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A Dubious Expediency

How Race Preferences Damage Higher Education

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If you haven't checked it out already, please take a look at A Dubious Expediency: How Race Preferences Damage Higher Education (edited by Maimon Schwarzschild and yours truly).

The theme is just what the title suggests—that admissions policies that give preferential treatment to under-represented minorities have not been good for colleges and universities (or indeed for anyone, very much including the policies' intended beneficiaries). The book contains eight fact-filled essays. Among the authors are John Ellis, Lance Izumi & Rowena Itchon, Peter Kirsanow, Heather Mac Donald, Maimon Schwarzschild, and Peter Wood. I have two essays in it. One is mine alone. The other was co-authored by Carissa Mulder.

The title comes from one of my favorite left-of-center jurists—Stanley Mosk. He wrote the majority opinion in the California Supreme Court's decision in Bakke v. Regents of the University of California (1976), which (unlike the U.S. Supreme Court's fractured 1978 decision in the same case) was unequivocal in holding race-preferential admissions to be a violation of the law. As Mosk put it in 1976, "To uphold the [argument for race-preferential admissions] would call for the sacrifice of principle for the sake of dubious expediency and would represent a retreat in the struggle to assure that each man and woman shall be judged on the basis of individual merit alone, a struggle which has only lately achieved success in removing legal barriers to racial equality."

Mosk's credentials as a liberal and a civil libertarian were impeccable. He'd been an effective advocate for civil rights long before it became fashionable and stuck his neck out for them several times. Yet beginning with the Bakke case, he lost favor with the Left. It's funny how that works.

With the Supreme Court's decision to review Students for Fair Admissions v. President and Fellows of Harvard College (No. 20-1199) and Students for Fair Admissions v. University of North Carolina (No. 21-707), the book is getting some additional attention.

Amicus briefs in those cases in support of the petitioner (or in support of neither party) are due in early May. If you are so inclined, there is still plenty of time to write one. And A Dubious Expediency will give you food for thought if you're not yet sure exactly what you'd like to cover.  Don't be shy.  What the country needs now is more lawyers with at least half the civil courage that Stanley Mosk had.

NEXT: Today in Supreme Court History: March 2, 2016

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  1. How about an admissions system that gives preferential treatment to wealthy white families, through preferences for legacy students (whose families are almost always white, because, well when their parents and grandparents attended whites were usually about the only folks allowed to attend) or preferences to families who donate a lot of money so people like Jared can get in (are white families wealthier than minority families, inquiring minds want to know).

    Oh, ok, those preferences are the right kind of preferences.

    1. Sid, how about data? What is the drop out rate by preferences? What are the grades by preferences? What is the employment rate and salary after graduation by preferences?

      1. The highest graduation and starting salaries belong to mining schools and to maritime colleges. Minorities would do well to look at those outcomes and to choose less competitive but more successful schools.

      2. They don't care about data. Their religion is a fact-free one.

    2. Oh, yeah, Sid there is broad support in the public for those types of programs. That’s why colleges are dropping them right and left. Even in conservative Texas the two largest schools dropped legacy admissions years ago.

      Just because someone is opposed to a policy you favor doesn’t mean that they’re in favor of the opposite policy that you oppose.

    3. There are substantial differences between race and level of wealth/income and the rights and privileges associated with each.

      We don't outlaw even government treating people differently based on their income or wealth. Government programs do this regularly with programs like SNAP, welfare, Medicaid, and higher incremental tax rates on the millionth dollar earned in a year than the first dollar earned in a year.

      This is in sharp contrast to race where we, both in government and in most commercial forums, supposedly ban discrimination by race (although, oddly, sometimes not if the "races" being discriminated against are white or Asian or simply "not minority" as in government contracts favoring "minority owned" businesses).

      As far as "Are white families wealthier than minority families"... Sometimes yes, sometimes no. For example, I'm not a racial minority in the usual sense of the word and the Obama family is -- but I'm pretty sure that Obama's family will end up being substantially wealthier than my family and that their daughters had far greater opportunities based on their social strata rather than just merit than any offspring of mine would have (and I have no problem with that but apparently others, oddly, have a problem that my family is substantially wealthier than the median black family whose parent(s), unlike mine, didn't focus on education, morality, and ethics in their upbringing).

      I'm in favor of 100% objective merit based admissions to all universities to the extent that's possible. However if a private university wishes to favor legacy applicants, that's their business -- regardless of the race or wealth of those legacy applicants (but not because of the race of the applicant). It may not serve them well and they might even disappear from the landscape if the keep doing that as public opinion turns against such polices, but that's their decision to make.

