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Answering Linda Greenhouse’s Question

Linda Greenhouse recently had a meandering New York Times column about Fisher v. University of Texas – in which  the Supreme Court is considering a challenge to racial and ethnic preferences in student admissions –  in which she unhappily concedes that the “diversity” rationale is the only way that universities can legally justify their use of such preferences. And she poses the core question that follows this way: “If diversity is the only acceptable rationale for taking account of race, as the court insists, then what is the rationale for diversity?”

Luckily (or unluckily) for her, I answered this question earlier on ScotusBlog.  It’s a detailed answer, but I think an important one, and I hope worth devoting this week’s email to:

Here’s the basic question in Fisher:  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 the only justification for admission preferences that the University of Texas is using or can use.  The Court has rejected the remedial justification in this context (and rightly so); it has rejected the role model justification (and rightly so); there is nothing else left (and rightly so).

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 of course 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 2012 were born in, let’s see, 1994, thirty years after the passage of the 1964 Civil Rights Act.  True, these students may have faced other discrimination – but then, so may have Asian students and Middle Eastern students (and, for that matter, the European-American students who’ve recently applied to college).   One reason that, say, Justice O’Connor might have assumed that all black people and all white people live in different worlds growing up was that, for her when she was growing up, there was a lot more truth to that than there is today.

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, Bill Cosby and Snoop Dogg, Herman Cain 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 (starting with our president).

By the way, the social-science evidence that there are compelling educational benefits that outweigh the costs is underwhelming, as discussed in the amicus briefs filed in Fisher by Abigail Thernstrom et al., Richard Sander and Stuart Taylor, Jr., Gail Heriot et al., the Pacific Legal Foundation et al., (including my organization), and a group of economics and statistics scholars.  My point in this post is that, simply as a matter of logic, it could hardly be otherwise.

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Finally, we hope that all of you who were in the way of this weekend’s big snowstorm are safe and warm!

Some Advice for University Officials — and Happy Thanksgiving!

Yale launches five-year, $50 million initiative to increase faculty diversity

Each campus protest is different, and the demands in each are different, too. Some are illegal (racial quotas for faculty hiring), some are themselves otherwise racist and divisive (demands of acknowledgment of “white privilege”), some might even be worth considering (though even a reasonable demand should not be considered if violently or otherwise illegally made).

But here’s an easy one from Dartmouth: If protestors assault other students and deliberately keep them from studying — the only thing students are really supposed to have to do at a university — then the president should call in the police, and the thugs should be arrested by the latter and expelled by the former.

My friend Hans Bader also notes that what happened at Dartmouth was not just a disruption but a racist disruption, and that black-on-white racial harassment has been recognized by the courts as a violation of the law, just as white-on-black racial harassment is.  (For those who would like to look that up, he cites Bowen v. Missouri Dept. of Social Services, 311 F.3d 878 (Eighth Cir. 2002), and Huckabay v. Moore, 142 F.3d 233 (Fifth Cir. 1998).)  So where are the education reporters, to say nothing of the Obama administration officials, who profess to be so concerned about campus racism?

Yale to Spend $50 Million on Faculty Diversity – Yale has announced  that it will spend $50 million over the next five years in order to improve its faculty’s “diversity.” 

One expects that this money will be used not to increase the number of Republicans, conservatives, or evangelical Christians, but to make more hiring and promotion decisions based on race, ethnicity, and sex.  As the Chronicle of Higher Education noted in its story, “Yale faced criticism last month for a lack of racial diversity among its faculty members. According to … The Yale Daily News, a poster put up on the campus called attention to statistics reflecting a much higher representation of minorities among undergraduate students than among professors.” 

But as I noted in my post to the Chronicle article:  “I hope that Yale’s (my alma mater’s) general counsel is involved, since it is illegal to weigh race, ethnicity, and sex in the hiring and promotion of faculty. The ‘diversity’ exception that has been carved out of the law for student admissions does not apply to employment discrimination law. More here.”

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To make sure that Alexander Dreier, Yale’s general counsel, was involved, I sent him this letter:

Dear Mr. Dreier,

I just read an article in the Chronicle of Higher Education about Yale’s decision to spend $50 million on faculty diversity.

We hope and expect that your office is in the loop on this, and that you can help caution your colleagues that it is illegal to weigh race, ethnicity, and sex in the hiring and promotion of faculty. The "diversity" exception that has been carved out of the law for student admissions does not apply to employment discrimination law.  [Cite provided.]

We hasten to add that widening your recruitment nets and ensuring that all candidates are treated nondiscriminatorily is of course fine – but discrimination in the politically correct direction is likewise illegal.

Many thanks,

Roger Clegg
President and General Counsel
Center for Equal Opportunity
YLS, 1977

I received this response:

Dear Mr. Clegg:

Thank you for your message and your interest in Yale's faculty recruitment efforts.  Yale does not discriminate in the hiring or promotion of faculty based on race, ethnicity, sex or any other protected characteristic.  The university believes that an excellent faculty is a diverse faculty and will continue to use lawful means to attain excellence along all relevant dimensions.

