All posts by Roger Clegg

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

The Fisher Decision: Not Good News, But…

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

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

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

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

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

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

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

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

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

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

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.

Harvard Sued Over Asian Admissions

There have been two major developments in the past week in the fight against racial and ethnic preferences in university admissions.

First, last week, in Fisher v. University of Texas, the U.S. Court of Appeals for the Fifth Circuit denied further review of a panel decision that had rejected the challenge to that school’s use of racial and ethnic admission preferences. So we are probably headed back to the Supreme Court in this lawsuit — which is not a bad thing, not a bad thing at all. A good decision in the Fifth Circuit would have been nice, but what’s really needed here is, of course, a Supreme Court decision that puts an end to this nonsense.

Which brings us to the second development. Harvard University and the University of North Carolina-Chapel Hill have been sued this week for their racial discrimination in student-admission policies, as explained in this press release by Edward Blum’s Project on Fair Representation.  More lawsuits against other schools are promised. The press release also notes, “The plaintiff in both lawsuits — Students for Fair Admissions (SFFA) — is a newly-formed, nonprofit, membership organization whose members include highly qualified students recently denied admission to both schools, highly qualified students who plan to apply to both schools, and their parents.”

Continue reading Harvard Sued Over Asian Admissions

Let the Sunshine In

I’d like to add this to Peter Augustine Lawler’s legislative agenda:  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 in detail on whether and how race, color, and national origin factor into the student admissions process.

Of course, the Supreme Court has, alas, upheld the use of race to achieve the “educational benefits of a more diverse student body” as constitutionally permissible, at least for now, subject to numerous restrictions.  But even if some insist that universities should continue to practice racial discrimination in admissions, there’s no justification for it being done secretly and without taking pains to satisfy the Supreme Court’s requirements.  Senator Lamar Alexander (R-TN), who will likely chair the relevant Senate committee and is an outspoken critic of racial preferences, ought to be supportive.  The same is true of 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. Likewise, Rep. Steve King (R–IA) introduced similar legislation that would require universities that receive federal financial assistance to disclose data to the U.S. Department of Education on how race, color, and national origin factor into admissions decisions.  As Supreme Court Justice Louis D. Brandeis once said, sunshine is “the best of disinfectants.”

You can find a draft of the bill (the “Racial and Ethnic Preferences Disclosure Act of 2014″) and more discussion here.

Toward Intellectual Diversity in Law School

The Federalist Society last Saturday sponsored a symposium at Yale Law School that discussed “Achieving Intellectual Diversity” on law school faculties.  On one of the panels, I said that as a student at Yale law 1977-1981 (with a year off to work for the Republican National Committee)  it was a good time to be in law school, in between the insanity of the sixties and early seventies, and before political correctness became so firmly entrenched.

But, I said, even then there were complaints that, with both Robert Bork and Ralph Winter on the faculty, there was “too much diversity” at Yale.

Here are the rest of my comments:

Continue reading Toward Intellectual Diversity in Law School

Joke Imitates Life

By way of background for you outside-the-beltway rubes, the Washington Post’s weekly “Style Invitational” is a contest in which readers compete to submit the funniest entry.  This week the winners were announced for the funniest (made up) course description from a college catalogue.  First-place was awarded to:  “PSYC 207: Welcome to Your College Nightmare. Participants will not be notified of their enrollment in this class until the morning of the final exam. Note: Class location is subject to weekly change without notice; each student will attend at least one class session in the nude.”

Very good, but the reason for this post is to note the entry that won second place:  “SOC 101: Overcoming Prejudice. In this course, you will learn to identify and overcome the various prejudices — racism, sexism, classism, etc. — that all people like you have.”

Of course, the really funny (and sad) thing is that, while it might be described slightly (but only slightly) differently, my sense is that this is not at all an uncommon, let alone a fictional, offering.

Kudos to the Post, by the way, for its willingness to make a politically incorrect award, even if it was rather clueless in its apparent failure to see that too many academics and students won’t get the joke.

