Discriminations

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.

Posted by John Rosenberg at 1:28 AM | Permalink | Say What? (17) | TrackBacks (0)

For most of its recent history — for virtually all of its 20th Century history — perhaps the two most fundamental, core commitments of American liberalism were its devotion to free speech and its determined opposition to racial discrimination.

Notice I said “were” rather than “have been,” because unfortunately both of those twin, identifying principles have been largely discarded. I was prompted, again (I’ve been here before), to this sad conclusion by some typically thoughtful, and provocative, comments in George Will’s column yesterday:

For several decades in America, the aim of much of the jurisprudential thought about the First Amendment’s free-speech provision has been to justify contracting its protections. Freedom of speech is increasingly “balanced” against “competing values.” As a result, it is whittled down, often by seemingly innocuous increments, to a minor constitutional afterthought.

On campuses, speech codes have abridged the right of free expression to protect the right -- for such it has become -- of certain preferred groups to not be offended. The NCAA is truncating the right of some schools to express their identity using mascots deemed “insensitive” to the feelings of this or that grievance group. Campaign finance laws ration the amount and control the timing and content of political speech. The right to free political speech is now “balanced” against society’s interest in leveling the political playing field, or elevating the tone of civic discourse, or enabling politicians to spend less time soliciting contributions, or allowing candidates to control the content of their campaigns, or dispelling the “appearance” of corruption, etc.

To protect the fragile flower of womanhood, a judge has ruled that use of gender-based terms such as “foreman” or “draftsman” could create a “hostile environment” and hence constitute sexual harassment. To improve all of us, people with various agendas are itching to get government to regulate speech of this or that sort.

None of this, of course, is exactly news. These policies have been discussed here (for example, here), analyzed in books and articles, etc., for quite a while now. What struck me here, however, was not the familiar litany of transgressions but the first sentence, on the scholarly attempt to limit the First Amendment’s protections — and what that attempt says about the current state of American liberalism.

Indeed, I think Will’s statement could, and thus should, have been even stronger. For the past generation the best and brightest liberal scholars — especially but not limited to those teaching in law schools — have been hard at work creating, developing, and refining highly sophisticated theories to justify restrictions on speech (see, for example, books by Owen Fiss at Yale and Cass Sunstein at Chicago) and to reduce or eliminate restrictions on the ability of governments and private organizations to distribute burdens and benefits based on race.

In short, where liberalism was once all but defined by its support for free speech and its opposition to racial discrimination, the thrust of liberal scholarship for the past generation has been to tear down the wall that protects speech from government regulation and to build up the defenses that protect official racial preferences from the sorts of arguments liberals used to make, such as the argument that individuals should be treated “without regard” to race, creed, or color.

Aside from the merits of any particular restriction on speech or any particular protection of racial preferences, what is now left of liberalism as a coherent political philosophy?

Not much.

ADDENDUM

Because the “without regard” principle is such a fundamental, widely recognized core value, however, one substantial component of the residue of modern liberalism is, not to mince words, hypocrisy. Take a look, for example, at the written anti-discrimination policy of virtually any selective university that, in order to promote “diversity,” gives racial preferences in admissions and hiring. You will almost certainly find a stated devotion to the “without regard” principle, even though that principle is routinely flouted as a matter of university policy.

A perfect but not by any means unique example of this can be found at the University of Pennsylvania, discussed at some length here. Its Policy of Equal Opportunity, Affirmative Action and Nondiscrimination states the following:

Penn adheres to a policy that prohibits discrimination against individuals on the following protected-class bases: race, color, sex (except where sex is a bona fide occupational qualification), sexual orientation, religion, creed, national or ethnic origin, age (except where age is a bona fide occupational qualification), disability (and those associated with persons with disabilities), or status as a special disabled, Vietnam era veteran or other eligible veteran.
....
Penn is committed to ensuring that all academic programs (except where age or sex are bona fide occupational qualifications), including social and recreational programs, and services are administered without regard to an individual’s protected-class status.

Penn is also committed to ensuring that its personnel and other employment decisions are made without regard to an individual’s protected-class status. [Emphasis added]

As I wrote in the earlier post linked above,

It would be hard to find better statements of fealty to the fundamental principle that individuals should be treated “without regard” to their race, sex, ethnicity, or religion, but it would be equally hard to find evidence that Penn actually adheres to this policy in practice.

Not only does Penn ignore its own policy in practice, but it proudly announces that it does so. Thus there were two separate Penn briefs supporting the University of Michigan’s use of race in admissions, and Penn itself, as Lee Stetson, the director of admissions told the Philadelphia Inquirer in 1999, practices race conscious admissions. “We continue to be committed to affirmative action in admissions,” he said, “what we prefer to call being conscious of the background the student comes from.”

It is impossible, of course, to practice race-conscious admissions while remaining faithful to the official policy that requires all university decisions to be made “without regard” to race.
....
Let me also add that one does not have to be a Philadelphia lawyer —

Philadelphia Lawyer: A lawyer of great ability, especially one expert in the exploitation of legal technicalities .... A shrewd or unscrupulous lawyer.

— to argue that race preferences are good and wise and even a compelling governmental interest. Many decent and reasonable people believe that, some of whom used to be (and one or two still are) my friends. But even the battalions of Ivy League Philadelphia Lawyers at Penn cannot pound the square peg of “race conscious” into the round hole of “without regard” to race.

ADDENDUM II

At the risk of letting these tails (sick) of hypocrisy wag the dog I was trying to tell of the degradation of American liberalism, I must add another tail that has just been revealed.

