All posts by John S. Rosenberg

John Rosenberg blogs at Discriminations.

Does Free Speech Matter at UVa?

An adjunct lecturer at the University of Virginia was forced to take a leave of absence because his criticism of Black Lives Matter in a Facebook post was “inappropriate” and “inconsistent with the University of Virginia’s values.” The lecturer, Douglas Muir, had been teaching at the university’s Darden School of Business and the School of Engineering and Applied Science.

Muir’s Facebook post, now deleted but quoted by the Cavalier Daily, asserted that “Black lives matter is the biggest rasist organisation [sic] since the clan [sic]. Are you kidding me. Disgusting!!!” Muir was responding to comments about a lecture given by Black Lives Matter co-founder Alicia Garza.

Undermines Our Values

Muir’s statement is obviously provocative (not to mention poorly spelled), and his rapid resignation suggests that the University of Virginia’s vaunted dedication to free speech and “inclusion” does not extend to provocative posts on social media.

“While free speech and open discussion are fundamental principles of our nation and the University,” a late Friday statement from the Dean of Engineering and Applied Science declared, “Mr. Muir’s comment was entirely inappropriate. UVA Engineering does not condone actions that undermine our values, dedication to diversity and educational mission.” The School of Engineering apparently regards a Facebook post as an “action,” not speech, and it deems only “appropriate” speech and speech that does not challenge “diversity” worthy of protection.

A statement from UVa Provost Tom Katsouleas was even more smarmy: Muir’s comment “is inconsistent with the University of Virginia’s values and with its commitment to the principles of academic freedom…. This position in no way squelches academic freedom, which welcomes dissent and encourages the voices of others whose perspectives may differ from ours — thereby adding new insights to our own. But statements such as Mr. Muir’s do not foster intellectual exploration, nor do they encourage the voices of others.”

What about Alicia Garza?

The fundamental question, in short, is not whether Black Lives Matter is or is not like the Klan. It is whether provosts and deans should be in the business of awarding or withholding UVa’s imprimatur of approval on highly charged political speech and empowered to decide which points of view are legitimate and which are “inappropriate” or “inconsistent with the University of Virginia’s values” or “do not foster intellectual exploration.”

But even if speech is to be monitored and regulated, that cannot be done in a discriminatory manner. In dismissing Mr. Muir because of his criticism of Black Lives Matter, however, UVa seems to be clearly engaged in content-based discrimination, since not only does it not ban but in fact welcomes speech that is equally if not more offensive.

Consider, for example, the typical invective of Alicia Garza, the co-founder of Black Lives Matter whose recent appearance provoked Muir’s rant. For example, responding to Donald Trump’s acceptance speech at the Republican convention this summer, Garza stated that “[t]he terrifying vision that Donald J. Trump is putting forward casts him alongside some of the worst fascists in history…. Trump is proposing a new, dark age where police have carte blanche authority to terrorize our communities.”

Garza is obviously fond of comparing Trump to Hitler because she does so repeatedly. And her target is not simply Trump — whom her friend and co-founder of Black Lives Matter Patrisse Cullors calls “a terrorist” — but also Trump’s supporters. “There’s millions of people backing a fascist ideologue,” Garza told Bloomberg News, anticipating by a month BLM supporter Hillary Clinton’s “basket of deplorables” description of the same voters.

In a similar vein, no doubt intended to “foster intellectual exploration” and “encourage the voices of others,” Garza responded in The Guardian to those fascists who insist that all lives matter by declaring that “[b]y and large, I’m starting to feel like, if somebody doesn’t want to f***ing understand — excuse my language — if somebody can’t see the contradiction of saying all lives matter … then they’re just wilfully [sic] being ignorant, and an a****le. If a movement can be judged by its heroes, what does it say about Black Lives Matter that Garza proudly asserts that she uses Assata Shakur’s “powerful demand in my organizing work”? Here’s a description of Shakur, originally known as Joanne Chesimard, from the FBI Most Wanted List:

“On May 2, 1973, Chesimard, who was part of a revolutionary extremist organization known as the Black Liberation Army, and two accomplices were stopped for a motor vehicle violation on the New Jersey Turnpike by two troopers with the New Jersey State Police. At the time, Chesimard was wanted for her involvement in several felonies, including bank robbery. Chesimard and her accomplices opened fire on the troopers. One trooper was wounded and the other was shot and killed execution-style at point-blank range.”

Chesimard was convicted of first-degree murder, but in 1979 she escaped from prison and fled to Cuba. Despite pressure to do so, President Obama refused to demand the return of Chesimard as part of his opening relations with Cuba, a decision supported by Hillary Clinton.

My point, it should go without saying, is not that Alicia Garza should be barred from speaking at University events, although I do think it odd that UVa’s Office of Diversity and Equity invited her to be keynote speaker at a Community celebration of Martin Luther King last winter (cancelled because of a scheduling conflict). Rather, it is the question of whether university administrators should be empowered to decide whether comparing the Black Lives Matter movement to the Klan is really beyond the pale of legitimate debate and discourse.

If BLM’s critics are not allowed to compare it to the Klan, what of its supporters? What, for example, will the protectors of UVa’s values do when celebrated Selma director Ava DuVernay’s new film about the incarceration of blacks, 13th, is shown in Charlottesville and predictably elicits some faculty gushing? According to the New York Post, it “wowed audiences at the New York Film Festival and looks like a leading Oscar contender,” no doubt in part because of its “[e]quating Donald Trump supporters with Deep South Lynch mobs.” Could a UVa faculty member now make that equation?

Is There Free Speech at UVa?

In any event, if UVa’s Provost and Deans insist that a Lecturer’s personal comments on social media must not be inconsistent with the University’s values, why are they not concerned that an official University invitation to Garza to be a keynote speaker at a University event might lead some observers to infer endorsement of her extreme views? Would they dismiss any untenured faculty members who posted or tweeted some of the things Garza says all the time?

No doubt the now problematic standing of free speech at “Mr. Jefferson’s University” will be subject of some discussion at a long-scheduled Symposium on Free Speech on Campus in Charlottesville on October 13-14 sponsored by the Thomas Jefferson Center for the Protection of Free Speech. How embarrassing, not to mention ironic, if in the coming year would earn one of the Jefferson Center’s noted and notorious Muzzle Awards.

Thumbs on the Racial Scale at UCLA, Berkeley

It appears as though the University of California succumbed to the  relentless pressure from the California legislature to discriminate more effectively against Asians and whites, i.e., to admit more Hispanics and blacks.

The headline of a Los Angeles Times article announces that “UCLA, UC Berkeley boost admissions of Californians, including blacks and Latinos.”  The article reveals, however, that its head should have read especially blacks and Latinos. “The Westwood campus offered seats to 624 African Americans, or 6% of all California freshmen, representing a 37.7% increase over last year.” According to the most recent census figures blacks make up 6.2% of California’s population.

Unless one assumes whites are disproportionately dumb, UCLA’s discrimination against them this year seems to have been quite effective. 38% of California’s population (2015) is “White alone, not Hispanic or Latino,” but only 24.6% of the California students offered admission are white.

As usual, however, Asians are the big losers when numbers of blacks and Hispanics go up. This year “their share of the campus’ admitted freshmen class shrunk from 42.3% to 39.5%.”

Here are two possible explanations of these results. We report; you decide.

  1. Over the past year, the proportion of bright, qualified black applicants has dramatically increased while the corresponding proportion of whites and Asians has declined.
  1. Admissions officials have placed their thumbs not so gingerly on the racial and ethnic scales.

Youlonda Copeland-Morgan, UCLA’s vice provost for enrollment management, stated that “I’m really pleased we’re making progress and we’re showing we can make a difference.” It shows we can do this if we have the will.” She added that UCLA ”does not raise the entry bar for Asian Americans,” since “considering race and gender in admissions decisions at public universities has been banned since passage of Prop. 209 in 1996.”

But where there’s a will there’s a way. In that regard, see “Prof Charges UCLA Admissions Cheating, Resigns From Committee” and “UCLA: Lying Scofflaw.

The Endless Muddle of Transgender Policy

(Part II)

The incoherence of the new Office for Civil Rights transgender policy becomes even clearer when one looks beyond bathrooms to locker rooms, and the athletic teams they serve. The “Dear Colleague” letter states that “Title IX regulations permit a school to operate or sponsor sex-segregated athletics teams when selection for such teams is based upon competitive skill or when the activity involved is a contact sport. A school may not, however, adopt or adhere to requirements that rely on overly broad generalizations or stereotypes about the differences between transgender students and other students of the same sex (i.e., the same gender identity) or others’ discomfort with transgender students.”

Broad, but Not Too Broad

Note that OCR provides no guidance as to when a broad generalization becomes “overly broad.” In fact, there would seem to be a real possibility that a college or university could be found in violation of Title IX for complying with NCAA regulations.

For example, the “Dear Colleague” letter declares that “Under Title IX, there is no medical diagnosis or treatment requirement that students must meet as a prerequisite to being treated consistent with their gender identity.” But the NCAA Inclusion of Transgender Student Athletes policy states that “A trans female (MTF) transgender student-athlete who is not taking hormone treatments related to gender transition may not compete on a women’s team.” MTFs and FTMs, however, are not treated the same, since “A trans male (FTM) student-athlete who is not taking testosterone related to gender transition may participate on a men’s or women’s team.”

As if this were not confusing enough, the NCAA inclusion policy also states that “A trans male (FTM) student-athlete who has received a medical exception for treatment with testosterone … may compete on a men’s team, but is no longer eligible to compete on a women’s team without changing that team status to a mixed team.” But by contrast, “A trans female (MTF) student-athlete being treated with testosterone suppression medication … may continue to compete on a men’s team but may not compete on a women’s team without changing it to a mixed team status until completing one calendar year of testosterone suppression treatment.”

In short, does OCR’s new command “that a school must not treat a transgender student differently from the way it treats other students of the same gender identity” apply to the locker room but not to the playing field? What about hotel rooms when the teams travel? Will NCAA have to revise its extensive regulations of transgender activity to conform to the new transgender diktats from Washington? Who knows?

Although still struggling with its insistence that sex and gender identity are the same thing — “… the same sex (i.e., the same gender identity)” — OCR obviously believes that sex not only still exists but can actually trump gender when distinctions based on it not only involve contact sports but also different sex-based “competitive skill.” Does this mean that a disproportionate number of men at the top of math-intensive STEM departments does not suggest a Title IX problem? (Larry Summers, are you paying attention?) Who knows?

More Gender Equity Conflict and Confusion

Confusion and conflict, of course, are not limited to locker rooms and athletic fields. Presumably, a college or university would worry about violating anti-discrimination laws if it complied with an incoming freshman’s request not to be assigned a roommate who was black or Jewish. Should it have a similar concern about a freshman woman’s request not to be assigned to a room with a transgender woman?

If there are as many transgender students as the administration’s recent flurry “guidances” and lawsuits suggests, then OCR may well have to revise its record-keeping categories and provide schools and colleges with new reporting requirements. On June 15, for example, OCR sent out another sweeping “Dear Colleague” guidance on increasing the participation of students in fields, especially career and technical fields, whose sex is underrepresented.

Although this “guidance” noted that it used the terms sex and gender “interchangeably,” it curiously referred only to males and females and never once used the term “transgender.” Thus left unclear, unexplained, and unguided is how colleges and universities should regard athletic participation and especially scholarships — watched like a hawk by the NCAA, with rigid quotas for men and women— of transgender students. Or how a community college should count an auto mechanics student transitioning from female to male. Since her biological sex remains female even though her gender identity is male, I wondered here, “does the student add to the number of students in that class who are ‘non-traditional for their sex,’ or simply add to the number of guys?” In fact, if ‘gender identity’ determines sex as OCR unilaterally insists, why does it continue to use the term ‘sex’ at all in determining who is under-represented?

LGBT Plus 11 Other Letters

For all of its postmodern deconstruction of “sex” as most people understand it, the Obama administration’s new transgender policy ironically insists on maintaining what many maintain is the old-fashioned binary view of sex (or gender) as male or female. Thus, one is one or the other, or transitioning from one to the other. But what about the “B,” bisexuals, in LGBTQ, not to mention the more amorphous “Q,” Queer? Can they be restricted to bathrooms and locker rooms that correspond to the sex “assigned” to them at birth? Are they free to choose as the spirit moves them?

Once “sex” no longer means sex, the possibilities of what groups are protected by Title IX and Title VII become almost endless, as revealed by one of Wesleyan University’s “themed” housing options for LGBTTQQFAGPBDSM students. “Open House is a safe space for Lesbian, Gay, Bisexual, Transgender, Transsexual, Queer, Questioning, Flexual, Asexual, Genderfuck, Polyamorous, Bondage/Discipline, Dominance/Submission, Sadism/Masochism (LGBTTQQFAGPBDSSM) communities and for people of sexually or gender dissident communities.”

Don’t Forget NGTs or NGBs

Speaking of safe spaces, the new transgender policy does not fit well at all with the pervasive panic over campus sexual assault. As Yale law professor Jeannie Suk wrote in “The Transgender Bathroom Debate and the Looming Title IX Crisis,” her recent New Yorker article, “having, in the past several years, directed the public toward heightened anxiety about campus sexual assault, the federal government now says that to carry that discomfort into bathrooms is illegitimate because it is discrimination.” A non-transgender girl (must we now speak of NTGs and NTBs?) who’s told she must share a bathroom with boys, Suk notes, would have a Title IX complaint. “But would she not have a similar claim about having to share with students who identify as girls but are biologically male? Well, not if her discomfort and ‘emotional strain’ should be disregarded.” And, as Ed Whelan writes on National Review Online’s Bench Memos, “The Obama administration fails to offer any coherent reason why her discomfort in the latter situation should be disregarded.”

TERF Wars

If OCR had bothered to gather public comment it would have learned of a vocal minority of influential feminists who believe, as former National Organization of Women leader Kathleen Stone wrote recently in opposition to a pending transgender bill in Delaware, that “the gender identity movement that is sweeping the country is bringing with it a multitude of problems for women and girls.” One “is the loss of safe sex-segregated spaces such as public bathrooms, changing rooms and even domestic violence shelters.” Another is the “much more significant problem for women is that it becomes impossible to name biological sex as the source of women’s oppression, subjugation and inequality in a patriarchal world.”

Stone is far from alone. Michelle Goldberg had a fascinating article in the New Yorker two years ago, “What is a Woman? The Dispute Between Radical Feminism and Transgenderism,” describing the bitter feminist civil war between today’s dominant transgender orthodoxy and usually older radical feminists “TERFs” (trans-exclusionary radical feminists), 37 of whom, “including major figures from the second wave, such as Ti-Grace Atkinson, Kathie Sarachild, and Michele Wallace,” recently issued a statement titled “Forbidden Discourse: The Silencing of Feminist Criticism of ‘Gender,’” describing “their ‘alarm’ at ‘threats and attacks, some of them physical, on individuals and organizations daring to challenge the currently fashionable concept of gender.’”

Some of those attacks, for example, have been aimed at women associated with the Michigan Womyn’s Music Festival, which since 1976 through 2015 met on 650 wooded acres near Lake Michigan and described itself as “an event for ‘womyn born womyn’ only.” Lisa Vogel, the founder and director, accused the meeting’s feminist critics of “targeting Michfet with McCarthy-era blacklist tactics.” Michfest succumbed to the attacks and closed after its 2015 gathering.

Also suffering feminist and transgender attacks is Sheila Jeffreys, whose work critical of the transgender movement (such as Gender Hurts: A Feminist Analysis of the Politics of Transgenderism) was summarized in Goldberg’s New Yorker article, recently resigned after 24 years as a political science professor at the University because “safety concerns” compelled her “to take her name off her office door.”

Radical Feminists Split

TERFs, although they remain radical feminists, are increasingly unwelcome on college campuses. “The most dramatic change in the perception of transgenderism can be seen in academia,” Goldberg wrote. “Particularly at liberal-arts colleges, students are now routinely asked which gender pronoun they would prefer to be addressed by: choices might include ‘ze,’ ‘ou,’ ‘hir,’ ‘they, or even it.’” One younger TERF told Goldberg that she “would get called out” if she were to say in a typical women’s studies class today, “Female people are oppressed in the basis of reproduction.” Some students would respond, she said, “What about women who are male?”

Judith Butler, perhaps the most prominent American feminist academic, has said that she sees “no problem with women having a penis, and men having a vagina.” Perhaps taking its cue from Butler, the New York Abortion Access Fund recently stopped using the word “women” in its mission statement, because “[w]e recognize that people who identify as men can become pregnant and seek abortions.” This may well be the new orthodoxy on campus and in the progressive precincts of the Obama administration, but it is not widely shared elsewhere.

Far from being settled — in law, common understanding, or even in progressive opinion — the relationship between sex and gender and the rights that are associated with them remain hotly contested terrain, and the attempt of government bureaucrats, isolating themselves from public comment, to pronounce them settled should not be tolerated by Congress or the courts.

Disingenuousness or Duplicity

No discussion of the evolution of anti-discrimination law in the Obama era and before can be complete without trying to sort out opinions reasonably changed over time, disingenuousness, and outright duplicity. Most Minding The Campus readers are familiar with the sad story of American liberalism’s abandonment of its more than century old commitment to colorblind racial equality in favor of race-based preferential treatment as soon as the ink had dried on the embodiment of the “without regard” colorblind principle in the 1964 Civil Rights Act. But that was only the beginning.

Take Chai Feldblum (Please!), the EEOC commissioner discussed above who had previously announced her desire “to revolutionize societal norms” regarding sex and gender. In her recent letter to the New York Times, also discussed above, arguing contra Yale law professor Peter Schuck that protecting transgenders from sexual stereotypes involved no “novel interpretations of the law,” Feldblum insisted that these rulings “are common-sense applications of a federal anti-discrimination law that prohibits employers from taking sex into account.”

Feldblum would have you believe that all she and the EEOC require is that employers be sex-blind, just as they are required to be race blind. But wait a minute! Everyone knows that this EEOC, this administration, and indeed the whole progressive “community” detests race blindness with a passion, regarding it as simply the continuation of racism. Indeed, one of the reasons ENDA failed repeatedly is that the protests of its advocates that preferential treatment was not being sought fell on ears deafened to that argument by the rapid transition from equal treatment to affirmative action.

