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Supreme Court to Hear Case on Affirmative Action in Academia
If you thought the Supreme Court threw up some dust overturning Roe v. Wade, wait until this autumn when they look at overturning Grutter v. Bollinger. The Supreme Court will decide whether race-conscious admissions programs at Harvard and the University of North Carolina are lawful.
The two cases which might overturn Grutter, Students for Fair Admissions Inc. v. President & Fellows of Harvard College and Students for Fair Admissions, Inc. v. University of North Carolina have been consolidated into one entity which asks three questions: can race be a factor for admission, has Harvard violated Title VI of the Civil Rights Act by penalizing Asian American applicants by engaging in racial balancing, overemphasizing race and rejecting workable race-neutral alternatives, and whether a university can reject a race-neutral alternative because it would change the composition of the student body, without proving that the alternative would cause a dramatic sacrifice in academic quality or the educational benefits of overall student-body diversity.
In short, can race continue to be an admission factor?
Grutter upholds affirmative action in academic admissions, saying race can indeed be a factor in deciding who to admit alongside things like tests and previous grades. In 2003, after being denied admission to University of Michigan Law School, white student Barbara Grutter sued, alleging the school discriminated against her on the basis of race in violation of the Fourteenth Amendment’s right to equal protection, as well as Title VI of the Civil Rights Act of 1964. She claimed despite her high test scores she was rejected because the Law School uses race as a “predominant” factor, giving applicants belonging to certain minority groups a significantly greater chance of admission than students with similar credentials from disfavored racial groups like whites and Asians.
Precedent was not on her side. The earlier case of Bakke was seen as binding precedent establishing diversity as a “compelling state interest,” and that the Law School’s use of race was narrowly tailored because race was merely a “potential ‘plus’ factor.” In short, race as a type of bonus for an application was allowed, though race as the predominant criteria for admission was not. The Court found the Law School’s “narrowly tailored use of race” in admissions decisions furthered a compelling interest in the educational benefits that flow from a diverse student body and is not prohibited by the Equal Protection Clause. What some came to call “reverse discrimination” was allowed within certain boundaries because its goal of a more diverse student body and broader access to higher education was a compelling state interest.
The idea behind Grutter (a kind of mission statement for America these days) is disparities between groups in things like admissions are always the result of discrimination, the U.S. is irredeemably racist, racism is everywhere, invisible power structures of structural oppression are equally ubiquitous and need to be dismantled, meritocracy is a myth, color-blindness is misleading concept, and a focus on individual rights (such as Barbara Grutter’s) distracts from the more important struggle against systemic racism.
The problems are many, even if you accept most of America’s Racial Mission Statement. Primarily, space at all academic institutions, and especially at the top tier ones, is limited and to disproportionally allow in one group usually means excluding another. That is why Students for Fair Admissions Inc. v. President & Fellows of Harvard College has amici groups which believe Harvard is violating the Civil Rights Act by penalizing Asian American applicants in favor of blacks. These include Chinese American Citizens Alliance, the Jewish Coalition for Religious Liberty, The Asian American Coalition For Education, and The Asian American Legal Foundation. Also included is the Coalition for TJ, a group representing Northern Virginia’s super magnet-school Thomas Jefferson High, which just won a suit recently declaring the school’s race-based admissions policy illegal.
The tide may be turning even ahead of the Supreme Court. In addition to the win for a return to merit-based admissions at Thomas Jefferson High, the San Francisco School Board recently returned the admissions policy at Lowell, the city’s most prestigious public high school, to the merit-based system that it had used for more than a century. New York City’s most sought-after high schools, including Stuyvesant, held on to their merit-based system even as the mass of high schools otherwise switched to a lottery.
If Grutter is overturned and loses hold of stare decisis, that would end 45 years of precedent saying race could be used as one factor among many in evaluating applicants. The universities argue race-based decisions are lawful, and serve an important national interest.
