Anti-DEI's "What About the Men!" Problem

There's a WaPo article going around titled "Trump’s attack on DEI may hurt college men, particularly White men" The basic thrust of it is that women are considerably more likely to apply to (elite) colleges than men, and moreover women have for some time now outperformed men on the "traditional" metrics of collegiate qualification (grades and standardized test scores). Anybody in the know knows that colleges seeking to maintain some measure of gender parity in their admitted classes have put their thumbs on the scale in pursuit of qualified men. But the Trump anti-DEI initiatives nominally prohibit such behavior, meaning that if "meritocratic" admissions policies yield overwhelmingly female classes, well, that's the way it'll have to be.

This headline, unsurprisingly, has yielded no small amount of schadenfreude among liberal observers -- once again, Trump's leopards eat the faces of his loyal supporters. But to that there's been another response from more conservative voices challenging the framing: if Trump's anti-DEI measures "hurt men", then it must mean that the prior pro-DEI measures "hurt women". As a colleague at another school put it after making this point: "Everyone fine with that?"

That was a rhetorical question, of course. But I think answering it earnestly might yield some insight.

Assume we buy the basic premise here: DEI helps men and hurts women; anti-DEI hurts men and helps women. The punch of the Post's article stems, I think, from two following observations:

1. Many conservative initiatives aimed at propping up men who are underperforming on traditional metrics do not, on face, comport with "anti-DEI" principles (and their conservative proponents don't seem to realize this); and
2. Many feminists and women who support DEI initiatives do so notwithstanding the fact that men may be among their primary beneficiaries.

Both of these observations deserve a deeper dive.

Start with the first. Again, it is an open secret that colleges have been putting their thumbs on the scale to help bring in more male applicants and matriculants. Sometimes their rationales are pure sexism -- Chris Rufo, for instance, admitted that many of his "reforms" at the New College were expressly designed to reduce the number of women who enrolled (comments which, I'll repeat, really should be smoking gun evidence of sex discrimination in the event of a lawsuit). More broadly, there is a cottage industry of conservative pundits pushing the line that society discriminates against men, is structured to disadvantage men, does not adequately value the contributions of men, and these injustices are what explains men's seeming underperformance. The "thumb on the scale" is actually a mechanism to compensate for these deeper inequalities. 

Now, sometimes these accounts are, as in the Rufo case, simple misogyny. But I don't want to say it's always wrong to look at gendered barriers men might face and think of ways to counteract or ameliorate them. The problem, though, is that these narratives of male disenfranchisement and the earnest efforts to reverse them are no different in form from the "DEI" logic conservatives claim to abhor -- problematizing disparities in outcomes that, on a superficial level, appear explainable by "merit" and instead treating the disparity itself as a problem needing remediation. A few weeks ago, I saw a Facebook post where the University of Chicago announced that all the EiCs of its law journals were women. An alum replied angrily that this outcome must be the product of DEI and "wokeness", because statistically what are the odds that women would occupy all the top journal roles? I snickered at this, because her jeremiad was actually a cry for proportional representation; the hitherto conservative boogeyman roundly mocked when it is used to demonstrate bias against women or minorities. But of course when it's men who fall on the wrong side of the line, then statistical underrepresentation is smoking gun proof of a Capital-P Problem. The inconsistency is glaring.

So the first observation really does just boil down to sexism -- though sometimes with a few extra steps. What of the second? The logic that, if you're giving a leg up to men for scarce admissions slots there are some marginal women who would be admitted but now will not be, certainly has purchase. And so one could understand if women, or feminist advocates, reacted strongly against such programs as tantamount to sex discrimination against women. Yet observationally, this doesn't seem to be the case. Some women, no doubt, oppose these initiatives, but it does not seem like women or feminists by and large are opposed to collegiate initiatives aimed at propping up the number of male students in attendance. What do we derive from that?

It seems that, contra the bald assertion that DEI programs must inherently be understood as injuring the class that is not the direct beneficiary, in at least some cases the overrepresented group does not perceive such programs as harmful or injurious to their interests. Perhaps they, too, take on a broader view of how colleges ought to assess "merit" than just grades and test scores. Perhaps they think the various programs targeted at men genuinely are ameliorating gendered blind spots in who and what we value as a society. Or perhaps they simply don't prefer to attend colleges that are overwhelmingly homogenous, even (or especially) when they're the in-group (one can certainly understand why at least some women -- at least those enrolling in coeducational institutions -- might not prefer a university student body that's 66%+ female). Whatever the reason, it seems that many women do not see the issue the way conservatives believe they should (or must).

Here, I'm reminded of a post I wrote in 2018 about Gail Heriot, who was arguing that feminists should oppose the ratification of the Equal Rights Amendment. Heriot's contention was that feminists support many sex-conscious programs, but the ERA -- if interpreted in parallel with the Fourteenth Amendment's Equal Protection Clause to demand a "sex-blind" constitution -- would strike most of these programs down. From this, she saw only two possibilities: either feminists don't actually support the ERA, or they don't actually care if these sex-conscious programs survive. I pointed out that Heriot seemed to entirely miss Door #3: feminists don't understand the meaning of "equality" in the ERA's text to preclude all sex-conscious programs. If the same people who support the ERA also support sex-conscious initiatives, that's strong evidence that the apparent public meaning of the ERA's "equality" language is not sex-blindness. Yet Heriot seemingly just could not process that the people might understand "equality" different from the prevailing conservative ideological predilections -- a pretty searing indictment of originalism in practice, when you think about it.

So to answer my colleague's question earnestly: while no, not everyone is "fine" with colleges making conscious efforts to try and bring in more men, many people are, including many women and many feminist advocates. They are fine with it for many reasons, ranging from their own desire to attend schools that are relatively sex-balanced, to an earnest belief that there might be certain gendered barriers to men (or certain men) pursuing higher education that a college can justly try to mitigate. I'm not saying this view is necessarily correct, but we have to take seriously that it seems to be one many people hold, even if it doesn't comport with a particular, conservative vision of how we all "should" understand equality, meritocracy, and the virtues or vices of "DEI" programs.

The Conservative Experiment at New College is Failing on Easy Mode

I'll admit: when Ron DeSantis and Christopher Rufo announced their intention to convert the New College of Florida into a conservative indoctrination camp, I thought they might succeed. Not just in the enshrining conservative orthodoxy part, but in doing so while maintaining or increasing New College's numbers along traditional metrics of academic excellence.

Simply put, the New College is a small place (fewer than 700 students). And so my logic was straight-forward: are there 700 young conservatives with reasonably good test scores who are eager to devote their college experience to a crusade in owning the libs? Probably! Especially given the largesse that undoubtedly would be funneled to them by the DeSantis administration in support! And given the high profile of DeSantis' and Rufo's machinations, it would be easy to attract that sort of young right-wing zealot to the New College campus. Any right-wing culture warrior who would find this sort of endeavor appealing no doubt would have heard of the New College and what's being done there, and would quickly put it at the top of their application list.

The problem, I thought, was always going to be one of scalability. Sure there may be 700 such students who could make the New College experiment into a "success". But are there 10,000? 100,000? The factors which would make the New College experiment work could not be replicated across the education sector as a whole. Try this at the University of Florida and you'd just have the academic wrecking ball of mass faculty departures and an enraged student body, and nothing to show for it. So my prediction would be that some of the "cream of the crop" currently going to Liberty or Patrick Henry might redirect themselves to the New College, thus giving a false impression that there was untapped demand for the product Rufo was selling, and then we'd have to explain that redistributing the small set of baby conservative crusaders is not actually evidence of a plan that can work at scale.

But it turns out I was still giving Rufo and DeSantis too much credit. Because the early returns are in, and while they've certainly done a number in terms of destroying the New College's academic reputation and standing (over a third of the faculty have departed, alongside dozens of transferring students), the new crop of students coming in are actually less impressive than those the college attracted before the takeover.