Challenging Racial Preferences at UConn

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

CIR’s president, Terry Pell, said in a press release:  “This is about more than one applicant’s experience at UConn. Many top universities offer diversity scholarships which are awarded on the basis of race. While the Supreme Court has said that race may be a plus factor in admissions decisions, it has never said race can be the basis for scholarship awards once an applicant has been admitted. A scholarship awarded on the basis of race inevitably stigmatizes talented minority applicants, who come to be recognized for their race rather than their considerable academic achievements.”

To put this in lawyer’s terms:  I’m not at all convinced that there is a “compelling” interest in considering race for admissions into an English graduate program, even under the Court’s misguided precedents, let alone that the racially discriminatory award of scholarships is “narrowly tailored” to whatever that interest might be.  It’s great that we have another federal case in this area, and kudos to Ms. Swanigan and CIR!

One More Thing on Schuette v. BAMN

Justice Scalia began his concurring opinion in Schuette v. BAMN last week by writing that, in this case, “we confront a frighteningly bizarre question: Does the Equal Protection Clause of the Fourteenth Amendment forbid what its text plainly requires?” And he’s right that the Fourteenth Amendment and the Michigan ballot initiative at issue in Schuette each bars racial and ethnic discrimination in university admissions.

But the juxtaposition is even more “frighteningly bizarre” when we place side-by-side the text of the Michigan Civil Rights Initiative (which covers public university admissions, among other things) and Title VI of the federal 1964 Civil Rights Act (which covers public university admissions, among other things).

Here’s the language of the MCRI: Public universities “shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin.” And here’s the language of Title VI of the 1964 CRA: “No person in the United States shall, on the ground of race, color, or national origin, be … be subjected to discrimination” by a public university.

Putting sex aside, which is admittedly odd in the university context, to say that the two prohibitions are not identical requires one to argue that you can give a “preference” to some racial/ethnic groups without “discriminating” against the other racial/ethnic groups. Well, that’s silly, although of course there is no doubt that Justices Sotomayor and Ginsburg would so argue if this were all there was between them and preserving racial discrimination, I mean preference.

The reason that courts apply the Equal Protection Clause rather than Title VI these days, by the way, is that a majority of the justices held in Bakke that the two are coextensive and that the former contains some wiggle room that the plain text of the latter does not. Too bad.

Why Minorities-Only Help Programs Seem Wrong

A Chronicle of Higher Education article this week was headlined “Minority Male Students Face Challenge to Achieve at Community Colleges,” and it discussed various successes and failures in that eponymous arena. Particularly intriguing was this passage:   

And instead of offering small, “boutique” programs for minority students that attract just a few dozen students, [one expert] said, colleges should extend programs like mandatory study-skills classes, learning communities, and tutoring to all students. Minority students will benefit disproportionately from such strategies, she said, but they won’t feel embarrassed by participating or feel that they’re being singled out as “at risk.”

I thought of this in light of President Obama’s announcement yesterday of his new  “My Brother’s Keeper” program, which is racially exclusive and aimed at the same “at risk” young men of color. The White House, by the way, uses “of color” to include Hispanics (which is not a nonracial group) and to exclude Asians (which is), but that’s a story for another day.

Anyway, and putting aside the constitutional and Civil Rights Act problems of the president’s new program, what kind of a message is being sent when one or two racial/ethnic groups are singled out for special treatment because they are so likely to screw up?  Or should it be assumed instead that they are being singled out because The System is so stacked against them?

I’m not sure which message is worse.  How difficult would it have been for the president to have designed the new program so that it was open to at-risk youth of all colors — the way even the Chronicle of Higher Education, for Pete’s sake, apparently acknowledges makes more sense?

