The Volokh Conspiracy

This semester, I am once again teaching Constitutional Law II: The Fourteenth Amendment. I often tell my students in this class that there are three issues on which most people are particularly resistant to rational persuasion: abortion, the death penalty, and affirmative action. And it so happens that the course covers all three.

Actually, there is a general tendency of to discount opposing arguments on a wide range of political issues, not just these ones. It’s a consequence of our general lack of incentive to think rationally about politics. But the problem is worse on some issues than others, and these three strike me as among the worst offenders.

Why are people more close-minded on some issues than others? One factor is intensity of commitment. Obviously, these are issues on which many people have strongly held views. But that doesn’t differentiate them from a lot of other policy disputes. Think of the many people who have intensely held views on health care, taxation, gun rights, and so on. More important, I think, is that these are issues where most people believe that your stance derives directly from your fundamental values, rather than disagreements about empirics. Either you believe that abortion is like murder or you don’t; either it’s inherently wrong for the state to execute people or it’s not; affirmative action is either overdue compensation for historic injustices or it’s a form of invidious racial discrimination. By contrast, most people recognize that disputes over issues like taxes or health care are at least in part driven by differences over empirical questions rather than values. In reality, of course, empirical questions do matter to disputes over affirmative action and the death penalty. How effective are affirmative action programs? How much does the death penalty deter murder? How many innocent people are likely to be executed? But most people don’t think about these issues in such terms. They assume that the real source of disagreement is values rather than facts.

Finally, these three issues are ones on which it’s hard to find a coherent compromise position. You can tell a persuasive story about why tax rates should be higher than conservatives say, yet lower than what liberals want. But it’s hard to explain why we should adopt a policy that’s somehow in between a strong pro-life position and a strong prochoice view. The same goes for affirmative action and the death penalty.

I have not seen any systematic research comparing the degree of close-mindedness on these issues relative to others. So it’s possible that attitudes on these three issues are not as hidebound as I think, or that things are worse on other issues than I imagine. For what it’s worth, I myself have changed my views on two of these three over the years (less pro-choice than I used to be, and less hostile to affirmative action). But I think those changes happened at least in part because I don’t care about these two issues as much as many other people do, and therefore was less emotionally invested in my views about them.

For DC-area readers who may be interested, this Friday the Federalist Society and the Heritage Foundation are co-sponsoring a debate on Fisher v. University of Texas, an important affirmative action case that the Supreme Court is now deciding whether or not to take.

The debate pits James Ho, counsel for the University of Texas in the case, and Loren Alikhan, counsel for the League of United Latin American Citizens (arguing for the University’s position) against Gail Heriot of the US Commission on Civil Rights and Roger Clegg of the Center for Equal Opportunity (arguing that the university’s plan is unconstitutional).

I previously blogged about Fisher here and here.

Interestingly, I have some connections to both sides in this debate. My wife is Gail Heriot’s special assistant/counsel at the US Commission on Civil Rights. Jim Ho (who later went on to become Texas’ state solicitor general) clerked for Fifth Circuit Judge Jerry E. Smith two years before I did, and interviewed me for the job before I was hired.

My wife Alison and University of San Diego law professor Gail Heriot have just published an article in Engage on the apparently growing practice of sex discrimination on behalf of men in college admissions. Heriot serves as a Commissioner at the US Commission on Civil Rights, where Alison is her special assistant/counsel. Here’s an excerpt from the article:

While some news reports indicate that discrimination against women on the basis of sex in college admissions is increasingly common, there has been relatively little public discussion about it—especially compared to the much more heated public debate concerning race-based affirmative action. Not surprisingly, therefore, there have been few attempts to study the extent of the problem systematically….

Multiple news reports indicate that some colleges and universities, both public and private, have what they regard as “too many” women applicants and are therefore discriminating in favor of men—largely because more women than men apply to college and their academic credentials are in some ways better. Several colleges have more or less openly admitted to discriminating against women – including the University of Richmond (a private institution) and the College of William and Mary (a public institution). Others—including Southwestern University (Texas), Knox College (Illinois), Brandeis University (Massachusetts), Boston University (also Massachusetts), and Pomona College (California)—shy away from admitting directly that they are discriminating, but admit that maintaining an optimal gender balance by non-discriminatory means is difficult….

Sex discrimination in admissions at public universities is illegal under Title IX of the Education Amendments of 1972. But under federal law, it is perfectly legal for private institutions to engage in sex discrimination in admissions—though once both sexes are admitted, neither may be discriminated against….

Perhaps the most attention-getting piece on this topic was a 2006 New York Times op-ed by Jennifer Delahunty Britz, an admissions officer at Kenyon College, in which she admitted that her office often gave preferential treatment to men. Some admissions insiders wrote in response to Delahunty Britz’s piece that these preferences were quite common—what was shocking was only Delahunty Britz’s candor in airing this information publicly. Inside Higher Ed noted that “[w]hile few admissions officers wanted to talk publicly about the column, the private reaction was a mix of ‘of course male applicants get some help’ along with ‘did she have to share that information with the world?’” Several years later, after the wave of chatter over Delahunty Britz’s piece had died down, Columbia University law professor Ted Shaw referred to such discrimination as an “open secret.”
[footnotes omitted].

The article also discusses the interconnections between admissions preferences for men and Title IX rules for college sports teams (the latter may have the unintended effect of incentivizing the former by making it harder for colleges to entice male students through increasing the number of men’s sports teams). Alison previously wrote about Title IX and sports here.

This issue is actually one of the rare points of political disagreement in the Somin household. I am less hostile than Alison to gender-balancing admissions policies that seek to keep the sex ratio (very roughly) even for the purpose of improving the social environment on campus. The problem of gender imbalance may be more serious at some institutions than others, and I don’t think it can justify very large gender preferences anywhere. As Gail and Alison point out, it’s a bad idea for colleges to admit “mismatched” male students whose academic skills are vastly inferior to those of the other students at the same institution. But, in some situations, I think there is a case for modest admissions preferences for the less numerous gender on campus. Some women students themselves may be dissatisfied with life on a campus that is, say, 70% female, and the same goes for male students at an overwhelmingly male institution. Obviously, other students probably couldn’t care less about the sex ratio at their university. But I don’t advocate that all universities with a gender imbalance should resort to admissions preferences to deal with it. I merely want the option to be legally available, at least at private institutions. Be that as it may, I do agree with Alison that such policies at public institutions are legally dubious under Title IX.

George Will recently published an interesting column on Fisher v. Texas, an important affirmative action case that the Supreme Court is in the process of deciding whether to take:

The Supreme Court faces a discomfiting decision. If it chooses, as it should, to hear a case concerning racial preferences in admissions at the University of Texas, the court will confront evidence of its complicity in harming the supposed beneficiaries of preferences the court has enabled and encouraged.

In the 1978 Bakke case concerning preferences in a medical school’s admissions, Justice Lewis Powell, the swing vote on a fractured court, wrote that institutions of higher education have a First Amendment right — academic freedom — to use race as one “plus” factor when shaping student bodies to achieve viewpoint diversity. Thus began the “educational benefits” exception to the Constitution’s guarantee of equal protection of the laws.

