Justice O’Connor’s “Pipe Dream”

Scott Jaschik of Inside Higher Ed has another article reporting yet another study suggesting (to the authors and some readers) that “Justice O’Connor’s Deadline” (Jaschik’s title) in Grutter (many readers of her opinion view her mention of an outer limit of 25 more years for racial preferences as more a hope than a command) “may,” as Jaschik put it, “be a pipe dream.”

But first, before looking at the new study, a few words about O’Connor’s deadline/pipe dream. After expressing her confidence that the University of Michigan law school conscientiously performed “individualized inquiry into the possible diversity contributions of all applicants,” Justice O’Credulous wrote:

We are mindful, however, that “[a] core purpose of the Fourteenth Amendment was to do away with all governmentally imposed discrimination based on race.” Palmore v. Sidoti, 466 U.S. 429, 432 (1984). Accordingly, race-conscious admissions policies must be limited in time. This requirement reflects that racial classifications, however compelling their goals, are potentially so dangerous that they may be employed no more broadly than the interest demands. Enshrining a permanent justification for racial preferences would offend this fundamental equal protection principle. We see no reason to exempt race-conscious admissions programs from the requirement that all governmental use of race must have a logical end point. The Law School, too, concedes that all “race-conscious programs must have reasonable durational limits.” Brief for Respondents Bollinger et al. 32.

….

The requirement that all race-conscious admissions programs have a termination point “assure[s] all citizens that the deviation from the norm of equal treatment of all racial and ethnic groups is a temporary matter, a measure taken in the service of the goal of equality itself.” Richmond v. J. A. Croson Co., 488 U.S., at 510 (plurality opinion); see also Nathanson & Bartnik, The Constitutionality of Preferential Treatment for Minority Applicants to Professional Schools, 58 Chicago Bar Rec. 282, 293 (May—June 1977) (“It would be a sad day indeed, were America to become a quota-ridden society, with each identifiable minority assigned proportional representation in every desirable walk of life. But that is not the rationale for programs of preferential treatment; the acid test of their justification will be their efficacy in eliminating the need for any racial or ethnic preferences at all”).

Continuing her credulity, she noted that

We take the Law School at its word that it would “like nothing better than to find a race-neutral admissions formula” and will terminate its race-conscious admissions program as soon as practicable. See Brief for Respondents Bollinger et al. 34; Bakke, supra, at 317—318 (opinion of Powell, J.) (presuming good faith of university officials in the absence of a showing to the contrary). It has been 25 years since Justice Powell first approved the use of race to further an interest in student body diversity in the context of public higher education. Since that time, the number of minority applicants with high grades and test scores has indeed increased. See Tr. of Oral Arg. 43. We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.

Well, yes. It has been “a sad day,” made sadder by Justice O’Credulous’s allowing racial preferences to continue even though she acknowledged that a “core purpose” of the Fourteenth Amendment “was to do away with all governmentally imposed discrimination based on race,” a purpose that even she recognized embodied a “fundamental equal protection principle.”

“Core purpose”? “Fundamental equal protection principle”? Yeah, right. This opinion has all of the moral grandeur of, say, one holding that the internment of Japanese Americans is horrible and looking forward to the day, after the war ends, when they can be released or another hypothetical one holding that, yes, slavery is a great evil that offends our “fundamental principle” that all men are created equal and looking forward to the day, some time in the future, when the labor of blacks was not so essential and they could be freed.

Moving on, now, to the “pipedream” study:

Two economists at Princeton University and one at the University of Virginia collaborated on an analysis that examined the rates at which black incomes are growing and are projected to grow. Then they looked at the patterns in which increases in black income levels translate into test score increases of the sort needed for admission to top colleges. The scholars’ data show that even 25 years after the O’Connor ruling, and assuming significant gains in black income, the abandonment of affirmative action in admissions would lead to a huge drop in black enrollments at top colleges. The gains in black incomes and academic performance just aren’t fast enough to meet O’Connor’s deadline.

As I’ve indicated, I don’t believe that data of the sort these authors provide is relevant (or at least not determinative) to the question of whether state discrimination on the basis of race violates a “core purpose” of the Fourteenth Amendment and thus the “fundamental equal protection” rights of individuals. But putting that reservation aside, I’m also not convinced that the data as presented support their, or Jaschik’s, conclusion.

