Racial Classifications in Admissions: Beyond Grandfather Clauses
Paul Moreno, Hillsdale College

One has to give Justice Ginsburg credit for candor. She noted in her dissent in the University of Michigan Law School case that overt racial quotas were “preferable to achieving similar numbers through winks, nods, and disguises.”

In the aftermath of the Michigan affirmative action cases, overt racial point-systems like the UM undergraduate scheme will no longer do. Similarly, the U.S. Supreme Court struck down “grandfather clauses” in 1915 -- voter registration laws that required applicants to pass a literacy test unless they had an ancestor who was able to vote before Reconstruction. But the race-obsessed university administrators of today are not rolling over any more than the white supremacists of the Jim Crow South did. There are plenty of ways to find convenient proxies for race. The question is: which ones of them will five of the nine of our Platonic Guardians accept?

Though the Wallaceite hysteria of Detroit mayor Kwame Kilpatrick’s “affirmative action forever” has passed, a barrage of news stories indicate that massive resistance to successful ballot initiatives forbidding racial preferences is undaunted by recent referenda and court decisions. The University of Wisconsin regents just approved an overt race-based admissions system despite its conflict with state law. Tamar Lewin reports in the New York Times that, while not overtly asking if an applicant is an Indian or black, the Wayne State University Law School will “consider factors like living on an Indian reservation or in mostly black Detroit, or overcoming discrimination or prejudice.”

Twelve years ago, the University of Maryland was compelled by a court to stop limiting scholarships to black students. Instead, it made one formerly black-only scholarship now “available to students of any race who are committed to the advancement of minorities in science.”

The “percentage plans,” which admit the top x percent of all state high school graduates, accomplish the same purpose. They make a virtue of the vice of de facto residential segregation, guaranteeing admission to the “best blacks,” though by national criteria the top graduates of predominantly minority schools do not compete with average graduates of schools with mostly white and Asian populations.

The Bush administration favored this kind of wink-and-nod affirmative action in its brief in the Michigan cases, complaining only that the Wolverine State had not considered “race-neutral alternatives that have proven effective in meeting the important and laudable goals of educational openness, accessibility, and diversity in other states.”

The Ivies did this a century ago, seeking “geographical diversity” and lowering the bar for applicants from North Dakota, which had fewer Jews than New York or Pennsylvania.

Bureaucrats have also retooled. Heather Macdonald reports that San Jose State University’s affirmative action office “rechristened itself the ‘Office of Equality Assurance.’” In keeping with the tradition of curricular balkanization, UCLA hoped to attract more racial minorities by a new program in “critical race studies.” “In 2002,” she reports, “UCLA rejected all white applicants to the program, even though their average LSAT score was higher than the average score of blacks who were admitted.”

California has a long tradition of such grandfather-clausish devices to keep out Asians. In the 1880s, San Francisco enacted an ordinance that required all the owners of wood-constructed laundries to secure permits from the board of supervisors. Of 300 laundries in the city, 240 were owned by Chinese subjects, and 210 were constructed of wood. All but one of them were denied permits, while all but one of the white operators were granted permits. The Supreme Court, in the Yick Wo case, overturned the ordinance. With Ginsburgesque candor, Justice Stanley Matthews wrote, “Though the law itself be fair on its face and impartial in appearance, yet, if it is applied and administered by public authority with an evil eye and an unequal hand, so as practically to make unjust and illegal discriminations between persons in similar circumstances, material to their rights, the denial of equal justice is still within the protection of the Constitution.”

In today’s California, Asians are the Jews of yesteryear. By merit standards, they compose about half of those at elite UC campuses, though only 12 percent of the general population. Moreover, the New York Times reports, most are first-generation Asian-Americans—i.e., not even remotely associated with Yick Wo, Chinese exclusion acts, or Japanese internment. And this, after all, is what affirmative action is really about: how to target racial classifications so that they benefit victims of historic American discrimination?

Thus, the Chronicle reports that “At selective colleges, more than a quarter of black students are immigrants.” As the late historian Hugh Davis Graham pointed out in his book, Collision Course: The Strange Convergence of Affirmative Action and Immigration Policy, employers have been able to fill their quotas with immigrants.

Alas, neither the Fourteenth Amendment nor the Civil Rights Act makes any provision for historical victim status or “diversity” as an exception to equal-protection or nondiscrimination requirements.

The Chronicle quotes a Penn sociologist on the African-immigrant study: “If you’re a ‘purist’ -- that is, if you view affirmative action as restitution for the harm done by American slavery and segregation -- then you’ll think that this is not in the spirit of affirmative action. But if you’re a diversity purist, and your idea is to expose everybody to as many different kinds of people as possible, then you’ll think this is great.” She claims that the problems arise out of “two moral visions—the moral imperative to right past wrongs versus the ethical need to represent the diversity of contemporary society as it now stands.”

In fact that there is nothing morally imperative about the diversity rationale, which was a makeshift tactic to weasel out of the moral imperative of the Constitution and the Civil Rights Act.

For all the lamentations about the advantages that African-born blacks possess -- parent with advanced degrees, high incomes, private schools, higher SAT scores -- the critics do not consider that traditional affirmative action conferred the same benefits on the least-disadvantaged American-born blacks.

