The College of Charleston Quietly Rejects Race-Preferential Admissions … No Wait! The College of Charleston Returns to Race-Preferential Admissions.

Motives matter under the law. So what was the College of Charleston's motive for its sudden change?

|The Volokh Conspiracy |

Fast Action! On July 29, 2018, the Charleston Post and Courier ran a story entitled Affirmative Action Comes to a Quiet End at College of Charleston. It explained that in 2016, the College of Charleston stopped considering race as a factor in its admissions process. Yet in 2017 the proportion of non-white students had increased slightly to just shy of 20%. The proportion of African Americans specifically was 7.81%, down only slightly from 8.05% the previous year.

The backlash was evidently swift. On July 31, 2018, just two days later, the same newspaper ran a story entitled College of Charleston Resumes Affirmative Action After 2-Year Hiatus.

At this point, I can only guess the identities of the folks who must have thrown a fit when they saw the initial headline. State legislators? Local politicians? Faculty? Benefactors? Student groups? Whoever they were, they got their way: Race-preferential admissions policies were put back in place as quick as lightning.

It's unlikely this sudden change in policy was the result of a careful reconsideration of the pedagogical evidence concerning preferential treatment. (For some of that evidence, see my articles Want to Be a Doctor? A Scientist? An Engineer? An Affirmative Action Leg Up May Hurt Your Chances and A 'Dubious Expediency': How Race-Preferential Admissions Policies on Campus Hurt Minority Students.)

Instead, this story may be a good illustration of a point I've tried to make before: Admissions policy is more politics than pedagogy. In Grutter v. Bollinger (2003), Justice Sandra Day O'Connor, writing for the majority of five, deferred to the University of Michigan on the question whether achieving the pedagogical benefits of diversity is a compelling purpose. She did so on the ground that that judgments about pedagogy are best left to experts on pedagogy. This was nevertheless a highly controversial move on her part, since the whole point of the strict scrutiny standard, the standard she purported to be applying, is to refuse to defer in any way shape or manner to state agents engaged in race discrimination. Remember that in Brown v. Board of Education, education "experts" said that segregation was beneficial for students. No deference was accorded there. An even bigger problem is that admissions policies have never been left the experts on pedagogy. It has always been a political judgment. A good analogy is to legislation. Otto von Bismarck's comparison of legislation to sausage is a good one: Don't ask what went into it. It will only make you sick. Ditto for admissions policies.

State legislators, at least those dominated by Democrats—harangue universities about the need for diversity (while those dominated by Republicans may harangue about other things). Student groups demand more diversity (often even with threats of disruption if they don't get it). Government funding is sometimes explicitly conditioned on schools having at least a certain proportion of minority students.

In what O'Connor saw as an absence of evidence to the contrary, she was willing to assume that the University of Michigan Law School really did adopt race-preferential admissions in order to capture the pedagogical benefits of diversity for all students. But such a presumption is rebuttable–which leads me back to the College of Charleston. Why did it decide to return to race-preferential admissions?" What if a future court decides that the reason is (1) that's where the money is; or (2) the faculty felt strongly that white privilege will never be destroyed without race-preferential admissions; or (3) students demanded it, because they see it as reparations for past discrimination? If that's the case, even under Grutter, there can be no deference. The College would then need to demonstrate that its purpose for adopting race-preferential admissions is compelling. It has very little chance of being successful at that.

Maybe we'll learn something more about the College of Charleston's change of heart in the near future.

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  1. “Prior to 2016, the College’s admissions office conducted an additional review of students of color who were not initially recommended for admission to the College. The admissions office discontinued the practice after the summer of 2016 due to the positive results of various recruitment initiatives for students of color.”

    So the minority students’ enrollment didn’t remain the (basically) same because of normal practices–the college used recruitment initiatives.

    “In consultation with the chief enrollment officer and after listening to key stakeholders across campus and reviewing our recruitment strategies, I have advised the admissions team, effective immediately, to implement an additional application review of students of color and to make it abundantly clear that, as an institution, we do and will consider race as a factor in our holistic review process.”

    So, no Prof. Heriot, there was no ‘fit’ thrown.

