Linda Greenhouse has a meandering New York Times column today about Fisher v. University of Texas, in which she unhappily concedes that the “diversity” rationale is the only way that universities can legally justify their use of racial and ethnic admission preferences. And she poses the core question that follows this way: “If diversity is the only acceptable rationale for taking account of race, as the court insists, then what is the rationale for diversity?”
Luckily for her, I answered this question on ScotusBlog in the run-up to Fisher I in 2012:
Here’s the basic question in Fisher: Just what is it that we expect African-American and Latino students to say to white and Asian-American students that will provide the latter with such compelling “educational benefits” that racial discrimination by the government is justified to make it more likely that these conversations take place?
The purported existence of such conversations – which is what the “diversity” justification boils down to – is the only justification for admission preferences that the University of Texas is using or can use. The Court has rejected the remedial justification in this context (and rightly so); it has rejected the role model justification (and rightly so); there is nothing else left (and rightly so).
So we need to think carefully about what these conversations might be. Now, I am going to discuss why I think it is hard to imagine anything that will fit the bill, but those who disagree ought to spell out what oral observations they think do fit the bill. Fair enough?
For starters, I say “oral” because they really ought not to be something that could just as easily be read, since then the observations might simply be assigned as class reading. It would be better if the lessons were not simply about equality or tolerance or treating other people as human beings, if it is likely that such straightforward lessons have already been learned (at home or grade school or church or on Sesame Street) or can be learned elsewhere (say, at work). And the observations should really be about something that only black and Latino students are likely to know.
So it can’t be an observation about growing up poor, because there are poor people of all colors; and of course the overwhelming majority of, say, African Americans who are admitted to our more selective schools – that is, the ones likely to weigh race and ethnicity – are from middle- or upper-class backgrounds (eighty-six percent, according to the race-preference bible, The Shape of the River).
It can’t be an observation about growing up as a slave, or under Jim Crow, or during the Civil Rights Era – because the eighteen-year-old students getting these preferences in 2012 were born in, let’s see, 1994, thirty years after the passage of the 1964 Civil Rights Act. True, these students may have faced other discrimination – but then, so may have Asian students and Middle Eastern students (and, for that matter, the European-American students who’ve recently applied to college). One reason that, say, Justice O’Connor might have assumed that all black people and all white people live in different worlds growing up was that, for her when she was growing up, there was a lot more truth to that than there is today.
If it’s not socioeconomic disadvantage or history, then perhaps there is a particular African-American perspective on calculus, or a Latino perspective on economics. I mean, to be compelling it must have something to do with something weightier – less stereotypical – than food or rap music. No?
Well, there must be something that middle-class eighteen-year-old African Americans and Latinos can tell eighteen-year-old whites and Asians that they are incapable of thinking of or reading about on their own. Perhaps whites and Asians have never heard of racial profiling or the Trayvon Martin case, for example.
Whether the lesson schools are trying to teach is that African Americans have a particular point of view or, rather contradictorily, that African Americans don’t have a particular point of view – both are urged with equal vigor, even though the former relies on stereotyping and the latter seems rather obvious in a country that includes Condoleezza Rice and Whoopi Goldberg, Bill Cosby and Snoop Dogg, Herman Cain and Barack Obama – it is odd that schools use racial essentialism in admissions and expect students to use it when listening to someone. At least, it is odd if students are being taught not to judge other people by their skin color.
What’s more, schools have to have faith not only that these observations can be made, but that they will be made. That is, they can’t know for sure what observations (if any) a black or Latino student might make in class; it is even harder to predict what observations that student will make outside of class. So they have to have faith that those observations will be offered – and that a lot of counterproductive statements won’t be offered – as well as that the benefits from them being offered will justify something as ugly as racial discrimination.
Perhaps it’s not so much what the student says as it is how he or she says it. That is, what schools are really hoping that whites and Asians will learn from “diversity” is that African Americans and Latinos are just as smart as they are (by the way, is there any evidence that, in a country whose laws and popular culture systematically condemn racial bigotry, this is a widespread problem?). Of course, if it is of compelling importance that this point get made, it would be foolish to create a campus where the white and Asian students are systematically required to have better academic qualifications than the black and Latino students – which is exactly what schools are doing, of course.
Now, how compelling do these “educational benefits” have to be? At a minimum, they have to be compelling enough to outweigh the costs of using racial preferences. In fact, they must significantly outweigh those costs, since if something does as much harm as good, or even just a little more good than harm, the benefits can hardly be compelling.
So here’s a list of the costs of using racial preferences in university admissions: It is personally unfair, passes over better qualified students, and sets a disturbing legal, political, and moral precedent in allowing racial discrimination; it creates resentment; it stigmatizes the so-called beneficiaries in the eyes of their classmates, teachers, and themselves, as well as future employers, clients, and patients; it mismatches African Americans and Latinos with institutions, setting them up for failure; it fosters a victim mindset, removes the incentive for academic excellence, and encourages separatism; it compromises the academic mission of the university and lowers the overall academic quality of the student body; it creates pressure to discriminate in grading and graduation; it breeds hypocrisy within the school and encourages a scofflaw attitude among college officials; it papers over the real social problem of why so many African Americans and Latinos are academically uncompetitive; and it gets states and schools involved in unsavory activities like deciding which racial and ethnic minorities will be favored and which ones not, and how much blood is needed to establish group membership – an untenable legal regime as America becomes an increasingly multiracial, multiethnic society and as individual Americans are themselves more and more likely to be multiracial and multiethnic (starting with our president).
By the way, the social-science evidence that there are compelling educational benefits that outweigh the costs is underwhelming, as discussed in the amicus briefs filed in Fisher by Abigail Thernstrom et al., Richard Sander and Stuart Taylor, Jr., Gail Heriot et al., the Pacific Legal Foundation et al., (including my organization), and a group of economics and statistics scholars. My point in this post is that, simply as a matter of logic, it could hardly be otherwise.