All posts by Peter H. Schuck

Peter H. Schuck, an emeritus professor at Yale Law School, is the author of a new book, “One Nation Undecided: Clear Thinking About Five Hard Issues That Divide Us" (Princeton University Press).

Five Realities of Tribal Politics

Chattering classes throughout the world are talking about identity politics and with good reason. It is propelling the so-called populist movements, and the response to those movements, which are shaking the foundations of almost every society today. Whether a polity is democratic, authoritarian, or anarchic, it is awash with clamorous appeals to relatively narrow allegiances based on race, religion, class, social position, gender, ideology, party — and typically some combination of them.

In the United States, college campuses, where our future voters and leaders are seeded, are the breeding grounds for these sectarian dispositions. There, young people newly emancipated from their families’ supervision are free to define themselves afresh. There, they are pressured by peers and professors alike, as well as social media, to endorse the orthodoxy of the tribe.

The notion that there are but two sides on important questions – right versus wrong, tolerant versus bigoted, progressive versus conservative — is an unfortunate feature of this war of words. The real world, when they finally enter it, will discipline their minds in ways that their campus lives have not, but the residue of ideologies already implanted there may continue to shape them as voters and fellow citizens. So, here’s this professor’s effort to clarify the nature of identitarian rhetoric.

I offer five propositions that may confound partisans on all sides.

First, all politics is identity politics even though the identities that are emphasized constitute but a small part of who we really are. This is neither a new phenomenon – bitter, seemingly unbridgeable divisions have often occurred in American history — nor the exclusive or even predominant preserve of the left or the right. In any democracy, electoral politics means, among other things, dividing people up rather than uniting them, which is much harder. Getting elected entails “rubbing raw the sores of discontent” and “mobilizing bias” (as two analysts have put it).

All human societies are tribal. As Amy Chua argues in a new book, Political Tribes: Group Instinct and the Fate of Nations, we all seek warmth and solidarity from those who we think are like us in some important respects. But beyond a certain point, tribalism can be pathological. Half of Republicans and a third of Democrats say they would be upset if their child married a member of the other party, and these antipathies are steadily deepening. This growing polarization of the parties parallels clustering of partisans in states, localities, and even neighborhoods, and it is occurring within parties as well.

Second, the appeal to the traditional transcendent unifying norms are debatable – notably “American values” and “the American Dream” –are debatable; they no longer do the unifying work that they once did. This, even though almost all Americans, including the poor, enjoy a rising standard of living. In truth, these appeals beg fundamental questions of morality and complex policy on which Americans significantly differ, so it is not surprising that we cannot agree about value-laden and empirically contested issues like immigration, the government’s role in healthcare, the integrity of law enforcement, abortion, gun control, and many more.

Third, even the terms and categories that we use to think about and discuss identity issues are over-simplified — in some areas grotesquely so. Occupying center stage is the subject of race. Although science long ago showed it to be a meaningless, misleading concept, both sides deploy it aggressively and simplistically to conceal inconvenient truths. The right contends that race is only a battleground because activist groups like Black Lives Matter, campus protesters, and other “outside agitators” exploit it. Leftist groups divide society into whites, blacks, and other people of color even though a significant share of Americans carry other ancestries, and intermarriage among these groups has greatly increased. Campus activists deem whites to be categorically “privileged,” yet the vast majority of poor people are white or non-black, and over half of “Hispanics,” many of them poor, self-identify as white. Only about a third of black students at Harvard had four grandparents descended from slaves; the great majority were West Indian and African immigrants or their children. The good news is that far more young people socialize and marry inter-racially unlike their more restricted grandparents, who in any event are dying out.

Fourth, identity-talk makes no serious effort to engage with the teachings of social science. Yet, empirical facts, careful distinctions, and hard-eyed assessment of policy consequences could complicate the easy moralizing and aggressive guilt-mongering in which identitarians of all stripes wallow. For example, sociologist Orlando Patterson has shown that the life experiences of black men and black women are so different that to treat them as a single “community” is vastly, even tragically misguided. By the same token, “immigrants” are not a single category but rather a congeries of people with sharply different social, cultural, economic, and legal statuses – and hence identities. To speak of immigrants generically, as we all tend to do, obscures their differences and misleads our judgments about them.

