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Cognitive Diversity versus P.C. Diversity

We are constantly being told by the proponents of racial, ethnic, and gender preferences in business and academia that diversity results in better problem-solving, learning, and so forth. Now, there are a number of rebuttals to this justification for discrimination, but one of them has always been that, to the extent that there is truth here, it is cognitive diversity that matters rather than diversity of superficial characteristics like skin color. And it does not make sense to use skin color as a proxy for different perspectives and backgrounds.

Well, The Harvard Business Review has published an article that provides powerful support for the conservative view. Some snippets:

Received wisdom is that the more diverse the teams in terms of age, ethnicity, and gender, the more creative and productive they are likely to be. But having run the execution exercise around the world more than 100 times over the last 12 years, we have found no correlation between this type of diversity and performance.


Someone being from a different culture or of a different generation gives no clue as to how that person might process information, engage with, or respond to change.


Cognitive diversity has been defined as differences in perspective or information processing styles. It is not predicted by factors such as gender, ethnicity, or age.

Read the whole article here.

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I made a similar point, by the way, in testimony before the U.S. Equal Employment Opportunity Commission a decade ago: 

[T]he title of Scott Page’s new book The Difference: How the Power of Diversity Creates Better Groups, Firms, Schools, and Societies might lead one to believe that it proves racial and ethnic diversity is good for business, but in fact its claims are more limited than that. Indeed, much of what Professor Page has to say is similar to [my] testimony — specifically, that for many jobs diversity of any sort is irrelevant; that in any event it is what he calls “cognitive” diversity that ultimately matters, not skin-color diversity per se; and that employers should “avoid lumping by [racial] identity” and should “avoid stereotypes” (and, of course, Professor Page does not address the legal prohibition on racial discrimination, even when it is said to be justified by believed “cognitive” differences).

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Here’s my recent published response (titled, “Disciplinary quotas are absurd”) to an article in the Richmond Times-Dispatch

Disparity does not equal discrimination. But Richmond Public Schools have been labeled as racist based on that idea. The recent news story, “Richmond Public Schools target of civil rights probe,” described a discrimination complaint against RPS over the fact that black students and students with disabilities have higher-than-average suspension rates.

When a school system in North Carolina was accused of racism because most of the students it suspended were black, the federal appeals court in Richmond rejected the accusation, ruling that “disparity does not, by itself, constitute discrimination.” In its ruling in Belk v. Charlotte-Mecklenburg Board of Education (2001), the court rejected the idea that suspension rates should be equal among all groups, declaring that the notion that a school system “should have a disciplinary quota is patently absurd.”

Given the breakdown of the black family, these disparities are not surprising. As the Brookings Institution has observed, “black students are also more likely to come from family backgrounds associated with school behavior problems; for example, children ages 12–17 that come from single-parent families are at least twice as likely to be suspended as children from two-parent families.”

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The Center for Equal Opportunity has been involved for a long time in a case involving a proposed plebiscite in Guam that would exclude everyone but Chamorros (the native group indigenous to Guam) from voting.  But now a federal trial court in Guam ruled unconstitutional such a plebiscite. That’s the right decision, since such racial discrimination is banned by the 14th and 15th Amendments.

By the way, you might have thought that the U.S. Department of Justice would have played some role in vindicating the voting rights at stake here, but you would have been wrong: The Obama administration stayed conspicuously on the sidelines. Here’s hoping that if there is an appeal from or outright resistance to this court ruling the Trump administration will get in the game.

There’s now a Federalist Society teleforum/podcast on this topic, which you can listen to here (I participated at the 0:20:40–0:24:20 mark and the 0:44:25–0:47:07 mark).

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Speaking of Federalist Society telefora/podcasts, you may recall that I recently flagged another one, here, about a lawsuit claiming that there is an illegal “disparate impact” on the basis of age when companies focus there interviewing for certain jobs on college campuses.  Sheesh, I said.  Well, I raise this again because the principal speaker was Eric Dreiband, who has now been tapped to head the Justice Department’s Civil Rights Division, the most important civil-rights agency in the federal government (and where I used to work).  I know Eric from his stint as general counsel at the Equal Employment Opportunity Commission under Bush43.  

By the way, I come in on Eric’s show at the 0:42:40 mark, making the point that the time is long past due to get rid of the disparate-impact approach to civil-rights enforcement altogether — and that the executive branch can do this unilaterally with respect to many regulations, and that Congress should clarify and/or change the relevant statutes.  I hope Eric was taking notes!

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ProEnglish Announces Executive Director Position – One of the Center for Equal Opportunity’s directors is Rosalie Pedalino Porter, who is also a director for our fellow traveler, ProEnglish.  That organization is looking for a new Executive Director, and we are happy to assist in the search by posting this job description in case any of our readers is interested, or knows someone who might be interested:

ProEnglish, a 501(c) organization in Washington, D.C., that promotes laws or constitutional amendments declaring English the official language of the Unites States and of individual states, invites applicants for the position of Executive Director.  The ED makes all policy decisions, manages day-to-day operations, and is the principal public speaker for the organization.  A qualified candidate will have experience in public policy and/or government relations, research and writing skills with a record of published columns in print and on-line media.  Letters of interest, with a resume, two letters and a salary history should be addressed to with “Executive Director” as the subject line.

