Tag Archives: affirmative action

Racial Preferences–Time to End Them?

A New book by Peter H. Schuck, One Nation Undecided: Clear Thinking about Five Hard Issues That Divide Us, focuses on five issues: poverty, immigration, campaign finances, affirmative action, and religious objections to gay marriage and the transgender movement. This excerpt deals with affirmative action.


Institutions argue that a “critical mass” of favored minorities assembled through preferences is crucial to achieving educational diversity, and the Supreme Court has accepted this notion. But what does it mean? It must be a function of either the number or proportion of students needed to produce it, yet the Court, as explained below, has flatly barred any numerical or proportional quotas; even Fisher II demands individualized assessments.

Moreover, the critical-mass criterion is only intelligible if one specifies the level of university activity at which racial assignments are permissible to achieve the critical mass. Is the level campus- wide? academic program–wide? each major, or only some? seminars? lectures? dormitories? sports teams? Neither the schools nor the Court says which it is. Finally, what constitutes a critical mass depends on the individual school, yet the Court in Fisher I emphatically refused to defer to schools’ judgment in this matter.

Related: Dismissing the Reality of Affirmative Action

Stereotypes. In Grutter, the Court majority saw a very close link between critical mass and stereotype destruction: “[W]hen a critical mass of underrepresented minority students is present, racial stereotypes lose their force because nonminority students learn that there is no ‘minority viewpoint’ but rather a variety of viewpoints among minority students.”

But just the reverse is much more likely. A school cannot prefer students on the basis of skin color or surnames without at the same time endorsing the notions of ethno-racial essentialism and viewpoint determinism. By admitting minority students with academic records that are much weaker (whatever the school’s metric) than those of their competitors, the school can only reinforce the stereotype of academic inferiority. The faculty and non-preferred students notice what is going on and draw the logical and stigmatizing inference that the preferred innuendo about the deserts of almost all but the most unquestionably superior performers in the preferred group—and, as the “lemon” phenomenon suggests, perhaps even of them.

This innuendo tends to perpetuate the very stereotypes that affirmative action is supposed to dispel. A group qua group (which is how preferences treat it) can confer diversity value only if it possesses certain desired qualities—and it can only do that if those qualities inhere in all of its members. (If it doesn’t, then the program should redefine the group to exclude those who lack those qualities, but affirmative action programs do not do this.) But to affirm that a quality inheres in a racial group is to “essentialize” race, utterly contradicting liberal, egalitarian, scientific, and religious values.

These values hold that all individuals are unique and formally equal regardless of genetic heritage and that their race per se causally determines little or nothing about their character, intelligence, experience, or anything else that is relevant to their diversity value. Indeed, if an employer used racial stereotypes in this way, it would clearly violate the law—whether or not the stereotypes were generally true

Related: Is Affirmative Action Micro-Aggressive?

The Size of the “Plus Factor.” The Court majority in Grutter held that “each applicant must be evaluated as an individual and not in a way that makes an applicant’s race or ethnicity the defining feature of his or her application.” This, the Court reasoned, will place members of all groups on the same admissions track, where they will compete “on the same footing.” Race and ethnicity can be a “modest plus factor” in a system of “individualized assessments,” but this must not constitute either a “rigid quota” or “racial balancing.”

Fisher II reaffirmed this. But are the ethno-racial plus factors merely “modest”? In fact, they are huge. In the program at issue in Grutter, as the dissenters showed statistically, the plus factor was weighted so heavily that it effectively created a two- track system, tantamount to racial balancing to reach its racially defined “critical mass.” And what was true in Grutter is essentially true of most if not all other affirmative action programs. In 2003, I reviewed the empirical studies on the size of preferences, which showed that the programs gave enormous weight to ethno-racial status—much larger, for example, than the preferences given to legacies and athletes.

This situation is unchanged, judging by more recent analyses of admissions patterns. For example, a study of all students admitted to the nation’s medical schools in 2014–15 found that blacks and Hispanics were vastly more likely to be admitted than whites and Asians with comparable MCAT scores and GPAs. And this was true in every credential range: average, below average, or above average. Writing in 2009, researchers Thomas Espenshade and Alexandra Radford reported that the admission “bonus” for being black was equivalent to 310 SAT points relative to whites and even more relative to Asians. The GPA differences are even greater than for SAT scores. An earlier analysis by another researcher, Thomas Kane, found that black applicants to selective schools “enjoy an advantage equivalent to an increase of two- thirds of a point in [GPA]—on a four-point scale—or the equivalent of] 400 points on the SAT.”

That enormous preferences-conferred advantage seems to have grown even larger since then. In a review article commissioned by the prestigious Journal of Economic Literature and published in March 2016, Peter Arcidiacono and Michael Lovenheim found virtually no overlap between white and black admits’ credentials, especially but not only at law schools: The median black admit had an academic index at the second percentile of the white distribution, and the seventy- fifth percentile of the black admit distribution was at the eighth percentile of the white distribution.

Related: Will the Supreme Court Stop Racial Preferences?

The difference between the black and white admit distributions is not all due to affirmative action: if the African American academic index distribution is below the white distribution, this would produce a difference in the incoming qualifications of black versus white students even in the absence of affirmative action. However, the fact that these distributions are almost non-overlapping is suggestive of a large amount of race- based preferences in admissions being given to African American students. . .

The data also reveal that affirmative action works differently for blacks and Hispanics. While affirmative action is very much present for Hispanics (the median Hispanic admit at Michigan is at the 9th percentile of the white admit distribution), the median Hispanic admit is at the 78th percentile of the black admit distribution. Hispanic admission rates were also lower than those for blacks, despite having on average better test scores and undergraduate grades.

Moreover, the SAT test, which has long been criticized as culturally biased against blacks, is actually an overly optimistic predictor of how they will perform in college. Once on campus, they do worse than the SAT would predict. Finally, 2015 data on SAT scores, broken down by ethnicity, show that the scores of whites and minorities have declined significantly since 2006, while Asians’ scores have risen in all three skills categories, not just math. (The National Assessment of Education Progress [NAEP] scores, while less discouraging, are nothing to celebrate either.)

This suggests, ominously, that those who administer preferences will have to increase their size even more in the future in order to admit low- scoring minorities. These findings raise a crucial question: Are the students who receive these enormous preferences to be admitted to elite schools likely on average to be in over their heads academically? This phenomenon, known as “mismatch,” is discussed below.

Race-Neutral Alternatives. The Court majority has repeatedly insisted that ethno-racial preferences may not be used if workable race- neutral alternatives exist. In an earlier opinion by Justice Kennedy, the Court also refused to endorse race-based assignments to public schools where race-neutral assignment methods are available to accomplish the same end. In Fisher II, Justice Kennedy reaffirmed this principle, while concluding that no such alternative existed there. Race-neutral criteria are no panacea, of course, especially when the question is not the one that the Court asks (i.e., whether the Constitution requires it) but instead is about which criteria make the most policy sense if the goal is increasing opportunity for the disadvantaged—which Americans overwhelmingly support.

Given this goal, the most straightforward criterion is to determine disadvantage directly rather than use ethnicity or race as an extremely crude proxy for disadvantage. This approach is more difficult than it sounds for conceptual, administrative, and target efficiency reasons—and it might not yield the ethnic mix that those favoring race-based affirmative action want; indeed, one analysis finds that it would increase the share of whites and Asians on campus and reduce blacks by almost 50 percent! Conceptually, we generally equate disadvantage with economic deprivation, usually measured by income or assets—but disadvantage can be social, not just economic; they are not always congruent and social disadvantage is harder to define and measure.

Related: 25 Years on the Affirmative Action Firing Line

Administratively, determining economic need directly for a very large number of applicants would be at least as challenging as it has been in the operation of need- based social welfare programs. And the difficulty of targeting the neediest is captured by questions posed by Michael Kinsley (a supporter of affirmative action): “Is it worse to be a cleaning lady’s son or a coal miner’s daughter? Two points if your father didn’t go to college, minus one if he finished high school, plus three if you have no father? (or will that reward illegitimacy which we’re all trying hard these days not to do?

Determining who is truly needy is difficult, surely, but not impossible. Richard Sander, a law professor at the University of California at Los Angeles, reports that he actually devised and implemented a sophisticated system of preferences for UCLA law school based on economic need and that the system worked “exceedingly well. Audits of financial aid statements showed little abuse; the preferences substantially changed the social makeup of the class and never to our knowledge, prompted complaints of unfairness.”

Such approaches need to be tried and assessed more broadly, of course, but they may offer one kind of race- neutral alternative to ethno-racial preferences. A second kind of race-neutral alternative is a program that automatically admits students in the upper echelons (say, the top 5 or 10 percent) of their high school classes. Texas, Florida, and California have adopted such percentage programs (although Texas, unsatisfied with the number of minorities its percentage plan yielded, added to it the race- based program challenged in the Fisher litigation).

Percentage programs do seem to increase racial diversity on college campuses, but two realities about such programs should be kept in mind. As Justice Kennedy noted in Fisher II (quoting Justice Ginsburg’s point in Fisher I), these programs, far from being race- neutral, are designed and adopted with race very much in mind. And, given differences among the high schools in different communities, such programs inevitably bring to these campuses many students whose academic preparation is relatively poor.