Rufo speaks a lot about academic excellence and the virtues of a classical liberal education. But as Steven Walker of The Sarasota Herald-Tribune reported in a damning July story, the incoming class recruited by the new administration has lower average grades, SAT scores and ACT scores than last year’s class. “Much of the drop in average scores can be attributed to incoming student-athletes who, despite scoring worse on average, have earned a disproportionate number of the school’s $10,000-per-year merit-based scholarships,” wrote Walker.

With all the publicity, and all the conservative cheerleading, and all the momentum of the right's latest culture war, the New College couldn't even attract a few hundred talented right-wing youth to create the impression of a successful reform? Hilarious.

And it gets better. Rufo defends the recruitment of underperforming athletes on the grounds that -- wait for it -- there are too many ladies at the New College.

Rather than reviving some traditional model of academic excellence, then, it looks as though New College leaders are simply trying to replace a culture they find politically hostile with one meant to be more congenial. The end of gender studies and the special treatment given to incoming athletes are part of the same project, masculinizing a place that had been heavily feminist, artsy and queer. When I spoke to Rufo last weekend, he offered several explanations for New College’s new emphasis on sports, including the classical idea that a healthy body sustains a healthy mind. But an important part of the investment in athletics, he said, is that it is a way to make New College more male and, by extension, less left wing.

In the past, about two-thirds of New College’s students were women. “This is a wildly out-of-balance student population, and it caused all sorts of cultural problems,” said Rufo. Having so many more women than men, he said, turned New College into “what many have called a social justice ghetto.” The new leadership, he said, is “rebalancing the ratio of students” in the hopes of ultimately achieving gender parity.

But gender parity is not necessarily compatible with a pure academic meritocracy, which Rufo claims to prize. Women are outpacing men in education in many parts of the world, including Saudi Arabia and Iran. In Hungary, nearly 55 percent of university students are women, leading the government to warn about the “feminization” of higher education. Selective American colleges tend to have more female than male applicants; to maintain something approaching a gender balance, some have adopted lower standards for men. In other words, it often takes deliberate intervention — one might call it affirmative action — to create a student body in which women don’t predominate. New College isn’t jettisoning gender ideology. It’s just adopting a different one.

Oh buddy, I hope upon hope someone sues the New College for sex discrimination based on these passages. 

It's entirely appropriate to call Rufo's endeavors an affirmative action program for men. And while the SFFA opinion is about race-based affirmative action, even before that case conservative lower courts had been reflexively applying their affirmative action skepticism to sex-based programs (for example, in Vitolo v. Guzman, the 6th Circuit struck down preferences for women in COVID relief programs using essentially identical analysis to why it struck down race-based preferences). The logic of SFFA should, if fairly applied (I know, I know: that's one hell of a caveat), cover a case like this as well.

But even absent SFFA, the sex discrimination here is worse than a standard affirmative action case. Not only does the quoted language from Rufo suggest that the New College's decisions were taken "because of, not in spite of", the effect they'd have on women, they also demonstrate that explicit hostility to women -- a belief that too many women leads to "a social justice ghetto" and creates "cultural problems" -- was a motivating factor in the decision. This is far more powerful evidence of discriminatory intent than one would find in, say, the Thomas Jefferson High School for Science & Technology case (where race-neutral changes to admissions policies were alleged to be motivated by discriminatory animus against Asians). Even defenders of affirmative action have never agreed that an affirmative action program could be justified by disdain for the overrepresented class. And one would struggle to find a more overt admission of misogynistic motivations than what one has here -- all in the service of further degrading the New College's academic quality in service of an ideological indoctrination effort.

There's still time for Rufo to, er, "right ship". If you dump enough money and resources into the New College, it will attract students no matter how bad its academic reputation gets. A lavishly funded subsidy program for right-wing kids really should be able to find an audience even if it's being run by incompetents.

But for now, this is just delightfully embarrassing. What a joke.

UPDATE: I believe it's paywalled, but this article has a lot more detail on the utter chaos that's overtaken the New College as it prepares for the next academic year.

Never Have I Ever .... Banned Affirmative Action

Yesterday, the Supreme Court functionally banned race-based affirmative action.

The day before that, I finished the series finale of the Netflix series Never Have I Ever. The first season of that show I continue to think is one of the greatest in television history. The remaining three couldn't keep to that unsustainable height, but were also very good.

Two of the main through arcs of Never Have I Ever were Devi (the main character, a California teenager whose parents immigrated from India to America) working through the grief at the sudden death of her father, and Devi's relentless, all-consuming obsession with attending Princeton. For most of the show, these were mostly treated as unrelated. In the first season, a character rather callously suggests that the circumstances of Devi's father's death would make for a standout college essay; Devi recoils on the ground that it would be exploitative. In the final season, however, the two threads are drawn closer together. We get a flashback where a first-grade Devi announces to her dad that she wants to attend "Princess University", and when informed that there isn't such a place but there is a "Princeton University", she confidently declares that will be her dream instead. The ferocity with which Devi clings on to this passion is, in many ways, part of the ferocity through which she clings to her father's memory. And in the final season, Devi changes her mind about the collegiate essay -- writing about her father and his death because "you can't understand me without understanding him."

There is nothing crass or exploitative about Devi's decision. She wrote honestly and sincerely about an important piece of who she was. And yet, Devi's initial instinct is entirely reasonable as well. She shouldn't have to bare this element of her life to the judgment of strangers if she does not want to. She shouldn't have to be defined by it if she doesn't want to be. There is something terrible about the way that college admissions encourages, even demands, of teenagers to produce trauma porn. Nobody is immune to this -- even as we speak, Cornelius Buckingham IV is composing (possibly with the help of ChatGPT) an essay about the time his yacht got caught in a storm but he and his Phillips Academy buddies pulled through, showing the importance of overcoming adversity and proving that nobody goes it alone -- but it's fair to say that this demand falls heavier on minority students. Every admissions officer loves a comeback story, and the deeper one can present oneself as having fallen into the dirt, the more glorious it is to rise out of it.

At the conclusion of the majority opinion, Chief Justice Roberts lays a booby trap for admissions directors:

[N]othing in this opinion should be construed as prohibiting universities from considering an applicant’s discussion of how race affected his or her life, be it through discrimination, inspiration, or otherwise. But, despite the dissent’s assertion to the contrary, universities may not simply establish through application essays or other means the regime we hold unlawful today.... A benefit to a student who overcame racial discrimination, for example, must be tied to that student’s courage and determination. Or a benefit to a student whose heritage or culture motivated him or her to assume a leadership role or attain a particular goal must be tied to that student’s unique ability to contribute to the university. In other words, the student must be treated based on his or her experiences as an individual—not on the basis of race.

It is hard to know how the first sentence is supposed to relate to the second. When does giving favorable treatment to students who document "how race affected his or her life" become simply a closet way of reestablishing unlawful affirmative action? Indeed, there's a basic incoherency in the entire formulation: the majority has always viewed racial discrimination as solely consisting of the formal use of a racial classification, and not a matter of results that replicate a particular racial pattern. This is why the Court believes that de jure school segregation is unconstitutional, but "de facto" school segregation that yields schools with nearly identical racial compositions (all-White or all-Black) are constitutionally permissible. Once a university abandons the racial classification, the constitutional violation is over. So it's barely possible, even in concept, for a university to stop using racial classifications yet "establish" a unconstitutional racial classification (save, perhaps, if we adopt the more radical call for explicit judicial resegregration I articulated in my recent article).

Be that as it may, most observers think that the manner most schools will respond to the Supreme Court decision is to accord more weight to "diversity statement" essays where a student can explain "how race affected his or her life" (that the Court tacitly endorses these statements at the precise moment they're under fire by the same political coalition that sought to terminate affirmative action should not be lost on anyone, nor should it remotely reassure that such statements will not be the next target). Instead of generalizing the notion that race affects applicants' lives, opportunities, outlooks, and so on, these essays individualize the endeavor -- each applicant must explain how they are affected by race, racism, and identity.