  2. To uphold the [argument for race-preferential admissions] would call for the sacrifice of principle for the sake of dubious expediency and would represent a retreat in the struggle to assure that each man and woman shall be judged on the basis of individual merit alone, a struggle which has only lately achieved success in removing legal barriers to racial equality."

    There it is, right out in the open. Meritocracy. Now let's hear from Nieporent and his fellow meritocrats. Please explain where to find any legal basis to compel meritocracy. After that, please explain who says what constitutes merit, and whether courts get to make law about that, or second-guess legislators if the courts do not like the way the legislators define merit.

    After that, explain please on what basis private colleges and universities will be compelled to adopt judicially enforceable standards of merit.

    1. What's wrong with merit? Merit is just based upon one's own actions, talents, and skills. What's wrong with that?

      1. Merit is fine. Meritocracy is a system of government. It requires laws to compel it legally. I am asking about the laws.

    2. So you're asking people to defend a position that neither they nor the article above actually made.

      It does seem telling that you are reacting against the concept of merit, though. Are you really in favor government by the incompetent?

      1. Rossami, you earn the same reply I gave BCD above. Merit and meritocracy are not the same. I am all for merit. I have major doubts about meritocracy. If this nation proposes to bolt onto our constitutionalism an ancillary means of governance, it at least ought to be a means equipped with a legal definition.

        Suppose for the sake of argument that anything ending in, "ocracy," will meaningfully affect the distribution of education, wealth, opportunity, honors, and power. If in the United States you intend to add such a potent suffix to, "merit," why would you expect to find any majority to agree on any standard defining what constitutes merit? If you could not get majority agreement, under a democratic form of government, why would you expect a dissenting majority to do anything except use its political power to overturn a disfavored standard?

        Democracy and meritocracy are fundamentally incompatible—at least in societies where those judged unmeritorious remain unwilling to accept that label, with its pejorative tone, intimations of powerlessness, and materially harmful implications.

    3. Weird how two posts below you distinguish between merit ("fine") and meritocracy (using, of course, a stupid definition of meritocracy that is Brettlike in its autism), and yet when faced with a quote that mentions "merit," you try to pretend it says "meritocracy."

      But, sigh, once again: nobody. compelled. meritocracy. Whatever the rhetoric used, the ruling was that racial discrimination was forbidden, not that "meritocracy" [sic] was required.

      1. I see your mistake, Stephen assumes that racial discrimination is the only system possible, the only debate is about who you're discriminating in favor of. In Stephen's world, if you're forbidding racial discrimination in favor of Blacks then you're simply mandating racial discrimination in favor of whites.

  3. Where's merit in the law? Nowhere. So what? The point is that what is in the law, in the constitution, is a prohibition against treating people differently based on their race. If you don't do that, you can set up your admissions policy any way you like, including by lottery. Merit just happens to be, according to many, the best selection process.

    1. SKofNJ — If merit is not in the law, you cannot compel its use as a standard. If it is not a standard, you cannot use it as a tool to measure educational outcomes, and then insist the measurements prove racial discrimination. If you say folks ought to be able to decide how to measure merit without regard to legal standards, how can you say race cannot be a factor? Any other standard is fine, but race is right out?

      This discussion puts me in mind of an observation made decades ago: if you have two applicants to Harvard, one a black kid with a 660 verbal score from an inner city high school; and the other a white Andover graduate with a 710 verbal score, you know one of them is not too bright. And it isn't the black kid with the 660.

      1. If you say folks ought to be able to decide how to measure merit without regard to legal standards, how can you say race cannot be a factor? Any other standard is fine, but race is right out?

        Yes, you @!(**$^#) #@#!?&. You have finally gotten it, even though you aren't smart enough to realize it: any other standard is fine, but race is right out.

        Racial discrimination is not allowed. Why is that so effing hard for you to grasp?

        (To be pedantic, it's not literally "any" other standard. Along with race, discrimination on the basis of ethnicity, religion, sex, and the like are also not allowed.)

        1. The weak grasp is all yours, Nieporent.

          My advocacy was that if you do not define merit legally, but instead throw the question open to decision, "without regard to legal standards," then it is illegitimate to exclude race—or any of those other protected categories—as indicators of merit. They have to be right in there with all the other things you could call meritorious without regard to legal standards.

          If instead they are legally excluded—as you insist—then you are just pretending not to use merit as a legally binding standard. You have defined merit legally, by what you say the law excludes from consideration.

