Let the Sunshine In | Center for Equal Opportunity

The Center for Equal Opportunity often makes common cause with the National Association of Scholars, an organization of conservative academics. Recently the good folks there asked me to contribute a short piece to their publication, Academic Questions, which was weighing the pros and cons of federal and state freedom-of-information (FOIA) statutes. Below is a slightly edited version of what is appearing in that journal.

The principal use that the Center for Equal Opportunity has made of state FOIA requests is to get information from public universities about the way that race and ethnicity are weighed in student admissions. That includes documents that shed light on “affirmative action” and “diversity” policies, and admissions data. CEO – through the work of Althea Nagai and the late Robert Lerner – has used the latter data as the basis for numerous studies that have documented how heavily race and ethnicity are weighed in student admissions. Those studies can be found on our website here (scroll down).

Relatedly, CEO has also used federal FOIA requests to see how the U.S. Department of Education’s Office for Civil Rights has handled its enforcement of civil-rights laws – principally Title VI of the 1964 Civil Rights Act – that make it illegal to discriminate on the basis of race and ethnicity in federally funded programs (which would include nearly all universities). We have been particularly interested in how OCR has dealt with admissions discrimination and with racially exclusive programs for students (for example, scholarships and recruitment “job fairs”).

In our view, the use of FOIA in this context has many salutary effects and no bad ones. We do not believe that racial discrimination in admissions is sound policy, and it is good to shed as much light on the practice as possible – especially since schools invariably hide and sometimes deliberately mislead about how heavily race and ethnicity are weighed. Even if such policies are favored, it is hard to understand why they should be kept secret, particularly at public universities, and especially when there is a federal law that generally makes it illegal for the taxpayer money to be spent on discriminatory programs. While the Supreme Court has, unfortunately, left the door ajar – for now – and allowed some weight to be given to race and ethnicity, it has limited the circumstances when it is allowed, and so FOIA requests like ours are also a good way to ensure that those decisions are being followed.

Unless “academic freedom” includes the right to discriminate on the basis of race in secret, our FOIA requests do not hinder academic freedom.

If, however, there are FOIA abuses in other, nonracial contexts, we could accomplish much of what we want without FOIA by means of other legislation we have proposed (at the state or, preferably, the federal level). This legislation would require universities that receive taxpayer funding to report annually in detail on whether and how race, color, and national origin factor into the student admissions process.

Again: The Supreme Court has upheld the use of race to achieve the “educational benefits of a more diverse student body” as constitutionally permissible, at least for now, subject to numerous restrictions. Even if some insist that universities should continue to practice racial discrimination in admissions, it should not be done secretly and without taking pains to satisfy the Supreme Court’s requirements.

The U.S. Commission on Civil Rights endorsed this approach, including “sunshine” legislation, as a recommendation to the President and Congress in a 2006 report. Likewise, Representative Steve King (R–IA) has introduced similar legislation that would require universities that receive federal financial assistance to disclose data to the U.S. Department of Education on how race, color, and national origin factor into admissions decisions. We are hoping that such a bill will be introduced in the Senate as well. It would be interesting to hear politicians explain why they are voting against a bill that would end secret and illegal racial preferences. And, as Supreme Court Justice Louis D. Brandeis once said, sunshine is “the best of disinfectants.” For more details, and for the draft legislation itself, see this link (scroll down to the heading, “Requiring Disclosure of Preferential Policies: Model Bill No. 2”).

Finally, I have to note that all of this would be unnecessary if schools would just treat people without regard to skin color or what country their ancestors came from. And if a state’s public schools won’t voluntarily honor this principle, then the people in that state should require them to.

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Justice Scalia and “the little guy” – Those on the left like to pretend that they want justices who stand up for “the little guy.” But it ain’t necessarily so, as George Leef explains here, noting that cases involving eminent domain, school choice, gun rights, and compulsory union dues usually have the anti-Scalias on the side opposing the interests of the little guy. I should note that Mr. Leef is another frequent ally of the Center for Equal Opportunity.

Along these lines I’ll add my own favorite Scalia dissent, in Johnson v. Transportation Agency, a case where the Court majority upheld a government affirmative-action program.

That dissent concludes with this paragraph:

It is unlikely that today’s result will be displeasing to politically elected officials, to whom it provides the means of quickly accommodating the demands of organized groups to achieve concrete, numerical improvement in the economic status of particular constituencies. Nor will it displease the world of corporate and governmental employers (many of whom have filed briefs as amici in the present case, all on the side of Santa Clara) for whom the cost of hiring less qualified workers is often substantially less — and infinitely more predictable — than the cost of litigating Title VII cases and of seeking to convince federal agencies by nonnumerical means that no discrimination exists. In fact, the only losers in the process are the [plaintiff Paul] Johnsons of the country, for whom Title VII has been not merely repealed, but actually inverted. The irony is that these individuals — predominantly unknown, unaffluent, unorganized — suffer this injustice at the hands of a Court fond of thinking itself the champion of the politically impotent. I dissent.

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Finally, the Chronicle of Higher Education had a long article last week that extolled the successes of Historically Black College and Universities (HBCUs) in the graduating students with majors in the STEM (science, technology, engineering, and mathematics) disciplines. But here’s my posted response:

It is surprising that the word “mismatch” does not appear in this article. It has been repeatedly demonstrated by critics of racial preferences in university admissions that the resulting mismatch of students and institutions commonly sets up African American students for failure, especially in the STEM disciplines. It is no surprise, then, that a disproportionate number of successful African American students in this area attend HBCUs, where racial preferences favoring black students are generally not used and where, therefore, the mismatch problem is absent. See, for example, this paper.

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