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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.

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.

Fearless Predictions on How Racial Preferences Will End

Loyal supporters of the Center for Equal Opportunity know that we don’t like racial preferences in university admissions (a.k.a. “affirmative action”). For example, they can read here and here how I’ve urged the Supreme Court to rule in Fisher v. University of Texas, where we have played a leading role and in which that practice is challenged.  They should also make generous year-end donations to the Center for Equal Opportunity, because I’m pretty sure the Supreme Court has already mandated that.

This week, however, rather than discuss what the Court should do, I thought I would discuss in broad terms how this issue will play out by giving straight answers and making fearless predictions on a series of questions that are critical to that discussion. Here we go.

How will the Fisher litigation end? The University of Texas will lose. A majority of the Supreme Court will vote against the university, and there won’t be a remand. The decision will be broad enough to make it harder for higher education institutions to continue the use of racial preferences, but alas, it will not foreclose them altogether.

All of that is tentative, of course. It’s possible that the university could win, in a couple of ways. There might be an affirmance of the Fifth Circuit’s decision upholding the institution’s use of racial preferences by an equally divided Supreme Court, if Justice Anthony M. Kennedy decides that he’s sick of the case and votes with the three liberals. (Justice Elena Kagan is recused.) Or there might be a remand for a full trial, and the university might win there, and the inevitable appeal might fail, and the Supreme Court could refuse further review.

On the other hand, it’s also possible that the Supreme Court will not only rule against UT when it hands down its decision but also overturn its unfortunate 5-4 decision in Grutter v. Bollinger in 2003 and declare that racial preferences in college and university admissions are illegal, period. That’s what I’m hoping for.

Barring that happy outcome, however, the end of the Fisher litigation will not mean the end of the struggle. So we have to ask and answer some more questions.

Will lawsuits continue even after Fisher? Of course. Two already have been filed: one against Harvard University and another against the University of North Carolina at Chapel Hill. There will probably be more.
Our side, including of course the Center for Equal Opportunity, is not going to give up. We really don’t like racial discrimination and what political correctness in all its manifestations is doing to our country.

And the outcome in Fisher cannot possibly result in insulating the use of racial preferences at other colleges and universities from legal challenges. Justice Kagan is recused, remember. The best the left can hope for is a 4-4 vote that will leave the state of the law essentially unchanged.

Who will win the presidential election in 2016? Barring my dream decision in Fisher, that’s what is really important, because it will determine the shape of the judiciary, and in particular the Supreme Court. If a Republican wins, then there’s a good chance that in a few years there will be a majority of justices willing to overturn Grutter. If Hillary Clinton wins, then an overturning of Grutter becomes much less likely for the foreseeable future, once Justices Kennedy, Antonin Scalia, and Clarence Thomas are replaced by her appointment of Justices Lani Guinier, Che Guevara, and Bill Clinton.

Fortunately, however, our next president will in fact be Marco Rubio, and he will nominate two excellent justices — replacing Justices Stephen G. Breyer and Ruth Bader Ginsburg with Justices Ted Cruz and Hans von Spakovsky — whom the Republican-controlled Senate will quickly confirm. President Rubio will also name Donald Trump as U.S. Representative to the United Nations, by the way, and will make Ben Carson surgeon general and Secretary of Health and Human Services.

Will the public ever accept racial preferences in college and university admissions? No. Of course not. Parents don’t like to see their children treated differently because of their skin color or what country their ancestors came from. That’s not going to change, no matter how unhappy that makes Lee Bollinger or his evil twin, Al Sharpton.

Will college and university officials ever voluntarily renounce racial preferences? No. I mean, are you kidding? Have you seen how these people have reacted to the student protests lately, and then you ask if they are voluntarily going to get rid of racial preferences? Sheesh, what a stupid question.

Will the political process ban racial preferences? It has in some states, and it could in other states. It’s even possible that Congress could ban them — but that would take a Republican president and strong Republican majorities in both houses, and a spine among Republican politicians heretofore completely lacking when it comes to this issue. So don’t hold your breath.