But benefits to whom? For 33 years, the court has been entangled in a thicket of preferences that are not remedial and hence not temporary. Preferences as recompense for past discrimination must eventually become implausible, but the diversity rationale for preferences never expires.

Liberals would never stoop to stereotyping, but they say minorities necessarily make distinctive — stereotypical? — contributions to viewpoint diversity, conferring benefits on campus culture forever….

But what if many of the minorities used in this process are injured by it? Abundant research says they are, as two amicus curiae briefs demonstrate in urging the court to take the Texas case.

The details of the Texas policies are less important than what social science says about the likely consequences of such policies. A brief submitted by UCLA law professor Richard Sander and legal analyst Stuart Taylor argues that voluminous research refutes the legal premise for such racial classifications: They benefit relatively powerless minorities.

“Academic mismatch” causes many students who are admitted under a substantial preference based on race, but who possess weaker academic skills, to fall behind….

A second brief, submitted by three members of the U.S. Commission on Civil Rights (Gail Heriot, Peter Kirsanow and Todd Gaziano), argues that racial preferences in law school admissions mean fewer black lawyers than there would be without preferences that bring law students into elite academic settings where their credentials put them in the bottom of their classes. A similar dynamic is reducing the number of minority scientists and engineers than there would be under race-neutral admissions policies.

There are fewer minorities entering high-prestige careers than there would be if preferences were not placing many talented minority students in inappropriate, and discouraging, academic situations: “Many would be honor students elsewhere. But they are subtly being made to feel as if they are less talented than they really are.” This is particularly so regarding science and engineering….

In six devastating words, the Heriot-Kirsanow-Gaziano brief distills the case against the “diversity” rationale for racial preferences: “Minority students are not public utilities.”

The possibility that many minority students are actually harmed by “diversity”-based affirmative action is a further point of tension between the diversity rationale for racial preferences and the compensatory justice rationale, a subject I have emphasized in many previous posts (e.g. here, here, here, and here). I previously blogged about Fisher v. Texas in this post. Co-blogger David Bernstein commented here. If the goal of racial preferences is promoting “diversity,” then it does not matter much whether minority students are potentially harmed by them. If, on the other hand, the goal is compensating groups victimized by major historic injustices, it matters a great deal.

NOTE: As I have noted in my previous post on Fisher, I clerked for Fifth Circuit Judge Jerry E. Smith, author of Hopwood v. Texas, the 1996 decision striking down an affirmative action program at the University of Texas Law School that Grutter v. Bollinger and Fisher have superseded. Judge Smith wrote Hopwood several years before I clerked for him.

In addition, my wife is a special assistant/counsel for Gail Heriot, one of the coauthors of the brief by the three members of the US Commission on Civil Rights, which Will references. I should emphasize, however, that I have espoused the same views on affirmative action as I do today since long before she took that job, and indeed since before we met, as my earliest posts on the subject show. For about a decade now, I have believed that government-sponsored racial preferences might, at least in principle, be justified for purposes of compensatory justice, but not for diversity purposes. I am, however, pessimistic about the ability of government to institute compensatory justice preferences that are simultaneously equitable and effective in accomplishing their objectives.

UPDATE: The Sander-Taylor amicus brief is available here, and the brief of the three USCCR commissioners here.

UPDATE #2: David Schaub strangely accuses me of advocating a “one-size government mandate” banning affirmative action. This is strange because I have always taken the view that “private universities should have the legal right to practice as much affirmative action as they want.” I did not discuss this aspect of the issue in this post, since Fisher is a case about government-sponsored affirmative action at state universities. Schaub suggests that public and private universities are essentially the same. In some respects they are. But state universities are still public property and using public property for the purpose of promoting racial preferences raises moral, political, and constitutional issues that differ from those at private institutions. Similarly, it is not inconsistent to support a legal regime under which private universities, but not public ones can promote a particular religion. Even with respect to state institutions, I do not believe that affirmative action is categorically unconstitutional. But there is good reason for courts to view it with suspicion and subject it to tight scrutiny.

Schaub makes a more defensible point in claiming that the critique of “mismatch” is paternalistic. Mismatch would be less of a problem if universities were more forthcoming in telling affirmative action admittees the risks they run. But most are not. Moreover, when it comes to public universities, concern about mismatch is not just a concern about the students who get preferences. It’s also a matter of wasting public funds on students who are likely to perform very poorly at the institutions to which they are admitted, whereas they might have done better at schools more in line with their qualification levels.

Finally, Schaub suggests that mismatch concerns aren’t raised in nonracial contexts, such as legacy preferences. I’m no fan of legacy preferences. But they rarely involve academic qualifications gaps anywhere near as large as those in some affirmative action programs.

I agree with most of what co-blogger Eugene Volokh writes about the benefits of have a wide range of student groups at law schools, including ones that focus on specific ethnic or religious groups. I addressed a similar issue in this 2007 post:

Those who argue for diversity in higher education implicitly envision a school that has a “critical mass” of whites, blacks, Jews, Hispanics, and other groups. Such a university may well be internally diverse (at least in an ethnic sense), but if every school pursues this ideal, than they will all look more or less alike on the ethnic dimension, or whatever other criterion is chosen as the focus of diversity promotion. There will be diversity within institutions, but very little diversity across institutions.

By contrast, if Brandeis continues to be a distinctively Jewish school, Brigham Young continues to be a distinctively Mormon school, and so on, these schools can make unique contributions to American higher education that might otherwise be lost. Although Brandeis and BYU may not be internally diverse, they definitely add to the overall diversity of the American higher education system in two important ways. First, they give students who want to attend a distinctively Jewish or Mormon school an option they would not have if all schools stick to the internal diversity model. Second, faculty at a distinctively Jewish or Mormon school might well pursue research on subjects that are ignored or at least deemphasized at other types of institutions. Brandeis’ traditional focus on hiring faculty who study the history of Judaism and the Jewish people is an example of the latter.

To be sure, a school built around a particular group identity will have weaknesses as well as strengths. But the weaknesses are offset by the fact that there will always be hundreds of other schools that do not try to foster a distinctive group identity. Students and faculty who don’t want to be associated with a distinctively Jewish school have plenty of options, even if they can’t attend Brandeis. The question is not whether there should be a large number of internally diverse schools, but whether all schools should be that way.

What I said about diversity across schools also applies to diversity between student groups within a given school. By having a distinctive Jewish student group, black student group, Christian group, and so on, diversity across groups is enhanced even if these groups are not internally diverse (indeed, sometimes precisely because they aren’t). Obviously, internally homogenous student groups have limitations. But those are to some extent offset by the fact that there are usually many other student groups available, including many that are not focused on a specific ethnic or religious identity.

For reasons I have indicated in the past (e.g. here, here and here), I have various reservations about the diversity-promoting affirmative action policies currently practiced by most universities. But that does not undermine the point that there are real benefits to having a wide range of student groups, including some which are internally homogeneous.