Finally, identity-talk is almost always more certain of its own premises — and more ignorant or indifferent to those on the other side of the lines it draws — than it should be. Smugness in the face of contradiction is endemic. Cosmopolitan liberals, for example, feel beleaguered by what they take to be an oppressive conservative hinterland now controlling Washington and the country. (Here, the classic New Yorker cover lampooning this view comes to mind). Yet as others have observed, liberalism has actually won the culture war, which in the long run is far more consequential for how we think, live, and vote. Conservatives have their own grievances, intensified by their own blind spots. Their bitter attack on Obamacare (which borrowed from Republican ideas) despite their inability to propose a viable alternative while controlling the machinery of government is but one example; another is the ease with which evangelical Christians continue to support a president who flagrantly violates their most fundamental moral commitments.

Yes, we are tribal, and yes, our tribes are blinded by ignorance and self-righteousness. Perhaps this has always been true. But our politicians were simply better at both unifying the voters that they had just tactically divided, and the institutions fragmented by our Constitution. In the end, we must reduce the hold that our tribes have over us, and we must elect those who share this goal.

What Professors Ought to Tell Students

We professors should transmit to our students three simple but ancient truths: (1) in many important matters in our fields, the ignorance of experts vastly exceeds our knowledge. (2) Much of what we think we know is hard to verify and may well be wrong. (3) We, and the materials that we will assign and discuss with students are their best route to learning.

Our vastly increased understanding of our world and universe over the centuries is wondrous, but it is mostly in the hard sciences and mathematics. Progress in the social sciences, which examine how we feel, behave, and interact with one another, is spotty and will probably always remain so due to the elusive complexities of causation, psychology, will, and the methodological impediments to rigorously studying and analyzing these issues. The humanities greatly enrich our lives, of course, but they mostly deepen the mysteries of life rather than dispel them.

Uncertainties Are Our Companions

Wise teachers, of course, already know this. They communicate it to their students in hopes of arousing their curiosity (at the risk of encouraging a lazy, mindless nihilism). I suspect, however, that many other professors are so eager to thrust their views on their students in a show of brilliance, self-confidence, and subject-matter expertise that they forego this wisdom and the intellectual and personal humility that should go with it. After all, they have earned doctorates, worked hard to master their fields of expertise, and gained faculty positions at fine institutions which in effect certify their own intellectual excellence. Why be humble and confess much ignorance, especially to students who probably don’t know any better?

We podium pundits should not merely acknowledge the considerable uncertainty that surrounds our fields; we should emphasize it from the very first class. Why? First and foremost, it is true — and teachers are obliged to speak the truth both to power and to ignorance. Only if students appreciate the uncertainties in what they are studying can they apply important distinctions. There is what we “know” to be true (or false) with a high degree of confidence, though always subject to refutation. There is what is provisionally true (or false) but not yet firmly established as such. There is what is plausibly true in the limited sense that respectable arguments can be made on various sides of the question. And there is a matter for pure (though hopefully informed) speculation – an invitation to new theories, methodologies, and evidence.  Students need to understand and apply these gradations of knowledge in their fields of study.

Holmes’s Famous Dissent

But professors should emphasize our ignorance about important questions for another reason. The students who join elite campuses (where I have mainly taught) come with surprisingly firm, entrenched political identities and views. Their premature certainties exist even though – or more probably, because — few of them have much experience of life and its myriad complexities. Not surprisingly, they know little of the diverse values, perspectives, and methodologies with which serious thinkers in their fields of study have grappled with these conundra, and of the weak analytical and evidentiary foundations of many of our firmest commitments. Justice Holmes put this point well in a famous dissent almost a century ago, one that presciently captures a major source of conflict on today’s campuses:

      “Persecution for the expression of opinions seems to me perfectly logical. If you have no doubt of your premises or your power, and want a certain result with all your heart, you naturally…sweep away all opposition.… But when men have realized that time has upset many fighting faiths, they may come to believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas….”

