Affirmative Action Starts to Unravel

Listen closely and you can hear the sound of “diversity” crumbling, this week mixed with laughter over the news that the City University of New York has created two more official diversity groups–“white/Jewish” and “Italian-Americans.”

Critics of the new Jewish category claim that “the creation of a label for Jewish professors could be used to limit their job opportunities.” So, what else is new? Creating labels for blacks, Hispanics, Italians, etc., also no doubt limits job opportunities for Jews.

Actually, CUNY’s newly-minted effort to include Jews (but not
Muslims, Irish, Pentecostal-Americans, etc.) has a close relationship
with the issues being presented to the Supreme Court in Fisher v. University of Texas at Austin–and
not simply because the CUNY policy reveals so glaringly the
incoherence at the core of the “diversity” justification for
preferential treatment.

Fifteen amicus briefs here support Abigail Fisher’s claim that Texas’s racial preference policy is unconstitutional, and the two of them that have generated the most attention in the past few days were filed on behalf of Asian-American groups likening their treatment under affirmative action to the early 20th Century Jewish quotas in the Ivy League.

Both of those briefs (this one and this one) cite Daniel Golden, who argued in The Price of Admission (2007) that “Asian-Americans are the new Jews, inheriting the mantle of the most disenfranchised group in college admissions.” As Peter Schmidt pointed out, the briefs filed by Asian-American organizations opposing affirmative action represent “a marked departure from the position most other Asian-American groups have taken on the issue.”

Jews Standing with Goliath Against David?

Indeed, reflecting both the “new Jew” identity and the break from the traditional Asian-American position, S.B. Woo, a retired physicist who heads the 80-20 organization of Asian-Americans that signed on to one of the briefs, has written in a fundraising appeal that “We are in an uphill battle like David v. Goliath, only with a twist: Imagine some Jews block David’s path, arguing that Goliath may well be their best friend. Furthermore, they contend they represent all Jews. Can David still win?” He could have mentioned that two out of the three leading Jewish groups, all of whom filed amicus briefs supporting Allan Bakke, have also joined forces with Goliath.

The two Asian briefs document the pervasive and profound extent of the discrimination against Asian-Americans wrought by preferences for blacks and Hispanics. Much of that evidence — such as Princeton Professor Thomas Espenshade’s finding that nationwide blacks enjoy a 450-point “boost” on their SAT scores compared to Asians, and that that if affirmative action were eliminated across the nation “Asian students would fill nearly four out of every five places in the admitted class not taken by African-American and Hispanic students” — is familiar to readers of Minding the Campus (I discussed it here). “Because affirmative action is grounded (notwithstanding all the transparent claptrap about ‘diversity’) in a desire to help minorities,” I noted, “evidence that it significantly harms an ethnic minority makes its academic supporters as uncomfortable as a skunk at a garden party.”

It seems to me, however, that the obvious discrimination against Asians should not (and probably does not) make supporters of affirmative action uncomfortable. Why, after all, should they think that discrimination against Asians is any worse or any more embarrassing than the discrimination against all other non-preferred ethnic groups and whites — including CUNY’s “White/Jewish” group — that they happily accept with equanimity? But what should make them very uncomfortable indeed is that the presence of Asian-American groups complaining about discrimination will present the Court with a powerful argument against the hoary “diversity” rationale for that discrimination. As Abigail Fisher’s brief stated,

UT’s goal is not racial diversity to enhance the educational dialogue and exchange of ideas by keeping minority students from feeling “isolated or like spokespersons for their race.” Instead, it is purely representational. It is only by using Texas’s racial demographics as the benchmark for diversity that UT could consider Hispanics underrepresented and Asian-Americans overrepresented when “the gross number of Hispanic students attending UT exceeds the gross number of Asian-American students attending UT.”

If “underrepresented minorities” were underrepresented compared to those in other groups who were accepted with similar qualifications — as is in fact the case with Asian-Americans — that would be evidence of discrimination. But if they are underrepresented only compared to their proportion of the population, giving them preferential treatment becomes the very “outright racial balancing” that even Justice O’Connor agreed in Grutter “is patently unconstitutional,” echoing Justice Powell’s assertion in Bakke that “[p]referring members of any one group for no reason other than race or ethnic origin is discrimination for its own sake. This the Constitution forbids.”

An Ethnic Spoils System

Additional evidence that the University of Texas “has been running what amounts to an ethnic spoils system” has been highlighted by the controversy over Elizabeth Warren’s claimed Cherokee identity, as David Bernstein pointed out in a post on “Elizabeth Warren and Fisher v. University of Texas.” The UT law school, a long serving member of its hiring committee has asserted, pays no attention whatsoever to Native American status, nor apparently does the undergraduate admissions committee, which both would do if they were really interested in “diversity” rather than representing groups with a powerful demographic and hence political presence in the state.