A third alternative, which has attracted much interest, would not only increase the number of minority students attending selective institutions but also ameliorate a different, more tractable, and even more socially wasteful kind of problem—the substantial pool of high school students who are perfectly capable of performing well at selective colleges but do not even apply to them—or indeed to any college at all! Caroline Hoxby and her colleagues have shown that applications by these students, many of whom are minorities, can be increased through better information about how to apply, about available financial aid opportunities, and about other assistance available on campus. Moreover, increasing applications from this group can be accomplished at trivial cost—as little as $6 per student. Finally, as Justice Alito tartly observed in his dissent in Fisher II, “The most obvious race-neutral alternative” is “race-blind,

Caroline Hoxby and her colleagues have shown that applications by these students, many of whom are minorities, can be increased through better information about how to apply, about available financial aid opportunities, and about other assistance available on campus. Moreover, increasing applications from this group can be accomplished at trivial cost—as little as $6 per student. Finally, as Justice Alito tartly observed in his dissent in Fisher II, “The most obvious race-neutral alternative” is “race-blind, holistic review that considers the applicant’s unique characteristics and personal circumstances.

Related: Are Racial Preferences Now Entrenched for Decades?

The Duration of Preferences. Writing for the Grutter majority, Justice O’Connor expressed hope that “25 years from now, the use of racial preferences will no longer be necessary.” Much has been made of her expectation. In his dissent, Justice Thomas recited the grim statistics on comparative academic performance, evidence that makes Justice O’Connor’s hope seem very unrealistic. And the studies of ethno-racial preferences in other societies provide no support for it either, as the economist Thomas Sowell has shown in his cross- national studies.

To the contrary, the studies show that such preferences, once established, tend to endure and perhaps even expand to new groups and new programmatic benefits. The Court’s blessing of affirmative action in Fisher II seems more likely to perpetuate it than to herald their eventual demise. It is true that six politically diverse states (Arizona, California, Michigan, Nebraska, Oklahoma, and Washington) have banned these preferences by voter referenda, while New Hampshire has done so through statute and Florida through executive order.

But California’s experience after its voters banned the preferences suggests that such bans do not end them but simply drive the preferences underground. The California system engaged in a series of stratagems in the early 2000s expressly designed to circumvent the state’s ban. Some of the more egregious ones involved channeling minority students to new “critical race studies” programs with lower admissions standards; awarding special admissions credit for foreign language fluency to minority students who were already native speakers of the language; adopting “percentage” plans; and using unspecified (and unspecifiable) “holistic” criteria as well as winks and nods by admissions officials.

The evidence suggests that affirmative action advocates will never abandon it but will always find new ways to preserve it. And their arguments will always have a surface plausibility so long as full equality eludes us, which in the real world it surely will—however we define it.

The Role Model Rationale. Affirmative action advocates commonly argue that it is effective in producing a cadre of black professionals who can form a nucleus of group leaders and serve as role models for other group members, especially the young who need to have high aspirations and confidence that others have succeeded despite their common legacy of group disadvantage. This rationale, which has its skeptics even among ardent liberals, applies most strongly in the domain of higher education, which of course is an important training ground for future leaders of society.

Studies on how well such programs perform this function have been chewed over by proponents and opponents of affirmative action alike. There is something to the role model argument. Group members who have succeeded are surely a source of encouragement to young people thinking about their futures. If this is true, however, it is true not just for the groups preferred by affirmative action but for all low- status groups, not just the preferred ones.

This argument, moreover, cannot be separated from questions about the other social signals that youngsters receive from role- modeling. A role model might signal: “If you study hard and work hard and keep your nose clean as I did, you too can succeed.” But in a society in which preferences have become both pervasive and normative, another signal might be: “You get points for having a certain skin color or surname, so you should emphasize that identity and learn to play the ethno-racial card.” How do youngsters in such a society read role-model signals, and how do they integrate conflicting ones? These are important questions to which we have not really sought, and as a methodological matter may not be able to obtain, reliable answers.

The Representation in Elite Institutions Rationale. Like the other rationales, this one has some force. Most Americans want to see disadvantaged minorities better represented in major firms, select universities, high public office, nonprofit organizations, and so forth—if these minorities earn this recognition by meeting the institutions’ legitimate standards, whatever they might be. Affirmative action proponents believe that admitting minorities to these prestigious and advantageous precincts will level the playing field, reducing inequality by providing the advantages that these institutions can confer, including greater satisfaction and future advancement.

To what extent are these hopes actually borne out? The answer has a lot to do with the size of the preferences. In elite institutions, as we have seen, they are very large indeed—so large that they may do more harm than good to many of the putative beneficiaries. An important body of empirical research suggests that this unhappy outcome is occurring, at least in higher education, as a result of a mismatch between the institution’s demands and the preferred students’ academic performance. It indicates that although some affirmative action beneficiaries will surely succeed at the select institutions to which preferences gain them admission, on average they will perform relatively poorly, yet they would probably have succeeded at less select institutions.

In their book-length analysis of this problem, Mismatch: How Affirmative Action Hurts the Students It’s Intended to Help and Why Universities Won’t Admit it, Richard Sander and Stuart Taylor, Jr., conclude that mismatching largely explains “why, even though blacks are more likely to enter college than are whites with similar backgrounds, they will usually get much lower grades, rank toward the bottom of the class, and far more often drop out.

Liberal Academia in Donald Trump’s World

Within our privileged, cosseted circles we have gotten used to not only thinking that we are right, but that we are obviously so. By putting down “straight white men” with gleeful impunity, we gave poor white voters everything to apologize for, and nothing to believe in…. Nowhere has this benevolent but ultimately self-defeating myopia been more pronounced than on college campuses. We have dismissed our conservative peers in the classroom and taunted them on social media all while refusing to seriously engage their views. We have taken hard questions like affirmative action and abortion entirely off the

We have taken hard questions like affirmative action and abortion entirely off the table as if we had already provided an answer that should be immediately convincing to all. We have refused to consider a diversity of viewpoints on what constitutes “diversity.”… We have resolutely resisted paying more than lip service to socioeconomic inequality, rural alienation, and shifting patterns of exclusion while still purporting to speak on behalf of all marginalized people.  — Artemis Seaford in “The American Interest.”

Dismissing the Reality of Affirmative Action

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

Racial Preferences

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

Clegg outlined a clear case against racial preferences in admissions and Clegg said that under the current decision, colleges and universities have three options: 1) don’t use racial preferences; 2) consider race in a way that is narrowly tailored, considers race-neutral options first, and has a serious paper trail; or 3) consider race in an illegal way.

Clegg offered four reasons for colleges to forgo the use of racial preferences:

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

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

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

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

Self-Segregation

Some of the recent campus controversies over race were mentioned and cast aside. For example, the College Fix report about California State University, Los Angeles (CSLA) establishing “segregated housing for black students,” Scott Jaschik said was simply false. The story was on Cal State’s new “Halisi Scholars Black Living-Learning Community.” The University has responded to the scandal by declaring that students of any race can apply to live there. The College Fix did acknowledge that “these housing options are technically open to all students,” but explained that they are “billed and used as arrangements in which black students can live with one another.”

The university’s title, “Black Living-Learning Community,” is plainly aimed at recruiting students of a particular race. The new housing appeared after student protesters in November 2015 demanded “the creation and financial support of a CSLA housing space delegated for Black students and a full-time Resident Director who can cater to the needs of Black students.”

Another instance of racial exclusion hit headlines in August when a Pitzer College student posted a roommate-wanted ad, specifying “POC [people of color] only” and adding, “I don’t want to live with any white folks.” At the IHE conference, Jaschik offered sympathy to the communications staff at Pitzer College for having to deal with the media backlash that resulted from “one student at one college” regarding off-campus housing. Inside Higher Ed missed an opportunity to respond to the rising impulse to self-segregate.

Meeting Demands

In a panel on how to deal with student demands, the speakers said that students don’t want just to be heard and sympathized with; they want results. So it is best to try to anticipate what they want and work toward that, being “proactive, rather than reactive.” It was assumed throughout their session that just because students want something, administrators should try to do that for them. During the Q&A, I asked about times when an administration should say no. The panelists admitted that sometimes they do have to say no but, administrators should do so in a way that opens up dialogue rather than shuts it down.

One person mentioned John Coleman, the former president of Haverford College, who once was confronted by student protesters who wanted to burn the American flag on campus. Though he recognized students’ right to do so, he persuaded them to have a washing machine brought to the quad to “cleanse” the flag instead. Coleman was held up as an example of reasonable compromise.

Payton Head, who was student body president at Mizzou last year, shared from the perspective of a student activist. A year ago the Washington Post ran an article about him as the target of a racial slur on campus. Head talked about how many of the demands from protesters come from students who don’t know how a university is run, which is why they ask for impossible things. He said he spent the last year learning how the university worked while mediating between students and the administration, and that by the time he was starting to get it, his term was over. Head’s fellow panelist Kimberly Griffin, associate professor of higher education at the University of Maryland, urged administrators to understand that protesters’ demands are not so much a laundry list of things to do as a feeling that they want to go away.