College admission has a long, sordid history chock-a-block with discrimination. Kenneth Marcus, assistant secretary for civil rights at the Education Department in the Trump administration, said Harvard’s treatment of Asian students was reminiscent of its efforts to limit Jewish enrollment. “Just as Harvard in the 1930s thought that Jewish students lacked the character to make them good Harvard men,” he said, “so today they often view Asian students as lacking the appropriate character.” One defender for affirmative action in admissions almost seems to confirm his opposition’s point, saying “Race-conscious admissions policies are a critical tool that ensures students of color are not overlooked in a process that does not typically value their determination, accomplishments and immense talents.”
Like Roe, Grutter, and earlier, Bakke, represent efforts by the Supreme Court to remake society through judicial opinion. With Grutter, the Court took it upon itself to again endorse the use of race as an admissions criteria by claiming the nation had a compelling interest in racially diverse higher education even at the risk of failing to provide access equally to groups like Asians and Jews. The irony of displacing one group to favor another is not lost, that the solution to discrimination is more discrimination, that all blacks are helpless and foreclosed; such is the thinking of racists, that one skin color carries with it some merit that is worth rewarding even at the expense of other colors.
Apart from the socio-political impact, the issue is not a small one. According to documents filed with the Supreme Court, a significant reversal of current racial-forward standard could shrink the percentage of black students admitted to Harvard by more than two-thirds. Some 7.58 percent of blacks who applied to Harvard were admitted. For whites only 4.89 percent of applicants were admitted. Asians trailed Hispanics 5.13 to 6.16 percent. Despite the higher enrollment percentages, SAT scores for blacks were significantly lower than whites. Harvard’s policies roughly quadrupled the likelihood an African American applicant would be accepted relative to a white student with similar academic qualifications, while multiplying the likelihood of admissions 2.4 times for Hispanics. Most African Americans fell into the bottom 20 percent of all applicants to both Harvard and UNC, but they were admitted at the highest rate for almost every performance decile.
In the upcoming decision the Court has a chance to realign itself and college admissions with American thought; a 2019 survey found 73 percent of Americans said colleges and universities should not consider race or ethnicity when making decisions about student admissions. Justice Kentaji Brown Jackson will not recuse herself from these cases, despite having been involved with them in the lower courts. She will join liberals Kagan and Sotomayor largely unsupported by both the public and their Court colleagues in standing up for continued affirmative admissions. The next class at Harvard and other sought-after schools may look very different from the one which starts this fall ahead of the Supreme Court’s decision.
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
The Solution to Racism is… Separate But Equal?!?
Schools now have affinity groups, quasi-social/political gatherings which are separated by among other things, race. You have to be black to walk in to some of them. Seems like there’s a history to this.
“Separate but equal” refers to the Supreme Court 1896 decision in Plessy v. Ferguson claiming separate rail cars for whites and blacks were equal as required by the 14th Amendment. The upshot was constitutional sanction to laws known as Jim Crow (the name comes from a popular blackface stage character of the time) designed to achieve racial segregation by means of separate public facilities and services. This led to the era of the Green Book, which told blacks which hotels would allow them, as well as The Jewish Vacation Guide, which offered the same kind of advice but which we do not like to talk about much anymore. “Victims of Racism” is a pretty segregated category of its own it seems. The Court in Brown v. Board of Education ended separate but equal in that 1954 landmark civil rights case.
But a new version of separate but equal seems to be back. The goal of many progressives now appears to be more segregated spaces and more segrated paths into academia and jobs. Progressives do not oppose segregation any more, they demand it.
Jim Crow is being resurrected in schools, this time through euphemisms such as black spaces, affinity circles, affinity dialogue, and community building groups. One of my own kids was confronted as an undergrad with the problem of choosing which affinity group to join, as she fell into several different categories. Should she go with the Asians, or more broadly the POC group? Or female POC? Centennial Elementary School in Denver advertised a “Families of Color Playground Night.” The Wheeler School in Providence, Rhode Island, hosted a “meet and talk” with an actress from The Fresh Prince of Bel-Air exclusively for its Students of Color affinity group. There are events that squeeze the rules tighter, such as black women feminists only. Of course February is Black History Month in America, though people of all hues are allowed to feel bad for all of February equally. We track obsessively the “First black…” to the point where the NYT felt compelled to single out such accomplishments last year as the first black to be recognized as a pro triathlete, the first black woman to win a gold medal in wrestling, and the first black to be interred at the Panthéon in Paris.