In Defense of the President’s Morehouse Speech

The Washington Post notes today that though President Obama’s commencement address at Morehouse College received a “rousing response” from the audience, some of his African-American supporters are less than pleased. Amazingly, they argue that the President has devoted too much time to discussions of black accountability and responsibility. They also suggest that Jesse Jackson has more credibility than the late Daniel Patrick Moynihan on appropriate messages for the black community, that the president is posturing for white folks when he delivers his message, and that he needs to spend more time challenging “the system” and taking responsibility for black people and less time urging them to take responsibility for themselves.

I think that President Obama’s message – and particularly his discussion of fatherlessness – is just what the doctor ordered. And the criticism that his message is all right but needs to be delivered less frequently brings to mind this story: The search committee for a church was looking for a new minister to replace the retiring one. It visited another church where a young pastor gave such a moving sermon on the wages of sin that he was hired on the spot. The next Sunday, at his new church, the pastor gave exactly the same sermon. The committee was somewhat taken aback, but decided that, well, it was a new church and a different congregation, after all, so no harm in him giving the sermon to this audience. But then, the next Sunday, he gave the same sermon again. So, at this point, the committee met with the pastor and suggested that he talk about something else. And he replied, “But they’re still sinning.”

A Simple Prescription for Race Relations

As the Supreme Court prepares its opinion in Fisher v. University of Texas (in which that school’s use of racial and ethnic admissions preferences is challenged), and as our bien pensants continue as always to agonize about the state of race relations in the United States (which are actually quite good, by the way), a few thoughts.

Racial preferences are becoming more and more unwieldy and divisive as the United States becomes more and more multiethnic and multiracial.  But they are thought necessary because without them there would be “underrepresentation” of some groups.  The same logic, by the way, is behind the use of “disparate impact” lawsuits:  They are attractive because this is another way to address the “underrepresentation” that results from merit-based selection. 

But the principal reason for some groups’ failure in the aggregate to achieve will not be solved by using racial preferences and is ignored by them – the principal reason being illegitimacy.  That’s the problem that should be addressed, rather than pretending there is something wrong or unfair with merit selection.

Continue reading A Simple Prescription for Race Relations

Affirmative Action: Sky Not Falling, NY Times Reveals

The New York Times today has a front-page story headlined – brace yourself – “In California, Early Push for College Diversity.”  But wait! The take-away from this story is that the sky did not fall when racial preferences in university admissions were abolished in California. Not only did skin-color diversity “rebound” but – more importantly – the state was forced to make reforms that helped disadvantaged students of ALL racial and ethnic groups. The result is that attention is being paid to REAL diversity in admissions, not the superficial kind. Normally I cringe whenever I imagine a Supreme Court justice reading a Times article (never mind an editorial) on “diversity,” since the Grey Lady seems never to have met a racial quota she didn’t like. But not today: In fact, I rather hope that Justice Kennedy takes a look at this piece as he works on his opinion in Fisher v. University of Texas.

(And speaking of the Grey Lady, what’s happening to her? The Times recently ran a front-page, above-the-fold, lengthy piece on the infamous Pigford litigation — concluding that the “compensation effort” against the U.S. Department of Agriculture for anti-black bias “became a runaway train, driven by racial politics, pressure from influential members of Congress and law firms that stand to gain $130 million in fees.” “The total cost could top $4.4 billion,” the article concluded.) 

Update (5/9): The Wall Street Journal’s Jason Riley, as noted here by John Rosenberg, points out that the California story is even happier than the Times story would indicate:  Not only was there the “rebound” effect the Times concedes with regard to ENROLLMENT, but with regard to GRADUATION (the more important number) the number of Latinos and blacks has dramatically increased.

A New Way to Talk about “Diversity”

an instructive exercise:  The next time you read an article about
“diversity” (see, e.g., the
with the University of Wisconsin’s diversity honcho in Inside
Higher Ed
today), mentally substitute the letters “BS” for “diversity”
every time the latter appears.  It’s amazing how much more accurate and
understandable the article becomes!  (It’s even better if you spell out
the word for which “BS” is the abbreviation.)

