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Affirmative Reaction
"Don't ask, don't tell."


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The Supreme Court’s decision on affirmative action can be summed up as, “Don’t ask. Don’t tell.”

You can use quotas, as long as you don’t call them quotas. You can judge a person by his race, as long as you say, “Well, it was just one of a number of factors.”

Isn’t this the old boilerplate slogan used by the personnel director when you’re being fired? “Well, it wasn’t just your affair with a coworker. That was just one of a number of factors we considered.”

Isn’t this the same way record producers tell you your album is not being censored when it’s being censored? “Most people here at the company love the song. The actual song isn’t the point. That’s just one of a number of factors we considered.”

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Saying “one of a number of factors” is the oldest way in the book to hide what you’re doing. It’s always a subterfuge, a disguise of motive, an evasion of the unpleasant truth. And this is what the Supreme Court has okayed in the secret conclaves of college-admissions departments. “It’s not because you were black or white. That’s just one of a number of factors.”

They actually took something that was vague to begin with, and made it more of a muddle.

But there were two cases here. In the undergraduate case, where the point system was right out there for everybody to see — if you were an “underrepresented minority,” you received 20 points just for your race — the Court said, “Uh uh. Too obvious. Can’t do that.”

But in the law-school case, where race is just considered a vague “plus factor” along with zillions and zillions of other things (right), the Court granted its blessing.

If you’re a white student on the low end of the desirable scale, and you’re wondering what you can do to get into college, wouldn’t it be better to know up front that you’ve got a 20-point deficit to overcome? You could at least spend the summer working at the V.A. Hospital to build up “community service” stuff that will look good to the committee.

Instead, you now have to deal with the “number of factors” system. Yes, your race might work against you. Sorry, it’s the law of the land.

Fortunately, when courts do these things, they have to give reasons. So let’s look at them. This is, by the way, one of the densest, hardest-to-read decisions in the history of this Court, which normally writes simply and elegantly.

It starts with a premise that both sides would agree with: “In order to cultivate a set of leaders with legitimacy in the eyes of the citizenry,” writes Justice Sandra Day O’Connor, “it is necessary that the path to leadership be visibly open to talented and qualified individuals of every race and ethnicity.”

“Visibly open” is a strange phrase to use in affirming a system at the University of Michigan that was most decidedly not visibly open to every race. The mysterious process of admittance only became visibly open after the university was forced to turn over its files in court.

Yes, it was visibly open in that they admitted white, black, Hispanic, Asian and Native American students. No, it was not visibly open in the sense of a level playing field, which is what the white students were asking for. If you can use “visibly open” to mean open but weighted in a certain direction, then the system was already visibly open in the sixties, when it was predominantly white but had a few token representatives of minorities. “Visibly open” just means there’s a door there; it doesn’t say anything about the rat’s maze of obstacles on the other side of the door.

Ironically, “not visibly open” is the same charge that (economically) poor students from the Midwest used to level against the Ivy League when slackers from politically connected families in the Eastern Establishment were accepted over straight-A students from, say, Little Rock. All that changed in the Sixties, with the transformation to grade-based and testing-based admissions, only to get bent out of whack again in the Seventies when a new kind of favoritism arose under the now hackneyed theory of “diversity.”

What’s intriguing about the Supreme Court decision is that the original reasons for affirmative action — giving minority students a boost — is nowhere mentioned. That is NOT the reason for the policy today, according to the University of Michigan brief. When asked why they think they should have more minority bodies on campus, they give the following reasons, summed up in Justice O’Connor’s opinion:
(1) Having more minorities promotes “cross-racial understanding.”
(2) It breaks down stereotypes.
(3) It “enables students to better understand persons of different races.”
(4) “Classroom discussion is livelier, more spirited, and simply more enlightening” when students have “the greatest possible variety of backgrounds.”
First of all, all four of these things strike me as the same thing just stated four different ways. But there’s nothing in this definition about propelling poor minorities into the professional classes.

So is this what affirmative action is really all about? Obviously, the definition has completely changed in the last 25 years. It was originally supposed to help minorities. Now they’re saying it’s intended to be a sort of social-engineering process that helps the majority race mix with the minority race in some kind of eye-opening way that presumably makes them all better people.

Call me crass, but that sounds like the equivalent of a “school-spirit” rally to me. It’s certainly an idea we all agree with — “Hey, let’s all get along and understand one another!” — but on the scale of academic goals, it ranks somewhere between “good citizenship” and “social maturity.” It has very little to do with the classroom. A classroom can be a veritable United Nations of ethnicity and still be stultifyingly dull if you have a dull professor. It can also be ablaze with intellectual ferocity even if it’s 100 percent white — because people are diverse for reasons that have nothing to do with skin color.