In explaining the rationale for exclusionary events, one college newspaper wrote “Black students need events in which there are other black men and women as a means to help them feel comfortable… a safe place for black students to be black without consequence,” which with a few words replaced would be exactly the garbage coming out of the worst cracker’s mouth in 1963 Birmingham, you know, something about how it ain’t right for the races to mix. The KKK are as in favor of more color-designated spaces as BLM.
And famously we have been taught of all the people wrongly killed or injured by law enforcement, only one color of life matters. When Black Lives Matter as a slogan first began to populate social media, for about a week it was cool to say “All Lives Matter” to show you were an ally, that the cops could not get away with killing anyone yellow or white, either. “All lives” quickly morphed into a racist slogan, segregation mattering even in undeserved deaths.
The return of separate but equal is most visible today in school admissions (and Supreme Court nominations.) Separate but equal has been reimagined as offering two tracks into select schools — one of merit, usually some sort of exam, and another that tests nothing but skin color, with standards rigged to matriculate the required percentage of blacks. That the latter often results in Asians (the on-again, off-again POC) being red lined out seems to be another thing we don’t like to talk about. The rules may be changing; the Supreme Court agreed to decide whether race-based admissions programs at Harvard and the University of North Carolina are lawful.
The problems with separate but equal are many. A real danger is positioning unprepared students to fail. If you cannot show you know the subject material well enough to engage with it on a high level day one, and if you cannot show you have been willing to forego fun activities to put in the study hours, granting you a seat at some elite school via the back door will not solve anything. Imagine if the SEALS did away with their famous physical and mental tests and just picked commandos by lottery. That is what is happening through separate but equal employment programs, such as one at Morgan Stanley limited to blacks, browns, reds, and gays, or another at my own alma mater of sorts, the U.S. State Department, where I worked for 24 years
State has had a diversity problem going back to the earliest days of the Republic, when it was said to qualify as a diplomat you needed to be Male, Pale, and Yale. To fix this two centuries later, the Department created two fellowships that have been used as vehicles to recruit people of “diverse backgrounds,” who worked out to be overwhelming black people. In place are the Thomas Pickering Fellowship (run by HBCU Howard University) and the Charles B. Rangel Fellowship. Both claim entrants take the same entrance exams as anyone else, but omit that they do so after two summer internships with the State Department, including time abroad, plus assigned mentors. Fellows are also identified as such to those administering the oral exam required of all prospective diplomats. Having administered the oral exam myself, I knew I would have to justify to my boss’ boss any move to fail a Fellow before being overruled by her anyway. The programs increased the number of unwhite diplomats, as they were intended to do as a separate but equal pathway.
The problems came down the road, when black diplomats encountered the same promotion and evaluation system their white, green, and blue colleagues did (along with Hispanics and Asians, etc.) Diversity in the senior ranks of the State Department actually regressed over time. In 2008, black diplomats made up about 8.6 percent of the top ranks of the diplomatic corps. By 2020 only 2.8 percent of the same top ranks are black. The answer? It must be more racism (characterized diplomatically as “institutional barriers.”) Suggestions focused on offering blacks more fellowships to create a bigger pool, and creating special opportunities for blacks to snag better assignments (described as “promote diverse officers’ career development.”) That of course simply repeats the original sin of pushing less-prepared people upward to their point of failure. FYI: the State Department classifies most of its gender and race promotion results and does not generally release them to the public. However, data leaked to the NYT shows that only 80 black diplomats and specialists were promoted in the 2019 fiscal year, about one percent.
Then there’s this: a former diplomat described her Rangel fellowship in 2010 as “more of a stigma than an honor” as white diplomats routinely assumed Fellows qualified for the real job only because of the fellowship. Some minorities at State feel compelled to share that they are not Pickering or Rangel Fellows to avoid the fall out over separate but equal. Can it be it is all just more racism all the way down?
