Tag Archives: racial preferences

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.

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.


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.


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.

Another Illegal ‘Diversity’ Scheme at Michigan

By John S. Rosenberg

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

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

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

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

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

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

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

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

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

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

John Rosenberg blogs at Discriminations

More About what Candidates Can Do…

By Roger Clegg

Kudos to Peter Wood for encouraging the presidential candidates to opine – and opine wisely – on higher education issues in his article, “What Candidates Can Do for Higher Education Now.” With regard to his Item #3 (“End higher education’s destructive focus on race”), I’d like to point out two specific proposals that have been made, along the lines of the legislation that Peter discusses.

First, Professor Gail Heriot, who moonlights as a member of the U.S. Commission on Civil Rights, had an excellent Wall Street Journal op-ed last year that made two important points. The first is that the “mismatch” that results from racial preferences in university admissions is an important factor in the relative dearth of African American graduates in the STEM disciplines.

But the second is that, while some of the pressure to use these preferences is self-imposed, a lot of it is not — and, in particular, much of it comes from accrediting agencies. She calls on Congress to step up to the plate and “prohibit accreditors from wading into student-body diversity issues.” Those interested in more information about what Congress should do on this can read Professor Heriot’s additional words of wisdom here and here.

Second, as long as university officials take race and ethnicity into account in admissions decisions, a bill requiring publication of the use of such preferences is necessary. Such a bill would require universities that receive federal funding to report annually and in detail on whether and how race, color, and national origin factor into the student admissions process. The Supreme Court has, alas, upheld such discrimination as constitutionally permissible, at least for now, but this is supposedly subject to numerous restrictions.

So even if some insist that taxpayer-funded universities should continue to practice racial discrimination in admissions, there’s no justification for it being done secretly and illegally – that is, without public disclosure and without taking pains to satisfy the Supreme Court’s requirements.

Senator Lamar Alexander (R-TN), who chairs the relevant Senate committee and is an outspoken critic of racial preferences, ought to be supportive; so should his House counterpart, Rep. Virginia Foxx (R-NC); the U.S. Commission on Civil Rights endorsed this approach, including “sunshine” legislation, as a recommendation to the President and Congress in a 2006 report. And Rep. Steve King (R–IA) has on more than one occasion introduced legislation like this. You can find a draft of the bill (the “Racial and Ethnic Preferences Disclosure Act of 2014″) and more discussion here.

Roger Clegg is the President and General Counsel of the Center for Equal Opportunity.

Asian Americans Move Against Harvard

Several years ago a Korean student in one of my precept classes at Princeton told me of the shock and anger among Asian students at his expensive California private high school when college acceptance letters arrived in late spring.  What really stoked the anger of many of his Asian classmates, he said, was the fact that the student in his class who did best in the college admission process was a Black female who applied to several of the most competitive universities in the nation and gained acceptance to every one of them, eventually choosing to enroll in Stanford.

“There were loads of Asian students with much better grades, much higher SAT scores, and who were much more active in the student council and a host of other extracurricular activities,” he said. To add insult to injury, he went on, this particular female student had a cold, off-putting, unfriendly personality — “she didn’t make it on charm” was the thrust of his additional remarks.  To many classmates the college admission system seemed rigged against Asians and absurdly tilted in favor of Blacks.

High SAT scores, top grades, extracurricular activities, and an ingratiating charm may not have been the strong suit of this particular Black prep school student,  but as those of us who have kept abreast of college admissions policies over the years know, being an “under-represented minority” can make up for a lot of lost ground.  Checking off the “Black” box on a college application rather than “Asian,” far from being the slight “thumb on the scale” that college administrators would like outsiders to believe, can be an enormous advantage in the college admission process, often counting as much or more than being a top athletic recruit.

In a widely publicized study of eight highly competitive colleges and universities, sociologists Thomas Espenshade and Alexandria Radford found that on an “other things equal” basis in which adjustments were made for a large number of background factors, the Black-over-Asian advantage in college admissions was equivalent to 450 SAT points on a 1600 point scale (e.g. an 1100 Black score, other things being equal, carried the same weight in admissions as an Asian score of 1550).

Ceiling Quotas

Although they will invariably lie about it, many of the country’s top colleges and universities — including all of the Ivies — have informal “ceiling quotas” for Asian students, and informal “minimum quotas” for Blacks, not wanting “too many” of the one or “too few” of the other. Applicants from the high-achieving Asian group are at a huge disadvantage in the admissions process compared to both Black and Latino applicants since the universities resort to something very much like “race norming” — i.e. “within racial group” competition in which Asians, Latinos, and Blacks essentially compete only among themselves for a predetermined number of admits based on what is seen as a desirable racial balance.

The numerical quota and desired racial balance are slightly flexible in that they are allowed to vary within a narrow range from year to year depending on the quality of the applications received, but they are not permitted to stray too far from a predetermined racial proportionality goal.  Applicants from the different ethno-racial groups most certainly do not compete on a merit-only basis among the total applicant pool — a system that would lead to a huge increase in the number of Asian students and a corresponding decline in the number of both Blacks and Latinos. Merit-based systems, like those forced by popular ballot initiative upon Berkeley and UCLA, produce what most academic administrators at the Ivy League universities find unacceptable — i.e. a huge “over-representation” of the high achieving Asians and a corresponding “under-representation” of the much lower achieving Blacks and Latinos.