Students’ striking political and intellectual smugness is both predictable and understandable. In this, they ape the certitudes of so many of their elders. Our liberal culture demands little critical thinking from young people and tends to applaud their idealistic bien pensant views. After all, the main reason they came to campus in the first place was to supplant their ignorance and inexperience. (There are also less lofty reasons, of course). But their greenness only heightens professors’ duty to pierce students’ ideological armor and challenge their preconceptions immediately and constantly.

Most professors would surely acknowledge this duty; the notion of robust debate that challenges preconceptions, including our own, is a hoary academic mantra. The vast majority of faculty on elite campuses espouse political liberalism that they think their years of scholarly work have only confirmed and deepened. For them, and for the small cadre of conservative professors, intellectual humility and self-abnegation are neither congenial nor easy.

All the more reason, then, for faculty to commit ourselves to these academic values and to recruit more young professors with intellectually diverse views – as reflected in their normative commitments, disciplinary methodologies, and empirical interests, not their partisan preferences. This commitment will enrich our students’ lives on campus and beyond.

Free Speech–Where Are the Adults in the Room?

Almost two years have passed since the Halloween imbroglio at Yale in 2015, which launched the current era of student mobilizations against speech that some students don’t want to hear.  Whatever their ideological stance, these protests aim to intimidate controversial speakers and those who would invite them to campus, to prevent others from hearing them, and to banish certain ideas and terms from campus discourse.

College leaders invariably denounce violence and affirm their unflagging commitment to robust speech and debate on campus. They invoke the standard tropes of liberal education: to cultivate students’ curiosity, knowledge, imagination, and critical thinking by exposing them to diverse ideas about the world. They routinely genuflect before the First Amendment’s protection of academic freedom and provocative and unsettling speech. (Private institutions, while not legally bound by the First Amendment, subscribe to the same doxology).

Backing up this free-speech rhetoric is anything but free. Security is very costly. It cost Berkeley an estimated $600,000 merely to protect one conservative speaker’s visit recently, a drop in the UC system’s $7.3 billion budgetary bucket. But at smaller schools, protecting such speakers competes with scarce resources for teaching, financial aid, housing, and other essential functions.

Colleges run other serious risks when campus turbulence threatens to blight the school’s reputation with its trustees, major donors, and potential applicants. Presidents who lose control may lose their jobs. Knowing this, they mollify the student groups which threaten to wreak this havoc. Having long ago abandoned the traditional in loco parentis role, their power to shape student conduct is now very limited. Leftist orthodoxy in the classroom is especially prevalent on more elite campuses and in academic departments (the social sciences and humanities, for example) where almost the entire faculty is liberal. (This is evidenced not only by what they teach and assign but also by their campaign contributions). And even if some professors present a range of perspectives, students probably prefer an unvarnished version of conservatism from true believer outsiders to liberal professors struggling to appear “balanced.”

The fuel for the speech-related disorder is inexhaustible. For many students, especially conservatives, these speakers also help to correct for a perceived leftist orthodoxy in the classroom. Scoring outside anti-establishment speakers with wide name recognition, rhetorical flair, and a taste for provocation revs up student interest and magnifies the organizers’ status and recognition on campus, their ideological and militant chops, and their feelings of accomplishment. Some schools even provide student organizations with a budget to support these and other “enrichment” activities. Some politically active outside groups such as the Federalist Society and its counterparts on the left may also subsidize them.

The protesting students can almost always count on some faculty sympathizers with similar motivations as well as a desire to embarrass the equivocating, temporizing administration. At the highest-ranked schools, professors often have great bargaining power due to global reputations and frequent job offers. At lower-ranked schools, many faculty have low status, poor pay, and little job security. Their estrangement encourages solidarity with protesting and disaffected students. And a new study from Brookings suggests that intolerance of unpopular views – and even support for violence to suppress them – is remarkably common among today’s college students.

These incentives and conditions help explain why the adults nominally in charge often seem so feckless. More eager to pacify their protesting student and faculty critics than to protect the abstract intellectual values which they claim to revere, they equivocate. As for students, most surely oppose the extremists — but like most silent majorities, they exert less influence than their numbers might warrant.