When I did not get into the State Department my first try, it never occurred to me the written test, which was mostly history, geography, and economics, was set up to block me because of how I looked instead of whether I knew enough about history, geography, and economics. After more education I passed essentially the same test. It never occurred to me some special channel should have been set up to advance me. It becomes kind of a mindset, almost a philosophy, that anything that doesn’t work out percentage wise must by definition be racism and can only be rectified by some kind of separate but equal track.
Separate but equal in academia and employment, as well as in black spaces and all the rest, produces nothing more than cosmetic diversity. You want XX percent of students or diplomats to be black? Fine, we’ll gerrymander the system to produce that. But given the broader lack of societal progress from affirmative admissions and actions over some decades, it just might be easier to hire actors so the group photos look “right” and let decisions be less separate and more equal. Otherwise, what message are we sending to people of one color that their accomplishments have to be set aside so a person of another color can have their place, and what message are we sending to people of all colors the only way one group can succeed is with some special track? In the end aren’t those messages just a twisted version of what separate but equal originally meant, judgment based on race?
At some point if we are committed to ending discrimination by race we need to end discrimination by race.
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
Education in Fairfax, Virginia Vies for the Darwin Award
Fairfax County, Virginia is ground zero for wokeness. It is 65 percent white and votes solidly Democratic. The median income is over $124k. I used to live there; it was common to hear white people brag about having black friends (but at work you know, not the kind that come over to the house) and worry about whatever the issue-of-the-week is as promoted by NPR. Hell, with the county’s proximity to Washington, DC, a lot of people there work for NPR.The jewel in Fairfax’s public school system is Thomas Jefferson High School for Science and Technology, known to all simply as TJ. TJ is widely considered the best high school in the country for STEM, and serves as a steady feeder into top universities. It would not be exaggeration to say TJ is a critical part of America staying ahead of other national economies. It’s a big deal, and it worked well until about a year ago based on the fact that the only way in was to pass a very competitive entrance exam. Kids would start studying in elementary school if their goal was TJ ten years later. Entry into TJ meant you were a smart kid with the discipline to put in the hard hours with no guarantee of success, a perfect definition of those who would also go on to succeed at Harvard.
The problem was with the danged Asians. As many as 73 percent of students offered admission to Thomas Jefferson High School were Asian. That drew criticism from people who felt black and Hispanic students were underrepresented. Typically only about two percent of the TJ students were black. The answer was a) to improve all middle schools in the area so they better prepare their kids to enter TJ; b) offer all students rigorous after-school programs to prepare for TJ c) or just lower TJ’s admission criteria to balance out the races.
Yeah, they did C. The crazy-hard entrance exam was dropped, the $100 application fee was dropped, and both were replaced by “A holistic review will be done of students whose applications demonstrate enhanced merit… Students will be evaluated on their grade point average; a student portrait sheet where they will be asked to demonstrate Portrait of a Graduate attributes and 21st century skills; a problem-solving essay; and experience factors, including students who are economically disadvantaged, English language learners, special education students, or students who are currently attending underrepresented middle schools.”
Catch that last part? Experience factors? That basically opened the door to one of the criteria being “whatever we say this all means.” The result at TJ was a drop of more than 11 percent in the number of Asians, and double-digit growth on the part of blacks and Hispanics, achieved by making being poor a criteria for acceptance. No matter white students account for only 22 percent of admissions, despite being 65 percent of the county population. This was done despite 85 percent of voters opposing race as an admission criteria; this is mirrored nationally, where 73 percent of Americans said colleges and universities should not consider race in admissions decisions.
But is it… racism? Seems so. One school board member texted another “I mean there has been an anti-Asian feel underlying some of this, hate to say it lol,” according to correspondence obtained by non-profit Parents Defending Education. In another exchange, Thomas Jefferson’s admissions director asked a school district official if she could “provide us a review of our current weighting (of experience factors) and whether or not this would be enough to level the playing field for our historically underrepresented groups.” She replied “My gut says that you may need to double all the points so the applicants can receive up to 200 points overall for these experience factors.” Another school board member wrote we “screwed up TJ and the Asians hate us” to which another responded he was “just dumb and too white” to address the diversity deficit in properly.