Differences

The keynote speaker was Beverly Daniel Tatum, former president of Spelman College and author of Why Are All the Black Kids Sitting Together at the Cafeteria? She recounted receiving an award at the University of Michigan this spring, where Michael Bloomberg was giving the commencement address. She said when she heard him criticizing safe spaces, she thought of a line in a 1981 poem by Lorna Dee Cervantes (which she read in the beginning of her talk): “But they are not shooting at you.” After his speech, she said, Bloomberg left with his bodyguard. “We don’t have shared perspectives,” she said.

One of the final speakers of the day, Brandon Busteed from Gallup, reported results from a poll of black graduates from historically black colleges and universities (HBCUs) compared with black graduates from other institutions. The students who went to HBCUs said they felt three times more emotionally supported by their professors.

I asked him afterward what he would say to someone who took these results as a case against diversity in higher education, and he said all colleges and universities can support students if they are intentional about it. When I said, “It sounds like what we need are simply people caring about other people,” a white woman who works in admissions who had joined the conversation corrected me, “But be careful, because that’s like the difference between Black Lives Matter and All Lives Matter.” She said we have to recognize that minorities’ experience is different. Busteed agreed and said we can’t treat everyone the same; we have to treat everyone differently.

The emphasis on treating people differently ran throughout the conference. Much of what was said seemed to point to the need for basic human empathy, friendship, listening, and care for the emotional well-being of others. These are virtues that a university can cultivate without violating its core mission of education in the context of intellectual freedom. But when it came down to practical questions, the solutions offered were race-conscious. Changing the culture by appealing to shared human values was not on the table.

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 Remarkably Feeble Fisher Opinion

After the death of Justice Scalia, most people who have been following the protracted Fisher v. University of Texas case (myself included) expected that the Court would let the university’s racial preference system stand. It did that in a 4-3 decision released on June 23.

Justice Kennedy wrote the majority opinion, joined by Justices Ginsburg, Breyer, and Sotomayor. (Justice Kagan had recused herself.) So even if Justice Scalia had still been alive, the Court would have upheld the Fifth Circuit’s ruling that the racial preferences the university uses to achieve “diversity” are constitutionally acceptable.

Writing for Competitive Enterprise Institute, lawyer Hans Bader skewers the decision, which approves a governmental policy that “discriminates against white and Asian applicants” and “gullibly deferred to a university’s pretexts for using race….”

I want to focus on those pretexts.

Bear in mind that the Court has in the past held that if a governmental institution is going to use racial categories, it must show a “compelling interest” in doing so and that there are no racially neutral ways of accomplishing it. Also, courts are expected to look at such plans and purported justifications with “strict scrutiny.”

In Fisher, the University of Texas claimed that it needed to use racial preferences in order to:

Bring about the destruction of stereotypes.

Promote cross-racial understanding.

Prepare a student body for an increasingly diverse workforce and society.

Cultivate a set of leaders with legitimacy in the eyes of the citizenry.

Lamentably, rather than carefully analyzing those reasons, the majority justices were content with, in Bader’s words, “blind deference masquerading as strict scrutiny.”

Let’s examine those four justifications one by one.

Supposedly, UT needs to discriminate against whites and Asians and in favor of students who are regarded as “representing” an underrepresented group because otherwise considerable numbers of its students would go through college with the racial stereotypes they harbor intact.

We are supposed to believe, therefore, that the state’s flagship university, with its high admission standards, nevertheless has found that quite a few students harbor racial stereotypes. These are very intelligent young people who have grown up in the wired world, in a country with a black president and great numbers of conspicuously successful people from all races and ethnic groups, and have in their schooling heard teachers sing the praises of tolerance and multiculturalism – and yet many hold to racial stereotypes!

I would love to know exactly what those students believe about all our various racial and ethnic groups. Presumably the university does, because it feels the need to combat their stereotypes.

I would also like to see the university’s evidence that students drop all their bad stereotypes as a result of being on a “diverse” campus – or to be more precise, a campus made marginally more diverse due to the policy of favoring students from certain groups. (After all, quite a few minority students are accepted without preferences.) Certainly the university has carefully studied how the attitudes of its students change over their years and has proof that stereotypes are overcome.

Actually, I doubt it. This is merely a pretext.

Second, the university claims that its increased diversity enhances “cross-racial understanding.” That makes it sound as if UT officials believe that there are distinctive thoughts and beliefs for the different racial groups they recognize – that students in each of those groups just aren’t able to “understand” students from the others unless the school is allowed to admit some additional black and Hispanic students under its policy.

That just isn’t credible. Nearly all of the students admitted to UT are American teenagers who have grown up in our culture. They mostly like the same things, no matter what their racial background. Now, it’s true that there are disagreements among individuals, but they have nothing to do with racial misunderstandings. Two white students might disagree vehemently over abortion; two black students might disagree vehemently over immigration policy; two Asian students might disagree vehemently over “affirmative action.”

And if this is anything other than an excuse concocted to defend the policy, Texas must have proof that by the time students graduate, they have substantially less “racial misunderstanding.” Such proof, however, has never been adduced.

What about the supposed need for a workforce that’s prepared for a diverse society?

To take this justification seriously, you’d have to believe that whether or not the nation’s workforce can adapt to “diversity” depends on letting UT (and other universities) discriminate in favor of a few minority students while turning away an equal number of whites and Asians.

Even if you think “diversity” improves the ability of students at a school to learn how to deal with people from other groups, all that racial preferences do is to move a few more minority students to one campus, which means fewer of them at other campuses. There is no net gain in college “diversity” when UT-Austin accepts a few more black and Hispanic students, who would otherwise have enrolled at other schools.

But there is no reason to believe that the marginal increase in diversity at any campus is essential to preparing students for a “diverse world.” Intelligent people have always figured out how to deal with people who are different, with or without the “optical diversity” (a phrase used by Professor Sheryll Cashin, who argues in favor of dropping racial preferences in favor of socio-economic preferences for students from poorer families) they’re treated to at a few prestige universities like UT.

If you doubt that, consider the Japanese. Their universities are notable for their lack of diversity and yet the Japanese are famous for their world-wide success in dealing with people who are different.

Lastly, it is true that UT needs racial preferences so that its graduates can become leaders viewed as “legitimate” by the citizens of the state?

To believe that, you’d have to think that many Texans wouldn’t regard their elected officials as “legitimate” if they hadn’t graduated from a university where the student body had been chosen to ensure “enough” blacks and Hispanic students and not “too many” white and Asian students.

That also strains credulity. People have many reasons for favoring or disfavoring candidates, but nobody decides that a candidate is not “legitimate” unless he or she has graduated from a college with a properly diverse student body.

And if that were true, where is the evidence that Texan leaders who did not graduate from schools using racial preferences have a “legitimacy” problem?

Suppose that Fisher didn’t involve a university using racial preferences in its admissions, but instead a corporation using them in its hiring. Can you imagine the reaction of judges if the company tried to justify a discriminatory hiring policy by saying, “We believe that our customers would lose confidence in our products if they thought our workforce had too many minorities”?

That argument would be laughed out of court.

But racial discrimination for “diversity” is judged by different standards. It’s one of those preoccupations of academic liberals and liberal justices won’t deprive them of it. We will have to look to voters, legislators and university trustees to do that.

The Fisher Decision: Not Good News, But…

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

Needless to say, for those of us opposed to racial discrimination in university admissions, the decision is disappointing, for all the reasons that Justice Alito explains.  But the silver lining is that today’s decision is a narrow one.

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

Justice Kennedy also warns the university repeatedly in his opinion that it has an ongoing duty to minimize its use of race.  Race is, the Court says, only a “factor of a factor of a factor” at UT; was considered contextually; does not automatically help members of any group; and could in theory help the members of any group, including whites and Asian Americans.

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

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

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

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

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

Roger Clegg is president and general counsel of the Center for Equal Opportunity, which has joined numerous amicus briefs on behalf of plaintiff over the course of the Fisher litigation.

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.

Mismatch: The End of a Liberal Dream

The most disturbing thing about mismatch research (examining the contention that a student can be adversely affected attending a school where her level of preparation is substantially lower than that of her typical classmate ) is that it demonstrates a tense inequity: recipients of affirmative action at selective colleges are not as smart as non-recipients. That’s the blunt truth, and nobody likes to acknowledge it.

Smart means something specific and local, of course, in this case math and verbal aptitudes. Those are what the SAT and ACT tests measure, and they are what calculus, freshman composition, organic chemistry, and dozens of other first-year courses demand to greater and lesser degrees.

If two students enroll in a statistics course and #1 scored 150 points higher on the math SAT than #2, he is a whole lot smarter in that class. It is entirely possible that #2 exceeds #1 in other aptitudes, such as the skills that go into drawing and painting, but those won’t help in Statistics 202. Student #2 is inescapably cognitively disadvantaged. In order to compete with #1, #2 must work twice as hard, logging more hours of homework, stopping by the instructor’s office each week, and using the school’s math tutoring service. Sadly, that is unlikely to happen, and #2 shall soon enough shift out of STEM fields and head toward an easier (for him) major or drop out altogether.

This is the mismatch catastrophe of affirmative action, and the strongest current argument against it.

But progressives don’t believe it.  They can’t, because if mismatch is real, then a crucial article of progressive faith will fall.

The article is this: people are products of circumstances, and if we alter the circumstances, we can improve them. That premise obviously applies to affirmative action. Yes, the progressive admits, Student #2 comes into college less prepared than #1, but that’s not because he is less intelligent. It’s because he came out of an environment that didn’t cultivate math aptitudes as well as #1’s environment did. Once we place #2 in the same environment as #1, aptitudes will equalize sufficiently for #2 to function competitively among his peers. That’s the progressive rationale.

