Fighting racial preferences in print, online, and over the air

The New York Times recently asked me to participate in a debate in its publication Upfront (“The News Magazine for Teens”), on the question, “Should Affirmative Action Be Eliminated?” I was happy to do so, and focused on the area I thought most likely to grab teens’ attention, namely college admissions. Here’s what I wrote:

Affirmative action is a system that treats school or job applicants differently based on race or ethnicity. That’s called discrimination, and the costs of this kind of discrimination are much higher than any potential benefit.

The unfairness of this system is particularly evident in college admissions. A system in which applicants of different races or ethnicities are judged on different scales means that better-qualified candidates with the “wrong” skin color or ancestry will sometimes be rejected in favor of those with the “right” racial or ethnic credentials.

This inevitably creates resentment and divisions. If students are wondering if their classmates were admitted over more-qualified applicants largely on the basis of their race, that hardly creates a supportive learning environment in which people of different backgrounds can learn from each other.

It also stigmatizes those students who owe their place in the class, at least partly, to their race or ethnicity. Classmates and professors may be forced to wonder if they measure up to their peers. It may even force minority students to question their own abilities: Am I here because I’m African-American or because I’m talented and have something to contribute?

The other crazy thing about affirmative action in college admissions is that some minorities are now favored over others. For example, Hispanic and African-American students are given preference over Asian-Americans.

The primary rationale for affirmative action has traditionally been that it’s a way to address our nation’s history of discrimination. In 2018, this no longer makes sense. People receiving admission preferences today, after all, were born around 2000: They’re not former slaves, nor were they even alive in the Jim Crow era. In fact, many of today’s African-American college applicants don’t even come from disadvantaged backgrounds.

Supreme Court Chief Justice John Roberts put it best when he said in 2007, “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”

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The Chronicle of Higher Education last week published my response to remarks made in an interview there by University of Washington president Ana Mari Cauce. It was titled, “Affirmative Action Cannot Be Used to Diversify Faculty,” and here’s what I wrote:

In a recent interview, University of Washington president Ana Mari Cauce seems to think that, with the current repeal of a state ban there on affirmative action, she will be free to consider race, ethnicity, and sex in faculty hiring in the same way it is now permitted under federal law in student admissions (“Why an ‘Affirmative-Action Bake Sale’ Prompted This President to Speak Up,” The Chronicle, May 6). This is not true.

The federal law is quite different in the two contexts. In particular, the federal courts have never recognized a “diversity” exception to the ban on such discrimination by Title VII of the 1964 Civil Rights Act, which is the key federal statute for employment discrimination.

It is indeed unlikely that any school today could justify faculty discrimination under the Supreme Court’s interpretation of Title VII, which limits preferential treatment to remedial contexts. The school would have to show it was addressing a “manifest imbalance” in a “traditionally segregated job category,” and one hopes that in 2019 such traditional segregation was long ago addressed.

I should note that in what I submitted I included a link to this piece I wrote for the National Association of Scholars.

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Finally, I recently was a guest of my friend and co-conspirator Peter Kirsanow when he was the guest host on the Bob Frantz Authority radio show. I talked about the Center for Equal Opportunity’s recent and successful efforts to get Texas Tech medical school to agree to end its use of racial and preferences in admissions, and on the fight against racial preferences more broadly. You can listen to the show here at the 14:00 – 32:43 mark.

Before I sign off, let me give a little background about Peter Kirsanow: He’s a frequent ally of the Center for Equal Opportunity, and I’m hoping that you’ll be impressed that we’re associated with a man of his caliber. He is a partner with the law firm of Benesch, Friedlander, Coplan & Aronoff, working within its Labor & Employment Practice Group in Cleveland, and a member of the U.S. Commission on Civil Rights, currently serving his third consecutive 6-year term. He was also previously a member of the National Labor Relations Board (NLRB) from January 2006 to January 2008. Pete testified before the Senate Judiciary Committee on the nominations of John Roberts, Samuel Alito, Sonia Sotomayor and Elena Kagan to the Supreme Court, and he continues to testify before and advise members of the U.S. Congress on employment law matters, most recently on November 18 before the House Subcommittee on Investigations and Oversight regarding “disparate impact” theory, another pet peeve of the Center for Equal Opportunity. Pete also writes fiction thrillers, and you can enjoy the website he and his fellow commissioner Professor Gail Heriot have created, the New American Civil Rights Project.

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