Supreme Court

Affirmative Action Appears Headed Back to SCOTUS

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The national debate over affirmative action appears to be headed back to the U.S. Supreme Court. Yesterday the U.S. Court of Appeals for the 5th Circuit declined to rehear the case of Fisher v. University of Texas at Austin with a full panel of judges. That refusal leaves the U.S. Supreme Court as the next and final step in the appeals process. Don't be surprised if the Court agrees to take the case.

Credit: C-SPAN

If the name Fisher v. University of Texas at Austin sounds familiar, that's because the Supreme Court already issued one ruling on it back in June 2013. At issue was whether that state university had violated the Equal Protection Clause of the 14th Amendment by taking race into account when making undergraduate admissions decisions. In a surprising decision, however, the Court avoided the constitutional debate over affirmative action by ordering the 5th Circuit to rehear the case and reconsider the contested university policy under the appropriate level of strict judicial scrutiny.

Why did the Supreme Court call for a do-over? According to the majority opinion of Justice Anthony Kennedy, the 5th Circuit erred "by deferring to the University's good faith in its use of racial classifications." The second time around, Kennedy ordered, "the admissions process [must] be considered and judged under a correct analysis." (Writing separately in Fisher, Justice Clarence Thomas stated that he would "hold that a State's use of race in higher education admissions decisions is categorically prohibited by the Equal Protection Clause.")

The 5th Circuit subsequently reheard the case yet still reached the same outcome, voting once more in favor of the state university and its race-conscious admissions policy. Did the 5th Circuit apply strict scrutiny that time around? The court certainly said that it did, but Justice Kennedy and his colleagues are unlikely to take the tribunal at its word. All things considered, Fisher stands a good chance of returning to the High Court's docket sometime in 2015.

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267 responses to “Affirmative Action Appears Headed Back to SCOTUS

  1. Just kill the abomination already – then we can start getting rid of the stealth AA in the “Holistic” policies like those UC* put in after California outlawed racial discrimination in admissions.

  2. THE MOST IMPORTANT ISSUE OF OUR GENERATION

  3. Timing is fun. We just talked about the Fisher case in Con Law yesterday.

  4. Those damn teathuglical racists! They don’t understand that some races are inferior and in need of a helping white hand!

    1. There is a huge opportunity to troll SCOTUS with an amicus brief that makes exactly that argument.

    2. Supporters of affirmative action don’t think the recipients are inferior at all, they think the traditional measures of ‘merit’ incorrectly gauge their abilities relative to other students.

      That doesn’t make affirmative action right, but that old canard is tiresome.

      1. *psst*

        Look at the first seven letters of my name.

        1. It’s still a very common line trotted out by opponents of affirmative action, one that’s not true (at least for most supporters I’ve ever read or talked to).

          1. Yeah, yeah, I know. The system is racist. It’s rigged for white people by white people. It doesn’t account for cultural diversity and other factors that could result in someone of another race failing to understand white cultural references on racist tests, as well as other entrenched racist factors that hold down minorities due to no fault of their own. Only the helping hand of government can fix it, because the whole system is racist and needs to be revamped by wise non-racist bureaucrats, legislators and judges. Blah, blah, blah…

            1. I’m sure there is racism in the system, of course I’m also sure that bureaucrats are not immune and empowering them would only make things worse.

              1. I’m sure there is racism in the system

                You bet your ass there is. Its embedded, overtly or covertly, in current admissions policies that have “plus factors” for certain races.

            2. Because the ‘traditional measures of merit’ are racist, because sometimes 2+2 equals 5, because ‘other ways of knowing’ etc. etc….

              1. Isn’t there some research that suggests that the scores of some groups are negatively influenced just by mentioning they are about to take a standardized test?

                1. No. It’s possible to prime them to score worse, but there’s no evidence that it happens in real tests. As I mentioned below, tests like the SAT overpredict black performance in college.

                  1. “but there’s no evidence that it happens in real tests”

                    Can you elaborate on that? Honestly interested.

                    1. Yes, we can easily show you the lack of evidence.

                    2. Replication studies?

                    3. Just read about the current replication crisis in social psychology.

                    4. Was that about the studies in question?

                    5. yes, among others

      2. You being a constant scold is tiresome.

        1. Does it make you sad? Do you need a tissue?

          Get over yourself. People in life might not agree with everything you think or say. You better to learn to deal with it sooner than later.

          1. So, wait, you get to whine about what’s tiresome, but when I don the same, you get butthurt?

            That’s fucking hilarious.

            1. Who’s butthurt? You seem to be.

              1. Cry more.

                1. He said, sniffling.

                  1. .

                    1. So you created an entire handle for your joke? How creepily sad.

                    2. Sorry you were whining about something? I had to step away to assfuck your mother.

                    3. You really are upset.

                      Have you tried deep breaths?

                    4. I see where you get it from, she made me scold her.

                    5. I see where you get it from, she made me scold her.

                      You too?

                    6. Fuck yeah, I looked her up on the intertubes, claimed to be a law student, and BAM, instant fucking respect. I knocked the bottom out of that shit,

                      “SCOOOOOOOOOOOOOLLLLLLD you’re the best fake law student there is!!!! So much better than my limpdick cunt of a son!!!!”

                    7. I’m glad you’ve at least gone from whiny sad to childish fun now.

                    8. I fucked your mom.

                    9. I’m a bit surprised by that, though she was always kind to the retarded.

                    10. ” she was always kind to the retarded.”

                      Yes, she told me about here benevolence toward you when I was assfucking her. It wasn’t awkward.

                    11. We used to do that all the time, before registration.

      3. Really? Because that’s not what they argue in court these days.

        1. I don’t think anyone argues minorities need affirmative action because they are inferior. In fact, they don’t argue affirmative action exists because of the needs of minorities at all, but because of the need for the schools (for diversity). That’s the only legal rationale available under current case law.

          1. I meant “they think the traditional measures of ‘merit’ incorrectly gauge their abilities relative to other students”

            They’re not arguing that in court.

      4. I can twist and torture my mind into maybe seeing how certain non-math/science standardized questions could be worded in ways that minorities can’t properly relate to (that’s a big maybe though) but what I can’t countenance is right/wrong on ANY type of question isn’t an accurate measure. What “non-traditional” measures of merit would correctly gauge ability?