What is to be done?

  1. A counterforce consisting of trustees and major donors – the off-campus people who have invested the most in the institution and care most about its reputation and welfare should make clear to the administration that their future financial support will depend on a clear affirmation that (a) academic values and intellectual diversity are paramount; (b)academic freedom does not protect those who try to stifle other viewpoints; (c) students, faculty, and administrators who do not respect these norms do not belong there; and (d) serious sanctions will attend duly-adjudicated violations of those norms — including expulsion or long-term suspension of students who actively encouraged those violations. Similar sanctions should apply to even tenured faculty who promote them. (This last is easier said than done, of course). The public statement on freedom of expression issued by the University of Chicago in 2012 can serve as a good starting point.
  2. More student riots and speech-impeding mobs are likely to end up in court. Several of the most publicized confrontations, such as the intimidation of Professor Bret Weinstein by Evergreen students who wanted him and all other Caucasians off-campus for a whites-free day, ended in settlements, in Weinstein’s case for $500,000. Jay Weiser, associate professor of law at Baruch College, points out that the post-Civil-War anti-Klu Klux Klan laws still have power, one of them covering private conspiracies and masked conspirators (the Klan originally and presumably masked Antifa attackers now). Weiser writes:

“The statute applies most clearly to racially motivated physical attacks or efforts to exclude persons. Evergreen State is a classic case: After disrupting Mr. Weinstein’s class, students detained the college president and apparently posted photos of themselves brandishing baseball bats on Facebook. Some faculty members demanded disciplinary action against Mr. Weinstein and later assembled with masked Antifa members who attacked counter-protesters.” As Weiser notes, Colleges are subject to anti-discrimination statutes such as Section 1981, an anti-KKK act that would cover student and speaker contract rights. If they accept federal funding they are also subject to Title VI of the Civil Rights Act of 1964, and if the crowd attacked white “supremacy” or “privilege,” and if private universities act with deliberate indifference to racially motivated attacks, they may be liable to students or speakers.”

While affirming the right to protest peacefully against speakers with whom some disagree, the administration should inform the community about various federal and state law remedies (including reimbursement of attorney fees in some cases) to would-be listeners whose civil rights are violated by speech-impeding or violent protesters, especially those wearing masks or other disguises. Indeed, those in such disguises should not be admitted to such events in the first place.

  1. The agencies that accredit universities require them to demonstrate, among other conditions, a commitment to academic freedom, intellectual freedom, and freedom of expression.  Defenders of these values on campus can threaten to invoke dis-accreditation remedies for recurrent violations on their campuses.
  2. Diversity-talk on college today’s campuses is obsessed with gender, race, sexual orientation, and other constructions of identity. In excess, these obsessions degrade intellectual discourse, interpersonal civility, and campus life generally. Colleges now emphasize and promote these often divisive identities rather than fostering the civility, candor, and thicker skins necessary to sustain a robust and competitive diverse society. Colleges’ highest educational priority should be intellectual, methodological, and socioeconomic diversity, not a campus peace based on a patronizing co-optation of sullen groups.

Recently, a wealthy donor offered Yale a large matching grant to promote intellectual and viewpoint diversity, especially in faculty hiring. The offer was designed to parallel Yale’s $50 million fund for identity diversity, established immediately after the Halloween incident. Yale acknowledged the need, especially in law and certain humanities departments, but declined the gift. Evidently, it has other priorities. Columbia’s recently-announced $100 million faculty diversity initiative will likely reinforce its current obsession with ethnic, race, and gender identities rather than augment them with genuinely discordant, conservative voices that might challenge their students’ preconceptions.

Opposition to conservative voices is in the DNA of the radical left, inflamed by apocalyptic “Antifa” activists. The radical right’s uncompromising contempt for the left is a mirror image. Colleges have a tough job in keeping these clashes on the side of the line that protects speech and promotes genuine viewpoint diversity. These measures would go a long toward holding that precious line.

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.

