I’m on a Mark Kleiman binge. In addition to recommending his post on the MLK birthday discussed immediately below, let me also urge you to take a look at his two recent posts on the racial preference debate: one on its substance; the other on its language.
The former, on substance, defends a rationale for racial preferences that steers clear of the usual cant about “diversity.” Mark is concerned to preserve as much “quality” (what in the current debates is usually called “merit”) as possible while still promoting the inclusion of underrepresented minorities. His favored solution closely resembles (or may actually be) a version of “race norming” (which he mentions in passing), accepting the highest performing members of each group you want included. This approach has had rough legal sailing and has pretty much been sunk, requiring as it does racially separate applicant pools, but that’s no reason not to recommend it.
The second post, on language, defends “racial preference” as more accurate than “affirmative action” and discusses what is, or was, a quota. He argues that “[c]ertainly, ‘quota’ is the wrong description for the Michigan program…,” and later:
Even if we grant the use of “quota” to mean merely “enforceable numerical target,” and even if we regard “quotas” so defined as bad, the Michigan program doesn’t seem to fit. The point system may be designed to achieve a target level of African-American enrollment, but nothing guarantees that it will do so in any given year. That’s the reason the Administration had to invent the concept of “imprecise quota” to explain why a system that established no enforceable numerical target was still a quota. The disinclination to tell the truth if there’s any feasible alternative is one of the distinctive characteristics of the Rove Administration.
Even leaving aside the gratingly snide reference to “the Rove Administration,” this argument is not altogether persuasive. It is stronger regarding the undergraduate granting of 20 bonus points based on race, but what of the stated desire — and unfailingly accurate success — of the Michigan law school to admit a “critical mass” of minority students each year? Is that not a quota simply because the size of the critical mass was never exactly specified, even though it apparently never fell below 12%? Kleiman doesn’t say. In fact, he doesn’t even mention the “critical mass” policy in his post.
“Even leaving aside the gratingly snide reference to ‘the Rove Administration,’ this argument is not altogether persuasive. It is stronger regarding the undergraduate granting of 20 bonus points based on race, but what of the stated desire — and unfailingly accurate success — of the Michigan law school to admit a ‘critical mass’ of minority students each year?”
Good point. Not only is the whole purpose of this point system to yield a particular quota “critical mass” in any given year, it’s also a safe bet that should the school fail to reach that “critical mass” by a substantial margin in any given year, the point system itself would be scrapped fine-tuned in order to obtain the “right” result next time around. I have to wonder if Kleiman really believes his own argument, which leads to the conclusion that a quota with a 100% probability of being met each year is constitutionally distinguishable from one whose probability is “only” 99.9%.
Kleiman’s point was that, as traditionally used in this context, “quota” always referred to a ceiling, not a floor. “Quota” for Jews in the Ivy League meant no more than x%. Michigan’s policies are not a quota in the classic sense, he argues, because at most that establish a minimum number, and even less because there is no fixed number. He recognizes, though, that “quota” as numerical target isn’t so far off base.
Note, though, that there are two different policies in play here. The undergraduate admissions policy, challenged in Gratz, is the one that awards 20 bonus points. The always-successful for the “critical mass,” which does not (at least formally/facially) award bonus points (but must do something functionally similar) is challenged by Grutter.
I see. I’m still not sure I buy into that distinction, though. In the zero-sum game of university admissions, one man’s floor is another’s ceiling.
Good point. My point was that, even granting Kleiman’s definitional difficulty with the 20 bonus points as amounting to a quota, the law school’s “critcal mass” sure looks quota-like, but he didn’t discuss that one.
While one might call the deliberate attempt to achieve a “critical mass” of black students a quota, this seems to be shared with the “race neutral” approaches recommended by Bush (e.g, the top 10% method of Texas) — and which I gather you likewise endorse.
Certainly it is pretty plain demographic fact how the top 10% of graduates in Texas are broken down into various minorities, and therefore what the likely outcome is of admitting such students into U Texas. Clearly too, by manipulating the threshold percentage from 10% to other numbers, and setting aside the appropriate number of places for such students, higher or lower numbers of minority students will be achieved. Thus, by lowering the bar to the top 20%, it would be predictable that more minorities would be admitted, and one could pretty well predict just how many more. (If there happen to be more such applicants than there are places, one could simply use a lottery to select the admitees.)
Now this appears at first blush to be every bit much of a quota system as the Michigan case. The only real distinction is that racial words never get used in the statement of the policy. There will be some non-minority students who would be admitted under the fixed threshold system who would not be admitted under the more traditional admission methods. Yet it is hard to see how admitting those students, rather than the non-minority students who would have been admitted instead under the traditional rules, represents a net gain in fairness.
So, again, it seems that, with respect to “quotas”, the U Michigan method and the top 10% solution have essentially the same conseuences.