An inevitable upshot of this shift will be inordinate pressure on students to frontload this aspect of their identity, giving it pride of place so that admissions officers -- thirsty for anything that can substitute for the tools taken away by the Supreme Court -- can find a "race-neutral" way of ensuring a racially diverse class. The irony, of course, is that this practice will make race more important and essential, not less. Until now, a Black applicant could frame their application around their love of robotics or their interest in comedic storytelling or their passion for ancient Chinese art, or -- if they so chose -- on the importance of their racialized experience as they moved through the American educational system. They could make one of the former choices secure in the knowledge that their application reviewer would not assume that such a frame meant that their racial identity didn't matter to them or hadn't mediated their life or development -- it just wasn't what they would choose to accentuate. After this week's decision, the last choice becomes nigh irresistible for any applicant who thinks their racial identity matters at all to who they are. It's all or nothing -- a terrible choice to put students in even if the boiling temperatures of the college admissions hothouse didn't exert tremendous pressure on students to go the former route knowing that these are the stories admissions readers are forced to look for when seeking a "diverse" class.

In his initial thoughts on the affirmative action decisions, Ilya Somin articulates what I think is one of the more common misapprehensions about the "diversity" rationale for affirmative action. 

As Chief Justice Roberts explains, this kind of lumping also inevitably leads to crude stereotyping, based on the assumption that all members of these broad categories have relatively similar views and backgrounds, different from those of all the other broad aggregates. That is pretty obviously false in many cases.... [T]he exchange between  Clarence Thomas' concurring opinion in today's cases and Ketanji Brown Jackson's dissent powerfully demonstrates how two native-born African-Americans from southern states can have vastly different perspectives on the black American experience, its history, and what that history implies for today.

The idea behind this critique is that the diversity rationale seeks to elevate the presence of particular opinions, opinions that are assumed to be shared in common by members of specific racial groups. That assumption would indeed be a foolish one, but it is not the basis for the diversity rationale. If Harvard wants students who hold particular views on specific policy questions, it hardly needs affirmative action to do it -- have students write essays on why Students for Fair Admissions v. Harvard is a terrible ruling, and then pick your favorites.

But of course, a dream of ideological uniformity is not Harvard's desire. Indeed, the impetus behind the diversity rationale is the opposite. Michigan's defense of the "critical mass" concept in Grutter was precisely to avoid the presumption that all Black students think alike, such that if one is admitted it can be assumed he or she speaks for all. A critical mass of Black students, far from amplifying an echo chamber, demonstrates the breadth and range of ideas, passions, interests, opinions, and desires that all can emerge from the fertile soil of the Black lived experience. This is why Iris Marion Young makes the crucial distinction between "opinion" and "perspective". Opinions -- "steel tariffs are good", "affirmative action is racist", "taxes should be higher" -- do not have any claim to particular representation in democratic or social spaces. But perspective -- the way in which "differently positioned people have different experience, history, and social knowledge derived from that positioning" -- does have such a claim, again, precisely because it doesn't reduce to uniformity in opinion or interest. Far from falsifying the point, the disagreement between Justices Thomas and Jackson underscores it (and, on a similar note, it also explains why I dedicate a unit of my anti-discrimination to Justice Thomas' jurisprudence -- as much as I disagree with it, it is an important permutation of ideas that clearly germinate from Justice Thomas' perspective as a Black man).

People young and old relate to their racial (or ethnic, or religious, or national) identity in different ways. For some, it's not something they think about at all. For others, "you cannot know me without it." For many, it's somewhere in between -- a feature of their life that permeates but does not dominate their choices and decisions; part of the soil that grew them and nourishes them but not something they have much interest in giving top-line billing on the marquee of their life. Under the old regime, they didn't have to. They could tell any story they wished about themselves without stopping to think "am I spelling out in excruciating detail how this relates to my being a member of this or that racial group?" Under the new regime, it's all or nothing. Of all the stories an applicant could tell about themselves, they'll be inexorably pushed towards the one where race, racism, and racial identity are the most salient. 

The problem isn't that the stories would be a lie. We can assume in many cases they're perfectly sincere, just as Devi would not be lying in writing an essay about her father's death. But it was not, at that time, the story she wanted to tell, the one that was most true to her in the moment. To insist that she write it anyway is a demand for more trauma porn. And, for all the pomp and rhetoric about hoping to transcend race once and for all, I am convinced that the Court's decision will have the opposite effect -- forcing students to speak of their experiences vis-a-vis race in the loudest and most extravagant voice possible, no matter how they themselves would prefer to present themselves.

Three Feet Shorter

When the Supreme Court upheld an affirmative action program at the University of Michigan Law School as pursuing the compelling state interest of "racial diversity", Justice Scalia was scornful. The values of diversity -- inclusivity, tolerance, learning to work with people across differences -- were best taught to students "three feet shorter and twenty years younger" than the typical law student.

Four years later, though, when the Court in the Parents Involved case considered programs securing racial diversity in primary and secondary schools, this logic disappeared. It turned out that Scalia and the conservatives didn't want to inculcate these values at a younger age; they just didn't want them inculcated at all.

I was thinking about this upon reading Ayaan Hirsi Ali's fusillade against "critical race theory" in primary schools. The scare quotes are appropriate, since as Ali concedes, the racial justice initiatives she objects to in primary education do not go by the name "critical race theory" even as the right labors feverishly to place them under the label. In a truly spectacular leap of logic, that the right calls things "critical race theory" that are not "critical race theory" is not evidence that they're simply making things up, but rather is demonstrative of the theory's proponents showing a "remarkable ability to shape-shift".

But I digress. Ali's main argument is that affirmative action programs have been "clear failure", listing off a bevy of racial inequalities that still exist in the fifty years following the civil rights revolution. Of course, the crit would suggest that this shows the problems of racism in America run deeper than a few diversity initiatives can fix; and even the non-crit might find it odd to see evidence of ongoing racial inequality mustered as proof that we need to think less about matters of racial inequality. But Ali, ever the iconoclast, puts the entirety of the blame on affirmative action itself -- specifically, Richard Sander's "mismatch" theory. Leave aside the various criticisms one might have of that theory. Its core logic is that, by the time we reach the point of a collegiate affirmative action program, it's too late to undo the failures of the primary educational system to provide the foundations and skills necessary for students of color to thrive in elite university settings. The intervention occurs too late in the day.

So the obvious implication is that we should be investing our energies earlier in the process -- concentrating on students when they are twenty years younger and three feet smaller. And yet, it turns out, Ali -- like her fellow conservatives -- doesn't support this either. In fact, they're even more enraged when the persons concerned about racial inequity begin focusing on the primary rather than the collegiate level (even though the "mismatch" arguments that nominally undergirded their objection to the latter have no relevance to the former). The objection, it turns out, has nothing to do with the when, but is entirely about the what: an ideological opposition to trying to dismantle racial inequalities in education -- no matter how tall or short the students may be.

The Non-Mismatch of Rich Kids

Paul Tough has a bracing article in the New York Times about how collegiate admissions practices systematically favor underperforming wealthy kids who can afford to pay full tuition, framed around efforts to reverse that trend at Connecticut's Trinity College (via).

The short version is that, outside an incredibly tiny slice of hyper-elite schools like Harvard, most universities need tuition dollars in order to make their budgets work (this would include very good schools like Trinity, ranked in the top 50 of U.S. liberal arts colleges). Poorer students, who need scholarship support, represent a loss of tuition dollars -- in effect, schools need to balance our the low-income students they admit with high-income tuition-payers, even in cases where the poorer student is on merit alone a better candidate.

The way this plays out in practice is usually match-ups between high-GPA/low-SAT poorer students versus low-GPA/high-SAT wealthier students, which are repeatedly resolved in favor of the latter. The high standardized test scores are viewed as at least balancing out the low GPA, so it isn't really a case of taking a less-qualified wealthier kid over a scrappier, smarter, but poorer candidate. But often, it turns out, these test scores are themselves an artifact of wealth -- they reflect nothing more than that the student can afford SAT tutors and knows how to "play the game". Once they get to college, they revert back to high school form -- relative underperformers, unmotivated, and not on the level of their peers.

When Angel Pérez arrived at Trinity and took a close look at the way the admissions office had been making its decisions, what he found left him deeply concerned. “We were taking some students who probably should not have been admitted, but we were taking them because they could pay,” he told me. “They went to good high schools, but they were maybe at the bottom of their class. The motivation wasn’t there. So the academic quality of our student body was dropping.” 

