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Affirmative Action

My Boston Globe op ed on What the Supreme Court Should do in the Harvard and UNC Affirmative Action Cases

I argue the justices should crack down on the dubious "diversity" rationale for racial preferences, and curb discrimination against Asian-American applicants.

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Today the Boston Globe published my op ed  (you may have paywall issues) on what the Supreme Court should do in the Harvard and UNC Chapel Hill cases challenging racial preferences in college admissions. Here's an excerpt:

The Supreme Court recently decided to hear two cases challenging the use of racial preferences in higher education: Students for Fair Admissions v. Harvard College and a similar case against the University of North Carolina at Chapel Hill. These cases focus on two important issues: the badly flawed "diversity" rationale for racial preferences, and Harvard's apparent policy of targeting Asian American applicants for discrimination. The Supreme Court would do well to rule against the diversity theory and make clear that anti-Asian discrimination is no different from that against other groups.

Affirmative action in college admissions began as an effort to compensate historically discriminated-against minority groups — especially Black people — for the many years of oppression they suffered. But the Supreme Court has largely rejected the compensatory justice rationale for such policies and instead endorsed the theory that racial discrimination in admissions is sometimes permissible to achieve educationally valuable "diversity…."

The racial categories used by Harvard, UNC, and many other universities are remarkably crude. The "Hispanic" or "Latino" category lumps together such varied groups as Argentinians, Cubans, Mexicans, and Puerto Ricans. "Asian" encompasses more than half the world's population, including Chinese, Indians, and Japanese. Arabs, native-born white Protestants, and Swedish immigrants are all classified as "white…." Such sweeping and arbitrary classifications amount to little more than crude racial stereotyping of a kind courts would reject in almost any other context. They certainly don't reflect any carefully nuanced assessment of different groups' distinct characteristics or potential contributions to educationally useful diversity.

If applied consistently, the diversity theory could justify a vast range of racial and ethnic discrimination…. This kind of near-blank check for racial discrimination is dubious under any plausible theory of constitutional interpretation, whether originalist or living-constitutionalist….

Perhaps the court should reconsider the compensatory justice rationale for racial preferences, which is far more compelling. But it is not clear how discrimination against one set of members of a racial group can be remedied by discrimination in favor of an entirely different set of people years later, whose only connection to the victims is that they are members of the same race….

If compensatory justice is the true purpose, schools should at least make extensive efforts to ensure that the beneficiaries of racial preferences really have been victimized by discrimination themselves, as opposed merely being members of the same demographic group as others who have.

Later in the article, I discuss the unfortunate parallels between today's anti-Asian discrimination in elite-college admissions, and early twentieth-century policies under which elite institutions sought to restrict the number of Jewish students.

I discussed the issue of anti-Asian discrimination in greater detail in this April 2021 article in The Hill, which also notes examples on the political right, as well as the left. This one of those issues where both sides of the political spectrum love to denounce the bad behavior of the other, while ignoring their own.

On a personal note, I grew up in the Boston area and have been a Globe reader since I was in elementary school. But this is the first time I ever got a piece published there. There is some irony in the fact that I published multiple articles in national media such as the Washington Post and the Wall Street Journal before finally managing to place one in my longtime hometown paper. But better late than never!

NEXT: A Chance to Repair the Law

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  1. Here's a novel concept. Why doesn't the Supreme Court just apply the law. Title VI of the 1964 Civil Rights Act:

    No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.

    If you take federal money, you can't discriminate. Whether your intentions are diversity, racial justice, reparations, or something else.

    See, that was easy.

    1. Then you're not allowing the elite law professor class a chance to opine. They get paid to opine.

    2. It was too easy. And your novel concept is clearly ahead of the times. 🙂

    3. Let me ask a very naive IANAL question.

      First, I am under the impression that there is some legal concept that if the end result is a disparity in racial (or other) representation, then there is racial (or other) discrimination, and the actual discriminating acts needn't be proven.

      Wouldn't the over-representation of Asians allow non-Asians the chance to prove discrimination in favor of Asians, therefore against everybody who is under-represented?

      I'm just playing ignorant devil's advocate here. I'm only half-sarcastic.

      1. No, that's not a legal concept. Not until they appoint Ibram X. Kendi as Chief Justice.

        You might be thinking of something called disparate impact, which says that in some contexts — primarily employment and housing — a policy which differently affects different groups may be illegal even if not motivated by racist intent. But only may be — not is.

        And it doesn't apply in the context of education.

        1. Thanks. Some of these legal concepts -- well, many of them -- most of them -- seem so strange that my unlegal mind has trouble remembering them.

          1. Unsurprisingly, David is incorrect.

            Disparate impact does affect education. There have been lawsuits about it. See Sharif v. New York State Educ. Dep’t, 709 F. Supp. 345 (S.D.N.Y. 1989).

            The most common place to find disparate impact analysis in education is in Title IX, especially in regards to sports funding for men versus women.