First, three of the four categories of selective schools considered, since they are all private, are irrelevant to the Grutter issue, which only concerned public institutions. Moreover, the fourth category, “Public Universities,” the least selective, contained only two institutions, Penn State and the University of Virginia. But Virginia is highly selective, especially for out of state students, and because of its selectivity, engages in much more extensive and far-reaching racial preferences in admissions than nearly all other public universities, making it much more similar to the private schools in the other three categories than to Penn State.

According to the authors, blacks currently make up 12% of the black and white students at these two schools. If instead those schools had not employed racial preferences, they claim, the percentage of black students would today be 5%. Taking into account projected increases in black income, and the continuing increases in test scores, etc., associated with that income, the authors project that in 2025 the black percentage at UVa and Penn State would be 9%.

Call me either math or morality challenged, but to me the difference between the 9% that would result from honoring our “fundamental equal protection principle” and the 12% that now results from violating it hardly seems worth continuing the violation.

UPDATE [20 September]

The Cavalier Daily, the student newspaper at the University of Virginia, has an article on the above study that reaches a conclusion, apparently supported by quotes from one of the authors of the study, that runs counter to the summary of the study on which my discussion above was based. This discrepancy prompted me to send the following to Prof. Jesse Rothstein at Princeton, the quoted author:

Dear Professor Rothstein:

I read about your new affirmative action study at the Inside Higher Ed site, and discussed it on my blog, here:

http://www.discriminations.us/2006/09/justice_oconnors_pipe_dream.html

I was thus suprised to see you quoted in yesterday’s Cavalier Daily, the University of Virginia student newspaper, stating that 

if affirmative action were eliminated in 25 years, colleges and universities would have 10 to 40 percent fewer black students, depending on “how optimistic your projection is,” Rothstein said.

If affirmative action were to be eliminated today, the number of black students would fall by a half to two-thirds, Rothstein added.

I have not read your actual study, only the report mentioned above, but from that report and from the table included in it I definitely got the impression that your study dealt primarily with selective colleges. Even your fourth category, public universities, contained the University of Virginia, a highly selective institution, as one of only two schools. Since most state universities and other public institutions are not very selective, I suspect that the Cavalier Daily writer misinterpreted what you said. In California and Washington state, for example, it is certainly not true that the number of black students attending college declined “by a half to two thirds” when racial preferences were barred.

I’d appreciate your comment on this, as well as on your decision to study UVa as one of only two public universities. It seems to me that it is so much more selective than nearly all other public universities — and for that reason its racial preferences are much more extensive — that its inclusion tilts the results toward the conclusion you’ve reached.

Best wishes,

John Rosenberg

I will add another UPDATE if and when Prof. Rothstein replies.

UPDATE II

Professor Rothstein has now replied, and most impressively. I reprint below, with permission, his comments (and mine).

Dear Mr. Rosenberg,

Thank you for contacting me to clarify the quotation.

You are correct that our study deals exclusively with selective colleges and universities. I was careful to emphasize this in my conversation with the Cavalier Daily reporter, but it seems–from your quotation; I haven’t seen the article itself–that this did not make it into her article. Affirmative action in admissions is only relevant at colleges with selective admissions, while most students attend unselective colleges. To the extent that students admitted to selective colleges would otherwise attend unselective colleges, affirmative action in admissions cannot have any effect on the number of black students who attend college.

My co-authors and I think that the number of black students attending selective colleges is itself an important outcome, and I read Justice O’Connor to take this position as well. Our study is about the effect of affirmative action on this outcome.

We would have liked to include a broader spectrum of public universities in our study, of course, but because we relied on data collected for another study, we were limited to the colleges that participated in that study. There were only four public universities included in the data: Penn State, UVA, UCLA, and the University of Illinois. We excluded Illinois because the vast majority of its applicants submit ACT scores rather than SAT scores, which made it impossible to apply our methodology there, and we excluded UCLA because it did not use affirmative action in the year for which we had data. Our main focus is on private colleges and universities, though we also report results for the Penn State-UVA pair of public universities. Clearly, these results can only be generalized to other public universities with roughly similar applicant pools and admissions policies.