What the President of Yale Should Have Said

On November 10, following the campus thousand-member “March for Resilience” over racial insensitivity, Yale president, Peter Salovey and Yale College Dean Jonathan Holloway emailed those of us in the Yale community. affirming “the importance we put on our community’s diversity, and the need to increase it, support it, and respect it.”

The email embraced “the right of every member of this community to engage in protest,” noted that “threats, coercion, and overtly disrespectful acts” are “unacceptable,” and praised the “affirming and effective forms of protest” in Monday’s march. This can best be read as a well-intentioned effort to assure students, faculty, and alumni that the University administration is on top of the problem.

Related: Snowflake Totalitarians at Yale  

But what, exactly, is the problem?  According to the email, the problem is how to “increase, support, and respect” Yale’s “diversity.”  Just before Halloween, Yale’s “intercultural affairs council” emailed students urging them to select their Halloween costumes with sensitivity to the feelings of minorities.  Those with a sense of humor will enjoy this earnest email. In response, Erica Christakis, who is associate “master” of Silliman, one of Yale’s residential colleges, emailed its students.  Combining common sense, respect for students’ maturity and moderation, she urged students to decide for themselves on appropriate costumes and if they found one offensive, either speak about it directly to the offender or ignore it.

This advice, ostensibly, is what unleashed the students’ fury as they vilified, traduced, and sought to intimidate the Christakis’s, Erica and her husband Nicholas, “master’ of Silliman, demanding their resignations. According to a Yale Daily News observer, “This man was surrounded outside his own home by dozens of students, who called him “f—king disgusting.” They jeered, in clearly implied threat, ‘We know where you live.’” Here are some other points that I wish the Salovey-Holloway email had made in the strongest possible terms.

1.  The fact that students complain of rampant racism on campus does not mean that it is true.  Yale — and virtually every other old institution – countenanced racism and even practiced it, but that period is long gone. Indeed, it is hard to think of an institution that tries harder than Yale does to make students of all backgrounds feel at home, an effort underwritten by a recent $50 million commitment to increase diversity there and by the support of four ethno-specific cultural houses. Much the same is true on other elite campuses. Yes, Yale calls its residential college leaders “masters” and, contrary to student protests, this title is entirely benign, not a vestige of slavery, as some seem to think.  (Whether Calhoun College should change its name in light of its eponym’s defense of slavery is a more serious question).  Historical context – how and why earlier generations saw the world as they did — is part of the moral reasoning process that a university teaches.  Condemning what now seems like obvious racism, while entirely appropriate, is the easiest part of such moral reasoning, requiring little insight.

Related: Voices of the Yale-Mizzou Eruptions

2.  The purpose of a great university like ours is not to make students feel comfortable in their views but to unsettle those views with fine teaching and scholarship.  Only then can students learn to confront uncomfortable data and ideas and make up their own minds.  Mature convictions must be earned through a lifetime of grappling with what is discomfiting and engaging in the kind of reading, listening, and arguing that is a privilege and duty of serious citizenship. A great university must defend itself for what it is and should be – a sanctuary for study and engagement – not a comfortable and comforting cocoon.  Students who come with a hypersensitive aversion to conflict and to intellectual diversity (as distinct from the easy, faux diversity of skin color and surname) are in the wrong place

3.  Students state (or shout) many grievances, often in the form of slogans.  Some are plausibly justified, others are gross exaggerations or simply false.  Some seek genuine dialogue; others seek power grabs and shakedowns meant to foreclose conversation.  The university community should demand to know the factual bases for those grievances, examine them on their merits, remedy them if warranted, and reject them if not.  Reflexive mea culpae may buy temporary peace and goodwill but only invite more extreme demands. As Yeats warned, passionate intensity can undermine both truth and civility.