So, in summary, what are the possible scenarios? The use of racial preferences will end when the Supreme Court rules against them (or if the relevant political bodies ban them).

When that happens, there will still be programs that result in racial and ethnic diversity — more or less legally (by race-neutral means like top 10 percent plans, aggressive recruiting, ending legacy preferences and the like) and more or less illegally (by admission officials outright cheating or by their smuggling racial considerations into their “holistic” review of applicants). But don’t get me wrong — there will be much, much less of racial preference if it is driven completely underground in this way, so I’m all for it.

Conversely, the use of racial preferences will continue so long as courts and the political branches allow it. The academic culture is too politically correct for that to change in the foreseeable future.
At oral argument this week — in addressing the reaction to his carefully wrought opinion saying that colleges and universities had to show that they had tried really, really hard to achieve the educational benefits of diversity without using racial preferences before they could use racial preferences — Justice Kennedy lamented, “It is as if nothing happened.”

Sorry, Justice Kennedy, but that’s right, and it encapsulates a truth even broader than you might have meant: Don’t expect university officials to operate in good faith on this issue. Unless you prohibit racial preferences, their use of race will remain heavy-handed and mechanical. The only way to get the nuanced and highly individualized use of race that you (and Justice Sandra Day O’Connor before you and Justice Lewis F. Powell before her) want is to ban them outright.

It doesn’t matter how unpopular racial preferences are or how ineffective or counterproductive or unfair or stigmatizing or divisive. College and university officials don’t care.

And that’s not a fearless prediction — that’s just the way it is.

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.

Actual versus Superficial “Diversity”

The Chronicle of Higher Education has a commentary piece titled, “Want More Innovation?  Get More Diversity.”  As you would expect, it is a plea for universities to hire more African American faculty, in particular, because diversity in background and perspective will (according to some dubious data) result in more creative and innovative thinking.  The piece concludes that since “even if people from different backgrounds have exactly the same skills and knowledge, diverse teams may still do better than more homogeneous ones,” therefore administrators should “[s]top hiring people who look like you.”  My posted response:

Three obvious problems with this (there may be additional, methodological ones, too): (1) It assumes that skin color diversity should be used as a proxy for diversity of background and perspective. Of course, this is just stereotyping: Two people of different color may have very similar backgrounds and perspectives, and two people of the same color may have very different backgrounds and perspectives. (2) It assumes that skin color diversity can be achieved without sacrificing qualifications based on “skills and knowledge.” That’s not true either: If you weigh race in addition to merit, then you are going to be weighing merit less. (3) It ignores the fact that it’s illegal to “Stop hiring people who look like you.” The courts have, alas, allowed a limited amount of race discrimination in student admissions, but they have not done so (thankfully) for faculty hiring. More here.

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Along the same lines, I was interviewed by a reporter recently who was doing a story on a new faculty diversity initiative at the University of Texas.  Here’s the first part of that article (I’ve embedded a couple of links where I’m quoted to document what I say):

A hiring policy announced last week by Chancellor Bill McRaven of the University of Texas System is racially discriminatory and may well violate federal civil rights law, two experts told

The new policy would apply to hiring for deans and above at all 14 campuses in the system. “No senior position can be filled without allowing a qualified woman or minority candidate to be interviewed all the way to the last round of the process,” McRaven said.

This sort of policy is known as a “Rooney rule” after the National Football League team owner who first proposed the requirement for all head coach job openings.
“The Rooney rule is illegal, and I think that the McRaven application of it to UT is even more illegal, since it violates not only Title VII but also the Equal Protection Clause of the Constitution,” according to Roger Clegg, president of the Center for Equal Opportunity, a conservative think tank dedicated to issues of race and ethnicity.

While the Supreme Court has interpreted Title VI of the Civil Rights Act of 1964 in a way that allows race for the sake of diversity to be used in university admissions, university hiring is covered by Title VII of the act.

“The federal courts have never recognized a ‘diversity’ exception to Title VII,” Clegg said.