I’ll get you started:

‘Strategic BS Leadership’

April 26, 2013 – 3:00am

By Scott Jaschik

and university leaders talk all the time about their commitment to BS. And, on
many campuses, students and faculty question the depth of that commitment. A
new book, Strategic BS
(Stylus) considers the steps colleges can take to
transform their campuses. The author is Damon A. Williams, vice provost and
chief BS officer at the University of Wisconsin at Madison. Williams responded
via e-mail to questions about the book.

People in higher education use the term “BS” all the time, yet you
devote a chapter to defining it. Why is it important to define it, and how do
you define it?

While “BS” has become one of the great buzzwords in the academy, it
is rarely defined accurately, and rarely in ways that address its complexity.

Can ‘Interracial Conversations’ Justify Preferences?


I accepted some warm invitations from the Federalist Society chapters at law schools in the
chilly Midwest and spoke last week at Indiana University, Notre Dame, and the
University of Michigan about
Fisher v.
University of Texas
, the case before the Supreme Court challenging the use
of racial preferences in university admissions. 
Here’s an edited version of what I said.

Abigail Fisher is a young woman who grew up in a Houston
suburb and always wanted to go to the University of Texas.  So, when she was in high school, she applied
there, but she did not get in.  The
University of Texas admits that it considers skin color in deciding who gets
admitted; and if your ethnicity is thought to be “underrepresented” at UT (that
is, if you are black or Latino), it helps you get in, but if you are thought to
be “overrepresented” (that is, if you are white or Asian), then your skin color
hurts you.  So Abigail Fisher, who is
white, sued.

Continue reading Can ‘Interracial Conversations’ Justify Preferences?

An Unusually Stupid Court Ruling

Yesterday the full U.S. Court of Appeals for the Sixth Circuit held that Michigan’s Proposal 2 violates the U.S. Constitution’s Equal Protection Clause. 

Proposal 2 was a ballot initiative that amended the state constitution to provide that state and local government agencies (including public universities) in Michigan “shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting.”  The Equal Protection Clause provides that “No State shall … deny to any person within its jurisdiction the equal protection of the laws.”

The mind boggles.  Proposal 2 not only does not violate the Equal Protection Clause, and is not only quite consistent with it, but is indeed nothing more than an elaboration on it.

But here is the court of appeals’ reasoning:

A student seeking to have her family’s alumni connections considered in her application to one of Michigan’s esteemed public universities could do one of four things to have the school adopt a legacy-conscious admissions policy: she could lobby the admissions committee, she could petition the leadership of the university, she could seek to influence the school’s governing board, or, as a measure of last resort, she could initiate a statewide campaign to alter the state’s constitution. The same cannot be said for a black student seeking the adoption of a constitutionally permissible race-conscious admissions policy. That student could do only one thing to effect change: she could attempt to amend the Michigan Constitution–a lengthy, expensive, and arduous process–to repeal the consequences of Proposal 2. The existence of such a comparative structural burden undermines the Equal Protection Clause’s guarantee that all citizens ought to have equal access to the tools of political change.

To which the answer is:  The same might be said of a member of the Ku Klux Klan who wanted the University of Michigan to adopt a whites-only policy of racial segregation.  Would this court have ruled that the Klansman’s equal-protection rights are violated by Proposal 2?

That seems unlikely.  The decision was driven by its politically correct result, which is why the decision was 8-7 along partisan lines:  Every vote in the majority was by a Democrat-appointed judge (except, technically, for one who was originally nominated by President Clinton late in his term and then, in a misguided gesture of conciliation, renominated by President Bush at the beginning of his), and every dissenter was appointed by a Republican president.  Elections do indeed have consequences.

One’s first reaction is anger and frustration. 

Consider:  The saga may be said to begin in 1978, when a majority of the Supreme Court in the Bakke case decided that Title VI of the 1964 Civil Rights Act does not prohibit racial discrimination in university admissions, even though it reads, “No person in the United States shall, on the ground of race, color, or national origin … be subjected to discrimination [by federally funded universities]….”  The fact that the national legislature had, by the clear terms of a statute it had passed, banned racial preferences in university admissions was just ignored.