Kind regards,

Alexander E. Dreier
Vice President and General Counsel
Yale University

I thanked Mr. Dreier for his “prompt and reassuring response.”

Obama Administration Weighs in on Fisher IIPredictably, the Obama administration has filed an amicus brief in Abigail Fisher v. University of Texas, defending the university’s use of racial  and ethnic preferences in admissions, and it has asked to participate at oral argument. Neither the brief nor the oral-argument request is a surprise: It did both the last time around, too, when the case was before the Supreme Court.  And to show how strongly the administration feels, no fewer than twelve lawyers signed the brief, six from the Justice Department and six from a variety of other agencies.  

The brief’s basic idea is that students learn so much from other students and that being exposed to a diversity of ideas is essential in education, and so therefore we must have a diversity of student skin colors, since how we think is determined by what our skin color is. Of course, this is not true; what’s more, it is flatly at odds with the University of Texas’s use of race here, since the schol is arguing that it has to use racial preferences precisely because poor blacks do not provide the same kind of diversity that well-to-do African Americans do (that is, it is trying to justify the use of racial preferences on top of its policy of admitting the top ten percent of all high-school graduates by arguing that this policy doesn’t yield enough high-SES African Americans).

The administration says the case is of particular interest to the federal government because the federal government itself needs diversity:  The military can’t have a lot of white guys bossing around people of color, law-enforcement officials must reflect their communities, and there must also be diverse doctors, lawyers, and Indian chiefs — well, maybe not Indian chiefs.  But even if all this were true — and it is not — then why do the schools from which the federal government hires have to be diverse?  The federal government, after all, doesn’t hire from only one school. 

Finally, I found especially odd this stirring passage from the brief, trumpeting the need for students to “develop — through exposure to people from a multitude of backgrounds, perspectives and experiences — a capacity to appreciate their fellow citizens as individuals, not as representatives of a particular group, and to forge relationships and pursue shared goals that transcend stereotypes and prejudice.” 

Odd, that is, to read how we must use racial essentialism to teach the message that racial essentialism is a bad thing.

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It wouldn’t be right to send an email so near to Turkey Day without some ornithological reference, and I’m happy to oblige.  The University of North Dakota recently—but after a long, long fight—changed its mascot from the “Fighting Sioux” to the “Fighting Hawks.”  I wrote a short piece on this, which I titled, “Ice People Privilege Non-Vegan Macroaggressors.”

I would add that, what’s worse, those getting unprivileged are Native Americans — and right at Thanksgiving, no less!  Read all about it here.

Happy Thanksgiving to you and yours — and without regard to race, color, or national origin!

The Washington Post’s Not-So-Fine Op-Ed


An op-ed in the Washington Post recently calls on K–12 schools to improve their racial and ethnic mixes in order to close academic achievement gaps — most specifically, that is, to help black students learn better by making sure they go to schools with plenty of white students in them. It’s a fine op-ed, except for just a few problems: 

  • The terms “integration” and “segregation” are not defined, which is a problem since they are typically misdefined by liberals, as a matter of both law and policy.
  • There is no discussion of where the racial achievement gaps might come from, which is odd in a piece devoted to eliminating them. To be fair, probably the issue is avoided since it might require acknowledgment that a big part of the problem is cultural, especially out-of-wedlock birthrates and peer pressure that asserts working hard is “acting white,” and of course such an acknowledgement would be unthinkable.
  • Likewise, there’s no discussion of why or how “integration” would end these disparities, let alone much acknowledgment of significant evidence to the contrary.
  • There is a consistent conflation of race and income, as if, for example, all whites are rich and all blacks are poor.
  • There is no discussion of the legal problems with assigning students to schools on the basis of their skin color, let alone the moral and policy problems with doing so.
  • There is no discussion of the educational and economic costs of sending children to schools which are not the closest to them.
  • Finally — and this is likely a mistake by an editor rather than the author — there is no claim that the benefits of integration help white as well as black students, the jump-page headline to the contrary notwithstanding.

But, as I say, otherwise it’s a fine op-ed, and no doubt the Obama administration will take it to heart, which is the author’s avowed purpose in writing it.

Hillary and Racial Profiling:  Hillary Clinton has apparently decided to endorse federal legislation banning racial profiling, as she did when she was a senator. I’m no fan of racial profiling in traditional law enforcement contexts — the Center for Equal Opportunity opposes race-based decisionmaking in all contexts — but the legislation that has been proposed is bad, as I explained in this Senate testimony.

A Very Brief Reply to Theodore Johnson:  Missteps by the Washington Post and Hillary Clinton in this area are, I am afraid, to be expected.  ButNational Review recently ran a long article by Theodore Johnson on “Civil-Rights Republicanism,” some parts of which were profoundly wrongheaded. 