During a Board of Regents meeting last week, McRaven pointed out in a slide show 32 percent of the System’s students and 62 percent of the faculty were white. While 39 percent of the students were Hispanic, just 11 percent of the faculty is Hispanic.

“This slide makes it very clear that we are not doing the job we ought to be doing in driving equal opportunity and fairness in our hiring and promotion processes,” McRaven said. “Making sure our faculty and staff reflect the changing look of Texas is not just about fairness. It’s also about effectiveness. We need faculty, administrators, and campus leaders who understand the people they’re serving, who come from the same kinds of places.”

McRaven’s statement undermines the policy’s legality, Clegg said.

In two cases, the Supreme Court has rejected the idea that schools can discriminate in hiring and firing so that the faculty better reflects the student body.
Former Gov. Ann Richards tried to do the same thing McRaven is doing now, directing state agencies in 1991 to “produce a workforce that reflects the ethnic and gender diversity of the state’s population.”

That got the Texas Education Agency sued. The federal Court of Appeals for the region ruled affirmative action in government hiring was unconstitutional unless there was some “past provable discrimination.”

“This is a dubious argument as a policy matter, but what is amazing is that the argument continues to be made even though the Supreme Court rejected it, as a legal matter, over 20 years ago,” Clegg said.

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Two other quick notes on the ongoing campus madness. 

First, I just have to note this recent headline:  “School Study Finds Racial Gap in Salad Bar Use”!  You can’t make this stuff up, folks.

Second, and very much on the other hand, there are some sane voices at Princeton:  “A group of sensible Princeton students is standing up to the mob, and demanding that Princeton’s president Eisgruber do the same.”  Read their letter here.

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A short note on an important case that has not gotten a lot of publicity, Akina v. Hawaii:  The plaintiffs, and now conservative amicus American Civil Rights Union, have successfully asked Justice Kennedy to enjoin a racially exclusive (Native Hawaiians only) election that is being held in Hawaii.  Christian Adams, the lawyer for the ACRU, says, “Hawaii held such an election once before, and it shouldn’t be allowed to hold one again.” The key precedent for the plaintiffs here is Rice v. Cayetano, which struck down (after the fact) a similar racially exclusive election; the opinion was written by Justice Kennedy.  The Center for Equal Opportunity filed an amicus brief in that case, and is supporting the plaintiffs in the current case as well, in their challenge to this latest example of political correctness run amok. 

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The Federalist Society’s annual national lawyers’ convention was held recently, and of particular interest was the Civil Rights Practice Group’s panel on “Ferguson, Baltimore, and Criminal Justice Reform.”  I’m on the executive committee of that group, and we were all very pleased with the lively and informative discussion that ensued, which you can watch here.  “Discussion” might be an understatement, though; “fireworks” would be better.  Just about every conceivable point of view was represented:  traditional conservative (one of the panelists was a former Philadelphia cop, another a Heritage Foundation policy wonk), libertarian, and flat-out liberal.  And receiving a standing ovation was Robert L. Woodson, Sr., Founder and President, Center for Neighborhood Enterprise:  a pro–law enforcement, pro–personal responsibility community organizer (!).

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One last campus-related item.  I’ll be debating the issue of racial preferences in university admissions in New York on Thursday evening this week, and you can read all about that (and watch it) here.

Fisher v. University of Texas Wrap-Up – Whew!

UT President Bill Powers speaks with media after U.S. Supreme Court hearing.Photo: Paul Fetters.

It’s been a busy last couple of weeks for us here at the Center for Equal Opportunity, with the oral argument before the Supreme Court in Fisher v. University of Texas and all the media coverage before and after.  In our email this week, I’ll be focusing on some of what we’ve written — most of what you’ll read below is “truth squad” work that first appeared on National Review Online — and said about the case, which involves a challenge to that school’s use of racial and ethnic preferences in undergraduate admissions.