At one point, as I discussed here (“Does Sexual Equality Require Special Treatment?”) several years ago, ENDA advocates tried to combat this fear by inserting a provision that purported to prohibit “preferential treatment to any individual or to any group because of the actual or perceived sexual orientation or gender identity of such individual or group on account of an imbalance,” i.e., their underrepresentation. But that provision, I noted, did not bar preferences for other reasons, such as to promote “diversity” or compensate for past discrimination. And even if ENDA had passed and this provision really did succeed in prohibiting preferential treatment, wouldn’t that mean that sexual orientation and gender identity lack the “protection” awarded to race and ethnicity? Do ENDA supporters, Feldblum, the EEOC, and OCR really believe in such a double standard of civil rights?

Feminism from the ERA to the Death of Privacy

But the mother (if you’ll pardon the gender-biased expression) of all liberal contradictions must be the glaring conflict between the feminist argument in favor the the Equal Rights Amendment and today’s predicted but still improbable struggle progressives have launched over bathroom access. Looking back in 1981 at the failure of the failure of the ERA, Betty Friedan wrote in a letter to the New York Times that it “bogged down in hysterical claims that the amendment would eliminate privacy in bathrooms” and “encourage homosexual marriage.” The Washington Post’s Judy Mann, writing the next year, attributed Virginia’s failure to ratify the ERA to opponents who “trotted out the old canards about homosexual marriages and unisex restrooms.” Even though the ERA did not pass, those “canards” don’t look so canard-like today.

It is clear that the bathroom issue was a — perhaps the — leading nail in the coffin of the ERA. In WHY WE LOST THE ERA (1986), which remains in many ways one of the best analyses of ERA’s defeat, Jane Mansbridge argued that “[t]he unisex toilet issue fed the fervor of the anti-ERA forces by giving them something absolutely outrageous to focus on.” Mansbridge, perhaps with what now looks like irony, notes that proponents of the ERA found that argument so outrageous they often brought it up themselves, using “unisex toilets over and over to imply all other arguments against the ERA were equally exaggerated.”

ERA proponents were able to dismiss what was dubbed “the potty issue” as an outrageous canard because dominant academic, legal, and media opinion was virtually unanimous in proclaiming that the right of privacy would prevent opening the bathroom door to members of the opposite sex. Typical was an influential 1971 Yale Law Journal article by four Yale professors, led by Thomas Emerson, the iconic liberal civil libertarian, who declared that “the right of privacy would permit the separation of the sexes in public rest rooms” and other settings where disrobing occurs. Philip Kurland of the University of Chicago acknowledged in a 1970 Senate hearing that if the ERA invalidated all classifications by sex separate restrooms would be nullified, but he added that, although ERA’s language was absolute, “I would have to submit that the judiciary does not conclude that because the language of legislation is a clear mandate that they are not free to indulge in other devices for its construction.” (Quoted by Mansbridge, WHY WE LOST…, p. 283.) Indeed.

Ruth Bader Ginsburg, then a prominent Columbia law professor and ACLU lawyer, made the same point in a 1975 Washington Post OpEd. ”Separate places to disrobe, sleep, perform personal bodily functions are permitted, in some situations required,” the future Supreme Court justice wrote, “by regard for individual privacy.“

The regard for privacy, or rather the lack of such regard, by progressives has come a long way since the now quaint-sounding arguments for the ERA. The term “privacy” does appear a dozen times in the DOJ/DOE/OCR “Dear Colleague” transgender policy letter, but with only one exception all refer to “protecting transgender students’ privacy” because doing so “is critical to ensuring they are treated consistent with their gender identity.” For example, the letter warned, “[t]he Departments may find a Title IX violation when a school [fails] to take reasonable steps to protect students’ privacy related to their transgender status, including their birth name or sex assigned at birth.” With regard to any privacy concerns others students may have, the letter specifically states that transgender students may not be denied access to facilities or programs because of “others’ discomfort with transgender students.”

Many may regard it as ironic, but given the policy preferences embodied in the “Dear Colleague” letter it is not surprising that the first claim to a privacy right violation to reach the courts after North Carolina’s H.B. 2 became law was filed by transgender plaintiffs in the Lambda lawsuit mentioned above. They claim, among other things, that “[t]here is a fundamental right of privacy in preventing the release of, and in deciding in what circumstances to release … information of a highly personal and intimate nature” and that “H.B. 2 requires the disclosure of highly personal information regarding transgender people to each person who sees them using a restroom or other facility inconsistent with their gender identity or gender expression.”

Two of the plaintiffs are transgender men — one an employee of the University of North Carolina at Chapel Hill and the other a student at the University of North Carolina at Greensboro — who claim that forcing them to use the women’s restroom would “cause substantial harm to [their] mental health and well-being” and “cause [them] to experience significant anxiety as [they know] that it would be distressing for [them] and uncomfortable for others.”

What Ruth Bader Ginsburg Said

Representing the concern of those “others,” the Gloucester County, Virginia, school board another wants the Supreme Court to defend another, more traditional view of privacy. In its request for a stay of the Fourth Circuit’s decision in Grimm while it prepares an appeal to the Supreme Court, the school board argues that “[r]eplacing the term ‘sex’ in Title IX with the term ‘gender identity’ … [n]ot only is … contrary to the historical norms of civilization, it is contrary to the intent of Title IX and well-established law recognizing the dignity and freedom of bodily privacy.” The guidance “issued by OCR, DOE, and DOJ” does not, the school board asserts, “consider the bodily privacy rights of students.”

The courts will have to decide whether to defer to OCR’s claim of legal authority for its privileging the privacy rights of transgender students and staff, who want to avoid the anxiety, stress and possible threat involved with being required to use facilities that correspond with their sex but not their gender identity, over the privacy rights of of the non-transgendered, who feel uncomfortable and threatened by the presence of those of the opposite sex in their bathrooms and locker rooms.

For the courts to uphold the legality of the OCR/DOE/DOJ guidance, they would have to conclude that the privacy arguments of Thomas Emerson, Ruth Bader Ginsburg, and other ERA advocates were wrong, or at least no longer right. They could do so, however, by acting in the manner Ruth Bader Ginsburg also endorsed in another of her pro-ERA arguments, a 1979 lecture at Washington University: “Boldly dynamic interpretation, departing radically from the original understanding,” she insisted, “is required to tie to the fourteenth amendment’s equal protection clause a command that government treat men and women as individuals equal in rights, responsibilities, and opportunities.”

ERA failed to pass, but over the years courts (with Justice Ginsburg’s help)  have proved they are more than equal to the task. Moreover, the Obama administration’s zealous progressives in the EEOC and OCR are nothing if not boldly dynamic interpreters, eager to depart radically from original understanding or clear legal text whenever and wherever necessary, as EEOC Commissioner Chai Feldblum put it in defending EEOC’s creation of new transgender rights, to “revolutionize societal norms.”

Read Part One, “Transgender and the Transformation of Civil Rights”

Transgender and the Transformation of Civil Rights

Although it seems as though the transgender tsunami has been howling forever, in fact it hit the shore of national fixation only four months ago, in March, when the North Carolina legislature passed, and Gov. Pat McCrory signed, House Bill 2, which restricted access to the state’s public sex-segregated restrooms by, well, sex, as defined by one’s birth certificate or evidence of sex reassignment surgery. (For those interested in bringing their vocabulary up to required code, SLATE helpfully points out that “[t]he increasingly preferred term is gender confirmation surgery.”)

A firestorm of controversy soon followed, and has shown no signs of abating. Four days after H.B.2 became law Lambda Legal, the ACLU, and Equality North Carolina filed a lawsuit against Governor McCrory, Attorney General Roy Cooper, and the University of North Carolina on behalf of a UNC-Chapel Hill staff member, a UNC-Greesboro student, and a North Carolina Central University law professor.

Shortly thereafter, the Dept. of Justice sent letters to Gov. McCrory and the University of North Carolina claiming that H.B.2 violated Title VII and Title IX of federal civil rights laws. A few days later, on May 13, the Departments of Justice and Education announced a “significant guidance” in the form of a “Dear Colleague” letter sent to all school districts in the country that dropped an administrative nuclear bomb — declaring, among other things, that “The Departments treat a student’s gender identity as the student’s sex for purposes of Title IX and its implementing regulations. This means that a school must not treat a transgender student differently from the way it treats other students of the same gender identity.”

Making that argument crystal clear, in announcing the federal lawsuit against North Carolina, Vanita Gupta, head of the Justice Department’s Civil Rights Division, declared: “Here are the facts.  Transgender men are men — they live, work and study as men.  Transgender women are women — they live, work and study as women.” Thus the federal government has declared it “facts” that transgender men and women do not simply live and work as, and identify with, the opposite sex; they “are” the opposite sex.

No longer limited to bathrooms, the new edict also covers athletic activities, locker rooms, dormitories from K-12 through universities. Next came the dueling lawsuits, with the United States (here) and North Carolina (here) filing complaints against each other. In addition to North Carolina, eleven states have filed a lawsuit claiming that the Obama administration’s position “has no basis in law.” Finally (at the moment), the Alliance Defending Freedom has filed a complaint defending H.B. 2 on behalf of North Carolinians for Privacy, an organization that includes both university and K-12 students.

Legal Issues

The Departments of Justice and Education of course must ensure that the nation’s schools and colleges comply with applicable anti-discrimination laws, but Yale law professor emeritus Peter Schuck calls their interpretation “novel” in a New York Times OpEd. Harvard law professor Jeannie Suk agrees, noting in a recent New Yorker article, the Obama administration’s interpretation of those laws is “new and surprising.”

Those of us who are not Ivy League law professors need not be so circumspect. The transgender ukases from Obama apparatchiks are breathtaking in their reach and scope — both in their attempt to promote a radical transformation of our society’s understanding of sex itself, and hence of our understanding of the nature of sex discrimination, as well as in their ignoring or rewriting inconvenient statutory law that is extreme even by the standards of this administration, which has time and again run roughshod over traditional separation of powers barriers.

As Gail Heriot, University of San Diego law professor and member of the U.S. Commission on Civil Rights, demonstrated in her May 16 testimony before the House Judiciary Committee, “It would be an understatement to say that the Transgender Guidance goes beyond what Title IX, which was passed in 1972, actually requires. If someone had said in 1972 that one day Title IX would be interpreted to force schools to allow anatomically intact boys who psychologically ‘identify’ as girls to use the girls’ locker room, he would have been greeted with hoots of laughter. OCR [the Dept. of Education’s Office of Civil Rights] is simply engaged in legislating.”

Heriot’s testimony was so coolly professional and compelling that it caused Rep. Zoe Lofgren (D, Ca) to throw what people of a certain age will recognize as a hissy fit, interrupting Heriot’s testimony and sputtering “I think you’re a bigot, lady, I think you’re an ignorant bigot.”

The problem, from the Obama administration’s point of view, is that Title IX prohibits discrimination “on the basis of sex,” but it also explicitly states that “recipients [of federal funds] may provide separate toilet, locker room, and shower facilities on the basis of sex.” Nowhere in Title IX or its implementing regulations are transgender, sexual orientation, gender, or gender identity mentioned. In fact, the problem for Obama’s social transformers is even more daunting, for not only are those terms not included in the civil rights statutes but they have been proposed year after year and Congress has specifically refused to include them.

The Employment Non-Discrimination Act (ENDA) was first introduced in 1994. Significantly, for well over a decade the versions that were introduced in each Congress, controlled at various times by both parties, added only sexual orientation to the list of categories protected from employment discrimination. Gender expression and even gender identity were purposefully excluded. Even so, it never passed.

After an increasing outcry from the transgender lobby those terms were finally added, but with a notable qualification. “Nothing in this Act,” declared Section 8(a)(3) of the proposed Employment Non-Discrimination Act of 2011, “shall be construed to establish an unlawful employment practice based on actual or perceived gender identity due to the denial of access to shared shower or dressing facilities in which being seen unclothed is unavoidable.” Section 8(a)(4) added that “Nothing in this Act shall be construed to require the construction of new or additional facilities.” The LGBT community,” a progressive publication mourned, “has ceded the ground on social conservatives’ and the religious right’s arguments of ‘men in dresses’ using women’s public restrooms.”

But not for long: By 2013 that qualification had been removed, but to no effect since ENDA has still never become law, leaving even sexual orientation unprotected by federal employment statute. And the blame (or credit) does not belong exclusively to social conservatives and the religious right, since protections for gender identity and expression are also resisted by Democrats. In 2014, The Advocate observed, even New York could not pass legislation protecting gender identity. In 2002 it passed a statewide bill protecting only sexual orientation, and “every year since 2003” legislation to protect gender identity and expression has failed.

So, since Title IX prohibits discrimination based only on sex, and Congress has repeatedly and pointedly refused to add even sexual orientation, much less gender identity and gender expression, to the categories protected from employment discrimination, how does the Department of Education justify its authority to require all schools and colleges to treat gender identity as sex? The short answer: poorly; the longer answer: the “pen and phone” overreach of ignoring law or making it up that we’ve come to expect from the Obama administration.

The new gender identity “guidance” the administration is attempting to impose on K-12 and higher education is based on the conclusion — arrived at, as Professors Suk and Schuck (both linked above) and the 11 state lawsuit have pointed out, without benefit of hearings or comment from the public as required by the Administrative Procedure Act— is that sex means gender and gender means gender identity.

Insofar as this extravagant and even revolutionary policy has any legal justification at all, it relies on an embellishment and extension of the analysis in a 1989 Supreme Court case, Price Waterhouse v. Hopkins. Ann Hopkins was denied a partnership because some partners found her personality and style aggressive and un-feminine. In order to improve her chances for partnership, she was told, she should “walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry.” Noting that “Congress intended to strike at the entire spectrum of disparate treatment of men and women resulting from sex stereotypes,” the Court held “we are beyond the day when an employer could evaluate employees by assuming or insisting that they matched the stereotype associated with their group.”

It is one thing to say that sex stereotyping can lead to sex discrimination when women are penalized for behavior that is rewarded in men. But it is quite a reach to claim that gender, divorced altogether from biology, is sex, that gender is determined entirely by subjective feelings, and hence that anatomical men who “identify” as women must be allowed to use women’s bathrooms and locker rooms and play on women’s athletic teams. No chasm, however, is too wide for progressive regulators to leap in their relentless pursuit of social transformation.

Even Obama may be ambivalent about the bathroom policy his minions are seeking to impose. On a PBS Town Hall a few weeks ago he sounded a bit dodgy, explaining that “Somehow people think I made it an issue. I didn’t make it an issue. “I just want to emphasize to you,” he added, “it is not like I woke up one day and said, ‘Man, what we really need to do is start working on high school bathrooms.’”

He did not have to say it, because he had staffed his administration with individuals whom he knew were determined to transform society’s sexual attitudes and practices. Take former Georgetown law professor Chai Feldblum (please!), whom Obama appointed to the EEOC in 2009 and who has described herself as “part of an inner group of public-intellectual movement leaders committed to advancing LGBT [lesbian, gay, bisexual, transsexual] equality in this country.” As I noted here shortly after her appointment, Feldblum had acknowledged that she wants “to revolutionize societal norms” regarding sex and gender. In order to gain approval, however, she did distance herself from some of her earlier positions, such as calling for the legal recognition of “committed, loving households in which there is more than one conjugal partner” and “queer couples who decide to jointly create and raise a child with another queer person or couple, in two households.”

With Feldblum on board, the Obama-staffed EEOC quickly set off down the path that would lead to sex being determined by subjective gender identity. In a 2010 case it acknowledged that although “Title VII’s prohibition of discrimination does not include sexual preference or orientation as a basis,” but, citing Hopkins v. Price Waterhouse, it nevertheless held that “Title VII does, however, prohibit sex stereotyping discrimination.” The complainant, a male (perhaps I should say a non-transgender male, since he was a male who “identified” as a male) “essentially argued,” according to the EEOC’s ruling, that a harassing co-worker “was motivated by the sexual stereotype that marrying a woman is an essential part of being a man, and became enraged when complainant did not adhere to this stereotype by announcing his marriage to a man in the society pages of the local newspaper.”

Similarly, in a 2011 case, the EEOC held that an ironworker could collect damages for harassment because his “supervisor harassed him because he thought he was feminine and did not conform to the supervisor’s gender stereotypes of a typical ‘rough ironworker.’”

In a 2012 case, also citing Hopkins v. Price Waterhouse, the EEOC extended its sex stereotyping rulings to transgender, finding “that the Complainant’s complaint of discrimination based on gender identity, change of sex, and/or transgender status is cognizable under Title VII.”

The problem the Obamanauts faced here is that, simply as a matter of fact, one’s “sexual orientation” is not the same as one’s “sex,” and the law the EEOC was obligated to enforced did not prohibit — and Congress has repeatedly refused to amend it to prohibit — discrimination based on sexual orientation. Faced with an inability to rely on either the facts or the law, the EEOC simply declared that discrimination based on sexual stereotypes was really discrimination based on sex, and hence illegal, an assertion Roger Clegg convincingly demolished several years ago in testimony before the U.S. Commission on Civil Rights. “I would be curious to know,” Clegg asked, “if the administration officials could describe the situations in which they would not view discrimination on the basis of sexual orientation as also discrimination on the basis of sexual stereotypes that is, they think, therefore illegal.”

The concept of sexual stereotypes, in short, simply cannot serve to bring transgender issues under the protection of the prohibition of discrimination based on sex. To see why, consider if Ann Hopkins, the Price Waterhouse plaintiff, had instead been Al Hopkins, a transgender male turned down for promotion because of inappropriately dressing and acting like a man. The Obama administration argument is that this rejection of the hypothetical Mr. Hopkins is a form of sex discrimination, but exactly what or where are the “sex” and the “sexual stereotype”?

How could Hypothetical Hopkins have been discriminated against as a man acting like a man? Presumably the claim would be that he was not treated the same as other similarly situated men because he was still regarded, falsely, as a woman and thus violating the “stereotype” that women cannot be men. But that view is a “stereotype” only insofar as it is true that “gender identity” itself, absent surgical or pharmacological intervention, can displace “sex.” By what authority are the Obamanauts in the Departments of Justice, Education, and Labor authorized to make that determination?

The only alternative would be to claim that the hypothetical Mr. Hopkins was in fact still a woman, and thus, like the actual Ann Hopkins, a victim of discrimination for not acting the way women are supposed to act. But that argument became unavailable once the government issued its fiat that for the purpose of anti-discrimination law one’s “gender identity” is one’s “sex.”

The EEOC’s solution to confronting this conceptual muddle and obstinate law was classic, typical Obama: “construe” the law so that it conformed to their own agenda, and then proceed to claim, quoting their prior transgressions, that their preferred policies are settled law.