Diversity Myths

The Washington Post has a “Five Myths about …” series, and over the weekend Valerie Strauss focused on college admissions.  Here’s her fifth “myth”:  “Schools don’t need affirmative action to make diverse classes.” 

Ms. Strauss begins by noting that [1] some schools have rejected racial preferences — a.k.a. affirmative action — and still improved racial diversity, and that some critics have pointed out that racial preferences “are [2] unfairly discriminatory and [3] don’t help minority students” and that [4] if “diversity” were really the goal of racial preferences, “`then preferences would be given on the basis of unusual characteristics, not on the basis of race.’”

So, how does Ms. Strauss refute 1, 2, 3, and 4?  Well, as a matter of fact she doesn’t.  She doesn’t even try.  She just ignores them.

Instead, she simply asserts that racial preferences “do appear” to increase diversity, and she defines diversity to be simply the percentages of black and Hispanic students at some schools and how close they come to their percentages “in the general population.”  In other words, she says that if you give an admissions preference to people of a particular race, you will admit more of them.  Wow, that’s amazing.

She concludes with a paragraph that bemoans, “Today, affirmative action has lost much judicial support” and that public support is “mixed” (actually public support is much less than judicial support, but never mind).  She’s unhappy that under Supreme Court precedent schools are stuck with the “diversity” justification for racial preferences; she’d apparently prefer a compensatory rationale — a dubious one under any circumstances (since, for example, the overwhelming majority of blacks admitted to more selective schools are not from poor backgrounds), and especially now that Latinos outnumber African Americans among groups getting preferential treatment and that those losing out now are more and more likely to be Asian Americans.  Ms. Strauss must think that for hundreds of years in this country Asian Americans owned Latino slaves.

And here’s Ms. Strauss’s last sentence:  “Meanwhile, most minority groups remain underrepresented on college and university campuses, even though most students enrolled at the country’s K-12 public schools are minorities.”  The “most minority groups” phrasing is to acknowledge that Asian Americans and Arab Americans, for example, are not underrepresented, which is why they are now discriminated against.  And the reason that some groups are “underrepresented” on college campuses is not because of slavery, but because of the sad state of our public schools (the solutions for which are more likely to be conservative than liberal), the belief that studying hard is “acting white” (or, worse, acting Asian), and especially the fact that some groups have many more children growing up in single-parent families (which is, unsurprisingly, correlated with not doing well in school).

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I should stress that Ms. Strauss’s aim of “making diverse classes” is a misguided one in any event.  The aim should be to admit the best qualified students, regardless of race or ethnicity.  The notion that there are “educational benefits” from racial and ethnic diversity is unpersuasive.

Just what is it that we expect African-American and Latino students to say to white and Asian-American students that will provide the latter with such compelling “educational benefits” that racial discrimination by the government is justified to make it more likely that these conversations take place?

The purported existence of such conversations — which is what the “diversity” justification boils down to — is, as Ms. Strauss concedes, the only justification for admission preferences that schools can now use.  So we need to think carefully about what these conversations might be.  Now, I am going to discuss why I think it is hard to imagine anything that will fit the bill, but those who disagree ought to spell out what oral observations they think do fit the bill.  Fair enough?

For starters, I say “oral” because they really ought not to be something that could just as easily be read, since then the observations might simply be assigned as class reading.  It would be better if the lessons were not simply about equality or tolerance or treating other people as human beings, if it is likely that such straightforward lessons have already been learned (at home or grade school or church or on Sesame Street) or can be learned elsewhere (say, at work).   And the observations should really be about something that only black and Latino students are likely to know.

So it can’t be an observation about growing up poor, because there are poor people of all colors; and, again, the overwhelming majority of, say, African Americans who are admitted to our more selective schools — that is, the ones likely to weigh race and ethnicity — are from middle- or upper-class backgrounds (eighty-six percent, according to the race-preference bible, The Shape of the River).

It can’t be an observation about growing up as a slave, or under Jim Crow, or during the Civil Rights Era — because the eighteen-year-old students getting these preferences in 2017 were born in, let’s see, 1999, thirty-five years after the passage of the 1964 Civil Rights Act.  True, these students may have faced other discrimination — but then, so may have Asian American students and Middle Eastern students (and, for that matter, the European-American students who’ve recently applied to college).   

If it’s not socioeconomic disadvantage or history, then perhaps there is a particular African-American perspective on calculus, or a Latino perspective on economics.  I mean, to be compelling it must have something to do with something weightier — less stereotypical — than food or rap music.  No?

Well, there must be something that middle-class eighteen-year-old African Americans and Latinos can tell eighteen-year-old whites and Asians that they are incapable of thinking of or reading about on their own.  Perhaps whites and Asians have never heard of racial profiling or the Trayvon Martin case, for example.

Whether the lesson schools are trying to teach is that African Americans have a particular point of view or, rather contradictorily, that African Americans don’t have a particular point of view — both are urged with equal vigor, even though the former relies on stereotyping and the latter seems rather obvious in a country that includes Condoleezza Rice and Whoopi Goldberg, Ben Carson and Barack Obama — it is odd that schools use racial essentialism in admissions and expect students to use it when listening to someone.  At least, it is odd if students are being taught not to judge other people by their skin color.

