This article appears in the fall 2012 issue of Academic Questions (volume 25, number 3).
Roger Clegg is president and general counsel of the Center for Equal Opportunity, 7700 Leesburg Pike, Suite 231, Falls Church, VA 22043; [email protected]. A former deputy assistant attorney general in the Reagan and the George H.W. Bush administrations, Mr. Clegg held the second highest position in the Civil Rights division as well as several other positions at the U.S. Department of Justice. He writes on legal issues arising from the civil rights laws.
The Supreme Court has granted review for the 2012 term in the case Fisher v. University of Texas. Abigail Fisher, a rejected white applicant to the University of Texas, has challenged the use of racial and ethnic admission preferences, which the Court had allowed in its 2003 decision involving the University of Michigan law school, Grutter v. Bollinger.
Were the Court to rule in favor of the University of Texas, it would dramatically widen Grutter, since the school’s discrimination goes beyond what that decision allowed. In particular, by automatically admitting any student who graduates in the top 10 percent of his Texas high school class, the university has already ensured as much diversity as it had in an earlier time when it used overt racial preferences. The issue is whether the school is justified in reinstating the use of overt preferences on top of the 10 percent plan, in order to have a student body that mirrors the racial demographics of Texas and to achieve diversity not only campus-wide, but in each classroom. The University of Texas used racial preferences in order to better ensure these results, and the Fifth Circuit opinion upheld that policy.
The claim that “diversity” requires that each classroom be diverse is both novel and radical in its implications, as Judge Edith Jones noted in a blistering dissent for herself and four Fifth Circuit colleagues. The university, she wrote, “offers thousands of courses in multiple undergraduate schools and majors”:
The pernicious impact of aspiring to or measuring “diversity” at the classroom level seems obvious upon reflection. Will the University accept this “goal” as carte blanche to add minorities until a “critical mass” chooses nuclear physics as a major? Will classroom diversity “suffer” in areas like applied math, kinesiology, chemistry, Farsi, or hundreds of other subjects if, by chance, few or no students of a certain race are enrolled? The panel opinion opens the door to effective quotas in undergraduate majors in which certain minority students are perceived to be “underrepresented.” It offers no stopping point for racial preferences despite the logical absurdity of touting “diversity” as relevant to every subject taught at the University of Texas. In another extension of Grutter, the panel opinion’s approval of classroom “diversity” offers no ground for serious judicial review of a terminus of the racial preference policy.
In any event, new evidence and new developments make it appropriate for the Court to reconsider the holding in Grutter that the purported “educational benefits” from student body “diversity” justify the use of racial and ethnic preferences in the first place. Numerous amicus briefs urge it to do so, and the plaintiff herself explicitly raises that possibility.
According to the proponents of this sort of discrimination, “diversity” is the mother’s milk of higher education, more important, it would seem, than books in the library or professors behind the podium. Who could oppose such a noble concept? Well, we could, and below give you ten reasons why you should, too. We include not only some first principles to which we hope the Court will return, but also the emerging social science evidence that the costs of this discrimination are high and the claimed benefits—which the Court accepted in 2003—minimal at best.
“Diversity” Is Discrimination
1. Holistic, Schmolistic
Make no mistake: Whether prosaically defined as affirmative action or disguised by the powdered and perfumed sophistry of supposedly “holistic” admissions practices (where, it is claimed, race is “only one of many factors” considered), “diversity” is discrimination based on race and ethnicity. Whether in admissions or hiring, its purpose and effect is the selection of individuals who would not have been selected but for their race or ethnicity. And that means, inescapably, that an equal number of others were not selected because of their race or ethnicity.
“Diversity” defenders are in denial about the discrimination at the core of preferential admissions. Even worse than their denial, they have in effect redefined “discrimination,” asserting that discrimination occurs only when it harms a group, not individuals. As a National Association for the Advancement of Colored People Legal Defense Fund attorney argued while Grutter was still pending before the Supreme Court, “The University of Michigan is at least 80 percent white, so it isn’t credible to claim that it or its affirmative action policy discriminates against whites.”