4.  Mob psychology, whether created by students or others, is a kind of crypto-violent form of politics using shouts, threats, and lies as weapons.  Honeyed words and apologies cannot mollify it.  It thrives when it does not get its way, and failure simply confirms its grievances.  The hostility to reason negates the university’s very purpose. Salovey, an eminent psychologist, surely knows all this but has not said it. Among this psychology’s other tics, it fastens on stupid, hurtful comments by fools and bigots (perhaps not even members of the university community, ascribes these views to many others who in fact condemn them, impugns the university for tolerating racism, and excoriates those on the sidelines as equivocating enemies of the cause.  But every community has fools and bigots and must deal with them in its own way. Yale, a community of trained skeptics, eschews authoritarian solutions to questions of truth, relying instead on open, disciplined discourse to discredit error – even as we know that some of this discourse will itself be false.

5.  America’s diversity is one of its greatest gifts to the world, and institutions like Yale are right to seek and protect it. But how we define and implement diversity is crucial to its real value in campuses, workplaces, politics, and elsewhere.  Getting diversity management right is difficult; good intentions can easily backfire. Diversity in America: Keeping Government at a Safe Distance.

Racism, sexism and other odious isms obviously exist, and we should firmly reject them. But combating these isms is especially hard for a university.  They are ill-defined and based on subjective intent, so reasonable people disagree about whether they exist in almost any particular case.  For the same reason, an accused cannot disprove them. Because many attributes are distributed differently among different groups, and because generalizations are useful, indeed inescapable, it is often unclear – even to the Supreme Court — when a judgment is just a useful generalization or instead reflects invidious bigotry and hostility. This ensures lots of false positives and false negatives.  One who feels victimized by an ism resents being told that he is over-reacting and mistaken.  His hurt seems like proof enough of intentional harm.  On the other side, being falsely accused of an ism today is equally or more damaging socially than the hurt or indignity felt by the complainant.

Obsessive Ethnic Emphasis

6.  University officials like us bear some responsibility for the aggressive, obsessive ethnic emphasis practiced on our campus.  Through some mixture of cowardice, complaisance, and genuine conviction, we cater to the sensibilities of the most outspoken, politicized students by donning a kind of “kick me” sign. In this identity politics, students have strong incentives to dramatize their wounds as proof of the authenticity of a larger, more heroic social agenda — here, the extirpation of isms.

7.  The only way out of this gyre of recrimination and misunderstanding is to cultivate two qualities that are sorely lacking in diversity discourse on campus: candor and thicker skins.  On campus, candor should be the easiest virtue, but in fact there is remarkably little of it.  Few are willing to concede the deep tensions among diversity, liberty, and equality – and thus the costs to precious values of one position or another.  By thicker skins, I mean that we should cultivate a capacity for greater resilience, not greater delicacy.  As one commentator put it, the U.S. today has become “a world of endless slights.”  (Even that comment will elicit anger for suggesting that putative isms are merely slights).  This is corrosive in a society as diverse, interactive, plainspoken, casual, and freewheeling as ours.  It chills personal interactions by denying them the lubricating pleasure of spontaneity.

It discourages candid discussion or artistic expression on vital public issues. It enlists formal and informal sanctions in order to reduce what should be robust give-and-take. It invites us to open our wounds, magnify our fears, and parade our sensitivities, to imagine injuries and motivations that do not exist and to view others, without basis, as enemies.  It rewards cant, hyperbole, and reductive rhetoric while penalizing moderation and reason.  It encourages us to seek security in groups of people who look, think, or worship like us rather than to venture out in the more diverse public square where our common citizenship is forged.  It makes a mockery of rules that are brandished to penalize what is often just ignorance, boorishness, interpretive confusion, ill-considered speech, clumsy provocation, misjudgment, rough or poor humor and other unfortunate infelicities.

8. We do better to respond to such conduct with constructive engagement, forceful rebuke, pointed rebuttal, and mental shrugging of shoulders and biting of tongues.  It is unfair that the people who need the thickest skins are often those who already feel under siege. Two factors, however, can help palliate this unfairness, if not assuage their hurt and indignation.  The informal social norms condemning hateful attitudes and conduct are stronger today than ever before.  And the alternatives to developing thicker skins are all unappealing, unconstitutional, or unworkable.

9. Our administration pledges to be wiser in the future, though no less committed to lux et veritas. Let our students pledge to do the same.”