A Vehement Agreement with Chief Justice Roberts -- At the oral argument in Fisher, Chief Justice Roberts asked the school’s lawyer — who was defending the use of racial preferences in order to achieve the educational benefits (for white and Asian American students) that supposedly result from a diverse student body (that also includes black and Latino students) — this line of questions:  “[W]hat unique perspective does a minority student bring to a physics class? . . . [W]hat are the benefits of diversity in that situation?”

That is, Chief Justice Roberts, a skeptic when it comes to weighing race in university admissions, was implying that a prospective student’s skin color, and the background and perspectives that a student might be presumed to have because of that skin color, should not matter because it is irrelevant — that the only things that should matter are nonracial criteria that tell us whether the student is eager and able to learn about physics.

So soon thereafter the New York Times published an op-ed by a black physicist who is really upset with Chief Justice Roberts. And the reason she is really upset is that she thinks that it is wrong to ask students about race, wrong to ask them what unique perspective their race might give them, wrong to ask them about anything except whether they are eager and able to learn about physics, and wrong to view black students as having the function of enriching the learning experience of white students.

This is almost funny, this failure to see that Chief Justice Roberts and the black physicist are really saying the same things.  Except that the reason for this blindness is that the Times and other liberals, and of course the op-ed’s author, really equate the opposition of racial preferences to opposition to the admission of black students. 

Oh, and by the way, the op-ed’s author is also the proud graduate of Norfolk State University — a historically black school to which she was, therefore, not admitted because of a racial preference, and where she was therefore more likely to succeed in her goal of graduating with a degree in a STEM field. Just ask Justice Scalia, whose question about academic “mismatch” caused such a furor, as discussed below.

Trump/Scalia Question for the Other Candidates --  Also soon after the oral argument, Donald Trump joined the liberal chorus in criticizing Justice Scalia’s line of questioning in Fisher. Justice Scalia was raising, albeit a bit inartfully, the problem of “mismatch” when such preferences are used: Students who are admitted with substantially lower academic qualifications than the rest of the student body’s are likely to struggle and flunk out, drop out, switch majors (especially from a STEM discipline to a non-STEM one), or get lower grades.  So we might expect a question like this for one of the other candidates, followed by my suggested answer:

Q: Do you agree with Donald Trump that Justice Scalia was wrong in suggesting that black students should go to lesser schools because they aren’t smart enough to keep up with white students, or are you in favor of affirmative action?

A: Wow, what a question — I feel like I’m back on CNBC.  Look, I think the point that Justice Scalia was making is that any student, of whatever color, who is admitted to a school with significantly lower academic qualifications than the other students’ is likely to have a tough time. There’s a lot of data supporting the existence of this problem at schools that use racial preferences in admissions. So it’s a mistake to have racial double standards, and I’m confident in the ability of African-American students to meet the same standards that other students are held to. 

By the way, this is just one of many problems that result when schools discriminate on the basis of skin color or what country someone’s ancestors come from in deciding who gets in and who doesn’t. It’s fundamentally unfair — and it’s not just white kids that are being discriminated against, by the way, but Asian-American kids more and more, too. Plus it creates resentment, and it reinforces racial stereotypes, and schools have to decide how many of these boxes they should have and which student goes into which box — the list goes on and on.  

I’m against this sort of “affirmative action,” and I think most Americans agree with me.

“Why ‘Mismatch’ Is Relevant in Fisher v. Texas” -- That’s the title of this commentary by Richard Sander, the leading researcher in the area of racial preferences and academic “mismatch.”  It’s a terrific piece, because it usefully summarizes the three kinds of mismatch effects, and provides updates on the increasing academic support for the existence of this problem. 

The third kind of mismatch effect if of particular relevance in light of the recent campus protests:

The third type of mismatch—“social mismatch”—is in some ways the most intriguing.

Several studieshave now found that college students are much more likely to form friendships with students who have similar levels of academic preparation or performance at college. The phenomenon operates even within racial groups, but when a college’s preferences are highly correlated with race (as they are at many elite schools), social mismatch can lead to self-segregation by blacks and/or Hispanics. 