Not only is “diversity” itself discrimination; worse, it actually devalues the very concept of discrimination. When defenders argue, as they always do, that critics are hypocrites (or even racists) for tolerating preferential treatment based on legacy status or athletic or musical ability but not race, what they are really saying is that if you can discriminate for any reason you can discriminate for every reason, that all discrimination is the same. “Diversity,” in short, drains the evil out of discrimination based on race.
2. “Diversity” Is Indistinguishable from a Quota
Everyone agrees that quotas are bad, and illegal, and thus “diversity” defenders go to great lengths to insist that preferential admissions, especially when done “holistically,” do not amount to a quota system. But the fact is that it’s hard to see any practical difference between “diversity” in practice and patently illegal race norming—putting minorities in a separate pool, judging them only against other members of the pool, and accepting a certain (even if indeterminate) number of them.
Indeed, a recent study described in Inside Higher Ed found that it was quite common at elite, selective institutions for minority applicants “not [to] compete for admission against the larger applicant pool. Instead, [they] may compete only among those…within the same group.” This practice has been illegal since at least the Bakke decision in 1978.
3. “Applying While Asian”: “Diversity” Is Racial Profiling
No doubt all the supporters of racial preference abhor “racial profiling,” at least when the police do it (and even when race is “just one factor”). They don’t recognize what is perfectly obvious to everyone else: admissions offices engage in racial profiling every day.
Although “diversity” defenders often claim that critics oppose racial preferences out of a racist desire to help whites, one of the least appreciated facts in the ongoing debate over affirmative action is that ending these preferences would benefit Asians at least as much as whites. Indeed, based on a study funded by the Andrew W. Mellon Foundation’s National Study of College Experience of more than 124,000 applicants to elite universities, Princeton sociologist and affirmative action supporter Thomas J. Espenshade and co-author Chang Y. Chung have concluded that if affirmative action were eliminated at highly selective schools 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, with an acceptance rate rising from nearly 18 percent to more than 23 percent.” Conversely, eliminating consideration of race “would have little effect on white students,” Espenshade and Chung report, “as their acceptance rate would rise by merely 0.5 percentage points.”
Together with Alexandria Walton Radford, Espenshade has also documented the extent of both the preferences for blacks and Hispanics and the discrimination against Asians. Compared with white applicants to selective colleges, “black applicants receive an admission boost that is equivalent to 310 SAT points, measured on an all-other-things-equal basis. The boost for Hispanic candidates is equal on average to 130 SAT points. Asian applicants face a 140 point SAT disadvantage.” Thus Asians are at a 450-point disadvantage compared to blacks. Numerous studies by the Center for Equal Opportunity also show that Asians as well as whites are typically discriminated against in university admissions in favor of blacks and Latinos.
The experience of the University of California after the passage of Proposition 209 would seem largely to confirm Espenshade and Radford’s finding that Asians, not whites, are often the primary victims of race preference policies. The proportion of white freshmen entering the University of California at Berkeley, for example, fell from 40 percent in 1997, the last year of legal preferential admissions, to 34 percent in 2005; meanwhile, the proportion of Asians entering Berkeley increased from 34.6 percent in 1997 to 42 percent in 2006.
Because of the rapidly changing demography of the United States, it is less and less likely that a white student will lose out to a black student in the name of “diversity” than an Asian student will lose out to a Latino one. While preferring Hispanics to Asians may be consistent with the diversity rationale, it lacks any historical justification and is flatly inconsistent with the necessity of E pluribus unum in an increasingly multiethnic America. In past cases, most Asian American organizations have supported affirmative action, but in Fisher, for the first time, three briefs representing many of those organizations have been filed opposing preferences based on race or ethnicity.
4. “Customer Preference” Provides No Justification for Discrimination
One of the most ubiquitous defenses of “diversity” preferences is that we live in “an increasingly global world” and that companies must have a well-educated “diverse” workforce because they have “diverse” customers and clients.
This is the same argument that businesses in the South made in their effort to have “customer preference” recognized as a legitimate exception to the 1964 Civil Rights Act’s ban on discrimination in employment. They failed, and rightly so. Customer preference was flatly rejected by Congress and the courts as an excuse to use what we would now call racial preferences in hiring.