I have argued here too many times to cite that opponents of the Michigan Civil Rights Initiative — Democrats, university administrators, labor unions, and their thugs in BAMN — have tried everything they can think of, and more, to keep MCRI off the November 2006 ballot, so far to no avail. Recently they have stooped to arguing that MCRI canvassers committed fraud in allegedly making the true statement to some petition-signers that MCRI, which would outlaw governmental racial preferences, is a civil rights measure. (See, for example, here.) Now the ACLU has jumped into this muck.

It has joined BAMN’s appeal to the Michigan Supreme Court in arguing that this “fraud” should prevent the citizens of Michigan from having an opportunity to decide whether the state should continue to be allowed to distribute burdens and benefits based on race. In fact, the ACLU’s amicus brief even echoes BAMN’s offensive, condescending racial paternalism by asserting (according to the ACLU Press Release) “that petition circulators approached unwitting minorities” and made fraudulent statements about the nature and intent of the MCRI petition. [Emphasis added]

Does the ACLU think that all minorities are “unwitting,” or only the ones who signed a petition that would outlaw racial preferences? Does it not care if a similar fraud was perpetrated on white or Asian petition signers? Oh, never mind.

But let us not be so quick to dismiss another striking aspect of this ACLU brief: the fact that the ACLU took a diametrically opposed position on the regulation of signature gatherers only a year and a half ago, in a brief it filed with the Court of Appeals for the District of Columbia in Citizens Committee for the DC Video Lottery v District of Columbia Board of Elections and Ethics (No. 04-AA-957). Here are a few telling excerpts:

In arrogating to itself the power to disqualify the otherwise-valid signatures of thousands of registered District of Columbia voters because of allegedly false or misleading statements made to some unknown percentage of them in the course of persuading them to sign initiative petitions, the Board of Elections has asserted the right to regulate political speech for truth and accuracy. Yet “there is practically universal agreement” that the core purpose of the First Amendment “was to protect the free discussion of governmental affairs” from government regulation. Mills v. Alabama, 384 U.S. 214, 218 (1966)
....
The Board’s action in rejecting 6,592 otherwise-valid signatures because it found that the political speech to which some of them may have been exposed was false and misleading violated the Constitution. Face-to-face speech between one citizen and another about a ballot measure is “core political speech” entitled to maximum protection under the First Amendment.
....
As the Supreme Court has noted, “[t]he circulation of an initiative petition of necessity involves both the expression of a desire for political change and a discussion of the merits of the proposed change. . . . This will in almost every case involve an explanation of the nature of the proposal and why its advocates support it. Thus, the circulation of a petition involves the type of interactive communication concerning political change that is appropriately described as ‘core political speech.’” Meyer v. Grant, 486 U.S. 414, 421-22 (1988). Accordingly, such communications are at the “zenith” of First Amendment protection. Id. at 425.
....
... the voters who sign initiative petitions “are acting in the capacity of legislators. They are members of the largest legislative body in the state,” and are to be treated as responsible actors.
....
To put the Supreme Court’s teachings in the vernacular, in the arena of political speech the cure of government regulation for truth or falsity is worse than the disease of misinformation.

If the ACLU can’t be counted on to defend what it itself recently argued was the “core political speech” involved in gathering initiative signatures, what is it good for? [Thanks to Jennifer Gratz, director of the MCRI campaign, for alerting me to the ACLU’s change of position.]

UPDATE [2/28]

See Chetly Zarko’s comment below and his extensive excerpts from (and thoughtful analysis of) the ACLU briefs on his site, here.

Posted by John Rosenberg at 7:57 PM | Permalink | Say What? (49) | TrackBacks (0)

One of the most corrosive effects of slavery, segregation, and racial discrimination was the hypocrisy they required of those who practiced or benefitted from them while still professing a commitment to the principle of equality. The most famous example of this glaring inconsistency is, of course, the slave-owing author of the Declaration of Independence, but lesser versions of his hypocrisy were a staple of American, particularly Southern, life for generation upon generation.

Gunnar Myrdal’s 1944 classic An American Dilemma chronicled the tension caused by this hypocrisy better than anyone before or since, and he predicted, accurately as it turned out, that the power of what he called “the American creed,” the belief that individuals should be judged “without regard” to race, religion, or national origin, would eventually discredit and undermine the discriminatory practices that contradicted it.

Myrdal did not foresee, however, the emergence of a new set of discriminatory practices marching under the banner of “diversity” that would become so pervasive that they in turn would threaten to discredit and undermine the very creed that ended segregation and enshrined the fundamental principle of non-discrimination into law. The conflict over preferences in which we are now engaged, in short, will determine whether the principle of non-discrimination is so deeply embedded in our core values that it will eventually overthrow the regime of racial preference, or whether the practice of preference has itself become so entrenched in American life that it will succeed in substituting a new, multicultural principle of proportional representation in place of the old “without regard” creed.

My sense, based on survey and polling data and the few votes that have been taken (plus a large dollop of unsupported hope), is that a substantial majority of Americans still adhere to the “without regard” principle, but that that principle has been largely rejected at the upper reaches of our society — in higher education, corporations, large media, and in the leadership rungs of the Democratic party. At the moment the outcome of the ongoing conflict is too close to call.

Matthew Arnold (I think) (No, a reader points out it was Francois Duc de la Rochefoucauld) defined hypocrisy as the tribute vice pays to virtue, but it is also the tribute paid to a widely shared principle by those who routinely violate it in practice. Today the epicenter of this new hypocrisy can be found in the university.