            For more, read this. https://www.justice.gov/crt/fcs/T6Manual7

            1. David is not incorrect, his point was not that education doesn't have disparate impact analysis, it was that it wasn't a rule but a *step* in determining some discrimination claims.

              1. One delusional denier supporting another.

                1. Imbecilic incel's insight!

      2. I am reminded of what I heard in a Human Resources class.

        If you discriminate in your hiring, you can get sued.
        If you don't discriminate and end up with lopsided representation due to chance or some other reason, you can get sued.
        If you discriminate to avoid this outcome, you can get sued, but if you don't you can get sued.

        The disparate impact standard makes compliance with discrimination laws effectively impossible.

        1. The disparate impact standard makes a bit of sense as a screening test; If you see disparate impact it might make sense to take a closer look.

          It has never made sense as an actual test for discrimination, and has driven the use of covert quotas as a protective measure, because a quota system is really the only way to be sure of not getting disparate impact.

    4. Because title 2 and 8 allow them to even if they are dealing with sunk costs. The truth is the CRA was crafted to allow govt to continue to try and control outcomes to buy votes. They simply could have written govt can't discriminate or pass laws forcing people or companies to and the last almost 60 years of everything from quotas to disparate impact selectivity, to bakers baking a cake for a gay couple would all have never occurred. You have to realize the intent was not to ensure govt would not discriminate but to force outcomes. If it was to redress Jim Crow you didn't need those other two sections.

  2. That kind of requires admitting they made a mistake with Grutter.

    You'd think that would be easy, only 3 of the conservative justices remain from that time, and they were all in the minority on that case. But, the Court positively HATES outright overturning previous decisions.

    1. Hate? I don't know. It depends....do they get a chance to allow wallow in the self-congratulatory praise they get from overturning a decision that is decried as racist/sexist/homophobic/islamophobic/somethingelsephobic?

    2. Affirmative action focused on getting descendants of American slaves STEM degrees would be inconsequential to white and Asian Americans thanks to the existence of HBCUs…and adding another seat in a liberal arts program is very cheap and not a big deal. So one of the top STEM colleges for Blacks is Xavier in New Orleans which is an HBCU and the billionaire McKenzie Scott Bezos just donated millions to it so it can educate more Blacks. “Diversity” is merely a euphemism for racism towards whites in the form of discrimination in college admissions. So adding more seats to Harvard liberal arts department specifically to educate descendants of American slaves could be satisfied with a $100 million in additional endowment which is nothing for Harvard and Yale. Anyway, America fucked this up like we’ve fucked up a lot of things the last 22 years so whatever. Btw, I have personally known whites that attended Ivy League schools that were convinced they got in because their city or their parent’s company had a fully endowed scholarship that they just happened to know about and apply for and get…so I don’t think fully endowed scholarships specifically for descendants of American slaves is inconsistent with the status quo.

      1. If they are a private college they can admit anyone they want. If they take public funds, they can't discriminate. Which is why the SAT is so powerful...it is race blind. The best get in..no matter their race or religion or anything else. The problem is in a free society when you don't get the results you want, you look to blame someone else, a test, other factors and so on. If Asian American kids are kicking ass academically..then they deserve more slots..Catholics are underrepresented at Harvard for example..we don't need a Catholic slot(s).

    3. But, the Court positively HATES outright overturning previous decisions.

      Indeed. And you may want to think about this Chesterton's fence a bit more.

      1. Excellent comment, 'conservatives' like Brett make better Jacobins/Bolsheviks than anything like Chesterton or Burke.

        1. Burke was a Whig, not a conservative.

          1. When pedanticism crosses over into retardation.

          2. Edmund Burke, an Anglo-Irish Whig statesman and philosopher whose political principles were rooted in moral natural law and the Western heritage, founded traditionalist conservatism.

            1. Bob thought that was Limbaugh.

            2. Still a Whig.

              He founded at best US right liberalism.

              https://en.wikipedia.org/wiki/Conservative_liberalism

              He wasn't a conservative in his own day even.

              1. Bob is still flabbergasted at why Trump put up a portrait of the great liberal Democrat Andrew Jackson.

                1. Well, he did kill the bank...ha ha

      2. You mean Chesterton's fence, in regards to the Slaugherhouse decisions, maybe?

        No, I think they just have a general bias against overturning past decisions directly, even if they have every reason to believe they're wrong.

        1. "You mean Chesterton's fence, in regards to the Slaugherhouse decisions, maybe?"

          Guessing what this could possibly mean is like playing Powerball.

          1. Refusing to directly overturn the Slaugherhouse cases gave us 'substantive' due process to avoid overruling the Slaughterhouse Court on the meaning of privileges and immunities, and enabled selective incorporation of the Bill of Rights instead of wholesale incorporation.

            All because they couldn't just come out and say the Court had ruled wrongly in the Slaugherhouse cases, when basically everybody knows the Court had deliberately spiked the 14th amendment because they didn't like it.

  3. Its not really necessary anymore. Schools requiring an essay which is at least glanced at for every applicant is common practice and completely workable. There is no reason for an automatic credit or deduction of points based on race anymore. Schools just want to be lazy and skip their homework like some snotty teenager.