At Trinity, Pérez’s predecessors had been able to capitalize on a pattern that admissions officers say they often see: At expensive prep schools, even students close to the bottom of the class usually have above-average SAT scores, mostly because they have access to high-octane test-prep classes and tutors. 

“O.K., you’re not motivated, you’re doing the minimum at your high school,” Pérez explained, describing the students Trinity used to admit in droves. “You have not worked as hard as your peers. But you did the test prep, and you learned how to play the SAT game.” 

If you work in admissions at a place like Trinity was before Pérez arrived, SAT scores can provide a convenient justification for admitting the kind of students you might feel compelled to accept because they can pay full tuition. It’s hard to feel good about choosing an academically undeserving rich kid over a striving and ambitious poor kid with better high school grades. But if the rich student you’re admitting has a higher SAT score than the poor student you’re rejecting, you can tell yourself that your decision was based on “college readiness” rather than ability to pay. 

The problem is, rich kids who aren’t motivated to work hard and get good grades in high school often aren’t college-ready, however inflated their SAT scores may be. At Trinity, this meant there was a growing number of affluent students on campus who couldn’t keep up in class and weren’t interested in trying. “It had a morale effect on our faculty,” Pérez told me. “They were teaching a very divided campus. The majority of students were really smart and engaged and curious, and then you’ve got these other students” — the affluent group with pumped-up SAT scores and lower G.P.A.s — “who were wondering, How did I get into this school?”

The whole article is great, but I highlight this section because it at least gestures at an issue I've been  flagging for years: the potential (but largely unremarked upon) "mismatch" of wealthy students being admitted to universities that they are insufficiently prepared for. The "mismatch" hypothesis was pioneered by Richard Sander as an objection to race-based affirmative action programs which, he contended, systematically place minority students at schools above their intellectual level and thus harm their putative beneficiary. The talented student who would be a great fit for and excel at the University of Maryland instead is admitted to Cornell, where he struggles mightily -- ultimately losing more than he gains.

It was an interesting argument, but I argued then and maintain now that it is one whose logic would apply across many other cases where students are admitted to colleges that are -- at least based purely on academics -- "reach" schools. Athletes are one obvious example, but wealthy students whose case-for-admission relies primarily on (a) their ability to pay and (b) goosed standardized test scores that are also primarily a function of ability to pay would be another. Yet parents, guidance counselors, advisers, employers -- nobody acts as if these students will be hurt if they are admitted to Cornell instead of Maryland. Indeed, the entire structure of the collegiate application system is premised on the opposite -- a mad rush to ensure they do get into the "best" school possible.

Maybe they're all deluded; though it's just as likely that they will instead benefit exactly as they anticipate -- optimistically, from being pushed and forced to find a new gear in themselves, cynically from the value of letterhead. This is the only article I've ever seen even gesture at the possibility that the wealthy admits are themselves being ill-served -- finding themselves in an academic environment they're ill-prepared for, regressing back to their high school mean, and wondering whether they really belong at all (elsewhere in the article, we're told that Pell Grant recipients -- a good proxy for low-income students -- have significantly higher graduation rates than the student body writ large, suggesting that they're on the whole a stronger cadre of students).

But really, the fleeting consideration of this possibility is the exception that tests the rule. Is anybody truly concerned that the wealthy kid who got into Trinity primarily because they could afford to pay full-freight will be damaged for life? We might (and probably do) have sympathy for the meritocracy-based arguments that say he shouldn't have been admitted, but are we really also going to act like the objection to this system is for his own good too? No, obviously. The circumstances where smart, qualified, but poorer students are denied admission to good schools in favor of less-talented, less-qualified, but wealthier candidates is wrong -- but not because it's actually to the disadvantage of the latter group.

Taking Rural To School: The Carleton/Minnesota Case

MinnPost has an interesting article detailing the various programs and practices Minnesota private schools (including my beloved Carleton College) use to bring more students from rural communities to campus.

One thing I think the article does a good job of emphasizing is that attracting rural students, specifically, means being attentive to particular range of problems, concerns, or obstacles which transcend a simple, naked, "we're open to everyone" outlook. Obviously, scholarships are helpful -- and some schools have scholarship programs specifically open to students from rural backgrounds.

But another issue that is pointed out in the article goes to recruitment: when sending admissions representatives on recruiting trips around the country, it's obviously more efficient to visit densely populated sub/urban areas (particularly in relatively wealthy high-performing school districts) that are likely to yield more applicants. Hence, rural students may be less likely to hear about (say) Carleton or get information as to why they should attend or how it will be financially possible to attend. This is a structural disadvantage students from rural communities might face, and so it is incumbent on college admissions offices to take proactive steps to counteract it. Likewise, rural school districts may lack the range of extracurricular activities or programs that are found in their suburban counterparts, and so figuring out who are the true "stars" coming out of rural districts may require more work than simply an apples-to-apples comparison of applicant profiles. And for some schools (particularly those which are not themselves nestled in rural communities), there might also be some attention to mitigating the effects of culture shock -- the delicate balancing between wanting to expand horizons while also respecting that adjustment to new and different communities is something that requires work and support.

All of this is to say, to the extent a school like Carleton desires geographic diversity -- and it does, and it should -- it will have to take specific steps to make itself available and accessible to that community. Tailored scholarship programs, extra attention to non-traditional recruiting, and holistic appraisals of applications are just some of the ways Carleton might take these steps.

There's one last thing worth remarking on. Frequently, when talking about "affirmative action" programs, we hear a stock refrain about the "rural White kid from a small town in South Dakota -- what about him?"  As this article makes clear, the myth that colleges don't care about diversity when it comes to rural kids is just that -- a myth. But there's a bigger issue here. The implication of this critique is that concern for rural students is something competitive with, and antagonistic to, affirmative action programs which seek to increase enrollment of underrepresented racial and ethnic groups. In reality, they're two peas in a pod.

The strategies discussed in this article include scholarships that are just "for" rural kids (I wouldn't have been able to access them), specific efforts to recruit from these communities, and even certain types of "weighting" when assessing their application (why should their two extracurricular activities be more impressive than my seven?). These are no different in form than how racial affirmative action works. In neither case is the strategy simply a facial neutrality where we tally up GPAs and standardized test scores and rank accordingly. It isn't even a simple reduction of the entire program to class -- scholarships for people (regardless of race or location) below a certain income. Rather, both the race and the geography case involve taking specific actions that are tailored to, and sometimes restricted to, the particular underrepresented community.

Yet I think this article will elicit very few complaints about "special privileges", or the need for "location-blindness", or odes to the lost meritocracy of yore. I suspect most people will read this article and think these are salutary efforts to improve educational accessibility for a community that is often-overlooked in higher education.

For the record: it's the latter reaction that's the right one. While I myself come from the suburbs, and thus did not receive any of the scholarship money or specialized recruitment or tailored review of my application, I still consider myself a beneficiary of these programs. Why? Well, most obviously, I'm engaged to a fellow Carl who comes from what the article calls "Greater Minnesota" -- that turned out to be a great benefit for me. And of course, one of the many virtues of a truly great liberal arts education is getting to meet and learn from people who hail from a variety of different backgrounds.

My life and learning is better than it otherwise would have been because I got to meet and become friends with people from rural communities. It's also better than it otherwise would have been because I got to meet and become friends with people from lots of other communities, many of which were quite distant (spatially and otherwise) from where I grew up in the DC suburbs. Carleton's efforts to promote this sort of diversity are part of what makes it strong -- in all cases, not just some.

Peer Review Stinks Roundup

Well, I've just had my ritual instance of early-academic peer review hazing. Grouch grouch grouch etc.. A roundup of things on my browser.

* * *

Foreign Policy has an interesting story about how affirmative action programs work in Brazil. The story is primarily about the concept of "fraudulent" claims of blackness in a country where, on the one hand, most people identify as mixed-race, but on the other hand discrimination is less about "one-drop" ancestry and more focused on phenotype.