The increasingly evident incoherence and perhaps even desperation of the “diversity” justification for the discrimination inherent in racial preference policies has also been nicely revealed by responses to the new Asian criticism. For incoherence, it’s hard to beat an affidavit in the Fisher case from Kedra Ishop, Vice Provost and Director of Admissions at the University of Texas, contesting the idea that Asian-Americans can’t benefit from affirmative action. In her statement, Inside Higher Ed reports,

Ishop outlines factors that could be considered in admissions, listing them this way: “the socioeconomic status of the applicant’s family and school, whether the applicant is from a single-parent home, whether languages other than English are spoken at the applicant’s home, the applicant’s family responsibilities and (starting with the fall class of 2005) the applicant’s race.” These criteria suggest that some Asian-American applicants could in fact receive some assistance on the university’s approach to admissions.

Well, yes, but do neither Dr. Ishop nor Scott Jaschik, editor of Inside Higher Ed and author of the article quoting her, realize that none of the possible “assistance” to Asian-Americans (or others) listed above would be affected at all if Fisher wins her suit and preferential treatment on the basis of race and ethnicity is prohibited? Similarly, in a video interview with the Wall Street Journal’s Jason Riley, Jaschik tried embarrassingly hard to describe the overwhelming evidence of how affirmative action discriminates against Asian-Americans as merely one theory.

Similarly confused is Richard Kahlenberg, who prefers class-based preferences but always takes care not to be too critical of the race-based variety. In an otherwise sensible recent essay on “Asians and Affirmative Action” in the Chronicle of Higher Education, for example, he acknowledges Espenshade’s finding that Asians have to score 140 points higher than whites to gain acceptance to selective institutions (but doesn’t mention that they have to score 450 points higher than blacks) and writes that affirmative action’s emphasis on “underrepresentation” raises the question “of what to do about ‘overrepresentation’ of groups like Asian-Americans.” He quickly adds, however, that “[i]t is true, as supporters of affirmative action argue, that one can draw a principled distinction between “floors” (ensuring groups have minimal representation) and “ceilings” (capping the representation of certain groups).” Since in the edifice of higher education “floors” can’t exist without “ceilings,” I’m not sure what “principle” that is.

Even more troubling than incoherence or confusion is what can be described only as anti-white bias that afflicts much of the orthodox defense of affirmative action by the Goliath-supporting Asians and their organizations. In his Inside Higher Ed article, Scott Jaschik quoted “several experts on Asian-Americans in higher education” who recognized that many Asian parents are “hostile” to the college admissions process but who “questioned whether affirmative action programs really are responsible.” For example, Jaschik quotes Mitchell J. Chang, professor of higher education, organizational change and Asian-American studies at UCLA:

to the extent that Asian-American applicants are being held to a higher standard, Chang said, that is, primarily compared to white students, who aren’t benefiting from affirmative action, “there is an issue we have to deal with: Why aren’t Asian-Americans with the same qualifications getting into the institutions at the same rate as white students? That’s the question we have to address.”

He said briefs like those filed Tuesday will reinforce the sense that it is other minority students taking slots from Asian-Americans, something Chang does not believe to be true.

In the same vein Robert Teranishi, associate professor of higher education at NYU, asked “why those concerned about the admission of Asian-Americans to elite colleges — especially private institutions — were not focused more on preferences for alumni children.” He is worried “by a narrative that diversity efforts help only black and Latino students” and he fears, like Texas’s Dr. Ishop, programs to help poor Asian-American students would disappear if Texas loses at the Supreme Court “based on narrow interpretations of what affirmative action is.”

Apparently Jaschik didn’t ask Teranishi why ending race-based preferences would end need-based assistance. Neither did he ask either expert why he disagreed with Espenshade’s and other data demonstrating the huge admissions boost given to blacks and Hispanics over Asians. Why worry more about the 140-point SAT differential with whites and not the 450-point differential with blacks?

Finally, an April 30 statement on the Fisher case by the Asian-American Legal Defense and Education Fund contains such an extreme example of this apparently common anti-white bias that it is almost humorous:

Some people claim that affirmative action hurts Asian American students. Here’s why that is false:

First, many opponents of affirmative action have conflated discrimination against Asian American applicants, or negative action, with positive, or affirmative action. Negative action occurs when a university denies admittance to an Asian-American applicant who would have been admitted if he/she was white. In the past, universities have used negative action against minorities to preserve the traditional white character of colleges. Today, negative action takes the form of legacy and donor admissions.

Got that? “Negative action,” i.e., discrimination, occurs when a rejected Asian-American applicant would have been accepted “if he/she was white.” But when that same rejected Asian-American applicant would have been accepted if he or she were black or Hispanic, that’s “positive or affirmative action.”

According to conventional wisdom, the most likely outcome in Fisher is that the Court will hold that, because of the success of its Top 10% admissions policy, Texas’s use of race preferences is unnecessary to achieve diversity and hence prohibited, leaving the structure of Grutter intact. Conventional wisdom, however, may not have seen or appreciated the degree to which the “diversity” rationale for the discrimination at the core of affirmative action has unraveled since 2003 — both because of new evidence (see the brief by Abigail and Stephan Thernstrom, Althea Nagai, and Russell Nieli and the brief by Richard Sander and Stuart Taylor, Jr.) and its increasingly evident inconsistencies and even incoherence. The Asian briefs criticizing affirmative action, and especially many of the responses to those briefs, may well indicate that the days of the “diversity” defense of discrimination are numbered.