Thus we have a letter in the New York Times a few weeks ago by — who else? — EEOC Commissioner Chai Feldblum responding to Peter Schuck’s criticism of “the administration’s novel reading of the law” in its bathroom guidance. Her argument? Nothing novel here: “for the last four years, the Equal Employment Opportunity Commission has processed hundreds of complaints from transgender employees and applicants based on the commission’s legal ruling in 2012 that sex discrimination law prohibits discrimination against transgender people.” This amounts to adverse possession (if you trespass long enough, it’s not trespass) coming to civil rights law: if a regulatory agency unilaterally asserts some radical new reading of the law long enough, it becomes law.

Equally revealing, and even more extreme, is OCR Director Catherine Lhamon’s explanation of why the new transgender bathroom edict required no prior notice and public comment. It is not new law but merely states her agency’s interpretation of existing law. As The College Fix pointed out, “Lhamon’s explanation seems to be that Title IX’s original formulation in 1975 went through notice-and-comment, so any further OCR interpretation” — no matter how “novel” (Schuck), “new and surprising” (Suk), or just plain far-fetched — “needs no follow up opportunity for colleges and the public to weigh in” … and, courts must defer to the agency’s interpretation.

But if the administration’s view that discrimination on the basis of sexual orientation and even gender identity had been prohibited since the initial passage of Title IX, or at least ever since Hopkins included sexual stereotypes, then there was never any need for ENDA, and the years struggling to enact it were a waste of time.

Obama’s Justice Dept., EEOC, and Dept. of Education (via its Office of Civil Rights), has in fact been issuing actual or de-facto rulings that are not authorized by the law they are supposed to enforce. So far Congress has done nothing to stop them, but the trouble with revolutionaries is that their reach often exceeds their grasp, causing the pendulum of popular and even legal opinion to swing back directly at them. In her Congressional testimony, quoted above, Gail Heriot demonstrates that there are some limits, known generally as the non-delegation doctrine, whose revival she urges. Her fundamental complaint is that the recent bathroom edict is simply the latest example of a disturbing trend: “OCR routinely issues guidance that that are untethered to any plausible violation of Title VI or Title IX or to any rule lawfully promulgated pursuant to those statutes,” a charge that she supports with chapter and verse examples and with recommendations about what can be done to reign in the out of control agencies.

A Grimm Fairy Tale?

And it’s not just Congress that may be forced by the administration’s bathroom bullying to reconsider the extreme deference provided to regulatory agencies’ interpretations of their own powers. Writing on the National Constitution Center’s Constitutional Daily blog, respected Supreme Court analyst Lyle Deniston argues that a transgender case the Gloucester County, Virginia, school board is appealing to the Supreme Court could provide a strong challenge to the deference (known as Auer deference) courts have traditionally given to regulatory agencies.

A three-judge panel of the Fourth Circuit Court of Appeals recently ruled 2-1 that a transgender student, Gavin Grimm, who was born a female but identifies as a male, can sue his school board to gain access to the boys’ bathroom. In its statement of intent to file a Supreme Court appeal the school board charges that DOE and DOJ have sought to do “what Congress has not done — replace the term ‘sex’ with ‘gender identity’ in order to support an outcome unilaterally desired by the Executive Branch. This raises substantial questions concerning both federalism and the separation of powers” as well as “the individual’s right to bodily privacy.”

If the Dept. of Education had paused to listen to public comment, it would no doubt have been asked to explain how its new theory of what Title IX requires can co-exist with Title IX’s clear and undisputed text allowing schools and colleges to maintain “separate toilet, locker room, and shower facilities on the basis of sex.” The “Dear Colleague” letter from the Departments of Justice and Education to the nation’s schools and colleges states that “A school may provide separate facilities on the basis of sex, but must allow transgender students access to such facilities consistent with their gender identity. A school may not require transgender students to use facilities inconsistent with their gender identity.”

Here is the square peg / round hole problem entailed by treating gender as sex: Can that school prohibit a transgender student from using facilities that correspond to his or her sex at birth? Does OCR, in short, believe that Grimm, whose biological sex was and still is female, can legally be excluded from the girls’ bathrooms?

If so, that means that “gender identity” always trumps biological sex, with the result that in its zeal to create new transgender rights OCR has in effect obliterated sex as a meaningful category, making the recognition of sex-segregated facilities of any kind non-sensical. If not, that would mean that transgender students are afforded special rights: they could choose which bathroom to attend, while non-transgender students would be limited to the one that corresponds to their sex.

There is another, even more troubling aspect to what the Grimm story reveals about intrusive government overreach. It is the government’s position that even very young students are entitled to determine their own “gender identity,” sometimes even without the involvement of their parents. Thus Examples of Policies and Emerging Practices for Supporting Transgender Students the Dept. of Education recently distributed endorsed the policy of the District of Columbia Public Schools “noting that ‘students may choose to have their parents participate in the transition process, but parental participation is not required.’” That document also endorses a similar policy in Massachusetts that notes “Some transgender and gender nonconforming students are not openly so at home for reasons such as safety concerns or lack of acceptance. School personnel should speak with the student first before discussing a student’s gender nonconformity or transgender status with the student’s parent or guardian.”

As noted in the Fourth Circuit opinion, Gavin Grimm is now a sixteen-year old high school junior. Mrs. Grimm first presented the school board with their demands in August 2014, when Gavin was 15. Thus the Obama administration is arguing that even young — sometimes very young — students can determine their own “gender identity,” and hence “sex” for Title IX purposes, even though they have not even reached — some by many years — the age of consent to have sex anywhere in the United States. (The age of consent ranges from 16 to 18 across the country; in Virginia it is 18.)

(Tomorrow: transgenderism’s impact on school sports, dorms and feminism.)

 

New Data on Black Mismatch and Failure at UVa

The University of Virginia’s “Finals Weekend” — what other schools call graduation — is upon us. Not far behind, no doubt, will be the annual accolades such as the Journal of Blacks in Higher Education’s report that “The University of Virginia consistently posts the highest Black student graduation rate of any state-operated university in the country.” And this has been true “over the past 20 years.”

There is a dark side to this accomplishment. Last June, for example, the African American graduation rate was 80.3% — as usual, the highest in the country among public institutions — but no one seemed to notice that the corresponding 19.7% rate at which blacks failed to graduate in four years was twice as high as the rate for Asians (9.5%) and whites (10.9%). Thus, according to UVa’s Institutional Assessment data, of the 218 blacks who entered in 2011, 43 of them did not graduate in 2015. The six-year graduation rates for the 250 blacks entering in 2009 were better (88.8%), but the rate at which they failed to graduate (11.2%) remained more than twice as high as the rate for whites (5.4%).

Related: Embarrassing Graduation Rate Data?

These most recent numbers are not unique. In fact, they are a bit better than numbers from the previous decade. UVa’s admissions data show that 3,048 blacks enrolled at UVa from the fall of 2000 through 2010, and its graduation rate data reveal that 789 of them, 25.8%, did not receive a degree after four years. 411 of the 2,844 who entered through the fall of 2009, 14.5%, did not receive degrees after six years.

The fact that blacks fail to graduate at twice the rate of whites and Asians at UVa even though it boasts the highest black graduation rate of any public university strongly suggests the presence and effect of “mismatch” that Richard Sander and others have documented — that any group admitted to selective institutions with much lower academic qualifications than their peers will cluster at the bottom of their classes and sustain higher failure rates.

The fact that UVa each year admits a much higher proportion of black applicants than Asians and whites indicates that it is indeed lowering the admissions bar for blacks. In the twelve classes entering from the fall of 2000 through 2011 (to mirror the four-year graduation rates discussed above), an average 33.9% of white applicants were offered admission, but for blacks the offer rate was 54.3%. In the most recent data available, which I discussed here, UVa offered early admission to 29.7% of the white applicants to the class of 2020 and 42.5% of the blacks.

It is theoretically conceivable — but highly unlikely — that there is a non-discriminatory explanation for the racial preference revealed by these admission proportions. But UVa, like most (perhaps all?) similar institutions, makes it impossible to analyze the nature and degree of racial preference it offers by refusing to publish SAT scores and other academic qualification data by race, even though it clearly has the data. Similarly, it publishes student GPA by gender but not by race. And, as I observed on Minding The Campus a few months ago, “it will be a freezing day in July in Charlottesville before UVa voluntarily releases test scores, etc., by race.”

Related: Race and Merit: a Response to Nieli’s Criticism of Groseclose

Well, it is not yet freezing in July, but I have just received a small taste of SAT scores by race from UVa. I shared my Minding The Campus piece linked above with Steve Landes, my Delegate in the Virginia General Assembly, who is interested in this issue and who forwarded my piece with questions to the University’s government relations office. Since Del. Landes is Chairman of the House of Delegates Education Committee and Vice Chairman of the Appropriations Committee, his queries tend to be answered promptly.

Laura Fornash, Executive Assistant to the President for State Governmental relations (and former Virginia Secretary of Education), sent the math plus  verbal results, by race, for the students admitted to the class entering next fall, along with the observation that not all students take the SAT and that UVa’s racial range is not surprising given the results nationally. And indeed the results are not surprising:

African Americans 1154
White 1353
Asian 1397

There is not, of course, a perfect correlation between SAT scores and graduation rates, but those scores are a significant component and indicator of academic qualifications, and there is compelling evidence that raising academic requirements raises the probability of graduation.

Related: 25 Years on the Affirmative Action Firing Line

Peter Salins, former Provost of the State University of New York system, provided strong evidence for that correlation in an Op-ed in The New York Times. In the 1990s, he wrote, “several SUNY campuses chose to raise their admissions standards by requiring higher SAT scores, while others opted to keep them unchanged,” thus providing “a controlled experiment of sorts that can fairly conclusively tell us whether SAT scores were accurate predictors of whether a student would get a degree.”

The short answer, he stated, is “yes, they were.” Campuses that raised the emphasis on the SAT experienced “remarkable improvements” in graduation rates, especially at the more selective campuses, ranging “from 10 percent (at Stony Brook, where the six-year graduation rate went to 59.2 percent from 53.8 percent) to 95 percent (at Old Westbury, which went to 35.9 percent from 18.4 percent).” The results were clear, Salins concluded. “[O]nly those campuses whose incoming students’ SAT scores improved substantially saw gains in graduation rates.”

Worse After Prop. 209

The results in California after Prop. 209 outlawed racial preferences were even more dramatic, and more on point for UVa.

  • For the whole University of California system: blacks who entered in 1996 (before Prop. 209) had a four-year graduation rate of 26.5%. For the class entering in 2001, after Prop. 209, the black graduation rate increased to 38.6%. Six-year rates increased from 64% to 70.2%. Looking at a wider swath of this data, Richard Sander noted that “For the six cohorts of black freshmen who started at UC campuses before Prop 209 went into effect (the matriculating years of 1992 through 1997), the average four-year graduation rate was only 22.2%. For the years since 1998 (matriculating years 1998 through 2005), the black four-year graduation rate across the UC system is 39.4% — a near doubling. For Hispanics the four-year graduation numbers are 27.2% for 1992-97, and 41.8% for 1998-2005.”
  • UC San Diego. The four-year black graduation rate increased from 37.7% for the class entering in 1996 to 51.4% for the class entering in 2001. The six-year rate went from 69.8% to 78.8%.
  • UCLA. The four-year black graduation rate increased from 31.1% for the 1996 class to 53.7% for the 2001 class.
  • UC Berkeley. The four-year black graduation rate increased from 28.8% for the 1996 class to 35% for the 2001 class.

The improvement in black graduation rates at the University of California would likely have been even more dramatic but for the widespreadholistic cheating” and evasion. Indeed, in researching their “magisterial” book, Mismatch, Richard Sander and Stuart Taylor Jr. found so much cheating that they concluded outright bans of affirmative action are not likely to work.

“[B]ecause of universities’ determination to circumvent any ban,” they argue (p. 279), outlawing preferences would not end them but would lead — and has led — to universities evading bans, thus possibly making mismatch much worse, not better.” The post-209 experience in California, however, suggests that such bans are like speed limits: they may not restrict speed to the posted limit, but they do make drivers drive slower than they otherwise would.

High Cost to Students and Taxpayers

Admitting minorities with higher SAT scores after Prop. 209 was not the only cause of their higher graduation rates, but it would be unreasonable to assume it was not a significant component. Thus one of the most disturbing aspects of UVa’s — or any university’s — continuing year after year to admit cohorts of minority students with much lower SAT scores than their peers is that administrators know that a high but reasonably predictable portion of them will fail to get degrees, with a high cost not only to the students and their families but also the taxpayers who support public education.

The reason UVa and others continue to do so, even armed as they are with this knowledge, is, of course, their determination to provide a sufficient degree of pigmentary “diversity,” whatever the cost. A very large, very disappointing, part of that cost at UVa are the 832 black students who entered from 2000 through  2011 who failed to get a degree, a failure to graduate rate of 25.5% of the 3,266 blacks who were admitted over those twelve years. Assuming as I do that many if not most of those 832 students would not have been admitted but for their race, I believe they are just as much victims of “diversity” as the equal number of whites and Asians who would have been admitted but for their race.

Laura Fornash, UVa’s assistant to the president for state governmental relations, agreed with my February Minding The Campus piece that the reason for UVa’s higher admit rate for blacks was that its yield rate was lower than for whites (36.4% vs. 44.5% for next fall’s entering class, she reported), since blacks qualified to go to UVa were heavily courted by other institutions. But that reason is a justification only if one assumes that UVa must have a large enough number of blacks to meet its self-imposed “diversity” obligation.

‘Diversity Uses Blacks for the Benefit of Whites’

What these diversity-justified preferences amount to in practice is admitting a large cohort of blacks knowing that a high percentage of them will not graduate so that there will be a sufficient number of them to provide “diversity” to whites, Asians, and others. “Let me state bluntly,” I stated bluntly back in 2002, “diversity uses blacks for the benefit of whites.”

Minorities admitted who would not have been admitted but for their race (the purpose and effect of affirmative action) are not admitted, after all, to provide “diversity” to themselves. Whatever benefit they derive from being in a “diverse” student body they would also receive if they attended a less selective majority-white institution where they would have a better chance of graduating.

If UVa treated all applicants without regard to their race or ethnicity, it would have what it must believe are too few blacks and too many Asians. (Whether or not it has too few or too many Jews, Mormons, Muslims, Methodists, Missouri Synod Lutherans, or transgender males is not known, because apparently neither religion nor gender identification (at least for now) is regarded as a relevant enough source of “diversity” to count.

What Is to Be Done?

In an ideal world — or even one that merely attempted to live up to what Gunnar Myrdal called “The American Creed” — benefits and burdens would not be distributed (especially by public institutions) on the basis of race, a principle the citizens of California, Michigan, Nebraska , and Arizona enshrined in their state constitutions. But sadly, the world we live in is far from ideal.

Nevertheless, since most Americans believe that government should be transparent, a worthy and achievable goal is to require state institutions and even private universities that receive public funds to publish data, such as SAT scores and class rank, revealing how heavily they put their thumbs on the racial scale. “It’s outrageous that public universities are not transparent about whether, and how, and how heavily they treat students differently on the basis of skin color and what country their ancestors came from,”

Roger Clegg, president and general counsel of the Center for Equal Opportunity argues (in an email to me, quoted with permission) — especially because, he continued, “the victims of this lack of transparency are the supposed ‘beneficiaries‘ of the discrimination — who are not told that their chances of graduation and getting good grades will be substantially less than other students’.” Conveniently, Clegg and Hans von Spakovsky have written a draft model “sunshine bill” that provides a good starting point for consideration of such legislation.

Universities, in short, should at least be required to publish data that would provide prospective applicants with information about the fate of students with qualifications similar to their own. UVa has just released SAT scores by race for one year. It would be enormously helpful to prospective applicants, their parents, and school counselors to have that data for every year, broken down by ranges of scores, which would allow useful correlations with the graduation rate data already provided. I suspect students of whatever race or ethnicity with similar SAT scores would have similar graduation rates, but since UVa and most other universities refuse to release that data voluntarily, it is impossible to confirm that suspicion.

It is easy to understand the institutional reluctance. After all, some black students may be reluctant to attend UVa if they knew in advance that their chance of failing to obtain a degree were two times higher than whites or Asians and that they would have an equal chance at less selective institutions where their qualifications equaled those of their peers.

Randall Kennedy’s View

It is less easy to understand the willingness, even eagerness, of zealous affirmative action advocates to sacrifice those mismatched students who predictably fail to earn degrees. Consider the argument, for example, of Harvard law professor Randall Kennedy, whose book, For Discrimination,  I reviewed  here, “The Odd Career Of Randall Kennedy.”

Kennedy supports the preferential admission of black law students even if “mismatch” results in the production of fewer black lawyers because, he wrote, most of the preferentially admitted do graduate and “the cadre of black attorneys trained at the top-tier schools are more valuable to the black community than those trained at the lower-tier schools, and hence, if necessary, maintaining the numbers at the higher-tier schools would be worth sacrificing marginal members or potential members of the black bar.”

Perhaps many “marginal” potential UVa students would agree with that view, but since a few — and their tuition-paying parents — may not, UVa should publish the data allowing them to decide for themselves.

Is the Glut of Liberals In Academia Benign?

Academe is Overrun by Liberals. So What?” UCLA historian Russell Jacoby both declares and asks in a long Chronicle of Higher Education essay. Although published on April 1, it is presumably not an April Fool’s joke.

For a number or reasons — not all of which coexist easily —Jacoby dismisses out of hand the notion that there is any cause to be alarmed, or even concerned, about any “underrepresentation” of conservatives in academia.

His reasons:

1)They are really not so underrepresented. Why, he asks, is the concern always limited to humanities and social sciences? “Why not the medical sciences? Earth Sciences? Aerospace engineering? After all, those fields … possess the clout, money, and prestige.” The reason, he says, “is obvious: Liberals do not outnumber conservatives” in many fields that cover “a lot of turf — indeed, most of the university.”

2) Nothing new here. Jacoby is particularly critical of the social psychologists associated with the Heterodox Academy and their concern with the increasing political imbalance of college faculties. “That social psychologists tend to be liberal cannot be surprising,” he points out. “Virtually all the founders or key figures of American social psychology — Carl Murchison, Gordon Allport, Kurt Lewin — belonged on the left.” Also not surprising is that Jacoby did not attempt to make that argument for history or economics or political science or even sociology (see Emile Durkheim).