Just about any university, but the more selective and elite the more blatant the hypocrisy is likely to be. Take, for example, the University of Pennsylvania. Here are the key passages of its Policy of Equal Opportunity, Affirmative Action and Nondiscrimination:

Penn adheres to a policy that prohibits discrimination against individuals on the following protected-class bases: race, color, sex (except where sex is a bona fide occupational qualification), sexual orientation, religion, creed, national or ethnic origin, age (except where age is a bona fide occupational qualification), disability (and those associated with persons with disabilities), or status as a special disabled, Vietnam era veteran or other eligible veteran.
....
Penn is committed to ensuring that all academic programs (except where age or sex are bona fide occupational qualifications), including social and recreational programs, and services are administered without regard to an individual's protected-class status.

Penn is also committed to ensuring that its personnel and other employment decisions are made without regard to an individual's protected-class status. [Emphasis added]

Penn not only affirms its commitment to the nondiscrimination principle but also affirms, through the mission statement of its Office of Affirmative Action and Equal Opportunity Programs, that in its activities

[t]he University of Pennsylvania does not discriminate on the basis of race, sex, sexual orientation, gender identity, religion, color, national or ethnic origin, age, disability, or status as a Vietnam Era Veteran or disabled veteran in the administration of educational policies, programs or activities; admissions policies; scholarship and loan awards; athletic, or other University administered programs or employment

It would be hard to find better statements of fealty to the fundamental principle that individuals should be treated “without regard” to their race, sex, ethnicity, or religion, but it would be equally hard to find evidence that Penn actually adheres to this policy in practice.

Not only does Penn ignore its own policy in practice, but it proudly announces that it does so. Thus there were two separate Penn briefs supporting the University of Michigan’s use of race in admissions, and Penn itself, as Lee Stetson, the director of admissions told the Philadelphia Inquirer in 1999, practices race conscious admissions. “We continue to be committed to affirmative action in admissions,” he said, “what we prefer to call being conscious of the background the student comes from.”

It is impossible, of course, to practice race-conscious admissions while remaining faithful to the official policy that requires all university decisions to be made “without regard” to race.

Let me hasten to add, however, that in accusing Penn (and similar institutions) of hypocrisy I am not making a legal argument. I am all too well aware that in the hands of a willful Supreme Court the meaning of the 14th Amendment’s “equal protection of the laws” is almost limitlessly elastic, and that the Supremes have (mistakenly, in my view) declared that the perfectly clear language of Title VI (of the Civil Rights Act) prohibiting federal funds to institutions that discriminate is redundant because it means no more or less than what “equal protection” means, which is whatever the Court says it means.

Still, the fact that, alas, Penn may well be acting under the color of law when it violates its own stated policy and principle does not shield it from the charge of hypocrisy. Dropping its pretense of promising to treat people “without regard” to their race, ethnicity, etc., is the only way to do that.

Let me also add that one does not have to be a Philadelphia lawyer —

Philadelphia Lawyer: A lawyer of great ability, especially one expert in the exploitation of legal technicalities .... A shrewd or unscrupulous lawyer.

— to argue that race preferences are good and wise and even a compelling governmental interest. Many decent and reasonable people believe that, some of whom used to be (and one or two still are) my friends. But even the battalions of Ivy League Philadelphia Lawyers at Penn cannot pound the square peg of “race conscious” into the round hole of “without regard” to race.

Penn’s violation of its own “without regard” policy is bad enough, but it has actually gone well beyond “taking race (and sex, etc.) into account.” As we saw here over a year ago, and as Erin O’Connor has amply documented (here, here, and here), the president and provost at Penn have promised to provide “incentives for departments to hire and promote women while creating disincentives for them to hire and promote men.” Penn’s policy on “gender equity” indicates that this promise has been kept.

Thus Penn not only violates its stated “without regard” policy with its “race conscious” admissions, it actually rewards departments that violate it and punishes those that don’t.

Given Penn’s behavior, it’s interesting that its formal policies haven’t been revised. I suppose we should take some small solace from the fact that even people and institutions who don’t believe in the “without regard” principle are reluctant to admit it. That’s the “tribute” their discriminatory behavior pays to their abandoned principle of non-discrimination.

Posted by John Rosenberg at 5:28 PM | Permalink | Say What? (8) | TrackBacks (2)

In the immediately preceding post I began my discussion of discrimination by the numbers by quoting from a "Q&A re University of Michigan Admissions Policies" provided by Michigan on its web site of legal materials regarding its affirmative action cases before the Supreme Court.

Because I first had to check with daughter Jessie about the meaning of "probability" in this context (well, I told you I was no arithmetician), I did not quote the second paragraph of Michigan's "A," which follows. (The "Q," recall, was "Does the University's consideration of race hurt a white student's chances of getting into the University?").

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.

First, note (to repeat my argument from the previous post), the question of whether racial preferences hurt a white student's chances of acceptance is not at all the same as asking whether racial preferences are racial discrimination, and the degree of impact on a white's students chances is not the measure of how much discrimination is involved.

Second, before taking a closer look at the Bowen/Bok argument that preferences have a trivial impact on a white student's chances, I should caution you against assuming that their numbers are correct. Two careful students of this issue, Stephan and Abigail Thernstrom, argue convincingly that they are not in a long review essay in the June 1999 UCLA Law Review.

Bowen and Bok minimize the magnitude of racial preferences at the highly selective schools. At the same time, however, they stress the calamitous reductions in minority enrollments that would result from a race-blind process. The two arguments are simply incompatible.
[....]
These dire enrollment estimates are of little relevance to the current debate, however, because they depend on a peculiar and indefensible definition of a "race-neutral" policy as one that admits students purely on the basis of their standardized test scores. No proponent of race-neutral or color-blind admissions advocates this. Neither the Hopwood decision nor Proposition 209 or Initiative 200 bars admissions officials from taking social class and other extra-academic variables into account, even when those variables are correlated with race and disproportionately benefit African-American applicants.