    1. "Its not really necessary anymore."

      Because, say, blacks are not under-represented in places like that anymore?

      1. If they are truly underrepresented, or lack privilege than that should be clear from their essay and more nuanced parameters. Unless you have some reason why blacks should continue to be treated like a monolithic block than please enlighten us? They all look the same to you right?

        1. Truly represented? You don't believe math or statistics are 'true?'

          1. Certain subgroups in 'overrepresented' blocs we use now are underrepresented and vice versa. Are you saying we should discriminate against the children of poor vietnamese rice farmers because the children of rich CCP apparatchiks are overrepresented in schools?

            1. It's a matter of statistical/mathematical fact that the groups in question are still underrepresented. Since the entire rationale upon which academic AA rests on is it can only be used when necessary to combat this under-representation your initial claim that 'it's not necessary anymore' is goofy and your follow up with 'truly underrepresented' is goofy on stilts.

              1. You are begging the question hardcore. You claim "underrepresented" without any specific analysis or citation, and you assume that -- taking "underrepresented" as a given -- the proper remedy is to fudge university admissions to try to balance representation. In many -- and perhaps most of the relevant -- ways, the defining character of these universities is that they do NOT represent the overall American public. One of their core goals is to be unrepresentative.

                1. I'm not begging the question when someone claims 'it's not necessary anymore' in response to Grutter and Bakke which said that the rationale is to address under-representation. Are they not under-represented any more or not? That's a math/stats question.

                  "the defining character of these universities is that they do NOT represent the overall American public. One of their core goals is to be unrepresentative."

                  Talk about question begging! Public universities are government benefits programs. Why assume their criteria should be supporting the most resourceful?

                  1. No, Grutter and Bake said that "addressing underrepresentation" was an acceptable purpose.

                    And Harvard is not a public university. Most of the other really selective universities are also private.

          2. Famously, there are three kinds of lies.

            1. Time for the facile funnies folks!

              1. It's only funny because it's true, you nitwit.

                1. It's true that math is a bunch of lies? Hey, I can see why a Trumpist such as yourself would *like* that to be true, but why would anyone else agree with ya?

                  1. No, it's true that there are three kinds of lies: lies, damned lies, and statistics.

                    You might understand the joke if you knew more about statistics than how to spell the word.

          3. "You don't believe math or statistics are 'true'?"

            There is nothing less true than statistics.

            1. This guy believes in plumbing!

      2. Diverses are over-represented in fields where they make an effort, such as sports. Blacks from Africa are the new Koreans, and busting academic curves, because they put in the effort. They rebut all claims of racism against the US. They are much sought after by admissions and by employers. Why? Because they perform well.

        In this instance, Ilya is correct. These traitor schools should all be defunded, de-accredited, shut down by force. Then, seize their assets in civil forfeiture.

        1. Autistic authoritarian's allocution!

      3. Is it due to racial discrimination by the universities?

  4. Good for you Prof Somin, and this is probably the first time I agreed with one of your articles here. I like the distinction between compensatory justice vs the supposed value of diversity. Too often people blur these together, but they aren't the same goals. I should add that these colleges are only concerned about racial diversity, not diversity of ideas or thoughts.

  5. "Diversity" has always been a pretext. There's something to be said for "diversity" and there's something to be said for "uniformity." Neither merits special legal treatment.

    However the Harvard case has taken so long that it doesn't matter if Harvard loses, because the ball has already been moved under the next cup. Which is abandoning SAT scores and any other objective admission standard. If it's down to "Well, I liked the cut of xer jib" you don't need to admit race was a criterion at all.

    1. I wouldn't ever say that an elite lefty organization wouldn't cut its own throat to meet one of its political goals, but getting rid of standardized tests and other objective measures would mean that they would start losing the best students, which are the gold nuggets of the upper tier universities. Slowly they would become what they once were - clubby, good old boy homes for the mediocre sons/daughters of the wealthy. Instead of rich WASPs there would be a different "club" of bespoke demographics. And it's not 1930 anymore, there is too much competition for the best academic talent. So, I think they'll keep their admission standards, but figure out a way to game the system to keep their tokenism going.

      1. They're not going to totally ignore SATs, anybody with a high SAT score is going to mention it, if you don't you're going to be presumed not to have a very impressive one.

        They'll just officially not take them into account, so that they can selectively take them into account.

        1. The dirty little secret about "test optional" schools is that they can't meet their diversity goals without lowering their academic standards. All of the smart minority kids are scarfed up by the Ivies and other high status schools. The faculty are loathe to overtly sanction the lowering of academic standards, so just get rid of the main way to show what your academic standards are and presto - diversity. And everyone is happy.

      2. The history of the SAT is not as, er, black and white as your narrative suggests.

        https://www.insidehighered.com/admissions/views/2020/08/17/history-sat-reflects-systemic-racism-opinion

    2. While you may be correct, that getting rid of SAT score requirements will allow the flexibility to have more minority students, I have to ask, are demographic statistics something that are required for application paperwork?