        Not trying to be a dick, just curious.

      5. And here we have another fine example of Bo Cara concern trolling.

        Yup, this guy totally has me convinced of his libertarian bona fides.

        1. People really should look up what concern trolling means. Saying someone is wrong about something is not it. Sarcasmic is wrong to say proponents of affirmative action think blacks are inferior, that’s my running point.

          1. It’s concern trolling when you post about your concern that we might be being unfair by casting aspersions on the motives of the noble souls who advocate affirmative action, bo.

            It’s concern trolling when you come here day after day and bald-facedly claim to be a libertarian when your FIRST POST in just about any thread about just about any topic boils down to “C’mon guys, stop being mean to poor progressives!”

            I read your posts every day, shit for brains. Your personality is laid out for everyone to see on every thread day after day after fucking day. I probably know you better than your fucking childhood friends.

            1. What’s hilarious is we just had this row in the AM links two days ago. I dug up the definition and everything. But Bo’s a total pedant, so because what he’s doing does not 100% fit the dictionary definition of concern trolling, he’s comfortable believing that he’s right and we’re wrong.

              Also we’re all big meanies that sometimes support conservative or Republican party positions over Reason-, LP- or Cato-approved ones, so we shouldn’t be frequenting this place anyhow. In short, we should all get off his lawn and head to Mises, even though most posters have been here longer than he has.

  5. Maybe stop asking about race in the application process and judge people on merit?

    1. Come on, man, put down the bong and talk seriously.

      1. Isn’t it amazing how the progressive position of a few generations ago is now considered “racist” by progressives?

        1. “Isn’t it amazing how the progressive position of a few generations ago is now considered “racist” by progressives?”

          What was the progressive position of a few generations ago?

          1. Eugenics.

            1. That of course wasn’t limited to progressives.

              1. Eugenics was (mostly) before the era I am talking about. And yes, it was mostly progressives. Conservatives weren’t arguing for mass sterilization and birth control to keep down the inferior races, like Margaret Sanger.

                1. Really? Because we read the Buck v. Bell decision not long ago and I can remind you that it was 8-1, with many of the most ‘conservative’ justices in history (many that opposed the New Deal for example) joining Holmes opinion. Conservative Presidents like Coolidge and conservative states supported and passed eugenics laws.

                  To the extent you’re correct, Catholics often opposed many eugenics laws (the lone dissenter in Buck was the lone Catholic on the Court), but that included conservative and liberal Catholics.

              2. No. But I don’t know many current conservatives worshiping at the altar of people who had those views like many progressives do with Margaret Sanger.

                1. Have you read Peter Bagge’s book on Sanger? It was pretty heavily promoted here on Reason.

                  1. The comic book?

                    1. Graphic novel you philistine!

              3. That of course wasn’t limited to progressives.

                By definition it had to be.

                We aren’t taking good old race hate, here. Or even the notion that some people were genetically inferior to others.

                Those opinions, of course, spanned the ideological spectrum.

                We’re talking about eugenics, which goes beyond these mere beliefs to advocate a directed effort by society to control the genetic future of humanity so that we might advance.

                Those elements – the directed nature of the effort, and the idea that by controlling individual actions we could progress as a species – drop eugenics into progressivism.

                Conservatives and reactionaries might have hated those they saw as genetically inferior – but once they incorporated that hatred into a plan to better the future (i.e. eugenics) they transformed themselves into progressives by definition.

                1. That’s a particularly silly argument, as are most ones that try to solve a historical, empirical issue ‘by definition.’ When Calvin Coolidge gets transformed into a progressive so your argument can carry it, you should be wary of it.

          2. I suspect he was thinking along the lines of “judged by the content of their character”

            1. “judged by the content of their character”

              Have more racist words ever been spoken?

              1. I’m going to say “yes”.

            2. Yes, well, the same guy who said that often said blacks should get some help because many are in a bad spot as well. So there’s that.

              1. Yes, well, Thomas Jefferson owned slaves so that whole Declaration of Independence thing should be ignored.

                The fact that he was a hypocrite, philanderer, and socialist has fuck all to do with the imagery he hit on in that speech. Imagery that resonated with most of the American public, not just the civil rights crowd or minorities.

                1. My point is that it’s false to say the progressives went from ‘colorblind’ to ‘special assistance for blacks.’ They’ve said both for decades and decades.

          3. From at least the late ’40s through the ’60s, it was “treat people equally, regardless of race.” Cripes, haven’t you ever seen any of the tons of “message movies” Hollywood did in that period? Sidney Poitier wasn’t in movies arguing that blacks needed affirmative action. Nobody thought that about Jackie Robinson, either. Individual merit and colorblindness were pushed by progressives, but now those are “racist.”

            1. I don’t know, there’s also been a fairly consistent argument that blacks are often in a bad position and could use some ‘affirmative’ help that goes back to Reconstruction. MLK said both the kind of thing you mention and that blacks need (deserve?) this kind of help.

              1. Nobody in Reconstruction was arguing that less qualified blacks should be hired over more qualified whites, simply because of race, on the grounds of “diversity” or “social justice.”

                1. But again, supporters of affirmative action don’t see the recipients as less qualified, except as measured by criteria they think very flawed.

                  1. But again, supporters of affirmative action don’t see the recipients as less qualified, except as measured by criteria they think very flawed.

                    If they think that, why don’t they come up with another way to determine their qualifications? Giving people of certain races an edge doesn’t address that problem at all. Unqualified people are helped just as much by AA. And black people who didn’t grow up with the stereotypical disadvantages (and there are plenty of middle to upper class blacks who have all of the same advantages as middle to upper class whites or asians) get the same boost. There are also plenty of poor white people who have all the same disadvantages, but don’t get extra points for race.

                    Even if their motivations are what you say they are, AA is a pretty bad tool to correct those problems.

                    1. I agree it’s a terribly blunt tool, I’m just speaking to their actual motivations and premises.

              2. I don’t know

                Truer word were never spoken.