What’s more, schools have to have faith not only that these observations can be made, but that they will be made.  That is, they can’t know for sure what observations (if any) a black or Latino student might make in class; it is even harder to predict what observations that student will make outside of class.  So they have to have faith that those observations will be offered — and that a lot of counterproductive statements won’t be offered — as well as that the benefits from them being offered will justify something as ugly as racial discrimination.

Perhaps it’s not so much what the student says as it is how he or she says it.  That is, what schools are really hoping that whites and Asians will learn from “diversity” is that African Americans and Latinos are just as smart as they are (by the way, is there any evidence that, in a country whose laws and popular culture systematically condemn racial bigotry, this is a widespread problem?).  Of course, if it is of compelling importance that this point get made, it would be foolish to create a campus where the white and Asian students are systematically required to have better academic qualifications than the black and Latino students — which is exactly what schools are doing, of course.

Now, how compelling do these “educational benefits” have to be?  At a minimum, they have to be compelling enough to outweigh the costs of using racial preferences.  In fact, they must significantly outweigh those costs, since if something does as much harm as good, or even just a little more good than harm, the benefits can hardly be compelling.

So here’s a list of the costs of using racial preferences in university admissions: It is personally unfair, passes over better qualified students, and sets a disturbing legal, political, and moral precedent in allowing racial discrimination; it creates resentment; it stigmatizes the so-called beneficiaries in the eyes of their classmates, teachers, and themselves, as well as future employers, clients, and patients; it mismatches African Americans and Latinos with institutions, setting them up for failure; it fosters a victim mindset, removes the incentive for academic excellence, and encourages separatism; it compromises the academic mission of the university and lowers the overall academic quality of the student body; it creates pressure to discriminate in grading and graduation; it breeds hypocrisy within the school and encourages a scofflaw attitude among college officials; it papers over the real social problem of why so many African Americans and Latinos are academically uncompetitive; and it gets states and schools involved in unsavory activities like deciding which racial and ethnic minorities will be favored and which ones not, and how much blood is needed to establish group membership — an untenable legal regime as America becomes an increasingly multiracial, multiethnic society and as individual Americans are themselves more and more likely to be multiracial and multiethnic.

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“Justice-Involved’ Individuals” – The Trump administration’s Department of Labor headlines a press release last week with that “euphemism of the decade” used by the Obama administration. Come on — don’t elections have consequences?

Obama Disavows Diversity Hiring (Sort Of)

President Obama spoke at the University of Chicago law school last week about his nomination of Merrick Garland — a white male (tsk, tsk) — to the Supreme Court.  At one point, he was asked about “diversity” in this context, and the answer he gave is interesting (search for the word “diversity” to find the relevant question and answer). 

The president professed not to make judicial appointment decisions on the basis of race, ethnicity, or sex, instead insisting only on a process that ensures that all the best candidates are identified and looked at.  He said the same thing for other kinds of recruiting, hiring, and promotion, too.

What’s interesting is that this is an answer that honors the principle of colorblindness.  There’s no argument in it about favoring some to correct past discrimination, or about weighing race, ethnicity, and sex to ensure a “diversity” of outlooks. 

Now, to be sure, the president talks out of both sides of his mouth, because in the same answer he brags about the fact that he has set records for appointing racial and ethnic minorities, that “it’s important that our courts are reflective of a changing society,” and so forth.  But, again, he is professing that his decisions were made on a colorblind basis, and that no one got appointed on account of his or her skin color or what country his or her ancestors came from.

Hypocrisy is the tribute that vice pays to virtue.  It is significant that even this president is unwilling to challenge the principle that colorblindness is a virtue and that race-based decisionmaking is a vice. Too bad that this principle is violated on a daily basis by the rest of his administration.

Housing Segregation at the University of Connecticut – Center for Equal Opportunity ally Michael Meyers is taking the University of Connecticut to task for its plan to encourage racial segregation in dorm-room assignments there (as has CEO itself). 

A Happy GVR Thought -- There are a pair of promising petitions for review before the Supreme Court, both involving racial preferences and both likely to be taken up by the Court at conference soon. 

The first, Shea v. Kerry, challenges racial preferences in employment at the State Department. The second, Dunnet Bay Construction Co. v. Blankenhorn, challenges racial preferences in government contracting. Review in the latter is important because of, among other things, conflicts in the way the courts of appeals have handled similar cases.  Review in the former is likewise important because the Court’s two pro-employment-preference decisions are dated, dubious, and in tension with later Court rulings — and because such politically correct discrimination is nonetheless commonplace. 
So both cases are worthy, but it will take five votes to overturn the pro-preference decisions below. With Justice Scalia’s death, that is less likely unless and until someone with something close to his judicial philosophy is appointed as the ninth justice. And that’s likely a year away.
But here’s a thought: The Court will be ruling at some point in the next few months, for a second time, in Fisher v. University of Texas – Austin. In that decision, the justices are likely to say something of interest about the right way to approach racial preference cases generally (indeed, the briefing in Shea and Dunnet Bay discusses Fisher I). So perhaps the Court plans to hold the two pending cases until after it has issued its decision in Fisher II, and then send both cases back to their respective courts of appeals — “grant, vacate, and remand” in light of Fisher II, to use the Court’s parlance — for them to reconsider in light of what will likely be an important new precedent.