In particular, Mr. Johnson thinks it’s a good idea for Republicans to condemn policies that do not discriminate on the basis of race by their terms, in their intent, or in their application, but simply because they have a disproportionate racial result. But there are no policies — none — that do not have a disproportionate racial result for some racial or ethnic group. 

Mr. Johnson likewise thinks that policies should be chosen and then sold to the electorate in part based on racial results and appeals, rather than simply on the basis of whether the policy is a good one or a bad one:  Support this policy because it will tend to help your racial group, oppose that policy because it will tend to hurt your racial group. I say no. In fact, I say hell no.

The Junk Science behind “Unconscious Bias” Studies:  The claim that unconscious bias is everywhere is, well, everywhere these days. But Andrew Ferguson has an excellent article about problems with replicability in the behavioral sciences generally and with unconscious bias in particular.  Here’s what he has to say on the latter:

Perhaps most consequentially, replications failed to validate many uses of the Implicit Association Test, which is the most popular research tool in social psychology. Its designers say the test detects unconscious biases, including racial biases, that persistently drive human behavior. Sifting data from the IAT, social scientists tell us that at least 75 percent of white Americans are racist, whether they know it or not, even when they publicly disavow racial bigotry. This implicit racism induces racist behavior as surely as explicit racism. The paper introducing the IAT’s application to racial attitudes has been cited in more than 6,600 studies, according to Google Scholar. The test is commonly used in courts and classrooms across the country. 

That the United States is in the grip of an epidemic of implicit racism is simply taken for granted by social psychologists—another settled fact too good to check. Few of them have ever returned to the original data. Those who have done so have discovered that the direct evidence linking IAT results to specific behavior is in fact negligible, with small samples and weak effects that have seldom if ever been replicated. One team of researchers went through the IAT data on racial attitudes and behavior and concluded there wasn’t much evidence either way. 

“The broad picture that emerges from our reanalysis,” they wrote, “is that the published results [confirming the IAT and racism] are likely to be conditional and fragile and do not permit broad conclusions about the prevalence of discriminatory tendencies in American society.” Their debunking paper, “Strong Claims and Weak Evidence,” has been cited in fewer than 100 studies.

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Finally, Inside Higher Education ran an article about a recent study on race and the SAT, the gist of which was that — since some groups tend disproportionately to do poorly on the SAT, since the SAT is not that great a predictor for them, and since schools will nonetheless probably continue to use the SAT anyhow — therefore it’s a good idea to use racial preferences in order to counteract the politically incorrect SAT results.  The author of the article was good enough to send me the study and ask me to comment on it beforehand, and to quote me at the end of the article.  Here’s the full text of what I sent him (he quoted the first paragraph):

If a test is unreliable for certain races — and this has long been alleged and long been refuted for the SAT, by the way — then a school is perfectly  justified in not using it, but it should try to find other measures  that are reliable.  What it should not do is admit students who are less well qualified under any measure in order to reach a particular racial result. 

The suggestion is that there is something about race qua race that prevents some races from doing well on the SAT:  There is no "proxy," the author says, that can be identified instead.  One doubts that this author would identify the factor as genetic inferiority.  Instead he might posit societal discrimination — but of course this justification for racial preferences has long been rejected by the Court, and it is hard to see why this explanation could account for a growing gap, when any reasonable person would concede that there is less societal discrimination now than earlier.

I would suggest that there are such proxies, and that they are cultural:  The too-widespread belief that academic achievement is "acting white," and the extremely high percentage (72 percent) of African Americans that are born out of wedlock (and more than 6 out of 10 for Native Americans and more than 5 out of 10 for Latinos, versus fewer than 3 out of 10 for non-Hispanic whites and fewer than 2 out of 10 for Asian Americans).

I also have to note the timing.  There are frequently studies that  seek to prop up the use of racial preferences that just happen to be  released during the run-up to Supreme Court's consideration of affirmative-action cases.  It calls into question the objectivity and reliability of such studies. 

The Court Should Grant Review (Again) in the Fisher Case

Earlier this year, the lawyers for Abigail Fisher asked the Supreme Court to grant review — again — of her lawsuit challenging the University of Texas’s use of racial and ethnic preferences in its admissions. The Court will consider whether to grant Fisher’s request at its conference on Thursday this week (May 21 — though I caution that sometimes the Court doesn’t decide immediately on what it will do). 

The Center for Equal Opportunity has joined and helped write a brief filed by Pacific Legal Foundation that highlights CEO’s work in this area and that urges the Court to grant review.  CEO has also discussed how Congress could act in this area.  Last week I wrote about all this (along with one of PLF’s lawyers) in a column that was posted on National Review Online:

Given that universities continue to ignore the constraints on the use of racial preferences laid out by the Court’s 2013 opinion in the same case, the justices should grant Fisher’s request for review. Congress could help here, as well.