“Diversity” Does Little or No Good
5. “Diversity” Is Supposedly Not Intended to Benefit Blacks—and It Actually Doesn’t
It may well be true that racial preferences are tolerated only on the assumption that they benefit the preferentially admitted minorities, but if so those tolerating it do not believe the justification offered by the universities. In practice, that justification, more like a mantra—“diversity” is essential to a good education—means that it is necessary to lower the bar for preferred minorities so un-preferred Asians and whites can receive the benefit of being exposed to them. The preferentially admitted do not, one supposes, provide “diversity” to themselves. They would receive whatever benefit it provides even if, in the absence of preferences, they attended less selective institutions, and of course they cannot help getting plenty of exposure to their “other.”
It is interesting to note what a reversal “diversity” represents. Justice Thomas wrote in Missouri v. Jenkins, 515 U.S. 70 (1995), that the belief that black students are damaged by the absence of integration “appears to rest upon the idea that…blacks cannot succeed without the benefit of the company of whites.” Now, diversiphiles claim, whites can’t succeed unless “diversity” exposes them to blacks.
That “diversity” is what might be termed “soft exploitation”—using blacks for the benefit of whites—is not lost on the exploited, which no doubt explains much of the divisiveness and resentment on elite “diverse” campuses. “It seems,” in the words of a Dartmouth senior quoted in a 2002 New York Times piece, “as if a lot of your function as a student of color is to educate the campus.”
Admitting blacks and Hispanics so that whites can be exposed to them has led to some almost comic absurdities. The Times article just cited, for example, seems in places like an unintentional parody. Author Sara Rimer notes that by the 1980s colleges had begun establishing diversity deans, ethnic studies courses, and ethnic and racial affinity houses because “minorities needed places where they could learn about their cultures and relax and feel comfortable on campus.” In other words, students imported to diversify campuses were assisted in segregating themselves so they could learn about the cultures they were admitted in large part to represent.
6. “Yes, But Where’s the Omelet?”
When Stalinists justified their repression and violence by asserting that you can’t make an omelet without breaking eggs, George Orwell famously replied, “Yes, but where is the omelet?” Similarly, “diversity” defenders claim that its compelling benefits justify discrimination based on race and ethnicity. Yes, but where are the benefits?
One would think that if “diversity” is as essential to a good education as its defenders claim, there would by now be mounds of empirical evidence supporting their faith. In fact, the opposite is the case: evidence is accumulating that “diversity” has few if any of the benefits claimed for it.
A recent survey in the Chronicle of Higher Education of new research on “diversity” found scant evidence of its dramatic effect on educational outcomes. One such study published in the journal Economic Inquiry, for example,
found only weak evidence that the racial composition of a college’s student body has a long-term impact on the success of white and Asian-American students in the areas it measured. And where colleges enrolled black and Hispanic students whose academic credentials were lower, on average, than those of other students, the effect of diversity on the success of white and Asian-American students appeared, if anything, to be negative.
The abstract of another study reveals that “diversity” does nothing to improve what students learn, as measured by objective criteria, except for their self-assessed “understanding of racial and cultural issues.” In other words, “diversity” helps students understand…“diversity.” Another new study by Jesse D. Rude, Gregory C. Wolniak, and Ernest Pascarella described in Inside Higher Ed challenges even that limited result. Using survey data from six liberal arts colleges and eleven universities—all of them no doubt institutionally committed to “diversity”—the authors found that “as undergraduates progress in higher education, they become less interested, on average, in promoting racial understanding.”
If “diversity” doesn’t even do that, what good is it?
Two amicus briefs in effect say “not much,” and provide excellent surveys of recent social science literature justifying that conclusion: one filed by the Pacific Legal Foundation, the Center for Equal Opportunity, the American Civil Rights Institute, the National Association of Scholars, and Project 21; the second filed by Abigail Thernstrom, Stephan Thernstrom, Althea Nagai, and Russell Nieli.