Thomas Sowell has long called attention to the “mismatch” problem -- blacks who would feel comfortable and graduate from second-tier schools instead self-segregate, stew in racial resentment, and drop out of first-tier institutions. A law school study shows that, by admitting blacks who drop out or do not pass the bar exam, law school affirmative action programs actually reduce the number of black lawyers. So what happens to the black students who, not ready for Berkeley, might actually graduate from UC-Davis? Stanford is taking them. As a private institution, it is not bound by Proposition 209 and has greater latitude to adopt Bakke-style preferences. Is it so tragic that underqualified blacks drop out of Stanford rather than out of Berkeley? As Macdonald puts it, “the game is not about the students but about the self-image of the institution that so beneficently extends its largesse to them.”

No longer asserting white supremacy, we now have grandfather clauses to assuage white guilt.

The long history of racial discrimination in America attests that discrimination on the basis of race is difficult to isolate and prove. Thus, while the Supreme Court could strike down ham-handed devices like grandfather clauses or San Francisco laundry ordinances, those states were able to find more facially-neutral devices with the same effect.
NAS1:19 PM

Political Bias in the Classroom
Thomas C. Reeves, The Wisconsin Policy Research Institute


The American Federation of Teachers, denying that there is any consistently leftist bias among teachers, on any academic level, commissioned an examination of eight studies alleging the contrary. The result was a 31 page report entitled "The 'Faculty Bias' Studies: Science or Propaganda?" The author was John Lee, a former psychology professor and head of JBL Associates, an organization active in postsecondary education policy research and analysis. AFT leaders were ecstatic about the report, for Lee concluded that there was little or no truth in the eight studies, and that their authors were unscientific polemicists. Jacob Laskin, a conservative affiliated with David Horowitz, dismissed the study out of hand as mere propaganda, making "political hay of technicalities."

When one steps beyond the heated and partisan language of both Lee and Laskin, one discovers that the Lee study's major contribution is the illustration of difficulties encountered in doing serious research on higher education in this country. A major obstacle is the "sacredness" of the college classroom. I once suggested at a National Association of Scholars meeting in Madison that members attend classes of notoriously left wing professors to document bias. No one agreed, fearing that the suggestion constituted a violation of academic freedom. This widely held belief forces studies of bias to be based in large part on published course descriptions.

Fortunately, these syllabi, often posted on the Internet, can be quite revealing. But surveys of the findings are susceptible to attack for failing to document what actually is taught, as opposed to what was intended to be taught. There is no scientific record of what was said in class, how it was said, or how bias appears in examinations and grading. Polls of students in the class can often be misleading; and many students and professors refuse to participate in any studies of classroom content. (In one study only 27 of 200 political science professors agreed to participate.) One is forced to be anecdotal, and such evidence is invariably dismissed by critics, who demand more proof. Lee writes, "Individual stories can be chosen to support any conclusion."

One can show that there are more Democrats than Republicans on faculties by looking at political party registration records and conducting surveys. But the records can be spotty, surveys of faculty members can be too small, and there is no sure way to show that party affiliation is, by definition, translated into partisanship in the classroom. Moreover, one cannot definitely prove that leftist academics consistently persecute conservative faculty members, denying them jobs or keeping them off of prestigious campuses. You can show examples of such behavior, but then critics will deny that one may generalize from such data. Department meetings, where the crucial employment and promotion decisions are made, are even more out of bounds to researchers than the classroom.

What any objective observer can be certain about is the truth of charges by the National Association of Scholars, David Horowitz, the Foundation for Individual Rights in Education, and others that there is a strong leftist bias on faculties, that a great many classrooms are used to disseminate partisan propaganda, and that conservatives are persecuted in many ways. (I laughed more than a little on reading Lee's observation "that American higher education boasts a strong cadre of conservative academic voices who greatly contribute to the vibrant diversity of American higher education.") But that's based largely on experience and limited and admittedly partial research. Lee demands more, evidence that conservative critics can't provide to his satisfaction. He then proceeds to deny their conclusions, without providing evidence of his own. (It may be, he hypothesizes, that conservatives just don't want to go into academia, and that's why there are so few of them.)

David Horowitz seems to me to be doing the best research possible these days, conducting studies on individual campus catalogues to document the often absurd leftist nonsense being passed off as scholarship, visiting campuses to document levels of political correctness, and calling to public attention the antics of such faculty members as Ward Churchill. Horowitz's Academic Bill of Rights should be embraced by any faculty seriously interested in diversity and tolerance. Instead it is roundly condemned; Lee calls it "the so-called Academic Bill of Rights." FIRE also deserves praise, especially for its legal efforts to protect students from zealous left wing administrators.

More might be done to document the activities of professional meetings. If one wants to gauge academic partisanship in action, start here. How many scholars, say, at the recent American Historical Association, spoke out in favor of the War on Terror? But then, perhaps the inevitably anti-Bush position merely reflects "right reason," a conclusion that any "sane" and "knowledgeable" person would arrive at.

Sure.
NAS9:57 PM