          That is a problem for you. You know that a rigorous legal definition of merit is not about to happen. To accomplish it is all but inconceivable, and any attempt would invite outrage. But like the OP, you want to keep a quasi-merit notion handy, as a tool to reach for when it comes time to decide legal disputes. Make no mistake, the OP advocates legal cognizance of some kind of notion of merit, however vaguely defined.

          Thus, your advocacy would rule out by law some categories of merit which others favor—while asserting paradoxically a freedom of your own to formulate merit standards without regard to law, and then, incongruously, use them as yardsticks to decide court cases. You want it both ways—meritocracy defined the way you want it, to reach your preferred social outcomes; meritocracy defined otherwise outlawed, to block outcomes you do not like.

          That gives the lie to your argument. Or at least to the OP's argument, which warns against, "sacrifice of principle," while applauding an inescapably meritocratic, "struggle to assure that each man and woman shall be judged on the basis of individual merit alone."

          Would-be meritocrats have been so content judging themselves meritorious that they skipped right past internal contradictions and practical impossibilities built into their advocacy—stuff like having no agreed-upon standards for merit. When someone points out the contradictions, they fly into a rage. The unreflective character of the reaction is persuasive evidence to show how heedlessly constructed meritocratic advocacy has been.

          1. My advocacy was that if you do not define merit legally, but instead throw the question open to decision, "without regard to legal standards," then it is illegitimate to exclude race—or any of those other protected categories—as indicators of merit.

            Your advocacy is nonsensical.

            They have to be right in there with all the other things you could call meritorious without regard to legal standards.

            If instead they are legally excluded—as you insist—then you are just pretending not to use merit as a legally binding standard. You have defined merit legally, by what you say the law excludes from consideration.

            Selecting one out of a well-nigh infinite number of factors and saying that it can't be utilized is not "defining" the standard.

            "In making dinner tonight, you can use any ingredient you want except parsley." Have I "defined" this meal?

            Make no mistake, the OP advocates legal cognizance of some kind of notion of merit, however vaguely defined.

            No. It does not advocate legal cognizance of merit; it advocates legal cognizance of non-discrimination. Of course, it is nearly gibberish to suggest that as a practical matter there not be "some kind of notion of merit." There are only two possibilities: that they pick people entirely at random, or that they pick people who meet some criteria. And those criteria, whatever they are, would be "some kind of notion of merit."

            But, again, just to reiterate: nobody is suggesting that any particular criteria are legally required — just that one particular criterion is legally forbidden.

        2. Racial discrimination is not allowed. Why is that so effing hard for you to grasp?

          Why is it so hard for you to grasp that, "Racial discrimination is not allowed," with nothing more, is just bombast. It does nothing at all to tell anyone what identifies an actual case of illegal racial discrimination.

          To see what trouble you are in, try this out. For the sake of argument, just renounce all legal mention of personal merit. Refuse admittance as legal evidence to every measurement which purports to compare academic performances among students.

          Then go ahead and try to make the case that a particular group of Asian-American students have been racially or ethnically discriminated against. Base your case only on the fact that the percentage of students accepted from that group is more than twice their prevalence among the general population.

          Without some assumption or assertion that those students deserve disproportionate acceptance based on superior personal merit, your case falls apart—because even if you think you have found some evidence that discrimination was intended, you have zero evidence that a harmful discriminatory effect ever happened. You, or a judge who thinks like you, must somehow smuggle meritocracy back in, or you cannot make that case.

          Nieporent, you rely habitually on the notion of meritocracy, and do not even notice when you do it. You are in plentiful company, including among judges. But of course you hate to be challenged to say what legal basis there might be for pro-meritocratic legal decisions—because there is none, and you know it.

          1. Why is it so hard for you to grasp that, "Racial discrimination is not allowed," with nothing more, is just bombast. It does nothing at all to tell anyone what identifies an actual case of illegal racial discrimination.

            Making a decision based on¹ race. Still not sure why you're playing dumb here.

            Then go ahead and try to make the case that a particular group of Asian-American students have been racially or ethnically discriminated against. Base your case only on the fact that the percentage of students accepted from that group is more than twice their prevalence among the general population.

            Um, no. Why on earth would I ever do such a stupid thing as that? "Litigate this case, but you can't cite relevant evidence."

            ¹The precise legal test to be applied depends on which statute one is suing under. A Title VII employment case (other than retaliation) uses motivating factor, while others apply but for causation.

  4. That this blog -- which may well be argued to be the best right-wing legal academia can offer in modern America -- voluntarily associates with a person of Prof. Heriot's conduct and character should bring great cheer to those who root for the liberal-libertarian mainstream to continue to defeat conservatives in the American culture war.

    (" "I have disagreements with the Republican Party," she said. Asked to name one, she declined. ")

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