“Diversity” Does Actual Harm
And it’s not just that the evidence is accumulating that the benefits of “diversity” are few and far between. Thanks to UCLA law professor Richard Sander and the “mismatch” research he pioneered and inspired, it has become clear that its costs are quite high. The amicus brief that Sander and Stuart Taylor, Jr., filed with the Supreme Court in Fisher summarizes much of this work. (Pointers to other Sander work were recently offered by KC Johnson.) Likewise, an amicus brief by U.S. Civil Rights Commissioners Gail Heriot, Peter Kirsanow, and Todd Gaziano argued that “if anything should cause thoughtful supporters of race-preferential admissions policies to reverse course—or at least refrain from proceeding further—it is the mounting empirical evidence showing these policies are doing more harm than good for their intended beneficiaries.”
The new “mismatch” scholarship demonstrates that minorities who receive preferential treatment in admissions cluster in the bottom 10 percent of their classes and have much lower grades, graduation rates, and bar passage rates than their non-preferred peers. In fact, Sander et al. conclude, there are actually fewer black lawyers, engineers, and other STEM professionals than there would have been absent the preferences.
An impressive new contribution to the growing “mismatch” literature published recently by economist Peter Arcidiacono and two of his Duke colleagues demonstrates one of the sad effects of admitting black students to Duke whose SAT scores are, on average, one standard deviation lower than other students: Although a higher proportion of black than white males entered Duke with an intention of majoring in one of the hard sciences or economics, a far higher proportion of blacks than whites changed to easier majors before graduating. “Had those minority students who gave up their science aspirations taken Introductory Chemistry among students with similar levels of academic preparation,” Heather Mac Donald concludes in a thorough discussion of the Duke study and its implications, “they would more likely have continued with their original course of study” and gone on to STEM careers.
8. “Diversity” Reinforces—and Depends on—Racialism and Stereotypes
There are two popular but inconsistent defenses of “diversity.” First, it is said, there is something beneficial about being exposed to people of a different color or ethnic background, to show they do not otherwise differ from us. Second, there is something important for whites to gain from being exposed to people who are not just different from themselves in appearance but also in daily experience. For instance, the “diverse” students (meaning, of course, the minorities) might be more likely to hold particular beliefs or embrace certain cultural customs or have had specific experiences.
The first possibility hinges on the ability to show students that race and ethnicity don’t matter. The idea is that if a bigot or potential bigot is forced to see that people of other colors are really not so different from himself he will conclude that bigotry is wrong. But this plan will work only if the bigot is surrounded by students who really are similar to him in ability. (This point is made in the Thernstrom amicus brief.) If the preferentially admitted minorities are less qualified than the nonminorities, the bigot’s attitudes will be reinforced, not eroded. And, of course, the first possibility is inconsistent with the second—that is, the argument that minorities are in fact different inside from nonminorities.
“Diversity” is often claimed to teach tolerance about other racial groups—but this lesson is undermined when there is a pronounced gap in the academic ability of members of different groups on campus, as when admission preferences are used. And it is odd to use racial essentialism as the tool for teaching against racial essentialism. “Diversity,” in short, purports to teach people to draw conclusions about another race as a whole based on their contact with individual members of that race, the essence of racial stereotyping.
“Diversity” is said to be good because it exposes whites to people with different ideas or backgrounds—i.e., those who actually are “different”—but it is very dubious to use race as a proxy for individual thoughts and experiences. There are few ideas or experiences that only members of a particular racial group can have, and fewer still that all members of that group will share. The most commonly cited such experience—systematic discrimination—becomes less convincing with every tick of the clock (today’s college applicants were born in 1994, after all—thirty years after the passage of the 1964 Civil Rights Act) and can hardly justify preferring Hispanics over Asians (and, of course, the white plaintiffs in the Michigan and Texas cases were themselves discriminated against). In sum, racial diversity cannot be equated with diversity of viewpoint, even if universities actually have any interest in diversity of viewpoint as opposed to diversity of melanin.