Via Ed Whelan comes news that the U.S. Court of Appeals for the Sixth Circuit has voted to rehear Coalition to Defend Affirmative Action v. Regents of the University of Michigan en banc — something I suggested would happen. In this case, a divided panel held that Michigan’s Proposal 2, aka the “Michigan Civil Rights Initiative,” was unconstitutional.  The initiative, which voters approved, provides that the state, including state educational institutions, may not “discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education or public contracting.”  As I explained in my prior post about this case:

Judge Cole, joined by Judge Daughtrey, held that the proposal is unconstitutional under the Equal Protection Clause. Specifically, the initiative is invalid under Washington v. Seattle Sch. Dist. No. 1, 458 U.S. 457 (1982) and Hunter v. Erickson, 393 U.S. 385 (1969) because it “unconstitutionally alters Michigan’s political structure by impermissibly burdening racial minorities.” Judge Gibbons dissented.

The outcome of this case will be interesting, particularly because the Sixth Circuit remains closely divided along ideological lines.  Moreover, as Whelan reports, two members of  the court, Judges McKeague and Kethledge — two Bush appointees from Michigan — have recused themselves from the case.  I’ll also venture a further prediction: If the original panel is upheld, this case will go to the Supreme Court, where Justice Kennedy will decide the Michigan Civil Rights Initiative’s fate.

UPDATE: The Detroit Free Press reports here.

In a divided opinion, the U.S. Court of Appeals for the Sixth Circuit struck down Michigan’s Proposal 2, aka the “Michigan Civil Rights Initiative.” Proposal 2 was a successful ballot initiative that provides that the state, including state educational institutions, may not “discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education or public contracting.” Judge Cole, joined by Judge Daughtrey, held that the proposal is unconstitutional under the Equal Protection Clause. Specifically, the initiative is invalid under Washington v. Seattle Sch. Dist. No. 1, 458 U.S. 457 (1982) and Hunter v. Erickson, 393 U.S. 385 (1969) because it “unconstitutionally alters Michigan’s political structure by impermissibly burdening racial minorities.” Judge Gibbons dissented. The decision in Coalition to Defend Affirmative Action v. Regents of the University of Michigan is here.

I am quite confident this is not the last we have heard of this case, and will be quite surprised if this decision is ultimately sustained. Given the panel and the holding, I think there is a reasonable likelihood of it going en banc, and if this opinion is not overturned en banc, I would think that this case — or perhaps the similar case challenging the equivalent California initiative — will go to the Supreme Court.

UPDATE: According to this story, Michigan Attorney General Bill Schuette will file a petition for rehearing en banc.

My colleague Rick Sander — who is also an occasional guest-blogger on this blog — has for years been trying to get California Bar records that could help him test his “mismatch hypothesis”: the hypothesis that race-based preferences that let black and Latino students get into higher-ranked law schools actually end up hurting the very students they’re supposed to help. Here’s a summary of the argument from an op-ed by Rick Sander and by Vik Amar, who is not persuaded by Rick’s theory:

Imagine, for a moment, that a program designed to aid disadvantaged students might, instead, be seriously undermining their performance. Imagine that the schools administering the programs were told that the programs might be having this boomerang effect — but that no one investigated further because the programs were so popular and the prospect of change was so politically controversial.

Now imagine that an agency had collected enough information on student performance that it might, by carefully studying or releasing the data, illuminate both the problem and the possible solutions. What should the agency do?

This is not a hypothetical question. The schools involved are dozens of law schools in California and elsewhere, and the program is the system of affirmative action that enables hundreds of minority law students to attend more elite institutions than their credentials alone would allow. Data from across the country suggest to some researchers that when law students attend schools where their credentials (including LSAT scores and college grades) are much lower than the median at the school, they actually learn less, are less likely to graduate and are nearly twice as likely to fail the bar exam than they would have been had they gone to less elite schools. This is known as the “mismatch effect.”

The mismatch theory is controversial. One of us (Sander) has advanced it in the academic literature. The other (Amar) believes that while it raises substantial questions, it has not been empirically proved. Some dismiss the whole idea as nothing more than a politically motivated attack on affirmative action or, even worse, an attack on blacks and Latinos — the main recipients of current preferences. Many rightly point out that definitive conclusions are difficult because the data available to researchers thus far have been limited in very important ways.

Today, the California Court of Appeal decision in Sander v. State Bar gave Rick something of a victory, though the release of the records is by no means guaranteed:

Appellants Richard Sander, Joe Hicks and the California First Amendment Coalition seek access to admissions records from the State Bar of California (the Bar), subject to conditions designed to ensure the privacy of bar applicants, in order to conduct academic research on discrepancies in bar passage rates among racial and ethnic groups. After the Bar rejected Sander’s request, appellants filed this action for a writ of mandate to compel the Bar to release the information….

[Paragraph moved: -EV] We hold the [trial] court erred in ruling that the common law presumption of access to public information is limited to adjudicatory documents related to court proceedings and, to the extent the court acknowledged the common law presumptive right of access applies to public records generally, that it erred in declining to assess any countervailing public policy considerations against the public policy favoring access. Whether those considerations are such as to outweigh the presumptive right of access must therefore be addressed on remand, as must the relevance of the excluded declarations to those issues. The trial court is in the best position to weigh the competing interests and strike the appropriate balance….

Continue reading ‘UCLA Researcher Wins Skirmish in Attempt to Get California Bar Passage Records’ »

In the National Jurist, Rebecca Larsen has an article ranking law schools on the basis of “diversity.” At Balkinization, lawprof Jason Mazzone makes some cogent criticisms of her approach.

Larsen ranks schools on the basis of the percentage of students and faculty who are African-American, Hispanic, or Asian, with a bonus if that percentage is significantly higher than the percentage of these groups in the state population. Under this system, most of the schools that get the highest possible rating (“A+”) turn out to be historically black schools where the student body is overwhelmingly black. Ironically, many of these schools are actually not especially diverse if that concept is understood as having a wide range of different groups represented by a “critical mass” in the student body, the theory adopted by the Supreme court in Grutter v. Bollinger as a justification for affirmative action. For example, one of the schools with an A+ rating is Howard University, where the student body is 78% African-American. Why should Howard be considered any more diverse than a school that is 78% white?

If, as Larsen says, the purpose of pursuing diversity is to ensure that a broad range of “viewpoints” is represented in the classroom, thereby giving students “a better education and classes more reflective of the world,” her ranking system makes no sense. From that standpoint, a school that is 78% black or 78% Hispanic is no better than one that is 78% white.

Howard and other historically black schools should not be blamed for their lack of diversity. Indeed, as I have argued elsewhere, relative homogeneity within some schools promotes the laudable goal of diversity across institutions. But we should not pretend that such schools have unusually high internal diversity.

Moreover, it makes no sense to focus only on the representation of three groups defined by crude racial categories. Rather, a true diversity ranking would have to take account a wide range of ethnic, religious, political and other groups. Swedes, Utah Mormons, and Bulgarians all have different and unique cultures that could contribute to viewpoint diversity. But under Larsen’s approach, their presence actually lowers a school’s diversity ranking because it increases the percentage of the student body that counts as “white” rather than “minority.”

