How Much Discrimination Results From Racial Preference?

In a comment to this post below, “Cobra,” a frequent commenter here, challenged me to support my assertion in the post that although eliminating racial preferences would not eliminate all racial discrimination it “would eliminate quite a lot” of it.

“Easy,” I replied.

As practiced almost everywhere “affirmative action” is employed, preferences are given to some individuals and not to others based on their race. That is racial discrimination. Eliminating those racial preference programs would thus, as I argued, “eliminate quite a lot” of racial discrimination.

Cobra, in turn, responded in effect that the amount of discrimination produced by racial preferences is relatively trivial, not worth getting hot under the collar about:

… as far as elite college admissions go (the hill on which most anti-affirmative action types choose to charge up) only 2% to 5% of total admissions are affected by Affirmative Action at all. In the case of hiring, promotion and government contracting, you see similar, if not smaller percentages.

I’ve written about this misconception several times before, but since Cobra is not alone in being mistaken about this I think it’s worth addressing again, pulling together in this post some items I’ve mentioned in different places before. (Can one plagiarize oneself? If so, I’m doing it here because I’m not going to quote/link myself here each time I say something I’ve said before, but most of what follows is drawn from here, here, and here.)

First, although some are in denial, there really can be no reasonable disagreement with the fact that selective schools with preferences admit minorities with lower qualifications than non-minority applicants. Indeed, most schools, although uncomfortable admitting it, usually do not not deny what they do when pressed (at least when a perjury indictment might be the reward for denying it). Thus, just to pick one example from the University of Michigan, the following exchange with a law school admissions dean took place in Barbara Grutter’s district court trial, as quoted in her appeal brief to the Sixth Circuit:

Q. And in order to achieve that critical mass of minority students the practice was and the policy called for, a willingness to admit minority students from generally lower academic qualifications [than] majority students, isn’t that a fair statement?

A. [Dennis Shields]: I think that’s a fair statement. [pdf page 47]

Michigan, of course, is typical, not unique. Sometimes, in fact, the preferences can be even more dramatic at less selective schools. As I discussed here, Prof. Robert Heidt, a member for several years of the admissions committee at the Indiana University (Bloomington) law school, wrote the following in an OpEd in the Indianapolis Star [Note: this article seems to have disappeared from the Indianapolis Star archive. I quoted it here]:

… we regularly lower our usual standards of admission more than our counterparts at Michigan lower theirs…. We follow a similarly heavy-handed affirmative action policy for financial aid and faculty recruitment.

….

A policy however well-meaning in the abstract can feel foul to those given the job of implementing it. And in my four years on the admissions committee, routinely leapfrogging minority applicants over so many dramatically more qualified non-minority applicants, foul is how our affirmative action policy came to feel. Seeing the photographs and reading the record and personal statements of non-minority applicants whom we rejected in order to admit the far less qualified left me feeling as though I should wash. Eventually, I could not acquiesce in this policy any longer….

Roughly speaking, to meet our de facto quotas, we must leapfrog less qualified minority applicants over approximately 330 more qualified non-minority applicants each year, many of whom, of course, will be Indiana residents.

Even schools that deny giving great weight to race in admissions frequently do so, and the numbers they sometimes release often make a mockery of the denials. At Michigan State, for example, as related here, several years ago officials said that race “was not key” in admissions. Really? Consider:

EAST LANSING – MSU officials say they don’t use race as a factor in deciding who to admit — opting instead to recruit and assist disadvantaged and predominately [sic] minority students.

While Michigan State University doesn’t use racial preferences or quotas, it offers a program that lowers the bar for some undergraduate students who show initiative in the classroom.

MSU accepts students with grade-point averages as low as 2.5 on a 4.0 scale under the College Academic Achievement Program. The average incoming freshman has a 3.5.

About 460 students were enrolled this fall through the program, 88 percent of them minorities. Once admitted, MSU offers students academic help.

“We consider a wide range of factors in choosing students and we look at a broad range of experiences,” Pamela Horne, MSU director of admissions, said Monday.

In other words, of all the students who applied to Michigan State that year whose GPA was too low for admission, 88% who were deemed to have shown sufficient “initiative in the classroom” to qualify them for admission anyway were minorities. It seems statistically, er, unlikely that 88% of all the underperforming but otherwise deserving applicants with other “experiences” or “factors” that made them admission-worthy would be minority without a heavy racial thumb on the scale.

One common argument that preferentialists make is that racial preferences do not involve discrimination because most whites, Asians, etc., who are rejected from selective schools are not rejected because of race. Typical is the following argument (which I criticized here) made by an NAACP Legal Defense Fund attorney:

At the most selective institutions, the elimination of affirmative action would have an acute impact on the admissions of African-Americans and Latinos but would likely increase the chances of white admissions by just 1.5 percent. In other words, although there is a widespread perception that masses of white students are losing their seats because of affirmative action, in reality, race-conscious policies have a negligible impact on whites. As a matter of basic math, affirmative action cannot begin to account for the number of unsuccessful white candidates, because the sum of minority students admitted under race-conscious policies is dramatically less than the number of white candidates denied admission….

Yet opponents still equate affirmative action policies with “discrimination against whites” and draw audacious parallels between such policies and the racist practices of universities during the era of de jure segregation. The University of Michigan is at least 80 percent white, so it isn’t credible to claim that it or its affirmative action policy discriminates against whites as a group.

Theodore Shaw, head of the NAACP LDF, makes the same argument: most whites who are rejected are not rejected because of affirmative action:

Perhaps it is easier to attack the minuscule number of minority students admitted than to accept rejection. In most cases it is the end result of intense competition for limited slots (at the University of Michigan, more than 25,000 applicants seek about 5,000 freshman slots)….

This argument, a foundation of the preference principle, has far more radical implications than is generally recognized, for it in effect redefines discrimination as something that applies only to groups. To say that preferences cannot be discriminatory because the University of Michigan is still 80% white is to say that discrimination against individuals doesn’t count, until and unless it is massive enough to affect the statistical representation of the racial or ethnic group to which they are said to belong. Do “civil rights” groups really want to go there?