3) There are so few conservatives because so many are so dumb. “[T]hat there are many serious and responsible conservative thinkers cannot be doubted,” Jacoby begrudgingly acknowledges, but it also cannot be doubted that he doesn’t think there are very many of them. He equates conservative with Republican and then argues that any analysis of the paucity of conservatives in academia “cannot be taken seriously” if it “ignores” the fact that the “party of Dwight D. Eisenhower … became the party of Sarah Palin, Rick Perry, and Marco Rubio, all of whom denounce higher education, science, and the Department of Education.” Since “an anti-science, anti-evolution, and anti-climate-change ethos increasingly characterizes the Republican Party,” he is not surprised that so few of its members find their way into the humanities and social sciences. One gets the idea that Jacoby believes the only “serious and responsible” conservative is a former Republican.

4) No evidence that “left-wing unanimity distorts research and teaching.” Those who lament the underrepresentation of conservatives assume that “a balance of conservative and liberal professors would lead to better teaching and research, Jacoby writes. Conversely, having fewer conservatives on campus damages the educational enterprise. But is there evidence for that belief? Virtually none.” Implicit in this mistaken lament, he notes, “is that Democrats and Republicans teach or do research differently. A course on Chaucer or Rome taught by a Democrat supposedly diverges from that taught by a Republican.”

Related: Social Psychology—a Field with only 8 Conservatives

Russell Jacoby, meet Bloomberg News columnist Megan McArdle, also writing on April 1:

The politicization of the humanities was well under way when I was an English major in the early 1990s, and my education suffered as a result. This wasn’t because I was so oppressed as a conservative, but because in roughly half my classes, there was no easier route to an A than to argue that some long-dead author was a sexist pig, racist cretin or homophobic jerk. Being, like so many college students, not overly fond of unnecessary labor, I’m afraid I all too frequently slithered along the easy path to the 4.0.

Jacoby is a cultural historian, and thus it is odd he ignores the anti-conservative hostility that is pervasive in academic culture and dominant in many precincts of it. Intellectual diversity on campus is hindered not just by the paucity of conservative professors but also, perhaps especially, by the way conservative arguments are often treated, when they are treated at all.

In their recent book, Passing On The Right: Conservative Professors In The Progressive University Jon Shields and Joshua Dunn Sr. describe chilling examples of outright bias. A sociologist, in one example, wrote an article “with findings that affirmed a progressive critique of an important American institution” that was widely admired and featured in Contexts, an American Sociological Association Journal that attempts to disseminate important research to a wider audience. The author subsequently discovered a coding error that changed his results, but he could not get the corrected article published anywhere.

In a similar vein, in Mismatch Richard Sander describes (pp. 77-83) several episodes of prominent law professors and journals refusing to correct clearly demonstrated errors that undermined their conclusions. In one of them, he noted, the “results were stunning … a powerful, independent confirmation that law school mismatch was dramatically hurting minority law students.” If the authors, widely “respected empiricists,” had “fully and fairly reported their [corrected] results,” Sander concludes in both sorrow and anger, “the entire course of debate on law school affirmative action might have been quite different.”

Related: Affirmative Action for Conservative Faculty?

Jacoby does not discuss the bias and discrimination against conservatives and politically incorrect arguments that might have some bearing on the nature and quality of intellectual diversity in the academy, although he does mention Passing On The Right, a book that is filled with examples of it. Readers of Minding The Campus will know (from my review of it) that I am not a big fan of that book, but Jacoby’s brief reference misrepresents its argument.

Jacoby’s polemic is devoted primarily to rejecting affirmative action for conservatives, but the argument he attacks is largely a straw man. Thus he quotes Shields and Dunn stating that “The Bakke rationale obliges its defenders to support affirmative action for conservatives.” On their next page, however, they state explicitly that “To be clear, we are not advocating for or against affirmative action for conservatives.” And in case that was not clear enough, in a March 18 Op-Ed summarizing their book in Jacoby’s hometown newspaper, the Los Angeles Times, Shields and Dunn stated unequivocally that “We don’t endorse preferences in graduate admissions and hiring.”

Jacoby’s confusion, if that’s what it is, flows from the fact that he assumes that anyone who believes that a paucity of conservatives on campus is a problem must favor a solution of not only affirmative action but preferential treatment leading to proportional representation. Referring to studies by the “Heterodoxians and their sympathizers” showing “political lopsidedness on American college faculties,” Jacoby writes, “The assumption of all these studies is that political variations require correctives. But why should political proportions be constant across society?”

Of course, neither the “Hetereodoxians” nor any of their sympathizers of whom I am aware demand proportional hiring of conservatives. Nearly all of them would be more than satisfied if the “diversity” and “inclusion” that is so incessantly preached in academia were actually practiced more consistently — if, that is, “inclusion” were extended far enough to include conservatives and conservative ideas.

Jacoby’s fundamental fallacy is that he denies the existence of the disease — the disturbingly small number of conservatives in many areas, with the resulting injury to intellectual diversity — because he opposes the cure that he mistakenly imputes to those who wish to treat it.

Claude Steele, Victim of Stereotype Threat?

Claude Steele, the social psychologist best known for developing the influential concept of “stereotype threat,” is in hot water. He is Executive Vice Chancellor and Provost of the University of California at Berkeley and holds appointments in the Psychology Department and the Graduate School of Education, ” He has come under fire for the way he handled a sexual harassment complaint against the dean of the law school (who as a result of that complaint and ensuing lawsuit is now the ex-dean), Sujit Choudhry.

Law Students Unhappy

“The provost ordered a 10% pay cut in Choudhry’s $415,000 annual salary,” the Los Angeles Times reports, “required Choudhry to attend counseling and ordered him to apologize to the assistant, Tyann Sorrell, after Berkeley officials determined last July that the then-dean had violated the campus’ sexual harassment policy by repeatedly forcing unwanted kissing, hugging and touching her.”

Some think there’s more: the suspicion that Provost Steele might have handed down only a figurative slap on the wrist in return for a favor. According to documents from the dean’s harassment investigation, “Choudhry urged the faculty to approve Steele’s appointment to the law school in May,” the Los Angeles Times article reports, “at the same time the dean knew he was being investigated over sexual harassment allegations.”

At a March 10 faculty meeting Steele agreed to resign from the law school appointment and “to remove himself from the search process for an interim dean, after widespread criticism of his leadership — including a survey that found 75% of nearly 400 law students surveyed did not want him involved.”

So far Steele has not been found guilty of any wrongdoing, and University of California President Janet Napolitano and UC Berkeley Chancellor Nicholas Dirks have issued statements defending him. The allegations of a quid pro quo are “absolutely untrue,” Dirks said. Even in the absence of established wrongdoing, however, it seems safe to say that at the least Steele has not handled his vice chancellery and provost responsibilities adroitly.

Since Steele’s disappointing performance in handling a controversial harassment controversy can be compared to performing poorly on a test, perhaps it is appropriate to ask whether Steele himself might be a victim of his own discovery.

<Ten Reasons Not to Wait 25 Years to Revisit Grutter>

Here is Steele’s description of the nature and effect of “stereotype threat” taken from his expert testimony in the Grutter affirmative action  case, where he argued that standardized test scores do not accurately reflect the ability of black students.

My research, and that of my colleagues, has isolated a factor that can depress the standardized test performance of minority students — a factor we call stereotype threat. This refers to the experience of being in a situation where one recognizes that a negative stereotype about one’s group is applicable to oneself.  When this happens, one knows that one could be judged or treated in terms of that stereotype, or that one could inadvertently do something that would confirm it.

In situations where one cares very much about one’s performance or related outcomes — as in the case of serious students taking the SAT — this threat of being negatively stereotyped can be upsetting and distracting.  Our research confirms that when this threat occurs in the midst of taking a high stakes standardized test, it directly interferes with performance.

Steele is African-American, and he is certainly aware of the widespread stereotype that minorities — no matter how distinguished — are often stereotyped when they are appointed to prestigious, highly visible, high stakes positions such as his, that they are often chosen more as a demonstration of their institution’s devotion to “diversity” than because of their own merit. Did Steele’s knowledge of those stereotypes interfere with his job performance? If not, does not fact that he did not succumb to “stereotype threat” undermine or seriously qualify the theory?

<The Implausibility of Stereotype Threat> 

“Stereotype threat” is no doubt one of the most vigorously explored topics in social psychology, and I take no position here on its scientific merits. In my essay here on the widely noticed Reproducibility Project, however, “Almost Two-Thirds of Psychological Studies Are Wrong,”

I did discuss two of Steele’s “stereotype threat” studies that could not be reproduced.

Whatever its general merits, however, I have never understood why that theory has been so widely relied on to justify abandoning or minimizing the influence of standardized tests. “Stereotype threat” means that even highly qualified blacks don’t do well on tests where blacks as a group underperform, and hence where there is a stereotype of black underperformance that will be applied to them. Thus it has always seemed to me that insofar as “stereotype threat” is a real problem, race-blind grading and admissions would be the most reasonable solution.

Claude Steele, however, opposes race-blind admissions, and recommends discounting standardized test results for blacks. His antidote to “stereotype threat,” he explained in a long article summarizing his theory, is to “tell students that you you are using high standards” — this signals that that they are in fact being evaluated by “standards rather than race” — “and that … they can meet those standards (this signals that you do not view them stereotypically).”

Telling universities to eliminate or minimize standardized test scores for blacks, thus giving them admissions preferences, however, sends exactly the opposite message, as I argued in “Claude Steele, ‘Stereotype Threat,’ And Racial Preference” back in 2003 criticizing his Grutter testimony. It says in no uncertain terms to minority students that they are not capable of meeting standards applied to others and they must be judged at least in part on the basis of their race to gain admission.

Threat Follows Its Targets

Nor are taking standardized tests the only venue where “stereotype threat” impairs minority behavior, Steele observed in his Grutter testimony. “Stereotype threat follows its targets onto campus, affecting behaviors of theirs that are as varied as participating in class, seeking help from faculty, contact with students in other groups, and so on.”

Does it affect only students? If not, could it have affected how the Berkeley provost dealt with the tests of his office? It would be ironic indeed if “stereotype threat,” Frankenstein-like, turned on its creator and undermined his recent job performance, and it would be equally interesting to see the explanation if it did not.

Pollyannas on the Right: Conservatives OK on Campus

“Forget what the right says,” the title of a recent Washington Post OpEd proclaims, “Academia isn’t so bad for conservative professors.”

The sub-title, “Right-leaning professors do face challenges on campus, but we can still thrive,” both reveals that the authors — Jon A. Shields, associate professor of government at Claremont McKenna College, and Joshua M. Dunn Sr, associate professor of political science at the University of Colorado-Colorado-Springs— regard themselves as conservative and summarizes the argument of their new book, Passing On The Right: Conservative Professors in the Progressive University. “As two conservative professors,” they write, “we agree that right-wing faculty members and ideas are not always treated fairly on college campuses. But we also know that right-wing hand-wringing about higher education is overblown.”

The authors’ sanguine conclusions about the nature of conservative life in progressive-land rest on the wobbly foundation of their survey of and interviews with 153 conservative academics in the social sciences and humanities. For reasons I will discuss, that survey is far too rickety to support robust generalizations about conservative academics, but that does not mean its results are without value or interest — just as the fact that the plural of anecdote is not data does not mean that anecdotes cannot be revealing, instructive, and amusing.

Having decided to limit their focus to social science and the humanities, the authors further restricted their search for conservatives to six disciplines — economics, political science, sociology, history, philosophy, and literature. The effect if not the purpose of this restriction was to exclude a number of fields — they mention psychology, anthropology, education, and all the race/ethnicity/gender “studies” programs — where progressives are dominant and conservatives especially scarce or even virtually absent.

Next was the problem of deciding “who should count as a conservative.” Their solution side-stepped the difficult problem of definition, of deciding what principles or policy preferences are essential. “We simply decided,” they write, “to classify professors as conservative if they identified as such.”

That left the problem, however, of how to find the professors who so identified, and their solution was rather haphazard. They began by “culling names from right-wing journals and academic membership lists with distinct ideational profiles,” followed by asking professors culled from these sources “to help us grow our snowball sample by identifying other scholars that are likely to self-identify as “political conservatives or libertarians.”

The culled were in turn asked to identify others, who were asked to identify others, and so on, which generated “249 confirmed conservatives,” which in turn resulted finally in the authors conducting interviews with 153 self-identified conservative professors from 84 colleges and universities. The institutions are named in a table; the interviewees were not named, in part to protect those who were afraid of being outed. “Approximately a third of the conservatives we interviewed, for example, concealed their politics prior to tenure by ‘passing’ as liberals.” The comparison of conservatives on campus to gays in the closet was pervasive throughout the book, usually implicit but often explicit.

The resulting “snowball sample” of conservative academia was commendably interesting, easily justifying the effort of creating it and trying to cull observations of and about such an elusive minority group, but it does not have a snowball’s chance in hell of providing reliable generalizations about the lives of conservatives on campus. It comprised a collection of individuals that was both too small and too idiosyncratic in the situations and experiences of its members to support reliable generalizations.

I believe, in short, their net could have been cast wider (or the snowball allowed to gather more snow). Apparently no one on a popular listserv of conservative historians had been consulted, nor were a few prominent conservative historian friends of mine approached. In addition, books and memoirs, such as Paul Gottfried’s Encounters: My Life with Nixon, Marcuse, and Other Friends and Teachers would have added a dimension that is missing here.

Regarding the 153 conservative specimens who were collected by Shields and Dunn, here is their distribution by discipline:

Political Science      25%

Economics                  22%

History                        19%

Literature                   15%

Philosophy                 10%

Sociology                       9%

On the face of it there’s nothing unreasonable about this distribution — though there’s also no reason to think it represents anything other than itself — but in one important respect it demands the Sesame Street query, “which of these things is not like the other?”

The answer, of course, is economics. “Economics,” the authors recognize, “is odd. Surveys of faculty consistently show that economists are far more likely to be on the right than professors of any other discipline…. [T]he discipline of economics is not plagued by partisan polarization.” Thus, unlike other interviewees, “the economists we interviewed do not feel discriminated against, nor do they ever feel the need to hide their political views.”

The authors found, for example, that 46% of of political scientists, 42% of sociologists, and 42% of historians but only 4% of economists among the conservatives they studied indicated they had concealed evidence of their politics before tenure. 36% of their economists, in fact, were actually in conservative-majority departments, compared to 0% of sociologists, 4% of literature professors, and 12% of historians.

The large proportion of economists in the sample — and even of political scientists, since that field also contains many with orientations such as behaviorism and rational choice that are “indifferent and sometimes even friendly to conservative points of view” — makes the authors’ frequent generalizations about conservative academics as a whole problematic.

What should one make of their finding, for example, that 36% of their respondents omitted information from their CV’s that might identify them as conservatives or libertarians? Does that number— masking what must have been much much lower responses from economists and higher responses from philosophers, sociologists, and literature professors — reveal anything useful about what it means to be a conservative in the humanities and social sciences in general?

There were other survey results that suggest the situations and experiences of the conservatives located by the authors’ rolling snowball method do not reflect those of most conservative academics. For example, I think it unlikely that 21% of conservative philosophers, 17% of conservative political scientists, and 12% of conservative historians actually work in departments that have a majority of conservatives.

The text of Passing on the Right is heavily salted with tables containing numbers similar to those I’ve quoted, giving the book an air of field-based social science research, but in fact its argument and conclusions rest all but exclusively on quotes from the authors’ interviews. That argument in a nutshell: academia itself, and the position of conservative professors in it, is much better than portrayed by “David Horowitz’s campaign and other right-wing efforts to scandalize the radicalism of higher education.”

The authors’ attempt to distance themselves from “right-wing critics” is a recurring theme, often in the form of snarky put-downs of critiques like Horowitz’s, Roger Kimball’s Tenured Radicals, or “the designs of conservative organization’s like the Koch Foundation.” Some conservatives, they regretfully acknowledge, “accept monies from the coffers of right-wing foundations,” as though that were somehow subversive of the mission of the university.

“While many on the right and left conclude that academia is not an appropriate career choice for conservatives,” Shields and Dunn write in their Introduction, “they do so without knowing very much about the right-wing thinkers who are already quietly making a living as professors.” Their book, they believe, “corrects that shortcoming by illuminating the hidden world of right-wing professors.”

The most illuminating word in that claim is an adverb: quietly. Although Shields and Dunn produce numerous quotes from conservative academics who “generally told us that the academy is far more tolerant than right-wing critics of the progressive university seem to imagine,” the weight of the evidence they produce seems to undermine their own rather rosy conclusions.

Consider, for example, the poignant beginning of Chapter 4, “Closeted Conservatives”:

We met our first closeted professor in a leafy park, about one mile from his prestigious research university. Though we found a secluded spot, our subject was edgy and spoke softly. When the sound of footsteps intruded on our sanctuary, he stopped talking altogether, his eyes darting about….

Given the drama of this encounter, one might think that he is concealing something scandalous. In truth, this professor is hiding the fact that he is a Republican. It is a secret he guards with great care.”

I have already alluded to the similarity of the situation of closeted conservatives to closeted gays. Another comparison, not mentioned by the authors, also comes to mind. Their title, Passing On The Right, obviously refers to blacks crossing over the color line and passing as whites, but another fraught racial situation may be an even more apt comparison: blacks under slavery who were allowed to work in the plantation house and later, during segregation, as servants, as long as they were on good behavior and “knew their place.”

Finally, in my view, Shields and Dunn sound far too much like Polyannas on the Right, but the best thing about their book — and it is a good thing indeed — is that they present more than enough evidence to allow readers to reach their own, and far different, conclusions.

Fulbright Pushes Diversity Courts Don’t Allow

The Chronicle of Higher Education reports that “Fulbright Seeks More Diverse Pool of Scholars and Students.” What it doesn’t report is why.

Fulbright, of course, does not really want a more diverse “pool.” What it wants is more minorities (presumably not including Asians) actually awarded grants. But the only reason given for its efforts to select more minorities is that awarding more Fulbrights to minorities … is good for the minorities who receive them.

“We want to send the message to all students and scholars that Fulbright encourages your interest, and that we’re committed to promoting diversity in the program for the long term,” Mala Adiga, the department’s deputy assistant secretary for academic programs, said in a statement to The Chronicle. “We believe that individuals from a wide range of backgrounds, who have the talent and commitment to succeed, should have an opportunity to expand their knowledge of the world as Fulbrighters.”

Of course they should, and no one can doubt that having the U.S. Department of State’s Bureau of Educational and Cultural Affairs, which administers the Fulbright program, provide an all expense-paid sojourn overseas is no doubt nice for the recipients.