I would encourage you to read the full study if you are interested. The Inside Higher Ed article is based on a chapter in a forthcoming book, “College Access: Opportunity or Privilege.” That chapter, in turn, is based on an article that is forthcoming in the American Law and Economics Review. I believe that you can download that article at the following link:

http://aler.oxfordjournals.org/cgi/reprint/ahl004v2

Incidentally, that article also includes an analysis of “class-based affirmative action.” We conclude that it is not now an effective substitute for race-based affirmative action–in the sense that the black share of admissions would fall substantially if the latter were replaced by the former–and that it will become even less effective at achieving racial diversity as black income levels rise in the future.

I hope that this answers your questions.

Best,

Jesse Rothstein

Assistant Professor of Economics and Public Affairs

Princeton University

And shortly thereafter:

Dear Mr. Rosenberg:

One quick follow-up note. I’ve just read the Cavalier Daily article. I think the result of our study is reasonably clear in the article, and in context I don’t think the article justifies your interpretation of it. You quote from two sentences of the article in your e-mail to me. Two paragraphs earlier, however, I am (correctly) quoted as “What we concluded [is that] if your goal is to maintain current levels of black enrollment at selective colleges, you’ll still need it 25 years for now.” This, I think, makes clear that the statement a bit later pertains to selective colleges.

Best,

Jesse Rothstein

To both of which I replied:

Dear Prof. Rothstein,

Thanks very much for your very thorough and helpful reply to my inquiry, and for this follow-up note. The obvious accuracy of the first quote from you, to which you refer in this follow-up, is what makes the misquote/misinterpretation that follows so glaring. I’m sure anyone who has read your articles, the study itself, or even the report in Inside Higher Ed would know (or at least strongly suspect, as I did) that you had not argued that ending racial preferences would reduce the number of black college students by a half to two thirds, and it is thus unfortunate that the Cavalier Daily article got that wrong. There is enough misinformation about affirmative action already without sloppy journalists (even student journalists) adding to it.

Incidentally, I agree with you — indeed, it seems almost a truism — that if your goal is to have more blacks at selective colleges than would be there if all students were evaluated by neutral, colorblind criteria, there is no substitute for racial preferences in admission. Where it appears that we disagree is whether that goal is compelling enough to justify compromising the “without regard” equal protection principle in order to achieve it.

If you have no objection, I would very much like to append your email replies to me — both of them — to my blog post.

Thanks again for the courtesy and helpfulness of your replies.

Best wishes,

John Rosenberg

To which Prof. Rothstein replied:

Dear Mr. Rosenberg,

Feel free to post my e-mails on your blog.

As it happens, I do support the use of affirmative action preferences at selective public colleges. But I do want to emphasize: My view on the policy, my interpretation of the equal protection clause, and my assessment of the proper goal of admissions policy is not really relevant to the study at hand. O’Connor made what I took to be a factual claim in her opinion, and the purpose of our article is to ask what one would have to believe in order to find her projection plausible. Our analysis is valid, I would argue (and I think you would agree), whether or not one thinks that this factual claim should be at all relevant to either the legal or the policy question.

Best,

Jesse Rothstein

To which I have replied:

I look forward to reading the study, chapter, etc. Not having read them yet, the only problem I have with your analysis — it’s the one I mentioned before — is that I believe that including the University of Virginia as one of only two public colleges (the only category affected by Grutter), because it is so unrepresentatively selective, leads to an overstatement of the percentage of blacks who would be excluded if/when racial preferences are abandoned. Or, to be more precise, since you no doubt don’t engage in the overstatement yourselves, leads most readers to assume that abandoning racial preferences would have a more dramatic effect on the whole category of public colleges than it in fact would.

Let me add, however, that I do not mean to imply that you are intentionally creating a misapprehension because of your own policy preferences, and I apologize if I left that impression earlier.

As for Justice O’Connor, I’m still not sure whether her 25 year reference was a factual claim, a hope, or a command. In any event I take heart (in a way I suspect you do not) in her rather forceful assertion that “all governmental use of race must have a logical end point.” Of course, in my view the “core purpose of the Fourteenth Amendment” and its “fundamental equal protection principle” to which Justice O’Connor so inconsequentially refers (not to mention Title VI, Title VII, etc.) should preclude “governmental use of race” from even having a starting point. But I do certainly agree that such questions are outside the bounds of your study.

Best wishes,

John Rosenberg

UPDATE [22 September]

Now Justice O’Credulous has abandoned her own “deadline.” See my discussion here.