Forget civil rights groups. The University of Michigan itself makes this same argument. The following is from a Q&A re University of Michigan Admissions Policies on a Michigan web site with its legal materials. [At least it was there, when I discussed it here and here. Now it has apparently been “revised” and “archived.”]

Q: Does the University’s consideration of race hurt a white student’s chances of getting into the University?

A: No. The numbers of minority applicants are extremely small compared to the numbers of white students who apply to the University. The Law School, for example has for the last 10 years had an average offer rate of 29 percent for Caucasian applicants, and 26 percent for African American applicants. Out of the fall 2002 entering class of 352, only 21 are African American. Similarly, of the approximately 24,000 applications received each year for admissions to the College of Literature, Science & the Arts, only about 1,800 come from underrepresented minorities. It is not mathematically possible that the small numbers of minority students who apply and are admitted are “displacing” a significant number of white students under any scenario.

William Bowen and Derek Bok, in their book “The Shape of the River,” look at the nationwide statistics concerning admissions to selective universities. They determined that even if all selective universities used a race-blind admissions system, the probability of being admitted for a white student would go only from 25 percent to 26.2 percent.

What Michigan, and Bowen and Bok, are actually saying here is that there is no discrimination because there’s not much of it, and what there is affects only some individuals, not their groups. Their argument is that discrimination against individuals doesn’t count. The only discrimination that matters, that is in effect even worthy of being called discrimination, is against “groups” — and even then, only if its impact is severe enough to make a group “underrepresented.”

In order to determine how much actual discrimination is involved at Michigan, let’s look at some revealing numbers that Michigan itself provided in court about the 2000 class at its law school. How many applicants does Michigan itself say were admitted, and rejected, because of their race that year? (I picked that year because I found the numbers without having to look very hard.)

The following is from page 28 of Judge Bernard Friedman’s district court opinion in Grutter v. Bollinger, the law school case. It discusses data on the effect of preferences presented by Dr. Stephen Raudenbush, the University of Michigan’s expert witness.

In Dr. Raudenbush’s view, a “race-blind” admissions system would have a “very dramatic,” negative effect on minority admissions but only a slight effect on non-minority admissions, due to the vastly greater number of non-minority applicants. In the year 2000, 35% of underrepresented minority applicants and 40% of non-minority applicants were admitted. See Exhibit 187. Dr. Raudenbush predicted that if race were not considered, then only 10% of underrepresented minority applicants and 44% of non-minority applicants would be admitted. If correct, this would mean that in the year 2000 only 46 underrepresented minority applicants would have been admitted (instead of 170 who actually were admitted), of whom only 16 would enroll (instead of 58 who actually enrolled). Under this scenario, underrepresented minority students would have constituted 4% of the entering class in 2000, instead of 14.5% as actually occurred. See Exhibit 189.

Here’s what I take out of the above. Keep in mind that these are the numbers presented by Michigan’s own expert, not by the plaintiffs.

  1. 170 “underrepresented minorities” were offered admission.
  2. 58 of them enrolled, making up 14.5% of the total entering class of 400 students.
  3. Under “race-blind” admissions, 46 minorities would have been offered admission and 16 of them, 4% of the entering class, would have enrolled.

Thus, according to Michigan, 124 white, Asian, or unpreferred minority applicants were prevented from attending the UM law school in one year because of their race or ethnicity. The 2000 entering class of 400 students contained 42 students, or a bit over 10% of the class, who in Michigan’s estimation would not have been there if their race or ethnicity had not been taken into account. [The remainder of this paragraph added 2 April] 27% of the “underrepresented minorities” who applied would have been accepted under a non-discriminatory, colorblind admissions system; 73% of those who were offered admission would not have been admitted without the racial preference they were given. Thus, 124 whites, Asians, etc., who would have been admitted under a race-blind admissions system were denied admission in order to produce a yield of 42 more “underrepresented minority” admits than a race-blind system would have produced, or about three race-based denials for every one of the preferentially admitted entering students.

Now, given the large number of white, Asian, and non-preferred minority (not simply “white,” as Michigan’s statement has it) applicants and the relatively small number of preferred minority applicants, it may well be true that any non-preferred individual’s chances of admissions were not dramatically affected by Michigan’s preferences to preferred minorities. But does that mean that those 124 applicants who were rejected because of their race were not victims of discrimination? Would they have been victims if there had been 150 of them? 200? 250? If, say, 124 students are excluded from attending the University of Michigan law school every year, and similar numbers are excluded from similar schools because of their race, is that “much” discrimination or not?

In fact, as I will argue in a moment, the question of how many whites are kept out of schools by preferentially admitted minorities, while an interesting question, is not the question to ask in order to determine how much discrimination is occurring. But for now let’s stick to the numbers.

Go back and look at the Bowen and Bok numbers quoted above. [But before you accept these numbers as accurate, you should read the long critique by Abigail and Stephan Thernstrom in the UCLA Law Review, June 1999, and a shorter summary here.] According to Bowen & Bok, “a white student” has a 25% probability of being admitted to a selective college under the current regime of race preferences, but under a “race-blind” system that probability would increase “only” to 26.2%. But what if one also considers Asians and other non-preferred minorities? B&B don’t say. In any event, based on their numbers, for every thousand applicants to a selective college, 12 whites (Asians, etc., still invisible) are rejected only because of their race or ethnicity. Applying those numbers to Michigan’s 25,000 applicants every year to its freshman class, Michigan rejects 300 white applicants a year based exclusively on their race.

Of course there are probabilities, and then there are probabilities. Here’s another way to look at the probability of being admitted as a freshman to the University of Michigan. The Center for Equal Opportunity studied admissions figures for a number of schools, including the University of Michigan. As described by CEO president at the time, Linda Chavez (quoted here), when CEO studied the figures from Michigan

we discovered that the median SAT scores for black students who were admitted to the school were 230 points lower than for whites. What’s more, their high school grades lagged nearly a half point (on a four-point scale) behind those of whites. From the data we obtained under a Freedom of Information request, we calculated that the odds of being admitted if you were a black student with the same qualifications [grades and test scores] as a white applicant were 174-to-1.