    Just a normal review–update if needed–review–update if needed process that all good organizations take to ensure they processes are working. message-from-interim- president-osborne- regarding-enrollment/
    (spaces added–I wonder why Prof. Heriot didn’t check this…)

    1. If you can’t easily see that virtually anything from a protest to the loss of alumni funds can fit into the phrase “…after listening to key stakeholders across campus and reviewing our recruitment strategies,” then I suggest you read some poetry and try to learn subtly in language.

  2. Fifth paragraph – “Instead, this story may be a good illustration of a point I’ve tried to make before: Admissions policy is more politics than pedagogy. In Grutter v. Bollinger (2003), Justice Sandra Day O’Connor, writing for the majority of five, deferred to the University of Michigan on the question whether achieving the pedagogical benefits of diversity is a compelling purpose. ”

    Except for the fact that CA6 ignored the findings of fact at the trial court where the evidence showed UofM was using and had been using a quota for 10+ years, took the UofM claims / pleadings as “true facts” (de novo) completely ignoring the actual evidence in order for the facts to fit under bakke.

    Then the USSC held that a quota was constitutional, as long as it was called “diverisity”

    1. see Thomas dissent

  3. I heard a rumor that, in the 1950’s, the Topeka, Kansas school board used race to determine which students went to which school.

  4. More politics of resentment. The resentful framing of each particular gives the game away.

    I’ve got bad news for all you fans of meritocracy. You live in a democracy, where, in principle, everyone gets to vote. And as a matter of practice, the more folks come to understand they are resented, the more likely they are to vote.

    You want to know what makes people feel especially resented? Meritocracy. It’s a system which can’t work unless the putatively less-meritorious accept that judgment, do their bit in the system, and then willingly look to their betters for allotments of goods, honors, status, and respect. The less-meritorious might do that, too, if they were persuaded those allotments were to their taste.

    Problem is, the more-meritorious get to do the allotting, and they are never very good at it. And that makes meritocracy incompatible with democracy. There will always be more of the less-meritorious than of their betters. The less meritorious can vote for the results they want, and win. That puts pressure on the betters to get rid of democracy, to save meritocracy. That, in a nutshell, is Heriot’s advocacy here.

    1. Could you run that by me again? When are racial preferences a good idea, and when aren’t they? When are they legal, and when aren’t they?

      1. Sure, happy to help out. The less-meritorious will choose all the answers to all your questions, unless one of two things happens:

        1. You get rid of democracy, or

        2. You operate a meritocracy in such a way that it convinces the less meritorious that it is worthwhile to accept that status, in exchange for the fair allotments handed down by their meritocratic betters.

        Heriot’s advocacy seems to be for No. 1.

        If you suppose there are any alternatives, I would welcome hearing what they are.

        1. Who counts as “less meritorious” in your analysis?

        2. I’ll guess that you found “Democracy in Chains” to be an enlightening illustration of the Vast Right-Wing Conspiracy.

        3. We’ve already given the less merit paths more influence, see victims studies majors. How many PhDs to we have to keep giving out with useless majors to appease the plebes?

        4. Here’s the way I see it: Nobody wants their surgeon or lawyer, or even auto mechanic, to have gotten the job by any route except meritocracy. You don’t want to drive across bridges designed by people who didn’t get the job on their merits, or travel in planes flown by pilots who got their job only because their uncle knew somebody.

          Meritocracy is in the interests of the majority for any position where merit can be objectively evaluated, and makes a significant difference to the user of the service. And most people realize that.

          The problem for the majority isn’t meritocracy, it’s credentialism. A system that doesn’t evaluate merit, but instead whether you’ve checked off the right boxes.

          Take me: I’m the chief engineer at a stamping plant. I never graduated from college. (Mom was in a bad auto accident my senior year, and SOMEBODY had to nurse her back to health!) I was hired as a detailer, and spent decades working my way up to tooling engineer.

          An example of meritocracy. Credentialism would say I’m not an engineer because I don’t have the degree, I’ve merely spent decades proving I can do the job. Meritocracy cares about my job performance.