If only it were true. But the fact is that aptitudes are not so fluid. It is true that recent research has demonstrated that cognitive gains can happen among adults, but in those studies, the gains were highly specific relative to a single task such as the ability to comprehend patterns in matrices.  Furthermore, the subjects underwent specific training in completing it.

No cognitive psychologists believe that the ordinary life of a college student provides the kind of deep-intelligence training that will enable him to raise his SAT math score 100 points after a semester on campus. Even if we allow a near-total influence of environment on intelligence (that is, reducing the “heritability” factor to nothing), a change of environment cannot produce significant changes in aptitude fast enough to benefit Student #2 in the first year. By the time a person reaches age 19, intelligence has hardened too much to rise with a semester of higher education, no matter how much academic support and the company of high-achieving peers surrounds him. It takes longer than that, even with total and concentrated immersion.

The only way for affirmative action policies to overcome the mismatch problem is for colleges to create a wholly separate extracurricular habitat for recipients. This means extensive daily tutoring and other academic support. They won’t raise math aptitudes much, but they will enable students to complete the coursework and perform on exams at a higher level. Some of the campus protests made recently by African American students, including the Black Students at Emory (my home campus), add this component to the list of demands.  In this aspect, the students are correct. They need more help, and universities that have admitted underprepared students through affirmative action are duty-bound to provide it.

But it’s a necessity that proponents don’t want to acknowledge. Progressives don’t like genetic or other biological explanations for group differences in intelligence. They smack of fate, and they (supposedly) dissuade us from working for progressive reform. But environment, too, is fate, for all practical purposes. That’s the sad truth, and for supporters of affirmative action to ignore it is to show them as ideologues, dogmatic and anti-science.

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.

Fisher II: A Mystery Solved While Asians Get Their Voice

Many legal experts were surprised in June of 2013 when the U.S Supreme Court handed down its long-awaited decision in the University of Texas affirmative action case, Fisher v. Texas. The mere fact that the Court had taken up the case when it could easily have declared it moot indicated to many that at least five Justices were prepared to restrict dramatically the degree to which public institutions could use racial classifications to further what they deemed “compelling” pedagogical  interests.

(The mootness option was readily available to the Court because Abigail Fisher, the plaintiff who claimed to have been the victim of racial discrimination in the admission to UT’s undergraduate program, had already enrolled in another university and would graduate before the case was decided, thus rendering her ineligible for UT undergraduate admission even with a favorable Court ruling).

Related: the Disappointing Non-Decision in Fisher

Virtually all assumed that the Court would be modifying, if not entirely overruling, the 2003 case of Grutter v. Bolllinger, which gave to state institutions great leeway in determining both the nature of the educational interest they believed justified race-conscious admissions, and the means appropriate to furthering that interest. And it was universally assumed that it would be a 5-3 or 4-4 decision with Anthony Kennedy the key swing vote (Elena Kagan had recused herself because of prior involvement in the case as Solicitor General).

It was a mystery then when the decision came down — supported by an unlikely 7-1 majority — reaffirming Grutter as operative law and merely remanding the case to the appeals court with instruction that it not defer so readily to UT’s claim that its race-based “holistic” program was narrowly tailored to achieving its diversity goal.  The University’s judgment about the compelling importance of racial diversity was not challenged, but the burden of proof was shifted to UT to show that no practicable alternative existed to achieve the racial diversity it sought that did not use overt racial classifications.  “Show us there’s no race-neutral way to achieve the racial diversity you want,” the court said in effect, “and if you do, all is OK as far as the Constitution is concerned.”  That seven Justices could a3gree on this formula suggested just how moderate the decision was and how little of a threat it posed to the pro-affirmative action Grutter decision so eagerly embraced by the nation’s leading universities and professional schools.

On remand, the appeals court voted, in a 2-1 decision, to accept UT’s claim that its holistic plan, which accorded admissions boosts to “underrepresented minorities,” was indeed narrowly tailored and fit tightly with the diversity-enhancement goal it was intended to achieve. While there was a sharp dissent by judge Emilio Garza, who argued that the university had not clearly defined or explained exactly what it meant by its main goal of enrolling a “critical mass” of minority students, some knowledgeable observers thought the case was now settled and that on the affirmative action front in higher education business would go on as usual.

Related: The ‘Mismatch’ Thesis and Fisher

But attorneys for Fisher appealed the decision to the U.S. Supreme Court, which in a second mystery move decided to accept the case (grant certiorari as the lawyers say).  What was going on here?  Were the four Justices needed to grant cert. for a second round of Fisher proceedings primarily concerned with reigning in to some degree what some saw as an overly permissive interpretation of a university’s obligation to seek non-racial means to enhance racial diversity?  Or were those who granted cert. hoping for a five-vote majority to reign in Grutter more substantially — or even overrule it and return to the idea of color-blind justice that had so motivated civil rights advocates through the first two-thirds of the last century? Something seemed to be going on here that even sophisticated court watchers found baffling.  What were the conservative justices, who must have been the ones to vote to hear Abigail Fisher’s appeal for the second time, really up to?

A Mystery Solved

The mystery may have been solved by legal journalist Joan Biskupic, who in researching a book on Justice Sonia Sotomayor learned that when Fisher I was first taken up by the Court, Anthony Kennedy and the four conservative Justices were all on board for a major revision or overruling of Grutter.  Racial preference policies were to be subject to real “strict scrutiny,” and the “diversity-enhancement” rationale itself might possibly have been called into question as a truly “compelling state interest” that can override the color-blind interpretation of the 14th Amendment’s Equal Protection Clause.

Biskupic’s sources claimed Anthony Kennedy was preparing a draft for a clear retreat from Grutter, but he was persuaded to change his mind by Justice Breyer who explained the extreme opposition to such a move by Justice Sotomayor, the court’s first Latino Justice. Sotomayor was preparing a sharply worded draft accusing the anti-affirmative action Justices of insensitivity on racial matters, and the effect of such a clash of opinions, Breyer told Kennedy, would have polarizing consequences both inside and outside the Court.

Justice Breyer Steps in

Breyer was apparently able to convince both Anthony Kennedy and Chief Justice John Roberts to forego any dramatic change in the Grutter framework substituting instead what seemed like a minor alteration in the obligation of universities to justify more rigorously their race-conscious recruitment methods.  Any major change in Grutter would have to await another day.

The result of the shift was to bring on board both Breyer and Sotomayor in the first Fisher ruling(Ruth Bader Ginsburg was the lone dissenter, who believed that UT had already done more than enough to justify its race-conscious programs). And from the standpoint of those Justices who would have liked a more substantial move away from Grutter, the incremental move was seen as one small step in a process that might include more radical changes in the future.

Sotomayor’s Rhetoric

Two important things changed from the time Fisher Iwas decided to the Court’s more recent decision to hear Abigail Fisher’s appeal for a second time. First, Justice Sotomayor issued a blistering dissent in the 2014 case of Schuette v. BAMN, a case on the constitutionality of Michigan’s ban on race-based affirmative action programs in state institutions.  Her opinion contained some of the kind of impassioned rhetoric — accusing the Court majority of insensitivity to racial discrimination and injustice — that allegedly was contained in her original, preliminary draft of a Fisher dissent.

Nothing particularly polarizing came of Sotomayor’s Schuette dissent, however, which some saw as out of place in the case at hand and not particularly resonant with either general public opinion in America or the opinion of the Court’s centrists. The polarization issue seemed neutralized, and one suspects that not only the three right-most Justices were more emboldened to revisit the Fisher case — i.e. Scalia, Thomas, and Alito — but very likely both Anthony Kennedy and the Chief Justice John Roberts.

Kennedy and Roberts Less Constrained

The second thing that changed from 2013 were the two dramatic victories for the Left handed down by the Court in 2015 in the gay marriage case (Obergefell v. Hodges) and the case interpreting Congress’s intention regarding the Obamacare law (King v. Burwell). John Roberts issued the majority opinion in the Obamacare case, while Justice Kennedy wrote the majority opinion in the gay marriage case. The Kennedy and Roberts performance in these cases were seen as a great betrayal by many political conservatives, but were warmly greeted by the Left and seen as an indication of the flexibility, fairness, and centrist leanings of both Kennedy and Roberts. The cases established for both Justices a certain level of respect from the left-leaning law school elite, whose opinions historically have often counted a great deal in the minds of the swing Justices and centrists on the Court.

Kennedy and Roberts almost certainly feel less constrained today to speak their minds on race-based preferences in academia than they did in 2013 before Obergefell and Burwell enhanced their bona fides (or at least diminished hostility towards them) on the part of the myriads of left-of-center court watchers and legal commentators. Any decision they might write today overruling Grutter or narrowing substantially the permissible range of racial preference policies is likely to encounter much less hostility and produce much less polarization than might have been the case even a year ago or when Fisher I was decided. This of course is a source of great encouragement for those of us who hope that the Court will overturn Grutter and reaffirm the simple truth that state institutions are not permitted to favor or disfavor people on the basis of their race, ethnicity, or religion.