Be that as it it may, what does one make of the estimate that 300 white students were excluded from the freshman class at Michigan in one year because of their race? Is that number large or small? Do those 300 students (or however many it is in real life) not have a valid claim of racial discrimination simply because they are a small percentage (1.2% according to B&B) of the total applicant pool? (Of course, they are a larger percentage of the white/Asian/non-preferred minority pool, but that’s getting down into the fine print.) If selective colleges began “taking religion into account,” as logically they must if they believe what they say about diversity, and 300 students were excluded because they were Jewish, would the American Jewish Committee still file a brief supporting Michigan, or would it say, with B&B and Michigan, that, oh well, it’s “only” 300?

As I’ve indicated, however, the question of how many whites (or Asians or other non-preferred minorities) are kept out of selective universities because of their race is interesting, but that is not the measure of how much discrimination results from those preferences. To see why, note again the observation of Indiana University law professor Robert Heidt quoted above (which I’ll quote again):

Roughly speaking, to meet our de facto quotas, we must leapfrog less qualified minority applicants over approximately 330 more qualified non-minority applicants each year….

Prof. Heidt did not say how many lesser qualified minority students were leapfrogged over more qualified applicants, but I’m sure it was a relatively small number. So, just to pick a number out of a hat, let’s say it was 25. In the view of the NAACP LDF and the University of Michigan and Bowen & Bok, and indeed most other preferentialists, since “only” 25 applicants were kept out of Indiana University that year because of their race, there really wasn’t very much discrimination at all.

But that’s wrong. All 330 of the better qualified applicants whose chances for admission were diminished because of their race suffered racial discrimination that year, even though not all 330 would have been admitted in the absence of racial preferences.

In order to see why this is true, we need to draw what Elise Boddie, the NAACP LDF attorney quoted above, ridiculed as “audacious parallels between [racial preferences] and the racist practices of universities during the era of de jure segregation.” Let us hypothesize that 330 blacks applied to the University of Alabama law school during the era of segregation and that, of course, they were all rejected. Now let us also assume, quite reasonably, that if there had been no segregation or racial discrimination of any kind, only 25 of them would have been accepted. Would that mean that the 305 who would not have been admitted even without discrimination did not have a valid claim to having suffered racial discrimination? Of course not.

As it happens, the number of whites and unpreferred minorities who are kept out of selective institutions because of their race is, as we’ve seen, quite substantial, but the numbers who suffer discrimination that results from employing racial preferences is far greater.

Say What? (21)

  1. Federal Dog April 1, 2006 at 7:05 am | | Reply

    “… as far as elite college admissions go (the hill on which most anti-affirmative action types choose to charge up) only 2% to 5% of total admissions are affected by Affirmative Action at all. In the case of hiring, promotion and government contracting, you see similar, if not smaller percentages.”

    Cobra, where did you get these figures? They certainly do not jibe with admissions and hiring that I have witnessed.

  2. Richard Nieporent April 1, 2006 at 9:25 am | | Reply

    This reminds me of the story of the company that laid off part of its workforce. The spokesman for the company stated that it was no big deal. Only 5% of the workforce had been let go. The response was that it is100% for the people being laid off.

  3. eddy April 1, 2006 at 11:56 am | | Reply

    John — In determining the number of people discriminated against, shouldn’t we use the number who would have been admitted ‘but for’ the discrimination rather than the raw number of applicants subjected to that discriminatory policy?

    While the actions of a preferential institution are arguably discriminatory towards all non-favored applicants, those non-favored who do get in as well as those who would surely fail even absent the preferential policy have far less legitimacy in claiming they were harmed by these policies.

    So when we produce a ‘body count’, we ought to use the number actually displaced rather than the number of people subject to that discriminatory policy. The PC-taliban would prefer to have people believe that imposing a modest disability upon all non-favored applicants is somehow a fair shouldering of a burden. As Richard pointed out above, those who are denied benefits due to this small disability suffer mightily, not minimully.

    Racial preferentialists are fond of publishing the effects of their preferences as group summaries to marginalize the impact on actual individuals. I don’t think we do our cause any favors by claiming victims who, while subject to distasteful preferences, suffer no tangible disability. Let’s count the dead and wounded, and not merely those who had bullets whiz by their heads.

    We need the public to understand that preferential policies are not reducing the number of victims of discrimination, they only change the demographics of these victims.

  4. John Rosenberg April 1, 2006 at 12:29 pm | | Reply

    In determining the number of people discriminated against, shouldn’t we use the number who would have been admitted ‘but for’ the discrimination rather than the raw number of applicants subjected to that discriminatory policy?

    Eddy – For reasons stated in the post, and others, I disagree, and in fact I don’t even regard this as a close question.

    People are discriminated against when they are treated unequally because of their race. An applicant does not, and should not, have to prove that he or she would have been accepted in the absence of a discriminatory policy, only that he or she was not allowed to compete on racially equal terms with other applicants.

    There are too many examples of this for me to cite, but here are two. First, from the summary of the Supreme Court’s holding in Gratz v. Bollinger, which invalidated the University of Michigan’s undergraduate admissions policy. (Mr. Hamacher was a co-plaintiff with Ms. Gratz.)

    The Court rejects Justice Stevens’ contention that, because Hamacher did not actually apply for admission as a transfer student, his future injury claim is at best conjectural or hypothetical rather than real and immediate. The “injury in fact” necessary to establish standing in this type of case is the denial of equal treatment resulting from the imposition of the barrier, not the ultimate inability to obtain the benefit.

    And then there’s one of my favorite cases, Connecticut v. Teal. An employer required a written test for promotion to supervisory positions. Black candidates disproportionately failed the test. To compensate, the employer disproportionately promoted black candidates (22.9 percent of the black candidates were promoted but only 13.5 percent of the white candidates) and argued that this “bottom line” shielded it from charges of discrimination.