That would keep these two worthy cases alive, and also avoid the futility of having them briefed and argued at a time when, realistically, all that will likely result is an inconclusive 4-4 affirmance.

By the way, the Center for Equal Opportunity helped write and joined amicus briefs in both cases.

The Nanny State, Literally -- It might have a dubious record of success with ISIS, the economy, and any number of other issues, but the Obama administration is going to save us from gender-biased toys, thank heavens. 

Simple Question Re: Evenwel v. Abbott -- By a vote of 8–0 last week in Evenwel v. Abbott, the Supreme Court ruled that Texas is permitted to use total population numbers in its districting, rather than having to use voter population instead.  This was disappointing to many Republicans, since the former tends to favor urban areas (which are generally more likely to vote Democratic).   But what I want to do here is not to comment on the rightness or wrongness of that ruling, but to ask whether — had the shoe been on the other foot — there is any matter in which the Court’s Democrat-appointed justices would have voted against their party’s interests?

The answer, of course, is no — and that’s why, if we are to have any hope of pretending to be a country that follows the rule of law, we have to hope that the next justice is appointed by a president who understands the rule of law, too.

More Cypress, Less Facebook

George Leef has a fine column in Forbes that discusses why it’s a bad thing if the federal government leans on corporations to have more “diversity” on their boards.  The whole discussion is excellent, but I especially liked this:

In May, 1996, Sister Doris Gormley wrote a letter to T.J. Rodgers, the founder and then-CEO of Cypress Semiconductor. She argued that Cypress ought to diversify its board by adding some women.

Replying to her, Rodgers wrote, “Choosing a Board of Directors based on race and gender is a lousy way to run a company. Cypress will never do it. Furthermore, we will never be pressured into it, because bowing to well-meaning, special-interest groups is an immoral way to run a company, given all the people it would hurt. We simply cannot allow arbitrary rules to be forced on us by organizations that lack business expertise.”

We need more companies like Cypress and fewer like Facebook — which, as I discussed a couple of weeks ago, is happy to engage in illegal “diversity” discrimination.

Thoughts on Georgetown’s Announcement – Lots of ink is being spilled on Georgetown University’s announcement last week that it will give preferential treatment in admissions (on the order of that given legacy applicants) to the descendants of slaves that Maryland Jesuits sold to Southern sugar plantations in 1838 in order to help pay off the school’s debts.  On this, a few observations.

My first reaction is to say that this makes a lot more sense than simply giving preferential treatment to all applicants of a particular skin color or national origin, as so many schools now do.  While, as I will discuss, there are serious policy problems with it, I see no legal objection. After all, this is not actually a racial preference, and most African Americans would not be eligible for Georgetown’s preference and, with intermarriage, it may even be that some of those eligible will self-identify as white.  It’s also more targeted to Georgetown’s specific wrong and its specific victims. 

But of course this preference won’t be instead of racial preferences at Georgetown: It will be in addition to them.

Second, and mark my words, it won’t take long for the other shoe to drop.  The argument will be made that all universities of that era benefited, directly or indirectly, from slavery, and that all black people suffer and continue to suffer, directly or indirectly, from slavery and/or Jim Crow and/or continuing “implicit bias” and/or microaggressions and/or on and on.  

And not just universities but individual wealth and corporations and governments and in fact the whole country was built by oppressing African Americans.  And so we should have not only across-the-board admissions and hiring and contracting racial preferences but also, ideally, reparations. After all, most of those suffering the effects of past and ongoing racial discrimination are not college applicants to Georgetown.  (You can read my testimony before Congress against reparations here.)

Third, the fit between the historical wrong and this particular remedy is not very good when you think about it.  That is, it’s pretty tough to show that there is a particular ill-effect being suffered by some slave descendant here in 2016, many generations and 178 years later, that is going to be appropriately remedied by the rather odd trinket of an admissions preference to Georgetown University.

To elaborate on this:  It’s hard to trace current circumstances, which will include both good and bad, back that far, and why is the best currency for paying any debt an admissions preference?  On this first point, there’s even the argument that maybe a particular descendant is, for whatever reason, actually better off for his ancestor having been sold off by those Maryland Jesuits — maybe the ancestor got freed sooner (Maryland was not covered by the Emancipation Proclamation), or ended up in a place where he was better off either before or after he was freed, who knows?  And, again, on the second point, why is the best currency for paying the debt an admissions preference — why shouldn’t Georgetown just write out a check to all the descendants, most of whom aren’t interested in going to school there?  Cheap grace.  (In fact, a friend points out to me that it’s even cheaper than that, since African American students already are likely to get more preferential treatment on the basis of race than they will get as quasi-legacy applicants!).

It’s all very symbolic and touchy-feely.  There’s nothing necessarily wrong with that, but it shows its limitations as a model for others to follow.  Remember also the students who are better qualified (than the descendant-applicants) who now will not get in. College admissions is very much a zero-sum game, and that cost to innocent bystanders who might be of any color — along with all the other usual costs of preferences, like mismatch — has to be weighed. 

I know I have to be careful opposing a program not because of something inherently wrong with it but in large part because it will be twisted into something that is objectionable.  But the fact is that I don’t trust the motives of those who would have us obsess over America’s sad past of slavery. 