Israel appoints its first female Muslim diplomat. She will serve in Turkey.

The Atlanta Jewish Times writes on the racialized Jewish experience of Jews of color.

Lots of interesting data in this new ADL poll, including the perhaps surprising finding that a majority of American Muslims have positive views about Israel. Most Americans also think Donald Trump harbors racist, anti-Latino, and anti-Muslim views (only a minority think he holds antisemitic views), and while a bare majority of Americans are currently concerned about violence in the U.S. against Jews, over three-quarters of Americans are concerned about violence in the U.S. against Muslims.

The Trump administration's Syria policy has been pinballing wildly over the past few days. As I've stressed before, Syria is a complicated issue -- there is no obvious right move. But the fact that the Trump administration seems to just be lurching to and fro virtually at random is not reassuring.

At Least Get Your Stupid Slavery Analogies Right

Scott Walker's newest appointee to the Wisconsin Supreme Court, Daniel Kelly, had the following to say about affirmative action:

"Affirmative action and slavery differ, obviously, in significant ways," Kelly wrote. "But it's more a question of degree than principle, for they both spring from the same taproot. Neither can exist without the foundational principle that it is acceptable to force someone into an unwanted economic relationship. Morally, and as a matter of law, they are the same."

First, let's clarify that this passage wasn't something Kelly wrote as a drunk sophomore in his university's "alternative" political magazine. He wrote it in 2014, and he included it in his Supreme Court application packet. This is an argument he is proud of.

And that aggravates me. For the obvious reasons, sure, but more because this isn't even the right way of making an idiotic analogy between affirmative action and slavery. The right way of doing that is something to the effect of "both involve the distribution of social benefits and burdens on the basis of skin color." That wouldn't make the conclusion that "Morally, and as a matter of law, they are the same" any less appalling, but at least it would have an internal consistency to it.

But Kelly can't even get that right. Affirmative action very rarely "force[s] someone into an unwanted economic relationship." Much the opposite -- typically affirmative action programs are voluntarily adopted by given institutions (e.g., the University of Wisconsin), and then challenged by external actors who want them instead to use a colorblind admissions/hiring process -- or, to put it another way, want the judiciary to force them into an economic transaction that differs from the one that the university or business would want to enter into if left to its own devices.

This is why I find it so baffling when libertarians say they oppose affirmative action. It takes either a private or quasi-private (where a governmental actor is behaving as a "market-participant") decision, and strips it from the normal decisionmaker in favor of a blanket command-and-control rule imposed by governmental fiat. Libertarians should hate that!

Actually, it seems evident that Kelly simply got his issues confused. The argument he's making has been applied to cherished elements of the civil rights project before -- but it's the Civil Rights Act of 1964 that's been the target (Rand Paul made precisely the argument that this law, by prohibiting racial discrimination in various economic transactions, "force[s] someone into an unwanted economic relationship."). So really Kelly should be arguing that its the Civil Rights Act that is "[m]orally, and as a matter of law" the same as slavery.

In conclusion, Kelly probably won't choke anybody, so he'll still likely be a net boon on the Wisconsin Supreme Court compared to the guy he's replacing.

Extra-Diverse Democrats, Part III

Last month, I noted how Republicans would inevitably describe Hillary Clinton following Barack Obama as Democrats engaging in "affirmative action." Wayne LaPierre grouping both Obama and Clinton as naught but "Demographically Symbolic" Presidents gave me an n of 1 , but I claimed vindication. And now look: the Weekly Standard has devoted a cover story to the theory authored by Joseph Epstein (via)!

If Hillary Clinton wins the presidency in 2016 she will not only be the nation’s first woman president but our second affirmative-action president. By affirmative-action president I mean that she, like Barack Obama, will have got into office partly for reasons extraneous to her political philosophy or to her merits, which, though fully tested while holding some of the highest offices in the land, have not been notably distinguished.

If by "second", Epstein means "forty-fifth", he might be on to something (though admittedly, it is hard to argue that George W. Bush's rise to the presidency benefitted from any factors "extraneous to [his] political philosophy or to [his] merits"). But of course, any time women or non-White people rise to any level of political or social prominence, their accomplishments are dismissed as simply undeserved gifts bestowed by guilty White men. They never earn it on their own the old fashioned way: say, by being born into a political dynasty or by benefitting from only members of one's social class having the right to vote or by appealing to crude public sentiments of xenophobia and victimhood or by knowing that the only candidates adjudged to be "viable" would be ones who shared their race and sex. That's choosing a president on the merits.

Let's be clear: Barack Obama and Hillary Clinton were and are every bit as qualified and meritorious as your typical President before them. That's true regardless of whether or not one subscribes to their policy preferences. The only work "merit" is doing in the above critique is stand as a proxy for their non-White male character. Just like the Sotomayor confirmation, where " Princeton, Yale, and nearly two decades of federal court experience makes one a big ol' dummy [unless your name is Samuel Alito]", the veneer here is so thin it is incredible even the Weekly Standard was able to get it out with a straight face.

JK, Seattle

Some selected passages from Parents Involved v. Seattle School District No. 1:

The present cases are before us, however, because the Seattle school district was never segregated by law. . . . The justification for race-conscious remedies in McDaniel[v. Baressi, 402 U.S. 39 (1971)] is therefore not applicable here. The dissent's persistent refusal to accept this distinction—its insistence on viewing the racial classifications here as if they were just like the ones in McDaniel, "devised to overcome a history of segregated public schools," post, at 2825-2826—explains its inability to understand why the remedial justification for racial classifications cannot decide these cases.

127 S. Ct. 2733, 2761 (2007) (plurality).

Seattle has no history of de jure segregation; therefore, the Constitution did not require Seattle's plan.

Though the dissent cites every manner of complaint, record material, and scholarly article relating to Seattle's race-based student assignment efforts, post, at 2839-2841, it cites no law or official policy that required separation of the races in Seattle's schools. Nevertheless, the dissent tries to cast doubt on the historical fact that the Seattle schools were never segregated by law by citing allegations that the National Association for the Advancement of Colored People and other organizations made in court filings to the effect that Seattle's schools were once segregated by law. See post, at 2803-2805, 2812. These allegations were never proved and were not even made in this case. Indeed, the record before us suggests the contrary.

127 S. Ct. 2738, 2771 & n.7 (2007) (Thomas, J., concurring).

As it happens, the history of Seattle schools vis-a-vis segregation also made an appearance in today's Schuette opinion:

Although there hadbeen no judicial finding of de jure segregation with respect to Seattle’s school district, it appears as though school segregation in the district in the 1940’s and 1950’s may have been the partial result of school board policies that“permitted white students to transfer out of black schools while restricting the transfer of black students into white schools.” Parents Involved in Community Schools v. Seattle School Dist. No. 1, 551 U. S. 701, 807–808 (2007) (BREYER, J., dissenting). In 1977, the National Association for the Advancement of Colored People (NAACP) filed a complaint with the Office for Civil Rights, a federal agency. The NAACP alleged that the school board had maintained a system of de jure segregation. Specifically,the complaint alleged “that the Seattle School Board had created or perpetuated unlawful racial segregation through, e.g., certain school-transfer criteria, a construction program that needlessly built new schools in white areas, district line-drawing criteria, the maintenance of inferior facilities at black schools, the use of explicit racial criteria in the assignment of teachers and other staff, and a general pattern of delay in respect to the implementation of promised desegregation efforts.” Id., at 810. As part of a settlement with the Office for Civil Rights, the school board implemented the “Seattle Plan,” which used busing and mandatory reassignments between elementary schools to reduce racial imbalance and which was the subject of the state initiative at issue in Seattle. See 551 U. S., at 807–812.

If I were Justice Breyer I'd be inclined to lob a molotov cocktail through the window, but sure, concur in the judgment instead. At least Justice Sotomayor identifies the contradiction in footnote 9 of her dissent (and Justice Scalia does so as well in footnote 2 of his concurrence).