Larsen’s system makes somewhat better sense if the real goal is not diversity but compensatory justice for groups that have suffered historic discrimination in the US. Blacks, Asian-Americans, and to a much lesser extent Hispanics qualify on that basis. This compensatory justice rationale for affirmative action is, in my view, much more defensible than “diversity,” though certainly not a completely unproblematic one. But the two rationales are different from each other and call for widely divergent policies. If Larsen and the National Jurist are actually promoting compensatory justice for victimized minority groups rather than diversity, they should say so explicitly and drop the diversity rhetoric, which is an extremely poor fit with their ranking system.

A recent effort to establish a scholarship for white males at Texas State University has predictably stirred controversy:

According to the Austin American-Statesman, a “whites only” scholarship is being offered at Texas State University.

The Former Majority Association for Equality — a nonprofit group — is offering five $1,000 scholarships exclusively to white male students….

Student Colby Bohannan, the president of the group, said, “I’m not sure white males are the majority anymore,” adding, “There’s a scholarship out there for just about any demographic, except this one. We realize it’s for good reason — this is a touchy subject.”

It’s not actually clear whether this scholarship is really confined to white males. The above-linked article says that anyone who is at least “25 percent Caucasian” is eligible, which includes numerous blacks, Asians, Hispanics, mixed-race people and others. Tiger Woods and Derek Jeter would qualify, for example.

The scholarship does, however, raise the question of whether the diversity rationale for affirmative action might sometimes justify preferences for white males. As the Supreme Court explained in the Grutter case, the diversity rationale holds that preferences for African-Americans and Hispanics are necessary in order to ensure that whites and others get the educational benefit of being exposed to the unique perspectives these groups have to offer. If there is not a “critical mass” of minority group members at a given university, the educational benefits of that group’s presence might not be realized because other students won’t have enough exposure to the group.

At some schools, however, such as historically black colleges, there might not be a “critical mass” of white students, and the majority group at that school might therefore lose the benefit of being exposed to the “white” perspective. In the 1990s, at least one historically black college did in fact create white-only scholarships that were later challenged in court by black students.

Even if there is a critical mass of whites taken as a whole, there might not be a critical mass of individual subgroups of whites, such as immigrants from Sweden, Italy, or Russia. Each of these groups has its own unique culture, and exposure to it might have educational value for other students. For example, as far as I know, I was the only Russian immigrant in my law school class. Even if there were one or two others I didn’t know about, that still wouldn’t be enough for a “critical mass” under the University of Michigan Law School program upheld in Grutter.

As I have previously pointed out, the diversity rationale can justify preferences for a wide variety of groups, white and otherwise, while also justifying discrimination against “overrepresented” groups such as Chinese and Japanese-Americans that have been the victims of severe state-sponsored discrimination in the past. For this reason, among others, I am opposed to the diversity rationale for affirmative action, but am more sympathetic to the compensatory justice rationale, which would confine preferences to groups that have been the victims of large-scale discrimination. The compensatory justice argument is not without its own shortcomings. But at least it doesn’t justify the use of racial and ethnic preferences for almost every conceivable group.

Howard v. Kansas City (Mo. Jan. 25) says “yes,” as to state antidiscrimination law, and notes the difference of opinion among different states’ courts on the subject. Judges are not covered by federal antidiscrimination law, and it’s not clear whether the Equal Protection Clause bars discrimination in the appointment of high-level officials (a category that might well include judges).

In this case, plaintiff was awarded “$633,333 in compensatory damages and $1.5 million in punitive damages” (plus attorney fees and prejudgment interest), because the jury found that she was denied a judicial appointment because she was white:

[T]he plaintiff, Melissa Howard, applied for the position along with 12 other applicants. From that pool of applicants, the commission nominated three Caucasian women to fill the vacancy. One of those three nominees was Howard. This panel was submitted to the council October 30, 2006. At its meeting November 9, 2006, the council rejected the panel by a 7-6 vote, despite acknowledging that all three panelists were well-qualified for the judgeship….

Several council members expressed dissatisfaction with the panel because it did not include any minorities. Multiple statements made during the city council meetings, which were open to the public, addressed concerns that the all-Caucasian female panel lacked diversity. [Statements omitted. -EV] … Several council members also testified at trial as to the influence that the panelists’ race had on the council’s decision to reject the panel. One councilman agreed that race “was involved” in the council’s refusal to consider the applicants selected by the commission, and another councilman testified that, had the commission placed a minority on the panel of final applicants, he would have voted to consider the panel. Mayor Kay Barnes similarly testified that “race was a factor in [her] decision to reject the panel” and she likely would have voted to select a judge had an African-American candidate been on the panel, despite acknowledging her lack of knowledge as to the commission’s interview and selection process.

As co-blogger David Bernstein notes, Fisher v. Texas highlights the ways in which today’s affirmative action programs victimize Asian-American students for the benefit of groups that often have not endured the kind of massive systematic discrimination inflicted on blacks, and indeed may have suffered less historic discrimination than the Asian-Americans themselves. I previously wrote about this problem here:

The Asian-American case also highlights the contradiction between the compensatory justice and diversity rationales for affirmative action in admissions… If the goal of affirmative action is to compensate minority groups who have been victimized by discrimination for the injustices they have suffered, many Asian-American groups deserve not only equal treatment but racial preferences. Chinese and Japanese-Americans, for example, were victimized by extensive state-sponsored discrimination — culminating in the internment of some 150,000 [correction: 120,000] Japanese-Americans during World War II, despite the fact that none were ever proven to be enemy spies, and very few showed any signs of disloyalty….

If, on the other hand, the goal of affirmative action is [as Grutter holds] to promote “diversity” for the sake of ensuring that each ethnic group is represented by a “critical mass” in the student body sufficient to educate other students about their culture, then the lack of affirmative action for Asian-Americans becomes more understandable. Because of their impressive academic credentials, a critical mass of Asian students can be achieved even without affirmative action preferences. However, this conclusion may be overstated. “Asians” are not a monolithic group. Japanese, Chinese, Indians, Filipinos, Vietnamese, and Cambodians all have very different cultures [and some of these groups don't have as high average grades and test scores as others]. Indeed, immigrants from one part of India or China often have different cultures and speak different languages from those hailing from other parts of the same nation. Treating them all as an undifferentiated mass of “Asian-Americans” is a bit like saying that Norwegians, Italians, and Bulgarians are basically the same because they are “Europeans.” If diversity is really the goal, university administrators should do away with the artificial “Asian-American” category altogether and start considering each group separately. They should do the same for the many groups usually lumped together as “white” or “Hispanic.” A university that already has a critical mass of native-born-WASPS might well not have a critical mass of Utah Mormons or Eastern European immigrants.

As Ilya notes below, the Fifth Circuit has upheld the University of Texas’s racial and ethnic preference practices in Fisher v. Texas.