I worry that the idea is to keep white guilt alive, the better to advance an ideological agenda that is all about permanent division and identity politics, about making race relations raw rather than any genuine interest in continuing our nation’s remarkable progress.  It is insisted that there can be no healing without acknowledgment.  But this is dishonest, because it’s obvious that that there is plenty of acknowledgment.  What is wanted is obsession and skin-colored guilt and grievance, and that doesn’t heal.  Our historical failings shouldn’t be ignored or denied, but we should be looking forward more than backwards. 

Bowdoin’s Sombrero Scandal

The horror, the horror:  Sombreros were apparently distributed during a tequila party at Bowdoin College (see Weekly Standard item here).  Needless to say, the powers of political correctness at the college are in high dudgeon.  They are being accused of overreaction — but, really, how can one overreact to this sort of vicious cultural appropriation in what is supposed to be a civilized society in the 21st century?  Off with their hats, I mean heads!

Trump and Affirmative Action – One addendum to this National Review Online post on the Michelle Fields matter:  The Breitbart reporter was asking Mr. Trump about his stance on affirmative action, and rightly so.  Despite his anti-p.c. reputation, Mr. Trump is on record this campaign as saying that he is “fine with affirmative action,” and he criticized Justice Scalia for raising the “mismatch” point at oral argument in the Fisher v. University of Texas case.

Which brings us to the issue of protestors at the Trump rallies, and a nagging question that I have.  So you’re listening to a political speech, or attending a classroom lecture, or just eating at a restaurant, and a group of protestors comes in and begins loudly chanting.  What do you do, my dear?

First, call the police (or their private-security equivalent).  Sure.  And, last, when the police have arrived and are escorting the protestors out, you don’t sucker punch one in the head.


But what do you do while waiting for the police to arrive?  I have to say that just sitting there passively does not seem satisfactory.  Shout back if you’re at a rally?  Squirt ketchup at them if you’re in a restaurant?  Probably there’s no one-size-fits-all answer.  But I’m just asking.

Four Hundred Soldiers Get “White Privilege” Briefing – Judicial Watch has obtained documents revealing that, in April 2015, 400 soldiers were subjected to a “white privilege” briefing.  This included, for example, a PowerPoint presentation instructing the attendees: “Our society attaches privilege to being white and male and heterosexual  . . .”  Quite depressing.

Update on CEO Activities So Far This Year – We’re only two-and-a-half months into the new year, and the Center for Equal Opportunity already has plenty to report.  So here goes:

We’ve helped write and joined a couple of amicus briefs at the petition stage in Supreme Court cases, one with Pacific Legal Foundation (link here) and one with Southeastern Legal Foundation (here). 

For Martin Luther King Day, I had a column on National Review Online about another of our cases (this one before a federal court of appeals).

I also testified last month before the U.S. Commission on Civil Rights regarding “environmental justice,” which is the odd notion that the victims of pollution must be racially balanced (!).  I’ve spoken in the last few weeks about Fisher v. University of Texas at UT law school, the University of Pittsburgh law school, and the Federalist Society lawyers chapter in Pittsburgh.  And I met with congressional staff last week to warn against legislative efforts to try to negate the Supreme Court’s ruling in Shelby County v. Holder by resurrecting Section 5 of the Voting Rights Act.

I’ve had plenty of other posts on National Review Online this year; my archives are here.  I’ve also been quoted in the press several times on various topics:  UT's plan to pick top leaders draws flak (Mineral Wells Index- 2/4/16); UConn building 'black-only' living space to promote scholarship (FOX News- 2/2/16); For Black Men (Inside Higher Ed- 2/2/16); Antonin Scalia’s Death Probably Won’t Affect ‘Fisher,’ but It Could Change the Future of Affirmative Action (Chronicle of Higher Education- 2/14/16); Why Is It Still So Hard for Ex-Cons to Vote in Florida? (Vice- 3/7/16); Saturday Q&A: Sizing up the Supreme Court's affirmative action case (Trib Live- 2/19/16); Many ex-felons don’t know they can get their right to vote restored (Center for Public Integrity- 2/17/16).

Our chairman, Linda Chavez, appeared last month on two Heritage Foundation panels, one on Obama’s abuse of executive power (she wrote a chapter in Liberty’s Nemesis, the book that was being featured) and one on American identity and patriotic assimilation.  And she also appeared on a National Constitution Center panel last month about that book.

Finally, let me also mention that, in 2015 and 2016, the Center for Equal Opportunity has weighed in against numerous state and local governments considering the use of racial preferences in their contracting, including:  Illinois, Macon-Bibb County (Georgia), Oregon, East Orange (New Jersey), Richland City (South Carolina), Cincinnati, Miami-Dade County (Florida), Jackson (Mississippi), Memphis, Savannah, and Chattanooga.

A Disappointing Decision in Fisher II

The Supreme Court ruled last Thursday in Fisher v. University of Texas, upholding that school’s use of racial and ethnic preferences in undergraduate admissions.  It’s a disappointing decision, but there are a few silver linings.  I discuss all this in the essay below which Inside Higher Ed requested and published:

The U.S. Supreme Court has upheld the University of Texas’s use of racial preferences in student admissions. The vote was 4 to 3, with Justice Anthony M. Kennedy writing the majority opinion, joined by Justices Stephen G. Breyer, Ruth Bader Ginsburg and Sonia Sotomayor (Justice Elena Kagan was recused). Justice Samuel A. Alito wrote a powerful 51-page dissent, which he read from the bench.

