The New York Times Won’t Give Up (But We Won’t Either)

The New York Times is pulling out all the stops in its efforts to ensure that the Supreme Court doesn’t ban racial and ethnic preferences in university admissions. But the Center for Equal Opportunity has answered it, here and here, and as discussed in this week’s email.

Last week it ran a front-page, above-the-fold article titled ”Affirmative Action Ruling Near, Blacks’ Progress Remains Slow.” As the title suggests, the message of the story is: It would be very bad if the Supreme Court were to rule in Fisher v. University of Texas against the use of racial preferences in student admissions, because African Americans remain underrepresented in many professional occupations (dentists, physicians, architects, lawyers) and among corporate executives.

This is a dubious theme for several reasons. First, the only legal justification for racial preferences in university admissions is the purported ”educational benefits” of a “diverse” student body; correcting society-wide racial disparities is not a justification the Court has ever accepted or been urged to accept in the Fisher case. Second, the article ignores the mismatch effect, the result of which is that racial preferences actually diminish the number of African American graduates in, especially, many professions and the more rigorous disciplines, as well as their likelihood for success in them. Richard Sander, the coauthor with Stuart Taylor of the influential book Mismatch, has also devoted a law-review article to the problem at law firms in particular — which happen to be the focus of the Times article; alas it does not mention Professor Sander’s research. (One of the many bad side effects of racial preferences is the way their use stigmatizes all members of the group that receives the preference; the Times story quotes a young black lawyer complaining it was commonly assumed he “was not as qualified as white colleagues” — an assumption that is directly attributable to the use of racial preferences that the Times nonetheless supports.) Third, any serious discussion of racial disparities in 2013 must acknowledge the fact that more than seven out of ten African Americans now are born out of wedlock, with predictable and sad results in education, income and poverty, crime — you name it. The Times story makes no mention of it.

Two other errors: The Times story suggests that the various state ballot initiatives banning racial preferences apply to the private sector (they don’t) and implies that the “diversity” justification the courts have accepted for student admissions is also available in private-sector employment (it isn’t).

But the Times wasn’t finished.

Later in the week the Times continued to try to influence the Supreme Court’s decision in Fisher with another front-page, above-the-fold story. The gist of it is that some universities have done a better job than others in moving from racial preferences to socioeconomic preferences, because the students admitted under the latter approach are more likely to need financial help and some schools are reluctant to foot that bill. One senses that this is supposed to warn the Court away from assuming that getting rid of racial preferences will result in a shift to socioeconomic preferences, but if so, I think the Times story may backfire. It seems to me there are three takeaways from what the Times says, and all three cut in the anti-affirmative-action direction.

First, it shows that the students who are admitted under the current racial-preferences system are not socioeconomically disadvantaged. That is, the black and Latino students getting preferences are not from the ghetto or barrio, but from backgrounds indistinguishable from those of most of the white and Asian students admitted. This is not helpful to the race-preference apologists, and it is also not news, by the way: The pro-preference book The Shape of the River acknowledged that 86 percent of the African-American students admitted to the selective schools studied there came from high- or middle-income groups (and thus only 14 percent from low-socioeconomic-status backgrounds).

Second, also implicit in the Times story is that, for schools to make any movement at all toward looking for diamonds in the rough of all colors — rather than using race as a proxy for diversity of background — they need a strong shove. That is, they need to be told to stop engaging in racial discrimination. Some schools may do a better job in making the transition than others, but the shove is apparently needed for them all.

Third, since when would the Court allow racial discrimination because it is cheaper than being nondiscriminatory? The Times seems to think that it is perfectly fine for schools to argue, “Look, we feel better about ourselves when we can say we have diversity in our student body. Now, we know that what we’re supposed to be after is actual background diversity, but the trouble is that it’s just too darn expensive. So we’d like to admit students based on their skin color instead.” If a company said using skin color was a cheaper way to sort applicants than actually determining their educational qualifications on a case-by-case basis, a judge would be quite dismissive, and rightly so.

* * *

Elsewhere on the Fisher front: Toward the end of his remarks at the Asian Americans and Pacific Islanders “Heritage Month Celebration,” President Obama recently declared,

We’ve got to do everything we can to make sure everybody works hard, everybody plays by the rules, everybody has a chance to get ahead — to start their own business, to earn a degree, to write their own page in the American story — that the laws respect everybody, that civil rights apply to everybody.

He neglected to mention — all that talk about the chance “to earn a degree” and “civil rights” notwithstanding — that his Department of Justice does not believe that the civil-rights laws prevent Asian Americans from being discriminated against in university admissions via affirmative action.

* * *

Last week Virginia governor Bob McDonnell decided to announce that he will more or less automatically restore the voting rights of “nonviolent” felons once they have fully served their sentences. But there is no reason not to consider individual circumstances on a case-by-case basis before doing so — particularly by looking at the severity of the offense, how recently it was committed, and whether it was part of a series of offenses. And it makes no sense to lump all “nonviolent” offenses together, as if they were all relatively trivial. Nonviolent offenses would include being a major drug lord, treason, public corruption, voter fraud, and so forth.

As I wrote in the Washington Post this week:

There are legitimate reasons for disenfranchising felons and for waiting to ensure that they have really turned over a new leaf before restoring their right to vote. Those who are unwilling to follow the law cannot claim a right to help make it for everyone else.

We have certain minimum, objective standards of responsibility, trustworthiness and commitment to our laws that must be met before entrusting someone with a role in the solemn enterprise of self-government. Children, noncitizens, the clinically insane and people who commit serious crimes against their fellow citizens don’t meet those standards.

After all, the unfortunate truth is that most people who walk out of prison will be walking back in. Read more about this issue on our website here and our congressional testimony here.

Related posts: