Archive | Affirmative Action

“Programmer Privilege”

Philip Guo (Slate) argues that his being an Asian young man led him to “fit society’s image of a young programmer,” and therefore got him cut various kinds of slack while he was a beginner and not very good. Maybe that’s right; I’m sure people do view others through these sorts of stereotypes to some extent, and that can sometimes be helpful and sometimes be harmful. But his first item on the list of what people never said to him seems not connected to the cause:

As an Asian male student at MIT, I fit society’s image of a young programmer. Thus, throughout college, nobody ever said to me (as they said to some other CS students I knew):

  • “Well, you only got into MIT because you’re an Asian boy.”

I would think that people didn’t say that isn’t because he “fit society’s image of a young programmer” — it’s because no-one thinks that MIT gives a preference to Asians. But many universities, including MIT, have preferences for black and Hispanic students. I recall attending a debate at UCLA Law School when I was a student (around 1990) at which the professor supporting race-based preferences said that, in the absence of such programs, there would be virtually no blacks at the institution. Other defenders of race-based preferences say similar things (see, e.g., here).

You might think that, on balance, race-based preferences are a good idea. But it’s hard to deny that, when the preferences exist — and when they’re so substantial that they mean that a large part, maybe over half, of the students of a particular group will be let in even though they’re below the bar for other groups — people will suspect that you got into a school because you’re a member of [...]

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Oral Argument in Schuette v. Coalition to Defend Affirmative Action

Lyle Denniston of SCOTUSblog has a detailed discussion of today’s oral argument in Schuette v. Coalition to Defend Affirmative Action, the case challenging the constitutionality of Michigan’s Proposal 2, a state constitutional amendment banning the use of racial preferences in college admissions. As Denniston notes, the five conservative justices – including key swing voter Anthony Kennedy – seemed hostile to the case against Proposal 2. The interesting question is whether any of the liberal justices will join them. Stephen Breyer, who voted to strike down an affirmative action plan in Gratz v. Bollinger (2003) hinted in the oral argument that it’s possible he might end up voting with the conservatives on this one, though of course that’s far from clear.

Regardless, this was always going to be a difficult case for the pro-affirmative side. It’s one thing to argue that the Fourteenth Amendment permits affirmative action (and in some narrow situations, I think it does), and quite another to suggest that it bans states from abolishing it through their state constitutions. The argument for the latter proposition has numerous flaws. Among other things, as David Bernstein explains, it relies on the proposition (rejected by the Court in several previous affirmative action cases) that racial preferences in higher education are constitutionally permissible if their purpose is to benefit minority groups, rather than to promote educational “diversity” that – at least in theory – benefits everyone.

Proposal 2 is likely to be upheld. But this will not, of course, end the broader legal struggle over the constitutionality of affirmative action, which primarily focuses on the question of whether the Fourteenth Amendment categorically forbids the practice, rather than the narrower issue of whether states can repeal affirmative action policies through state constitutional amendments. [...]

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Three Important New Books on Constitutional Law

In this post, I briefly review three important new books on constitutional law that are likely to interest many of our readers. Here goes:

I. John McGinnis and Michael Rappaport, Originalism and the Good Constitution.

This book is a fascinating and innovative defense of originalism. Unlike some other originalists, who defend the theory because they claim it is the only feasible way to interpret legal texts, McGinnis and Rappaport argue that originalism is superior to living constitutionalism because it produces better consequences, in the form of legal rules that benefit more people over time. They contend that the original meaning is likely to have beneficial consequences because it was enacted by supermajority decision-making processes. On average, constitutional rules supported by supermajorities are likely to be better than those produced by judges using various living constitution methodologies of interpretation or those produced by normal political majorities.

A great strength of the book is that McGinnis and Rappaport do not shy away from difficult issues that some other originalists downplay or ignore. These include the reality that most blacks and virtually all women were excluded from the political processes that produced the original meaning of the most important parts of the Constitution, the claim that Brown v. Board of Education is incompatible with originalism, and the problem of how to deal with decades of accumulated nonoriginalist precedents. To each of these dilemmas, the authors provide insightful answers. For example, they point out that Brown would probably not even have been necessary had the federal government effectively enforced the original meaning of the 14th and 15th amendments between the 1880s and 1950s. Even if integrated public schooling was not in and of itself required by the original meaning, the protection of black voting rights and a wide range of civil rights clearly [...]

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Schuette v. Coalition to Defend Affirmative Action: Forgetting the Narrative

[See update below.
This term, the Supreme Court will decide Schuette v. Coalition to Defend Affirmative Action. The Sixth Circuit, in an en banc 8-7 opinion, invalidated a Michigan constitutional amendment, passed by referendum, that forbids racial preferences by government institutions, including public universities The court held that the amendment violated the Fourteenth Amendment’s Equal Protection Clause, because it put African American students who wish to lobby for affirmative action university preferences at a structural political disadvantage relative to other students who wish to lobby for other sorts of preferences, such as legacy preferences. The latter students need only go through ordinary legislative or regulatory processes, while the hypothetical black student needs to overturn a constitutional amendment.

There is a lot to criticize in the Schuette opinion, but I wanted to focus on a point that I haven’t seen raised elsewhere, but that I raise in a forthcoming article in the NYU Journal of Law & Liberty, which I will post a link to when its ready. The Sixth Circuit treats affirmative action preferences as if they are designed to benefit African American students, and thus making it more difficult for them to lobby for such preferences puts African Americans, as a class, at a political disadvantage. The problem is that the Sixth Circuit forgot the narrative. While the impetus for affirmative action in higher education among American elites is, in fact, primarily to pursue “social justice” for underrepresented minorities in general and African Americans in particular, the Supreme Court has consistently held that this is an illegal, unconstitutional rationale for affirmative action preferences.

Rather, under governing precedent, any use of race in admissions is subject to strict scrutiny, which could be overcome only if the relevant educational officials have determined that student racial and ethnic diversity “is [...]

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The Obvious But Underappreciated Point About Federal Power and Equality

Mike Rappaport has a post at the Liberty Law Blog making a seemingly straightforward but surprisingly underappreciated point: There is good reason to think that the Fourteenth Amendment’s equality requirement was not originally meant to apply to the federal government.

People frequently try to challenge various originalist views about equality by pointing to the actions of the Reconstruction Congress. Affirmative action must be permitted by the original meaning of the Fourteenth Amendment, they will say, because the Reconstruction Congress enacted race-conscious legislation. (Although actually it did so much less than is commonly supposed.) Or the original meaning of the Fourteenth Amendment must have permitted school segregation, they will say, because Congress did not stop segregation in the DC schools.

To be fair, some originalists are no better about this. Justices Thomas and Scalia both joined the Court’s opinion in Adarand, which imposed strict scrutiny on federal affirmative action, even though Justice Scalia had previously given some perfectly plausible reasons for thinking that the federal government has more freedom to engage in race-conscious decision making than states do. The Scalia/Thomas vote in Adarand could be justified on a certain attitude toward precedent, but they can be criticized for not explaining or justifying it.

Of course there is judicial precedent reverse-incorporating the equal protection clause against the federal government; but originalists often discuss original meanings that are currently in conflict with precedent. And there are even some quasi-originalist arguments justifying an equality requirement for the federal government. Co-blogger David Bernstein has discussed the Due Process Clause; Ryan Williams has discussed the Citizenship Clause; Gary Lawson, Guy Seidman, and Rob Natelson have discussed the backdrops of fiduciary law. These views might even be right (although I do not think so). But among originalists, they are the minority [...]

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Is Martin Luther King’s Dream Unconstitutional?

Fifty years ago today, Martin Luther King, Jr., spoke these immortal words: “I have a dream that my four little children will one day live in a nation where they will not be judged by the color of their skin, but by the content of their character.” He would have been mystified, one imagines, by the question presented in Schuette v. Coalition to Defend Affirmative Action: “Whether a state violates the Equal Protection Clause by amending its constitution to prohibit race- and sex-based discrimination or preferential treatment in public-university admissions decisions.” [...]

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The Mismatch Effect, in the L.A. Times

As Heather MacDonald points out in the National Review Online, an L.A. Times story from Aug. 16, 2013 is a good case study illustrating my colleague Rick Sander’s mismatch effect thesis. The article is about Kashawn Campbell, who sounds like an immensely appealing and studious young man who has been failed by the system, most recently by UC Berkeley’s attempt to get more black and Hispanic students via “a statewide program to attract top students from every public California high school.” Campbell had done very well at an extremely low-performing Los Angeles high school, and was admitted to Cal — for which he was apparently academically unprepared:

The first essay for the writing class that accounted for half of his course load was so bad his teacher gave him a “No Pass.” Same for the second essay….

At Cal, he was among the hardest workers in the dorm, but he could barely keep afloat.

Seeking help, he went at least once a week to the office of his writing instructor, Verda Delp.

The more she saw him, the more she worried. His writing often didn’t make sense. He struggled to comprehend the readings for her class and think critically about the text.

“It took awhile for him to understand there was a problem,” Delp said. “He could not believe that he needed more skills. He would revise his papers and each time he would turn his work back in having complicated it. The paper would be full of words he thought were academic, writing the way he thought a college student should write, using big words he didn’t have command of.”

Is it really a great service to Campbell to admit him to UC Berkeley? His black classmate Spencer seemed to be thriving there, apparently (judging by the [...]

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Another Odd Thing about that “Latino/a Law Professors” Letter

On Friday, I noted what I deemed to be a strange response from a self-described “group of Latino/a law professors” to a piece I wrote for Scotusblog on affirmative action and Hispanics after Fisher; strange primarily because I was addressing the diversity rationale for affirmative action, which is the rationale approved of by the Supreme Court, but the response only discussed other rationales, which seem to be plainly unconstitutional under current jurisprudence including Fisher, and thus only tangential to my piece.

The response also contains this line, which I didn’t pay much attention to: “Affirmative action attempts to remedy racism; the availability of this remedy for Latinos should not be attacked because there also exists some racism among Latinos, let alone among individuals who might conceivably be classed as Hispanics.” When I read this, I thought that given my paragraph that began, “Hispanics can be the direct descendants of Spanish conquistadors, their indigenous victims…” the professors were referring to the fact that there is a great deal of racism within Latin American society, with individuals of European descent often mistreating individuals of mixed-race, Indian, and African descent.

However, someone “in the know” has suggested to me that the letter was actually referring to George Zimmerman. I did reference Zimmerman in the introductory “hook” to my Scotusblog piece–it’s common with op-eds to try to open your piece with a “hook”, an allusion to a relevant current event so as to pique the readers interest.

But as I explained quite explicitly, the relevance of Zimmerman was that “the debate over how to categorize Zimmerman [white, Hispanic, or white Hispanic] exemplifies ambiguities in Hispanic identity, and therefore leads to some interesting questions regarding the future of affirmative action.” I neither suggested that Zimmerman exemplifies racism among “Latinos” or “people who might [...]

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Strange Response from “A Group of Latino/a Law Professors”

A self-described “group of Latino/a Law Professors” has published a strange response to my commentary on Hispanics and affirmative action after Fisher, published on Scotus blog, noted by me here, and followed up yesterday.

Why strange? Because the response has very little to do with my post. My post, being commentary on a Supreme Court case and not general musings on affirmative action, primarily was about whether using the the broad category of “Hispanic” makes sense under the diversity rationale endorsed by the Supreme Court in Grutter and left undisturbed by Fisher. I noted that “Hispanics” are an extremely heterogeneous group, including many people who by just about any measure other than affirmative action categories are considered to be white, such as descendants of immigrants from Spain, Sephardic Jews, Argentines of Italian descent, and so on.

Let’s recall that diversity is the ONLY rationale for affirmative action [preferences in universities] endorsed by the Supreme Court. A state university that relied on a “social justice rationale,” such as the desire to remedy past and present racism, would clearly be acting illegally under current law.

So I’m surprised to find that the professors’ response doesn’t address the diversity rationale at all. Indeed, the word “diversity” doesn’t appear in their response–perhaps because some of the signators have themselves been strong critics of this rationale.

Instead, the professors entire commentary is devoted to a defense of the notion that affirmative action for Hispanics is justified for “social justice” reasons: “The negative stereotypes and rampant discrimination create barriers across our society and in particular in the educational context impediments that affirmative action seeks to address….. Affirmative action attempts to remedy racism…. Affirmative action seeks to repair the ongoing harms directly attributable to past racism, and also responds to continuing discrimination [...]