      I suppose what I'm asking, is if applicant examiner Betty McLiberal is looking at an application for "Joe Smith", unless their essay says "as I black man, I overcame XYZ" then how they going to know the race of the applicant? Cues are there in the name, to be sure, and they can always do an internet search and see the kid's stuff if they are silly enough to have it online. Does the high school provide it on the transcripts?

      1. It's been a while since you've been to college or had a kid go to one I see.

      2. "I have overcome many challenges as a black person in America" is going to be a key essay topic if you know they're considering it. It's laughingly easy to fit stuff in that you want the committee to consider, no matter what the prompt.

    3. In order to keep a system like that going I wonder if lying under oath would be necessary, and whether the employees of Harvard would be willing to do that.

      1. I wonder if lying under oath would be necessary, and whether the employees of Harvard would be willing to do that.

        These are among the many things that i do not feel it necessary or profitable to wonder about.

        1. These are among the many things that i do not feel it necessary or profitable to wonder about.

          Well, were California colleges able to simply move the ball under the next cup after affirmative action in college admissions was outlawed there?

    4. It was a pretext for...Lewis Powell? You know, the guy who wrote the Bakke opinion? Sure, cool story.

  6. Until society acknowledges that blacks have an average IQ of 85, and thus will be underrepresented in anything positive, and overrepresented in everything bad, we'll never get anywhere.

    1. That ain't going to happen. It's always going to be something other.

      (cue the attacks on the science of IQ testing)

      And blacks are over-represented in all sorts of positive things sportsball.

      1. Well, then we'll continue down this road of delusion thinking that these people can ever be equal to us.

        And regarding professional sports, I guess we have different ideas of "positive..."

        1. I never said anyone won't be equal. Equal legally, supposedly (hopefully), and we are all equal in the eyes of God.

          But not equally distributed in terms of outcomes. You may as well complain there there is a dearth of professional Jewish boxers not equal to their proportion of the population, or not enough male nurses compared to their proportion of the population, or female steeplejacks.

          1. It's funny how conservatives caterwaul about being under-represented in, say, entertainment, journalism, academe, but then to pretend not to understand why groups that really have had a terrible history of being treated poorly when under-represented in influential professions would get upset by that...

            1. These groups are underrepresented in influential professionals because they don't have the mental ability for them.

              1. Sure, just like they used to say about the Jews, Irish, Asians, etc.,

                1. Why do Africans fail everywhere they exist in the world?

                  1. Several commenters here have pointed out how well Nigerians do here.

                    1. It's difficult to immigrate here from Nigeria, so those we get are not representative of the whole.

                  2. Say, you sound familiar. Do you have any thoughts on criminalizing sodomy?

                    1. Not really, no. I don't really care what you pervs do.

                    2. Lol, hello!

    2. According to Thomas Sowell:

      Perhaps the strongest evidence against a genetic basis for intergroup differences in IQ is that the average level of mental test performance has changed very significantly for whole populations over time and, moreover, particular ethnic groups within the population have changed their relative positions during a period when there was very little intermarriage to change the genetic makeup of these groups….

      Perhaps the most dramatic changes were those in the mental test performances of Jews in the United States. The results of World War I mental tests conducted among American soldiers born in Russia–the great majority of whom were Jews–showed such low scores as to cause Carl Brigham, creator of the Scholastic Aptitude Test, to declare that these results “disprove the popular belief that the Jew is highly intelligent.” Within a decade, however, Jews in the United States were scoring above the national average on mental tests, and the data in The Bell Curve indicate that they are now far above the national average in IQ.

      1. That to me just indicates that the IQ tests of that time required a grasp of English that Russian born soldiers didn't have.

        1. Apparently that's not what it indicated to Sowell. Or maybe he was being intentionally dishonest.

          1. Or maybe he didn't want to acknowledge that the bulk of people who share his skin color are borderline retarded. It's hard for the few intelligent blacks to come to terms with this.

            1. So you think he was being intentionally dishonest.

              1. More likely Nisiiko thinks Sowell is too genetically retarded to recognize the truth. Or maybe genetically disposed towards intellectual dishonesty. Unlike Nisiiko, who is of the superior genetically inclined folk of pale skin.

              2. No. I think he was deluding himself.

                1. Of course you're not, amirite?

                2. Or maybe he didn't want to acknowledge that the bulk of people who share his skin color are borderline retarded. …he was deluding himself

                  Sowell recognizes the validity of IQ tests. His point was that a genetic basis for intergroup differences in IQ is questionable when the average IQ of some groups rose dramatically under circumstances in which there was no change in the genetic makeup. The original Jewish scores caused Carl Brigham, creator of the Scholastic Aptitude Test, to declare that these results “disprove the popular belief that the Jew is highly intelligent.” Was Carl Brigham also deluded? Is it your position that anyone who believes that the original IQ tests were valid is deluding himself?