    The Court disagreed, holding

    (a) Despite petitioners’ nondiscriminatory “bottom line,” respondents’ claim of disparate impact from the examination, a pass-fail barrier to employment opportunity, states a prima facie case of employment discrimination under 703(a)(2) of Title VII, which makes it an unlawful employment practice for an employer to “limit, segregate, or classify his employees” in any way which would deprive “any individual of employment opportunities” because of race, color, religion, sex, or national origin. To measure disparate impact only at the “bottom line” ignores the fact that Title VII guarantees these individual black respondents the opportunity to compete equally with white workers on the basis of job-related criteria….

    (c)The principal focus of 703(a)(2) is the protection of the individual employee, rather than the protection of the minority group as a whole. To suggest that the “bottom line” may be a defense to a claim of discrimination against an individual employee confuses unlawful discrimination with discriminatory intent. [Emphasis added]

    I could go on….

  5. eddy April 1, 2006 at 1:24 pm | | Reply

    John — I won’t dispute that there is a ‘wrong’ committed in merely applying discriminatory standards, but I believe this legal position is one more of practical rather than principled reasoning.

    If a plaintiff was required to establish actual injury, the defendant could focus their defense on the shortcomings of the plaintiff’s qualifications rather than the discriminatory policy itself. I think the courts feel compelled to find standing because while this litigant may not have been harmed, surely others sharing this same burden may have actually been harmed. That the courts need not wait for a litigant who possessed both the harm and the financial wherewithall to prosecute a case.

    I believe we need to change the presumption that a little disadvantage spread over lots of people is a relatively harmless antidote. We ought to show the face of those actually harmed and benefited by the policies. We can check on the batting average for successfully retarding those with actual white-priviledge, and our success at benefitting actual slave descendents.

    Since we need to win the hearts and minds of those who think with their heart and not their mind, I believe our poster child should be a veteran of actual and not just spiritual harm.

  6. eddy April 1, 2006 at 2:16 pm | | Reply

    I believe one of the best ways to demonstrate the folly of preferentialism is to accept their claim that ‘diversity’ is a virtue worth cheating to achieve. Agree that proportionate representation is the proper metric by which diversity is achieved. In order to be fair to all suspect classes, we need to also balance for gender, ethnicity, sexual orientation, religious orientations, etc. Now add whatever other categories that ‘diversity’ demands or entails.

    Now go ten years in the future and presume all institutions and businesses have achieved total demographic parity. They all possess a “Goodhousekeeping Seal of Diversity” which they can use to rebutt discrimination lawsuits.

    How do these institutions handle replacing their left-handed, red haired, transvestive Mormon employee? They can’t just post a “Janitor wanted” ad, they also need replacement ‘diversity’.

    Prospective janitorial applicants should feel that their opportunity for this job is narrower under this ‘diversity’ system than one built on indifference to demographics. The more scrupulous an institution is about balancing ‘diversity’, the less actual opportunites there are for individual applicants.

    I say, paint the world as they would have it, and we can better illustrate the folly of their ways. We need to expose this Ponzi scheme being promoted in the name of fairness.

  7. eddy April 1, 2006 at 2:48 pm | | Reply

    I believe we should make preferences more apparent and tangible by promoting something less ambitious than MCRI-type ventures. Promote “Truth in Discrimination” disclosures after any recitation of the EEOC pledge. Let people know that the promises in the EEOC pledge is an articulation of gross, and not net, rights. Make institutions who are ‘hot for diversity’ disclose their de facto retreat from the plain meaning of the EEOC pledge. Make them state the compelling state interest they are servicing. Make them demonstrate how narrowly tailored their preferences are. Make them tell us how many years they intend to practice this deviation. “As much as it takes and as long as it takes” wouldn’t be an acceptable answer.

    If we practice racial preferences without formally acknowledging the favoritism, we end up cheapening all the civil rights the EEOC pledge claims to protect.

    Perhaps think of this as another twelve-step program where the first step is admitting that we are powerless to control our desire for ‘diversity’.

  8. Hull April 3, 2006 at 4:05 pm | | Reply

    “To say that preferences cannot be discriminatory because the University of Michigan is still 80% white is to say that discrimination against individuals doesn’t count, until and unless it is massive enough to affect the statistical representation of the racial or ethnic group to which they are said to belong. Do “civil rights” groups really want to go there?”

    Civil rights groups should “go there” because the idea that racial preference condones discrimination against individuals(whites) for the benefit of many disadvantaged groups (blacks, latinos, the disabled, women, and yes, on occasion Asians) completely side-steps the history of the issue.

    As we know, the origins of affirmative action in the US began in the 60s with the civil rights movement and the actions of Presidents Kennedy, Johnson, Nixon, and the Warren and Burger Supreme Courts.

    (Congressional Research Service: History of Affirmative Action

    http://digital.library.unt.edu/govdocs/crs//data/2005/upl-meta-crs-7360/RS22256_2005Sep13.pdf?PHPSESSID=5d5d7fe0ec8998b04fc5e74b024f41d8)

    Congress, Courts, and the Executive have approved of and promoted preference as a tool to correct past disrimination and to help groups who have historically been disadvantaged. No reasonable person that I’ve heard yet disagrees with the Court’s stance that preference is acceptable under strict scrutiny (programs that address concrete acts of discrimination; narrowly tailored to meet such goals; and achieving compelling state interests).

    I don’t think anyone disagrees with the idea articulated above, that if there has been concrete discrimination then it is acceptable and advisable to correct that discrimination by showing preference for the previously injured. For example, if there was an official written policy at Outback Steak House not to hire Japanese people, no one would argue against a subsequent program to aggresively hire Japanese people at Outback. No reasonable person (or Court) would say that such a program is discriminatory against whites or blacks or whomever, because the history of Outback injured Japanese, not the other groups. In addition Outback (in this hypothetical) probably lacks Japanese workers due to their previous policy.

    The legal debate on affirmative action is only in reference to institutions who have not been shown to have concretely discriminated against minorities and other vulnerable populations.