It is also rather contradictorily argued that greater racial diversity is needed to teach the specific lesson that not all African Americans, for instance, think alike, and indeed the Court said as much in Grutter. But this is a rather obvious and narrow lesson, and it is hard to understand why it can be taught only by using racial and ethnic preferences. Teaching this five-word truth, “Blacks don’t all think alike,” can hardly justify institutionalized racial discrimination. A law school might, instead, simply assign to its students selected opinions from Justice Thurgood Marshall, on the one hand, and Justice Clarence Thomas, on the other.
“Diversity,” in short, excludes some whites and Asians and preferentially admits some blacks and Latinos so that all can learn—by being exposed to their “difference”!—that they’re not really different. That’s not compelling; it’s not even logical. Along these lines, one of the authors spoofed the silliness of this diversity rationale in “An Interview with Crumbia University’s President.”
9. “Diversity” Is an Especially Intrusive, and Illogical, Government Regulation
Requiring “diversity” can be seen as simply another form of government regulation, in this case of what can be viewed as the racial and ethnic “market” that, left to its own unregulated devices, would not produce the proper government-approved racial and ethnic mix. And the great virtue of “diversity,” from the liberal perspective, is that the need for government regulation of the racial market will never fade away.
In the beginning—that is, in the executive orders signed by Presidents Kennedy and Johnson—affirmative action meant taking affirmative steps to ensure that discrimination did not happen. When it made the turn to preferences, they were justified as a necessary but temporary exception to the principle of nondiscrimination, but at least it was still asserted that nondiscrimination was the ultimate aim. But now, far from being a temporary expedient to right a wrong or deal with a crisis, the new principle of “diversity” requires constant regulating and fine-tuning of the racial/ethnic market to maintain the proper mix within and among groups.
From the vantage point of the new liberalism, racial preferences, far from being a temporary exception, are the very embodiment of the modern regulatory state.
And it makes no sense. The diversity rationale posits that the broadening effects of random interracial conversations and comments—which may or may not even occur, of course, and may or may not be productive rather than counterproductive—can be obtained only by face-to-face exposure at a university; they cannot be gained in any other way (for example, by studying Martin Luther King, Jr.’s, “Letter from a Birmingham Jail” or Ralph Ellison’s Invisible Man) or any other place (such as the interracial workplace for which the student is being prepared, or the popular culture—where the message of equality and tolerance is ubiquitous—or the student’s neighborhood or house of worship or home). What’s more, for most jobs, and most disciplines, it’s irrelevant whether someone is of a particular racial or ethnic background. Do we ever speak of black mathematics, Asian chemistry, or Hispanic economics?
“Diversity” Violates the American Creed
10. “Diversity” Devalues the Core American Value of Treating Individuals “Without Regard to Race, Creed, or Color”
When Martin Luther King, Jr., proclaimed his dream that his children would be judged by the content of their character, not the color of their skin, he was reaffirming what Gunnar Myrdal famously called “the American Creed,” the belief that individuals should be treated “without regard to race, creed, or color.” “Diversity” rejects that creed not only in practice but in principle.
Grutter v. Bollinger, 539 U.S. 306 (2003).
See Fisher v. University of Texas at Austin, 631 F.3d 213 (5th Cir. 2011), cert. granted, No. 11-345 (Feb. 21, 2012); and the Brief for Petitioner (filed May 21, 2012).
Fisher v. University of Texas at Austin, 644 F.3d 301 (5th Cir. 2011).
Ibid. (part 3).
Elise Boddie, “Colorblind in One Eye,” Slate, January 30, 2003, http://www.slate.com/articles/news_and_politics/jurisprudence/2003/01/colorblind_in_one_eye.html.
Scott Jaschik, “How They Really Get In,” Inside Higher Ed, April 9, 2012, http://www.insidehighered.com/news/2012/04/09/new-research-how-elite-colleges-make-admissions-decisions.
Thomas J. Espenshade and Chang Y. Chung, “The Opportunity Cost of Admission Preferences at Elite Universities,” Social Science Quarterly 86, no. 2 (June 2005): 293–305. Quoted material is taken from Lauren Robinson-Brown, “Study: Ending Affirmative Action Would Devastate Most Minority College Enrollment,” Princeton University, News Stories, June 6, 2005, http://www.princeton.edu/main/news/archive/S11/80/77I23/index.xml.