                1. More honest cut and past has, though, certainly existed.

              3. Even if you accept the argument that affirmative action was or is necessary to help blacks recover from being systematically discriminated against, it has to be a temporary measure or it becomes just another racist institution. If after a few generations of AA, getting rid of AA would lead to big changes in the racial makeup of institutions, maybe it is time to consider that perhaps other factors are more significant contributors to continued poor performance of some races relative to others. In that case, AA is just a band-aid used to cover up other, deeper problems that no one wants to deal with.

            2. On that point, I think Jackie Robinson did more to end discrimination in America than all the standard candidates combined.

          4. Yet more concern trolling.

            The progressive position of a few generations ago (when they weren’t advocating eugenics, that is) was for all men to be judged in a color-blind fashion.

            1. You’re wrong, as I’ve pointed to they’ve consistently argued that while also arguing that blacks and other groups they see as disadvantaged should get particular assistance.

      2. Fine fine. I say we make the worlds longs rube-Goldberg contraption, with a spinning wheel of applicants. If the ball bearing falls on your name you get state sponsored education. How’s that?

        1. I say we make the worlds longs rube-Goldberg contraption, with a spinning wheel of applicants. If the ball bearing falls on your name you get state sponsored education heavily subsidized health insurance.

          I’m fairly certain that this is how Obamacare came into being.

      3. Or you could at least pass it this way instead of bogarting it.

    2. How would you measure merit, exactly?

      By the grades that may be the result of hard work, natural ability, grade-grubbing, or low standards?

      By the test scores that are designed to measure a student’s ability to take a test, and which kids who can afford prep courses taught by the test-writers can have the answers spoon-fed to them?

      Maybe by the extra-curricular activities and volunteer work that kids who don’t have to get jobs or babysit younger siblings can afford to do so they can look better on their college applications?

      1. I understand the GRE is very predictive of graduate success. I think because it roughly measures both hemispheres of the brain by being language and math focused. I don’t know how to weight it for non-native English speakers.

        1. How is graduate success measured? By the number of people who go on to productive careers in their discipline or by the number of people who complete the degree program?

          Because I can tell you from experience that completing a grad program doesn’t take much more than making sure your tuition checks clear.

          1. My graduate program was extremely demanding. Probably why I made a six figure salary right out of school. Anyways it correlates with graduation rates, which if you want a measure for who will be successful in grad school what else matters.

        2. I’m not so sure of that.

          http://www.fairtest.org/examin…..ternatives

          1. What measure do you suggest?

            1. I think every college should be able to choose their own, I don’t know what I’d pick. All of them seem problematic.

              Progressives are right that traditional measures of ‘merit’ aren’t as great as people seem to think. Of course they’re also wrong that skin color should replace it.

              1. I am skeptical of the “I don’t test well argument”. If you can’t access the information you have learned and can’t apply it I call bullshit. That is all a test is. Recall and application. How do you write a test a white man can pass but no one else can?

                1. How do you write a test a white man can pass but no one else can?

                  I believe there was something in the Daily Mail yesterday about that. It had to do with underlining words and stuff.

                  1. White people didn’t have to take that test.

                    1. Yeah, that test really was designed for black people to fail.

                2. I am skeptical of the “I don’t test well argument”.

                  Me too. Though maybe it’s because I do test well. The “standardized tests only test your ability to do standardized tests” thing is bullshit though. OK, you do have to be good at taking that kind of test. But you also need to know the stuff that the test asks about. And if you know the stuff that is in the test, how fucking hard is it to pick the correct answer out of 4 or 5 choices?

                  I’ve always kind of enjoyed taking tests like SAT. And I absolutely refused to study or prepare for them in any way (well, OK, I didn’t wake and bake that Saturday) and still did well .Must just be my inherent white privilege.

              2. Should schools be allowed to discriminate against whites, Jews, and Asians on the grounds that they are “over-represented”? Many do that now.

                1. Private colleges should be allowed to, public ones should not, as that would be an equal protection violation (and bad policy for the reasons I said below).

                  1. So based on that comment, I’m assuming you are against the public accommodation rationale forcing other private enterprises to offer services/goods to those they don’t wish to?

                    Again, not trying to be a dick. Gauging argumentative consistency.

                    1. “I’m assuming you are against the public accommodation rationale forcing other private enterprises to offer services/goods to those they don’t wish to?”

                      Yes, very much so.

                    2. Cool. Just checking.

            2. I’d be open to economic affirmative action. The college weighs zip code or the name of the high school awarding the diploma.

              1. This is the same garbage behind Texas using the top X percent of the high school. It started with 10% but has been lowered. It still gets in unqualified people. there is no reason for a mediocre student to get into UT. they can start somewhere else and if something changes and they show they can do the work, they can transfer.

          2. That link is hilarious.

            1. It’s got a definite slant, but the cited studies were what I was referring to.

              1. The studies are also hilarious.

                1. Do tell.

                  1. “The ability of the GRE to predict first-year graduate grades is incredibly weak, according to data from the test’s manufacturer. In one ETS study of 12,000 test takers, the exam accounted for a mere 9% of the differences (or variation) among students’ first-year grades.2 Undergraduate grades proved to be a stronger predictor of academic success, explaining 14% of the variation in graduate school grades.”

                    This is slanted to make grades as predictive as possible and still comes out with r^2 of .09 vs. .14. If you wanted to make the GRE as predictive as possible — perhaps looking at STEM PhD’s with notable disserations — GRE would swamp grades.

                    http://infoproc.wordpress.com/…..cientists/

                    “The data strongly suggests that high IQ provides a significant advantage in science. Some have claimed that IQ is irrelevant beyond some threshold: more precisely, that the advantage conferred by IQ above some threshold (e.g., 120) decreases significantly as other factors like drive or creativity take precedence. But, if that were the case it would be unlikely to have found such high scores in this group. The average IQ of a science PhD is probably in the 130 range, and individuals with IQs in the range described above constitute a tiny fraction of the overall population of scientists. If IQ were irrelevant above 130 we would expect the most eminent group to have a similar average. “

                    1. I’m not arguing the tests compared to grades, just noting they’re not that powerfully predictive.

                    2. Perhaps you should address that link showing that IQ is, in fact, powerfully predictive.

                    3. I’m not sure I should since we were talking about the GRE iirc.

                    4. You don’t think the GRE is heavily g-loaded?

                    5. There’s certainly correlation, people who score high on tests score high on tests.

            2. Yep. those tests OVERestimate the success of black students. It’s the opposite of what they’re suggesting!

              1. I noted the studies relating to the issue of how predictive the tests are, not the racial gap in scores.

                1. High GRE scores overestimating black performance is a statistical artifact of GREs predicting performance.

                  1. Perhaps, but 9% is not very impressive.

                    1. A correlation of 30% is pretty large in social science (that’s why they used the non-standard r^2), and that was a study cherry-picked for the purpose of making the GRE look bad (because racist).