As for me, it's amazing how the much more trusting we are of democratic decision-making on racial issues when the ultimate decision seems to favor White people. The contrast between Schuette, on the one hand, and Parents Involved and Shelby County is so stark as to be blinding. The people, through the democratic process, decide that racism is no longer a serious problem? Democracy in action. The people, through the democratic process, declare the opposite? That's what we have courts for -- to shield powerless majorities from such intolerable insults upon their character. Once again, we can credit Scalia for his honesty -- he puts Carolene Products squarely in his cross-hairs -- possibly the first truly negative citation that venerable footnote has seen since its 1938 inception.

The Qualified Candidate

Eugene Volokh points to an interesting LA Times piece about a Black student struggling at UC-Berkeley, saying it is a good illustration of Rick Sander's "mismatch" hypothesis (Volokh also links to Heather MacDonald's discussion of the piece, but I don't view MacDonald as a serious writer so I'll confine my discussion to Volokh). Volokh notes, correctly, that the plural of anecdote is not data, and that this story is merely an illustration of an alleged phenomena whose veracity is dependent on the legitimacy of Sander's arguments. And as a story, it is an interesting one -- but Volokh's read of it seems rather motivated to me, if I do say so.

The two main characters in the LA Times story are Kashawn Campbell and his best friend at Berkeley, Spencer Simpson. Campbell's struggles at Berkeley -- despite herculean efforts, he can't pass his Freshman writing course, and narrowly avoids flunking out entirely -- frame the piece and are said to exemplify the "mismatch" problem created by racial affirmative action programs. The mismatch hypothesis, stated broadly, is that allegedly non-meritocratic admissions programs end up hurting their supposed beneficiaries by placing them at institutions where they're destined to fail. In Campbell's case, for example, Volokh argues that he's clearly a bright, talented kid who would do great at Cal State but instead is almost failing out of Berkeley (I've discussed the mismatch hypothesis more generally here and here).

On closer examination, though, the analogy falters quite a bit. To begin, as the LA Times notes, Berkeley cannot actually use race-based affirmative action due to California's Proposition 209, which bans the practice. Instead, Berkeley has a program that seeks to admit students from "every California high school." This does have the effect of increasing racial diversity, due to substantial continued segregation in high schools. But it is not in itself a racial affirmative action program, and no student is advantaged on basis of race. Rather, it advantages students from impoverished, traditionally underperforming schools -- but this sort of "affirmative action", favoring students who are from bad neighborhoods and overcame rough backgrounds -- is often touted as the preferred and legitimate alternative to racial affirmative action (I don't know if Volokh approves of such alternatives to race-based affirmative action, and it's notable that Sander's mismatch arguments would seemingly apply just as strongly to such a program or other more explicitly "class-based" affirmative action initiatives, but I've never heard it used against such programs. Volokh does make reference to "white students who graduated from high school without the academic preparation needed to succeed at Berkeley" implying that they wouldn't benefit from this sort of program -- to the extent their lack of preparation was because they excelled at an underperforming school, as did Campbell, it's unclear why they wouldn't also be a valid candidate).

Moreover, even putting race aside, Campbell appears to be a conventionally attractive admissions candidate. Straight-A student, second in his high school class, impoverished background, overcame considerable adversity, (probably, given what his high school teachers said about him) superlative letters of recommendation. Volokh assumes that his SAT scores weren't that good -- only because they weren't mentioned -- but even stipulating that, unless we're going "SAT score or bust" (which nobody actually advocates) he still looks pretty good. That he's struggling is obviously unfortunate, but it seems less a product of affirmative action and more a problem of the normal indicators not telling the whole story. Indeed, from what we know it seems that Campbell's admissions profile is little different from that of Simpson, who is also Black and also grew up in an impoverished neighborhood, but is reportedly breezing through Berkeley. What distinguishes the two (other than Volokh's hypothesis about SAT scores) is that Simpson's family, despite being from a rough neighborhood, had considerably more cultural capital than did Campbell's -- something that's important, but doesn't show up on the average college application.

There are also hints in the story that more is going on here than Campbell being "unqualified." It is very evident that he's suffering from cultural shock. He feels pressure to emulate a particular style of writing he doesn't have a good grasp on, which exacerbates his general struggles with long essays. He has a very thin support structure. He's using his scholarship money to support his mother. And he reports that he doesn't feel welcome as a Black student on campus:

"Sometimes we feel like we're not wanted on campus," Kashawn said, surrounded at a dinner table by several of his dorm mates, all of them nodding in agreement. "It's usually subtle things, glances or not being invited to study groups. Little, constant aggressions."

I highlight the part I highlight because of they way Volokh responds to this claim:

I wish all the best for Campbell, who, as I said, sounds studious and excited about learning. But would you be more likely to invite to your study group (1) someone who is in danger of failing out because he’s academically unprepared for the classes he’s taking (and who might be signaling this lack of preparation based on his comments, in-class or outside), or (2) someone who you think is roughly at your level of skills or higher? I don’t think it’s exactly “aggression,” “little” or otherwise, for people to choose option 1.

This would be uncharitable even if were just Campbell making the claim. But it isn't -- it is a sentiment apparently widely shared amongst Black students at Berkeley, which makes it difficult to attribute to not wanting to study with a particular struggling student.

As for the remaining culture shock problems, they are undoubtedly issues that retard the progress of students from nontraditional backgrounds. But they're not an issue of qualifications, and unless the solution here is "elite universities should only admit students from elite prep schools and suburban public high schools", it's a problem that top universities are going to have to address.

Finally, let's turn to Volokh's suggestion that Campbell would be a better "fit" at Cal State because that school "is more likely to spend more time remedying the gaps in Campbell’s education." But if Campbell isn't the average UC-Berkeley student, he isn't the prototypical Cal State student either. Cal State-Los Angeles admits over two-thirds of its applicants, who have an average GPA of 3.14 and an average SAT (math plus critical reading) of 880. Campbell had a GPA of 4.06 in high school and graduated second in his class. With all due respect to CSLA, the remedial education programs at that school are designed to turn bad students into passable ones. Campbell is not a bad student -- by all accounts he is bright, intellectually curious, and exceptionally hard-working. The "gaps" in his education are not the same as those typically remedied by CSLA. And CSLA certainly can't provide the job opportunities, alumni networking, or intellectual stimulation that Berkeley can. The "mismatch" problem, it seems to me, is that there aren't schools "matched" to someone fitting Campbell's profile -- someone who I bet could in terms of natural talent keep up with his Berkeley peers were it not for the deficits he incurred from his background and from being such a clear cultural outlier at his university. The solution to shunt all people like Campbell into the Cal State system is not a solution at all.

I've often remarked that we don't think in mismatch terms in any context except affirmative action. Nobody ever warns the wealthy suburban kid straining to get into his "reach" school that he may be setting himself up for failure. In general, we believe that more rigorous schools are better and that its a benefit rather than a curse to be academically challenged. Campbell, of course, could no doubt transfer to Cal State if he thought it would be a better fit for him. Clearly, though, he sees value in his experience at Berkeley. And what's more, I've seen people at Carleton who were similarly situated to Campbell -- bright, talented individuals from low-performing schools who came in for a huge shock when they got to Northfield. These people had something in common -- they tended to get hammered their freshman year. And then often they had something else in common: the same talent, and fortitude, and will and skill that got them to Carleton caused them to claw back. They might not have graduated summa, but they learned and grew and became strong, successful students. Campbell, who managed to scratch out an A- when he took a course he felt comfortable in, strikes me as the sort of person who can follow a similar trajectory.

What we have in Keshawn Campbell, it seems to me, is an exceptionally bright, talented, hard-working individual who due to his background has obstacles in his path that other otherwise similarly situated students don't have. To the extent that Berkeley is supposed to identify outstanding young people and serve as a signal and pipeline to their entry into leadership roles in our society, he's exactly the right sort of candidate for admission. That it requires more intensive work on Berkeley's part to assist him doesn't strike me as a failing of the system on Berkeley's part (though perhaps of the educational system that got him there), but rather a necessary corollary to their meritocratic ambition of identify future leaders from all walks of life, proverbial "diamonds in the rough" included.