So those opposing such discrimination would have to meet the standard the Court uses in constitutional cases, which allows the discrimination if it is “narrowly tailored” to a “compelling” interest.  As the discrimination became more and more widespread and entrenched, hard-fought lawsuits were in fact brought in Texas and then Michigan and taken through the courts of appeals, and then finally in 2003 the Supreme Court agreed to revisit the issue.  Alas, the Court struck down some of the discrimination but also held by a 5-4 margin that the “educational benefits” from “diversity” provided such a compelling interest, at least for another 25 years (!). 

So it was back to the political process in Michigan, where thousands of petition signatures were gathered and then Proposal 2 was passed with 58 percent of the vote after a bruising campaign.  And now we are told that this was a waste of time because using the political process this way is unconstitutional.  Again, it’s frustrating.

All this, in the courts and at the ballot, and all because of this seemingly unexceptionable desire:  That universities not discriminate in admission on the basis of skin color or what country someone’s ancestors came from.

But, on reflection, we can make lemonade from this lemon.

The state attorney general has already announced that he plans to take the case to the Supreme Court – thank goodness – which will almost certainly grant review, because the decision below is not only important and outrageous, but also creates a split in the circuits since the Ninth Circuit rejected a similar lawsuit.  When the Court does so, there ought to be at least five votes to overturn the Sixth Circuit’s decision – and clarify or overturn a confusing and mischievous couple of earlier Supreme Court decisions that the Sixth Circuit used to justify its result.  So the case will provide the Court with an opportunity to replace bad precedent containing dubious language with good precedent and good language for future cases.

And wait, there’s more:  It has already been my hope that the recent election results, and in particular the demographic spin being put on them, should push the conservative justices to ban racial preferences, period, in the recently argued Fisher v. University of Texas.  It’s clear that the composition of the Court is not going to get any better and may get worse, and it’s clear that the political branches are not going to address this problem – and, indeed, the country is getting to the point where political power is wielded in a way to create a racial spoils system in university admissions, contracting, you name it.   Therefore, our justices will reason, we have to take this off the table now.

The fact that the Court knows that the Sixth Circuit case is now in the wings may make this course of action even more attractive in Fisher.  Yesterday’s decision underscores the need for a clear statement from the Court in this area, and it is, after all, even easier to explain why banning racial preferences is not unconstitutional when there is a Supreme Court decision that holds that using racial preferences is unconstitutional.

You have to hand it to our opponents (in this case the lawsuit was brought by an organization whose name promises to defend affirmative action By Any Means Necessary, or “BAMN”):  They never give up.  So we can’t either.  They have the advantage of being unprincipled, but we have the advantage of being right – of wanting to end racial and ethnic discrimination and preference, which is the only tenable legal regime for our increasingly multiethnic and multiracial nation.


Roger Clegg is president and general counsel of the Center for Equal Opportunity, which joined amicus briefs filed by Pacific Legal Foundation in the Sixth Circuit case and in Fisher.

What Columbia Is Doing Is Illegal

a few lawyerly thoughts to add to KC Johnson’s excellent post yesterday on Columbia University setting aside
$30 million to hire female and minority faculty.

It was clear enough all along that Columbia’s
hiring would be racially discriminatory, if not racially exclusive; and, as
Professor Johnson points out, even the pretext that sometimes a (politically
correct) white male might be eligible for hiring has apparently now been
abandoned. And of course this is an unfair, divisive, and corrupt policy.  But it should also be pointed out that it is
ILLEGAL to weigh race,  ethnicity, and
sex in hiring.

shouldn’t have to be a math whiz to understand that Title VI does not equal
Title VII.  President Bollinger of course
knows that, in its 2003 Grutter v.
(“That’s me!”) decision, the Supreme Court said that
universities could discriminate – to a limited degree – on the basis of race
and ethnicity in student admissions under, among other federal laws, Title
VI.  And so it is commonly assumed that
it must also be okay for universities to weigh race and ethnicity (and sex) in
the same “diversity”-driven way when they hire faculty.