                    2. Where are you getting the 30% from?

                    3. sqrt(r^2)

                    4. OK, just wanted to make sure what study you were pulling from.

                      30% may be impressive for social science, but it doesn’t seem to justify the idea that the test is some Platonic form of ‘merit.’ Also, 37% would be even more impressive…

                    5. “OK, just wanted to make sure what study you were pulling from.”

                      LOL, sure

                      Nobody said that GRE is a “Platonic form of ‘merit.'” But it is predictive of success, a lot for cognitively demanding fields and maybe not at all for Social Work.

                      True story: My wife’s social worker friend’s co-worker just quit to finish her PhD. She once asked how to convert 3/5 to a percentage.

                    6. I thought you might be referring to one of the many studies cited there or your IQ one.

                      “But it is predictive of success”

                      In a way that is impressive in the social sciences…

                    7. “I thought you might be referring to one of the many studies cited there or your IQ one.”

                      Bo Cara Esq.|11.13.14 @ 3:52PM|#

                      Perhaps, but 9% is not very impressive.

                      Sidd Finch v2.01|11.13.14 @ 3:57PM|#

                      A correlation of 30% is pretty large in social science (that’s why they used the non-standard r^2),

                      LOL, sure

                      “In a way that is impressive in the social sciences.”

                      You want to use chemistry and physics to select students?

                    8. I’d bet a fair amount that the 9% thing was a really, really badly done study. Like not controlling for major, so that people who score low and go into education and get the same grades as people who score high get into physics show up as the GRE not predicting results well.

                    9. That or maybe range restriction within majors. Even if they’re like to like grad students, that’s a tiny range compared to all university grads.

          3. I think the SAT has shown itself to be a better predictor of how someone will do in their first year of college because undergraduate is much closer to high school than graduate school is to undergraduate.

            Most undergrads just take a series of prescribed courses and get a degree. A graduate degree is really a full time jobs in itself. You take fewer courses but the work is much deeper. Effort and interest is more important for the average grad student. An undergrad has twice as many classes and can’t spend as much time on them so the standardized tests (which are really IQ tests) have a better predictive value. The GRE focuses on specific fields and less on overall IQ.

      2. Omg. You’re such a buzz-kill.

        How about we just make higher education free? I mean, shouldn’t everyone have access to an education that would better their existence?

        After all, so many professors think the same thing about health care, maybe they’d like to practice what they preach.

        1. I’m sure they would be quite happy to get paid the same salary by the government.

      3. How would you measure merit, exactly?

        An excellent question for each university to answer for itself.

        There’s a number of ways to do so, I’m sure. I’m also sure that the race of the applicant would figure in none of them.

        And the only reason to ban race from this algorithm is if the school accepts state money. They can choose between their taxpayer funded gravy train, or their commitment to “diversity”. Their choice.

      4. You seem offended that useful knowledge and skills can be purchased with money.

        1. That’s an interesting reading of my comment. Another interpretation might be that I am skeptical of the concept of ‘merit’ as it applies to college admissions. And that there might be qualities in an applicant that can’t be reliably measured by the ‘skill’ of jumping through the College Board’s hoops like a trained poodle.

          1. And that there might be qualities in an applicant that can’t be reliably measured by the ‘skill’ of jumping through the College Board’s hoops like a trained poodle.

            Yeah, but do you or anybody know what they are. Grades have been used because we can give high grades to minorities. Unfortunately, no matter how hard those people work, they can’t keep up in demanding fields and then become ethnic studies or education majors or drop out.

            There was a story about this at the UC where people with SATs as low as 700 on the old scale were let in to flagship campuses. The kids couldn’t figure out why they were failing no matter how hard they worked.

            http://www.nationalreview.com/…..mac-donald

      5. You do understand that universities have large departments dealing with exactly this question, right?

      6. Separation of school and state and let each school set their own standard. Which, being private, may include subtle or overt racism.

        In either direction.

  6. The only way to remedy prior discrimination is to mandate future discrimination for an indefinite period.

    I would think this was self-evident.

    1. If the schools say they’re doing it to remedy past discrimination it’s illegal. They have to say it’s to diversify the student body to make for a better educational environment.

      1. Because diversity inherently makes everything better.

        Also self-evident. And even more powerful when you are careful not to define ‘diversity’ in any concrete way.

        More options that way, you know.

        1. There’s a lot of nonsense behind ‘diversity,’ but some value too. If the goals of colleges is to help young people learn to live among and work with an increasingly diverse society and market then having a diverse student body could be useful.

          1. Yeah, going to school with the son of a black dentist from Orange County instead of a white dentist from Orange County really enriches your educational experience. All sorts of perspectives you’d never get otherwise.

            1. That’s interesting. You don’t think, for example, that, say, a black and Asian dentist might have very different upbringings, mores, outlooks, etc? I find that to be a pretty common thing in my experience actually.

              1. I imagine they would. So would a Libertarian Jewish dentist from San Francisco and a Republican Irish Catholic dentist from Omaha. Probably even more so. Yet this doesn’t seem to be the sort of diversity that colleges are interested in achieving.

              2. If they are first or second generation immigrants, maybe. If your folks have lived here their entire lives and had the intellectual and economic wherewithal to get through dental school and start their own business, I don’t see how the amount of melanin makes much of a difference.

                1. Really? So you find that most white people and black people you meet have similar cultural tastes?

                  1. So you find that most white people and black people you meet have similar cultural tastes?

                    When adjusted for variables like geography, socio-economic status, religion, generally yes.

              3. Even if you believe that black and Asian families have different upbringings, outlooks, etc., that just begs a question that should have more than one allowable answer:

                Is a school which has all these different outlooks, etc. providing a better education than one that doesn’t?