The Court’s earlier decision wasn’t everything that opponents of racial preferences hoped for, but it was a step in the right direction. It reversed an appellate court that had given broad discretion to universities to use racial preferences in admissions. The justices’ near-unanimous decision explained that such discrimination would be tolerated only if it was truly “necessary” to attain the “educational benefits” of a racially diverse student body.

Accordingly, Fisher v. University of Texas required universities to reevaluate their use of racially selective admissions policies. If the costs of racial preferences were found to outweigh the purported benefits, or if less discriminatory means could achieve similar results, the discrimination would have to stop.

In particular, recent empirical research provides strong evidence that racial preferences cause significant harm to the very students who are supposedly the beneficiaries of racial admission preferences. Academic “mismatch” begins when universities lower their academic standards to admit a more racially diverse student population. The result is a significant gap in academic qualifications between some (typically black and Latino) and other (typically white and Asian) students. This, in turn, leads to the former having significantly worse grades, higher dropout rates, and less rigorous majors, along with other significant costs. Even if some academics dispute the mismatch effect, Fisher should require that universities at least consider these costs and determine that the benefits of racial preferences outweigh them.

There is, however, no evidence that universities have undertaken this type of introspection in the wake of Fisher.

To the contrary: Last year, the Center for Equal Opportunity (CEO) sent public records requests to 22 public universities seeking information detailing how the institutions had considered the costs of their racially selective admissions policies after Fisher. In particular, CEO sought to find out how the universities had considered the mismatch effect on their students. Astonishingly, half (eleven) of those institutions responded that they had zero documents responsive to the request.

The response at the remaining eleven universities was no better. Two universities sent documents that likewise confirmed that they had failed to consider the costs of mismatch at their schools. Seven of the institutions refused to honor the request — saying it failed to meet their requirements for some reason or another. One university quoted a price for searching for the documents that was too expensive for CEO — even though CEO engaged in extensive attempts to negotiate around the cost difficulty. The last request went to the University of Texas itself, and it and CEO are still going back and forth on that.

In addition to CEO’s requests, state-based affiliates of the National Association of Scholars (NAS) likewise asked universities for documents confirming that they had considered the costs of racial preferences, and investigated race-neutral methods of achieving the same benefits. NAS’s requests met the same fate. Not a single university responded with documents showing they had seriously considered race-neutral alternatives as Fisher requires, and not a single university responded with documents showing they had seriously considered the costs of their racially preferential admissions policies.

Accordingly, the Supreme Court should grant review again in Fisher, and try again to write an opinion that universities will take seriously. Perhaps this time the Court will conclude that it is futile to expect schools to do anything other than try to drive a truck through a door it has left ajar. The Court should shut that door — by holding that there is no compelling interest in the use of racially discriminatory admissions in the first place.

Meanwhile, Congress could act.

When Congress passed the 1964 Civil Rights Act, Title VI provided: “No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.”

Alas, this crystal-clear prohibition has been ignored by the Supreme Court, which has allowed racially discriminatory admissions.

But as long as racial preferences are allowed, Congress could at least require universities that receive federal funding to report annually whether they engage in such discrimination, and to provide evidence to show that any racial preferences they do use don’t exceed the limits imposed by the Court’s decisions.

Some insist that universities should continue to practice racial discrimination in admissions, but who can defend it being done secretly and without providing some rudimentary evidence of how it meets with the Supreme Court’s requirements? The U.S. Commission on Civil Rights has endorsed such legislation, and Representative Steve King (R., Iowa) introduced a bill nearly a decade ago along precisely these lines.

As Justice Louis Brandeis said, sunshine is “the best of disinfectants.”

If Congress were to act now, it would be interesting to hear any senator or representative — or anyone running for president, for that matter — try to explain his or her support for secret, illegal racial preferences. It would be even more interesting to hear President Obama’s justification if he vetoed such a bill.

Madness in the Groves of Academe

I recently participated, at ScotusBlog’s kind invitation, in its symposium on the Fisher II case, and you can read my contribution to it here.  There were no surprises in the arguments made in favor of the University of Texas’s racial discrimination in student admissions, but I did want to address briefly one particularly outrageous claim, since I’ve seen it made elsewhere. 

The argument was (and variations on it have been) made that, if you oppose universities’ giving a preference on the basis of race or ethnicity, it follows that “if an applicant wrote an admissions essay about volunteering for an Asian-American charity or growing up in Ferguson, then that essay would presumably have to be disregarded or discarded.” 

This is false and silly. That is, counting it in someone’s favor that she did charitable work is not the same thing as counting it in her favor that she has a particular skin color. Duh. If someone shows leadership qualities by being president of the African-American Club, it’s fine to count that in his favor if you’re looking for someone with leadership qualities, assuming that you would do the same for the president of the Irish American Club or whatever. Sheesh.