In fact, it is odd that the authors suddenly should have made such an assumption. In a separate discussion, when they sought to minimize the extent of racial preferences involved in current admissions policies, they acknowledged the importance of other criteria in the admissions process — athletic and musical ability, for instance, as well as socioeconomic disadvantage and leadership skills.[66] The assumption that elite schools rely on more than just test scores and grades in making admissions decisions is obviously correct. Bowen and Bok thus mislead the reader when they rely solely on SAT scores to estimate changes in enrollment in the absence of racial preferences.

O.K. So you shouldn't assume the Bowen/Bok numbers are correct. But since Michigan quoted them, let's set skepticism aside and assume for the sake of argument that they are correct, or at least useful. Let's also make another leap and assume that Bowen/Bok's national numbers apply to Michigan. What do they tell us?

According to B&B's national numbers, "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%. Thus, based on these numbers, for every thousand applicants to a selective college, 12 white, Asian, or non-preferred minority students 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 applicants a year based exclusively on race or ethnicity.

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?

Posted by John Rosenberg at 8:08 PM | Permalink | Say What? (0) | TrackBacks (0)

As I wrote most recently several posts below criticizing an OpEd by NAACP LDF attorney-director Theodore Shaw ("Justification For Preferences? C'est Moi!"), one of the necessary and hence common claims of the preferentialists 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." I called that "a canard" then, and I repeat it now.

This must be official dogma these days at the NAACP LDF, for another attorney there, Elise Boddie, recently made that argument in SLATE (an article I criticized here):

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.

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, as Ms. Boddie and Mr. Shaw do, 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:

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.

What Michigan is 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. Another thing that must be said about the above quote is that it is disingenuous, at best. To emphasize what a piddling amount of preference is actually involved, Michigan mentions that there are "only 21" African Americans in the entering 2002 law school class of 352. But what of the preferentially admitted Hispanics and Native Americans? As we shall see, including those preferred admissions makes a significant difference.

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.

Bear with me because, unlike Jessie, I dropped out of math before arithmetic got hard and so don't do numbers very well. Feel free to let me know if there are stupid errors in what follows. But 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 preferentially 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 rejected because of their race or ethnicity that year. 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.

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?

In short, do these numbers add up to a significant amount of discrimination?

I report; you decide.

Posted by John Rosenberg at 12:26 AM | Permalink | Say What? (4) | TrackBacks (0)

As Mickey Kaus has just reminded us, "every reporter knows if you have three examples you have a trend." I myself have just noticed a trend, and it's not pretty. Since I'm not a reporter I'm going to mention only two examples, but I think you'll agree they represent, well, a trend. I call it, as you will have noticed, "regulating the racial market," or RRM for short.

Now my RRM trend, as with most important trends, seems so familiar that its fundamentally radical nature and its significance are easy to miss. For example, it is almost a commonplace to observe -- as you have observed me observing here since this blog was born -- that racial preferences can be justified only by reliance on a new principle of fairness that elevates group rights over individual rights.

This sounds familiar because it is familiar. Critics of affirmative action have been making this point since the beginning of affirmative action in the late 1960s.

But in the last ten days or so I've begun to appreciate -- some of you may have realized it all along -- that this shift, important as it is, is only one part of a fundamental redirection of American liberalism.

Yesterday I quoted Dennis Shields, director of admissions at Duke Law School and former dean of admissions of the University of Michigan Law School claiming that the racial discrimination required to promote preferences is insignificant because there are not enough victims to worry about.

You always hear about hundreds of well-qualified candidates who were passed over.... We only need to visit those campuses, to walk the halls of our selective law schools to see that they are predominantly white.

.... To the extent that affirmative action does disadvantage some candidates, it is a very small number of people.

Shields was echoing the same sentiment I recently quoted from an NAACP attorney:

... 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.... 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.

And there's the rub: "as a group." Critics of preferences don't claim they discriminate against whites as a group; they claim they discriminate against whites (and Asians and many others) as individuals. Preferentialists, on the other hand, justify discrimination against individuals in order, they claim, to provide equality to groups.

Providing equality to groups, to repeat, requires discrimination against individuals, which ceases to be regarded as a real harm. The only discrimination that counts, in this view, is statistical, i.e., "underrepresentation."

With the abandonment of an individual right to be free from racial discrimination, race, in short, becomes a commodity to be regulated like any other commodity. The question to be asked of this racial regulation thus is not whether it violates a right -- that individual right has been discarded -- it is whether it promotes the public interest. This argument was presented clearly five years ago by Michael Sandel of Harvard, one of the leading philosophers of modern liberalism.

Here lies the far-reaching assumption underlying the diversity argument for affirmative action: admission is not an honor bestowed to reward superior virtue. Neither the student with high test scores nor the student who comes from a disadvantaged minority group morally deserves to be admitted. Provided the criteria of admission are reasonably related to a worthy social purpose, and provided applicants are admitted accordingly, no one has a right to complain.

The moral force of the diversity argument is that it detaches admissions from individual claims and connects them to considerations of the common good. ("Picking Winners," THE NEW REPUBLIC, December 1, 1997, p. 17)

In the beginning affirmative action meant taking affirmative steps, such as outreach, to insure that discrimination did not happen. When it made the turn to preferences, they were justified as a necessary but temporary exception to the principle of non-discrimination -- much as censorship is justified in wartime. But just as a trespasser is awarded adverse possession if he is allowed to trespass long enough, those who have been trespassing on the non-discrimination principle now claim to own it, and to have redrawn its boundaries. Now, far from being a temporary expedient to right a wrong or deal with a crisis, the new principle of diversity requires constant regulating and fine tuning of the racial/ethnic (and eventually religious) market to maintain the proper mix by group.