                Why can’t I say that my all-white, all-Protestant school provides a better education because students from that background get along better, have a better work ethic, and so forth, because that’s their upbringing, outlook, etc.

                [Caveat] As always, just because I am saying that an all-white admission policy is just as defensible, on the grounds proposed by the diversitrons, as a racially tilted diversity policy, does not mean I think all-white admissions would be a good idea.

                I think racially tilted policies of all kinds are equally stupid.

          2. Sadly, people looking into homogeneous vs. heterogeneous cultures and regions generally conclude you are safer and happier in the homogeneous ones.

            It’s good to be able to deal with a variety of folks and understand a lot of folkways – but I don’t think it’s at all proven that throwing a lot of folks into an arbitrary mix in what’s already a bit of a synthetic, constantly-in-flux community like a university is the optimal way to do that.

            Especially if you start with ‘the color of their skin’ rather than ‘the content of their character’ – let alone their academic ability.

            If we just want teach diversity rather than pursue academic achievement, perhaps camps could be set up somewhere for those whose initial education in this area was lacking.

            But, what could we call these camps for people to be educated again?

            No doubt history will suggest something…

            1. There’s a lot of straw being beaten in your post…

              1. Really? How so?

                I only ask because there’s a lot of unsupported condescension being expressed in your comment.

                1. We could start with the idea that many colleges ‘just want [to] teach diversity rather than pursue academic achievement.’ It’s not an either/or for them.

                  1. It does not have to be – but the one comes at the expense of the other, and seemingly increasingly so in the face of all reason and unfortunate experience.

                    Also, I did not specify ‘colleges’ as ‘just want[ing to]’ – and, subjunctive.

                    1. “but the one comes at the expense of the other”

                      Again, supporters don’t think so, quite to the contrary.

                    2. So, they don’t make an admission contrary to their own interests?

                      Not surprising.

                    3. Their logic is internally consistent.

                    4. Making them wrong twice over.

                    5. It makes it an empirical issue.

                  2. Their failure to understand opportunity costs and counterproductive policies does not mean it isn’t in the real world an either/or proposition.

            2. “Man is the Reasoning Animal. Such is the claim. I think it is open to dispute. Indeed, my experiments have proven to me that he is the Unreasoning Animal… In truth, man is incurably foolish. Simple things which other animals easily learn, he is incapable of learning. Among my experiments was this. In an hour I taught a cat and a dog to be friends. I put them in a cage. In another hour I taught them to be friends with a rabbit. In the course of two days I was able to add a fox, a goose, a squirrel and some doves. Finally a monkey. They lived together in peace; even affectionately.

              Next, in another cage I confined an Irish Catholic from Tipperary, and as soon as he seemed tame I added a Scotch Presbyterian from Aberdeen. Next a Turk from Constantinople; a Greek Christian from Crete; an Armenian; a Methodist from the wilds of Arkansas; a Buddhist from China; a Brahman from Benares. Finally, a Salvation Army Colonel from Wapping. Then I stayed away for two whole days. When I came back to note results, the cage of Higher Animals was all right, but in the other there was but a chaos of gory odds and ends of turbans and fezzes and plaids and bones and flesh–not a specimen left alive. These Reasoning Animals had disagreed on a theological detail and carried the matter to a Higher Court.”

              ? Mark Twain, Letters from the Earth: Uncensored Writings

            3. “But, what could we call these camps for people to be educated again?”

              And, sad though it is, some people just won’t be re-educable by normal means. They’re just too distracted by their own hatred and prejudice. These lost souls need their own special kind of camp. A quiet place of rest. A place where they can concentrate.

              1. The funny thing is there’s only one policy I’m aware of that currently, actively involves rounding up thousands of people and putting them in camps, and it has most of its proponents in the American right. I’m talking about immigration policy, of course.

                1. Speaking of comments whiffing strongly of straw…

                  1. Conservatives don’t favor aggressive enforcement of immigration laws? And that doesn’t involve putting people into detainment camps?

                    1. More like securing borders and sending illegals to their country of origin.

                      Camps would be at those countries’ discretion, I suppose – might make sense, if we prioritize deportation of violent felons.

                    2. The current reality is those policies result in camps where the people wait to be deported.

                    3. Enforce employment restrictions. Free one way bus tickets.

                      Boy, that was exhausting to come up with.

                2. And here I thought you were talking about the WOD.

          3. Except there’s not much resemblance between what a admissions office labels “diversity”, and actual diversity.

            1. I’d agree race is an imperfect proxy for the kind of diversity the schools say they want.

          4. Diversity also has downsides. See Robert Putnam’s work on how it decreases social trust.

            1. Sure, I agree with that. But my point is that if you run a college, and your college has as a goal educating and preparing a person to live and work well in our society and market, and if our society and market is increasingly diverse, then you’ll see exposing your students to diversity as a real benefit. Whether that benefit outweighs any minuses is another question.

              1. If our society and market is increasingly diverse, then the have already experienced it in real life.

                1. Have they? People tend to self segregate a lot in things like which neighborhoods they live in, schools they go to, etc.

                  1. So, the environment they should be prepared for is one that people in general aren’t interested in creating or living in?

                    You may be arguing against this fellow named Bo who posts here…

                  2. Have they? People tend to self segregate a lot in things like which neighborhoods they live in, schools they go to, etc.

                    If that’s so, then it’s equally so for the question of whether diversity is preparing students for post-collegiate life.

              2. Diversity of appearance while attempting to enforce uniformity of speech and thought is not really beneficial to a learning environment.

              3. And the track record of those who avow they are following such a course (interestingly, often without even being able to define what they mean by diversity) has begun to suggest an answer to that other question.

              4. Because the community is changing you have to go to a cloistered environment to learn to interact with the community you just came from? I don’t buy this argument.

                1. Of course, the community you came from might not be much like the one you are going to (or going to work in).

                  1. So somehow college can emulate all possible environments you could potentially go to after graduation?

                    1. Who said all?

                    2. from might not be much like the one you are going to

                      I take this to mean that college will provide me with diversity I cannot receive naturally.

                    3. Yes. You don’t know where you are going to end up in life, so the idea is exposure to more (not all) types of diversity increases your chance of having some familiarity with where you might end up.