Moreover, one can understand the concerns of Kimberly Jackson, an associate professor of chemistry and biochemistry at Spelman College, who received “one of the U.S. government’s prestigious Fulbright research awards.” Professor Jackson, who is black, The Chronicle tells us,

wanted to make sure that she and her three children would have a positive experience. But during a Fulbright mixer before her departure, she says, she didn’t find a fellow Fulbright scholar who “looked like her,” and she didn’t meet anyone who could relate to her concerns.

What The Chronicle does not tell us, however, is exactly why the U.S. Department of State should make (or even be allowed to make) special efforts to ensure that some applicants, based on their race or ethnicity, “have an opportunity to expand their knowledge of the world.”

Diversity-justified special efforts to increase the numbers of minorities, in short, presumably require more than providing Professor Jackson and other African Americans with the pleasure of finding more people at Fulbright mixers who “looked like her” and could relate to her concerns. Insofar as “diversity” justifies preferential treatment based on race, for example, it is because whites (and presumably Asians) need to be exposed to people who are “different” from themselves.

To whom are those given Fulbright grants supposed to provide “diversity,” especially since Prof. Jeanne Maddox Toungara, a historian at Howard who received a Fulbright to study in West Africa, observed, officials from other countries that help fund the Fulbright program “may not be as committed to ‘multicultural representation’” as the United States.

Indeed, minority “representation” seems to be the Fulbright program’s overriding concern. According to The Chronicle,

In the student program, the number of black grantees rose from 33 in 2005-6, or less than 3 percent, to 99 in 2015-16, or 5.2 percent of the almost 1,900 grantees. But the program’s student participants remained mostly white, at nearly 63 percent, and black and Latino students remain underrepresented in the program, compared with their share of the U.S. undergraduate population.

In the scholar program, 66.4 percent of the 768 award winners in 2015-16 were white. The percentage of black and Latino recipients, at 7 percent and almost 6 percent, respectively, roughly matches the representation of those groups as faculty members at American colleges, according to data from the U.S. Education Department.

What those numbers conspicuously fail to reveal, however, is what percentage of white, black, and Hispanic applicants were accepted.

More important, in the absence of any compelling rationale for increasing the “diversity” of those awarded Fulbright grants, this fixation on representation appears to be a perfect example of the “diversity for its own sake” that has been rejected time and again by the Supreme Court.

Perhaps it is time to stop what Justice Thomas has declared, quoting Grutter, quoting Bakke, is a “nonstarter.” (“Attaining diversity for its own sake is a nonstarter. As even Grutter recognized, the pursuit of diversity as an end is nothing more than impermissible ‘racial balancing.’”)

Racial Discrimination by the University of Virginia

By John S. Rosenberg

The University of Virginia has just released data about it applicants for the class of 2020, including a “record number of Early Action minority applications.” These numbers reveal a prima facie case of racial discrimination by the university.

The cover of the February 1 Cavalier Daily presents a graphic display of the distribution of early admission offers by race. Offers were extended to 2893 of 9636 white applicants, for an acceptance rate of 29.7%. Of the 692 blacks who applied for early admission, 294 were accepted — an acceptance rate of 42.5%.

It is conceivable, of course, that there is a non-discriminatory explanation of these dramatically different acceptance rates. The accompanying article quotes Jahvonta Mason, a third-year undergraduate and co-chairman of the Student Council’s Diversity Initiative Committee, who, “These students tend to have some of the best undergraduate success rates of any university in the United States.” True, but how likely is it that their qualifications were so much higher than those of the white early admission applicants? In any event, it will be a freezing day in July in Charlottesville before UVa voluntarily releases test scores, etc., by race.

More likely is that UVa has to over-admit qualified minorities because they will also have been admitted to other institutions, many of which are quite literally bidding for them. According to Mason, “acceptance rate of minorities is exciting,” but that does not solve what minorities at UVa see as “the problem.” Many “minorities who received offers to come to UVa will ultimately decide to go to another university,” Mason said. “Part of the problem is that many of these students can go to other academically comparable universities for free because of minority scholarships, and UVa doesn’t offer any.”

That may or may not be true, depending in part on a Clintonian parsing of the meaning of “offer” (see my discussion of racially restricted scholarships in “Is The University Of Virginia A Racial Scofflaw?”), but it is clear UVa is going the extra mile after mile after … to recruit and retain minority students. Proudly describing these efforts to the Cavalier Daily, Dean of Admissions Gregory Roberts mentioned “several new initiatives the admissions office is implementing to increase the number of admitted minority students who enroll, including connecting current students to admitted students, hosting seven different open houses in the spring, reaching out to every admitted African-American student through alumni and a newly-redesigned admissions packet mailed to acceptees.” (Query: Should white and Asian students regard the absence of similar efforts on their behalf an institutional microaggression?)

When liberals see racial differences in rewards or punishments much less severe than UVa’s Early Action decisions, they are quick to decry discrimination, either overt and intentional or covert, “systemic,” etc. So far no such complaints have been heard in Charlottesville — perhaps simply providing more evidence for the old saw that if liberals didn’t have double standards where race is concerned they wouldn’t have any standards at all.


John Rosenberg blogs at Discriminations.

Another Illegal ‘Diversity’ Scheme at Michigan

By John S. Rosenberg

In my first year of graduate school at Yale, the debate over admitting women to the college was still raging.  A joke (or maybe it wasn’t) at that time was that the Old Yalies were perfectly willing for the college to go co-ed — so long as no male who would have been admitted in the absence of co-education was rejected … and the size of the entering class was not increased.

I was reminded of this resistance to co-education by a recent front-page story in The New York Times detailing an extraordinary measure the University of Michigan has taken to increase the “diversity” of its entering class. “The size of the freshman class was cut, by 434 students to 6,071,” The Times reports, “and no one was admitted off the waiting list, which favors higher income — often white and Asian — students, who can afford to put down a deposit to reserve admission at another college while they wait.”

Think about that,” writes Roger Clegg. “People are refused admission, not just because it was preferable to admit someone of a different color (as bad as that is), but because the school wanted to increase the percentage of some colors of students by denying admission to students of other colors.”

Also think about this: what exactly is the nature — leave aside the value — of the “diversity” that is increased simply by reducing the number of the ‘non-diverse’ admits? Kedra Ishop, Michigan’s associate vice president for enrollment management (who no doubt developed her skills restricting whites and Asians as director of admissions at the University of Texas),  must believe that blacks and Hispanics possess only a finite amount of “diversity” to disperse, and that restricting the numbers who benefit in mysterious ways from being exposed to them will thus increase the dose of it each of the non-diverse will receive.

Refusing to admit any applicants from the waiting list because more of them are white and Asian is nothing more, or less, than intentional racial discrimination, different only in degree but not in kind from the ostensibly neutral “grandfather clauses” once used by Southern states to restrict black voting.

It is also not Michigan’s first foray into discrimination by proxy. Its “Descriptor Plus” demographic data analysis program developed in conjunction with the College Board (now called “Segment Analysis Service”) was an attempt to harvest minority students without appearing to do so.

That program segments the entire U.S. population into 180,000 “neighborhoods,” and then places each into one of 30 “clusters” with unique attributes such as mean SAT scores, parental education levels, percentage of high school graduates entering college, and percentage of minority students. “Using these collected attributes and clusters,” the Michigan Review reported, “U-M hopes to preserve current minority enrollment levels while obeying the letter, if not the spirit, of Proposal 2 [which banned the consideration of race].”

According to Teresa Sullivan, now the formerly embattled president of the University of Virginia but then the provost of the University of Michigan (and as a sociologist specializing in labor force demography and affirmative action no doubt heavily involved in the development of “Descriptor Plus”), these demographic indicators are “applied in a holistic admissions evaluation” and “are not simple substitutes for race or ethnicity.”

“Of course they are not ‘simple substitutes for race and ethnicity,’” as I commented here. “They are complex, expensive substitutes.” (For more on the exemplary career of Teresa Sullivan as an affirmative action apparatchik, see my “Was Teresa Sullivan an Affirmative Action Hire?” here and here.)

Michigan’s purely numbers-driven desire to restrict the admission of Asians and whites and its “diversity”-justified discrimination by demographic proxy is both offensive and presumptively illegal. Even Grutter described “outright racial balancing” as “patently unconstitutional,” and in Parents Involved Chief Justice Roberts noted that a fatal flaw of the “racial balance” sought by the school districts is that it was defined “solely by reference to the demographics of the respective school districts.”


John Rosenberg blogs at Discriminations

Will the Supreme Court Stop Racial Preferences?

Today the Supreme Court hears arguments in round two of Fisher v. Texas.

Abigail Fisher, you will recall, claimed (and still claims) that the University of Texas’s admission preferences for blacks and Hispanics amounted to racial discrimination against her because she is white. In round one the Supremes almost agreed but instead vacated and remanded the case to the Fifth Circuit to determine if it was really, really necessary for UT to discriminate against Ms. Fisher in order to perform its educational mission. The Fifth Circuit sided with the University again, and the Supreme Court will now consider the matter a second time.

Related: Fisher II–A Mystery Solved

In “Race & Admissions: Round 2 at Supreme Court” a week ago, the National Law Journal briefly summarized the case and presented representative excerpts from three amicus briefs supporting Ms. Fisher and three supporting UT’s race preference policy. The latter three — presenting the views of the military, large corporations, and elite universities, what an earlier generation would have called “The Establishment” — deserve a close look. Following are excerpts their arguments and my comments.

Thirty-six former military leaders: Uni­versity admissions policies, including those at the University of Texas at Austin, determine the makeup of our officer corps. As was true when Grutter was decided, our military cannot achieve a racially diverse officer corps if universities are required to turn a blind eye toward race.

Translation: If universities are forced to treat all applicants equally, without regard to their race, i.e., “turn a blind eye toward race,” the military will find it much more difficult to discriminate based on race in selecting and promoting our officers. It would be required, in short, to limit its evaluation criteria to non-racial qualifications such as merit and leadership ability.

Fortune 100 companies: For amici to succeed in their businesses, they must be able to hire highly trained employees of all races, religions, cultures, and economic backgrounds…. [The following sentence is from the brief but was not quoted by the National Law Journal.] Amici are dedicated to promoting diversity as an integral part of their business, culture, and planning. But amici cannot reach that goal on their own.

Translation: It’s easier for us to discriminate in hiring if universities have discriminated in admissions. (See the military argument, above.) The Supreme Court has, unfortunately, allowed higher education institutions to engage in racial discrimination to promote “diversity” under certain theoretically strict conditions, and they are required to demonstrate that “diversity” is in fact critically important for their academic mission. That license (and corresponding requirement), however, has never been extended to corporations.

Related: 25 Years on the AA Firing

The corporate brief also engages in hyperbole, as when it asserts, “It also is critical to amici that all of their university-trained employees have had the opportunity to share ideas, experiences, viewpoints, and approaches with a broadly diverse student body.” (Emphasis in original) Really? All university-trained employees? If true, that would mean these diversity-addicted corporations refuse to hire graduates of the sixty or so all-women colleges in the United States.

University of Michigan: Despite persistent and varied efforts to increase student-body racial and ethnic diversity by race-neutral means; despite committed efforts by University faculty, staff, students, and alumni to conduct race-neutral recruiting and admissions programs; and despite admissions consideration and extensive financial aid for socioeconomically disadvantaged students, admission and enrollment of underrepresented minority students have fallen precipitously in many of U-M’s schools and colleges since Proposal 2 [banning affirmative action in the state] was enacted.

Translation: The amount of ‘diversity” we formerly enjoyed, and wish we could continue requires deep and extensive preferences based on race, not simply a “plus factor” in close cases. Indeed it does; the degree of decline in minority admissions after the prohibition of racial preference is in fact the best measure of the magnitude of the preferences that had previously been awarded.

The University of Michigan brief trumpets the fact that “In 2006—the last admissions year before Proposal 2 took effect—… Black undergraduate enrollment was 7.03% …; for the past five years it has ranged between 4.41% and 4.71%.” Aside from whether or not this is a “precipitous” decline and whether or not it should justify preferential treatment of black applicants, the demographics of the UM population are considerably more complex, and even confusing, than the brief’s cherry-picked numbers suggest.

In 2006, for example, the supposed high-water mark of “diversity,” according to the University of Michigan’s Office of the Registrar Ethnicity Report, 59.7% of the total enrollment was white and 12.1% was Asian. According to the 2015 Report, however, after nine years of allegedly “precipitously” declining enrollment of underrepresented minorities, whites were only 56.2% and Asians 11.2% of total enrollment. Go figure.

Related: The Sixth Circuit Undermines AA

There is no mention, of course, in any of these briefs of the rise or fall of the numbers of Jews, Muslims, Evangelical Christians, or other minorities who presumably also can contribute to “diversity.”

The Supreme Court’s begrudging and half-hearted legitimization of racial preferences from Bakke through Grutter to Fisher has contributed enormously to a vast state-sponsored racial spoils system and hence increased racial divisiveness. In Fisher II, the court has the opportunity to undo some of this damage.

Women Favored 2-to-1 In STEM Hiring

Most readers of the higher education press likely believe that women are underrepresented in STEM field because of sexist stereotypes, “unwelcoming” attitudes and practices, and either implicit or outright bias.

But the work of two Cornell psychologists, Stephen Ceci and Wendy Williams, co-directors of the Cornell Institute for Women in Science, has upset this apple cart of conventional wisdom. In a number of peer-reviewed articles, papers, and op-eds, they have presented the findings of their research showing, as they put it in a New York Times op-ed last year, “Academic Science Isn’t Sexist,” summarizing their recent research published in Psychological Science in the Public Interest. That research, they wrote,

reveals that the experiences of young and mid career women in math-intensive fields are, for the most part, similar to those of their male counterparts: They are more likely to receive hiring offers, are paid roughly the same (in 14 of 16 comparisons across the eight fields), are generally tenured and promoted at the same rate (except in economics), remain in their fields at roughly the same rate, have their grants funded and articles accepted as often and are about as satisfied with their jobs. Articles published by women are cited as often as those by men. In sum, with a few exceptions, the world of academic science in math-based fields today reflects gender fairness, rather than gender bias.

Last spring they published a blockbuster article in the Proceeding of the National Academy of Sciences, “National hiring experiments reveal 2:1 faculty preference for women on STEM tenure track.” Williams and Ceci constructed elaborate, detailed resumes for three fictional applicants for an assistant professorship in biology, engineering, psychology, and engineering: an extremely highly qualified woman, an equally extremely highly qualified man, and a slightly less qualified man. They then wrote a job application for each, including extensive quotes from recommendations, search committee evaluations, publications, and biographical information. These “applications” were submitted to 873 tenure-track faculty members (including a roughly equal number of men and women) from 371 universities around the country.

“The results,” Science magazine reports, “run counter to widely held perceptions and suggest that this is a good time for women to be pursuing academic careers….  A woman applying for a tenure-track faculty position in STEM … at a U.S. university is twice as likely to be hired as an equally qualified man, if both candidates are highly qualified, according to a new study.” A second article in Science, “Women have a hiring advantage in the scientific stratosphere,” emphasized that “In every field but economics, where the data indicated no gender preference, the respondents strongly preferred the purportedly female candidates.”

These dramatic findings were also widely reported in the popular press. A long article in the Washington Post, for example, “Study finds, surprisingly, that women are favored for jobs in STEM,” noted that “women are no longer at a disadvantage when applying for tenure-track positions in university science departments. In fact, the bias has now flipped: Female candidates are now twice as likely to be chosen as equally qualified men.” According to altmetrics, which tracks mentions of science publications in social media, this study received one of the highest number of mentions of anything published in the Proceedings of the National Academy of Science.

These findings — especially the implication that “the bias has now flipped” (not Ceci’s and Williams’s conclusion, as we shall see) — had the effect of poking a hornet’s nest with a stick, unleashing a swarm of stinging, vituperative attacks. “We’ve had such amazing attacks. They really, really hate us,” Williams told Science Careers by phone. “The outpouring of vitriol,” she continued, shows “that there are a lot of people who don’t want to acknowledge the data. It’s not like they’re willing to acknowledge it and discuss it…. They try to say that we had an agenda or that the entire method at its root was completely flawed.”

One example: according to Alex Madva, a visiting professor of philosophy at Cal Poly Pomona whose field is the philosophy of psychology, “a 2:1 preference for women over men in STEM hires just doesn’t seem to pass the smell test.” (Quoted on Feminist Philosophers, which discussed other somewhat more substantive criticisms. (See the hashtag #GaslightingDuo for more.)

Another telling example: In “Eye of the Beholder,” Inside Higher Ed reports an interesting controversy over research suggesting that gender bias colors evaluations of evidence purporting to show gender bias. Jessi Smith, a professor of psychology at Montana State University, co-authored a paper, based primarily on a faculty sample from Montana State, that found that men were less likely than women to believe evidence demonstrating gender bias, and women were less likely than men to believe evidence of the absence of bias. That study was criticized by Williams and Ceci for, among other reasons, being based on too small and unrepresentative a sample and thus overstating bias. Professor Smith’s striking reply:  “What is worse — understating a bias that exists which results in keeping people from fully participating in STEM or overstating a bias that exists which results in real transformation and resources to correct a past injustice?”

The correct answer, for anyone but a partisan ideologue, is that identical errors are equally bad whatever their political effect.

In a lengthy online appendix to their study, Williams and Ceci have responded vigorously and persuasively to critics who continue to maintain that “anti-woman hiring bias as an important part of the reason for the underrepresentation of women in the academy.” One line of criticism, however, seems to have stung: the claim, as Williams put it in Part 4 of her remarkable five-part response to critics on Huffington Post, that they have a hidden agenda, “secretly machinating to overturn affirmative action.” And she quoted one example: “Ceci and Williams are beloved of right-wing columnists. We need to approach their work with skepticism, as commentators have largely done.” (See “Women Scientists’ Academic-Hiring Advantage Is Unwelcome News for Some,” Parts 1, 2, 3, 4, 5)

Indeed, Ceci and Williams appear to have been so concerned that “right-wing columnists” like me would approve of what could be taken to be their demonstration of “reverse discrimination” — that women’s hiring advantage includes hiring less qualified women over more qualified men — and their implicit criticism of affirmative action that they have just published a follow-up study in an attempt to refute that implication.