From the vantage point of the new liberalism, racial preferences, far from being a temporary exception, are the very embodiment of the modern regulatory state. Opposing them in the name of an individual right to be treated "without regard" to race, creed, or color now sounds at best quaint and old-fashioned to liberals (when it doesn't sound positively evil), exactly like those long dead reactionary Neanderthals who used to say government regulation of private property violated individual rights.

This new liberalism dominates the upper reaches of higher education, the major foundations, editorial offices of the establishment press, organized labor, the leadership of the Democratic Party, and corporate boardrooms. If a new constitutional convention were held today, its view of group rights might well prevail. But, unfortunately from the point of view of the new liberals, we are still living under the old Constitution, which is one of the two leading barriers resisting the advance of the diversity principle of fairness and equality. The other barrier is public opinion, which opposes racial preferences by substantial margins.

Of course, according to preferentialists all that means is that the public is too dumb to understand. Reader Fred Ray sent a story that ran last night on the Associated Press State and Local wire (no longer available at the www.mlive.com/newsflash link he sent, or elsewhere on the web, but findable on Nexis) making this point very well.

The Associated Press
2/10/03 6:04 PM GRAND RAPIDS, Mich. (AP) -- University of Michigan President Mary Sue Coleman said a poll of Michiganians released last week showing overwhelming opposition to the university's controversial admissions policy clarifies her contention that those opposing the policy, including President Bush, do not understand it well....

The poll surveyed 500 registered Michigan voters and found 63 percent of those asked opposed the university's policy, 27 percent favored it and 10 percent were undecided.

Coleman repeated the shibboleth discussed above -- that because there are relatively few victims of discrimination, there is no discrimination.

While conceding the policy is intended to give a boost to minority students, Coleman said chances of it actually impacting non-minority students are very small given the numbers of students who apply for admission each year.

She said the university has about 25,000 applicants each year for some 5,000 spots in its undergraduate programs and another 5,000 applicants for 350 seats in its law school.

"The chances of this affecting you if you're a non-minority student are about 1 percent, up to 4 percent, just because our numbers are so big," Coleman said.

This is rather like saying that because the chances of any individual being mugged are slim, mugging isn't really a crime.

As an old liberal, I would like nothing better than for the views of the new liberals to be widely disseminated. I can't think of a better antidote to those views than wide understanding of what they are.

Posted by John Rosenberg at 11:59 PM | Permalink | Say What? (0) | TrackBacks (0)

The deadline (January 16) is fast approaching for the administration to decide whether to file a brief in the Michigan affirmative action cases and, if they do, what to say about whether "diversity" is compelling enough to justify racial discrimination.

There has been no shortage of criticism of diversity -- that it is not "real" diversity but is only skin deep; that it violates the fundamental American principle of treating people "without regard" to race, religion, or ethnicity; and, most prominent of all, that it is unfair to those whites and Asians who are excluded to make room for less qualfied minorities.

One criticism I have not seen, however (except when I tried to make it here), is that the diversity justification for discrimination is also profoundly unfair to its unacknowledged beneficiaries, the preferentially treated minorities. It violates a fundamental precept of liberal moral philosophy -- that equal respect requires that individuals be treated as ends, never as a means to the benefit of others.

"Diversity," however, justifies "taking race into account," i.e., admitting minority students who wouldn't otherwise have been admitted, because their presence is said to improve the education of others. As the University of Michigan argued (unsuccessfully, as it turned out) in its brief to the Supreme Court opposing the granting of certiorari,

the presence of "meaningful numbers" (or a "critical mass") of "students from groups which have been historically discriminated against, like African Americans, Hispanics, and Native Americans," is essential to effective pursuit of its educational mission.

The preferentially admitted do not provide "diversity" to themselves, after all. True, as I argued in my previous post on this subject, they may receive some benefit from being in a "diverse" student body. But they would receive that benefit no matter what majority-white institution they attended. That is, admitting the preferentially treated blacks admitted to any highly selective university does not provide them with any diversity benefits they would not receive at less selective majority-white institutions. The diversity benefit that preferences are said to provide, that is, flows to the non-minorities whose education is said to be enhanced through their exposure to the preferentially admitted minorities. This is treating them as a means, not an end.

Don't misunderstand. The preferentially admitted minorities receive enormous benefits from their acceptance, often with scholarships, to highly selective institutions, but those benefits are not derived from the diversity that they provide. They would have received the benefits of diversity at other, less selective institutions. Indeed, I believe providing those non-diversity benefits is the real purpose of diversity-justified racial preferences. That is why I described the preferentially admitted minorities earlier as "unacknowledged beneficiaries," even though it is transparently obvious that the diversity rationale was devised as an argument for justifying preferences to minorities. Although I don't doubt that defenders of "diversity" believe what they say about it, in my opinion its real purpose lies elsewhere -- in compensating minorities for past discrimination and in engineering what is regarded as a fairer representation of minorities among the privileged classes. In short, its real purpose is indistinguishable from the purpose that led to the quotas rejected in Bakke or to minority set asides for municipal contractors.

Hostages to Diversity

I believe that ample evidence for my argument that diversity-justified racial preference is at bottom just racial balancing with a more appealing name can be found in diversity arguments offered by school boards around the country to justify their race-based assignment policies.