                    4. So you’ll learn the culture when you get where you are going. People have been exchanging culture for millennia. You don’t need some artificial system to create diversity so people can do what they have always done.

                    5. Wouldn’t it be an advantage to arrive with some familiarity?

                    6. The idea that you can gain much meaningful insight into day-to-day, on-the-streets diversity or culture in a frickin’ university is hilarious.

                    7. Living in a dorm with someone different isn’t day to day?

                    8. Please refer to my reference to “much meaningful insight”, Bo.

                      That’s not the same as “no insight”.

            2. Somehow, while you are in school, a world which tends to self-segregate into homogenous clusters so that diversity isn’t that big a thing in your life, transmogrifies into a world where diversity is a huge thing in your life.

              Or something.

          5. but some value too

            [citation needed]

            Although I did go to a very diverse university. It had a huge minority population. Mostly asian, but from all over asia!

            IIRC, there were more hispanics (often foreign hispanics – we seemed to be the engineering school of choice for rich Colombians) than blacks in my day.

            And we still produced more black engineers than any other school in America.

          6. If you work in science or tech most of your colleagues will be white and Asian males. I don’t see any value in diversity.

      2. They have to say it’s to diversify the student body to make for a better educational environment.

        Which is still a fucking joke.

        I don’t see that exemption to the 14th amendment anywhere in the text.

        The strict scrutiny test is a fucking joke designed to give the state a way to parachute out of the requirements of the 14th amendment any time they can convince a judge they’ve got a “good reason” to do it.

        But if it’s OK to racially discriminate because that might create a “better learning environment” and increase the performance of the school, why isn’t it OK to racially discriminate in, say, hiring for the state police, if I can demonstrate that white police officers commit fewer crimes than black police officers? Or the reverse?

        “We’ll do better at some task if we hire (or admit) people of one color more,” is exactly what people who want to violate the 14th amendment would naturally argue in every area of government activity, not just education.

  7. In the past, I’ve looked for the algorithm used to determine specifically what race/ethnicity you are.

    Apparently it boils down to it being whatever you can bring yourself to say it is with a straight face.

    At least, as best this Asian Hispanic Eskimo of Color can tell, that’s how it is.

    1. http://www.pewhispanic.org/200…..-hispanic/

      Q. I immigrated to Phoenix from Mexico. Am I Hispanic?
      A. You are if you say so.

      Q. My parents moved to New York from Puerto Rico. Am I Hispanic?
      A. You are if you say so.

      Q. My grandparents were born in Spain but I grew up in California. Am I Hispanic?
      A. You are if you say so.

      And so on.

      1. Wasn’t there a case once that concluded that someone from Spain didn’t really count as “Hispanic”?

      2. Q. I heard that maybe a great great grandparent had a little bit of Cherokee blood, am I a Native American?
        A. You are if you say so, Ms. Warren.

    2. I’m thinking the Pantone ™ people have a real marketing opportunity to put out a set of diversity test swatches and an instruction book…

  8. The biggest problem with affirmative action is it exacerbates racial tensions in America. There’s nothing like giving the guy next to you a benefit you don’t get a chance to have to foster bad feelings between them. It’s an incredibly divisive tool. It reminds me of the current demands by gays to have laws making people bake their wedding cakes. Do they think that will further the recent goodwill towards gays? Not likely.

    1. I agree, but there are more problems than that. Affirmative action often puts incompetents in positions where they do real damage. One of the people who got into medical school instead of Allan Bakke, Patrick Chavis, had his medical license revoked for malpractice.

      1. Thanks, that’s interesting, and I didn’t know it.

      2. Papaya, I admire your restraint in not calling out a certain high-profile mixed-race personage as an example of “incompetents in positions where they do real damage”.

        In a somewhat related point, there is plenty of work out there saying that the “beneficiaries” of AffAc admission often wind up worse off.

        Because they are underqualified for the school they are attending, they don’t do well, drop out or fail more often, etc. And wind up in debt without a degree, with a crappy transcript, or otherwise are burdened with something because they got a slot they weren’t able to perform in.

        1. There’s a lot of truth to that, regarding colleges. People who would have done fine at a lesser school go to a tougher school, get over their head, and flunk out.

    2. Is your suggestion that white racists would be less racist without affirmative action? Or that affirmative action makes more white people racist who otherwise wouldn’t be? I encounter this sort of claim all the time–Obama is racially divisive, etc. Shouldn’t the onus be on racist people to fix themselves?

      1. Tony, we are trying to get the racists who inhabit university admissions departments to fix themselves.

        Try to keep up.

        1. You seem to only care about “racists” when they are discriminating against white people.

          I mean it’s pretty stunningly consistent.

  9. Now I understand some of you don’t know Sarah Jane, so I’ll tell you a little bit about her. She’s a lesbian eskimo midget albino. she went to college and she started the lesbian eskimo midget albino student union, and 400 people signed up! There they were, hundreds of ’em – lesbian midget left-handed eskimo albinos. Did i mention the fact she’s left handed? She’s left handed alright. Girl’s got some strange hobbies. One of her hobbies is lowering children into open man-holes. Which is kind of difficult cause a lot of the children are taller than her, her being a midget and everything – or her being a left-handed midget – or her being a left-handed lesbian midget – or her left-handed lesbian albino midget – or her being a left-handed lesbian albino midget eskimo. Life can be really difficult on that young lady.

    1. She bit me once, you know. Right here. You see this? Left a mark. She was lowering a friend of mine’s kid into the sewer. I run up and tried to stop her, I said “listen there you lesbian midget left-handed albino! You stop right there!” And she bit me. I’m afraid I’m gonna… I’m gonna turn into a lesbian left-handed midget albino when the moon is full. Oh my god the moon is full tonight! I can feel myself shrinking. I can feel myself getting left-handed. I can feel myself getting the urge to build an igloo. I can feel my skin turning white and my eyes getting red. I can feel – I can feel the urge to buy a Suzanne Vega album! Noooo!!! Noooo!!!! Noooo!!!! Auuggghhh!!! Oh, okay, it was just gas.