There are a number of interesting aspects of Fisher. One is that the University of Texas-Austin had a very “diverse” class without using preferences. Under the university’s previous, race-neutral system, which included the “10 percent” plan, Hispanic and African American students were a total 21.4% of the 2004 freshman class, and Asian Americans made up another 20% or so of the class. This made UT-Austin one of the most ethnically diverse elite universities in the country, and, one might think, substantially undermined the purported compelling interest in using preferences. [The university argued, and the court agreed, that it had the constitutional authority under Grutter to be concerned not simply with overall demographics, but with the demographics of individual programs within the university, and, indeed, individual classes!]

A second interesting aspect of the case is the light it shines on the diversity rationale for preferences in higher education. University officials are forced by Supreme Court precedent to publicly rely on the diversity rationale for affirmative action admissions preferences. But everyone in academia knows that the primary underlying ideological rationale for such preferences has been a desire to redress the exclusion of African Americans from mainstream American life through hundreds of years of slavery and Jim Crow. (Like Ilya, I have much more sympathy for this rationale than for the diversity rationale.)

By contrast, the primary beneficiaries of UT’s admissions policies are not African Americans, who are only about six percent of UT students, but Hispanics, who are more than three times as numerous (though African Americans did benefit more proportionally). And, as a brief filed by the Asian American Legal Foundation pointed out, the primary victims are Asian Americans, who constitute a mere 3.5% of Texas population, but about five times that percentage of undergraduate students at UT, and therefore are significantly “overrepresented” by the university’s logic. [And indeed, when the university admits students outside of the 10 per cent plan, and uses ethnicity as a factor, students of Asian ancestry need an average SAT score of 1322 to be admitted, compared to 1193 for Hispanics.]

So UT policy pits ones group composed mostly of post-1965 immigrants and their children against another, with no apparent justification beyond the blunt political fact that Hispanics are a much larger voting constituency in Texas. To the extent that Hispanics disproportionately come from impoverished backgrounds, or from non-English speaking households, UT’s old, race-neutral system already took this into account by encouraging inquiry into an applicant’s socioeconomic background.

Meanwhile, many Hispanics are solely or primarily of European heritage, and about 50% identify themselves as “white” on census bureau forms. UT’s approach (supported by the Obama Administration), is that a state university can and should favor white descendants of Spanish conquistadors or Italian immigrants to Argentina or Jewish Mexicans of Eastern European descent–I know people in all the latter categories–over a dark-skinned child of Vietnamese boat people, solely because the former have Spanish-speaking ancestors.

So, unlike every race/ethnic affirmative action case to reach the Supreme Court, where the underlying conflict has been primarily black-white, Fisher represents the affirmative action of the future, where Hispanic Americans, the largest government-defined minority group in the country, are the primary beneficiaries, and another large and growing group, Asian Americans, suffer the most harm.

It would be fascinating to see this case get to the Supreme Court.

In yesterday’s opinion in Fisher v. Texas, the US Court of Appeals upheld a University of Texas affirmative action program in admissions, applying the Supreme Court’s 2003 decision in Grutter v. Bollinger, which held that racial diversity in higher education is a “compelling state interest” justifying the use of racial preferences to ensure that there is a “critical mass” of minority students. There is a concurring opinion by Judge Emilio Garza that agrees with the majority’s application of Grutter, but also enumerates Grutter’s many shortcomings and urges the Supreme Court to overrule it. I think there is in fact a decent chance that the Supreme Court will take this case and either overrule or at least cut back on Grutter. Since 2003, Grutter author Justice Sandra Day O’Connor has been replaced by Samuel Alito, a justice unlikely to support the “diversity” rationale. Three other justices have been replaced by new justices whose views on affirmative action are similar to their predecessors’. Since Grutter was a 5-4 decision, the switch from O’Connor to Alito might determine its fate if the issue returns to the Supreme Court.

Fisher is particularly interesting in light of the fact that the Fifth Circuit upheld the program despite the fact that the Texas Ten Percent Plan (which gives automatic admission to any student who graduated in the top 10% of his or her high school class) had already significantly increased the percentage of black and Hispanic students at the University of Texas. In this 2006 post, I argued that the Ten Percent Plan is much more objectionable than traditional affirmative action, even though it is formally “race neutral.” Since then, new research has confirmed the anecdotal data I cited indicating that the ten percent plan creates perverse incentives for students to choose poor quality schools in order to increase their chances of getting into the top ten percent.

My own view of affirmative action is almost the exact opposite of that adopted by the Supreme Court in Grutter. I am skeptical of the diversity rationale embraced by O’Connor, but have a measure of sympathy for the compensatory justice rationale that she and the Court rejected. I outlined these views in more detail here, here, and here.

Unfortunately, I am going to be very busy over the next few days, so probably won’t have much opportunity to blog about this issue. But I did want to offer these few thoughts, and then leave the field open to others. Some of the other Conspirators have much greater expertise on affirmative action than I do, and I hope they will offer some commentary of their own.

NOTE: As longtime VC readers know, I clerked for Fifth Circuit Judge Jerry E. Smith, author of Hopwood v. Texas, the 1996 decision striking down an affirmative action program at the University of Texas Law School that Grutter and Fisher have superseded. Judge Smith wrote Hopwood several years before I clerked for him, and I don’t think this connection has any real impact on my view of the issue. Still, I thought I would point it out just in case.

From my days on the Fifth Circuit, I am also acquainted with Judge Garza, who is one of the smartest and best-prepared judges I have ever met. Whether it was appropriate for him to criticize a Supreme Court decision in his concurring opinion is a question I leave to others. I will note that Garza’s action is far from unprecedented. A number of other well-known federal judges have done similar things, including Richard Posner in State Oil v. Khan, where he successfully urged the Court to overturn an important antitrust precedent that he denounced as “”unsound when decided,” “moth-eaten” and “increasingly wobbly.”

New York Law Journal:

A stir recently erupted in the securities class action bar after Baer issued an order in a case against Gildan Activewear Inc., directing two of the largest firms in the field, Labaton Sucharow and Robbins Geller Rudman & Dowd, to “make every effort” to put at least one woman and one minority lawyer on the case.

It’s not the first time Judge Baer has required “diversity” in class counsel, according to the story.

The decision (6-1) is at Coral Construction, Inc. v. City and County of San Francisco; the court agrees with Coalition for Economic Equity v. Wilson, 122 F.3d 692 (9th Cir. 1997), and Coalition to Defend Affirmative Action v. Granholm, 473 F.3d 237 (6th Cir. 2006), which likewise upheld the California initiative and a similar Michigan initiative. Because there’s no disagreement among federal circuit courts and state supreme courts, I expect the U.S. Supreme Court will not hear the case.

Thanks to How Appealing for the pointer. Disclosure: I helped draft the initiative, back in the mid-1990s.

UPDATE: Prof. John Yoo (Ricochet) weighs in, as does Prof. Richard Epstein (also at Richochet).