The decision came on the unlucky 13th anniversary, to the day, of Gratz v. Bollinger and Grutter v. Bollinger. And Fisher I, by the way, came down on a June 24, with Regents of the University of California v. Bakke coming down on a June 28. Something about these higher ed racial preference cases always causes the court to struggle with them to the bitter end of the term.

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. The discrimination that is upheld is untenable in our increasingly multiracial, multiethnic society -- indeed, a society where individual Americans are more and more likely to be multiracial and multiethnic (starting with our president), and where the victims of this politically correct discrimination are more and more likely to be members of racial and ethnic minority groups.

But the silver lining is that today’s decision is a narrow one, both in its scope and in the extent to which it allows the use of racial preferences.

As the court says, UT’s program “is sui generis” and the way the case was litigated “may limit its value for prospective guidance.” A big reason for this, of course, is the university’s use of a “top 10 percent plan,” which was not challenged. Rather surprisingly, by the way, Justice Kennedy seems to suggest that perhaps it should have been. He’s right: If a facially neutral plan is adopted for racial reasons, as quite arguably the percent plan was -- by automatically granting admission to any student graduating in the top 10 percent of their high-school class, the plan was sold to the state legislature as guaranteeing a fair proportion of black and Latino admittees -- then it is unconstitutional. Put the shoe on the other foot: What if Ole Miss had, back in the day, put its demographers to work and then refused to admit anyone living in a (heavily black) zip code?

Justice Kennedy also warns the university repeatedly in his opinion that it has an ongoing duty to minimize its use of race. And 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. “The fact that race consciousness played a role in only a small portion of admissions decisions should be a hallmark of narrow tailoring ….”
Now, much of this may be quite false as a matter of what really happens at the University of Texas, but other colleges and universities are now obliged to jump through the hoops that the court says UT jumped through. They must, for example and in addition to what’s already been described, do a careful study at the outset to document why using racial preferences is essential to providing the purported educational benefits of diversity and “articulate concrete and precise goals.” Note that, at UT, the ultimate decision makers supposedly did not even know the race of the individual applicants.

More broadly, any college or university’s use of racial preferences must pass “strict scrutiny,” and any institution using preferences must bear the burden of proving that a nonracial approach would not promote its interest in the “educational benefits of diversity” about as well.

Look at it this way: barring a decision by the court that overruled Grutter v. Bollinger and said that colleges and universities may never use racial preferences because the “educational benefits of diversity” are not compelling, lots of institutions 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 you can prove that the moon is made of green cheese,” then a number of true-believer presidents would swear on a stack of Bibles that, what do you know, our institutions have found by careful study that the moon is made of green cheese.

That’s why I had hoped that the court would, indeed, overturn Grutter. But since that has not happened, and now likely will not happen for the foreseeable future, then there is no choice but to proceed institution by institution. That’s what the law was before today’s decision, and it remains what the law is after today’s decision. And, realistically, we could not have expected it to be otherwise as we awaited Fisher II.

Sure, it would have been better if the court had given the opponents of racial preferences more ammunition than it did today, but we still have plenty of ammunition on “narrow tailoring” requirements -- for which, by the way, colleges and universities receive “no deference” -- from Bakke and Grutter and Gratz and Fisher I and now from Fisher II.

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

And here’s hoping, as well, that the research continues to document the high costs of the use of racial preferences versus the paltry benefits. The latter are the “educational benefits” for white and Asian students of random observations by black and Latino students. (Yes, that’s what the justification for this discrimination boils down to, as I discuss here.)

And the costs? Just these: it is personally unfair, passes over better qualified students and sets a disturbing legal, political and moral precedent in allowing racial discrimination. It creates resentment. It stigmatizes the so-called beneficiaries in the eyes of their classmates, teachers and themselves, as well as future employers, clients and patients. It mismatches African-American and Latino students with institutions, setting them up for failure. It fosters a victim mind-set, removes the incentive for academic excellence and encourages separatism.

And more: it compromises the academic mission of the university and lowers the overall academic quality of the student body. It creates pressure to discriminate in grading and graduation. It breeds hypocrisy within the college or university and encourages a scofflaw attitude among its officials. It papers over the real social problem of why so many African-American and Latino students are academically uncompetitive. And it gets states and higher education institutions involved in unsavory activities like deciding which racial and ethnic minorities will be favored and which ones not, and how much blood is needed to establish group membership --an untenable legal regime, as I said before, as America becomes an increasingly multiracial, multiethnic society.

So the challenges to racial preferences will continue. Cases already filed against Harvard University and the University of North Carolina at Chapel Hill that had been on hold will now proceed. The struggle goes on.

*          *          *

As the Center for Equal Opportunity said in its press release last week on the day of the decision:  The Fisher II decision is a narrow one, and leaves plenty of room for future challenges to racial preference policies at other schools.  Those challenges will continue, and CEO looks forward to participating in those challenges – and ensuring that the public is aware of the extent and severity of the discrimination.

Dissing “Diversity”

It turns out that the corporate “celebration of diversity” is not only unfair, divisive, inefficient, illogical, immoral, and illegal — it doesn’t work very well by its own terms, according to the Harvard Business Review.