The result is decreasing social interaction across racial lines. That’s particularly relevant to the Supreme Court’s deliberations because its tolerance of racial preferences has been based on the idea that a diverse racial campus promotes interracial contact and learning. But if preferences promote substantial social mismatch, then race-conscious admissions actually decrease interracial contact and learning — not only at the school where the preferences are used, but also at the college that the preferenced minority student would have attended in the absence of preferences.

Professor Sander concludes:

All of this should give the Supreme Court pause in assessing racial preferences. Past Court decisions have invoked a traditional deference to the independence of educational institutions. But colleges and universities have demonstrated that they are politically incapable of acting as good fiduciaries for their most vulnerable students.

Social-Science Claptrap -- The New York Times had on op-ed on the day of the oral argument in Fisher by a couple of social scientists purporting to provide evidence that “Diversity Makes You Brighter.”  The “evidence” is a series of experiments where some people had to make calculations in racially homogenous settings and others made calculations in racially diverse settings. And it turns out that the latter’s “answers were 58 percent more accurate.”

Three observations, assuming for the sake of argument that the study’s methodology is sound, that its results can be extrapolated in the way the authors would like, etc.: (1) There’s no reason to think that the same results might not obtain if the “diversity” was of a sort other than racial.  (2) This experiment provides no help to the University of Texas in this case, since their argument is that they need more high-income blacks rather than blacks per se. (3) Would any Supreme Court decision that rests on such social-science claptrap deserve to be called “law”?

Yet Another Bad Argument for Racial Preferences -- The latest arguments I’m hearing in favor of continued racial preferences in university admissions are variations on this theme:  The campus protests show how far country has to go to achieve racial equality, and to ensure that these campus conversations continue, we must continue to ensure plenty of African American students on campus.

Responses: (1) Just because protestors say there is systematic denial of racial equality doesn’t mean that is true. (2) So these conversations are of dubious value, but in any event they need not stop just because racial preferences end, since the black  students involved can all still go to college; it’s just that instead they’ll be going to a college where their academic qualifications are on par with the other students’.  (3) Of course, if they are going to schools where they are as well qualified as the other students, they are less likely to feel marginalized and discriminated against than when they go to schools where they are struggling — and are seen by others to be struggling — because they are “mismatched.”  But (4) the last thing the Left wants is for these conversations to end, because they love racial-identity politics and continuing claims of systemic discrimination, which have a symbiotic relationship with racial preferences.

The Supreme Court could do everyone a big favor if it helped to end the racial essentialism that its blessing of racial preferences has, alas, both presumed and encouraged.

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As for my speaking on Fisher recently, that includes my appearance in an “Intelligence Squared” debate, a Federalist Society debate, the Melissa Harris-Perry show, and a panel discussion at the Century Foundation.  And, of course, there were my usual conversations with reporters about the case, like this one.

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But bear all this in mind, too:  This case challenging racial preferences in student admissions relies on a legal theory that the Center for Equal Opportunity developed, and before the case's first trip to the Supreme Court we joined and helped write an amicus brief with the court of appeals, were the first to flag for conservative media the opposing Obama administration brief there, and participated in a moot court for Abigail Fisher's counsel. We joined Supreme Court amicus briefs (at the cert stage and on the merits, highlighting CEO's studies), helped coordinate other amicus briefs, advised Ms. Fisher's counsel, and did extensive speaking, writing, and media "truth squad" work. After the Court's positive ruling, we filed dozens of FOIA requests to determine if universities were meeting the criteria set out in Justice Kennedy's opinion. Last summer, when a lower court panel issued an opinion inconsistent with Justice Kennedy's opinion, we helped write and joined an amicus brief urging the full appellate court to rehear the case. This summer, the Supreme Court granted review again.