In his much-discussed recent Wall Street Journal op ed, Virginia Senator James Webb makes some good points about affirmative action and race, but also some key mistakes and omissions. On the plus side, Webb’s article highlights the contradictions between the “diversity” and compensatory justice rationales for affirmative action. He also correctly suggests that slavery and segregation inflicted considerable harm on southern whites as well as blacks; it is therefore a mistake to view these injustices as primarily a transfer of ill-gotten wealth from one race to another. On the negative side, Webb is very unclear as to his own position on affirmative action. He also seems to blame racism and the historic economic backwardness of the South on the machinations of a small elite. The reality was more complicated. Low-income southern whites were often much more supportive of racism and segregation than economic elites were, and Jim Crow might have been less virulent without their support.

I. Competing Rationales for Affirmative Action.

One of Webb’s best points is that affirmative action has resulted in preferences for groups that cannot claim to be victims of massive, systematic injustices inflicted in the United States:

In an odd historical twist that all Americans see but few can understand, many programs allow recently arrived immigrants to move ahead of similarly situated whites whose families have been in the country for generations. These programs have damaged racial harmony. And the more they have grown, the less they have actually helped African-Americans, the intended beneficiaries of affirmative action as it was originally conceived….

The injustices endured by black Americans at the hands of their own government have no parallel in our history, not only during the period of slavery but also in the Jim Crow era that followed. But the extrapolation of this logic to all “people of color”—especially since 1965, when new immigration laws dramatically altered the demographic makeup of the U.S.—moved affirmative action away from remediation and toward discrimination, this time against whites….

This state of affairs highlights the contradictions between the compensatory justice and “diversity” rationales for affirmative action, which I previously discussed here, here, and here. Under the latter, it may be permissible to give preferences to any group with a supposedly different or unique perspective. Under the former, recent immigrants and other minorities who have not been victims of massive large-scale discrimination in the US should not get preferences. Even among black beneficiaries of affirmative action at elite universities, a significant percentage are recent West Indian and African immigrants.

Like Webb, I tend to be skeptical about the “diversity” rationale and at least somewhat sympathetic to the compensatory justice argument. Unfortunately, Webb doesn’t make clear whether his position is that affirmative action preferences should be abolished entirely or limited to African-Americans. If the latter, should they be limited to descendants of victims of slavery and Jim Crow, or should recent immigrants continue to be included (as they usually are now)?

II. Jim Crow Racism as a Negative-Sum Game.

Webb’s other good point is that whites are not a “monolith,” emphasizing that the historic economic backwardness of the South greatly harmed southern whites as well as blacks. He could have made this point stronger by noting that that backwardness was in large part the legacy of slavery and Jim Crow. As economic historians have documented, these institutions prevented the South from fully utilizing the abilities of some one third of its population and tended to deter economic innovation and outside investment. It’s no accident that the economic rise of the “New South” really took off only after the Jim Crow system was eliminated in the 1960s.

Slavery and Jim Crow are sometimes seen as a massive transfer of wealth from blacks to whites, a kind of zero-sum game where one group plundered the other. Advocates of reparations argue that the beneficiaries of injustice must therefore compensate the former by returning their ill-gotten gains. There is no doubt that some whites benefited from the system. Overall, however, slavery and Jim Crow were negative-sum games that harmed both groups (albeit blacks suffered much more). The net impact of slavery and segregation on southern white wealth was almost certainly negative, once we take into account the harm caused by the resulting economic backwardness, the expenses associated with repressing blacks, and the massive destruction wrought by the Civil War.

III. Webb and the Role of Poor Whites.

Unfortunately, Webb seems to treat poorer whites as passive victims “dominated by white elites who manipulated racial tensions in order to retain power.” In reality, poorer southern whites tended to be strong supporters of slavery and segregation. In the Jim Crow era, they often supported the system much more strongly than wealthier whites and business interests did. For as far back as we have survey data, support for racism and segregation among whites was inversely correlated with income and education. When Jim Crow laws were first established in the late 19th century, elite business interests often opposed the system because they feared it might damage their economic interests. Populist political pressure overcame that opposition. Populist racism often led political elites to take more segregationist positions than they personally preferred. For example, George Wallace’s biographer Dan Carter documents how Wallace started out his career as a relative racial moderate, but switched to a hard-line segregationist position after he got “outniggered” (as Wallace put it) by a more segregationist opponent in his first campaign for governor.

The racism of low-income whites was in part the result of indoctrination by elites and state governments. It was also partly the result of rational political ignorance and irrationality. Still, the fact remains that that racism, Jim Crow, and southern economic backwardness were not just the result of manipulation by evil elites. The masses had a hand too.

Back in 2006, I pointed out that most liberals and conservatives take internally contradictory stances on affirmative action and racial profiling:

I have long been fascinated by the fact that most conservatives support racial and ethnic profiling for national security and law enforcement purposes, yet are categorically opposed to the use of racial or ethnic classifications for affirmative action. Most liberals, by contrast, take exactly the opposite view. Both ideologies oppose racial and ethnic classifications as a matter of principle in one area, yet defend them on pragmatic grounds in another….

[Conservatives] say… that ethnic profiling of airline passengers is justified because, on average, a young Middle Eastern Muslim male is more likely to be a terrorist than members of other groups. This, despite the fact that not all (or even most) Middle Eastern Muslims are terrorists, and there are of course some terrorists (Richard Reid, Tim McVeigh, etc.) who belong to other groups…..

Defenders of affirmative action, of course, make a very similar argument. On average, an African-American or Hispanic applicant to college is more likely to be a victim of racism and to suffer from the historical legacy of Jim Crow and slavery than a white applicant is. Thus, it makes sense to give preference to applicants from these groups, despite the fact that some of the beneficiaries will be people who haven’t suffered much from racism, and some of the members of the non-preferred group may themselves be disadvantaged. Defenders of AA also claim that the average black or Hispanic applicant contributes more to campus diversity than the average white one, although there are of course many individual exceptions to this rule.

What I wrote about conservative defenses of ethnic profiling of suspected terrorists applies equally to arguments for its use in ordinary law enforcement.

The recent Arizona law on illegal immigration has rekindled debate over these questions. Things seem to have improved a bit since 2006, as conservatives are at least starting to realize that there is a tension between their positions on the two issues. At the National Review website, Roger Clegg and Linda Chavez have argued that consistency requires conservatives to oppose racial profiling as a tool for ferreting illegal immigrants, and to reject those parts of the Arizona law that promote profiling (as it is likely to do despite the law’s facial ban on the practice). Chavez correctly recognizes that conservatives can’t defend racial profiling by arguing that it is just one of many factors taken into account by law enforcement, since they reject the very same argument in the case of AA:

[T]he whole defense of racial preferences in college admissions and employment rests on the notion that race is simply one of many factors taken into account. But as the Center for Equal Opportunity’s studies on racial preferences in college admissions have definitively shown, whenever race is taken into account — even as one of many factors — it always becomes the deciding factor. And it will here as well. We conservatives can’t have it both ways: either we’re for race-neutral justice or we’re not. We can’t be against using race when it helps minorities but for it when it harms them — at least not without legitimate criticism as to our motives.