The remaining issue is whether the race-neutral language of the 10% solution renders harmless the “quotas” it effects.
Here, I can’t say that I’ve seen a clear answer from you on the most important point. Namely, it goes to what Jack Balkin called symmetry.
Here is the question:
Do you believe that a “race-neutral” policy that explicitly aimed to increase the number of WHITES in a university would be DISCRIMINATORY?
Such a policy would be easy to implement. The policy might be that the top 20% of the students from the top 50% of high schools (where excellence of a high school can be as measured by performance on objective academic tests) would automatically be allowed entry into the university.
Now I know that you have said that you don’t believe that, say, welfare is discriminatory simply because it favors minorities. That is beside the point. The question is, do you believe that the race-neutral policy I have just described is discriminatory given that it clearly would increase the representation of whites at the expense of minorities?
That is the test of the principle of symmetry. I’m more than curious about your answer.
there’s also the issue that (as i understand it) the policy in question has been in place for a number of years (at least five, iirc), and the fine-tuning which one would think is entailed by a quota has so far not occurred (or, to be honest, i’ve seen several people assert that such fine-tuning has empirically not occurred, and no one assert that it has actually occurred, rather than arguing that it _should_ occur).
second, the definition of quota as given here seems contrary to quota as i’ve always understood it, in a great many areas. it has always been my understanding (and i would think by his arguments, kleiman’s) that quota does in fact mean a hard, _fixed_ numerical target (for example, to choose an example not at random, a quota of white students admitted to a given med school class). once that quota has been reached, no more people in that group (in this particular example, med students) may be admitted, period, end of story, because their quota has been reached.
in this case, the plaintiffs are arguing that they have been disadvantaged because UMich Law, in trying to achieve a “critical mass” of black students, employed a quota. think about what that logic says, for a second. in effect, grutter is arguing that “her” spot was taken by a black student (because without the quota, a spot would have opened up that she would have been able to get into, based on her qualifications), and that this is unconstitutional. yet absent a hard numerical target, this argument gets substantially weaker. michigan has not said that they will take so many black students and so many white students. as a result, i would think that it would become very difficult to show a specific harm to a particular white student in quota terms from this policy.
i think the reason for this goes something like this. umichigan law wants to increase black enrollment, without creating a hard quota (b/c that was held unconstitutional in bakke). instead, they presumably choose to somewhat lower admissions standards for black applicants. as a result, there is no point at which it becomes impossible for a white student to get into umich law. that is the key difference between the michigan system and a quota. there is no set point at which it becomes harder for white students to get in, because the standards under which they apply remain constant (and of course, constantly different)throughout the admissions process (which is clearly not true with a quota). one can obviously make the argument that having those different standards is in itself improper and unconstitutional, but it seems to me that this argument is a different one from the argument against a quota.
and while i’m thinking about the issue, i should mention that a number of posts made against the michigan policy (not here, but other weblogs) conflate gratz and grutter, and argue against both michigan policies on the grounds of them being quotas. now, mr. rosenberg has distinguished between the two policies because one talks about a “critical mass” and the other doesn’t, though both presumably use much the same means to achieving their different ends. am i correct in saying that this is the critical difference between one being a quota and the other not?
frankly0 – Yes. I believe the automatic admission policy you describe (top 20% of top 50% of schools) would be legal. Not necessarily wise, but legal. I have written at great length here about why I also think the Tox X% plans would be legal (though I’ve never said I favor them).
Mark – re quotas: Basically, I think “quota” is a buzz word that is largely irrelevant to the issues here. The main issue is whether the desire for racial diversity can justify racial discrimination. What is and isn’t a quota doesn’t really matter. I think the administration likes to call the Michigan policies quotas because most people oppose quotas. On the other hand, liberals are so concerned to deny that the policies produce quotas that they themselves come across as agreeing that quotas are bad. But if you accept the legitimacy of engaging in racial discrimination to produce more minority students than would otherwise be the case, what difference does it make whether you are aiming at a specific number or not?
You assert that the admission policy I depicted, which would favor the admission of whites, would be legal.
I’m certainly no expert on the legal issues here. Yet Jack Balkin, who would appear to be addressing these very circumstances, says,
If this case applied, would it not render as unconstitutional the admission policy you claim would be legal? What do you dispute about its relvance?
frankly0 – Washingtoon v. Davis held that Congress is free to define something as unintentional discrimination and then outlaw it but that the Constitution bars only intentional discrimination. The civil rights forces regard this as a defeat. A policy adopted for the purpose of aiding whites (or blacks, for that matter) would and should be found to be illegal if there were no other reasonable non-racial justifications for the policy. In your example, there are legitimate, or at least reasonable, justifications for an admissions policy that, in seeking only high performing students from high performing schools, may attract a disproportionate number of whites. Even knowing of that likely effect, by itself, in my opinion, does not make the policy illegal.