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On the front page of its Metro section recently, the Washington Post had a story headlined (in the hard copy), “Racial disparity in degree selection.”  It reports on a new study that has found that blacks and Latinos are more likely to earn bachelor’s degrees in low-paying majors rather than the better-paying STEM disciplines. 

The story cites “centuries of racial discrimination, uneven budgetary support for K-12 education and poor academic advising and student support” as possible reasons for all this; it talks about students who do well in high school but lose interest in science fields because suddenly in college they are struggling; and cheerfully notes a recent “$18 million grant from the National Institutes of Health to increase diversity in biomedical research” at a nearby university. 

My posted response:

Too bad there’s no mention here of the “mismatch” problem: If a university has “affirmative action” admissions, this means that they will be admitting black and Latino students with lower academic qualifications than the rest of the student body, and so they will do worse than the other, better qualified students. In STEM studies, in particular, they are more likely to become discouraged and switch majors than had they gone to a school where their academic qualifications were on par with everyone else’s. This is a well-documented phenomenon, but it’s politically incorrect so I guess the Post did not want to discuss it. See, e.g, this study.

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“Federal Investigation Finds No Anti-Asian Bias in Princeton Admissions” –  That’s the headline of this Chronicle of Higher Education news story a week or two ago, but it’s not true. 

Princeton does not deny that it weighs race in admissions, and the Obama administration did not find to the contrary. It just found that the discrimination was not illegal. The administration took the university at its word that there were amorphous “educational benefits” in “diversity,” and that the use of skin color was “narrowly tailored” to achieve these benefits because, for example, the school avoided the most blatant sort of quotas.  

The way that Princeton and the Obama administration have interpreted the law will not, I suspect, be the way the Supreme Court will interpret it in Fisher II.  Again, here’s my suggested approach.  So stay tuned.

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Old Thoughts on a New Argument – An observation after reading this article in The Atlantic today about Asian American students:  I am starting to see more and more the suggestion that Asian Americans ought to be more accepting of racial preferences in university admissions, because while it is true that schools may now generally consider Asian Americans as a whole to be “overrepresented” — and thus on the wrong end of “diversity” policies — this would not be so if schools started to look at Asian American subgroups that are “underrepresented.” Thus, the continued use of racial and ethnic preferences would be a good thing for those of Hmong ethnicity even it is a bad thing for those of Chinese ancestry.

Now, it is certainly true that it is wrong for schools to make generalizations about Asian Americans, and indeed conservatives have long pointed out the bureaucrat-led artificiality of the Latino/Hispanic category, which includes lots of subgroups that have little in common. But the same thing is true of whites and blacks as well. 

What’s more, the same thing will be true within all these subgroups: You can’t make valid generalizations about all German Americans or all Vietnamese Americans, just as you can’t make valid generalizations about all African Americans (by the way, to make just one point regarding the latter, most in this group who get into the more selective schools do not come from lower SES backgrounds).

So the conclusion that ought to be drawn is that schools should consider applicants as individuals, and make no generalizations about what they will add to the campus just because they belong to this or that racial or ethnic group or subgroup. And that is what conservatives have been saying for a long time.

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There’s a recent article in the Chronicle of Higher Education about how the State University of New York system is making a “big push to strengthen diversity” there.  Predictably, law and fairness are the first casualties, as I explain my response:

Re “stepping up efforts to recruit more minority faculty members,” it’s illegal to classify applicants, hire, or promote on the basis of race, ethnicity, or sex, whether it is done for politically correct or incorrect reasons. It is also, of course, unfair and divisive, and a disservice to the students and the university, to hire anyone except the most qualified individuals. More here.

As for “State funding formulas that base a portion of allocations on graduation and retention rates for minority and other students,” that’s likewise an unconstitutional racial classification: Why should the state favor students of some colors over students of other colors when it comes to helping students succeed?

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I’ll close with two other items from the groves of academe.

The first one I’ll call “Ethnic Self-Image, Academic Performance, and Life.”  It’s better to think of yourself principally as an individual rather than as a member of a racial or ethnic group.  That seems to me to be the message buried in this news story.

The second one has to do with “Hispanic-Serving Institutions.”  No, that’s not another name for Mexican restaurants — it’s bureaucratese for colleges and universities with lots of Latino students. And guess what?  The president recently proclaimed “National Hispanic-Serving Institutions Week”

So, my question is, which of the following sentences in the president’s proclamation is sillier?:

(a) “Roughly one-quarter of students in our Nation’s public schools today are Hispanic, yet less than one-fifth of Hispanics in the United States have a college degree.” 
(b) “By working to provide many Hispanics with the chance they deserve to get a higher education, HSIs embody this truth and pull the country we all call home a little closer to its founding ideals: that all 2 [sic] of us are created equal and all of us should have the chance to make of our lives what we will.” 

It’s a tough choice, I know. 

Answer (a) is tempting because it embodies a complete non sequitur and, if it did not, the disparity between one-fourth and one-fifth is not exactly a chasm. But there’s a lot to like about answer (b), too:  All 2 [sic] of us are created equal (those other people, not so much).