Where race is a factor in admissions or law enforcement decisions at all, it will inevitably be decisive in at least some cases. Otherwise, there would be no point in considering it at all.

Jonah Goldberg takes the opposite view, but at least acknowledges that there is a potential contradiction here. Still, he argues that racial profiling in law enforcement is more defensible than affirmative action because it causes less harm to its victims:

Many have pointed out the inconsistency of conservatives who support law-enforcement profiling while opposing admissions quotas, and of liberals who support quotas but loathe profiling.

The problem is that the two positions aren’t that analogous. In… president [Obama's] (flawed) scenario, that hypothetical Hispanic citizen will be “harassed.” What does that mean? It means he will be asked to prove his citizenship, which he will obviously be able to do. He won’t be tried, convicted, and deported; he will be inconvenienced. Indeed, under the more realistic scenario, he will be pulled over for a traffic violation and asked to offer his driver’s license (his “papers”). And that will be it.

Meanwhile, imagine you’re an American kid of Chinese ancestry. Given your SAT scores and GPA, you should be able to get into, say, the University of Michigan. But because of Michigan’s race-based policies, you’re turned down because you’re not black or Hispanic. That’s not just inconvenient, that’s a lifetime loss.

I don’t think that Goldberg’s attempt at distinguishing the two works. Whether affirmative action causes more harm to its victims than racial profiling varies from case to case. In some situations, getting stopped by the police will be a “lifetime loss” too, especially if nervousness or overreaction by either side causes a misunderstanding that escalates into violence. In other cases, it could result in your being detained for hours even if you are never charged with any crime (especially if the officer thinks you haven’t demonstrated the proper “respect” for his authority). The fear that racial profiling engenders among lower-class blacks and Hispanics (including those who never actually get profiled themselves) is also a significant cost.

White and Asian victims of affirmative action sometimes do suffer great losses, just as Goldberg suggests. In many cases, however, they simply end up attending universities comparable to or only slightly less prestigious than those that rejected them. As with racial profiling, the magnitude of the loss varies widely from case to case.

Moreover, I doubt that Goldberg or most other conservatives would favor affirmative action in admissions even if it were limited to cases where the victims suffer only minor “inconvenience.” When some liberals argue that affirmative action can be confined to close cases or instituted only for a limited time, conservative critics rightly respond that institutionalized racial preferences aren’t easily controlled. Once established, they have a strong tendency to expand, a point that conservative scholar Thomas Sowell nicely demonstrated in two of his books surveying such policies around the world (see here and here).

The same point applies to conservative claims that racial profiling in law enforcement can be confined to really important objectives such as combatting terrorism (which Clegg, for example, advocates). Once institutionalized, racial profiling is likely to expand just like affirmative action did. And, in fact, that is exactly what has happened in Europe.

In sum, conservatives deserve credit for beginning to recognize the ways in which their critique of affirmative action also applies to racial profiling. But many of them should go farther in recognizing the parallels between the two. The same point applies to those on the left who continue to ignore the relevance of their critique of racial profiling to affirmative action.

NOTE: For those who may be interested, I later expanded my 2006 post into a short essay in this Opposing Viewpoints volume on racial profiling.

UPDATE: My conservative George Mason colleague Nelson Lund deserves special credit for his 2002 article, “The Conservative Case Against Racial Profiling in the War on Terrorism,” one of the first post 9/11 conservative critiques of racial profiling.

Over at Slate, Dahlia Lithwick suggests that gay marriage opponents who oppose broadcasting the San Francisco gay marriage trial are hypocrites. According to Lithwick, it’s inconsistent both to want the people to decide an issue and to deny them video access to a trial that might sway their opinion:

Opponents of gay marriage can’t have it both ways. If they want to say that unelected federal judges cannot subvert the will of John Q. Voter, then they cannot also insist that John Q. Voter be banned from witnessing federal judges at work.

I find this argument pretty unpersuasive. The first problem is that it applies equally to both sides. Proponents of gay marriage can’t have it both ways, the reasoning would run. If they want to say that public opinion is irrelevant and John Q. Voter has no right to decide the issue, then they cannot also insist that John Q. Voter must be able to observe the trial to have his opinion influenced by it.

But that’s not to say both sides are hypocrites; rather, it’s my view that neither are. Lawsuits challenging the constitutionality of high-profile and controversial laws are often part lawsuit and part plaintiffs’ public-relations campaign. The plaintiffs pick the forum, draft the complaint, pick the timing, and pick their witnesses. The plaintiffs shape the litigation so that it puts their case forward in the best possible light. In that environment, the plaintiffs will almost always want the case televised. Defenders of the law will almost always object. It’s not about constitutional theory, but about designing a p.r.-friendly case and hoping it gets a lot of public attention — or, if you’re representing the defendant, hoping it doesn’t. There’s nothing hypocritical about either position.

What would be hypocritical is if your view of televising the trial depends on the politics of the case. Let’s flip the politics with a hypothetical: Imagine a conservative group files a lawsuit challenging affirmative action at State University. The plaintiffs seek a trial to call to the stand former applicants who were rejected by State University because of their race. The rejected applicants will be carefully chosen by the plaintiffs’ lawyers. They will have come from humble backgrounds and worked hard, overcoming a lot of challenges along the way, only to be denied admission because of their race. Here’s an excerpt of the planned testimony of the first witness for the plaintiffs, a rejected applicant:

LAWYER: You have always believed in the American dream of going to college. Tell me about that dream.
WITNESS: I have always believed that if I worked hard I could go to college and be a success. I believed in education and the American dream. I worked three jobs in addition to going to high school to make my dreams a reality.
LAWYER: But why State University? Is that a special university to you?
WITNESS: Oh yes! I have always dreamed of going to State. My high school teacher Mr. Jones was a mentor to me, and he is a proud graduate. I wanted to feel the pride of being like him, an equal: A graduate of State University.
LAWYER: You ended up being rejected from State. Why?
WITNESS: I was rejected from State because of the color of my skin.
LAWYER: Did you have the test scores?
WITNESS: Yes, I had the test scores and the grades. But they gave my admission spot to someone less qualified because I was the wrong race.
LAWYER: How did that make you feel?
WITNESS: It was the worst feeling I have ever had. I felt like I was a second-class citizen. (Voice wavers, begins to cry.) All I wanted was equal treatment. But instead the university I loved discriminated against me. They gave the spot I worked so hard for to someone less because of my race.
LAWYER: You ended up at a community college. Isn’t that basically the same thing?
WITNESS: No way. We don’t have the opportunities or the resources. And I will always be ashamed. I can’t bear to talk to Mr. Jones anymore: He is a proud graduate of State. I was denied that opportunity, and I will never feel the pride that he was able to feel by enrolling there. I’m a second-class citizen.

The plaintiffs will also seek all of the records from the university about exactly what their admissions practices are, and they will then cross-examine the university admissions officers in open court about their practices. They will want the admissions officers to testify exactly how they use race in admissions, including by going through and explaining the university’s past admissions statistics line-by-line and year-by-year.