Wrong. The Grutter
decision said nothing about Title VII of the 1964 Civil Rights Act, which
covers employment and which has different language and jurisprudence than Title
VI.  The federal courts have never
recognized a “diversity” exception to Title VII, and are unlikely to. In fact,
when that issue was about to be decided by the Supreme Court in the late 1990s,
the civil-rights establishment hastily raised enough money to settle the case. More
on the problems with faculty hiring discrimination here.

don’t even think about making the “role model” argument in lieu of
the “diversity” argument.  When
you read about a university’s efforts to diversify its faculty, a school
official will frequently assert that these efforts are important because
minority or female students  need “role
models” (relatedly, it is often suggested that the faculty  should reflect the student body or even the
community’s general 
population).  This is a dubious argument as a policy
matter, but what is amazing is that the argument continues to be made even
though the
Supreme Court rejected it, as
legal matter, over
twenty-five years

N.B.  The Supreme Court has, alas, also
(mis)interpreted Title VII to be a less-than-categorical ban on discrimination,
but the politically correct exceptions it has carved out (for “manifest
imbalances” in 
segregated job categories”) do not apply, and are not cited by Columbia,

No Research, Please, Unless It Helps Our Cause

A news story here has garnered some attention; it’s about how “Black students at Duke University are angry over a university research paper that found African-American undergraduates at the school are disproportionally more likely to switch from tough majors to easier ones.” There’s not much in it that denies the truth of the paper’s conclusion, but what’s interesting is that the story suggests that many think that researchers should keep such unpleasant facts to themselves:

“The implications and intentions of this research at the hands of our very own prestigious faculty, seemingly without a genuine concern for proactively furthering the well-being of the black community is hurtful and alienating,” wrote the officers of Duke’s Black Student Alliance in an email sent to the state NAACP.

Continue reading No Research, Please, Unless It Helps Our Cause

Notes on the Diversity Uprising in Wisconsin

I thank KC Johnson for his thoughtful post below.  Here is a link to the studies we released on the severe and unjustified admission preferences at the University of Wisconsin, Madison,and to the press release that summarized them and announced the press conference:

Since I was there, I thought I would also add a few observations. The mob’s protest took place in stages:  The protestors began by chanting outside the hotel; then they broke into the lobby, where they chanted some more; then they insisted on opening the door to the room where the press conference was being held, which of course made their chanting more audible; and finally they physically broke into the room.

Continue reading Notes on the Diversity Uprising in Wisconsin

From the Sixth Circuit: Good News, Bad News

There’s good news out of the U.S. Court of Appeals for the Sixth Circuit: On Friday, the full court agreed to rehear a now infamous decision in which a three-judge panel had earlier struck down the state of Michigan’s Proposal 2.  Proposal 2, in turn, is a ban on government discrimination and preference on the basis of race, ethnicity, and sex, passed by Michigan voters in 2006 in large measure because the U.S. Supreme Court in 2003 had upheld the state universities’ use of racial preferences in admissions.  The Sixth Circuit panel reasoned that this ban violates the Equal Protection Clause of the U.S. Constitution.

You can’t make this stuff up, folks.  That’s right: The people of Michigan, according to this court, violated the Equal Protection Clause when they demanded that their state treat all citizens equally–without regard to race, ethnicity, or sex–in government contracting, employment, and education, including university admissions.  Unbelievable.

Continue reading From the Sixth Circuit: Good News, Bad News

Preferences for Homosexuals?

LGBT.jpgElmhurst College, in what is apparently a first, will ask this question on its admissions application:  “Would you consider yourself a member of the LGBT (lesbian, gay, bisexual, transgendered) community?”  Answering the question will be optional; applicants may chose “yes” or “no” or “prefer not to answer.” 

Those answering yes to the LGBT question will be eligible for a diversity-driven “enrichment scholarship” since they will be considered members of an “underrepresented group.”  On the other hand, according to Insider Higher Ed, the school “admits around 65 percent of applicants, and does not anticipate using sexual orientation as a factor in admissions decisions.”