    The current rhetoric of injury to the individual in the face of such programs is absent from case law, statutes, orders, and policies on this issue.

    Court arguments against affirmative action programs have addressed details of the questioned programs and context, but to my knowledge have never addressed injury to the non-participating member of a program (whites, Asians)balanced against those who participate (minorities). The reason that this argument has rarely (if ever) been seen in Court arguments is that it completely ignores the history and initial reasons for instituting these programs.

    As I’ve said before, we are not living on some island where the King decided to give preference to vulnerable populations on a whim. These programs exist as an answer to the problems caused by segregation and bigotry. They did not arise out of a desire to denigrate or harm whites and Asians. Nor do they imply the superiority of the beneficiaries (as racist segregations policies of the 60’s did).

    To claim that someone who is not vulnerable has been harmed by programs aimed at helping vulnerable people is (in this case) tautological. It is true that people who are not vulnerable will not receive the same benefits as people who are vulnerable. But is that unfair? No. Nor is it unfair that homeless shelters would bar access to a person that owns a home.

    Similarly, it is not considered robbery when a thief is compelled to return money to his victim.

    To sum up: racial preference IS allowed in some cases (strict scrutiny); the argument is over programs that have not been concretely discriminatory; And when you are not a part of a group who has been injured, you should not receive their benefits.

  9. Hull April 3, 2006 at 4:26 pm | | Reply

    One last point on the Thernstroms. I have read many of their articles and I find many of their points to be subjective and political.

    For example: In the short essay you (John) cite “Diversity Yes, Preference, No”, Mrs. Thernstrom states that:

    “Among applicants with SAT scores in the 1,200 to 1,249 range, only 19 percent of whites, but 60 percent of blacks, were admitted. Among those with scores between 1,250 and 1,299, the percentage of whites accepted was 24, while 75 percent of blacks gained entrance. A third of the white applicants with scores of 1,500 or better were turned down; not a single black applicant who had done that well was rejected. Bowen and Bok drew a picture of flagrant double standards—perhaps justifiable, but unmistakable”

    Perhaps justifiable? Abigail fails to mention that whites vastly outnumber blacks in number of applicants. In other words those numbers look a lot less inflammatory when 70 applicants are white and 10 applicants are black. So, that 19% vs 60% acceptance rate for 1200 range SATs would shake down to more than 13 whites and 6 blacks (for example). The fact that Abigail fails to mention the number of applicants after throwing out such an inflammatory statistic is telling to say the least.

    Also, the Thernstrom’s thesis that Blacks admitted to law schools under lower standards is somehow bad for them is laughable. Perhaps many Black people have a difficult time passing the bar; does that mena their time in law school was wasted? Do the Thernstroms think that people who don’t pass the bar the first few times (see JFK Jr.) suddenly dry up and blow away? Do they think it is impossible to find a job after not passing the bar? Points like the previous two I mentioned make it difficult for me to take them seriously.

  10. John Rosenberg April 3, 2006 at 4:49 pm | | Reply

    As we know, the origins of affirmative action in the US began in the 60s with the civil rights movement and the actions of Presidents Kennedy, Johnson, Nixon, and the Warren and Burger Supreme Courts.

    True, but as I’ve quoted here many times (even since you’ve been commenting, if I’m not mistaken), the affirmative action that was launched by Presidents Kennedy and Johnson in their executive orders on the subject both defined affirmative action in a way that, if it had been followed, would have precluded the use of racial preferences:

    The contractor will take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, creed, color, or national origin. (Kennedy, Exec. Order 10925, 6 March 1961))

    ….

    The contractor will take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, creed, color, or national origin. (Johnson, Exec. Order 11246, 28 Sept. 1965)

    Hull continues:

    Congress, Courts, and the Executive have approved of and promoted preference as a tool to correct past disrimination and to help groups who have historically been disadvantaged. No reasonable person that I’ve heard yet disagrees with the Court’s stance that preference is acceptable under strict scrutiny (programs that address concrete acts of discrimination; narrowly tailored to meet such goals; and achieving compelling state interests).

    I don’t think anyone disagrees with the idea articulated above, that if there has been concrete discrimination then it is acceptable and advisable to correct that discrimination by showing preference for the previously injured….

    Hull, if you’re telling the truth here, your circle or aquaintances or reading (or both) are quite limited, or your definition of “reasonable” coincides with your political position, i.e., no one who disagrees is reasonable.

    First, quite a few reasonable people disagree with using racial preferences even in the manner you favor. Of course you might regard the 4 Supreme Court Justices who dissented in Grutter to be unreasonable; that’s your privilege, but if so most people will think that your use of “reasonable” is just another way of your saying that you agree with someone.

    Now, if you’d said no reasonable person disagrees with “making whole” individual victims of discrimination, you’d have been on much firmer ground. But that’s not what you said. What you said is that no reasonable person disagrees with what in effect is group compensation, based on race, and that’s simply wrong, at least based on what most reasonable people mean by “reasonable.”

    Re the Thernstroms:

    Abigail fails to mention that whites vastly outnumber blacks in number of applicants. In other words those numbers look a lot less inflammatory when 70 applicants are white and 10 applicants are black.

    No, they look exactly the same, since she is speaking of percentages, not absolute numbers. You of course may, as you do, disagree with her, but switching from percentages to numbers doesn’t change anything.

    Also, the Thernstrom’s thesis that Blacks admitted to law schools under lower standards is somehow bad for them is laughable.

    You seem to be unfamiliar with the Richard Sander article in the Stanford Law Review on just this point and the extended discussion that it generated. Again, you may disagree with Sander — he has both critics and defenders — but no “reasonable” critic of Sander and his numbers regards his argument, which is a substantially extended version of the Thernstrom point you criticize here, as “laughable.” Why do you think it is that virtually none of the schools — undergraduate or professional — that trumpet their “diversity” numbers are willing to release their six-year graduation rates of all students?