In two recent cases the Fourth Circuit invalidated diversity-based racial assignment policies, one in Arlington County, Virginia (Tuttle v. Arlington County School Board, 195 F.3d 698 [4th Cir. 1999]), and the other in Montgomery County, Maryland (Eisenberg v. Montgomery County, F.3d 123 [4th Cir. 1999], cert. denied, 529 U.S. 1019 [2000]). In Eisenberg, a white student was denied a transfer to a math and science magnet program because allowing him to leave his current school would have a negative "impact on diversity." The county created a "diversity profile" of each school, and transfers were routinely denied on the basis of race in order to maintain "diversity." Revealingly, the county argued that this wasn't discriminatory because it was common practice to deny transfers for racial reasons to students of all races when the requested transfer would have a negative "impact on diversity." The Fourth Circuit disagreed, saying that a policy did not cease to be racially discriminatory simply because it was practiced against all races. The court concluded that the county's policy of promoting diversity by carefully regulating transfers on the basis of race was "mere racial balancing in a pure form."

An even more revealing case had erupted in bitter controversy in Montgomery County in 1995 when the school board prevented two Asian-American kindergartners from transfering to a one-of-a-kind county French immersion program because of their race. According to a Washington Post article,

The parents of Eleanor Glewwe and Hana Maruyama had sought to enroll the girls in a French immersion program at Maryvale Elementary School in Rockville. But school officials denied their requests, saying their departure from Takoma Park would further deplete the number of Asian students there. [Sept. 14, 1995, p. A1]

One of the parents told the board that there were no more Asians in the school where her daughter wanted to transfer than there were where she was enrolled and thus that allowing her to transfer would not have any negative impact on diversity. Paul L. Vance, the Superintendent, replied to the board, according to the WPost, "that nothing in the school system's policy permits 'robbing Peter to pay Paul' by hurting the diversity of one school to help it at another." [Sept. 1, 1995, p. B1]. Public outcry eventaully caused the board to relent.

One other Maryland episode was even more bizarre. The writer Ted Gup wanted a transfer for his adopted son, who was born in Korea. He was currently enrolled in a school that was divided between a Spanish immersion program, which had predominantly white students, and an English program that was 90% minority, including large numbers for whom English was a second language. Gup wanted his son in an English program with native English speakers. The transfer was denied because -- you guessed it -- there weren't enough Asians at his school and thus allowing his son to leave would have a "negative impact on diversity."

Gup had some interesting observations on his experience.

I look upon this controversy from a somewhat curious perch. My family is interracial -- my two sons are adopted from South Korea. I live on a fully integrated street and have always championed both public schools and diversity. Nor am I a stranger to issues of race in the classroom, having taught elementary school, high school and college. But never did I expect, least of all here in progressive Chevy Chase, to be staring down a time tunnel at bias and racial imbalances remedied elsewhere long ago....

My reasons for wanting my elder son transferred from Rock Creek Forest were as complicated as his young life. He was asking some very difficult questions about adoption, his origins and identity. Given that he was Korean-born, and is being raised in an American Jewish family, it seemed to us that the last thing he needed was to first learn to read and write in Spanish. Nor, we felt, would his quest for identity be anything but aggravated were he the only Asian American in a class of African American and Hispanic children. A child psychologist warned us and wrote in a letter to the board that throwing our son into such a complex cultural and ethnic milieu could prove utterly bewildering for him. And frankly, I was offended that minority children -- mine included -- should be ghettoized merely because they wished to go to school in English. [Gup, "Crazy Kindergarten Quotas: My War on Montgomery [County's] De Facto Segregation," Washington Post, Outlook Section, August 27, 1995, p. C1]

When Gup called to protest the denial, he was told that

more Asian Americans were needed to boost the diversity profile of the school. This was not about my child or anyone's child. The sad truth is, it was not even about diversity. It was about Montgomery County's strategy for avoiding litigation by showing it had a diversity plan in place."

Gup also writes that he "couldn't help but wonder what cultural contribution my son could make -- he was just five months old when he left Korea."

Gup's point about fear of litigation was, alas, well taken. The Clinton administration was vigorous in its defense of diversity-based racial assignments (later, it would file briefs supporting the racial assignments that were invalidated by the Fourth Circuit in the cases mentioned above), and civil rights groups adamantly defended race-based diversity. In Montgomery County,

School officials said they would be courting legal trouble if they ignored the racial and ethnic composition of individual schools and allowed them to grow more segregated. Montgomery County was widely criticized by a team of Harvard University researchers last year for not strictly regulating the racial and ethnic makeup of schools.

Indeed, Gary Orfield, well-known Director of the Harvard Project on School Desegregation, had written a report critical of Montgomery County for backsliding. In fact, in commenting on the case of the two Asian-American girls who were initially blocked from transferring to the French immersion program, Orfield has the distinction of uttering the most obnoxious comments I've seen in this area. In an absurdity that would have been regarded as strained had it occurred in fiction, both of the girls in question were only half Asian-American. Each had one American parent, and each would have been allowed to transfer with no questions asked if their parents had put "white" instead of "Asian-American" on their forms.

Orfield's Harvardian response?

Orfield said it's not unusual for families to feel handcuffed by such transfer controls. "There's no [school] assignment policy that allows everybody to do what they want," Orfield said. Yet he said that the county should be more lenient with children of mixed heritage.

"My feeling is that they should not be restricted at all. They are an asset for integration purposes wherever they go," Orfield said.

"They are an asset for integration purposes" sounds dangerously close to "they are a credit to their race (whatever it is)." Everyone else, however, should be held hostage to diversity.

Orfield's other point -- that no one has a right to go to the school of his choice -- echoes a common refrain from liberal apologists of diversity. Here, for example, is the eminent "communitarian" Harvard philosopher, Michael Sandel, making essentially the same point.