Our Amicus Brief in Fisher v. University of Texas

This week the Center for Equal Opportunity joined in the filing of the friend-of-the-court brief it helped write in Fisher v. University of Texas.  In this brief, we ask the full U.S. Court of Appeals for the Fifth Circuit to reconsider what we believe to be an erroneous decision by a three-judge panel last month, upholding the University’s use of racial and ethnic admission preferences. 

As our supporters know, this is a case in which the Center for Equal Opportunity has been deeply involved from the beginning.  I thought that we would devote most of my email this week to a condensed version of what we just filed (court rules limited the length to seven pages anyway); in particular, the opening and closing sections and most legal citations have been omitted.

A. The Educational Benefits that Flow From the University’s Race-Conscious Admissions Plan Are Highly Dubious

There is ample reason to doubt whether the evidence relied upon by the [Supreme] Court for its finding a compelling interest in the educational benefits flowing from diverse student body can apply to the University’s invocation of racial preferences here. In the years since that opinion, new research has been published that significantly questions the benefits that accrue from a diverse student body. See, e.g., Roger Clegg, Attacking “Diversity”: A Review of Peter Wood’s Diversity: The Invention of a Concept (collecting studies that the social science evidence purporting to tout diversity’s educational benefits was and is seriously flawed). 

But even assuming the continued validity of the research underlying the educational benefits of the a diverse student body at the University of Michigan law school in 2003, those educational benefits of considering race cannot be assumed to be the same for all disciplines at all places at all times.

There are many reasons to find that the University [of Texas]’s use of race differs from [the University of Michigan law school’s]. [T]he reason racial preferences are being used here is not related to the University’s inability to attain a critical mass through race-neutral means. To the contrary, racial preferences are needed here because the Top Ten Percent Plan (Plan) admits “too many” lower-class black and Latino students.  Are the incremental benefits of preferring some upper-class minority students really necessary to secure the educational benefits of a diverse student body? The panel never answers that question, but instead incorrectly assumes that this marginal increase in racial/economic diversity is “indistinguishable” from the interest recognized in [the University of Michigan law school case].

It is quite true that one cannot assume that all African Americans and all Latinos think alike or have the same backgrounds. There is nothing intrinsic in racial categories that assures a commonality of experience.  But individual differences are precisely the reason that all stereotyping, preference, and discrimination based on race should be rejected—it is not a reason to overlay racial preferences on top of an already racially diverse student body.

And there is no reason to think that the educational benefits that result are so clear and overwhelming that it is “necessary” for the University to discriminate against student applicants.

B. Any Benefits that Flow from the University’s Race-Conscious Admissions Plan Must Be Weighed Against the Costs

Because the [Supreme Court in the Fisher case] explained that a narrow tailoring inquiry requires that universities prove racial preferences are necessary to secure the educational benefits of a diverse student body, it follows a fortiori that those benefits must outweigh the costs. And the costs of racial preferences are inherent, undeniable, and well-known. [Quoting a recent Supreme Court opinion]: “If the need for the racial classifications . . . is unclear, . . . the costs are undeniable.” Government imposed racial classifications tear at the very fabric of our society, dehumanize us as individuals, and significantly hamper the very students they are designed to protect.

The costs of racial preferences are many and widely recognized by the courts. The specific costs added in the higher education context must be weighed. Due to space limitations, [we] will only discuss one of those costs—mismatching individuals and institutions.

“Mismatch” has been widely discussed in recent years, see Richard H. Sander & Stuart Taylor Jr., Mismatch (2012)—yet remarkably was not mentioned at all in the panel’s opinion.  Many studies reveal that racial preferences in college admissions result in an “academic mismatch” that leads to lower grades and higher drop-out rates among minority students.

Academic mismatch begins when elite universities lower their academic standards to admit a more racially diverse student population. Schools one or two academic tiers below must do likewise, since the minority students who might have attended those lower ranking universities based on their own academic record are instead attending the elite colleges. The result is a significant gap in academic credentials between minority and nonminority students at all levels.

Even supporters of racial preferences have had to acknowledge that students who attend schools where their academic credentials are substantially below those of their fellow students will tend to perform poorly. [Quoting from one well-known defense of racial preferences]:  “College grades [for students admitted based on race] present a . . . sobering picture,” and “The grades earned by African-American students . . . often reflect their struggles to succeed academically in highly competitive academic settings.” These struggles tend to result in shifting majors as minority students find the coursework too advanced given their skill level (“African American students at elite schools are significantly less likely to persist with an interest in academia than are their counterparts at nonelite schools.”). The lower an African American student’s academic credentials are relative to the average student at his undergraduate college or university, the lower his grades are likely to be and the less likely he is to graduate.  

Racial preferences in college admissions impose significant costs on minority students. No matter where academic mismatch occurs, lower grades lead to lower levels of academic self-confidence, which in turn increases the likelihood that minority students will lose interest in continuing their education and drop out.