      2. Good quote, thanks.

      3. Sowell has a lot of other smart things to say about why standardized tests are poor proxies for IQ. But one counterfactual is that if you control for test takers from single parent household, the differences between the scores from all demographic groups all but vanishes. The differences between the percent of kids from single parent households for black, white, and asian demographics and the differences between their SAT scores is about a .9 R squared correlation.

        1. We are a consumer spending economy—IQ really isn’t that big a deal in our economy because most jobs don’t require a high IQ.

          Focusing on IQ is a way to rationalize not paying reparations to descendants of American slaves. Furthermore the most successful immigrant group right now is Nigerians and so Black immigrants will increase the IQ of Blacks in America as they marry descendants of American slaves. Btw, the fact few Blacks immigrated here is due to racism—so the low IQ of descendants of slaves is a product of racism and it only takes one generation to fix it.

          1. Another person who disagrees with Sowell but who won't answer his argument.

            1. I support reparations and when I make the case for reparations I sound like a KKK grand wizard right up until the point I say I support reparations. Look at the data—it’s not good.

        2. But one counterfactual is that if you control for test takers from single parent household, the differences between the scores from all demographic groups all but vanishes.

          I am skeptical of this thesis. Do you have a paper to link with that correlation?

    3. Saying the quiet parts out loud!

  7. Ilya, I think there's a Daoist proverb about how a man can leave home, travel around the world searching only to find himself at his own front door again.

    1. He doesn't read the comments (two wussy in IMO). You have to email him. He sometimes responds I'm told.

    2. Wow. So deep. Pass the doobie.

  8. What we need is for the next Republican administration to direct the IRS to apply the Bob Jones University standard and strip private universities of their 501(c)(3) status if they engage in racial discrimination in admissions.

    It would be hilarious, at the least, to watch the Ivy League's lawyers desperately try to convince the courts that, contra the 7-justice majority opinion in 1983, the US government does not have "a fundamental, overriding interest in eradicating racial discrimination in education".

    It would alternatively be fun to watch Ivy League's lawyers try to argue that a university's interest in the diversity of its student body has a higher value in US law than a university's Free Exercise rights.

    1. Equally likely that we might one day hope to see a Harvard president state that diversity is of such importance to his university that he is willing to forgo all Federal dollars.

  9. Somin, you're engaging in the dishonest behavior you accuse others of.

    Lumping such different groups as Chinese, Japanese, Indians, and Filipinos into a single category...

    Your sole claim of right wing discrimination against Asians is Hong Kong asylum applicants. Zero claims of anything else. Further, you completely ignore the rational given without addressing it. You fail at arguing on the merits.

    1. It's rationale dude.

      1. Could have been a typo, dudette.

  10. Affirmative action is so stupid, I mean look at pro sports, like the NFL! There they hire the coaches that are the objectively best for the job after an objective, fair, extensive process of review and interviews [sees ESPN headline of Flores case]....um, er, I'll come in again!

  11. I have not followed this issue. Can someone tell me what Exhibit A is, to prove Harvard discriminates against Asians?

    1. The effective threshold for metrics like standardized test scores and GPAs in terms of being accepted to Harvard is considerably higher for Asians than for non-Hispanic Whites, and considerably higher for non Hispanic whites than Blacks and Hispanic Whites. According to the New York Times (https://www.nytimes.com/2018/06/15/us/harvard-asian-enrollment-applicants.html), this appears to have been through systematically using squishy metrics to down-rate Asians. You know, the kind of profiling that the left always complains about law and border enforcement officers using. And Harvard reportedly knew about its bias since at least 2013.

      1. "systematically"

        ???

        1. Epicanthal folds are evidence of a bad personality, evidently.

          1. I already wrote ???, did you not see it?

        2. We're sorry. We thought you knew what that meant, based on your allegations of systemic racism. Should we teach you about dictionaries?

          1. No, no, don't dodge. What do you mean by that?

            1. I mean they have a mechanism in place to use stupidly vague and subjective judgments to enforce their racist preferences over the evidence of their objective metrics. It was probably installed by people who believe in Critical Race Theory -- who agree with Ibram Kendi and George Wallace that we should have racism today, racism tomorrow, racism forever.

      2. Michael P, I read the link, hoping to find some hard numbers. Something like SATs for admitted Whites vs. SATs for admitted Asians. That kind of info seems to have been judged too specific for inclusion.

        1. The NYT knows its audience, I guess. If you want hard numbers, Google points to the Times's cross-town rival: https://nypost.com/2018/10/17/harvards-gatekeeper-reveals-sat-cutoff-scores-based-on-race/

          1. Michael P, I wanted to consider a point which might come up if the data disclosed varying distributions among math and verbal scores. Combined scores don't get the job done for me, but thanks for trying.

            Also, I note that none of the scores discussed refers to admitted students, just to guidelines for dealing with prospective students. If that is all the plaintiffs present to make their case, then I do not see how they can prove a case of discrimination in admissions. Seems like they need numbers directly related to real admissions.