Asians Get in the Game

There is a third factor that may come into play in Fisher II that I have written about in an earlier Minding-the-Campus article — the rise of an aggressive Asian legal challenge to racial preferences in college admissions.  No longer quiescent or content to play simply the non-complaining “model minority” role, many Asian-American groups in recent years have come together and taken a page from the history of the NAACP to pursue an aggressive litigation strategy challenging racial preferences on 14th Amendment grounds. This strategy is clearly on display in Fisher II with an outstanding legal brief filed by two Asian-American groups, the Asian American Legal Foundation and the Asian American Coalition for Education, the latter an umbrella group representing 117 separate Asian-American organizations.

The AALF/AACE brief urges the Supreme Court not merely to modify Grutter‘s diversity-enhancement justification for racial preferences, but to overrule Grutter entirely and abandon “diversity” as a legitimate criterion for discriminating based on race. The brief is a model of legal craftsmanship, informed scholarship, and moral punch that announces to the Justices — loud and clear — that Asians will no longer take the widespread discrimination against them with indifference or passivity. The Asians are not going to keep quiet anymore when the universities establish the same kind of ceiling quotas against them that they imposed on the Jews in an earlier period of American history.

Related: Is Affirmative Action Micro-aggressive?

The constitutional question at hand, the brief began, is “whether Grutter v. Bollinger (2003), which upheld the use of racial preferences in higher education admissions for the non-remedial, and amorphous purpose of ‘diversity,’ should be overruled as fundamentally incompatible with the Equal Protection Clause of the Fourteenth Amendment and the equality principle of the Declaration of Independence?” The AALF/AACE brief answers this question with a resounding “yes” and backs up its claim not only with a reaffirmation of the color-blind interpretation of the Equal Protection Clause, but with extensive references to how Asian Americans have so often been victims of discrimination when this principle was ignored.

“Asian Americans, a minority group repeatedly victimized by discrimination, are the group most harmed by the University of Texas admission program,” the brief begins.  It continues: “UT’s use of race deprives Asian Americans of the right to be judged as individuals and not by the color of their skin.”  “For much of America’s history, race-based governmental programs have been used to oppress Asian Americans.”  “Today, supposedly benign racial balancing and diversity policies insidiously discriminate against Asian American students nationwide.” “[The Court] should re-establish the bright-line rule reserving use of race for remedial settings.”

The brief ends with two concluding sentences that cut to the quick: “For the foregoing reasons, the Court should find the UT admission program to be unconstitutional.  This Court should also revisit its holding in Grutter, to make clear that outside of a constitutionally-permissible remedy to prior discrimination, race may not be considered in college admissions.”

Asian Americans have come of age.  In the beginning of October of this year the London-based Economist ran an article titled “Asians Americans: The Model Minority is Losing Patience.”  Below the title, in a summary sentence, the article explains:  “Asian-Americans are the United States’ most successful minority, but they are complaining ever more vigorously about discrimination, especially in academia.” As the Economist writers report, after decades of relative quiescence, Asian Americans have found their voice of protest.  Like the Blacks and the Jews before them, they are no longer willing to accept in silence the overt discrimination against them. In the long history of American protest going back to the time of the American Revolution they are proclaiming to the world “Don’t Tread on Me!”

Whether this new assertiveness will have any effect on the outcome of Fisher II is impossible to say, but it just might provide the added push needed for five members of the U.S. Supreme Court to reinstitute the noble principle of color-blind justice so magnificently articulated by the elder Justice Harlan in the Plessy case.  The oral argument in Fisher II, scheduled for the end of this year, is going to be something to follow closely.

‘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.

College Students Now–the Good and the Bad

First, the good news:  My undergraduate students here at the University of Massachusetts, Amherst, are quite literate, contrary to all the bad press and fears. Every week I give them a 20-minute writing assignment in class, the sole preparation for which is having done the week’s homework.  Turns out they write pretty well; arguably, in some cases, better than with at-home papers, which may cause them more stress.  This despite the fact that whenever I enter the room at the beginning of class, most of them are on their iPhones or otherwise engaged with electronic devices.

Now the bad news: For about the past week I’ve been taking note of the announcements that come to me via email from the university.  These relate predominantly to events in my particular areas of interest : Latin American studies;  languages and literatures; women’s studies – now renamed, like most such programs throughout the country,  Women, Gender and Sexuality Studies, which at least makes their focus clear, in case anyone was wondering.  But I also receive occasional emails about  university-wide special events, as well as Five-College events (since UMass Amherst is part of the Five College Consortium), though these latter are often related to the above fields.

Below is a listing of the typical items that appeared in my email in the past week or so –representative of the majority of announcements I receive week after week.

  1. The Chancellor of UMass Amherst announces that the newly-created post of Assistant Provost for Diversity has been filled.
  2. The Center for Latin America, Caribbean and Latino Studies announces a conference later this month on the “Intersection of Race, Gender, Sexuality, and Nation in Colombia, Brazil and Cuba.”  (I received seven separate announcements of this event over the past couple of days)
  3. A Five College Multicultural Theater Conference is taking place, which will address issues of representation, diversity and inclusion in multicultural theater today.
  4. The Five College Women’s Studies Research Center announces a faculty seminar and public talk on Race and Science, offered by a visiting professor of English.
  5. The Center for Public Policy and Administration in conjunction with the Interdisciplinary Studies Institute and a few other departments at UMass are sponsoring a panel discussion by experts from the non-Western Muslim world about the line between free speech and hate speech.  The event is called “Charlie Hebdo Attacks: Is Your Free Speech My Hate Speech?”
  6. The CLACLS (see # 2 above) is sponsoring a lecture and workshop on “The Politics of Cultura [sic] in a Minority Latino/a [sic] Community: What We Can Learn from Public Pedagogies of Food, Fun, and Fiestas,” as part of their year-long series “Re-imagining Latin@[sic] Studies in Higher Education.”
  7.  A talk by a feminist and reproductive rights activist,  called “Abortion in our hands: Clandestine Abortion Doulas’s Network in Argentina” – sponsored by WGSS, CLACLS, Social Thought and Political Economy (these at UMass), and the Third World Studies Program at Hampshire College
  8. The Center for Teaching & Faculty Development announces two remaining events in its Diversity & Teaching Series:  “Teaching Difference: A Faculty Panel,” and “Strategies to Engage And Sustain the Diverse Classroom”
  9. Finally – surprise! — Charles Krauthammer will be giving a talk here in about ten days, sponsored by the UMass College Republicans.

What rarely crosses my path are announcements designed to actually help students with their academic work as final exams/papers approach, or to appeal to their imagination and intellect in areas not related to the overarching agenda of “social justice” and “diversity.”  There are, however, many end-of- semester events designed for one or another identity group.  I’ve been noticing that these don’t clarify if they’re open to the public, or only to the particular identities being celebrated.

As for the actual work going on in many humanities courses, despite my pleasure in noting that many of my students can write decently, I also know that our academic standards have declined in terms of what is expected and demanded of our students (a problem that begins well before they arrive at the university, as evidenced by the striking fragility of their general level of knowledge).  Do literature courses these days assign students eight or so novels to read over the semester, as we certainly used to do?  My own experience is that students do watch films (an ever greater part of our curricula), yes, but are less likely to do assigned readings, though these rarely amount to more than perhaps a few dozen pages per week.

The university provides us with an online resource, Moodle, on which we can place assignments, readings, create discussion groups, post grades, and so on. It also allows faculty to see which students are actually accessing the assigned materials. Of course, we can’t tell how much time they actually spend on the materials, only the date and time that they have clicked on them.  I tell my students that their professors can do this, so that they can be aware of the far greater surveillance they may be subjected to, compared to the past. Despite this, some of them choose to skip much of the material for my course.  If I assign several short readings, some students will only bother with one or two of them. This is how I know they at least initially access and perhaps actually watch films. The difference between their activities reports on readings versus on films is marked.

The faculty groans and moans about the ever-decreasing level of work we can realistically expect of our students; it’s a persistent theme, but we more or less conform.  It seems impossible not to.   I can’t comment on what’s going on in non-humanities courses, where I do not have first-hand experience.

Furthermore, it is a fact that at UMass our semesters have become shorter and shorter (right now we’re at 13 weeks of actual instruction per semester).  And – another sign of the times — many General Education courses have been converted from three to four credits, without a proportional increase in classroom time.  Obviously, the result is fewer courses per college career, though the pretense is that these 4-credit courses are more intense and demanding.  When, a few years ago, I was on a Faculty Senate sub-committee discussing what we should require of professors seeking to make this change, I inquired:  “Why don’t we just demand that our students actually do the work we already assign?” That comment didn’t carry the day.

Still, my sketch of the current scene in my part of the university should in no way be taken as chiming in with the common complaint that we fail to prepare students for employment.  I actually believe an undergraduate liberal arts education is valuable in and of itself, and that the university’s main function is not to be a job-training school.  But if – despite the efforts of individual professors — we don’t even offer a genuinely high quality education, one that goes beyond the current shibboleths for which students actually don’t need to go to college, what can be said to justify our existence?  If we’re instead focused on rhetoric displays related to ersatz politics and the university’s supposed commitment to right the world’s wrongs, well, then, we’re not even doing the job we can reasonably be expected to do, and for which students are paying exorbitantly high prices.  Not to mention that of course we cannot even agree on how to go about improving the world, any more than do politicians who devote their full attention to this!  Instead, pathetically, the university routinely engages in verbal magic –still obsessed with identity politics as indicated by the ceaseless emphasis on terms such as diversity, inclusion, and outreach.