It's welcome news that the Court recognizes the continued importance of the issue of racial preferences in university admissions, and the decision to grant review is an implicit recognition that the court of appeals' decision allowing this discrimination is unpersuasive. Once again, CEO had joined and helped write an amicus brief successfully urging the Court to take the case — stressing the nonresponsiveness of universities to Fisher I that our FOIA requests had uncovered, as well as our studies documenting the continued (often increasingly) mechanical and heavy weight given race in university admission — and this fall we joined and help write another brief (discussed in a Chronicle of Higher Education article) now that the review has been granted. We are working with Ms. Fisher's lawyers, participated in a moot court, and — as discussed above— are speaking and writing about the case in the court of public opinion, and doing media "truth squad" work.

Getting serious about racial discrimination

That’s the title I gave this essay, which I was invited to write for ScotusBlog and which was posted last week.  Here it is:

In my contribution to this symposium, I’m going to discuss how the Supreme Court should apply “strict scrutiny” to the use of racial and ethnic preferences in university admissions.  I will assume here that the door will be left ajar for this kind of discrimination, but must note briefly at the outset that I think the door should be shut on it, as I discussed at more length in the symposium for Fisher v. University of Texas at Austin’s earlier trip to the Court.  I noted then that there is no adequate answer to what ought to be the fundamental question in these cases:  “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?”

Until the happy day when the door is slammed, though, a school should be required to answer two simple questions in order for its use of racial and ethnic preferences to be narrowly tailored: (a) What, precisely, are the educational benefits that the school wants to achieve for its particular student body, and how are they “compelling”?; and (b) how, exactly, is there no way to achieve these benefits except by using racial and ethnic preferences in admissions?

The nature and extent of the educational benefits in using race in admissions will vary among schools and disciplines, so this has to be explored in order to ensure that the use of race is narrowly tailored.  For example, the educational benefits of using racial preferences in admissions to a graduate chemistry program are going to be different from admissions to a law school, and both will be different from those in an English or anthropology class.

Thus, a linguistics department might believe that it is valuable to have a student body that includes students who grew up being familiar with a variety of different dialects.  This will be a different – and perhaps more plausible – educational benefit than, for example, a physics department could point to.  But the linguistics department would also have to take care to ensure that students with preferred racial or ethnic backgrounds actually had that familiarity, and that it would also consider that familiarity if it were possessed by a particular white student.  That is, the use of race and ethnicity would not be narrowly tailored if it gave a preference to an African-American or Latino student who knew nothing except standard English; likewise, the school ought to be willing to give special consideration to a white student – or, of course, an Asian-American student (our multiracial nation’s most rapidly growing group and, increasingly, the victim of this politically correct discrimination, by the way) – whose personal upbringing had given her expertise in an unusual dialect of one sort or other.

Candidly, I doubt that there will be many if any instances where it makes sense to weigh race per se in admissions, rather than looking directly for the quality in the individual that will supply the educational benefit.  But, in all events, the school should be required to identify the educational benefit and then explain why it is compelling and why considering race per se is necessary in order to attain it.

Some schools may argue that – while they can point to no such educational benefit in any particular discipline, nor even identify any race-correlated perspective or experience it wants generally shared – there is an overall educational benefit in students learning how to interact with students of different racial and ethnic backgrounds.  But such a general claim should be looked at very suspiciously, since it would justify the permanent and malleable imposition of racial and ethnic discrimination in admissions.  This claim is especially dubious when a school –  such as the university in this case – will certainly have a substantial degree of racial and ethnic diversity without the use of preferences.  Such a school should not be able to justify discrimination by saying, “But this particular black student(s) is a little different from most of the other black students we admit because of some quality X.”  There will always be that quality X, since no two human beings are exactly alike.

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Now, it may be objected that this framework, while it seems logical enough, is unacceptable because it is so rigorous that few schools’ use of racial and ethnic preferences will be able to pass muster if it is used.  Indeed, it might (horrors!) require documentation of the educational benefits that will result from those random interracial conversations I wrote about in the last Fisher symposium and mentioned above.  And of course my off-the-cuff reaction is:  Great.

But there is more to be said in its defense than just that.