            1. Did you try reading the briefs?

  12. 1. If blacks make up 14% of the population but only 5% of students at influential problems, that's going to seem like a problem, isn't it? How would one expect black persons to not buy into, say, the 'CRT' type stuff about the 'game being rigged against them' given these statistics? Not worried about what might be the lack of role models (or highly educated leaders) for blacks in that situation, thus creating a kind of self-perpetuating under-representation?

    2. If the answer to the first question is yes, it's a problem, then what do you propose *other* than preferences to address it?

    1. If blacks are doing badly at K-12, how exactly are they supposed to be equally represented in higher education? That's the problem here, a backwards approach to fixing things: You have to start at the beginning of the education process, not the end, after the damage is already done.

      1. Indeed. Starting at the end actually makes the problem worse.

      2. Someone should tell all the woke Silicon Valley corporations that say they care about this stuff to focus on what might really make a difference: getting a poor kid living in a poor neighborhood a good K-12 education.

        If "systemic racism" is a thing anywhere in the US, it exists in the government school system's patterns of poor kids living in poor neighborhoods getting little or no education in the government schools. But nothing ever gets done because that’s a Dem money/power center and funding for anything there needs to be funneled through Dem system insider hands to be used to sustain their power.

        1. " If the answer to the first question is yes, it's a problem, then what do you propose *other* than preferences to address it?"

          You might think they didn't see it, but more likely they haven't thought about it.

          1. It often helps to address what won't work, and what shouldn't be done.

            Let's start at the beginning: What sort of equality are people actually entitled to, as a matter of law, and perhaps, morality?

            Equality of endowments? No. To the extent that's possible at all, it's only in a Harrison Bergeron style leveling down. Tearing down the people who were better.

            Equality of outcomes? No, again, ultimately that's only possible through leveling down, harming the people with better outcomes. There's no bottomless well of outcomes the government can reach into and level people up, all the "up" comes from tearing somebody else "down". Does that somebody else not have rights, themself?

            Equality of rights. Equality of treatment by the government. THIS is the only sort of equality people are constitutionally entitled to. The very things that any attempt to achieve equality of endowments or outcomes must violate, right out of the starting gate.

            What you're talking about is a sort of Potemkin equality. An illusion of the expected consequences of legal equality, achieved by violating legal equality.

            I reject it categorically, regardless of whether you think it well intended.

            1. This kind of reductive policy understanding is the usual way folks argue against affirmative action.

              What about the meritocracy? Is it actually a meritocracy? What about the outcome of how institutions with more diverse populations function better? What about not sheltering people in largely white/Asian institutions in their formative years? What about addressing systematic racism until we can deal with it more, well, systematically?

              You can talk about being colorblind all you want, but when it comes down to the brass tacks of implementation your airy ideals turn into not great policies. Policies that lock in racial disparities and leave a lot of potential benefits on the table.

              1. Got a better chance of being color blind if you start out trying to be color blind, than if you start out rejecting it as a goal, and embracing racial discrimination today, tomorrow, and forever.

                1. Saying 'government should be colorblind' when the society it governs is very much not is being willfully blind. Blind of historical legacy, of individual experiences of both whites and nonwhites, and of institutional systems both public and private.

                  That you rely on rhetoric shows how much you don't want to get into the nitty gritty implementation. Devil's in the details, as they say.

                  'this is the key to solving racism today, tomorrow, and forever' is like saying the way to get to Australia is to start walking southwest.

          2. Now, what is to be done? That's a tough one, and to even have a chance of answering it, you have to correctly identify the nature of the problem; If you get that wrong, all your efforts will be futilely misdirected.

            The problem is not racism. That's an illusion and an excuse for not identifying the real problem.

            The problem is cultural. Some cultures work, some don't. Blacks are disproportionately, (But not exclusively!) trapped within a very destructive culture that almost guarantees failure. That devalues almost all the traits and habits that lead to success.

            Essentially, once trapped in that culture, (Which grew up well after Jim Crow was ending, it's a product of the War on Poverty, not Jim Crow.) blacks don't need anybody to hold them down, they do a fine job of that themselves.

            Blacks who aren't part of that culture do just fine. Whites who are part of it do just as badly. It's ALL about the culture.

            Now, how do you fix a broken culture? I don't know that anybody has that figured out, but I do know how you don't fix it:

            By telling the people trapped in that culture that their problems are all somebody else's fault.

            Because if the problem is somebody else, YOU don't have to change, they do. And if the problem is really you, and you think that, you're doomed.

            1. Some cultures work, some don't. Blacks are disproportionately, (But not exclusively!) trapped within a very destructive culture that almost guarantees failure

              Putting aside how 1990s this take is, it seems to me that if they're applying to Harvard, that's probably not going to be the case.

              1. That's right, if you're applying to Harvard, you were either never a member of that culture, or managed to escape it. Nobody who actively tries to avoid "whiteness" as described in that Smithsonian chart has a prayer of ending up in Harvard, and that's the point.

                1. There is no black culture, that's been largely debunked since the 1990s.
                  And even if there is you probably shouldn't start any policymaking by declaring the problem to be the color-based culture. If that's the logic that gets you to colorblindness...well, that doesn't sound very colorblind to me!