  11. Hull April 4, 2006 at 9:36 am | | Reply

    John,

    The sentence after the excerpt you take from Executive Order 11246 states that:

    “The contractor will take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, color, religion, sex or national origin. Such action shall include, but not be limited to the following: employment, upgrading, demotion, or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. ”

    I believe that this is where the justification for affirmative action comes from. On this point, the report from the Congressional Research Service I linked to acknowledges:

    “Since the early 1960s, minority participation “goals” have also been integral to

    Executive Branch enforcement of minority hiring and employment standards on federally

    financed construction projects and in connection with other large federal contracts.

    Executive Order 11246, as presently administered by the Office of Federal Contract

    Compliance Programs, requires that all employers with 50 or more employees, and federal

    contracts in excess of $50,000, file written affirmative action plans with the government.”

    Also, during the Johnson Administration, the Labor Department Office of Federal Contract Compliance (OFCCP) started pre-award compliance for federal contracts over $1 million. The Office began with construction contractors, who were required to set goals and timetables under a regulation issued to implement the Order in 1968.

    http://womenshistory.about.com/library/etext/gov/bl_gov_aa_02.htm

    During the Nixon administration the “goals and timetables” plan was continued. Nixon stated:

    “A good job is as basic and important a civil right as a good education . . . I felt that the plan Shultz devised, which would require such [affirmative] action by law, was both necessary and right. We would not impose quotas, but would require federal contractors to show affirmative action’ to meet the goals of increasing minority employment.”

    My point is that affirmative action policy was not created independent of history. These policies did not come about in the 80s to hamstring and discriminate against white people. They came about as a direct answer to the racist policies of the 60s and earlier. As the article I linked to above states:

    “Neither this review nor the current debate over affirmative action occur in a historical vacuum.”

    The argument that these policies are discriminatory against whites ignores the fact that these policies came about to combat American aprtheid which has given whites an undue advantage since the inception of this country.

    Your comment that “quite a few people” disagree with the Court’s long affirmed precedent of allowing racial preference if it passes strict scrutiny contradicts your comment that: “if you’d said no reasonable person disagrees with “making whole” individual victims of discrimination, you’d have been on much firmer ground”.

    Racial preference under strict scrutiny does “make whole” individual vicitms of discrimination. Under strict scrutiny a complainant must show that discrimination actually/concretely occurred. That’s the injury. The affirmative action program (if there are several complainants) or hiring the lone complainant is “making the vicitim whole”. They were denied participation (injury) then allowed participation (whole).

    re: the Thernstroms; I am not a statistician, so I may be off base on this, but it seems to me that you must look at the actual number of applicants for the percentages to have any meaning. Yes, Black people are accepted at a higher percentage than Whites, but there are far less Blacks applying. So you’re taking a large percentage of a small number. While with Whites you are taking a small percentage of a much larger number. In other words if one lesbian eskimo (as another poster suggested) applies to your school and your school accepts them, then the school will have accepted 100% of lesbian eskimo applicants. Should we protest the overrepresentation of lesbian eskimos? No. In that case (as well as with Blacks) there is an interest in diversity and the applicant pool is small, so the lesbian eskimo receives a different level of consideration.

    I am indeed unfamiliar with the Sander article (unless I read it and forgot about it). I’ll check that out. Thanks for the tip.

  12. John Rosenberg April 4, 2006 at 10:58 am | | Reply

    The sentence after the excerpt you take from Executive Order 11246 states that:

    Such action shall include, but not be limited to the following: employment, upgrading, demotion, or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship

    I believe that this is where the justification for affirmative action comes from.

    Hull,

    The whole executive order is a justification for affirmative action, but it is as explicit as words can be that all “such action” is to be undertaken “without regard to [employees’] race, color, religion, sex or national origin.”

    You also state that “My point is that affirmative action policy was not created independent of history.” But I, as a former historian, would be the last to deny that the abandonment of the “without regard” principle was took place “independent of history” or in a “historical vacuum.” Nothing ever occurs in a “historical vacuum.” Where did you get the idea that I, or anyone, thinks that? I can cite as well as you each step in the history, beginning primarily under Nixon, where the “without regard” principle was jettisoned. My point is not that this took place outside of history but that liberals took a wrong turn with this abandonment of principle. That something happened in history, for reasons some people thought good, is no guarantee it was the right thing to do.

    You write:

    The argument that these policies are discriminatory against whites ignores the fact that these policies came about to combat American aprtheid which has given whites an undue advantage since the inception of this country.

    No, it doesn’t. You’ve got to get over the notion (a notion, I might add, that afflicts far too many liberals) that anyone who disagrees with you must be ignoring some obvious fact. I know perfectly well why these policies emerged, and I know that people who advocated them thought they were doing the right thing. That doesn’t mean that all knowledgeable, reasonable people must agree that the method they chose did not require racial discrimination or that such discrimination was wise or was justified by their good motives.

    You write:

    Racial preference under strict scrutiny does “make whole” individual vicitms of discrimination.Under strict scrutiny a complainant must show that discrimination actually/concretely occurred.

    No, that is simply wrong. Racial preferences in admissions and hiring are based on membership in a group (“membership” by virtue of skin color) that has suffered discrimination. Admissions preferences to blacks do not cure any past discrimination against those individual applicants. Individual, not groups, have rights. If an individual refused employment because of discrimination, giving him the job is part of a reasonable and just remedy. Giving a preference to a black who was not discriminated against in hiring because of the discrimination his “group” has been subject to is neither reasonable not fair. You are also wrong in asserting that strict scrutiny requires a showing of personal injury. Read the Grutter opinion. Victims of discrimination do not need any preference in order to be made whole.

    … it seems to me that you must look at the actual number of applicants for the percentages to have any meaning.

    Both the essence and the evidence of discrimination is treating groups according to different standards based on their race. The numbers (actual or percentages) merely show the result of the discrimination. Treating applicants to “a different level of consideration” based on their race is wrong, is often illegal, and should always be illegal.

  13. Hull April 4, 2006 at 1:09 pm | | Reply

    First Executive Order 11246:

    “The contractor will take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, color, religion, sex or national origin.”

