Where There’s A Will There’s … No Way

There he goes again. It used to be that I agreed with just about everything George Will wrote. Now, not so much.

Today’s disappointment is “Harvard’s Admissions Policy Problem,” in which he argues that “everyone, and especially conservatives, should think twice — or at least once — before hoping that government will minutely supervise how private institutions shape their student bodies.”

“The clearest thing about the relevant law,” he writes, “is the absence of clear guidance.”

Since 1978, the Supreme Court has said that “a diverse student body” is a “constitutionally permissible goal” and a “compelling” educational interest that can be pursued using racial classifications if they are “narrowly tailored” to achieve a “critical mass” of this or that minority without “quotas” and if they do “not unduly harm members of any racial group” and are no more than a “‘plus’ factor” in a “holistic” assessment of applicants. “Distinctions between citizens solely because of their ancestry are by their very nature odious,” and “outright racial balancing . . . is patently unconstitutional.” (Emphases added.) Such open-textured language, deployed in the pursuit of “diversity” (of cultures, perspectives, experiences, etc.), leaves vast scope for practices to engineer various student bodies.

Schools should go beyond “objective” metrics — secondary-school transcripts and SAT scores — because they measure only what can be quantified, which is not all that matters about individuals. Then, however, schools adopt “holistic” assessments of individual applicants. It probably is impossible for schools or government to devise rules-based assessments that tightly limit the discretion that admissions offices exercise, given the unavoidable imprecision of the open-textured legal language quoted above. And given the needs of schools’ subgroups — the orchestra, the athletic teams, the classics department, etc.

The former George Will, the one I used to agree with, would have known that not all “subgroups” are created equal: denying a scholarship or even admission to another tuba player or tight end because your orchestra or football team already has enough of them is not the same as denying admission to a boatload of Asians or Jews because your student body already has enough of them. Anyone who believes they are the same should immediately call for the repeal of our civil rights laws.

Will is right to argue that schools should be free to go beyond grades and test scores, but wrong to conclude that “[i]t probably is impossible for schools or government to devise rules-based assessments that tightly limit the discretion that admissions offices exercise, given the unavoidable imprecision of the open-textured legal language quoted above.”

First, all that “open-textured legal language” is judicial gloss on law. Where necessary any or all of it could, and should, be revised and rewritten by other judges.

Far from being impossible, it is actually easy to devise rules that limit the discretion of admissions officers. In fact, it’s been done, time and again. For example, there’s this from both President Kennedy’s and President Johnson’s Executive Orders (10925 and 11246) on, believe it or not, affirmative action:

The contractor will not discriminate against any employee or applicant for employment because of race, creed, color, or national origin. The contractor will take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, creed, color, or national origin.

And then there’s the Civil Rights Act of 1964. As Justice John Paul Stevens wrote in an eloquent and powerful dissent in Bakke, back before he became a liberal and changed his mind, admissions policies that treat applicants differently based on race are clearly prohibited by “the plain language of the statute … unless that language misstates the actual intent of the Congress that enacted” it. As I pointed out here, Stevens quoted extensively from the Congressional debate, such as the statement by Senator Humphrey, the Civil Rights Bill’s floor manager, that “discrimination” as used in the bill means “a distinction in treatment … given to different individuals because of their different race, religion, or national origin.” Moreover, Stevens noted, “the only suggestion” that the bill as worded would allow race to be used against any individual “came from opponents of the legislation,” such as one he quoted who argued that the term “discrimination” would be construed “as mandating racial quotas and “racially balanced” colleges and universities…. The concept of `racial imbalance’ would hover like a black cloud over every transaction.”

Will maintains that, given all the evidence that Harvard treats applicants differently based on race and ethnicity, “it looks like hypocrisy” when Harvard asserts that it does not discriminate, but it’s not, he writes, because “progressives and their institutions long since stopped believing that colorblind policies are virtuous.” Here, too, Will is wrong, for Harvard still gives lip service to the traditional, i.e., colorblind, nondiscrimination principle. For example, and for a good example of an easy to devise rule “that tightly limit[s] the discretion that admissions offices exercise,” Will could simply take a look at the Harvard Law School’s non discrimination policy: “Harvard Law School does not discriminate against any person on the basis of race, color, religion, creed, national or ethnic origin, age, sex, gender identity, sexual orientation, marital or parental status, disability, source of income, or status as a veteran in admission to, access to, treatment in, or employment in its programs and activities.”

Yes, it does, because it raises and lowers the barrier to admission in part based on race and ethnicity.

Will thinks it’s a good thing that Harvard doesn’t practice what it preaches, and his fundamental error is that he asserts a false dichotomy:

Harvard’s problem today is a version of America’s, the tension between two problematic approaches to providing opportunities — “meritocracy” that is clearly but too simply quantified, and a less tidy but more nuanced measurement of the mixture of merits that serves a university’s, and society’s, several purposes.

But this dichotomy is entirely false, since denying admissions offices the discretion to impose benefits and burdens based on race does not mean they must rely only on grades and test scores. They would still be free to define “merit” however they chose and to be as  holistically free-ranging as they like in their consideration of any qualities they wanted … except race and ethnicity.

Similarly, Will writes that “Stuart Taylor, a legal analyst as temperate as he is accomplished, argues (in The Weekly Standard) that racial preferences can ratify stereotypes when ‘holistic’ evaluations emphasize personality traits that are supposed group attributes. There really are, however, attributes that are disproportionately prevalent among various groups at various times.” Will is completely right about Stuart Taylor (see my friendly debate with Taylor at the links here), but that “however” after the praise points to the underlying weakness of Will’s argument. It is no doubt true that attributes “are disproportionately prevalent among various groups at various times,” but it does not follow that it is legitimate to assign benefits or burdens based on group membership. If at a given time the family culture of Jews or Asians emphasizes academic striving more than other cultures, admissions offices should be free to reward or punish academic achievement as they see fit, but not use race, ethnicity, or religion as a proxy for “attributes” they want or don’t want.

Finally, the weakness of Will’s argument is nicely revealed by the impenetrable opacity of the silver lining he sees in the Asians’ complaint against Harvard:

The optimum result of the court case might already be occurring in voluntary, prudential adjustments of elite university practices to forestall government interventions that would serve shifting agendas of various constituencies. The adjustments would include admissions policies more welcoming to academic excellence regardless of other attributes of those who manifest it, and more sensitivity regarding the felt injustices that inevitably accompany admission disparities produced by preferences, however benignly intended.

I will give a free, one year subscription to this blog, or ten cents in coin, to the first reader who can tell me what that means. It’s certainly an odd conclusion to an article that begins with justified criticism of the “absence of clear guidance” in “the unavoidable imprecision of the open-textured legal language” that courts have emitted in their convoluted civil rights opinions. But, contra Will, that imprecision is easily avoided. It is the result of trying to argue that discrimination on the basis of race does not mean discrimination on the basis of race.


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