The panel decision failed to consider the costs of racial preference—including mismatch—when determining that the University’s admissions policy was narrowly tailored ….

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One other item:  I noted a couple of months ago a bad (indeed, unconstitutional) idea being floated by the Obama administration, namely the creation of a government-to-government relationship between the United States and Native Hawaiians.  Now four U.S. Senators – Jeff Flake (R-AZ), Lamar Alexander (R-TN), Tom Coburn (R-OK), and Mike Lee (R-UT) – have written an excellent letter to the administration criticizing the proposal, which you can read here.

The administration is attempting an end-run of Congress here (sound familiar?), which has repeatedly refused to go down the road of making Native Hawaiians into some sort of Indian tribe — and rightly so. The Supreme Court has made clear that Native Hawaiians are an ethnic group — and they are, conversely, not a political entity — so that singling them out for special treatment is unconstitutional, as well as divisive and unfair. The Bush administration and the U.S. Commission on Civil Rights said so, too, but apparently the Obama administration is committed to playing the race card, whenever and wherever possible.

Minority Access to Higher Education

Last week I testified before the U.S. Commission on Civil Rights at their two-day event on minority access to higher education.  The Commission, which is now dominated 6-2 by liberals, deserves credit for inviting me, since I certainly did not tell the Commissioners what most of them wanted to hear.  Below is a summary of my statement; I’ve deleted the numerous legal and social-science citations, but you can read the full statement here.

Introduction.  Thank you very much, Mr. Chairman, for the opportunity to testify today. My name is Roger Clegg, and I am president and general counsel of the Center for Equal Opportunity, a nonprofit research and educational organization that is based in Falls Church, Virginia. Our chairman is Linda Chavez, and our principal focus is on public policy issues that involve race and ethnicity, such as civil rights, bilingual education, and immigration and assimilation.  We do a great deal of work in the field of higher education and, in particular, with regard to the use of racial preferences there.   Much of our work is posted on our website,

Overview.  The invitation I received said this briefing would be “examining the possible civil rights impact that access to and completion of higher education has on minority socio-economic mobility.”

Reading that, and the rest of the invitation letter, suggested to me that many people may reason:  (a) You really need a college education these days to succeed, and at as prestigious a school as possible; (b) a disproportionate number of minorities are not admitted to the top schools or don’t go to college at all; and (c) therefore, we need laws and programs that target minorities for help in getting into college, especially the top schools.

Now, I am not going to dispute that having a college diploma can be a good thing, and a college diploma from a more prestigious school can be an even better thing, and so if people of any color are missing opportunities here then that can be a concern.  Nonetheless, there are some significant caveats here and, in my testimony today, I will raise them. 

My principal message is that it is a mistake to look at this area mainly through a racial lens in 2015.  The problems are not really about race, and the solutions will not be either.  If people are not going to the colleges they ought to, this is a problem regardless of the skin color of the people involved.

Here are my specific caveats.

First, you don’t have to have a college education to succeed in life, let alone a diploma from a top college.  In any event, not everyone should go to college, let alone a top college.  I don’t think that many would disagree with this in principle, though there are strong differences in opinion about the extent to which these points are true. 

And, indeed, there is a considerable literature on the issue of to what extent everyone should go to college and how much difference it makes what college you go to.

Second, “minorities” are not fungible. 

It is foolish to think that the issues here are the same for African Americans as for Asian Americans, or for Arab Americans as they are for American Indians.  And Latinos present different issues, too, and of course there are many different kinds of Latinos — Puerto Ricans, Cuban Americans, those with other Caribbean or Central or South America ancestry, Mexican Americans — and indeed there are also many different kinds of African Americans and Asian Americans and Arab Americans and American Indians.

To make only the most obvious points:  It is much more likely that Asian Americans are discriminated against in Ivy League admissions than that African Americans or Latinos are.  (There are pending complaints – one filed in federal court, and one filed with the Justice and Education Departments – against Harvard for anti-Asian American discrimination in undergraduate admissions, and those complaints include impressive documentation.)  Conversely, whatever you think of giving racial preferences to “underrepresented minorities” (typically blacks, Latinos, and Native Americans), no one can deny that it is aggressively practiced by many selective schools. 

And, as discussed in more detail below, there are differences among minority groups in terms of culture generally and family structure in particular — and those differences have a significant impact on educational outcomes.

One last point here: Just as “minorities” are not fungible, neither are “nonminorities” (i.e., non-Hispanic whites).  There are white groups and subgroups, and many difference in wealth, culture — you name it — among them and within them.

As I said at the outset, it is not a good idea to look at higher education issues through a racial lens and to use skin color as a proxy for the characteristics that are really relevant.

Third, if some students are not going to college who should be, or are not going to more selective colleges who should be, then programs — especially government-run or government-funded programs — that help identify them and then help them to go to college should do so without regard to race or ethnicity.   Diamonds in the rough come in all colors.