    I am not familiar with the Court’s reading of this line, but I would argue that this statement says that a contractor will use affirmative action to employ applicants and DURING employment (i.e. after one has been hired) employees will be treated without regard to race, etc.

    History in a vacuum: The reason that I keep bringing this point up (and that the article I cited mentions it) is because the arguments of anti-affirmative actionists such as yourself universally exclude the reasoning and context behind the alleged discrimination against whites. By analogy, if I am compelled by a Court to pay you $50 some might argue that the Court’s order is unfair. Without the historical context of why the Court found it necessary to compel payment there is no way to determine whether the Court’s actions were just. Similarly, without the historical context behind affirmative action it seems like minorities are being given some unfair advantage without reason. I don’t think people on your side of the debate are ignoring this fact because they are oblivious. I think they ignore this fact (similar to the facts Abigail Thernstrom ignores about the number of applicants) to further their point and make a stronger argument. Yes, perhaps racial preference might seem unfair if you neglect to mention that it came about as a means of leveling the playing field. There would be no need to level the playing filed if it had been level in the first place.

    Strict Scrutiny:

    you said:

    “Admissions preferences to blacks do not cure any past discrimination against those individual applicants. Individual, not groups, have rights. If an individual refused employment because of discrimination, giving him the job is part of a reasonable and just remedy.”

    Yes and no, if that individual is part of a class (class action) of people who were denied employment or admission and they have concrete proof of such discrimination, then the organization accused of discrimination may under strict scrutiny institute a policy to aggressively hire people from that class regardless of whether an individual in that class suffered directly.

    For example, in NAACP v. Allen, (http://www.eeolawyers.com/cases/naacp.html) the Alabama Dept. of Public Safety was accused of a pervasive practice of excluding Blacks from employment. The Court said:

    “Plaintiffs have shown without contradiction that the defendants have engaged in a blatant and continuous pattern and practice of discrimination in hiring in the Alabama Department of Public Safety, both as to troopers and supporting personnel. In the thirty-seven-year history of the patrol there has never been a black trooper and the only Negroes ever employed by the department have been nonmerit system laborers. This unexplained and unexplainable discriminatory conduct by state officials is unquestionably a violation of the Fourteenth Amendment. . .

    Under such circumstances as exist in these cases, the courts have the authority and the duty not only to order an end to discriminatory practices, but also to correct and eliminate the present effects of past discrimination. . .

    Accordingly, it is the order, judgment and decree of this Court: . . .

    that the defendants be and they are each hereby enjoined from failing to hire and permanently employ after the probationary period, one Negro trooper for each white trooper hired until approximately twenty-five (25) percent of the Alabama state trooper force is comprised of Negroes.”

    In this case, Alabama was not required to only hire Blacks that were discriminated against directly. Alabama had to hire from the class of people that was discriminated against, Blacks, regradless of whether they individually suffered discrimination or not.

  14. John Rosenberg April 4, 2006 at 5:44 pm | | Reply

    Hull quotes Executive Order 11246 (could have quoted either Kennedy’s or Johnson’s; this language is the same) —

    The contractor will take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, color, religion, sex or national origin

    — and then says:

    I am not familiar with the Court’s reading of this line, but I would argue that this statement says that a contractor will use affirmative action to employ applicants and DURING employment (i.e. after one has been hired) employees will be treated without regard to race, etc.

    That is a a very idiosyncratic — and, I believe, unique — reading, a reading that in my opinion stretches the text beyond the breaking point. It never would have occurred to me (because I don’t think it has occurred before) that anyone could read these executive orders as saying anything other than that employers must take affirmative action to ensure that applicants for jobs and employees are treated without regard to their race. In short, I believe your reading is totally untenable.

    … the arguments of anti-affirmative actionists such as yourself universally exclude the reasoning and context behind the alleged discrimination against whites…. without the historical context behind affirmative action it seems like minorities are being given some unfair advantage without reason.

    There you go again: the only reason we disagree with you is that we “ignore facts,” etc. This is both rather insulting and increasingly tiresome. We don’t “exclude” anything; we just reject the notion that it is wise or fair to give preferences based on race as some sort of corrective to undo past preferences based on race. (Again, note that someone who has been discriminated against is given no racial preference when he is made whole by, for example, being given the job from which he was racially rejected.) I would never say preferences are supported “without reason”; what I say is that the reason isn’t persuasive. I’m not saying you’re a bad person with racist motives, etc. I am saying that your “cure” is just more of the disease.

    I’m glad you brought up NAACP v. Allen, since it captures your approach perfectly. Its “25%” solution is indeed a model of what preferentialists would like to impose on all institutions. As it happens, I’ve written something about that case, which you may want to look at here. While you’re at it, you may be interested in this post on making victims whole as well.

  15. Hull April 5, 2006 at 8:59 am | | Reply

    First, please accept my apology if my comments regarding ignoring historical context came off as insulting. That was not my intent.

    I came to the conclusion that anti-preference people either willfully or ignorantly ignore the history behind affirmative action because it is rarely mentioned and it is an important justification for preference.

    In addition, after reading the Grutter opinion and its dissents it is unclear to me how someone could argue that racial preference is always wrong. None of the opinions in that case disregard the concept of strict scrutiny, even Scalia, Kennedy, and Thomas. A part of the reasoning behind accepting strict scrutiny (aside from precedent) is that the history/context of events must be taken into account to come to a fair and just resolution of a dispute.

    As Justice O’Conner stated:

    “Not every decision influenced by race is equally objectionable, and strict scrutiny is designed to provide a framework for carefully examining the importance and the sincerity of the government’s reasons for using race in a particular context. Pp. 2337-2338″

    But, I see what your argument is now: You believe as you say in your post on NAACP v Allen:

    “The problem is that over time the goal of racial balance came for many liberals to supplant the goal of non-discrimination, which is why liberals hope and conservatives fear that Justice O’Connor’s hope in Grutter that racial preferences will not be needed 25 years from now (well, actually 23 years from now, but who’s counting?) was such an empty fig leaf covering her justification of continuing racial discrimination.”