                  1. I never said there WAS a "black culture", and I think you know that, because I was very careful NOT to say anything that could be easily misconstrued that way.

                    I said there was a dysfunctional culture that blacks were disproportionately members of. And that white who are members of it are similarly disadvantaged.

      3. " If the answer to the first question is yes, it's a problem, then what do you propose *other* than preferences to address it?"

    2. 1. If whites make up >50% of the population, but less than 10% of players in the NBA, that's a problem, isn't it?

      Discuss....

      1. You have to love that he wrote this long past my NFL post. Self-awareness, not a big thing for conservatives.

    3. Allow private entities to have freedom of association so they can give all the affirmative action they want.

      Get the government out of funding and running everything.

  13. I bring this up, not to rebut Professor Somin, but because it is thoughtful and not well publicized.

    A Korean-born American lawyer makes a case in favor of admissions policies that don't recruit all the highly qualified ethnic Asian applicants.
    https://askakorean.blogspot.com/2010/03/affirmative-action-and-asian-americans.html

    I'm not taking sides here but considered both to be worth reading.

    1. The Korean seems to be making excuses for screwing over some Asians for the hypothetical benefit to others.

      1. The Korean seems to be making excuses for screwing over some Asians for the hypothetical benefit to others.

        Good work Brett. Although you phrase your insight egregiously, you have grasped the concept of selective admissions. Some people get admitted, others get denied. The college selects which.

        Now take it the next step. On what basis do you suppose a private college with a policy to be selectively non-meritocratic in its admissions should be barred by government from doing it that way? For instance, could you even imagine a non-meritocratic admissions policy which was also not illegally discriminatory? Apparently not. That does not mean it cannot happen. Have someone check out the scope of your imagination.

        You seem entranced by some arbitrarily-selected definition of meritocracy. But you have not taken even the first steps to show that meritocracy is even a thing, let alone a specific thing defined the way you like it. It is there in your imagination, and there in your aspirations. What if it is not there in reality? What if there is no such thing as meritocracy-by-policy? What if meritocracy is not a thing which government gets to impose? Can you show otherwise?

        What if some day policy makers thought it over and concluded, "Holy crap, did you ever notice that in a democracy the notion of meritocracy requires those judged less-meritorious to endorse the notion of their own inferiority? How can that work unless we take away their votes?" And then, over lunch, the policy makers figure out how they got a power to take away someone else's vote, on the basis of their own superior merit.

        Or could we just cut the crap and the pretense? Why not acknowledge that this whole sue-Harvard thing is nothing more than a stalking horse to give cover to a movement-conservative Supreme Court to blow up affirmative action for black people?

        1. "Holy crap, did you ever notice that in a democracy the notion of meritocracy requires those judged less-meritorious to endorse the notion of their own inferiority?"

          Where did that fantasy come from? The less meritorious are free to harbor delusions about their competence, and go through life puzzled about why they never get anywhere. Nothing about meritocracy requires anybody to endorse their own inferiority.

          1. Brett, a meritocracy does not work automatically. It is a deliberate arrangement of systems to advantage the meritorious, and disadvantage the others. There is no point pretending you do not understand that. You have been advocating to get those systems running at maximum efficiency. You complain about attempts to adjust law and policy to treat the "less-meritorious" as equals. For folks you consider to be less meritorious, you want that prevented by law.

            Why not acknowledge that this whole sue-Harvard thing is nothing more than a stalking horse to give cover to a movement-conservative Supreme Court to blow up affirmative action for black people?

            1. I don't think you understand the concept of a stalking horse.

              Plaintiff: "Affirmative action is racist and discriminatory and should be abolished."
              Lathrop: "Why won't you admit that you're trying to end affirmative action?"

              1. Actual Lathrop: The notion that anti-racists are the real racists is evil lunacy. Compounding the evil? Making Asians a pretend stand-in for blacks.

                Also, why not acknowledge that this whole sue-Harvard thing is nothing more than a stalking horse to give cover to a movement-conservative Supreme Court to blow up affirmative action for black people?

            2. "Brett, a meritocracy does not work automatically. It is a deliberate arrangement of systems to advantage the meritorious, and disadvantage the others."

              I dunno that meritocracies need a whole lot of arranging. Bob and Ted are running from a lion. Bob is a faster runner, and so Ted gets eaten. Nobody has to arrange for things to work that way.

              Having some other outcome is what takes arranging, by giving Ted a head start or making Bob carry a weight or something.

              1. Absaroka, do you see that, "-cracy," on the end of, "meritocracy?" That suffix refers to ruling systems, not to natural happenstance.

                Of course I find appealing and almost self-evident the notion that I am meritorious, and on that basis naturally your superior—entitled to rule at pleasure, while you obey under penalty. But I am not fool enough to suppose a state of nature can be relied upon to arrange things that way. Nor do I think that self-evident natural tests are likely to convince you—however unmeritorious you may be—that in any civilized state you would be wise to submit yourself to my superiority.