So here’s a crazy idea: How about if companies announced that from now on people were going to be judged as individuals and that nobody would be given any preference or suffer any discrimination on the basis of skin color, national origin, or sex? They could make clear that this applied to men and women, minorities and non-minorities alike. Might that possibly be a good way to advance nondiscrimination against women and minorities, but also reassure men and nonminorities that they wouldn’t be discriminated against either — just the objectives the article touts?

Affirmative Action for Air-Traffic Controllers? -- Surely I can’t be serious, right?  I’m afraid so, but fortunately our frequently ally, the Mountain States Legal Foundation, is on the case.  And don’t call me “Shirley.

MLB to Make Hiring Spanish-Language Interpreters Mandatory -- According to this Washington Post story, “Major League Baseball and the players union sent a memo to all 30 teams informing them that, beginning this 2016 season, they must hire a full-time Spanish language interpreter for players.” How about requiring English-language classes in addition to — or instead of — the interpreters?  Isn’t learning English what we would expect for any other professional who expected to spend a lot of time working here and dealing with other Americans?

FBI Physical Standards in the Fourth Circuit – Here’s an interesting article, describing a court of appeals decision that upheld an FBI special-agent requirement that men, but not women, be able to do 30 push-ups.

I have mixed feelings about this. If the point of the test is to make sure that special agents are generally physically fit, which the FBI argued and the court believed, then having different requirements for men and women makes sense. But if the point is to make sure that special agents have a certain level of physical strength so that they can beat up bad guys, then not so much. (For lawyer aficionados of Title VII of the 1964 Civil Rights Act, by the way, my offhand reaction is that the court would have been better off saying that there’s a “bona fide occupational qualification” — or “BFOQ” — justifying the “sex-norming” here.) The unanimous panel was all Democrat-appointed, by the way, and the district judge who had ruled the other way was a Reagan appointee — not that elections matter, of course.

Of course, what may be lurking in the background here is a fear by the FBI that requiring men and women to pass the same test may have a “disparate impact” on women, and as all right-thinking people know, the “disparate impact” approach to civil-rights enforcement is fundamentally unsound. It’s also possible that the FBI just wants to have politically correct numbers, and that’s also too bad — just as it’s too bad that the Obama administration is forcing the Marines to give women ground combat roles despite research demonstrating that this will make the Marines less effective there. More on that here.

Cardinals Caught Twice – The University of Louisville has gotten caught twice recently with over-the-top political correctness:  running a "whites-need-not-apply" ad for a faculty position and overtly politicizing its law school. So that's twice it has done publicly what most universities do only secretly: discriminate in hiring and run a left-wing law school. Hypocrisy is the tribute that vice pays to virtue, but more and more academics confuse the two.

Déjà Vu and the Sanders–Clinton Race/Crime Exchange – The discussion of race during Sunday night’s debate, especially with regard to crime, was disturbing but not surprising, following as it did the standard leftist script — and since the two candidates said pretty much the same things they had said before, and which I have commented on before.
So, just briefly:  Senator Sanders bemoaned a “broken criminal-justice system,” “institutional racism,” and the way that police routinely “terrorize” and “bully” black people. Secretary Clinton repeatedly called for an end to “mass incarceration” and “systemic racism” (seeing the latter not only in the criminal justice system but in health care and all kinds of other places, too).  And Sanders again added that police departments must look like their communities (quotas, anyone?).

And, once more, the dog that didn’t bark is that there was no mention of the fact that 71 percent of African Americans are born out of wedlock, and it is the implosion of the black family that is most to blame for the continuing (and in many cases growing) racial disparities in this country — in crime, poverty, unemployment, substance abuse, and so on. The simple fact is that imprisonment rates reflect crime rates, and to characterize our police and prosecutors as systematically racist is false, divisive, and demagogic, and a call for less aggressive policing is the last thing that law-abiding people in high-crime areas want.

The Disappointing Decision in Fisher v. University of Texas


Thursday June 23, 2016   
CONTACT: Roger Clegg
(703) 442-0066

The Disappointing Decision in Fisher v. University of Texas

CEO Weighs in on SCOTUS’s Affirmative Action Decision

(Falls Church, VA)Linda Chavez, chairman of the Center for Equal Opportunity (CEO), said today:  “We are disappointed in today’s decision, which upholds the use of racial preferences in student admissions at the University of Texas.  Such discrimination is untenable in our increasingly multiracial, multiethnic society – indeed, a society where individual Americans are more and more likely to be multiracial and multiethnic, and where the victims of this politically correct discrimination are more and more likely to be members of racial and ethnic minority groups.”

Roger Clegg, president of the Center for Equal Opportunity, said: “Today’s decision is a narrow one, and leaves plenty of room for future challenges to racial preference policies at other schools.  Those challenges will continue, and the Center for Equal Opportunity looks forward to participating in those challenges – and ensuring that the public is aware of the extent and severity of the discrimination.”

The Center for Equal Opportunity has been involved in this case for years, joining and helping write multiple briefs before the Supreme Court and the court of appeals.  Those briefs emphasized the many studies that CEO has done over the years, documenting the heavy weight schools give to race and ethnicity in their admissions.  Even before the litigation began, CEO filed a complaint against the University of Texas with the U.S. Department of Education, challenging the discriminatory admissions policy that the school uses.