Here lies the far-reaching assumption underlying the diversity argument for affirmative action: admission is not an honor bestowed to reward superior virtue. Neither the student with high test scores nor the student who comes from a disadvantaged minority group morally deserves to be admitted. Provided the criteria of admission are reasonably related to a worthy social purpose, and provided applicants are admitted accordingly, no one has a right to complain. [Sandel, "Picking Winners," THE NEW REPUBLIC, December 1, 1997, p. 17]

Both Orfield and Sandel confuse not having a right to attend the school of one's choice (which is true) with not having a right not to be excluded based on race (which is not true). What a sad and bedraggled thing liberalism has become.

If the Supreme Court upholds "diversity" as a compelling interest, the Fourth Circuit opinions referred to above would in effect be overruled, these diversity-inspired racial school transfer policies would almost certainly be revived, prosper, and become the norm.

Posted by John Rosenberg at 8:14 PM | Permalink | Say What? (0) | TrackBacks (0)

Separation of Race and State — No, that's not a typo. I meant to say race, not church. But first we in fact do have to go to church. By now I know you're probably all tired of vouchers, but please bear with me. I want to suggest that the principle articulately defended in the minority opinions in the recent voucher case unwittingly provides a convincing argument why the principle of religious neutrality they advocate compels neutrality regarding race as well as religion.

The dissenters dissent because in their view vouchers violate the principle of neutrality. Since 96% of the students with vouchers chose to attend religious schools, they argue, the fact of intervening private choice was not sufficient to insulate the government funds from the charge of impermissibly favoring — which in the current understanding is tantamount to establishing — religion.

What I want to emphasize, however, is not that familiar argument. More important, I believe, is the repeated, emphatic recognition throughout the dissents that the principle of neutrality itself derives not so much from the text of the Constitution as from something deeper in the very structure of our society. That something is the overriding fact of religious pluralism, a pluralism that in the absence of official neutrality would lead to constant strife and conflict. The dissenters, in short, recognize that the small “c” constitution of American society of necessity dictates the meaning of the large “C” Constitution.

To quote the references proving this point would be to reprint the dissents, but here are more than a few examples, particularly from Justice Breyer, of what I'm referring to:

• For the reasons stated by JUSTICE SOUTER and JUSTICE BREYER, I am convinced that the Court's decision is profoundly misguided. Admittedly, in reaching that conclusion I have been influenced by my understanding of the impact of religious strife on the decisions of our forbears to migrate to this continent, and on the decisions of neighbors in the Balkans, Northern Ireland, and the Middle East to mistrust one another. Whenever we remove a brick from the wall that was designed to separate religion and government, we increase the risk of religious strife and weaken the foundation of our democracy. (Stevens)

• I join JUSTICE SOUTER's opinion, and I agree substantially with JUSTICE STEVENS. I write separately, however, to emphasize the risk that publicly financed voucher programs pose in terms of religiously based social conflict. I do so because I believe that the Establishment Clause concern for protecting the Nation's social fabric from religious conflict poses an overriding obstacle to the implementation of this well-intentioned school voucher program. (Breyer)

• See also Lee v. Weisman, 505 U. S. 577, 588 (1992) (striking down school-sanctioned prayer at high school graduation ceremony because “potential for divisiveness” has “particular relevance” in school environment) (Breyer)

•In Lemon v. Kurtzman, 403 U. S. 602 (1971), the Court held that the Establishment Clause forbids state funding, through salary supplements, of religious school teachers. It did so in part because of the “threat” that this funding would create religious “divisiveness” that would harm “the normal political process.” Id., at 622. The Court explained: “[P]olitical debate and division . . . are normal and healthy manifestations of our democratic system of government, but political division along religious lines was one of the principal evils against which [the First Amendment’s religious clauses were] . . . intended to protect” (Breyer)

• [I]n Committee for Public Ed. & Religious Liberty v. Nyquist, 413 U. S. 756, 794 (1973), the Court struck down a state statute that, much like voucher programs, provided aid for parents whose children attended religious schools, explaining that the “assistance of the sort here involved carries grave potential for . . . continuing political strife over aid to religion.” (Breyer)

• (Of early Protestantism in schools): Those practices may have wrongly discriminated against members of minority religions, but given the small number of such individuals, the teaching of Protestant religions in schools did not threaten serious social conflict. (Breyer)

• (Quoting Justice Rutledge in Everson v. Board of Education): “Public money devoted to payment of religious costs, educational or other, brings the quest for more. It brings too the struggle of sect against sect for the larger share or for any. Here one [religious sect] by numbers [of adherents] alone will benefit most, there another. This is precisely the history of societies which have had an established religion and dissident groups....” The upshot [Breyer continued] is the development of constitutional doctrine that reads the Establishment Clause as avoiding religious strife, not by providing every religion with an equal opportunity (say, to secure state funding or to pray in the public schools), but by drawing fairly clear lines of separation between church and state. (Breyer)

• The principle underlying these cases — avoiding religiously based social conflict — remains of great concern. As religiously diverse as America had become when the Court decided its major 20th century Establishment Clause cases, we are exponentially more diverse today.... Under these modern-day circumstances, how is the “equal opportunity” principle to work” without risking the “struggle of sect against sect” against which Justice Rutledge warned? (Breyer)

• In a society as religiously diverse as ours, the Court has recognized that we must rely on the Religion Clauses of the First Amendment to protect against religious strife.... (Breyer)

• ... fear that this present departure from the Court’s earlier understanding risks creating a form of religiously based conflict potentially harmful to the Nation’s social fabric. Because I believe the Establishment Clause was written in part to avoid this kind of conflict, and for reasons set forth by JUSTICE SOUTER and JUSTICE STEVENS, I respectfully dissent. (Breyer)

You get the idea. Breyer and the other dissenters argue with great force that the very constitution of American society, i.e., the social necessity of avoiding sectarian conflict, dictates the strict separation of church and state that they see expressed in the First Amendment.

