two other quick notes on the ongoing campus madness. 

First, I just have to note this recent headline:  “School Study Finds Racial Gap in Salad Bar Use”!  You can’t make this stuff up, folks.

Second, and very much on the other hand, there are some sane voices at Princeton:  “A group of sensible Princeton students is standing up to the mob, and demanding that Princeton’s president Eisgruber do the same.”  Read their letter here.

*          *          *

A short note on an important case that has not gotten a lot of publicity, Akina v. Hawaii:  The plaintiffs, and now conservative amicus American Civil Rights Union, have successfully asked Justice Kennedy to enjoin a racially exclusive (Native Hawaiians only) election that is being held in Hawaii.  Christian Adams, the lawyer for the ACRU, says, “Hawaii held such an election once before, and it shouldn’t be allowed to hold one again.” The key precedent for the plaintiffs here is Rice v. Cayetano, which struck down (after the fact) a similar racially exclusive election; the opinion was written by Justice Kennedy.  The Center for Equal Opportunity filed an amicus brief in that case, and is supporting the plaintiffs in the current case as well, in their challenge to this latest example of political correctness run amok. 

*          *          *

The Federalist Society’s annual national lawyers’ convention was held recently, and of particular interest was the Civil Rights Practice Group’s panel on “Ferguson, Baltimore, and Criminal Justice Reform.”  I’m on the executive committee of that group, and we were all very pleased with the lively and informative discussion that ensued, which you can watch here.  “Discussion” might be an understatement, though; “fireworks” would be better.  Just about every conceivable point of view was represented:  traditional conservative (one of the panelists was a former Philadelphia cop, another a Heritage Foundation policy wonk), libertarian, and flat-out liberal.  And receiving a standing ovation was Robert L. Woodson, Sr., Founder and President, Center for Neighborhood Enterprise:  a pro–law enforcement, pro–personal responsibility community organizer (!).

*          *          *

One last campus-related item.  I’ll be debating the issue of racial preferences in university admissions in New York on Thursday evening this week, and you can read all about that (and watch it) here.

Jeb Bush, the Washington Post, and Affirmative Action

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

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

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

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

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

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

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

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

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

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

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

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

Getting serious about racial discrimination

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

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

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

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

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

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

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

*          *          *

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

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

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

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

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

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

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

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

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

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

*          *          *

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

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

Two Steps Forward, One Back

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Update on the Struggle against Universities’ Affirmative Discrimination

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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