    In this regard your argument is no different then my argument that Conservatives ignore context. You assume that liberals wish to supplant non-discrimination with racial balance. I assume that conservatives ignore history.

    Still, there is no explicit indication in Grutter that liberal wish to supplant non-discrimination. That said, I’m sure you can pull several specific examples of misguided liberals who have in fact pushed for racial balance. But, I can pull several examples of conservatives who ignore context or misunderstand that racial discrimination is permissible in some instances.

    In addition, I don’t think that I have argued that schools and workplaces must have some specific number of minorities. I have argued that diversity is important and that if a specific act of discrimination has occurred then that action should be righted. In Allen, the affirmative action program imposed by the Court was an answer to a specific case of discrimination (as opposed to righting the injury of slavery/segregation as a general wrong; although I’m not against that either).

    Unfortunately, John, your position that racial discrimination is completely impermissible does not square with the laws of this country and your assumption that liberals wish to supplant non-discrimination with racial balance is just that: an assumption.

  16. John Rosenberg April 5, 2006 at 11:53 am | | Reply

    First, please accept my apology if my comments regarding ignoring historical context came off as insulting. That was not my intent.

    Hull, your comments here have been uniformly mild-mannered and not hostile. I think I overreacted a bit. I wasn’t responding so much to you personally as to a style of argument that I encounter all the time — namely, that if you don’t agree with me you’re denying facts that all reasonable people can see. You did say a couple of thinks that ignited my response to that conceit, but your comments in general certainly do not.

    In this regard your argument is no different then my argument that Conservatives ignore context. You assume that liberals wish to supplant non-discrimination with racial balance. I assume that conservatives ignore history.

    I still beg to differ here. Most anti-preferentialists I know, and certainly I myself, do not “ignore” history. We simply interpret it differently from those who think past discrimination justifies present discrimination. Most preferentialists, on the other hand (Justice O’Connors comments or absence of comments notwithstanding), do in fact subordinate the principle of non-discrimination to other values, such as “diversity” or compensation or a response to prospective discrimination or whatever the current justification is.

    I have argued that diversity is important and that if a specific act of discrimination has occurred then that action should be righted.

    You’ll find very little disagreement with that here, and none from me, but this has absolutely nothing to do with preferential college admissions, for the reasons you yourself state (in Ala., the highway patrol had indeed excluded a class of people from employment; very few selective colleges have done in recent memory). And, as I’ve argued, the NAACP v. Allen solution is a horrible model to impose on every institution in America. (Although understandable at the time, I don’t even think it was the best solution for the Ala. highway patrol.)

    Unfortunately, John, your position that racial discrimination is completely impermissible does not square with the laws of this country….

    Here, I agree. It is unfortunate, and should be corrected as soon as possible!

    For what it’s worth: I don’t object to “strict scrutiny” in principle, only to the way that it has been applied. Moreover, there are certain situations where even I believe it is legitimate to “take race into account.” I don’t think, for example, that it is necessary to be colorblind in selecting a policeman to place undercover in a black gang.

  17. PavelRicardo June 19, 2009 at 10:00 pm | | Reply

    First of all, I’m glad someone out there has the time to read all this stuff.

    The problem with “Affirmative Action” is that all people of all races and creeds use it. Therefore, the idea is to force it for certain groups that don’t seem to have to force of will to claim it for themselves. In other words, if I am fortunate to be born to elitist parents (aka we have some money to invest in our children’s education), then I will certainly benefit from the affirmative actions of my parents to enroll me in good private schools, or at least to get me a good tutor if I need one. This indeed gives me an advantage over the poor child whose parents have not the means to such educational advantages. However, affirmative action does me no good if I am lazy or dull, unless my parents were to have an “inside” to some prestigious institution that would allow me entrance and pad my academic portfolio along the way. That, indeed would not be fair to students with better abilities or those who have put in the hard work to make the grade.

    It has become the case now that institutions are not allow to practice such blatantly unscrupulous affirmative action, unless one is a preferred minority. The problem is that those who would have skated to an ill-gotten degree in the old system of affirmative action would end up buried in some nepotistic job of title within the confines of his/her own kind and not really allowed to hurt the public, or would have been systematically weeded out in the natural selective employment process. Under the new system of Affirmative Action, the system must protect and promote such dullards up each step of the ladder. So we all must pay for this new system in every aspect of life with reduced efficiency and downright incompetency.

    While I have some empathy for people of lesser means who must struggle to advance without a support system, is not the true objective be to support and encourage these individuals to make the grade each step of the way rather than absolving them of such responsibility at the end? And is it not true that many millions of people in this country have devised other ways to acheive their goals and even surpass wildest expectations without having to be coddled by the US Government?

    My parents were vigilant in seeing to my education. Yet they did it all the while living under the poverty line. I have a BA from a very prestigious college (one with the highest rated academic standards but small and conveniently priced), and a Master’s to boot. There is no hurdle that can’t be overcome in one way or another. And there is no accomplishment that feels as good as overcoming the odds. My true pity is for those who will never be sure that they didn’t get to where they are because someone along the line cheated to get them there. There can then only be two types of emotions–shame or denial. Neither one of them plays very well.

  18. [...] did not injure many whites (or presumably Asians or other non-preferred minorities). As I quoted here, from what was then available on a University of Michigan web site: Q: Does the University’s [...]

  19. Theodore Shaw Responds, And A Response February 27, 2012 at 11:10 pm |

    [...] have to be in order for it to be wrong? I’ve dealt with this argument before, at length, here, here, and here. As it happens, the first of those posts was in response to an [...]

  20. [...] (rather closely, I think) at the University of Michgan’s use of this argument here1, here2, and here3, from which the following comes: The following is from a Q&A re University of Michigan [...]

  21. The Contradictions Of Sonia Sotomayor April 24, 2014 at 10:53 am |

    […] fails to “comprehend” that affirmative action, by whatever name, means many individuals are admitted and others rejected solely because of their […]

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