In “Women have substantial advantage in STEM faculty hiring, except when competing against more-accomplished men,” published October 20 in Frontiers in Psychology, Williams and Ceci acknowledged that their previous study “raise[ed] the specter that faculty may prefer women over even more-qualified men, a claim made recently.” In the new study, undertaken to evaluate that claim,

158 faculty ranked two men and one woman for a tenure-track-assistant professorship, and 94 faculty ranked two women and one man. In the former condition, the female applicant was slightly weaker than her two male competitors, although still strong; in the other condition the male applicant was slightly weaker than his two female competitors, although still strong. Faculty of both genders and in all fields preferred the more-qualified men over the slightly-less-qualified women, and they also preferred the stronger women over the slightly-less-qualified man. This suggests that preference for women among identically-qualified applicants found in experimental studies and in audits does not extend to women whose credentials are even slightly weaker than male counterparts.

These results, Williams and Ceci conclude with satisfaction, “should help dispel concerns that affirmative hiring practices result in inferior women being hired over superior men.” They see themselves, in short, as defenders, not critics, of affirmative action. “Some men,” Ceci and Williams note on Huffington Post, “do not welcome what they perceive to be reverse discrimination,” but they themselves are perfectly happy with the rather extreme preferences revealed by hiring women 2:1 over equally qualified men, refusing to see that preference as “reverse discrimination.”

However, the affirmative action they defend — practices that “give a preference to hiring a woman over an identically-qualified man” — is virtually non-existent in the real world. Their critics, who endorse hiring practices that “tilt the odds toward hiring a woman who may be slightly less accomplished but who is still rated very highly” and who argue that “extremely well-qualified female candidates should be given preference over males rated a notch higher,” have an understanding of how affirmative action does and should operate that is much closer to the academic mainstream.

In addition to defending affirmative action (as they but few others understand it), Williams and Ceci also lean over backwards to emphasize their concern about the “underrepresentation” of women in math-intensive fields (mentioned 15 times in the online appendix cited earlier). They insist that they “do not believe women’s underrepresentation in math-based science fields will disappear on its own.” And their analysis of why this “underrepresentation” matters is also entirely conventional. “Our country desperately needs more talented people in [STEM] fields,” they wrote in “Academic Science Isn’t Sexist,” their New York Times op-ed quoted above, and “recruiting more women could address this issue.”

More talent, of course, is better than less, but is there really such a dire shortage of STEM talent, or even of women in STEM? As Ceci and Williams noted in a 2014 study quoted in Science, “one 13-year study of ‘a large state university’ found that 2-to-1 female advantage resulted in the hiring of 4.28% of female applicants as opposed to 2.03% of males.”

Indeed, that Science article continues,

“Given the vast oversupply of Ph.D.s, faculty hiring has ‘been a buyer’s market for years,’ Ceci says. A search he recently chaired, for example, attracted 267 applicants, and ‘any of 30 or more would have been outstanding.’ ‘Every search yields several dozen applicants who are all extraordinary, and you don’t even know how to choose among them they’re so good,’ Williams adds.

Concern about the “under representation” of women in STEM fields, in short, seems driven much more by an ideological devotion to proportional representation than by any actual dearth of scientific, even female scientific, talent.

Admissions Stacked Against Asians–It’s OK with the Feds

The Department of Education’s Office of Civil Rights has dismissed the longstanding discrimination complaints of Asian Americans, giving Ivy League and other institutions a green light to continue chromatically contouring the results of their “holistic” admissions processes so that applicants who are black or brown or red consistently are admitted with lower academic scores than applicants who are yellow or white. Word of the decision came in a 20-page September 9 letter to Princeton president Christopher Eisgruber.

Although Princeton readily conceded, “It does sometimes consider the race and national origin of applicants for admission,” the OCR concluded that it had not engaged in “patently unconstitutional” racial balancing.

As Roger Clegg has pointed out, the OCR did not deny that Princeton engaged in racial balancing or racial discrimination. It just red that these racial practices are not illegal under  the Grutter vs. Bollinger ruling.

Does Grutter Apply?

What is interesting here is not OCR’s conclusion (when has any Obama administration agency or ally ever concluded that any organization has ever discriminated against Asians or whites?), but that it reached its conclusion without even considering, much less rebutting, the vast breadth and depth of evidence presented by the complainants revealing differential treatment.

For example, as I discussed here, Princeton sociologist Thomas Espenshade, who supports affirmative action, found in his 2009 book that black applicants to selective universities receive “a 450-point ‘boost’ compared to otherwise similarly qualified Asian applicants.” In an earlier article, Espenshade and a colleague demonstrated that if affirmative action were eliminated across the nation, “Asian students would fill nearly four out of every five places in the admitted class” now taken by African-American and Hispanic students.

A Tower of Evidence

A Wall Street Journal article by Daniel Golden, author of The Price of Admission, cited a study of the University of Michigan  by the Center for Equal Opportunity that found “among applicants with a 1240 SAT score and 3.2 grade point average in 2005, the university admitted 10% of Asian-Americans, 14% of whites, 88% of Hispanics and 92% of blacks.” Much more of this sort of evidence showing that Asians have much higher admission hurdles in the Ivy League than other applicants can be found here, here, and here

How, you must wonder, did OCR refute or respond to all this evidence that to be admitted to the Ivies and other selective institutions Asians must have higher grades and test scores than members of other groups? Easy. It did not. Instead, it concluded that Asians had not been subject to discrimination by accepting Princeton’s argument that a few Asians were admitted with lower academic credentials than some rejected non-Asians:

  • “The University … reported, and OCR’s file review confirmed, that less than stellar grades or test scores do not mean that an applicant is automatically foreclosed from admission. OCR in its file review found examples of applicants who did not have the highest quantifiable qualifications, such as grades and test scores, who were nonetheless admitted by the University based on other qualities and the overall strength of their applications. Some of these applicants were Asian.”
  • “The University reported to OCR that the University ‘frequently accepted to the Class of 2010 applicants from Asian backgrounds with grades and test scores lower than rejected non-Asian applicants.’”
  • “The University gave OCR specific examples of Asian American applicants for the Class of 2010 whose grades and SAT scores were not near the top of the range usually seen by the University’s admissions officers, but who nonetheless were offered admission.”
  • “As the University told OCR, regarding the Class of 2010, the University “denied admission to literally hundreds of non-Asian applicants for the Class of 2010 who were valedictorians, and over three-thousand non-Asian applicants with a 4.0 GPA. These non-Asian applicants were not admitted despite the fact that many Asian students who did not have these academic credentials were admitted.”
  • “OCR found no evidence of the University giving an automatic ‘plus’ for identifying as a particular race or national origin; nor did OCR find evidence of applicants given an automatic ‘minus’ for belonging to a particular race or national origin.”
  • “OCR also found no evidence of the University using a fixed formula to weigh an applicant’s race or national origin.”

“In sum,” OCR concluded, “OCR found that the University treated each applicant as an individual, without making an applicant’s race or national origin a defining characteristic. Accordingly, OCR found no evidence of the different treatment of Asian applicants.”

Not Discrimination Because…

In short, OCR concluded that Princeton does not discriminate because

  • Asian applicants are not “automatically foreclosed from admission.”
  • A few Asians are admitted with lower academic credentials than many rejected non-Asians are. [It would be interesting to know how many, if any, blacks or Hispanics were rejected with higher grades and test scores than some Asians who were admitted].
  • The “plusses” awarded to blacks and Hispanics, and the “minuses” in effect awarded to Asians and whites, were not “automatic.”
  • However the University may have prevented the admission of too many Asians, it did not “impose a fixed number or percentage which must be attained, or which cannot be exceeded.”

Unexpected Effects

Since this conclusion comes from an administration notorious for seeing disparate impact discrimination anywhere and everywhere racial outcomes are even ever so mildly disproportionate, calling it hypocritical hardly seems to do it justice. Maybe we need a new word, such as hyper hypocritical. In fact, this OCR ruling is so bad, that it may well have some very good effects. Here are two:

  1. It will buttress the defense of other organizations accused by this administration (or, heaven forbid, similar future administrations) of discrimination. Following OCR’s analysis, for example, a school district accused of racially disparate discipline rates need produce in its defense evidence of only a few occasions when whites or Asians were disciplined for behavior for which blacks were not punished. Ditto for racial profiling by police.
  1. It should persuade Justice Kennedy that Grutter needs to be revisited when the Court considers the return of Fisher v. University of Texas next term. OCR insisted repeatedly that Princeton’s treatment of Asian applicants was legal under Grutter, which was mentioned or quoted 47 times in its 20-page ruling and cited in 27 of its 49 footnotes. I don’t think that conclusion is correct, but every selective institution in the country that subjects Asians to differential treatment (probably all of them except for Caltech) thinks so, as do their enablers in the Obama administration and four Justices of the Supreme Court. If Justice Kennedy believes Grutter allows — or even that it allows so many to believe it allows — the Ivies and others to treat Asians the way Princeton does, he may well conclude that it should be overruled or significantly modified.

One last point deserves attention, among other reasons because it also is involved in the Fisher v. University of Texas case that the Supremes will revisit this fall: how do institutions that strive for racial and ethnic diversity define race and ethnicity?

Need to Be Culturally Aware

“OCR’s review of more than 1,000 application files for the Class of 2010 showed that sometimes the race or national origin of an applicant garnered positive attention (as indicated by comments made by admissions staff on the reader cards),” OCR noted in its Princeton letter; “sometimes it did not.” In OCR’s view, the fact that Princeton did now always award “plus” points for race or ethnicity, or not enough to guarantee admission, means it was not engaged in racial discrimination. In fact, it means its discrimination was egregious, since it attempted to admit only members of racial and ethnic groups who were “culturally aware” of their identity. That is, only “true” blacks and Hispanics need apply.

OCR is so oblivious to this offensive insult that it even provides evidence of it in its letter. Consider the following revealing passage:

For example, for an applicant attending high school in the U.S., admissions staff commented that “Polish heritage is neat but not a hook”; and based on other information in the record, the applicant was not offered admission. On the other hand, admissions staff noted that for a Mexican applicant attending high school in the U.S., the individual was a “cultural add as well”; and based on other information in the record, the applicant was waitlisted…. However, for another applicant of Hispanic national origin also attending high school in the U.S., admissions staff wrote that there was “No cultural flavor” in the application; and based on other information in the record, the applicant was not even waitlisted. For another applicant who was waitlisted, admissions staff wrote that the applicant was a “true American Native . . . One to do.”

Being Polish Doesn’t Count

One would love for Princeton to explain why Polish heritage isn’t “a hook” (are there too many Poles at Princeton?), what its tastes are in Mexican “cultural flavor,” and how it can tell a “true American Native” from a presumably counterfeit one (like Elizabeth Warren, perhaps). What all of this determining the true from the false identity on the basis of “cultural awareness” amounts to the same thing Rush Limbaugh parodies with his reference to the NAACP as in fact the NAACLP, the National Association for the Advancement of Liberal Colored People and that liberals used in opposing President Bush’s nomination of Miguel Estrada to the D.C. Court of Appeals because, as I discussed here and here, “Estrada isn’t Hispanic enough to represent Hispanic interests on the bench.”

Like Princeton, in its original Supreme Court brief in Fisher the University of Texas also asserted, “No automatic advantage or value is assigned to race …, and race is considered ‘in conjunction with an applicant’s demonstrated sense of cultural awareness.” As I pointed out at the time in National Review, Texas does not “explain how admissions officials determine whether applicants have demonstrated a ‘sense of cultural awareness.’”

The current Fisher amicus brief for the Cato Institute makes the same point:

In deposition testimony submitted at the summary-judgment stage, the only thing the University’s admissions representatives would say regarding the way the University uses race is that they value a “sense of cultural awareness.” …. That distinctive phrase — “cultural awareness” — appears a dozen times in the testimony of the University’s admissions consultant, …  as well as repeatedly in the testimony of the University’s associate director of admissions, who is responsible for admissions policy. In fact, it is the only evidence the district court was able to muster when it sought to describe how the University actually uses race in evaluating applications. No other evidence supports any connection between the University’s use of race in holistic review and its avowed diversity goal

OCR’s, Princeton’s, and Texas’s argument to the contrary notwithstanding, the fact that being black or brown is insufficient to gain “plus points” does not mean race or ethnicity is not very important On the contrary, it means that institutions claim the right not only to distribute benefits on the basis of race and ethnicity but also to limit those benefits to those who conform to the “cultural flavors” approved by their admissions offices.

Almost Two-thirds of Psychological Studies Are Wrong

Einstein, as everyone knows, famously defined insanity as doing the same thing repeatedly and expecting different results. Science is the mirror image of insanity (which is not to say there are no mad scientists). It expects — indeed, requires — the same results when scientists do the same experiments or calculations over and over. Thus, according to an important and widely noticed study just published in Science, “Estimating The Reproducibility Of Psychological Science,” there is a real question whether much of the allegedly scientific research published in learned journals of psychology actually qualifies as science.

The Reproducibility Project, coordinated by University of Virginia psychology professor Brian Nosek, executive director of the Center for Open Science, involved a team of 270 psychologists from around the world who attempted to replicate the findings of 100 articles published in 2008 selected from three leading psychology journals: Psychological Science, Journal of Personality and Social Psychology, and Journal of Experimental Psychology: Learning, Memory, and Cognition.

A substantial majority of the studies studied, it turned out, were not reproducible, leading to “a clear conclusion” (as stated in the Science report): “A large portion of replications produced weaker evidence for the original findings despite using materials provided by the original authors, review in advance for methodological fidelity, and high statistical power to detect the original effect sizes.”

Humorously Understated

“Weaker evidence for the original findings” is a polite, statistically precise but obfuscatory way of saying that the conclusions of those studies could not be confirmed. Reviewing these results, the New York Times declared in an article with an almost humorously understated title that “Many Psychology Findings Not As Strong As Claimed, Study Says.” The actual Times article was considerably more dramatic than its title suggests, noting for example that “Strictly on the basis of significance — a statistical measure of how likely it is that a result did not occur by chance — 35 of the studies held up, and 62 did not. (Three were excluded because their significance was not clear.) The overall ‘effect size,’ a measure of the strength of a finding, dropped by about half across all of the studies.”

The fact that the Reproducibility Project found that the findings of nearly two-thirds of the studies its researchers examined could not be reproduced is proving to be a substantial embarrassment in the field of psychology, and those associated with the review project are making a great effort to soften the impact of their striking results. “The eye-opening results don’t necessarily mean that those original findings were incorrect or that the scientific process is flawed,” the Smithsonian Magazine insisted.

When one study finds an effect that a second study can’t replicate, there are several possible reasons, says co-author Cody Christopherson of Southern Oregon University. Study A’s result may be false, or Study B’s results may be false—or there may be some subtle differences in the way the two studies were conducted that impacted the results.

“This project is not evidence that anything is broken. Rather, it’s an example of science doing what science does,” says Christopherson. “It’s impossible to be wrong in a final sense in science. You have to be temporarily wrong, perhaps many times, before you are ever right.”

Well, sure, but how reassuring is it to be told that about two-thirds of the presumably peer-reviewed psychological research published in leading journals is wrong … but only “temporarily”?

The original studies were virtually (probably literally) all based on experiments that the reproducers tried to reproduce, and thus a substantial amount of both the originals and the reproducers’ studies was devoted to statistical analysis of significance, reliability, etc. That is no doubt as it should be, and to its credit the Reproducibility Project and the Center for Open Science have made all of their own research available online. Perhaps in the future another reproducibility with even more resources and researchers will check the work of this one.

Odd Research Design

If there is such an effort in the future, I think it would be in order to consider a dimension that so far as I can tell was not attempted here — moving beyond an analysis of the statistical fit between research methodology and conclusions to a more qualitative consideration of the research design, significance, and even good sense. Several of the studies I looked at would have fallen short on those grounds even if their conclusions had been found to be statistically valid.

Consider, for example, K.R. Morrison and D.T. Miller, “Distinguishing between silent and vocal minorities,” Journal of Personality and Social Psychology 94 (2008): 871-882, whose results were confirmed, here, for the Reproducibility Project by Prof. Matt Motyl of the University of Illinois at Chicago. Morrison and Miller set out to test the entirely reasonable hypothesis that people will be more willing to express their opinions to an audience they think supportive than one they think would be critical. To test this hypothesis they

compared the proportions of bumper stickers [counted in the parking lots of 3 Target department stores] expressing liberal or conservative opinions in a county that voted for a more liberal candidate or a more conservative candidate in the 2004 US Presidential Election. Specifically, they hypothesized that liberals in the liberal county would be more likely to express their opinions than conservatives in the liberal county, and conservatives in the conservative county would be more

likely to express their opinions than liberals in the conservative county.

Surprise! There were more Democratic bumper stickers in the Democratic county and more Republican bumper stickers in the Republican county. But do these findings really confirm the hypothesis? Can’t they be as readily explained by the fact that Democratic counties have more Democrats and Republican counties more Republicans? Or perhaps the political parties were more organized and had more to spend on bumper stickers in counties where they were strong. And do we know the demographic/political breakdown of Target shoppers? Thus the fact that these findings were replicated by this method hardly makes them more significant.

I also looked at two studies by Stanford’s Claude Steele and co-authors purporting to test his ubiquitous “stereotype threat” theory. In “The Space Between Us: Stereotype Threat and Distance in Interracial Contexts,” Journal of Personality and Social Psychology 94 (2008): 91-107, the authors “use stereotype threat theory as a model” to test a prediction that whites would physically distance themselves from blacks in a conversation where the whites feared being stereotyped as racists. In a sense the theory, assumed to have been established by Steele’s earlier work, was used to test itself. Elaborate scenarios were established, and the authors found to their relief and satisfaction that the target white males sat closer to the black confederates when the conversation was about “love and relationships” than when the subject was “racial profiling,” unless the latter were described as a “learning experience.”

The attempt to replicate this study “was unable to attain statistical significance.” It did confirm that when the subject was racial profiling whites sat farther from blacks but was unable to attribute that to any perceived “stereotype threat” fear of being regarded as racist because the distance was largely unaffected by the “learning experience” variable. “Perhaps the prominence of racial profiling in the media, such as Ferguson, Missouri, and New York, has made people, regardless of ethnicity, more apprehensive to discuss the topic and subsequently distance themselves more during conversation,” the replication author suggested. The replication, however, did not even attempt to evaluate the authors’ conclusion that the “social distance” they found confirmed their view that “one’s concern with appearing prejudiced might have the ironic and unintended consequence of causing racial harms,” that “there may be ‘racism without racists.’” Thus there is reason to doubt whether those conclusions would be warranted even if the replication had been able “to attain statistical significance.”