This nondiscrimination principle is true not only as a matter of fairness, but also as a matter of law, including constitutional law.   As the Commission may be aware, the Center for Equal Opportunity has written a great deal over the years about why politically correct racial and ethnic discrimination is wrong as a matter of policy and law, and I will not belabor that point in my written statement, though of course I’m happy to discuss it at greater length in our question-and-answer period.

Fourth, the reason for the disproportions among different racial and ethnic groups and subgroups here in 2015 is likely not present discrimination or even principally rooted in past discrimination.  Certainly there are many causes apart from racial discrimination.  Consider, for example, the fact that Asian Americans and Latinos have each been discriminated against in our history, but the educational outcomes in 2015 for the two groups are quite different — and, as noted earlier, there are many subgroups within each group, which in turn also have different educational outcomes.

To the contrary, there is much preferential treatment today that overtly favors underrepresented minorities in higher education (and often discriminates against Asian Americans) as studies by the Center for Equal Opportunity and others have documented.  Educators, both public and private, are the most politically correct people in the world.  And politically incorrect discrimination in just about any public transaction, and this includes education, has been illegal for decades.  That’s not to say it doesn’t exist, but it does mean that its explanatory value is greatly diminished for individuals who were, after all, born late in the Clinton administration — not in slavery or the Jim Crow era.

Consider:  The only academic requirement to be able to get into a college somewhere today is a high school diploma.  But, as this recent article discusses, there are real racial disparities in meeting even this requirement:

The question of why black men are often less competitive for jobs leads back to problems in school. Even among those without college degrees, on average black men have weaker academic skills than white men. Forty-three percent of black 17-year-olds were reading below basic proficiency in 2012, compared to only 19% of white 17-year-olds. These academic deficiencies translate into lower high-school graduation rates: 59% of black men graduate while 80% of white men do. In New York City, only 28% of black males complete high school on time; in Philadelphia, only 24% do. And black graduates, on average, have lower skill levels than white graduates.

If there are disparities in high-school graduation rates, then it will be hard to avoid disparities in college attendance rates.  Perhaps some of the former disparities can be blamed on racist teachers and racist school systems, but it is hard to imagine that in 2015 most of them can be.

Fifth, the principal reasons for the disproportions are, instead, cultural and thus not really a matter of “civil rights.”  In particular, some groups have higher out-of-wedlock birthrates than others, and as it happens these same groups also frequently put less of a premium on educational success than other groups. 

According to the most recent government statistics that I could find, 71.5 percent of African Americans are born out of wedlock, along with 66.4 percent of American Indians/Alaska Natives and 53.2 percent of Hispanics; versus 29.3 percent of non-Hispanic whites and only 17.0 percent of Asian/Pacific Islander Americans. 

Those are enormous disparities among the different racial and ethnic groups, and whether or not your parents are married when you are born makes an enormous difference in likely social outcomes, including educational outcomes.  It would actually be surprising if there were no racial disparities in education, given these marked racial disparities in out-of-wedlock birthrates and the high correlation between all kinds of social outcomes, including educational outcomes, and growing up in a home without a father. 

This truth is now recognized on both left and right

Frequently liberals have blamed social problems on “root causes” like poverty; well, there is more poverty among African Americans, so it should come as no surprise to liberals that there are more social challenges here, too.  And the disparities come as no surprise to conservatives either, though they blame both social problems like dropping out of school and illegitimacy on a common cultural “tangle of pathology,” to use Daniel Patrick Moynihan’s (another liberal’s) phrase.

There is also the problem confronting many African American children that academic success is derided by their peers as “Acting White” (a book by Stuart Buck with that title documents this unfortunate phenomenon).  Michael Barone’s book The New Americans documents the emphasis placed on educational excellence by Asian Americans (see pages 265-68).  He contrasts this with the experience of African Americans (pages 85-89) and Latinos (pages 169-74).

I am strongly in favor of addressing these cultural problems — but, again, it should not be done in a racially discriminatory way.  Out-of-wedlock birthrates, for example, have been climbing for non-Hispanic whites, too, with all the predictable and sad consequences.  There are plenty of non-Hispanic whites who fail to recognize the value of education for their children and could learn from other Americans, many of them racial or ethnic minorities, about that value.  I have pointed in my testimony today to aggregate data about different racial and ethnic groups, but only to show that the reasons for educational disparities are not about skin color or national origin per se, but instead about cultural habits.  And those cultural habits can be shared or rejected by individuals regardless of race or ethnicity.

Conclusion.  Thank you very much, Mr. Chairman.  I’m happy to try to answer any questions that the Commission might have.

Talking about Affirmative Action with Law Students

Last week, I accepted some warm invitations from the Federalist Society chapters at law schools in the chilly Midwest to speak 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 a somewhat shortened version of what I said (you can read a longer version here).