I think that this rigor is entirely consistent with Justice Anthony Kennedy’s opinion last time around, as I discussed here right after it was handed down.  And I’m not alone.  For example, Arthur Coleman, a former deputy in the Office for Civil Rights at the Education Department in the Clinton administration, agrees that each particular school should be required to do a lot of narrow tailoring “homework,” as he puts it.  It’s a “myth” that each school “can rely on another college’s research”:  “Mr. Coleman urged colleges that consider race not to lean on the research and rationale behind other institutions’ race-conscious admissions practices. What worked for the University of Michigan at Ann Arbor might not make sense, legally or otherwise, on your campus. ‘Every institution has to roll up its sleeves and do the hard work,’ he said.”

The rigorous approach is also necessary because schools can’t be trusted.

You would think that, as the twenty-five-year clock set by Grutter v. Bollinger has been ticking, universities that use racial and ethnic preferences would be weaning themselves off them. But this isn’t happening, as studies conducted by the Center for Equal Opportunity show. Our post-Grutter study of undergraduate admissions at the University of Wisconsin found the severest discrimination that we’ve ever seen, before or after Grutter. We found the worst law-school discrimination we ever saw at Arizona State, also post-Grutter. We likewise found severe law-school discrimination and undergrad discrimination in, respectively, Nebraska and Ohio post-Grutter. And we found law, undergrad, and med-school discrimination even at the University of Michigan (before voters banned it) – and indeed worse undergrad discrimination than there was in the system that the Supreme Court struck down in Gratz v. Bollinger, on the same day it upheld the discrimination in Grutter.  Fewer schools may be using preferences – many states have banned them, and most other schools don’t use them since they are nonselective, and the sky has not fallen there, showing they are unnecessary – but those that continue have doubled down.

Nor have things improved after Fisher I.  That case required universities to reevaluate their use of racially selective admissions policies; presumably, 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.  Consider one obvious potential cost, much discussed in the run-up to Fisher I:  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.   Even if some academics continue, in the face of all this evidence, to dispute the “mismatch” effect, Fisher I should have required that universities at least consider these potential 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 I.  To the contrary: Last year, the Center for Equal Opportunity sent public records requests to twenty-two 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, which is still going back and forth with CEO on that.

In addition to CEO’s requests, state-based affiliates of the National Association of Scholars 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 it had seriously considered race-neutral alternatives as Fisher requires, and not a single university responded with documents showing it had seriously considered the costs of their racially preferential admissions policies.

That’s not enough bad faith for you?  Well, how about this:  Stanford and Yale are destroying student records that would likely open them to charges of illegal racial discrimination.  See this news story in the Chronicle of Higher Education.Still not enough?  Well, consider here and here and here and here for more examples of bad faith.

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Clearly the Court must do something stronger than just warn schools — for the fourth time, after  Regents of the University of California v. Bakke and after Gratz v. Bollinger and after Fisher I – that they can weigh race and ethnicity, but just not too much.  So long as universities are allowed to weigh race, there will be an irresistible tendency to do so mechanically and with an eye toward achieving a predetermined racial mix.  That tendency is partly bureaucratic and partly because of the ideological stubbornness of whom we’re dealing with.

If, on the other hand, the Court says that weighing race is not allowed, schools will instead consider an applicant’s life circumstances and perspectives – and race may even still creep into it, but at least now it will more truly be as part of the “individualized consideration” the Court demanded in Grutter and Gratz.  So, if what a Justice wants is a very limited, nuanced consideration of race as one part of assessing the individual’s whole background – and if what he or she wants to stop is a mechanical, numbers-driven consideration of race – then the Court should tell schools to stop weighing race.  That’s the only way to get there from where we are.

Politically Correct Discrimination in Silicon Valley and in the Groves of Academe

There was an article in the Washington Post a few days ago about Silicon Valley’s “diversity problem.”  The problem is that there aren’t enough minority workers there, if you define “minority” to exclude Asians of course.  But, have no fear, companies are trying hard to remedy this deficiency by hiring more African Americans and Latinos, under pressure from the likes of Jesse Jackson and his Rainbow PUSH Coalition.