What does all this signify if not a depressing loss of confidence that education is itself of value and doesn’t need transmogrification into something else? No wonder so many students seem to want above all to get through college with as little effort as possible, rather than taking advantage of the extraordinary riches that ought to be available at any university.


 

The Mangling of American History

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The evolution of the historical profession in the United States in the last fifty years provides much reason for celebration.  It provides even more reason for unhappiness and dread.  Never before has the profession seemed so intellectually vibrant.  An unprecedented amount of scholarship and teaching is being devoted to regions outside of the traditional American concentration on itself and Europe. New subjects of enquiry — gender, race and ethnicity — have developed.  Never have historians been so influenced by the methodology and contributions of other disciplines, from anthropology to sociology.  

At the same time, never has the historical profession been so threatened.  Political correctness has both narrowed and distorted enquiry. Traditional fields demanding intellectual rigor, such as economic and intellectual history, are in decline.  Even worse, education about Western civilization and the Enlightenment, that font of American liberties, and the foundation of modern industrial, scientific and liberal world civilization, has come to be treated with increasing disdain at colleges and universities.  

Continue reading The Mangling of American History

The Sixth Circuit Undermines Affirmative Action

On November 6 the voters of Oklahoma, following in the footsteps of voters in California (1996), Washington (1998), Michigan (2006), Nebraska (2008), and Arizona (2010), passed  a constitutional amendment that prohibits the state from offering “preferred treatment” or engaging in discrimination based on race, color, gender, or ethnicity. On November 15 eight of the fifteen judges of the Sixth Circuit Court of Appeals held, over vigorous dissents, that the nearly identical Michigan amendment requiring the state to treat all its residents without regard to their race violated the Equal Protection Clause of the 14th Amendment. Really.

As Roger Clegg just noted, this decision will almost certainly be reviewed by the Supreme Court, not primarily because it is unusually stupid but because it conflicts with both old and recent decisions of even the notoriously liberal Ninth Circuit. Ironically, this decision is so bad that it may actually do some good before the Court can review it. In flatly rejecting the same argument made in the Michigan case (by the same lawyer) against California’s Prop. 209, a three judge panel of the Ninth Circuit ruled in April that “Grutter upheld as permissible certain race-based affirmative action programs. It did not hold that such programs are constitutionally required.” In holding that states are effectively prohibited from deciding that race-based preferences are impermissible, the Sixth Circuit’s overreaching Egregious Eight may have inadvertently driven a stake through the heart of affirmative action. Their extreme decision may persuade Justice Kennedy and hence a conservative majority to hold in the upcoming Fisher decision that Grutter must be gutted, not tweaked, that the only “way to stop discrimination on the basis of race,” as Chief Justice Roberts famously said in Parents Involved, “is to stop discriminating on the basis of race.”

Noting the great gulf separating the views on racial preference held by the nation’s opinion leaders and elites, including leaders and faculty of both public and private universities, Richard Kahlenberg recently quoted Richard Sander’s and Stuart Taylor Jr.’s observation in their terrific new book, Mismatch, “We can think of no other public issue in which the leadership class displays such cohesion in the face of a largely opposite view among Americans in general.”

In large part that’s because most Americans continue to define discrimination as distributing benefits or burdens based on race while opinion leaders in editorial and university offices, Hollywood and Madison Avenue, board rooms, and nearly all elected and appointed Democrats have abandoned that traditional definition and instead regard discrimination as anything that interferes with promoting “diversity,” which in practice means discriminating against white and Asians in order to admit or hire more blacks and Hispanics. Thus the Sixth Circuit thought it unfair that the citizens of Michigan prohibited “race-conscious” admissions, i.e., preferential treatment based on race, while allowing “a legacy-conscious admissions policy.” Whatever the merits or wisdom of legacy preference, it cannot be said that its intent or effect is to discriminate against minorities. Indeed, for over a generation now minorities have been admitted to selective institutions in greater numbers than if they had been held to the same standards as whites and Asians, and thus it is quite likely that legacy preferences on balance now actually benefit minorities.

Their “legacy conscious admissions” comparison reveals that the Sixth Circuit based its decision on the assumption that “race-conscious” admissions have the intent and effect of benefitting minorities. The massive amount of evidence presented in the “mismatch” scholarship of Sander, Taylor, and now many others, however, has demonstrated that in fact “race conscious” admissions actually does serious and lasting damage to its ostensible “beneficiaries.”

I say “ostensible” and put “beneficiaries” in quotes because for anyone who credits the mantra-like justifications for “race conscious” admissions offered by its proponents, it’s clear that lowering the bar for blacks and Hispanics is not intended as a benefit to them — after all, they would receive whatever benefits “diversity” offers at less selective institutions — but to the whites and Asians whose education is said to require being exposed to them.

In any event, the noxious belief of the Sixth Circuit and all supporters of racial preference that discrimination against some groups should be legal if it benefits other groups reveals how thoroughly American liberalism has abandoned the civil rights ideal that was its heart and soul from the1830s through the 1960s.

UCLA’s Latest Display of Outrage

Cross-posted from Can These Bones Live 

UCLA
law professor Richard Sander has been the target of student protests at his
university this week. Sander, a critic of affirmative action, published a
report that argued UCLA’s supposedly “holistic” admissions process was quietly
including race as a prominent factor in deciding who would be admitted to the
university. Based on his analysis of admissions data, Sander argued that while
UCLA’s holistic process, which included factors such as socioeconomic
disadvantage in deciding who would be accepted, was not racially discriminatory
by itself, admissions officers did not strictly follow the process and made
offers to students who not only had relatively weak academic backgrounds, but
even low scores in the holistic ranking. These offers, according to Sander,
went disproportionately to black students. If Sander is correct, then UCLA’s
admissions office has been surreptitiously violating California law, which
prohibits the state’s universities from considering race in admissions or
hiring.

The
report, according to Inside Higher Ed, “infuriated minority student
leaders at UCLA (not to mention administrators).” The students perceived it as
“offensive” and described themselves as being “under attack.” UCLA Associate
Vice Chancellor for Enrollment Management Youlanda Copeland-Morgan had not
reviewed the statistics in the report and therefore could not judge the
report’s accuracy, but nevertheless described Professor Sander’s analysis as
“hurtful and unequivocal attacks.”

As
I read through the Sander report, I could see no attempts to “attack” or “hurt”
anyone. He makes an argument, based on evidence. One may disagree with his
argument or, after having reviewed his evidence, conclude that the facts do not
support it. But other than making vague claims that somehow the holistic
process includes considerations that cannot be measured statistically,
apparently no one has made any serious efforts to rebut Professor Sander’s
reasoning. In an interview excerpted by Inside Higher Ed, Sander, who had
attended the protest against his report (brave man), observed that “Some
fairly cynical leaders saw an opportunity to create a cause … and they are
milking it to the full. There was no rational discussion. There was no
identification of any mistakes in my report, and no concern about what it would
mean if the analysis were correct.”

I
have no argument with the right to peaceful assembly and it would be perfectly
legal for people to gather to protest the laws of physics, if they should
choose to do so. Still, I find the events at UCLA appalling. A university
should be a place where we encourage careful, dispassionate reasoning. Shouting
slogans and shaking fists in the air do not lend themselves to the cultivation
of rational analysis. While Professor Sander does not appear to be intimidated
by outraged crowds, this kind of emotional display does make it more unpleasant
to express unpopular views and therefore undermines the openness to
intellectual diversity that should be the essence of university life.

Why Size Matters in College Preferences

mismatch.jpg

By Stuart Taylor, Jr. and Richard Sander

Even for people who approve in
principle of some use of racial preferences in university admissions — notably
including Justice Anthony Kennedy — the size of the preferences, and of the
resulting racial gaps in academic performance in college and beyond, should
matter a great deal.
 

So it’s unfortunate (though
understandable, as explained below) that the size of the preferences at issue
in Fisher v. University of Texas was
not mentioned either during the Supreme Court’s October 10 oral argument or at
any other point in the discrimination lawsuit against UT by Abigail Fisher, a
disappointed white applicant.

But the Court could and should use
the
Fisher case to impose a
requirement — suggested in our new book,
Mismatch
— that from now on, a university’s burden of proving justification for its use
of racial preferences will include a requirement that it fully disclose the
size of its preferences (preferably including legacy and athletic preferences)
and of the mean gaps in college academic performance among students admitted on
the basis of preferences of various sizes.

Continue reading Why Size Matters in College Preferences

A ‘Magisterial’ Work on Affirmative Action

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“Mend it, don’t end it” was the famous advice
on affirmative action from Bill Clinton, who did neither. There are, of course,
other useful slogans, such as “Muddle it,” which the Supreme Court essentially did
in the 2003 Gratz and Grutter cases. The Court held that the University
of Michigan could not give a fixed number of points to minority applicants but
that its law school could give even more substantial preferences based on race
so long as it sufficiently disguised what it was doing under the smokescreen of
individualized, “holistic” review.

Now under new leadership and with a few new
members, the Court will see if it can do better when it decides, after hearing
oral arguments this week, whether the University of Texas is allowed to
supplement its successful, facially race-neutral diversity-producing “top 10%”
admissions policy by taking race into account in the admission of other
students. 