In another study, “Social Identity Contingencies: How Diversity Cues Signal Threat or Safety for African Americans in Mainstream Institutions,” Journal of Personality and Social Psychology 94 (2008): 615-630, Steele et al. claim to have demonstrated that “people at risk of devaluation based on group membership are attuned to cues that signal social identity contingencies — judgments, stereotypes, opportunities, restrictions, and treatments that are tied to one’s social identity.”

In English: blacks are attuned to cues that they might be devalued because they are black. One of the most prominent threatening cues identified by Steele and his co-authors was “colorblindness,” which can be seen as “a means to ignore or invalidate the challenges that come with stigmatized group identities. Interpreted in this way, a colorblind diversity philosophy is diagnostic of marginalization, and we expect this cue to activate threatening social identity contingencies.”

The analysis of this study “did not replicate the original finding that fairness cues create more trust for Black but not White participants in an environment with low-minority representation.” It did not, however, attempt to evaluate the accuracy of reasonableness of the “cue” that a company’s colorblind policy can be seen as a threat to marginalize its black employees. But even if that and the study’s other findings were confirmed, however, the original study  would probably provide more convincing evidence of the pervasive political correctness in the Bay Area, where the participants were selected, than the persuasiveness of Steele’s “stereotype threat” theory.

Methodological replication, in short, is important … but it is not all-important. Studies like these three, for example, would be unconvincing even if their findings were confirmed.

Shaky Studies on Women and STEM

Readers of the higher education press and literature may be forgiven for supposing that there is more research on why there are not more women in STEM fields than there is actual research in the STEM fields themselves. The latest addition to this growing pile of studies appeared a few months ago in Science, and now Science has just published a new study refuting the earlier one.

In the earlier study, “Expectations of Brilliance Underlie Gender Distributions Across Academic Disciplines,” Sarah-Jane Leslie, a philosophy professor at Princeton, and several co-authors surveyed more than 1800 academics across 30 disciplines — graduate students, postdocs, junior and senior faculty — to determine the extent of their agreement with such statements as, “Being a top scholar of [your field] requires a special aptitude that just can’t be taught” and whether “men are more often suited than women to do high-level work in [your field.]”

Fields that believe innate brilliance is essential to high success, such as physics and philosophy, have a significantly smaller proportion of women than fields that don’t, such as Psychology and Molecular Biology.

Shunning Women?

This study caused a big stir. It was deemed so important that it was accompanied in Science by an introductory article explaining its findings and significance, “Gender Inequality in Science,” by Prof. Andrew Penner, a sociologist at the University of California, Irvine. Admiring summaries and discussions can also be found at the National Science Foundation, in a long piece from the Princeton news service, in the Chronicle of Higher Education, Inside Higher Ed, Science Mag, and Scientific American, just to name a few. Reuters was typical: “fields that cherish sheer genius shun women.”

Leslie et al. conclude that “women are underrepresented in fields whose practitioners believe that raw, innate talent is the main requirement for success” and this underrepresentation occurs “because women are stereotyped as not possessing such talent.” The authors hedge their bets, however, about the actual causal mechanism at work. They note, for example, “The practitioners of disciplines that emphasize raw aptitude may … exhibit biases” against women, but on the other hand “[t]he emphasis on raw aptitude may activate the negative stereotypes in women’s own minds [leading them to] internalize the stereotypes [and] decide that these fields are not for them.”

The Role of Brilliance

The study is cagey, in short, in glossing over the border between facts and stereotypes, and its significance. On one hand, they insist that the “pervasive cultural associations” linking men more than women with raw talent are stereotypes that do not reflect reality. On the other, they ask, are women “less likely to have the natural brilliance that some fields believe is required for top-level success?” and answer: “our assessment of the literature is that the case has not been made.”

It also appears that the authors doubt that high levels of success depend on native brilliance even in those fields that claim it does. Lead author Sarah-Jane Leslie, for example, told a Princeton interviewer that “in her own field of philosophy in the 1980s, philosophers would sometimes speak of ‘the beam’ — the idea that some lucky individuals were born with a metaphorical beam of light coming from their foreheads, which they could shine on any subject matter they chose, thereby illuminating it without prior study.” But “the fact is,” she added, “that any of us who are successful in our fields only got there through incredible amounts of hard work and dedication.”

If it is a “fact” that highly successful women even in fields that claim to require brilliance “only” succeeded through hard work, then the practitioners of those fields — significantly, they find, both women and men — are somehow mistaken about what their fields require.

A Smoking Analogy

Grappling unsuccessfully with this caginess, Prof. Andrew Penner, writing in Science’s article introducing and explaining the brilliance study, concludes, “It is likely impossible to disentangle the effects of societal bias and individual preferences, because people’s understanding of gender differences shape their preferences.” That conclusion, however, is a non-sequitur. The fact that an individual preference may be affected by — even to some degree the result of — social bias does not mean it does not exist as an individual preference. (See my “The Misguided Push for STEM Diversity for an extreme example of the belief that stereotypes rob women of free will altogether.)

Leslie et al., in short, do not resolve the central questions their study raises: Do certain fields actually reward brilliance more than hard work; are there in fact fewer brilliant women available and interested in joining those fields?

Now comes a new study that throws considerable light on those questions. In a “Technical Comment” recently published in Science, Prof. Donna Ginther, an economist at the University of Kansas, and Prof. Shulamit Kahn of the Questrom School of Business, Boston University, reexamined the data and analysis of the Leslie et al. study “and found that “[f]emale representation was associated with the field’s math-intensive content — especially relative to the field’s verbal content — and, controlling for this, faculty beliefs about innate ability were irrelevant.”

Math-Intensive Fields

What Ginther and Kahn found, in short, is that it was not “expectations of brilliance” that predicted the representation of women in various fields “but mathematical ability, especially relative to verbal ability…. While field-specific ability beliefs were negatively correlated with the percentage of female Ph.D.s in a field, this correlation is likely explained by women being less likely than men to study these math-intensive fields.”

Ginther’s and Kahn’s argument was anticipated and developed even beyond theirs by psychiatrist Scott Alexander in a brilliant long entry on his widely read Slate Codex blog, “Perceptions of Required Ability Act As A Proxy For Actual Required Ability In Explaining The Gender Gap.” His criticism of Leslie et al. is even more devastating:

Imagine a study with the following methodology. You survey a bunch of people to get their perceptions of who is a smoker (“97% of his close friends agree Bob smokes.”) Then you correlate those numbers with who gets lung cancer. Your statistics program lights up like a Christmas tree with a bunch of super-strong correlations. You conclude, “Perception of being a smoker causes lung cancer,” and make up a theory about how negative stereotypes of smokers cause stress which depresses the immune system. The media reports that as “Smoking Doesn’t Cause Cancer, Stereotypes Do.”

This is the basic principle behind Leslie et al.

Like Ginther and Kahn, who did not cite his work, Alexander disaggregated the quantitative from the verbal GRE scores and found that the correlation between quantitative GRE score and percent of women in a discipline to be “among the strongest correlations I have ever seen in social science data. It is much larger than Leslie et al’s correlation with perceived innate ability. Alexander’s piece, and in fact his entire blog, should be required reading.

Change the Message?

Gintner and Kahn also make the seemingly required bow to stereotypes, concluding that “it is the stereotypical beliefs of the teachers and parents of younger children that become part of the self-fulfilling belief systems of the children themselves from a very early age” that prevent young women from choosing to pursue math, and thus they that “the message” delivered to young women needs to be changed.

Certainly Leslie et al. blow that horn with enthusiasm, and their message, sadly, need not even be accurate. “Is natural brilliance truly more important to success in some fields than others?” they ask.

The data presented here are silent on this question. However, even if a field’s beliefs about the importance of brilliance were to some extent true, they may still discourage participation among members of groups that are currently stereotyped as not having this sort of brilliance. As a result, fields that wished to increase their diversity may nonetheless need to adjust their achievement messages.

Well, of course! If brilliance really is required, that would certainly tend to discourage interest on the part of people who do not think of themselves as brilliant, “stereotyped” or not. But is that a justification to “adjust the message” to downplay the importance of brilliance in those fields where the belief in its importance is accurate?

Several years ago I sent a piece I’d written, “Wanted: More WIS (Women in Science),” to my daughter, Jessie, a talented young research physicist who was then a fifth-year graduate student at Caltech (she finished her Ph.D. work just before her 23rd birthday). In the piece I quoted Prof. Barbara Bogue of Penn State , the co-founder of the Society of Women Engineers, who “warned against ‘negative role models’ who give the impression that they are overly obsessed with their work and drive people away by making the field seem too demanding.”

Jessie replied that she particularly liked the Bogue quote — “Because of course we wouldn’t want anyone giving an honest impression of the field.”

‘Diversity’ Anger at UCLA

If there were a Heisman Trophy for the most articulate angry black undergraduate, Sy Stokes, a recent UCLA graduate, would surely have won.

Subject of a fawning, sprawling 3200-word profile by Eric Hoover in the Chronicle of Higher Education (“A Young Man of Words” — access may require subscription), Stokes made a name for himself in a video, “The Black Bruins,” attacking UCLA as a “racist corporation,” a “place of privilege, callous to the challenges” black men face. “So with all my brothers’ hopes and dreams that this university has tried to ruin,” he cries poetically, “How the hell am I supposed to be proud to call myself a Bruin?”

“The Black Bruin” went viral, which “has been viewed almost 2.3 million times,” and made Mr. Stokes a star. Youlanda Copeland-Morgan, UCLA’s associate vice chancellor for enrollment management,” the Chronicle writes, “took to Mr. Stokes. She invited him to a College Board conference where he spoke to a standing-room-only audience. When he started applying for jobs, she wrote him a letter of recommendation.”

Sy Stokes
Sy Stokes

By now Mr. Stokes should be used to being regarded as a rising black voice. A year and a half ago he was also the subject of Scott Jaschik’s equally adoring profile in Inside Higher Ed, “To Be a Black Man at UCLA.” Given this repeated treatment of Mr. Stokes as today’s emblematic — and hence to be embraced — angry young black man, as virtually a young James Baldwin in waiting, I think it is worth looking more closely at the “diversity” that he both demands and represents. There are more than a few ironies.

  • According to the Chronicle, Stokes is “the son of a black father and a Chinese mother.” Thus he could have as accurately identified himself as “Asian,” but if he had done so he might well have not been admitted to UCLA — despite the fact that it is not allowed to take race into account — and would certainly have had a much harder time getting accepted to any selective university not obligated to be colorblind.
  • There is at least some evidence that he arrived at UCLA with a chip on his shoulder. Consider this sad, revealing anecdote reported by the Chronicle:

Mr. Stokes had first tasted racial tension at 14…. One day a girl from another high school invited him to her homecoming dance. Cool, he thought.

On the big night, he wore a Yankees cap, T-shirt, and Nike basketball shoes. As soon as he got to the school, he felt uncomfortable. Nobody was dressed like him, and just about everyone was white. For the first time in his life, he thought about how his skin was darker than others’. “People stared at me like crazy,” he says. “Whatever I did, I had eyes on me.” Standing on the crowded dance floor, he felt alone.

  • Less star-struck observers might think the above was not so clearly racial tension. Moreover, there is also evidence that Mr. Stokes himself is not so enamored of “diversity.” According to the Chronicle, his dance experience was simply one example, continued at UCLA, of “years of feeling unwelcome among peers who didn’t look like him, who came from different kinds of neighborhoods.” Wait. Isn’t exposing students to peers “who don’t look like” them, who come from “different kinds of neighborhoods,” the very essence of the “diversity” that educrats at UCLA and other selective institutions insist is the sine qua non of an effective education?
  • Perhaps Mr. Stokes was angry because he realized that the “diversity” preached and practiced by UCLA was not intended for people like himself. On the contrary, its rationale and purpose was and is to enable “peers who didn’t look like him” to benefit from being exposed to the “difference” he represents. Indeed, concerned as he was with racial exploitation, he might well have been aware of the unwittingly revealing defense of “diversity” then University of California Chancellor Robert Birgenau offered to the San Francisco Chronicle in February of his freshman year: “We no longer can live in our own world surrounded by people who are just like us.” One need not be a deconstructionist, as I argued here, to figure out who “we” and the “people who are just like us” are, and in fact discerning minorities have realized that they are merely the instruments used to provide “diversity” to others, not its beneficiaries.

There is a final irony fueling Stokes’ anger, an anger usually expressed in the language of underrepresentation — “Of men at UCLA,” he told Inside Higher Ed, “black males make up 3.3 percent; of the 2,418 entering male students this year, 48 were black,” etc. He claimed it was “‘a big cop out’ for UCLA to blame its low number on the ban on consideration of race.” As for what he wants, he insisted “We are not asking for a handout. We are asking for a level playing field.”

“Level playing field,” of course is never defined. I have defined it, here, as “[t]he political, social, and economic terrain that will ensure that two or more teams with different levels of ability, experience, equipment, interest, attitude, coaching, etc. always achieve equal scores and win the same number of games,” but I do not think that’s what Stokes has in mind. I think he means “admit more blacks.” But insofar as the goal of admitting more “underrepresented” minorities is so that colleges can “mirror the community,” demographic statistics do not support Stokes’ demand.

“Blacks were 3.8% of the freshmen who entered UCLA” in the fall of 2013, I noted here in discussing Stokes’ video. “According to the latest census data, blacks are 6.6% of the population of California. Thus, by whatever calculus ‘underrepresented’ and ‘level’ are determined, whites are left holding a considerably shorter end of the stick than blacks: they are 73.5% of the population of California but only 27.1% of UCLA undergraduates.”

The only practical way for UCLA to have a higher proportion of students who look like Stokes’ father is to impose a rather strict quota on the admission of students who look like his mother. As of Fall Quarter 2014 Asians were 33.5% of UCLA undergraduates but only 14.1% of California’s population.

What’s American About American History?

On June 2 a group of 55 scholars released an Open Letter criticizing the College Board’s newly revised “Course and Exam Description, Including the Curriculum Framework” for Advanced Placement in United States History.

On June 3 Daniel Henninger began his Wall Street Journalcolumn by asking, “Would a second Clinton presidency continue and expand Barack Obama’s revision of the American system of government that existed from 1789 until 2009?”

The gravamen of the scholarly critics’ gripe is that courses scrupulously designed according to the new standards of Advanced Placement U.S. History (APUSH) would do little or nothing to equip students to grapple coherently with Henninger’s question, or others like it.  They regard the new standard, in short, as too political — not in the sense of attempting to inculcate the wrong answers but rather in avoiding too many important questions.

“The new framework,” they write, “is organized around such abstractions as ‘identity,’ ‘peopling,’ ‘work, exchange, and technology,’ and ‘human geography’ while downplaying essential subjects, such as the sources, meaning, and development of America’s ideals and political institutions, notably the Constitution.”

The cause and effect of such an approach is that orthodox (which is to say, most) American historians today worship at the altar of the Holy Trinity of Race, Class, and Gender. The “new framework,” as a result, “is so populated with examples of American history as the conflict between social groups, and so inattentive to the sources of national unity and cohesion, that it is hard to see how students will gain any coherent idea of what those sources might be.”

Part of the problem here is the absence of a consensus on purpose, on who should know what, a problem that is more severe in history than in, say, calculus or biology where interpretation is less important. The new framework largely avoids this question by downplaying substantive knowledge and emphasizing “historical thinking skills” — “the ability to describe, analyze, evaluate, and construct models that historians use.”

Indeed, “historical thinking skills” occurs 57 times in the new framework document. The purpose of the AP U.S. History course, it states, is “to apprentice students to the practice of history by explicitly stressing the development of historical thinking skills while learning about the past.”

It is not at all clear, however, that training apprentice historians should be the goal of even college history courses, much less even advanced high school courses.

“Thinking like a historian” is, of course, important … for historians, but it is much less important in the intellectual arsenal of an informed citizen.

Why STEM ‘Diversity’? Just Because

Most reports, studies, proposals, etc., calling for more “diversity” — whether of faculties, students, coaches, whatever — either fail to provide any justification for the discrimination necessary to increase it or fall flat, sometimes fatuously, when they do attempt to provide a justification.

In reviewing a typical one, for example, MIT’s Report on The Initiative For Faculty Race And Diversity, I quoted from its various rationales and concluded, “In other words, ‘diversity’ is ‘core’ to MIT’s excellence because it is ‘intrinsic,’ because ‘one must … be inclusive,’ because it is ‘key,’ and because insufficient diversification would ‘constrain ourselves and limit our success.’ In other words, well, just because.”

That criticism, however, cannot be leveled against “Minority Ph.D.‘s Find Career Success in STEM,” an argument in the Chronicle of Higher Education for more STEM diversity by Frances M. Leslie (not Francis, as given in the Chronicle), which offers a commendably concrete and specific justification for producing more minority STEM graduates. Professor Leslie — dean of the Graduate Division and a professor of pharma­cology, and of anatomy and neurobiology, in the School of Medicine at the University of California at Irvine — is clearly a person of many talents, but her commendably concrete justification for producing more minority STEM Ph.D.’s suggests she could be equally successful as a stand-up comic or satire writer for The Onion.

“First of all,” she notes the “disparity” of minorities receiving “only 7.25 percent of doctorate degrees” in STEM fields, “far below their 30 percent representation in the general population.” This “disparity” matters, she claims, because the “U.S. Bureau of Labor Statistics shows that recipients of Ph.D.s and professional degrees have the lowest unemployment rate and highest full-time earnings in the country.” Then comes her justification for striving to make STEM Ph.D.’s demographically representative, a justification that is refreshingly free of “diversity” cant and camouflage:

So the dearth of underrepresented minorities with Ph.D.’s in STEM not only represents a substantial financial inequity but also reduces their potential impact on the nation’s economic strength.

Given these findings, it seems clear that universities should make a substantial effort to support underrepresented minority students in STEM graduate education.

STEM diversity, in short, is good not only for the diverse, who are enabled to make more money, but because of the positive impact their arguably higher earnings in STEM than in the occupations they would otherwise be pursuing has on the GNP.

In fact, even this slim reed of an argument is not persuasive. The fact that STEM Ph.D.’s may have the lowest unemployment and highest earnings does not mean that individuals who could have become STEM Ph.D.’s but did not would predictably make less money in other fields.

No wonder most arguments for “diversity” tend to avoid trying to specify its benefits.

 

 

 

 

Is Affirmative Action “Microaggressive”?