Race and Sects in American History

Although I think the dissenters are mistaken when they conclude that vouchers violate the principle in, and underlying, the First Amendment, I think their vision of American history, and of the neutrality principle that history has generated, is compelling.

One of the most cherished myths of American history is that our foremothers and forefathers fled the Old World for the New to escape religious bigotry and build a new society based on religious freedom. In fact, the Puritans’ strongest complaint against the Old World was that it was too tolerant, that it was swimming in a sea of such moral sloth and corruption that it had lost all interest in purifying the church. The New World appealed to them because it was empty (except for the “heathens” ripe for conversion), and they could establish Godly communities the way they were quite certain God intended.

And yet within several generations religious toleration had broken out all over. Despite the best efforts of the Puritan divines, diversity could not be denied. The Baptists and Quakers proved irrepressible. Mennonites appeared, and Methodists sprouted like weeds in the wake of itinerant ministers. Even many Congregational churches split asunder as revivalist “New Lights” walked out and founded competing congregations.

What happened? Unintended and unplanned, America began to happen. What Voltaire said cynically about England came to be celebrated here: “If there were one religion . . . , its despotism would be terrible; if there were only two, they would destroy each other; but there are 30, and therefore they live in peace and happiness.”

Toleration developed not because it was valued but because it was necessary. “Freedom came to the Western world,” wrote Reinhold Niebuhr, one of our greatest theologians, “by the inadvertence of history. Toleration was an absolute necessity for a community which had lost its religio-cultural unity and could find peace only if toleration and freedom were accepted.”

America discovered, however, that toleration alone was not sufficient. Strict neutrality was also required, a prohibition against the state favoring any of the contending sects. As Justice Hugo Black wrote in Zorach v. Clauson (1952), “it is only by isolating the state from the religious sphere and compelling it to be completely neutral that the freedom of each and every denomination and of all nonbelievers can be maintained.” Or as the Court held in Abingdon School District v. Schempp(1963), “the government is neutral, and, while protecting all, it prefers none.”

But if the very structure of American society requires a principle of neutrality that in turn requires a separation of church and state (as the dissenters and I believe it does), should it not also compel a separation of race and state? After all, as the eminent Berkeley historian David Hollinger has written, in our time "ethno-racial affiliations have come to play a role similar to that played by religious affiliations at the time of the founding of the republic and throughout most of American history." (POST-ETHNIC AMERICA, Basic Books, 1995, p. 123). Surely racial and ethnic preferences are at least as "divisive" today as debates over school vouchers, which seem to have bothered a few litigants and the courts much more than the society as a whole.

As a perceptive if fickle critic of affirmative action has written, racial and ethnic preferences predictably lead (and in fact have led) to

a real Balkanization, in which group after group struggles for the benefits of special treatment.... The demand for special treatment will lead to animus against other groups that already have it, by those who think they should have it and don't....

The rising emphasis on group difference which government is called upon to correct might mean the destruction of any hope for the larger fraternity of all Americans.

That was Nathan Glazer, in AFFIRMATIVE DISCRIMINATION (Basic Books, 1975), and if anything he underestimated the divisiveness of bestowing governmental favors on the basis of race and ethnicity. Now that liberals have abandoned the formerly core value holding that every individual is entitled to be treated without regard to race, creed, or color in favor of multiculturalism and group rights, the very idea of “the larger fraternity of all Americans” is regarded by many as nothing more than right-wing cant.

Or consider the current mantra of “diversity.” Harvard law professor Christopher Edley — former White House aide, co-author of President Clinton's “mend it, don't end it” review of affirmative action policies, advisor to Clinton's race commission, fervent advocate of racial preferences (he described Stephan and Abigail Thernstrom's America in Black and White as “a crime against humanity”), and advisor to the 2000 Gore campaign — has written that “our rich religious diversity” provides a model for racial diversity. “We are fairly united as one of the most religious nations on earth,” Edley wrote, “but we worship differently, celebrate that fact, and recognize that religious differences should play only a limited role in our social and economic lives. Perhaps a model along these lines is what is needed in race.” (Edley, “Why Talk About Race?” Washington Post OpEd, 7 December 1997, p. C1.)

Indeed it is, but this “model” suggests a conclusion that Edley and other preferentialists will not like. If ethnic and racial groups are now analogous to religious sects, why should it be permissible for the state to grant preferences to the former when it is clearly prohibited from doing so to the latter?

Perhaps Justice Breyer and his like-minded brethren, on and off the Court, can be called on to explain why they fear “the risk” of “potential” divisiveness in what they see as religious preferences but not the clear and present divisiveness of racial and ethnic preferences. Or, in the alternative, they could explain why a principle that they believe justifies racial preferences does not also justify religious preference, for certainly they recognize that religion provides as good or better basis for “diversity” as race. Would they look on religious preferences in admissions and hiring with the same favor they bestow on racial and ethnic preferences? What is it precisely that would make a preference for Arabs acceptable but for Muslims unacceptable? Are not evangelical Christians “underrepresented” among the students and on the faculties of our elite, selective universities? Why must the Michigan law school have a “critical mass” of blacks and Hispanics but not of Missouri Synod Lutherans? Why was the old quota system that restricted the number of Jews in the Ivy League (presumably) wrong, but the de facto quota system that restricted the number of Asians admitted to Berkeley and UCLA under the reign of preferences not wrong?

In short, perhaps it is time to insist on a separation of race and state, to insist in the ethnic and racial sphere, as well as the religious, that government must be neutral, that it protect all of its constituent groups but prefer none — not because the First Amendment compels neutrality in this sphere, but because of the same social reality that led to the First Amendment in the first place.

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