The Center for Equal Opportunity is a nonprofit, nonpartisan research and educational organization that studies issues relating to race and ethnicity nationwide.


7700 Leesburg Pike, Suite 231 • Falls Church, VA 22043 • (703) 442-0066 •

The Washington Post Hides the Ball

Dan Rooney

The Washington Post had a long article recently headlined in the hard copy, “Why do poor boys become jobless men?” (the headline on the jump-page was “Study: Poverty especially harmful to job prospects of boys”). 

It begins by noting that, while generally and historically men have been more likely to work than women, in some places now there is a “reverse gender gap” and it is men who are less likely to have jobs. And it goes on and on about poverty and race and geography and segregation, dropping a few tantalizing references to “unstable, high-poverty environments” and “family, schools and policy” and a shortage of “male role models” and “child support” — but doesn’t really get to the key point.

The key point is buried, just where you would bury something in a long article if you felt like you sort of had to mention it but didn’t want it to be noticed.  You would mention it just once, and it would be near the end — not at the very end, because then someone who wanted to see what the article’s conclusions were might actually read it. And you would put it in the middle of a paragraph, though that isn’t easy since newspaper paragraphs are so short. And you would not even have it be a sentence on its own, but just part of a sentence. 

That’s where you would reveal that the reverse gender gap “appears only among poor children with unmarried parents . . .”

Loony Rooney Rule To Be Expanded – The National Football League will now require at least one woman to be interviewed for all executive openings — an expansion of the “Rooney Rule,” which requires at least one racial minority to be interviewed when filling any head coaching vacancy.  But the Rooney Rule is illegal, as I explain here, and of course so is expanding it.

And I should also note that the University of Texas has adopted the Rooney Rule for its hiring of administrators.  I’m quoted as criticizing this development here.

Wrongly Getting Numbers Right – The U.S. Court of Appeals for the Seventh Circuit has handed down a good decision, reinstating the racial discrimination claim of a white male who was laid off, he said, because his company wanted to get its numbers right.  For example, the plaintiff asserted that, when asked the reason for his termination, his supervisor explained, “My minority numbers aren’t right. I’m supposed to have 13.9 percent minorities on this job and I’ve only got 8 percent.”  Hmmm, that does sound a little suspicious.  The court of appeals said it was “puzzled” that the district court didn’t think there was any evidence of racial discrimination in light of this and other statements in the record.  Indeed. 

By the way, these quotas – I mean goals – came from the federal government.  And those goals themselves should be challenged, along with the federal government and its regulations, as I discuss here.

Harvard Admissions Update – I noted a couple of weeks ago that there is a move afoot to havefree tuition at Harvard, in conjunction with more transparency in admissions — with an eye, in particular, on stopping racial admissions discrimination.  Read all about the intriguing new campaign in this New York Times article.  And here’s an update:  The petition-drive has been successful, and a slate of candidates who will be backing this initiative has been approved and will be on ballot.

U.Conn U.Can’t Be Serious – The University of Connecticut recently announced that it would be opening a “ScHOLA2RS House,” which is a “living-learning community for African-American male students,” although the school also says that, technically at least, it might be open to some nonblack students.
I was quoted in the Inside Higher Ed article about this bad idea: 

“Forget about this nonsense and just treat students without regard to skin color,” Clegg said. “If there are students of color who are at risk or who could use some access to special programs, that’s fine, but schools shouldn’t be using race as a proxy for who’s at risk and who’s going to have a hard time as a student. There are lots of African-American students who come from advantaged backgrounds. And lots of non-African-American students who come from disadvantaged backgrounds.”

Here’s more that I had emailed to the reporter:

A state university that receives federal money is prohibited from discriminating on the basis of race by both the Constitution and by Title VI of the 1964 Civil Rights Act.  The use of racial classifications is permissible only if it is “narrowly tailored” to a “compelling interest” – that is, the university must have a really, really good reason to use racial classifications, and essentially no other way to achieve that goal except by using racial classifications.  Gender classifications are a little easier to justify, but only a little.

I don’t think that the state’s purported interests here would rise to that level, and in any event I don’t see why it would have to make a program available only to black male students rather than including at-risk students of all colors (and both genders, for that matter).  And the program is not only unfair in its exclusion of non-black-male students, but also unfairly stigmatizes black male students as uniquely problematic.

Felon Voting – Finally, I should note that late last month I had this published in the Montgomery Advertiser, in response to an article about efforts in Alabama to make it easier for more felons to vote:

If you aren't willing to follow the law yourself, then you can't demand a role in making the law for everyone else, which is what you do when you vote. The right to vote can be restored to felons, but it should be done carefully, on a case-by-case basis after a person has shown that he or she has really turned over a new leaf, not automatically on the day someone walks out of prison. After all, the unfortunate truth is that most people who walk out of prison will be walking back in.

We don't let everyone vote because we have certain minimum, objective standards of responsibility, trustworthiness and commitment to our laws that [we] expect of people who would participate in the solemn enterprise of self-government. Children, non-citizens, the mentally incapacitated and those who have committed serious crimes against their fellow citizens don't meet those minimum requirements. Once a new leaf has been shown to have been turned over, then the right to vote can be restored – but not before.