          1. All this time, I thought you were a lawyer. Who knew?

            Anyway, the problem is that when you have discrete groups with different abilities, even if meritocracy IS in everyone’s interests, the less meritorious will see very few people from their “group” in high positions and get resentful. That’s what fuels most black and Hispanic politics.

            On some level, intellectually mediocre blacks and Hispanics may want a highly meritorious doctor when THEY’RE the patient, they will still support affirmative action type programs to bring black/Hispanic doctor representation to their proportions of the population. This is because a combination of their low IQ and ethnic/racial chauvinism creates a disconnect in their minds between what they desire as an individual and what the policies they advocate for would lead to.

            1. I wonder why there would be more barriers to Hispanics becoming doctors as compared to Slavs.

          2. I’m guessing you’re a white male so your path was much easier than a black or a woman, etc., which is S.L.’s point–minorities and women simply do not have a fair chance to earn their merits.

            1. More the other way around. Non-whites and women only have to be mediocre.

            2. As long as we’re guessing, I’ll conjure up an Uncle Moneybags for him, who gave him some of that free money white people are always giving each other, to help him get a better start in life.


              1. I mean it isn’t controversial that white people have more uncle moneybags money, in general. Not all white people, obviously. But it’s a huge advantage for many white people.

        5. Did they have to “get rid of democracy” in Michigan to abolish racial preferences by law?

        6. Good thing we have a Constitution which creates a representative republic, not a democracy (mob rule) and that this Constitution contains a Bill of Rights to further protect individual (not tribal) rights.

          Also, should the non- meritorious really be in charge? You take the flight with a pilot chosen by democracy. Not me. I prefer merit.

          1. I would respond that our society trusts experts in outcome orientated fields, like sports, surgery, and piloting, but there is very little trust these day for experts on a whole host of issues, such as health care and sociology. The experts have nobody to blame but themselves.

    2. We get it. You failed at life.

    3. Yes. Which is why voting should be limited to men with IQs above 110.

      1. And are net tax producers.

        1. Agreed. I think you’d find though that there are very few “takers” among the above average IQ male population.

          1. You’ve not met my brother in law. Smart….and lazy. Seriously though, who would you trust to give the IQ test. Me? Nobody.

        2. I like how you guys point out the superiority of the white male but then whimper when there’s an attempt to slightly correct the imbalance towards the white male.

          If you’re a white guy in America and don’t have a job that pays at least the national average, then you are a loser.

          1. So what? The fact that a white guy has a job making $80k doesn’t mean that it’s not unfair if he’s passed up for an unqualified black/Hispanic for a job making $90k.

          2. Asians make the most, as for any race, because…..dum dah da!…they have the highest IQs (on average).

            1. Based on the behavior of my Asian wife, it’s probably because they have Asian moms starting in with the flash cards at six months.

          3. “the superiority of the white male”

            That’s such a large group, you’re going to find superiority, mediocrity, and outright bad apples.

            If some white guy is rolling in dough as a skilled IT security specialist, is that supposed to uplift an unrelated white guy doing meth in between his erratic stints as an underpaid surly clerk?

            The latter probably has little to gain from being judged on the quality of his work and the content of his character.

            In fact you can do an such a discussion of any large group.

            1. That’s such a large group, you’re going to find superiority, mediocrity, and outright bad apples.

              The reality is that the bar is lower for anyone who is white and male (and straight) in this country than other groups such as women and people of color. As a white male myself – I have benefited from this.

              some white guy is rolling in dough as a skilled IT security specialist

              It just so happens I’m that guy. But if you talk to any woman in this infosec industry you’ll learn they had to jump through more hoops and had to work harder than I did to break in and get promoted. And that is the problem.

              1. I’ll take your word for it and assume there’s illegal discrimination against women in IT security.

                Of course, it doesn’t follow that racial preferences (so-called “reverse discrimination”) is the remedy – the remedy is the nondiscrimination laws on the books. Of course, the presumption of innocence will mean that some meritorious plaintiffs will lose for lack of enough evidence, or won’t bring cases at all. That’s the tradeoff. (There’s a comparable tradeoff in the criminal side of the law, allowing guilty people (often rich ones) to sometimes elude justice.)