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Brief Followup on Post on Hispanics and Affirmative Action after Fisher

I’ve said most of these things in previous posts, but judging from the comments, memories are short (and we get a lot of new readers the last week of the Supreme Court term), so let me reiterate: (1) I think private universities should be free to have whatever affirmative action policies they want, for whatever reasons they want [though I’d greatly prefer transparency to obfuscation–current law virtually requires obfuscation, as done many schools’ remarkably bad record at ensuring that their affirmative action admittees succeed]; (2) I think the diversity rationale for affirmative action is incoherent, and the examples I gave in my post suggest why. Because it’s incoherent, it shouldn’t satisfy strict scrutiny as required in Fisher, even though Justice O’Connor decided it does in Grutter. But I would still let private universities use this rationale if they so desired; (3) I think the “social justice” rationales for affirmative action–to redress past and current discrimination, but also to ensure that “out” groups have a place at the table, so to speak, because in-groups are prone to ignore their concerns unintentionally or otherwise, has some merit, especially with regard to African Americans. It also has the virtue of limiting the potential categories of groups that can seek affirmative action, which could prevent development of a broad ethnic spoils system. Unfortunately, the Supreme Court has ruled such considerations out as a justification for affirmative action; and (4) I think that some subgroups of the Hispanic population (among others) may very well qualify for affirmative action under the social justice rationale, but (5) it makes little sense for that purpose to give preferences to someone who is for all but affirmative action purposes white, but whose ancestors happened to speak Spanish.

UPDATE: Unlike Ilya, I also think that ten percent plans [...]

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Stuart Taylor’s Response to My Post on Prospects for Challenges to University Affirmative Action Policies After Fisher

Well-known columnist Stuart Taylor has posted a thoughtful response to my critique of his earlier post arguing that the prospects for future challenges to university affirmative policies after Fisher are bleak:

Ilya Somin has posted a critique of my Minding The Campus commentary worrying that the Supreme Court’s decision in Fisher v. University of Texas could have the paradoxical effect of entrenching racial preferences for decades.

Ilya makes reasonable points, and he may turn out to be right. I respectfully disagree, as explained below, with his contention that I was “off base” in saying that it is extremely difficult for a rejected student to know, let alone prove, that she would have been admitted but for racial preferences….

As for “off base”: Ilya does not deny the factual accuracy of my statement that rejected students’ inability to know whether they would have been admitted but for racial preferences may be a major deterrent to reverse-discrimination lawsuits. Rather, he disputes my suggestion that this may be a major deterrent to suing.

In fact, it has already proved to be a strong deterrent. The proof is that during the more than 45 years since racial preferences in admissions got started, only five reverse-discrimination lawsuits (the first of which was dismissed as moot) have gotten to the Supreme Court. And very few have prevailed in lower federal courts.

Among the reasons for this paucity is the fact that neither Abigail Fisher nor any future plaintiff can ultimately win a remedy unless the courts end up deciding after years of litigation that she would have been admitted had race not been considered — an issue about which the rejected applicant has far less information than the university does.

Other deterrents to suing are the unlikelihood of a substantial damage award; the negative publicity, vilification,

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Will There be More Challenges to Affirmative Action Policies in the Wake of Fisher?

Unlike me, co-blogger David Bernstein and widely respected columnist Stuart Taylor believe that the Court’s recent decision in Fisher v. University of Texas was a setback for opponents of affirmative action. They agree that the Court’s ruling raised the legal standards that affirmative action programs must meet in order to survive judicial scrutiny. But they argue that this will not matter much because too few plaintiffs will challenge the policies. Taylor summarizes the reasons for this conclusion:

1) Very few white or Asian students who suspect that they were rejected on account of racial preferences are motivated to bring lawsuits. The vast majority would rather get on with their lives…. (2) It is extremely difficult for a rejected student to know, let alone prove, that she would have been admitted but for racial preferences…. (3) Another deterrent to suing is the endless delay that is routine in major litigation…. (4) Such lawsuits are very expensive, and far beyond the means of almost all rejected applicants. While Fisher’s lawsuit has been financed by conservative activists led by Edward Blum, they could provide only a tiny fraction of the resources that any university can throw into the fray.

Taylor’s second reason is off-base. Rejected applicants disadvantaged by racial preferences are not required to prove that “they would have been admitted but for [those] preferences.” Abigail Fisher, Barbara Grutter, and Jennifer Gratz, among others, could not and did not prove any such thing. Yet they were able to bring their cases anyway. The applicable legal rule is that such plaintiffs need only prove that they were denied an equal chance to compete for admission regardless of race. As the Supreme Court ruled in the 1978 Bakke case:

E]ven if Bakke had been unable to prove that he would have been admitted

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Fisher is a Significant Loss for Opponents of Affirmative Action Preferences

Sure, the Court tightened the official standards for preferences. But judging from past experience, unless otherwise compelled by state officials in a few conservative states, university officials will ignore Fisher to the extent it conflicts with their current practices. The only way Fisher can then be enforced is through lawsuits over university policies, which are few and far between.