A Turn to Litigation

Despite the fact that they have been injured the most by racial preference policies, Asians throughout most of the affirmative action era have been rather quiescent in terms of public protest.  Like the Korean student in my precept class, individual Asians will protest privately what they see as outrageous racial double standards in university admissions, but they have not shown much interest in organized protest.  However, things may be changing, and the preferred vehicle of change seems to be an aggressive litigation strategy rather than legislative lobbying, campaigns to change public opinion, or organized street protests. In choice of strategies, the Asians of late seem to be following in the footsteps of the old NAACP’s Legal Defense Fund, which pursued a similar litigation strategy against racial discrimination in the middle decades of the last century.

Thomas Espenshade describes how the Asian community’s long-simmering anger over affirmative action policies may finally be entering the realm of organized protest.  “Up until five or ten years ago,” Espenshade says, “the [Asian] response [to affirmative action] has been, ‘Well we just have to work harder.’  But over the last decade, more groups are starting to mobilize, saying we don’t have to just accept this, we can push back against it.”

The most recent example of this pushing back occurred earlier this month when a formal complaint against Harvard University was lodged on behalf of a coalition of several dozen Asian groups with the civil rights divisions of both the U.S. Justice and Education departments. Sixty-four Chinese, Korean, Asian Indian, and Pakistani groups, organized under an umbrella organization called the Coalition of Asian American Associations, were alarmed by the much higher standards to which Asians are held in the college admission process and what are in effect implicit Asian ceiling quotas.  Much of the driving force behind the litigation and the organization of the complainants was the work of Yukong Zhao, a 55-year-old Chinese executive from Florida, who is the author of a much-underappreciated book on Confucian values and how they have propelled so many Asians to high levels of achievement in America.

Espenshade and Radford

The Asian group’s complaint reveals a clear understanding of the informal “race-norming” policies in place at Harvard and other elite universities.  “Asian-Americans understand that they are not competing for admission to Harvard against the entire applicant pool,” the Coalition charged in its complaint. “In light of Harvard’s discriminatory admissions policies, they are competing only against each other — all other racial and ethnic groups are insulated from competing against high-achieving Asian-Americans.  Because Asian-Americans congregate at the high end of Harvard’s applicant pool, the competition is fierce.  This has deterred and continues to deter many qualified Asian-Americans from [even] applying to Harvard.”

The Coalition drew upon many sources in its complaint, including the scholarly work of Espenshade and Radford and the important study of quota-like admissions at the eight Ivy League universities presented by Ron Unz in his influential study “The Myth of American Meritocracy.”  It is difficult to read authors like Unz and Espenshade/Radford without concluding, as the Asian Coalition did, that our most elite universities practice something very much like the kind of “within-group” race-norming that has been explicitly prohibited by our Supreme Court as violative of both the Equal Protection Clause of the 14th Amendment and Title VI of the 1964 Civil Rights Act.  This is the basis of the Coalition’s legal challenge.

A Second Challenge to Harvard 

Another legal challenge to Harvard’s admissions policies came last November when a group called the Students for Fair Admissions (SFFA) filed a lawsuit in federal court challenging what was alleged to be illegal racial preference and racial balancing policies at Harvard College, which discriminate against Asian applicants.  The SFFA group was the brainchild of the anti-affirmative action activist Edward Blum, who launched a website seeking the names of students who believed they were rejected by Harvard and two other universities because of their race.  Blum had earlier been instrumental in connecting Abigail Fisher with attorneys willing to take on her racial discrimination case against the University of Texas at Austin (i.e. the case that led to the ambiguous Fisher v. Texas decision in 2013).

While not a lawyer himself, Blum describes his legal activities as that of a “Yenta match maker” who brings together those he believes have been the victim of affirmative-action-like prejudice (“reverse discrimination”) with suitable attorneys willing to take their case on a pro bono basis.  “I find the plaintiff,” he explains, “I find the lawyer, and I put them together.”  He receives no money for his activities and is driven entirely by a sense of justice and a sympathy for victims of unseemly race-based public policies.

Harvard seems to be listening. In responding to the discrimination charge of the Asian Coalition, Harvard’s general counsel Robert Iuliano offered the usual boilerplate about “holistic admissions” and a “diverse class,” but he also announced something quite encouraging: the percentage of Asians admitted to Harvard College in its most recent freshmen class had risen to 21 percent.  He gave no reason for this modest rise, but when one considers that the percentage of Asians accepted in the recent past at Harvard College has always fluctuated between the narrow bands of 15-20 percent, one gets the impression that something may be changing.

Harvard, one suspects, is beginning to feel the heat. And in the future one can expect that people like Yukong Zhao, Edward Blum, and better-organized Asian complainants will continue to ratchet up the temperature.  Harvard and other race-norming institutions are on notice:  the days of Asian passivity may be over. The time of Asian protest may have just begun.