"Judged on the Merits", Part 355

Janet Yellen is one of the prime candidates to be chair of the Federal Reserve. She's certainly got the pedigree: Summa from Brown as an undergraduate and a Ph.D. from Yale, taught at (among other locales) Harvard and Berkeley, and currently a member of the Fed's board of governors. And among said governors, she's got the best track record in terms of predicting what the economy is actually going to do.

In short, it seems that by most objective metrics she's not just "a" candidate, she's the most qualified candidate.

Or, if you're a conservative, she's only being considered because she's a woman. "Gender politics" shouts the Wall Street Journal. The New York Sun was "put in mind of the cartoons" which mocked women's inability to do math, and asked if we are "entering the era of the gender-backed dollar." This is especially ironic because the folks smugly dismissing the woman with best predictive powers tend to be the same folks whose economic prognostication skills have been consistently awful.

In any event, this is yet another instance of the well-worn conservative trope -- judge people on the merits, not based on their identity -- being a false dichotomy. Conservatives time and again have demonstrated that it doesn't matter what your qualifications are -- if you're a woman, or a Latino, or African-American, or gay, or whatever group they think are today's "lucky duckies" because of their fortuitous oppression, you'll be viewed as suspect. Your qualifications will be a lie, your selection an example of affirmative action in motion. Nothing will change that.

And then, come election day, they'll wonder why their rhetoric of equality of opportunity and meritocracy fall on deaf ears. It's because it's all preach, no practice, and those victimized by it aren't idiots.

A Few Thoughts on Today's Race-Related SCOTUS Cases

The Supreme Court released three race/discrimination decisions today. The most prominent, Fisher v. University of Texas, also turned out to be the least meaningful -- the Court just remanded to the 5th Circuit to properly apply the strict scrutiny test. The second, Vance v. Ball State University, narrowed the definition of who is a supervisor for purpose of Title VII harassment claims. Finally, in University of Texas Southwestern Medical Center v. Nasser, the court tightened the causation requirements for retaliation claims made under Title VII. Some scattered thoughts below:

* Everybody thought Fisher would be a death knell for affirmative action. Instead, we got a very narrow decision that remanded to the 5th Circuit. I'm fine living to fight another day. And Justice Kennedy continues to confound -- he has yet to uphold a race-conscious affirmative action program, but he has also steadfastly refused to write an opinion closing the door to them entirely.

* Justice Scalia has been on the Supreme Court since 1986. Justice Thomas has been on the Supreme Court since 1991. Both have been the Court's highest profile exponents of constitutional "originalism," and both have also been the Court's primary cheerleaders for a "colorblind" constitution. Yet in all their years on the Court, these two good ships have yet to cross paths. Both Justices wrote concurrences in Fisher (Thomas' was more substantive), and that streak remains intact: Neither Justice has yet attempted to render an originalist justification of constitutional colorblindness.

* Part of Nasser's justification for the heightened causation requirement is the Court's worry about frivilous lawsuits, which the Court wants to see dismissed at summary judgment (pp. 18-19). This is infuriating on several levels. First, I'm not convinced there is any higher risk of frivilous filings in the retaliation context as in anywhere else. As I've argued earlier, there are good reasons to believe that persons do not bring discrimination cases unless they have a strong suspicion that they have been unjustly terminated. Second, there is a fair amount of evidence that people (judges included) are in fact too prone to dismiss discrimination claims as unwarranted because it interferes with their desire to view the world as just. This risk is amplified when there are other factors which could (but do not necessarily) explain the adverse decision (see the work of Katie Eyers on this).

Third, the problem of frivilous lawsuits shouldn't really be affected by this decision because the type of evidence which could support a jury verdict that an unlawful motive contributed to an adverse employment decision is no different than that which could support a verdict that it was the but-for cause of the decision. Once evidence is presented that retaliation was "on the mind" of the decision-maker, it is seemingly for the factfinder to decide how much of a role that factor played vis-a-vis other potential justifications for the adverse action. Nor will plaintiffs be able to self-regulate, because informational asymmetries prevent them from knowing their claim is precluded by a but-for cause defense. A plaintiff has only a limited ability to divine what is truly on the mind of her employer or detailed personnel records providing a basis for comparison. What an employee knows, generally, is (1) the fact of a discrimination complaint, (2) the response of the employer (presumably negative), and (3) the fact of the adverse action. In other words, she can know with some degree of certitude that her initial complaint was on the mind of the decision-maker when the alleged retaliatory decision was made, but has little knowledge of whether it was a but-for cause. Hence, we're likely to see more cases filed that end up being nowhere near the legal dividing line between good and bad cases, not because of plaintiff bad faith, but because of asymmetrical knowledge.

Immodest Robes

TPM tries to read the tea leaves on the Supreme Court's upcoming affirmative action decision, but I was more struck by this throwaway line:

Numerous legal scholars thought the five conservative justices on the Roberts Court — not best known for judicial modesty — would end Grutter now.

I don't disagree that the Roberts Court is not exactly a beacon of "judicial modesty." But remember when it was? Or more accurately, remember when it was thought that it would be? A lot of folks thought that would be a defining feature of the Roberts Court. Maybe that was always an unreasonable belief; maybe the whole idea of "judicial modesty" is conceptually incoherent. I do find it interesting, though, that the conventional wisdom regarding the Chief Justice and his cohorts has done a complete 180, such that now folks can just casually presume agreement with the statement that they're the furthest thing from "modest."

And Yet Somehow They'll Survive

Wesleyan University has made some waves by announcing it is abandoning need-blind admission. In effect, this means it will give some amount of preference towards wealthier applicants (how much is probably indeterminate). In other words, affirmative action for rich kids.

Now a lot of you will be up in arms about how unfair this is to students of lower socio-economic backgrounds. But I think we need to look to another set of victims: the wealthy students themselves. As beneficiaries of affirmative action, we have to ask -- are they mismatched above their level? Does giving them special preferences stigmatize them, creating the soft bigotry of low expectations? I mean, even wealthy students who could get in without the "boost" are tainted by the policy -- everyone will be left wondering if they got in on the strength of their merit or their bank account.

These are the questions precisely no one will be asking, because the students are not racial minorities and thus there is no need to concern-troll about them. But since I'm guessing that, given the resources and knowledge base available to these applicants, they don't see attending Wesleyan as an exercise in self-sabotage -- well, maybe it isn't so bad for other people who benefit from affirmative action but aren't already advantaged?