Continue reading A ‘Magisterial’ Work on Affirmative Action

We Don’t Need a Different “Affirmative Action”

On
the day the Supreme Court heard oral arguments in Fisher v. Texas, a case challenging racial preferences in college
admissions, the Wall Street Journal published a piece purporting to give “A
Liberal Critique of Racial Preferences.”

Author
Richard Kahlenberg argued (as he almost always does) in favor of changing “affirmative
action” to a system based on socio-economic class. That is, rather than
colleges giving preference to students because of their ancestry, they would
instead give preferences to students from relatively poor families. Kahlenberg
thinks it better to selectively admit some applicants, no matter what their
race, from low-income and working-class families than to admit some from
affluent families on account of their race.

The
case for preferences based on socio-economic status (SES) is no better than
that for race. I will focus on the most central one: It accomplishes no good.

Kahlenberg’s
argument is that racial preferences made sense in the past, when doors were closed
to many Americans based on their skin color, but today “obstacles to
opportunity are more closely associated with economic disadvantage.”

I
strongly disagree. Today the “obstacles to opportunity” are overwhelmingly
creations of government: occupational licensure, minimum wage laws, red tape
that impedes business formation, and so on. Those obstacles affect everyone,
although they have their strongest impact on the poor. But being poor is not itself
an obstacle.

But
this is besides the point. Kahlenberg isn’t describing a generic plan to boost
up the poor and working-class. He wants elite colleges and universities to give
prefer to the children of poor and working-class families. Suppose that a
plumber’s daughter in North Carolina has grades and SAT scores that make her an
automatic admit at UNC-Charlotte and a fairly likely admit at NC State. She applies
to Duke on a whim and is accepted not for her academic prowess but Duke’s desire
for SES diversity.

As
a diligent student, she will succeed whether she goes to UNCC, NC State, or
Duke, although at the latter she might find herself competing with students who
have more academic ability. Even if going to Duke wouldn’t cost her more (and
it almost certainly will), how is it beneficial for her to go there? Her career
prospects depend on her own accomplishments, not the name of her alma mater.

There
are two hidden assumptions in Kahlenberg’s argument — that elite schools give
students elite education and that America will be a fairer country if children
from “lower” SES backgrounds attend elite schools. Neither assumption is correct.
The supposedly elite schools don’t necessarily provide a better education.
Moreover, shuffling a few students “up” into those schools — while
simultaneously shuffling an equal number of non-preferred students “down” —
won’t make America any fairer. 

Justice Kennedy and Affirmative Action

The Supreme Court holds oral arguments tomorrow in Fisher v. Texas, possibly the most consequential case in years involving affirmative action. Many of us critics of racial preferences are optimistic that Justice Anthony Kennedy, the likely swing vote, will agree to modify if not overrule Justice O’Connor’s ruling in the 2003 Grutter case, which, in the name of diversity, allowed state-run colleges and universities to grant racial preferences.

Part of the reason for our optimism derives from the fact that the conservative justices decided to take this case in the first place. Abigail Fisher, who was denied entry to the University of Texas, wound up matriculating at an out-of-state institution and no longer seeks Texas admission. The Court could have declared the issue moot (as a majority of the Court did in a parallel affirmative action case in 1974 regarding preferential admissions to the University of Washington law school) and refused to hear it. It could have refused to hear the case without further explanation.

The fact that the four conservative justices agreed to take the case indicates to many court watchers both that a) they intend to issue a decision that will reverberate well beyond Abigail Fisher and Texas, and that b) they probably have Anthony Kennedy on board as a fifth vote to make some serious modifications in, if not the outright overruling of, the Grutter standard.

Continue reading Justice Kennedy and Affirmative Action

Left-Right Agreement on Affirmative Action?

Perhaps anticipating a defeat for affirmative
action in the Fisher v. University of Texas case about to be argued
before the Supreme Court, Columbia University political philosophy professor
and former
Dean of the College
Michele Moody-Adams has just suggested
moving away from a fixation on affirmative action and “Toward
Real Equality in Higher Education
.” Whatever happens in Fisher,
she argues, “we must recognize that controversies about race-conscious
admissions have unhelpfully narrowed the debate about equality of educational
opportunity and diverted attention from the extraordinary inequalities that
continue to exist.”

As “an African-American alumna of a selective
college” and high-level administrator at Cornell and Columbia, Prof. and former
Dean MM-A acknowledges that “diversity” (her quotes) is “unquestionably
valuable,” but unlike nearly all diversiphiles she recognizes that “it can lead
institutions to view minority students as mere means to an end: essential
embodiments of “diverse perspectives” whose greatest value to the
institution lies in their capacity to help fulfill institutional goals.” (Can?
How could it not, since the official rationale for admitting some minorities who would not have been admitted
but for their race or ethnicity is so that non-minority students could be
exposed to them?)
 

Since most colleges are not selective, her
criticism continues, “the percentage of minorities at selective institutions
has little to do with the educational opportunities available” to anyone. Nor
is she persuaded by the “trickle-down effect” defense of affirmative action, a
prediction that minority students would devote their careers to expanding
opportunity in their communities. “Not surprisingly,” she writes, “minority
students have turned out to be like students in general: By and large, college
students do not feel obligated to define their personal goals in the context of
broader social goods.” (Not surprisingly? If it is not surprising that
minority students are just “like students in general,” what is the point of
lowering admissions standards for them so they can provide “diversity” to
others?)

Prof. and former Dean MM-A is clearly no
conservative. She has no use for “familiar criticisms that affirmative action
undermines a system that is otherwise based wholly on merit,” and she rejects
the view that selective institutions do or even should “reward only those
applicants with the right combination of talent, hard work, and ambition — who
really ‘deserve’ a place in those institutions.” In suggesting that the pursuit
of “diversity” should be subordinated to efforts that  promote “real equality of educational
opportunity,” she echoes a long line of leftist criticism of affirmative action
(see a good example here)
as little more than a tattered bandage, or worse, on the open wound of American
racism.

Interestingly, many conservatives agree that
affirmative action is and has been a generation-long diversion from
confronting  the real problems afflicting
blacks in American society. In the long last chapter of his recent book, Wounds That Will Not Heal: Affirmative Action and Our Continuing Racial
Dilemma
(watch this space for a forthcoming
review), Russell Nieli argues that affirmative action was born as a response to
the urban riots of the 1960s but the plight of those who had provided the
initial impetus was lost “in the ensuing decades in the never ending
controversy over racial preferences.” What Nieli calls “the sorry plight of the
black underclass” disappeared from the national radar screen. “The ‘affirmative
action response,’  focused mainly on the
black middle class,” he concludes, “has diverted our gaze from the place it
really belongs and done much to undermine interracial sympathy and goodwill.”
 

Who said left and right never agree?

Why Are There Still Preferences for Women?

Using federal statistics, Laura Norén has prepared a series of graphics showing gender distribution among recent recipients of undergraduate, M.A., and Ph.D./professional degrees. The charts are visually striking, especially since all three sets of charts show movement in an identical direction. According to Norén, by 2020, women are projected to earn 61 percent of all M.A. degrees and 58 percent of all B.A. degrees—figures far above the percentage of women in the total population. There’s no indication that this trend will reverse anytime soon.

The Norén chart reminded me of figures revealed in CUNY’s recent faculty “diversity” report. As I previously noted at Minding the Campus, the demographic breakdown of CUNY’s faculty (and there’s no reason to believe that CUNY’s figures differ from those at most major public institutions) has shown a similar progression.

Between 2000 and 2010, the number of women increased from 42 to 47 percent of the all CUNY faculty. (The total had risen five percent in the previous decade, as well.) Because of the nature of tenure—only a small percentage of faculty positions come open every year—a five percent overall gain in a decade suggests disproportionate figures in hiring. And, indeed, that was the case—while the CUNY diversity report only broke down gender-hiring patterns for a couple of years in the decade, in 2005, the most recent year for which data was available, 55.5 percent of the new hires were women. If current patterns hold, women will be the majority of CUNY faculty in 2020 and be nearing the 60 percent mark by 2030.

There’s nothing necessarily troubling with these patterns in and of themselves. Undoubtedly the growing numbers of female students—and female faculty members—in part reflect the broader opening of higher education toward women that has occurred since the 1960s. And in a nation where women form 50.8 percent of the population, a fair-minded campus admissions and hiring process could easily yield majority-female enrollment or hires.

Yet these statistics do raise profound, and troubling questions about the nature of campus race/ethnicity/gender “diversity” programs. If women are the substantial majority of students at all levels, and increasingly emerge as the majority of faculty members, what possible rationale could exist for programs, of any type, that grant gender-based preferences to women? Regarding the student population, at least, and the faculty population in the near future, women are no longer an underrepresented minority. To my knowledge, however, no university anywhere in the country has modified either its admissions or its personnel policies to take into account statistics such as those graphed by Norén.

Take, for instance, the University of Michigan’s affirmative action policies. The policies include such banalities as a requirement that “university publications relating to employment . . . include articles covering the University’s affirmative action programs, including progress reports and employment data on minorities and women. Pictures will include minorities and women.”