Should that lawsuit be televised, or broadcast and posted on YouTube? I think we all realize that the plaintiffs would just love that trial to be broadcast to the public. At the same time, the defendants would strenuously object. Why? Because we recognize that this impact litigation would be partly about the Constitution and partly about public opinion. Proponents of the lawsuit want to end affirmative action either constitutionally or through the political process, and they would be delighted to influence public opinion if their constitutional views lose. Similarly, the opponents of the lawsuit will argue that the choice to have affirmative action should be available to the public, but they won’t want the plaintiff’s carefully-crafted case to be the ground on which the issue is debated. Each side want the debate on its chosen territory under its terms, and a courtroom will be the plaintiff’s chosen territory guided by the plaintiff’s terms.

The California same-sex marriage trial seems pretty similar to me. The plaintiffs have chosen the forum, drafted the complaint, and picked their witnesses to make the best case to the public. Sure, there’s a constitutional argument there, but a lot of the case is about trying to influence public opinion. The idea is to put individuals on the stand and get them to testify about their hopes and dreams in a way that makes a compelling human story — just like the plaintiffs in the hypothetical affirmative action lawsuit described above. Consider this excerpt from the testimony of the very first witness in the case, Jeffrey Zerrillo, a 34-year old gay man. Here’s the direct examination by David Boies, as reported by The Seminal and cleaned up a bit by me:

LAWYER: Today, you are in a committed relationship. You love another gay man. Tell me about that man.
WITNESS: He is the love of my life. I love him more than myself, in sickness and in health, until death do us part. I would do anything for him.
LAWYER: How long have you been in the relationship?
WITNESS: Nine years.
LAWYER: Why do you want to marry him?
WITNESS: Marriage has a special meaning. That’s why we’re here today. To share the joy and happiness my parents felt, my brother felt, my friends and neighbors felt when they married.
LAWYER: Would being married change your relationship?
WITNESS: Absolutely. One’s capacity to grow continues through marriage.
LAWYER: Would marrying affect your relationships with family and your community?
WITNESS: Yes. At work and family functions, I would participate as a married person, together with other married family members. I would feel pride as they do.
LAWYER: Would it affect others who don’t know you?
WITNESS: Sure! When someone is married, when meeting a stranger, when someone notices my ring, it says to them, these individuals are serious, they are committed to one another, they are in a relationship that one hopes lasts the rest of their lives.
LAWYER: Do you have children?
WITNESS: No.
LAWYER: Do you want children?
WITNESS: Yes.
LAWYER: Why don’t you have them?
WITNESS: Paul and I believe that we and our child deserve the protection marriage provides. So that nothing could eradicate that nuclear family.
LAWYER: You are aware you can be a domestic partner in California, right?
WITNESS: Yes, but a domestic partnership would mean we are second- or third-class citizens. That is not enough, just part of the pie and not the whole thing. We would be saying we are satisfied with being second class. Only marriage can give us first class citizenship for our relationship.

I’m not sure of the legal relevance of Zerillo’s testimony, but obviously it’s carefully designed to try to influence public opinion. The testimony puts a human face to basic points in favor of gay marriage, just like the hypothetical first witness in the affirmative action trial did for the basic points against affirmative action.

Now let me return to the charges of inconsistency that Lithwick makes in her Slate article. In my view, it’s not inconsistent to hold one view of the Constitution and yet recognize the particular political strategy behind a particular lawsuit. What would be inconsistent is having different views of whether the same-sex marriage trial and the hypothetical affirmative action trial should be broadcast. It seems to me that we need a consistent answer for what to do with that kind of case: Either broadcast them both or broadcast neither.

UPDATE: I have edited the post a bit to clarify my point; see the debate in the comment threads for more.

Somewhat surprisingly the Society of American Law Teachers study on minority matriculation to law school didn’t give data for all Hispanics. Instead, it focused on Mexican-Americans alone, concluding that their “representation” has “trended downward since 1993.” Most law schools target Hispanics as a group for affirmative action admissions, not Mexican-Americans alone. It could be that overall Hispanic matriculations have gone up, even if the Mexican-American figures have stayed constant or declined slightly (as the SALT study shows). According to Law School Admissions Council data (the same source SALT used), it turns out that the percentage of “Hispanic/Latino” students among matriculating law students has increased from 3.6% in 2000 to 5.1% in 2008, even as the percentage of “Mexican-American/Chicano” applicants has declined slightly from 1.7% to 1.4%. Unfortunately, the LSAC hasn’t posted data going back all the way to 1993 on its website, so we can’t look at the full period covered in the SALT study (1993-2008). But if the 2000-2008 figures are representative of the total period, this suggests that the percentage of Mexican-Americans has declined slightly in large part because law schools are hitting their targets for Hispanic admissions by taking more students from other Hispanic groups, such as Puerto Ricans, Cuban-Americans, and Dominicans.

Obviously, “Hispanic” is a somewhat arbitrary and socially constructed category. But the fact remains that it, not the Mexican-American subcategory, is the main focus of most relevant affirmative action programs. Mexican-Americans are far from the only group that is considered “Hispanic” as that term is used in both ordinary speech and law school admissions policies. And under either the compensatory justice or diversity rationales for AA, it is difficult to see why Mexican-Americans deserve greater consideration than other Hispanic groups.

UPDATE: In this January 2008 post, co-blogger David Bernstein cited LSAC data showing that matriculation by non-Mexican-American Hispanics went up substantially between 1992 and 2005. Unfortunately, that data no longer seems to be available at the LSAC website.

UPDATE #2: In the comments and in a recent post, David points out that Mexican-American matriculation numbers seem to be decreasing in large part because fewer are applying than back in 1993. That may well be so. However, the two theories are not mutually exclusive. Applications may have decreased in part because, at the margin, Mexican-American applicants face increasing competition from other Hispanic groups for affirmative action admission slots. As David points out, Mexican-American applicants may also have been disproportionately impacted by the end of admissions preferences in California state universities, a state where they constitute a particularly high percentage of the Hispanic population. The main point, however, is that it is misleading to consider Mexican-American admissions numbers in isolation from those of Hispanics as a whole.

UPDATE #3: Another relevant factor is that the SALT study nowhere explains the definition of “Mexican-American” they have been using. Presumably, it is based on the definition used in data from the Law School Admissions Council, which in turn relies on self-identification by law school applicants. It is entirely possible that, since 1993, more Mexican-Americans applicants have been self-identifying as generic “Hispanic/Latino” rather than “Mexican-American/Chicano” both of which appear to be options available on LSAC forms, judging by the data compiled on the LSAC website.

UPDATE #4: For some reasons, all links to the LSAC site go back to their main website, and I cannot figure out how to link to particular subpages. All I can do is point readers to their main site, which is here. The specific numbers I have been citing can be found by clicking the “data” icon on their front page, and going to “Matriculants by Ethnicity” from there (in the case of the first set of numbers I discuss), and “Ethnic/Gender Volume Summary” for the second. Sorry for the confusion, but I think it’s a problem with the LSAC website.