                1. "Of course I find appealing and almost self-evident the notion that I am meritorious, and on that basis naturally your superior—entitled to rule at pleasure, while you obey under penalty."

                  Really? Well that explains a lot.

        2. On what basis do you suppose a private college with a policy to be selectively non-meritocratic in its admissions should be barred by government from doing it that way?

          Sigh. We went over this once before, and you (as is always the case) disappeared from the thread as soon as I pointed out how dumb your position was.

          The government is not barring schools from being non-meritocratic. The government is barring schools from racially discriminating. They can choose any criteria they want for admissions as long as those criteria do not discriminate based on membership in a protected class. They could put all their applications in a hat and pick at random. That would be non-meritocratic, but would not run afoul of the law.

          The "basis" is anti-discrimination law. The same "basis" that bans Ford Motor or WalMart or the NFL from racial discrimination in hiring. There's a respectable libertarian argument that such laws should not apply to private entities. But, they do in fact apply, and that's deemed constitutional. There's no "except colleges" provision.

          1. Nieporent, when you and I are talking past each other, as so often happens, I don't have any compulsive need to keep it up. Once I know an intelligent bystander will likely conclude I have a good argument, I'm often content to give you the last word.

            1. As an intelligent bystander I don't think I can recall you having a good argument in a dispute with David.

          2. Nieporent, we have been talking past each other. You want anti-discrimination law to decide the question, while apparently assuming plaintiffs in this case avail themselves of a method adequate to prove discrimination. I do not ignore anti-discrimination law, but I do question how any method mentioned in this case can purport to establish discrimination by Harvard.

            I can't tell from you comments whether you think Bellmore's reliance on meritocracy ought to get the job done, or whether meritocracy should be given any legal credence at all. The plaintiffs' case does seem to me to presume meritocracy as a relevant standard. Do you think meritocracy is a legal requirement to govern college admissions for private colleges? If so, how can "merit" be made legally measurable?

            1. You seem really opposed to merit. I'm curious if you oppose it in your own life. Suppose you get referred for some kind of surgery. Do you ask 'who is the best surgeon of that type I can get', or do you think something like 'well, 3 out of 4 of my current doctors are women, so I'm going to look for a male surgeon this time'?

              1. Absaroka, merit is the best thing ever. Meritocracy is not merit. Meritocracy is a theory about how government should work.

                1. You don't see a connection between you personally getting the best surgeon possible, and med schools admitting the best available students?

            2. Whatever Bellmore thinks is irrelevant, this is about what the law says, which is that you can't do racial discrimination. Harvard says that it can because its interests can trump the law.

              1. Harvard does not say that.

                1. Stephen,

                  I think I follow what you’re saying for awhile, but sometimes you switch gears, and I think I understand the connection you’re making, but then I kind of get confused about how you think it should be, and what you think is legal.

                  I get that you think the legal case against Harvard might rely on some squishy definition of meritocracy to PROVE that they discriminate on the basis of race. That’s fine. You’re either right or wrong about that. IANAL and I don’t know enough about the case itself to have an opinion on that.

                  My questions to you are very simple:

                  Regardless of what you can prove in court, do you think Harvard discriminates on the basis of race? Do you think they are legally allowed to do so? Do you think they are in compliance with title VI?

                  If Harvard does discriminate on the basis of race, but is also in compliance with anti discrimination law, can you explain why that is?

                  Are you simply defending the legal diversity rationale?

                  Does this legal rationale apply to other businesses?

                  Should the owner of an apartment building be able to limit the amount of Asian tenants based on their population percentage in America? Or if not strait up put a ceiling on it, could the owner set a higher requirement bar for Asian applicants if they are over represented in the building? If not, why not?

            3. Sigh. I've already answered this: No, I don't think meritocracy is a legal requirement. I think non-discrimination is a legal requirement.

              That's true for school admissions decisions as it is for employment decisions. Apple is not legally required to hire the best programmers. Home Depot is not legally required to hire the best hardware salespeople. Ford is not legally required to hire the best automotive engineers. But what they can't legally do is consider race in their hiring decisions.

              And if an Asian programmer applies for a job at Apple and gets turned down even though his credentials on paper are better than the person that got hired, Apple can say, "Well, we weren't looking for the best programmer; we were looking for a good enough programmer who could help our company softball team." What they can't say is, "Well, we weren't looking for the best programmer; we were looking for a good enough programmer who's white."

              But if statistics show that Apple routinely hires white programmers who are significantly inferior to Asian job applicants who get rejected, it's going to have a lot of 'splainin' to do.

  14. Well said, Ilya ... and I wouldn't lose any sleep over not getting published in the Globe.

  15. The Court is and has said they want to eventually end affirmative action. They can start by limiting it to first year students period as undergraduate institutions. All graduate schools, and 2nd year students, transferring in get no affirmative action, period. This does not end it completely, but limits it severely, which may be the best the Court can do at present, with minimal repercussions.

  16. @IlyaSomin You really ought to talk to Brian Davison. These are fixable issues if we put fixing the issues ahead of protecting political interests.

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