But other requirements are more direct. “Special attention will be given,” according the guidelines,“to extending and strengthening efforts to increase the number of women” in faculty positions. “Recruitment practices will focus on creating a feeling[emphasis added] conducive to attracting minorities and women.” And faculty search committees “will utilize methods which are most likely to result in the inclusion of qualified minorities and women in the applicant pool.” Such requirements might once have been needed. But in an academy in which women are moving toward majority status?

Despite all of these policies, moreover, the university preposterously maintains that “Applicants for employment are considered and placed without regard to . . . sex.” And with federal courts clearly in mind, the guidelines add that goals and timetables for hiring more women at Michigan “are not to be construed or used as a quota system.”

There’s nothing particularly unusual about Michigan’s policies, just as there was nothing unusual about CUNY’s faculty hiring data; such patterns are common throughout higher education. And there’s no reason to believe that any statistics will lead to these policies being repealed.

Norén’s chart unintentionally highlights a point made in several of the Fisher briefs: that it’s entirely possible that even outright quotas might lead to a fairer higher education system than our ever-shifting “goals and timetables,” which can easily be shielded from transparency.

Fisher and “Diversity”: The More Things Change…

Browsing through the collection of over
70 pro-“diversity” amicus briefs
submitted on behalf of the University of
Texas in the Fisher case, I am reminded, as I often am, of how eerily
the current defense of “taking race into account,” i.e., preferential treatment
based on race, resembles the old Southern arguments in defense of segregation.

As I have
pointed
out
on my blog a number
of times,
one of the oddest, saddest things about contemporary liberalism is the degree
to which it stands on the shoulders, and repeats the arguments, of dead
racists. Anyone, for example, who defends racial preferences must reject
Justice John Marshall Harlan’s stirring comment in Plessy that
“our Constitution is colorblind” and agree with the majority’s holding that the
14th Amendment does not require colorblindness and hence that racial
discrimination can in many circumstances be reasonable and hence
constitutional.

Opposing the Michigan Civil Rights Initiative
in 2006 (before he was convicted
and sent to prison
for fraud and corruption), Detroit Mayor Kwame
Kilpatrick declared
to applause in a speech to the NAACP, “We will affirm to the world that
affirmative action will be here today, it will be here tomorrow and there will
be affirmative action in the state forever.” Kilpatrick unwittingly channeled
George Wallace’s 1963 acceptance
speech
as Governor of Alabama: “I draw the line in the dust and toss the
gauntlet before the feet of tyranny, and I say . . . segregation today . . .
segregation tomorrow . . .segregation forever!”

One of the most famous documents in the
South’s massive resistance to school integration was the “Southern
Manifesto
” of 1956, signed by 19 Senators and 77 Representatives, defending
states’ rights and criticizing the Supreme Court for overturning settled law.
To demonstrate how closely its arguments resemble current defenses of
preferential admissions I once posted a version of
that document
substituting “diversity” or “racial preferences” for
“segregation.” It is an uncanny fit. The Southerners argued, for example, that
“the ‘separate but equal’ principle [substitute: the amount of diversity and
the means of achieving it
] is within the discretion of the state in
regulating its public schools and does not conflict with the Fourteenth
Amendment.”

The Jackson Clarion Ledger quoted a spokesman for the Mississippi
Attorney General’s office explaining that representatives from that state had
“signed on … in the interest of fighting to allow our universities to set their
own admission policies without unnecessary interference or second-guessing by
federal courts.” In a closely related legal document  Mississippi joined
several other states in asserting that “states must have the freedom and
flexibility to create strong institutions tailored to the needs of each
particular State and its citizens” and urging the Court “to reject petitioner’s
invitation to … destabilize the careful judgments that each State has made in
light of the conditions and needs facing its own particular institutions of
higher learning.”
 

The petitioner referred to above is actually
Abigail Fisher, and the attorney general’s spokesman is actually referring to
the amicus
brief
Mississippi joined with New York, North Carolina and several other
states defending the University of Texas’s admitting some applicants and
rejecting others based on their race and ethnicity.
 

Mississippi, still defending racial
discrimination. The more things change….

The Anti-Defamation League Reverses Course on Affirmative Action

In explaining why the American Jewish Committee had (with his help) supported Alan Bakke’s lawsuit against the University of California but also supported the University of Michigan’s racial preferences in Gratz and Grutter, Alan Dershowitz wrote that

We feared that our hard-earned right to be admitted on the merits would be taken away. The WASP quotient would be held constant, and the Jews and African Americans would be left to fight over the crumbs. What happened is that Jews have become the WASPs. They are among the dominant groups on campus, in terms of numbers.

Three of the most influential Jewish organizations — The American Jewish Committee, the American Jewish Congress, and the Anti-Defamation League — opposed preferences based on race in Bakke. In fact, according to a detailed summary of the brief they filed jointly, the two AJCs went much further and even opposed all classifications based on race, calling them “presumptively invalid because of their irrelevant and invidious nature.”  The Anti-Defamation League filed its own brief in Bakke, which was equally strong: it insisted that “a difference in race cannot be an appropriate justification for different treatment by the state.”

By 2002 both the American Jewish Committee and the American Jewish Congress, perhaps fearful of straining black-Jewish relations, abandoned their Bakke-era principles and supported the University of Michigan’s use of race preferences.  However, the ADL maintained that “people should not be judged by skin color, and any use of race in admissions is unconstitutional.” 

“What we want is society to be as colorblind as possible,” National Director Abe Foxman insisted to the Jewish Daily Forward, “and therefore to use [race] for good purposes we believe is as unconstitutional as using it for bad purposes, especially if there are other ways to achieve the goal of diversity.” For example, he said, “the ADL supports Texas’s policy of guaranteeing the top 10% of each high school’s graduating class admission to the state university of their choice to promote diversity in lieu of racial preferences.”

Last Friday, however, the ADL abandoned its “principled position” and filed a brief supporting the University of Texas’s open-ended use of “race-based criteria.” Swallowing the same “holistic” race preference Kool-aid to which the American Jewish Committee and American Jewish Congress had been addicted since Grutter, Foxman, still National Director of ADL, and Robert Sugarman, its National Chair, issued a statement revealing their belief that “diversity,” not non-discrimination, is “critically important.”  

The University of Texas’ approach does not impose quotas, assign people to categories based on their race, or use race as a determinative factor in making admissions decisions.  Rather, it uses race as only one factor in a holistic review of each applicant. This is not an overt or a covert quota system, which ADL would have opposed.

Thoroughly jettisoning its formerly “principled” opposition to “any use of race in admissions,” the ADL now opposes only “quotas, assigning persons to categories based on their race, or using race as a determinative factor in making admissions decisions” [emphasis added]. I wonder what Foxman et al. will say when religion is considered “as only one factor,” and not a “determinative” one, in efforts to diversify departments, faculties, and professions in which Jews are “overrepresented.” They certainly can have no principled objection to taking religion into account in admission and hiring.

Texas: Racial Preferences Now, Racial Preferences Forever!

The
University of Texas has filed its main brief
in Fisher v. University of Texas, and it’s a doozy. It argues, among
other oddities,

  • that
    the continuing “underrepresentation” of blacks and Hispanics requires the
    continued use of racial preferences to increase their numbers, but that the
    reason for increasing their numbers has nothing to do with increasing their
    numbers; it is necessary only because the “diversity” they provide is essential
    for the “acquisition of competencies required of future leaders”;
  • that
    assessing “the educational benefits flowing from student body diversity” might
    seem “amorphous,” but “trained educators” are competent to do so and courts
    should defer to their expertise;
  • that
    because Texas has no specific “race-based target” it should be allowed
    virtually unlimited latitude to give as much weight to race as it chooses;
  • that
    race-based preferences are necessary to combat racial stereotypes, presumably
    including the stereotype that minorities are incapable of succeeding without
    race-based preferences;
  • that
    not only is it too soon to limit or overturn Grutter; it will always be
    too soon because there are still “thousands of classes” where blacks and
    Hispanics are “nearly non-existent” and “diversity” is required not just
    institution-wide but in all classes.

I
discuss these and other aspects of the brief in more detail here.

Student Voices
Affirmative Action for Colleges?

President
Obama issued an executive order on Thursday that created an specific educational
initiative for African-Americans. Dubbed the White House Initiative on Educational Excellence for African-Americans,
the program aims to increase black children’s access to quality instructors and
educational programs from kindergarten to college.

While Obama’s professed goal of equal access to a quality education is certainly admirable, it
is unclear that the best way to accomplish this is with a program specifically
targeted to serve only students of a single race. After all, if “equitable
access” — and not “privileged access” — were really the goal, it would make
sense to try to assist all students of all races who lacked
access to quality educational programs. It is difficult to see why schools that
primarily serve African-Americans should be given specific priority.

It is one thing to attempt to ensure that all
students have the opportunity to attend a quality college, but it is another
entirely to attempt to extend this opportunity especially to students of a
certain race. Moreover, Obama’s new program might even hurt disadvantaged
students who do not happen to be black. The initiative will likely act as a
subsidy for colleges, universities, and other organizations that presumably
cater to blacks, diverting resources from institutions that serve other
communities–including other disadvantaged communities. A more general initiative
would avoid this problem. It would not rob real resources from colleges that
aim to educate people of all racial groups in order to strengthen those that
aim to educate people of only one.

Lucia Rafanelli is a rising senior at Cornell University.