This list of reasons for manipulating the makeup of the student body sounds like the work of a busybody high-school guidance counselor who makes everyone sit boy/girl/boy/girl at the senior dinner, or a third-grade teacher who makes sure the ugly girls in the class get just as many valentines as the pretty ones. We admire their attempts to make everyone better social beings, but after all, this is a graduate law school. These are grownups.

If you read the various lists of the factors considered by the University of Michigan admissions committee, it seems like a baffling process even without race. They do consider grades and test scores — which surprised me, I thought that was hopelessly passé — but they also put a premium on essays (easily fakeable), “the enthusiasm of recommenders” (easily fakeable), the quality of the undergraduate institution (a reputation that can sometimes outlive its usefulness by decades), “unusual employment experience” (working in the circus would presumably be a great predictor of future success as a lawyer), “overcoming personal adversity” (every setback becomes a sob story), “unusual nonacademic performance” (be sure to include those rap songs you wrote for the garage band), and the applicant’s “likely contributions to the intellectual and social life of the institution” (so predictively vague as to be anything you want it to be).

In other words, it’s a field day for apple-polishers, posterior-bussers, Eddie Haskells who say whatever their elders want to hear, and anybody who can hustle his teachers and employers into sprucing up some unverifiable letters of recommendation.

And, oh yeah, also, did we mention it, there’s the whole, uh, race thing. We’ll consider that, too. But not in a mechanical way. (“Mechanical way,” used numerous times by the Court, is the new legal catch-phrase, certain to be endlessly repeated as universities pore over the opinion. “OK, make sure the quota is not mechanical.”)

But all of this is a diversion and a ruse. The University of Michigan’s own expert testified that, despite everything said about all the factors used for admission, race was the heaviest of all. He said that in 2000, 35 percent of the admittees to law school were “underrepresented” minorities. Then he predicted that, if race were not considered, only 10 percent would be admitted, reducing the percentage from 14.5 percent to 4 percent of each class.

Why is this true? The issue is not examined anywhere by the Court. Apparently the question was never even asked during oral arguments. Wouldn’t the first fundamental question be, “Why are some ethnic groups underperforming on tests?” (The university’s definition of “underrepresented minority,” by the way, does not include Asians — only blacks, Hispanics and Native Americans.)

The answer is: We don’t know why. We don’t know why blacks are over-represented in professional basketball and whites are over-represented in tennis and golf. We don’t know why the Irish are over-represented in the Fire Department of New York City and the Germans are over-represented in theology and the Japanese are over-represented in the electronics industry.

What we do know, because the University of Michigan states it in its own brief, is that American universities — unlike the universities of any other nation — believe that mixed skin colors on the campus is an end in itself. And not skin colors that happen to be mixed because people of similar intellectual interests have come together. They actually argue that the number of minorities must be artificially pumped up until it reaches “critical mass.” The desired social engineering won’t take place unless you have enough minorities to set off whatever cultural fusion process they expect to occur.

Chief Justice Rehnquist delved into this issue of “critical mass,” asking, “Why does the mere number of minorities matter?”

The university’s answers: (1) so that minorities on campus won’t feel isolated, and (2) to ensure that they won’t feel like spokespersons for their race.

But the argument falls apart when you look at the numbers, as Rehnquist did. “Critical mass” for blacks — rounding off the five years of statistics presented — means having 100 African Americans in a student body of 1,200, 50 Hispanics in the same student body, and 15 Native Americans.

So the formula used to make sure the minority student doesn’t feel isolated or put-upon varies among the races. A black needs 99 fellow blacks to be protected from social ostracism, but a Hispanic needs only 49 brown-skinned mates, and an Indian needs just 14.

If there were a true “critical mass” figure needed to protect someone from social uneasiness, wouldn’t it be the same number for each race? (God help them if a lone Yemeni American is admitted and has to make his way on campus without a Muslim support group.)

In other words, “critical mass” is a crock, as Rehnquist points out in his dissent, where he also notes that all the formulas are weighted toward blacks, not toward Hispanics, so it’s unfair even by its own standards.

The logical result of this decision would be that universities can now feel free to use, not just race, but any other factor in the admissions process, including “a good strong conservative belief system” (at Bob Jones University), “a love of the environment” (at Evergreen State), “rich parents” (at Vanderbilt), or “cute legs” (at Chico State). Sure, it looks unfair if you consider it in isolation, but don’t worry — it’s only one in a number of factors that we considered.

John Bloom writes a number of columns for United Press International. This was written for UPI and is reprinted with permission.



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