You can read about all this on the Chronicle of Higher Education and Inside Higher Ed websites, and the college itself subsequently put out a  statement on the matter (in which it notes that “the College did not seeks publicity for this step”).

There do not appear to be any federal legal problems with the college’s action, and if there are it will be, ironically, because of liberal rather than conservative legal theories. That is, the left has been aggressive in pushing legal arguments that federal law prohibits discrimination based on sexual orientation; to the extent that courts and bureaucrats accept those dubious arguments, then it opens the door to claims that preferences on the basis of sexual orientation are illegal, too.

Law aside, does Elmhurst’s action make sense as a policy matter?

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Non-Garbage In, Garbage Out

The New York Times had a fairly long online colloquy over the weekend on a very short study titled “Whites See Racism as a Zero-Sum Game That They Are Now Losing.” Prepared by Michael I. Norton of Harvard Business School and Samuel R. Sommers of Tuft University’s Department of Psychology, the study appeared in Perspectives on Psychological Science. It is straightforward enough:  A large national sample of black Americans and white Americans was asked to use a 10-point scale to indicate the extent they felt that blacks and whites were each “the target of discrimination in each decade from the 1950s to the 2000s.&rdquo The Times colloquy on the study included folks from left (Patricia J. Williams, Paul Butler, and Victoria C. Plaut), right (David E. Bernstein and Abigail Thernstrom), and center (Jeffrey Rosen), as well as the study’s authors.

Dr. Thernstrom and Professor Bernstein made good contributions to the colloquy, putting the study in a historical and legal perspective, respectively. My own thoughts can be summarized as: What’s good (or at least plausible) in the study isn’t new, and what’s new isn’t good.

The results are well-summarized in the study’s graph (figure 1).  Basically, it shows (a) that blacks and whites agree that discrimination against blacks has gone dramatically down over the last half century, and that discrimination against whites has gone up; but (b) that blacks believe there is more antiblack discrimination still than whites do; and, finally, (c) that whites believe that there is now actually more antiwhite discrimination than antiblack discrimination, while blacks think that the amount of antiwhite discrimination is still negligible. None of this is particularly new or surprising. Who can deny that there is less discrimination against blacks now than in 1950; or that, with the rise of affirmative action, there is not at least some discrimination against whites now which was nonexistent a half century ago? And who can be surprised that blacks are more sensitive to remaining discrimination against them, and more dismissive than whites of the extent of politically correct discrimination against whites now?

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Why the Arizona Civil Rights Initiative Was Needed

This week Arizonans overwhelmingly enacted the Arizona Civil Rights Initiative, which bans state and local discrimination on the basis of race, ethnicity, and sex in contracting, employment, and education – including racial preferences in university admissions. Opponents of such initiatives frequently claim that they are a solution in search of a problem, that the presence of preferential treatment is greatly exaggerated, that quotas are already illegal, and so forth.
Not so.
Admissions data obtained a couple of years ago from the University of Arizona and Arizona State University law schools show that race and ethnicity play a huge role in determining who gets in.
Studies based on that data and released by the Center for Equal Opportunity document evidence of severe discrimination based on race and ethnicity in admissions there. At both schools, African Americans and, to a lesser extent, Latinos are admitted with significantly lower undergraduate grade-point averages and LSAT scores than whites and, again to a lesser extent, Asians.

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Reshape Universities Because of “Stereotype Threat”?