For those searching frantically for discrimination on campus, the newest culprits are “microaggressions,” described by Heather Mac Donald in “The Microaggression Farce” as affronts or insults minorities find racist but are so small they are “invisible to the naked eye.” Now, according to a May 5 article at Inside Higher Ed, “more than half of students of color who responded to a survey at the University of Illinois at Urbana-Champaign said they have experienced stereotyping, according to a new report from the university’s Racial Microaggressions Project.”

That study, the Chronicle of Higher Educationreports, found that 51% of the survey respondents claim “they had been victims of racial stereotypes in the classroom” and 39% “reported feeling uncomfortable on campus because of their race.”

It will surprise defenders but not critics of affirmative action to find extensive evidence in the University of Illinois’s report, Racial Microaggressions, that one of the worst microaggressors is … affirmative action.

A few examples:

  • “Assuming that an African American student was admitted to a predominantly or traditionally white institution simply because of Affirmative Action rather than merit is another example of a racial microinsult.”
  • Quote from “a multiracial female”: I was sitting in the library and I overheard other white students discussing admissions and laughing about how the only reason stupid Mexicans could get into this school was due to Affirmative Action. As a student of color, I found it extremely offensive to invalidate the hard work and intelligence of students because of their race. It also made me sad that this view seemed to have been readily accepted by all of the other people in the group, implying that racism is entrenched in many of the students that attend this school.
  • “… students of color reported experiencing racial microaggressions in discussion topics about Affirmative Action” Example given: “One white female student in the discussion inferred that certain stereotypes are true.”

The problem, of course, is that the belief that many minority students would not have been admitted but for their race or ethnicity is, in fact, true at selective universities. Thus one of the reports recommendations — “To have a more informed student body, disseminate accurate information about how, or if, Affirmative Action plays a role in admitting students of color” — is quite ironic. Transparency about the role of race in admissions is one of the leading demands of the critics of affirmative action. If the authors of this report mean what they say here, they should demand that the University of Illinois release data revealing the test scores of applicants and admits by race.

The University of Illinois is not the only institution to jump on the “microaggression” bandwagon. A recent long article summarizing the findings of a similar study by the Voices of Diversity Project at Harvard also found that affirmative action is one of the worst “microaggression” offenders:

  • minority students are blamed for taking longer to graduate “on the grounds that this must be due to their intellectual inferiority and/or their having been admitted under affirmative action programs with allegedly lower standards”;
  • “There is a widespread belief that members of some racial/ethnic minority groups were admitted through affirmative action and thus (through a misunderstanding of affirmative action) are less intelligent than white students…. Students of color’s awareness of the belief, in combination with the effects of stereotype threat, internalized racism, or both, can seriously impede their education.”
  • “the participants who said that someone had suggested outright that they had been admitted only because of affirmative action also constitute a sizeable minority of our interviewees.”
  • La Toya, a black woman, is quoted: “The ways that people look at me, things that teachers say, you know, make me feel like I don’t… people would just kind of flat-out say…that black people got here ‘cause of affirmative action…[and] don’t deserve to be here. …the general campus is mostly white, and…I don’t fit in there.”
  • “Douglas, who is African-American, worries that, because there are so few students of color in his area of study, ‘there may be affirmative action notions applied to us.’”

The “affirmative action notions,” of course, are that many black students would not have been admitted but for their race. Since that is true at virtually all selective universities (though possibly less true at the very most selective such as Harvard), does the belief that it is true qualify as a microaggression

Whether or not the belief that blacks receive preferential treatment via affirmative action constitutes microagression, it is certainly not limited to university campuses, or to white/conservative/racist critics. Yesterday talking head Michelle Bernard observed on MSNBC that neurosurgeon and new Republican presidential candidate Ben Carson “probably went to Yale and University of Michigan for medical school because of affirmative action.” Someone should report her and host Chris Matthews to the microaggression police.

“Diversity” Is Now Required At UCLA

After rejecting several previous proposals over the past several years, the UCLA faculty has finally succumbed to politically correct pressure from above (Eugene Block, the Chancellor, and other administrators) and below (“progressive” students) and voted to impose a four-unit “diversity” course requirement on all undergraduates. Ironically, the felt necessity for this new course requirement reveals the hollowness of the ubiquitous claims for the effects of diversity on students and on campus culture in general.

By any measure of diversity — both reasonable ones emphasizing a variety of values and experiences and the one actually employed in higher education, limited to race, ethnicity, and increasingly sex and “gender expression” — UCLA is virtually (and virtuously) boiling over with diversity.  But, according to the militant course mandaters, the fact of diversity is not enough. It has failed to teach the right lessons. Those lessons must be affirmatively, vigorously, actually taught — especially to the students who need them most, those who would not voluntarily take an approved (more on that later) diversity-teaching class. “In order to maximize student preparedness for our global society,” states the UCLA Diversity Initiative Committee’s Proposed Diversity Requirement, “we must enhance student awareness, understanding, and acceptance or at least tolerance of difference through socializing experiences and through our pedagogy.” [Emphasis added]

The idea that “we” — the faculty, probably the least diverse group in the country based on values, ideology, religion, etc. — should or even can inculcate “tolerance of difference” through classes (including STEM classes!) is risible. However, tolerance and appreciation of “difference” must be taught, the mandaters insist, because of another manifest failure of university “diversity” in practice — students are still overflowing with prejudice. Because of the failure of diversity’s “socializing experiences” alone, one of the justifications for the new course requirement and one of its four goals stated in the Proposed Diversity Requirement is “to reduce prejudice on campus with regard to difference.”

As Allyson Bach, a “Campus Celebrity” student leader of the pro-requirement effort, explained in a letter to the Daily Bruin, “Fostering student understanding of the histories and narratives of underrepresented communities at UCLA requires more from the university’s curricula. If students are not encouraged in the classroom to further explore critical issues of a global society, then it unfortunately is not surprising that intolerance and bigotry exist on our campus.”

By “encouraged” Ms. Bach of course means “required,” and in a revealing example of progressive logic she goes on to argue that the fact that some students and alumni disagree with her proves that she’s right. That “negativity” about the new requirement, she asserts, “demonstrate the flaws of our undergraduate education if students graduate UCLA with such viewpoints.”

Her emphasis on requiring understanding of “underrepresented communities” indicates that the requirement’s purpose is more political than pedagogical, an indication confirmed by an Expanded Synopsis’s endorsement of pure attitude and behavior modification. It approvingly cites studies that claim a diversity course requirement has “a positive impact on an individual’s racial and ethnic attitudes, pluralistic orientation, openness to diverse viewpoints, citizenship, critical consciousness, social agency, cognitive skills and tendencies, and moral development.” This is “diversity” as pure didacticism.

Students who themselves are usually described as “diverse” are clearly thought to be less in need of this beneficial attitude and behavior modification than others. As the Proposed Diversity Requirement states, “Although the UCLA student body is highly heterogeneous, comprising individuals from varied backgrounds, characteristics, and cultures, many come from more homogenous environments and have little familiarity with those from other histories, traditions, and experiences.”

There can be no doubt that the universe of the un-diverse in need of improved “racial and ethnic attitudes,” a more “pluralistic orientation,” more openness to “diverse viewpoints,” a higher “critical consciousness,” and even more active “social agency” is largely white. All but universally unacknowledged, however, is that whites at UCLA are not only not a majority; they are exactly as “underrepresented” as blacks. According to the most recent UCLA data, 4.4% of the freshmen admitted in 2014 are black, and according to the most recent census data blacks make up 6.6% of California’s population. According to that same data, whites were 26% of admits, but whites, “not Hispanic or Latino,” are 39% of California’s population. Blacks and whites, in short, are equally “underrepresented”: 4.4 is 67% of 6.6; 26 is 67% of 39. (Asians were 42.3% of admits and 14.1% of California’s population.)

The mandaters, of course, rarely admit that their real goal is attitude and behavior modification of whites. The loftier justification, as the Proposed Diversity Requirement states in its first sentence, is the belief that “a modern university must provide its students with the ability to understand the perspectives of others whose views, backgrounds, and experiences may differ from their own.” This rationale was repeated like a mantra. When he wasn’t handing Hillary a $300,000 check for speaking, for example, UCLA Chancellor Gene Block said repeatedly, as quoted here, that “one of my longstanding priorities and demonstrates our strong commitment to expose undergraduates to views and backgrounds other than their own.”

This “exposure to difference” rationale, however, if taken seriously, reveals the utter impossibility of implementing the requirement in a coherent manner. The proposal entails a new bureaucracy of apparatchiks — “an Undergraduate Council (UgC)-appointed Diversity Requirement Committee (DRC)” [described here and here] — to approve courses that satisfy the new requirement. But there are no corresponding rules regulating who may take which courses, i.e., limiting students to diversity credit for a course in which they in fact study those who are “different.” (Except perhaps for whites, who many would like to see required to take the course on “Understanding Whiteness”).

Unless and until UCLA creates a mechanism to bar diversity credit to blacks who take black history, Asian American women who take a course on Asian American women, gays who take an introduction to Lesbian, Gay, Bisexual, and Transgender Studies, etc. (examples taken from example courses listed in Appendix B here), the “exposure to difference” rationale will remain exposed as a sham.

OBAMACARE HITS CAMPUSES HARD

Higher education and its comfortable inhabitants on campus have long been hotbeds of support for Obama and Obamacare. Now, along with business and labor, i.e., the other inhabitants of what passes for the real world, they are about to become victims of one of its high “Cadillac” tax on generous health plans.

In 2009 President Obama gave assurances that he did not want any tax on health insurance plans he considered wasteful or too generous to affect average Americans. In one of his now famous talks broadcast on CNN, MIT economist Jonathan Gruber, “one of the men who helped draft the legislation, [explains] that is not only precisely what will happen — but that was the intention of the tax.”

Politico notes that “a mix of business groups and labor unions” are arm in arm — and up in arms — fighting to kill this tax. Unnoted in the article is that higher education also will be hit especially hard. The dramatic impact of the “Cadillac” tax on higher education has been noticed before, such as on this site (“Obamacare Hits Adjuncts Hard”) and Megan McArdle’s delicious putdown, “Whining Harvard Professors Discover Obamacare.”

Now, as the scheduled 2018 implementation of the tax gets closer and more and more colleges begin to adjust their health plans to deal with it, awareness of the impending pain is beginning to spread. In New Jersey, four of the state’s 11 public colleges and universities have dropped student health insurance, and three of Washington State’s 6 public institutions have done so as well.

A few more examples of tax-induced changes:

  • University of Virginia: “Major changes are coming to the University of Virginia health plan. With U.VA facing rising health care costs, spiking expenses of high-dollar claims and looming fees and taxes connected with federal health reform….”
  • University of Minnesota: “One of the state’s largest employers is proposing to scale back its employee health plans to avoid a massive tax penalty under the new federal health care law.”
  • Ohio University: “Ohio University employees might see their health care deductibles double and premiums rise because of a provision of the Affordable Care Act that taxes so-called “Cadillac” health plans, officials have said.”

In a mailing sent to “Dear Colleagues” last month, Ohio University provided a detailed explanation of the need for its changes:

The university’s health care costs are projected to increase by as much as 8% per year, or $4 to $5 million annually, for the next several years. Additionally, in 2018, the ACA will begin taxing high cost Cadillac health plans where health plan costs exceed $10,200 per year for individuals or $27,500 per year for families. As currently structured, the university’s PPO health plans are on pace to exceed these levels, and subject Ohio University to the Cadillac plan tax.

As more and more colleges and universities cut their benefits in order to make their health plans “sustainable,” I suspect the new campus fetish of “sustainability” will take a serious hit.

HISTORIANS TAKING POLITICAL STANDS

Thomas Bender, NYU professor of history and the humanities, laments that historians have “lost their public.” Economics, he notes, “has an audience in corporate and government circles; sociology and psychology have important roles in the social services. But historians generally have not had a similar targeted audience, except in schools. They have aspired to reach a general public, to explain the past and its relationship to the present and, perhaps, the future. While once we were successful in doing that, for a long time we have been digging ourselves into a hole.”

Bender’s explanation is in that professional history has become too sophisticated for the general reader, that “as historians eschewed biography, narrative style, and large topics, our writing also became analytic: an explanation of the nature of the sources, methodology (often quantitative), and particular findings. We began to imagine not a general reader but fellow specialists at our elbow.”

Although Bender is no doubt correct, I think the hole historians have dug is both wider and deeper than the “victims of their own success” explanation (at writing more and more sophisticated but fragmented, esoteric studies). When the public encounters historians these days, it is all too often in the form of politically correct scolds  — in Op Eds, petitions, legal briefs — offering their scholarship as ammunition to progressives (and only progressives) in various cultural and partisan skirmishes.

Avenging Angels?

A classic (but not unique) example of the historian as progressive scold, or “avenging angel,” was provided in testimony to House Judiciary Committee in 1998 in which Princeton’s Sean Wilentz accused any Representatives who voted in favor of President Clinton’s impeachment of being “zealots and fanatics” and threatening “history will track you down and condemn you for your cravenness.” Wilentz is now a frequent contributor to the New York Times and pontificator on CNN and MSNBC.

Over 400 historians signed a petition against impeachment organized by Wilentz, but one who did not was Columbia’s Eric Foner. “I thought the impeachment of Clinton was absurd,” Foner commented years later in a conversation with law students and faculty, “but I refused to sign it [because] I am against this whole idea that originalism is how you decide whether the guy should be impeached or not, and moreover I notice that most of the people who signed this are not constitutional scholars.” Foner added an important observation that, as we shall see below, will come back to bite him, “The attempt to use history to answer political questions can often lead you to be skating on very thin ice.”

If using history to pronounce winners (and denounce losers) in contemporary political controversies really is “skating on very thin ice,” then a substantial number of practicing American historians, including many prominent one, are both cold and all wet. In the recent past large numbers of them have signed legal briefs, to cite a few examples, supporting abortion rights, supporting gun control, opposing laws prohibiting homosexual sex, supporting gay marriage, arguing that the Civil Rights Act of 1866 allows claims for retaliation and prohibits discrimination private parties as well as government, and, perhaps most remarkably, arguing that the 14th Amendment bars state constitutional amendments that require colorblind equal treatment.

Inimical to Historians’ Values

In addition to filing legal briefs and serving as expert witnesses in politically charged litigation, historians have also circulated innumerable petitions and passed resolutions at their professional meetings, always taking the progressive side in political controversies. One opposed the legal views of a Bush administration official; another opposed the nomination of a federal judge. And as I discussed in Historical Chutzpah and Historical Chutzpah II, over 1200 historians signed petitions opposing the Iraq war, claiming attention based on their identity as historians (very loosely defined) even though a substantial number of them were in fields of history totally unrelated to war, peace, or even American history.

In a similar vein, the American Historical Association passed “an unprecedented resolution” signed by over 150 historians (one of whom was NYU’s Thomas Bender) condemning “United States Government Practices Inimical to the Values of the Historical Profession.” These practices “during the war in Iraq and the so-called war on terror” included such heinous activities as “condemning as ‘revisionism’ the search for truth about pre-war intelligence” and “reclassifying previously unclassified government documents,” which violated the AHA’s “principles of free speech, open debate of foreign policy, and open access to government records in furthering the work of the historical profession.” Curiously, so far I have seen no petition or resolution from historians condemning Hillary Clinton’s decision to conduct all of her electronic communications as Secretary of State on her own private server, deciding on her own what information to preserve and what to destroy.

Correct Answer: Reagan Was Bellicose

Even in the area where Prof. Bender acknowledges historians do have a “targeted audience,” the schools, historians are frequently encountered more as progressive advocates than independent professionals. Every ten years, it seems, historians, the Washington Post reported in 2010, “speak out against proposed Texas textbook changes” (“Textbooks A Texas Dentist Could Love.” the New York Times chimed in). More recently, former National Endowment for the Humanities chairman Lynne Cheney has published a blistering article in the Wall Street Journal, “The End of History, Part II, criticizing the ideological bias of revisions to the College Board’s Advanced Placement in United States History (APUSH) standards. Example: the correct answer to a question on how to interpret President Reagan’s famous remark at the Brandenburg Gate in Berlin in 1987 — ”If you seek peace, if you seek prosperity for the Soviet Union and Eastern Europe, if you seek liberalization: Come here to this gate! Mr. Gorbachev, open this gate! Mr. Gorbachev, tear down this wall!” — is that it represented an example of America’s “increased assertiveness and bellicosity.”

In short, whatever the richness of modern historical scholarship, when historians go public these days — in court, on OpEd pages, on TV — they are all too often seen, correctly, as high priests delivering The Word from what NYU psychologist Jonathan Haidt has called “a ‘tribal-moral community’ united by sacred values’ that hinder research and damage their credibility.” Economists and law professors and many social scientists are contentiously divided over what public policies should flow from a correct understanding of their fields, but for whatever reason the public voice of American historians is depressingly monotonous, the history lessons it would have us learn increasingly indistinguishable from the editorial pages of the New York Times, the talking heads of CNN and MSNBC, and the positions of the Democratic party.

A ‘Gentle Mob’ Pushes UVA to the Irrational

Loaded questions — “Have you stopped beating your wife?” — are usually objectionable, but in the case of new rules the University of Virginia just adopted in response to a fraudulent article in Rolling Stone describing a gang rape that did not happen on a night the accused fraternity did not have a party, it is entirely fitting and proper to ask whether the University has stopped victimizing its students in fraternities and sororities. Sadly, the answer is No.

The Virginia Cavalier.
The Virginia Cavalier.

Readers will recall that even as the Rolling Stone article was unraveling University President Teresa Sullivan, with a Cavalier disregard for due process, cancelled all social events at fraternities and sororities until January 9. This was guilt by association with a vengeance, since by then it had become increasingly clear that the alleged crime had not occurred.

The rape scare at Virginia and campuses across the country is reminiscent of the “red scares” of the last century. Yes, there are are real rapes, just as there were real reds, Continue reading A ‘Gentle Mob’ Pushes UVA to the Irrational

The “Teacher’s Pet Syndrome” Comes to Our Colleges

Inside Higher Ed has yet another sob story about yet another report — this one from Harvard’s Voices of Diversity project — lamenting that “[w]omen and students of color continue to encounter psychologically damaging racism and sexism on college campuses, creating a climate where students struggle to graduate and are unsure who to turn to for help.”

Affirmative action, the report argues, is not enough. “[O]ne cannot assume that increases in numbers of students of color have been accompanied by adequate changes in what has been called the ‘chilly climate’ for students of color and for women in undergraduate populations at predominantly white institutions.”

The study, based on information Continue reading The “Teacher’s Pet Syndrome” Comes to Our Colleges