          1. That’s hilarious.

  10. I really don’t understand how/why the various black/american Indian groups allowed “affirmative action slots” go to anyone besides people who are direct descendants of people who were american Indians or direct descendants of blacks who were here at least during the Jim Crow era. I’m against these laws on principle but at least they would make more sense to me on some level.

    1. All blacks are African Americans. Didn’t you know that? Remember when Nelson Mandela died, and reporters referred to him as a great African American? It’s beyond stupid.

      1. I’m a frickin’ American too!

    2. Again, affirmative action for remedial reasons is illegal and has been so for decades. It has to be justified on the insitution’s need or desire for diversity, that’s why they don’t care about whether the person is connected historically to slavery or Jim Crow.

      1. I really don’t understand what your point has anything to do with mine.

        1. Bo raises some good points, but I think in some cases he and I (and others) are talking past each other, a bit.

          I think he’s saying that it is no longer officially admitted that AA is used as a remedy for past discrimination, or out of generalized guilty feelings, and/or because of an inculcated sense of self-loathing.

          Of course, you can drive a bus through the gap between what’s officially admitted and what’s true.

          1. I would agree with that in full.

        2. You said “how/why the various black/american Indian groups allowed “affirmative action slots” go to anyone besides people who are direct descendants of people who were american Indians or direct descendants of blacks who were here at least during the Jim Crow era”

          And my answer was, affirmative action programs cannot be based on remedying problems connected to things like Jim Crow. So that’s why they don’t care to limit it the way you describe.

          1. Okay that makes sense.

          2. But that court decision was way after Latinos started becoming sizable recipients of AA spots.

        3. Although it is perhaps not of Bo’s design, it is a stunning goalpost shift on the part of affirmative action supporters.

          Nobody would have originally bought into AA if it was about “diversity”. The only claim it originally carried that anyone saw as legitimate was that it would remedy past injustices.

          Nowadays with that vestigial justification discarded they have to resort to nonsensical appeals to “diversity” as some sort of nebulously positive characteristic.

          1. Oh, it’s incredibly valuable.

            Just not in terms of philosophy, political leanings, or socioeconomic status.

            Just race, ethnicity, and sexual identity.

            All that other stuff I mentioned before we already know the right answers for.

            1. Yet none of that has anything to do with education. Remember, we’re talking about state schools here. If you want to run an experiment in intentionally concentrating people of similar (or diverse) backgrounds, do it on your own dime. The original purpose of state schools was to provide a decent education to those without the pedigree for elite private schools.

              So we’re really looking at multiple monumental goalpost shifts here…

            2. Actually this case is about SES. The problem in Texas is that while the 10% rule admits lots of minorities, they’re mostly lower SES. UTexas wants to use AA to admit wealthy blacks and hispanics.

          2. “it is a stunning goalpost shift on the part of affirmative action supporters.”

            Er, it has been forced on them by the SCOTUS, which has said diversity needs are the only allowable justification for affirmative action.

            1. … at state schools.

              So, divorced of any legitimate justification for affirmative action, it had no reason to continue.

              Yet, it did not stop.

              1. “divorced of any legitimate justification for affirmative action, it had no reason to continue.”

                Proponents really do think diversity is beneficial to their institutions.

                I worked doing college tours for my work study as an undergrad and you’d be surprised how many parents of prospective students saw the diversity of the school as a bonus. I don’t blame them, we live and work in an increasingly diverse world.

                1. I worked doing college tours for my work study as an undergrad and you’d be surprised how many parents of prospective students saw the diversity of the school as a bonus. I don’t blame them, we live and work in an increasingly diverse world.

                  Pretty sure the (human) world has been “diverse” for most of its history, at least since the fall of the Tower of Babel, if you believe that sort of thing.

                  State schools are there to provide you with an education. If you want a diverse student body as your top priority, find a different school.

                  Of course all of this nonsense is created by the government-backed student loan farce. Parents would be asking very different questions if they were on the hook for every dime. The same goes doubly for students if their parents can’t or won’t pay.

                  1. “State schools are there to provide you with an education.”

                    Of which some people feel a significant part of is familiarizing yourself with different cultures.

                    I think the fact that private colleges care about their diversity demonstrates that it might have some value.

                    1. Of which some people feel a significant part of is familiarizing yourself with different cultures.

                      So, again, goalpost shifting. Are you trying to invalidate my argument by profusely proving it?

                    2. Of which some people feel a significant part of is familiarizing yourself with different cultures.

                      Sure that’s a good thing. But AA isn’t a great way to get that. You get plenty of that from foreign students who are fully qualified and pay full price.
                      In my college experience I did learn some interesting things about different cultures from foreign students. The only American culture I learned much about was rich Jews from New York. The disadvantaged American black students seemed to mostly want to self segregate.

                2. Proponents really do think diversity is beneficial to their institutions.

                  And yet only 13 minutes earlier, Bo insists:

                  Er, it has been forced on them by the SCOTUS, which has said diversity needs are the only allowable justification for affirmative action.

                  So, they really believe in this justification that was forced on them. Yup. Right.

                  1. “So, they really believe in this justification that was forced on them.”

                    Forced on them after they argued in court that it was something they wanted and needed.

                3. Diversity probably is a good thing. It’s unfortunate that the diversity most elite schools seem to value is mostly superficial. When it comes to actual academics (you know, the thing they are supposed to be there for), they seem much more interested in orthodoxy.

                  1. Diversity probably is a good thing.

                    Sort of. My argument is a little different. By and large, as life training, its value as delivered is marginal. In your adult life, you’re mostly spending time with people of your own general level of education, socio-economic status, lifestyle, etc. And, really, I think things have a lot more explanatory power than demographics. The one area of diversity that I think would be particularly useful, age, isn’t something you can practically impart in a college.

            2. And that being the only fig leaf on offer, those supporting affirmative action jumped on it like a schnauzer onto a pork chop.

              Didn’t affect their actual views, of course – just the rationale offered.

              “For the children!” is always such a popular rallying cry, after all.

            3. The fundamental dishonesty of the “diversity” justification is easily demonstrated.

              If the racial/cultural/social makeup of a school is an interest that schools are allowed to take race into account to set, then it should be perfectly legal for a state school to be whites only, should it not?

              Sure, it may have to put up some eyewash about how a whites-only school provides a valuable educational experience, blah blah. But an apologia for whites-only is likely to be no more strained and artificial than the apologia for “diversity”. One heaping pile of bullshit being much like another.