An Inside Higher Ed article yesterday by English professor Satya P. Mohanty of Cornell on “Diversity’s Next Challenges” constructs an elaborate house of cards but then inadvertently knocks the whole thing down. The piece features, in particular, an argument suggesting that “stereotype threat”—the claim that fear of being judged by a stereotype can cause minorities to do much less well on a test than they should—requires that universities and all of society must be restructured before minorities can be expected to succeed.
Stereotype-threat research regarding test performance has been widely used and abused. But, whatever its merits, Professor Mohanty has extrapolated its claimed findings to a broader one, that the “culture of our campuses,” indeed the entire “culture of learning,” needs to be restructured with the aim of fostering racial trust. Merely admitting a diverse student body is not enough: We must “think about what our campuses feel like to those who come to learn.” Campuses must be perceived as “trustworthy” by these students. And this means that campus culture must be “more open, democratic, and genuinely attentive to the experience of different social groups.” Again, there must be a focus not only on admitting a diverse student body, but on “the campus as a learning environment for different kinds of learners.”
Professor Mohanty then plugs the forthcoming book he has co-edited , The Future of Diversity (some of the arguments that follow here are fleshed out by the book’s various authors, and the op-ed apparently endorses them). That future is important not only for the success of the university per se, but because “university campuses have a special role to play in building the future of our multicultural and diverse society.”

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Diversity, Science Faculties, and Circular Reasoning

According to a short news item in Inside Higher Ed today, “The American Association for the Advancement of Science and the Association of American Universities have issued a new handbook with detailed legal resources to help colleges recruit and retain faculty members and students in science fields. The handbook notes legal challenges to some forms of affirmative action, but suggests that many practices that promote diversity are on solid legal ground.”
I criticized bean-counting for science faculties in a recent essay for “Minding the Campus”, pointing out both the legal objections and the lack of a policy justification for race-conscious hiring. I’m heartened that the handbook, which will be released later this week, apparently takes the legal issues seriously and may even warn schools away from the worst abuses. But what about the policy justification for striving toward “diversity” in the first place? Well, here’s what the press release for the handbook says, with my comments in brackets:

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Obama Wants More Preferences

The Obama administration has weighed in on behalf of the University of Texas’s use of racial and ethnic preferences in its undergraduate admissions, filing an amicus brief in the U.S. Court of Appeals for the Fifth Circuit, as reported here. This is unfortunate if not surprising, but the scope of the brief is noteworthy in three respects.
First, it goes out of its way to endorse the use of preferences to achieve diversity not just in this particular case at this particular school, but in all “educational institutions”—K-12, undergraduate, and graduate. The Supreme Court has never found there to be a compelling interest in the former instance—nor, for example, in post-doctorates for chemistry—and it is aggressive and wrong to argue that, because the Court found there to be compelling educational benefits in diversity at the University of Michigan law school, therefore any educational institution can make that claim.
Second, the University of Texas is arguing not just for campus-wide diversity but for classroom-by-classroom diversity. To achieve this, needless to say, the use of racial and ethnic preferences will be increased significantly.
Third, the University of Texas had—through its use of the state’s Ten Percent Plan—already achieved significant diversity, prior to re-instituting racial and ethnic preferences. That was the purpose of the Plan (which allows any student graduating in the top ten percent of his or her high-school class to go to the flagship campus), and indeed the school’s president had bragged about its success in that regard. Now, the Supreme Court had ruled in the University of Michigan cases that one element of constitutional “narrow tailoring” is to give consideration to means other than overt preferences to achieving diversity—and here those means had not only been considered, but had been adopted and with success. How then can the use of preferences here be “narrowly tailored”?
One suspects that the Obama administration’s Justice Department will never meet a racial preference it doesn’t like. This case, meanwhile, is likely headed to the Supreme Court, whatever the Fifth Circuit does.
Postscript re other amici: The Chronicle of Education reports that the administration has company: “Fourteen national higher-education associations have filed a friend-of-the-court brief urging the U.S. Court of Appeals for the Fifth Circuit to uphold the use of race-conscious admission policies by the University of Texas at Austin,” including “the American Council on Education, the American Association of Community Colleges, the Association of American Medical Colleges, and the National Association of Independent Colleges and Universities.” Our Center for Equal Opportunity, by the way, has—along with the National Association of Scholars and the American Civil Rights Institute—joined an amicus brief filed by the Pacific Legal Foundation opposing the admissions discrimination.