Well, actually there is something to fear here.  It is illegal to sort, hire, and promote people based on race, color, or national origin, as I testified to the U.S. Equal Employment Opportunity Commission here.  So one wonders how the companies’ efforts are consistent with the law — let alone with the moral principle that it is wrong to favor some and disfavor others on the basis of these characteristics.  No surprise, then, that the article is a little vague on exactly how race and ethnicity get weighed in actual hiring decisions.

There are two exceptions there, though.  The article says that Facebook has a couple of internship programs that are for “minority” individuals only.  If those internship positions are paid, then making them available on a racially exclusive basis is a clear violation of Title VII of the 1964 Civil Rights Act.

The other exception is Intel’s “$300 million venture fund designated for minority-led start-ups.”  Assuming that at some point a contract is entered into between Intel and the start-up, this violates 42 U.S.C. section 1981, which makes it illegal to discriminate on the basis of race in contracting.

Maybe, in addition to hiring more “minorities,” these Silicon Valley companies should also hire some more lawyers.

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James Taranto of the Wall Street Journal has a recurrent joke in his column where he asks, “Fox Butterfield, Is That You?”  The reference is to a New York Times reporter who wrote about how crime was going down, yet the number of people in prison had increased.  That is, the clueless journalist saw a contradiction in two things that were not contradictory at all — in fact, conservatives might have predicted one to follow from the other.

Mr. Butterfield came to mind this week as I read an article in the Chronicle of Higher Education, headlined, “Colleges Seek Diversity, but ‘Admissions Calculus’ Hasn’t Changed.”  The first paragraph of the article notes that a report released this week by the American Council on Education found that “Few selective colleges have changed their admissions practices since the U.S. Supreme Court’s ruling in Fisher v. University of Texas at Austin two years ago,” and “Yet many institutions … have since embraced various strategies” for increasing racial “diversity” among their students.

The article, in other words, suggests that there is something inconsistent between schools ignoring the Supreme Court’s decision of two years ago — which said that schools had to be more careful about engaging in racial admissions discrimination — and schools continuing to engage in such discrimination.  There is, of course, no inconsistency at all between the two:  Schools are adamant about wanting to discriminate, and so they ignore a Supreme Court ruling that would get in their way.

Let me note another curiosity from the executive summary of the report itself.  That summary concludes:

Institutions across the selectivity spectrum are hungry for research and guidance in the Fisher context. When presented with four areas for additional research or guidance that could be the most helpful post- Fisher, participants prioritized them this way:

  1. Research on the educational impact of campus diversity (58 percent overall; 74 percent of more selective private institutions)
  2. Research and guidance on what constitutes a “critical mass” of diverse students within their institu­tional context and how to achieve it (54 percent overall; 82 percent of more selective public institu­tions)
  3. Research on the diversity effects of admissions strategies where race-conscious admissions prac­tices are prohibited (42 percent overall; 64 percent of more selective public institutions)
  4. Methodological research and guidance on assessing the diversity effects of alternatives to race-conscious admissions (38 percent; 69 percent of more selective private institutions)

Do you get the idea from this that schools have already decided that they are going to achieve “diversity,” by hook or by crook, and that they are looking for an after-the-fact justification for this decision?  In other words, they have not reached a good-faith, objective conclusion that diversity improves educational outcomes; rather, they have decided that they want to have diversity, and they want someone else to document the existence of those improved outcomes.  Trouble is, the Supreme Court’s decision in Grutter v. Bollinger is premised on the former being true, not that someone might be able to come up with the documentation desired in the latter.

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Speaking of affirmative action, it was part of my talk to the Cleveland lawyers chapter of the Federalist Society last week.  I imagine that, with the Supreme Court’s decision to grant review again in the Fisher case — at the urging of an amicus brief that the Center for Equal Opportunity joined and helped write, by the way — I’ll be talking a lot about this topic over the next few months.  I’m looking forward to it.