Stuart Taylor gives some reasons why:

(1) Very few white or Asian students who suspect that they were rejected on account of racial preferences are motivated to bring lawsuits. The vast majority would rather get on with their lives. Suing has opened white plaintiffs such as Abby Fisher to hostile publicity and even vilification. Fisher was also opposed in the Supreme Court by a very wide array of major establishment institutions; (2) It is extremely difficult for a rejected student to know, let alone prove, that she would have been admitted but for racial preferences. While aggregate data suggest that many or most universities give black applicants a boost over whites equivalent to a full point of GPA, or 300 SAT points, and a larger boost over Asians, almost all universities cloak in secrecy how much weight they give to race; (3) Another deterrent to suing is the endless delay that is routine in major litigation. Abigail Fisher had long since graduated from Louisiana State University by the time the Supreme Court got around to deciding her case — by sending it back to the lower courts for more litigation! (4) Such lawsuits are very expensive, and far beyond the means of almost all rejected applicants. While Fisher’s lawsuit has been financed by conservative activists led by Edward Blum, they could provide only a tiny fraction of the resources that any university can throw into the fray.

I also recall

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Hispanics and Affirmative Action after Fisher

My commentary is up at Scotusblog. Here are the key paragraphs:

Hispanics can be the direct descendants of Spanish conquistadors, their indigenous victims, African slaves, immigrants from anywhere in the world, or any combination of these. Hispanics’ ancestors have come to the U.S. from any one of twenty-one very diverse Spanish-speaking countries, plus possibly Portugal, Brazil, and other countries, depending on exactly how the category is defined. So what exactly justifies singling out Hispanics for preferences, but not members of other groups?

In Grutter v. Bollinger, the Supreme Court took the racial and ethnic categories used by the University of Michigan Law School as a given, and never addressed why Hispanic ethnicity, but not other ethnicities, should count for affirmative action purposes….

In any event, the diversity rationale endorsed by Grutter fails to explain why a state university is permitted to give preferences to a Hispanic individual of European ancestry, or an American of Mexican descent whose family has lived in Texas since 1850 and is fully assimilated into American life, while denying such preferences to, say, a dark-skinned child of Arabic-speaking immigrants from Yemen. The one hundredth Hispanic admitted to a university freshman class as an affirmative action candidate would seem to add less ethnic or linguistic heritage diversity than the first Kazakh or Mongolian. Yet it’s permissible under Grutter to give only the former a preference to satisfy diversity goals.

Even though Hispanics are now the largest group that are eligible for affirmative action preferences, I’ve never heard a coherent explanation of why it satisfies equal protection standards for state universities to use Spanish-speaking ancestry, as such, as a proxy for “diversity”–if anyone has one, please explain in the comments. Consider this: if Mitt Romney’s grandparents had bothered to learn Spanish and conveyed that language to [...]

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Jack Balkin on Fisher

Yale law professor Jack Balkin – a leading constitutional law scholar generally sympathetic to affirmative action – has an interesting post on Fisher v. University of Texas. Like me, Balkin believes that the decision will make it more difficult for universities to defend racial preferences in court:

Fisher distinguishes between two questions. The first is whether diversity is a compelling interest for a state university; the second is whether an admissions program that uses race to achieve educational diversity is narrowly tailored.

On the first question, the courts will generally defer to university officials’ belief that educational diversity is essential to the university’s educational mission.

However, on the second, question–whether the university’s use of race is narrowly tailored–courts will not defer to the university’s views. In particular, courts will not defer to the university’s judgment that no workable race-neutral alternative would achieve the benefits of educational diversity “about as well and at tolerable administrative expense….”

This is important news, even if you think that this view was implicit in previous caselaw. If a race-netural approach would achieve the benefits of educational diversity not exactly to the same degree, but “about as well and at tolerable administrative expense,” then the university may not use a race-based program. The judgement of adequacy of race-neutral alternatives will be made by a court, and although it will pay attention to the professional judgment of educators, the court will not simply defer to that judgment.

This means that universities will be pressed to prove that “ten-percent” plans and class-based or socio-economic-based affirmative action programs will not do approximately as well as programs that consider race as one factor. The question will not be only one of numbers, but also the kind of diversity produced and its effects on education. That question will be

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