The school went further. There will now be three different “pathways” for admissions each year: the first for 350 high-performing students, the second for 100 students judged on a combination of half academic merit and half external factors, and 50 underrepresented students. Some people in town call them the Yellow, Brown, and Black lanes.
We’ve gotten so twisted in thinking America is shackled by systemic racism that we created a system of education admissions itself built on a foundation of systemic racism. We somehow think racially gerrymandering schools is a solution. We ignore John Roberts dictum “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” Why are we hell-bent on self-harm by sacrificing our education system on layers of false progressive assumptions?
The first false assumption is access to learning equals learning. A student has to be prepared intellectually to succeed, or he fails, or the institution is forced to dumb down to accommodate him. Progressive education thought is to publicly disavow what we all know to be true in private, that some students are just smarter than others. We are absolutely not all alike. Imagine if colleges chose who’ll play on their football teams based not on athletic skill but racial quotas. Who knew education was only skin deep, and the football team more intellectually honest than the philosophy department?
The next false assumption is the magic number; XX percent of the population is black so XX percent of the student body should be black. If it is not, de facto some form of systemic racism is wished into being to blame. This typically focuses on the admissions process (to include testing, like the SAT) and thus the answer is to scrap every part of the admissions process that seems to rub against that XX percent. You don’t have to show question 27 on the SAT is itself “racist,” only that the SAT results won’t get XX percent of black kids into Harvard and must ipso facto be racist. So, let more black kids into Harvard by eliminating the SAT and that will result in more black doctors and lawyers and a more just society. Problem solved.
Well, sort of. There still is that issue of getting admitted to Harvard is not the same as graduating from Harvard; you have to be able to understand the classes and put in the hard work of studying, that ultimate form of delayed gratification. And Harvard only has so much space so to let in more black kids means saying no to others. In most progressive instances, that means telling “Asians” to go away (the term “Asian” itself is yet another false assumption, that somehow Chinese, Thais, Japanese, Koreans, Filipinos, Laotians, Indians, Bangladeshis, et al, are lumpable into one omnibus racial garbage can.)
What you’re left with is the certainty that more exclusion by race is the answer to the alleged problem of exclusion by race. After some forty years of seeing something that egregiously dumb as a good idea, the issue is now coming again before the courts for a reality check, starting in Fairfax County, Virginia. Someone may decide it’s time to ask why we regularly end up with “cosmetically diverse” institutions, rather than anything real that leads to broad social progress.
A group calling themselves the Coalition for TJ sued the school system to reverse the admission process changes, which they allege were meant to diminish the number Asian students. That qualifies as discrimination based on race, outlawed under the 14th Amendment’s equal-protection clause, they claim. In late January a U.S. District judge turned down the Coalition’s request for a jury trial, claiming that since no material facts are at issue, he will instead issue a ruling later this year. Both sides will then be able to appeal, suggesting the issue will overlap another admissions season. A second suit is also in play. A bill before the Virginia legislature would also affect TJ, seeking to remove race as an admission criteria.
The move to eliminate racism in admissions processes in Virginia is mirrored at the national level. The Supreme Court agreed to decide whether race-based admissions programs at Harvard and the University of North Carolina are lawful (Students for Fair Admissions v. Harvard College and Students for Fair Admissions v. University of North Carolina.) The case against Harvard accuses the school of discriminating against Asian students by using subjective criteria such as likability, courage, and kindness, effectively creating a ceiling for them in admissions, a nasty echo of the 1930s when it was thought Jews lacked the “character” to be Harvard men. In the North Carolina case, the argument is simply that the university discriminated against white and Asian applicants by giving preference to PO other C. Don’t expect a decision before next year.
Once upon a time Americans decided race should not be a factor in education, doing away with segregated schools and ending separate could be equal. Somewhere we lost our way, to the point where leveling down, and creating twisty definitions of things like “experience points” brought race directly into education again. Only this time we convinced ourselves that discriminating against whites and Asians was perfectly OK. That current system is under fresh attack in the courts, and well it should be. The way to stop discrimination on the basis of race is to stop discriminating on the basis of race. You don’t have to go to Harvard, or TJ, to figure that out.
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
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