                Race and sex discrimination are wrong, but not because it hurts particular groups (women, black people). Discriminating against particular groups (like women and blacks) is wrong because sex and race discrimination are wrong.

                Someone in this thread mentioned candidates for orchestral positions playing their music behind a screen so noone else could tell they were women. Maybe something similar can be done when testing someone’s computer skills?

                1. Job evaluations and scholastic merit are not completely based on one single evaluation. Long term relationships matter, and cognitive biases will subtly out. That’s why prescriptive solutions alone won’t solve anything.

                  And, of course, it’s not even just the hoops – when I was in grad school for physics, I heard a number of my colleagues who were women talk about being actively discouraged by ‘well-meaning’ professors, some of them women.

              2. You may have had a lower bar, but that is not my “lived experience.”

                What part of my current level of success is based on my white privilege, 5%? 10%? Should I pay a special tax to make up for it?

  5. What if a future court decides that the reason is
    (4) the college of Charleston is racist – –

  6. “It explained that in 2016, the College of Charleston stopped considering race as a factor in its admissions process”

    Wasn’t using race to hand out goodies like college admission called this term ‘racism’ once upon a time?

  7. ===”…we do and will consider race as a factor in our holistic review process.”===

    Buzzword, check!

    1. “We’re basically hippie Buddhists, it’s all good.”

  8. Re some of the discussion above, I *wish* that the alternative to racial preferences was meritocracy.

    Sometimes it is. But not always. There are non-meritocratic alternatives to racism, if you really are looking for such alternatives.

    Take a couple hypothetical examples.

    Imagine a school where teacher salary and promotions are based on seniority, regardless of race.

    Or imagine a company where employees, regardless of race, are promoted based on how well they flatter the boss, rather than on the quality of their work.

    So abolishing racial preferences simply gets rid of one of the worst alternatives to meritocracy, it doesn’t get rid of all of them.

    1. It would be difficult to actually enforce a law that mandates meritocracy. Who would decide what constitutes merit?

  9. This contribution from the Definitely Totally Officially Non-Republican Conspirator reminds me: Isn’t it about time for another installment of the Conspirators’ whining about their perception of inadequate affirmative action for right-wing professors among the faculties of strong law schools?

    1. Untalented, overpaid troll alert.

    2. Look, the difference is that we can look as specific institutions or businesses and see discriminatory practices, as opposed to the Left’s generalized complaining about systematic discrimination society-wide. The first you can find evidence about, and possible remedies, on a small scale. A very good example is how there began to be many more women in professional orchestras once auditions were behind a screen.

      But *if* there is society-wide systematic discrimination, which is very hard to prove because disparate outcome is not always the result of discrimination, but rather differences in the individual level choices and abilities of untold millions of people.

      1. Another difference is that most law schools with a large number of conservative professors are lousy schools, and that most law schools the Conspirators whine about (because of an ostensible deficiency in conservative professors) are our strongest schools.

        Why should our strongest law schools emulate our weakest law schools by loading up on movement conservatives?

        1. The elitist law schools would have more conservative professors if they didn’t keep being snapped up for the federal bench.

        2. The biggest problem with conservatives in academia is that they self-select out. Rather than go into academia, after being only one of perhaps three total in the graduate program who were not liberals (though to be fair some were the good sort who could have an honest debate) I went and got a full-time job making more than a starting professor and I don’t have to play that Hunger Games that is trying to get tenure, always more difficult when you have to be twice as nice and four times as productive as a conservative.

          Though seriously, I don’t know what one does about the situation as a libertarian/conservative without betraying ones principles. The only solution with any real legs is outside money endowing positions in departments, because birds of a feather flock together, and hiring committees are certainly biased. The only salve, is that the % of students who are majoring in the humanities is sinking like the Titanic.

          1. The only real answer is giving up on the existing educational institutions, and creating new ones.

            And then making sure they don’t get taken over like the old ones did.

            Once an institution like a university has been taken over by the left, it’s all over, recapturing it is more difficult than replacing it.

          2. This is an important point. But people like Heriot won’t acknowledge the effects of self-selection because it doesn’t fit their conservatives-as-victims worldview.

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