Mis-Match Mish-Mash, Part II

Via Ilya Somin, George Will forwards the "mis-match" hypothesis as an argument for abandoning race-based preferences in education admission. Argued most forcefully by UCLA law professor Richard Sander, the mis-match hypothesis argues that race-based affirmative action places minority applicants in schools above their level, at which point they struggle mightily. Someone who would have been a B+ student at the University of Iowa becomes a C- student at the University of Michigan. This has the effect of discouraging minority students, leading to worse rates of employment and bar passage than we would see in absence of affirmative action. The first thing that has to be said about these studies is that they are deeply controversial, not in the "their conclusions are uncomfortable" way, but in the "the data doesn't support the conclusions" sort of way. That's always important to note before we cede too much terrain to this argument off the bat. But putting that aside, it is an argument I continue to find very, very strange. The basic thrust of the argument is that it is worse for a student to attend a better school. That's counter-intuitive to begin with, but one can see Sander's logic. Where it starts to crumble a bit is that nobody seems to notice or worry about "mis-match" in any other situation but race-based preferences. Legacy admissions are the obvious control case, as they offer a situation where (mostly) White students are admitted to a school they likely otherwise would not have been in absence of the preference. Two things jump out here. First, I've yet to hear anyone say these students are "mis-matched". People argue against legacy preferences on the grounds that they are unfair to the marginal candidate not admitted to the university, but I've yet to hear anyone argue they hurt the legacy beneficiary. Second, if we're to take mismatch seriously, we'd have to come to the hard-to-swallow conclusion that wealthy, well-connected parents -- the epitome of the sophisticated education consumer -- are deliberately sabotaging their children's academic futures. Someone should tell them. On a smaller scale, Sander's hypothesis indicates that all the steps law school applicants take to improve their profile without actually becoming smarter (e.g., LSAT prep courses) are actually self-destructive. I took an LSAT prep course and my LSAT score went up four points. Since my LSAT score basically was carrying my GPA on its back, that may have been no small thing in getting admitted to the schools I was. Was I shooting myself in the foot? Oh cruel world, if only I had been placed properly, at the appropriate law school, my life probably wouldn't be such a dismal failure right now. The other oddity about this, particularly stemming from someone like Somin, is how openly paternalistic it is. Somin writes that he is "pessimistic about the ability of government to institute compensatory justice preferences that are simultaneously equitable and effective in accomplishing their objectives." This is purely an attempt to harmonize some cognitive-dissonance, because it is Somin who is taking the interventionist, big-government approach here. He promotes a one-size-fits-all government mandate which stifles local innovation and prevents schools from adopting the admissions policies they think are optimal for creating the best possible incoming classes. Public universities are essentially market participants -- they for the most part act similarly to their private counterparts, except when some state law or regulation constrains them or otherwise forces them to modify their behavior. When it comes to affirmative action, it is pretty clear that most state universities, left to their own devices, would practice it. They don't because some law or regulation or court decision forbids it. To test this hypothesis, imagine if tomorrow the University of California, or Michigan, or Nebraska was cut loose and went private. Would they utilize affirmative action for their next incoming class? I think the answer is obviously yes -- in all these controversies, the university administration wants to have such programs and it is some act of government which forbids it. Somin's argument, hence, is clearly a plea for greater government intrusion in the field of admissions policy -- it replaces what is in essence quasi-private market competition amongst universities (each university decides its own policy, and presumably the one with the best admissions policy is rewarded by having better students, more successful alumni, greater prestige, etc.) with a blanket legal rule. And the "why" is even more embarrassing: First, because he, in his judgment, thinks that the admissions directors and college administrators are so bad at managing these programs that it is better for a government power (the Supreme Court) to make the decision for itself (a command-and-control model); and second, because he is worried for the sake of the students who are being given the opportunity to attend their dream school (i.e., naked paternalism). The cop-out here is to just say government should get out of the field of education entirely. That's a cop-out because it doesn't answer how we should structure legal rules in a world where that's a pipe dream. It would seem the answer, from a libertarian perspective, would be to have the rules governing these schools approximate a free market regime as much as possible -- to wit, allow the schools to implement whatever admissions standards they want, and certainly don't step in as a paternalistic measure to protect admitted students from their allegedly unwise choices.

In Cautious Defense of Legacy Preferences

At their eponymous blog, Richard Posner and Gary Becker offer up a partial defense of legacy preferences in college (particularly elite college) admissions.

Posner's argument is basically that, while legacy preferences are distasteful, their actual harm on society is minuscule -- boiling down to the non-legacy student who is "bumped" going to Michigan instead of Yale. Not only is this simply not a huge problem on its own terms, but whatever marginal harm the student faces by being a Wolverine is counterbalanced by the benefit that other Michigan students get by their association with top-quality students.

Becker is willing to make a more positive case for legacy preferences, observing that college's prefer legacies because they are more likely to accept admission offers, increasing the college's yield rate (he calls it their "harvest", which I think is a far creepier term for the concept) and their rates of alumni giving.

As for me, while I do think it is an inversion of justice that legacy preferences are permissible and racial ones are not, I'm actually more-or-less neutral on the justifiability of legacy preferences on their own terms. And basically, it's my time at Carleton -- a school that, at least in my impression, has a strong legacy presence -- that shifted me from opposition to neutrality.

Legacy admission hasn't directly been a part of my own life -- I attended public school K-12, and to my knowledge I have absolutely zero family connection either to Carleton or the University of Chicago. But, one of the things I really liked about Carleton was the school's sense of institutional memory, and to me, that was intricately bound up in the number of students who had parents, siblings, or other relatives who had attended as well. It created a positive school dynamic and sense of community that really was integral to the school's charm. And I think the alumni body's fierce loyalty to its alma mater is a crucial part of our school's appeal. Carleton has one of the highest giving rates amongst its alumni of any school in the country, and on many occasion, when I've told someone I went to Carleton, they've noted how they've never met a Carleton graduate who didn't gush about their time there.

One of the things I think admissions officers are doing, and should be doing, is trying to construct classes that will together form a vibrant, engaged community. That's one of the reasons I support diversity programs like racial affirmative action -- academic and social communities are simply more robust when they incorporate a broad range of different backgrounds and perspectives. To the extent that legacies help create this sense of vibrancy and community -- and in my experience at Carleton, they did -- that's a valid attribute for admissions officials to consider.

Of course, this does not answer just how much weight legacy status should carry in admissions decisions. Nor does it answer the counter-arguments about "rich-getting-richer" and entrenching inequality. I also think that the normative justifiability of legacy preferences is hinged upon the general permissibility of allowing college's discretion to create diversified academic communities -- it can't be that college's can only look to those non-metric-based personal characteristics when they benefit the already privileged. But, in a world where this sort of holistic admissions process is allowed and is the norm, I think legacy status has a place alongside other personal characteristics as a valid consideration in building the best incoming class possible.

The Role Model

I don't have much to say aside from my endorsement of this post on Clarence Thomas and the myth of the "one most qualified" candidate. Was Clarence Thomas the single "most qualified" person who could have been nominated for a SCOTUS seat? To the extent that question makes sense, the answer is clearly "no", but the better moral is that the question really doesn't make sense.

"Despite" the fact that he was clearly an "affirmative action" pick by President Bush, who recognized that the legitimacy of the Supreme Court couldn't stand for it being lily-white anymore, Justice Thomas has proven himself to be an innovative thinker and an all-around excellent jurist (albeit one with whom I disagree with on nearly every issue). Which goes for the proposition that there are a great many (or at least more than one) candidates qualified for most government positions, and once you get beyond certain basic thresholds, what we're looking for isn't the "most qualified" person but rather between the different contributions different candidates are likely to bring to the job. And Justice Thomas, whatever his other failings, has brought an important perspective to the Supreme Court that almost certainly would not have been replicated by any other potential George H.W. Bush nominee.

Makes Sense To Me

In a short piece on Chelsea Clinton's new relatives*, they do a short blurb on her fiance's uncle:

Mezvinsky recently retired from Central Connecticut State University's history department, where he taught for four decades. In his academic work and in books he authored, Mezvinsky accused Israel of deliberately creating the Palestinian refugee problem. He supports a one-state solution for the regional conflict.

"He uses his Jewish background to attack Israel; he represents the left of left among intellectual scholars," said Asaf Romirowsky, adjunct scholar at Campus Watch, an organization that monitors academics dealing with the Middle East and Israel.

I'll resist the "crazy uncle" jokes. Actually, it was the next passage that made me smile:

But David Gerwin, a professor of social studies at Queens College who worked with Mezvinsky at CCSU, paints a more nuanced picture.

"He is driven, passionate and inspired, a force of nature," he said of Mezvinsky, with whom he shared an office on campus. While agreeing that Mezvinsky's views on Israel were "left of the left of the left," Gerwin said that on issues relating to immigration or affirmative action, his approach was "way to the right."

Unsurprisingly, I see no tension whatsoever in hostility towards Israel as a Jewish state, and hostility to liberal programs on affirmative action or immigration. Much the opposite -- I think they're cut from the same cloth (I'd be interested to know whether Mr. Mezvinsky considers them as flowing from the same base principles, however).

* I want to clarify that I don't think that Ms. Clinton's new in-laws have or should have any reflection on her, or the man she's marrying. This post is only about the perceived disjuncture between being anti-Zionist and anti-affirmative action/immigration -- a position I, as noted, don't find disjoined at all.

SCOTUS Rules in Ricci

Showing that conservatives are just as capable of molding the law to suit their empathic preferences, the Supreme Court has ruled 5-4 in the moderately famous Ricci case that the city of New Haven acted wrongfully in throwing out the results of a firefighters' promotion test because the results were racially imbalanced. The case has gained some renown because the lower court opinion was authored by Judge Sotomayor, currently awaiting confirmation to the high court.