              The rejection of whites-only but the retention of “diversity”, when each is justifiable in much the same way, will show that this isn’t about the purported educational value of various racial mixes. Its not even about having a policy that advantages some races at the expense of others.

              Its about how we are allowed to advantage certain races, but not others. IOW, racism, straight up.

              1. You obviously don’t see how we’re going to end discrimination by discriminating.

                You probably didn’t get the whole ‘[screwing] for virginity’ thing, either.

                Excuse me, I have to go fight for peace now.

              2. Proponents really do think diversity is beneficial to their institutions.

                Well, if your subjective belief is all that’s needed, then it seems a subjective belief that an all-whites admission policy would be beneficial to your institution should be just dandy, then.

                1. That would of course be the opposite of diversity.

                  1. Because they all come from the same cloning vat, you know.

                    I remember a fellow West Virginian rooming with both a student from Maine and one from Alabama.

                    He was frequently called in as a translator…

                  2. But a racially-tilted whites-only admissions policy can be justified on many of the same grounds as a racially-tilted diversity admissions policy, Bo.

                    When the same arguments can be made for X and for Y, but you only allow X, then something else is going on.

                    We all know (the self-deception of proggy admissions officers aside) that the rationale for “diversity” is a load of horseshit, a pretext for continuing their guilt-ridden remediation of somebody else’s grandfather’s bigotry.

                  3. That would of course be the opposite of diversity.

                    You are defending affirmative action in the face of the 14th amendment by arguing that institutions believe that by discriminating in this manner they’re improving their institutions.

                    Well, in that case, anyone who thinks they will improve their institution (in any manner) by discriminating (in any manner) should be able to likewise employ that justification, and the SCOTUS should be estopped from preventing them from doing so other than by overturning their original (horrific and transparently dishonest) precedent.

  11. Abby Fisher, who compared herself to Rosa Parks, was denied admission to UT, which offered provisional admission to 47 students with lower academic scores. Of those, 42 were white. There were 168 black or Latino students with better grades that were denied admission.

    1. And how many whites with better scores than those admitted under this program were also denied admission, Tony?

      1. I don’t know. They aren’t the ones going to court. UT that year had a higher turn-down rate than Harvard. The point is she can in no way prove that she would have got in if not for affirmative action.

        Current precedent is that public universities can consider race as one factor among others in deciding admissions when diversity can’t be achieved otherwise.

        I thought it was libertarians’ position that it’s better when people are allowed to consider race when deciding to do business with people than when people are forbidden from doing so.

        1. If you don’t know the full dataset, don’t present cherry-picked excerpts.

          Thanks for playing.

          1. The point is valid. She probably wouldn’t have gotten in even if she were black (her scores were rated “relatively low”).

    2. I’m repeatedly told by AA supporters that they would be just fine with class-based AA. And here we have a university that explicitly wants AA for priviledged blacks and Hispanics, and I haven’t seen one of them say there’s anything wrong.

      1. Libertarians are strongly for the right of private businesses to discriminate even when it means disadvantaging minorities, but strongly against the right of public ones to do so when it means disadvantaging white people. Is the issue really–really–the distinction between public and private?

        1. I’m not a libertarian.

          1. Well you’re practiced at the art of dodging the issue by pointing out minor and irrelevant things like that and Clown Hunter above.

            Is the issue the distinction between private and public? Or is it that you are OK with black people being discriminated against in most of their daily lives, but not OK with white people being discriminated against in the one case of academic admissions?

            1. My status as ‘not libertarian’ is not minor or irrelevant when it comes to speaking for libertarians.

              At elite colleges, NAM AA is at the expense of Asians. Why do you want NAMs to be admitted over more qualified Asians? What did the Asians ever do to you? Did you also support Jewish quotas?

              1. I don’t think anyone has a right to get into an elite college or any other kind (until we start subsidizing it for all, of course).

                1. So you’re okay with elite institutions that produce justices and presidents discriminating against Jews, but if Cletus don’t want no blacks in his two-bit establishment, that’s a line too far.

                  1. I don’t think any institution should discriminate against Jews or blacks.

                    1. Right. It’s Asians and whites that should be discriminated against.

                    2. I’m sure Asians are pleased that you’ve hitched them to your “I only care about discrimination when it’s against white people” wagon. They love tokenism, I hear.

                    3. It’s kinda nifty how you turned your support for Asian quotas into me being pro-discrimination.

                    4. True, you haven’t said here that you support legalizing discrimination in the private sector. But then I haven’t given my opinion on affirmative action either.

                    5. I’m certainly for some forms of discrimination, such as universities discriminating against mediocre intellects.

              2. “NAM”? What’s that?

                1. Non-Asian Minority

                  1. http://www.urbandictionary.com/define.php?term=NAM

                    An acronym that stands for Non-Asian minority, usually used to more accurately describe a person who is referred to as a member of a minority group in mainstream media or popular discourse. It is necessitated by the general success and prosperity of Asians in the United States, who do as well or better on a host of social indicators than whites do. Thus when a media figure discusses the economic or educational struggles of a minority, he is almost always referring to a NAM, or a non-Asian minority.
                    “The minority income gap in the US has only gotten worse since the recession!”

                    “You mean the NAM income gap has gotten worse. Asians are actually doing even better relative to whites than they were before the recession.”

    3. “UT, which offered provisional admission to 47 students with lower academic scores. Of those, 42 were white”

      There ain’t no way, mathematically speaking, that this is correct.

      1. Looking it up, she got an 1180 2 part SAT score. Their 50th percentile 2 part score is about 1250, which suggests an average black score of around 1000 and a Latino average score of maybe 1100.

        a 3.6 GPA, too. If you want to tell me that 5 of the roughly 3,000 black and Hispanic students who entered in her class did worse than that, I’m going to say you’re lying.

  12. I thought SCOtUS shot this down already?

    If not, this will be an excellent opportunity to pretty much outlaw AA completely.

  13. This is the kind of stupid you get from “diversity” I just saw a documentary on Berkeley trying to figure out what to do about less state funding. They do have money for stupidity.

    http://www.scpr.org/programs/p…..tyjournal/

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