Thomas J. Espenshade and Alexandria Walton Radford, “A New Manhattan Project,” Inside Higher Ed, November 12, 2009, http://www.insidehighered.com/views/2009/11/12/radford.
See Center for Equal Opportunity, Affirmative Action News, Education, http://www.ceousa.org/affirmative-action/affirmative-action-news/education.
See, John S. Rosenberg, “The Effect of Barring Race Preferences in California,” Discriminations.us (blog), November 2, 2006, http://www.discriminations.us/2006/11/the-effect-of-barring-race-preferences-in-california/.
John S. Rosenberg, “Affirmative Action Starts to Unravel,” Minding the Campus, June 7, 2012, http://www.mindingthecampus.com/originals/2012/06/affirmative_action_starts_to_unravel.html.
Sara Rimer, “Colleges Find Diversity Is Not Just Numbers,” New York Times, November 12, 2002, http://www.nytimes.com/2002/11/12/education/12DIVE.html?pagewanted=all&position=top.
Peter Schmidt, “New Research Complicates Discussions of Campus Diversity—in a Good Way,” Chronicle of Higher Education, January 31, 2010,
Peter Arcidiacono and Jacob L. Vigdor, “Does the River Spill Over? Estimating the Economic Returns to Attending a Racially Diverse College,” Economic Inquiry 48, no. 3 (July 2010): 537–57.
Serge Herzog, “Diversity and Educational Benefits: Moving Beyond Self-Reported Questionnaire Data,” Education Working Paper Archive, University of Arkansas, Department of Education Reform, November 19, 2007, abstract, http://www.uark.edu/ua/der/EWPA/Research/Achievement/1799.html.
Scott Jaschik, “Backwards on Racial Understanding,” Inside Higher Ed, April 10, 2012, http://www.insidehighered.com/news/2012/04/10/study-suggests-students-grow-less-interested-promoting-racial-understanding.
Brief Amicus Curiae of Pacific Legal Foundation, the Center for Equal Opportunity, the American Civil Rights Institute, the National Association of Scholars, and Project 21 in Support of Petitioner, Abigail Noel Fisher v. University of Texas et al., No. 11-345, May 2012,
Brief Amicus Curiae of Abigail Thernstrom, Stephan Thernstrom, Althea Nagai, and Russell Nieli in Support of Petitioner, Abigail Noel Fisher v. University of Texas et al., No. 11-345, May 2012, http://www.projectonfairrepresentation.org/wp-content/uploads/2006/11/Fisher-v-University-of-Texas-Amicus-Brief-Abigail-Thernstrom-Stephan-Thernstrom-Althea-K.-Nagai-and-Russell-Nieli.pdf.
Brief Amicus Curiae for Richard Sander and Stuart Taylor, Jr., in Support of Neither Party, Abigail Noel Fisher v. University of Texas et al., No. 11-345, May 2012, http://www.projectonfairrepresentation.org/wp-content/uploads/2006/11/Fisher-v-University-of-Texas-Amicus-Brief-Richard-Sander-and-Stuart-Taylor-Jr.pdf.
KC Johnson, “The ‘Mismatch Thesis,’ Eye-Opening Research, and the Fisher Case,” Minding the Campus, April 10, 2012, http://www.mindingthecampus.com/originals/2012/04/the_mismatch_thesis_eye-opening_research_and_fisher.html.
Amicus Brief for Gail Heriot, Peter Kirsanow, and Todd Gaziano, in Support of the Petitioner, Abigail Noel Fisher v. University of Texas et al., No. 11-345, May 2012, 5,
Peter Arcidiacono, Esteban M. Aucejo, and Ken Spenner, “What Happens After Enrollment? An Analysis of the Time Path of Racial Differences in GPA and Major Choice,” June 2, 2011, http://public.econ.duke.edu/~psarcidi/grades_4.0.pdf.
Heather Mac Donald, “Affirmative Disaster,” Weekly Standard, February 20, 2012, http://www.weeklystandard.com/articles/affirmative-disaster_626632.html.
Roger Clegg, “Interview with Crumbia University’s President,” National Review Online, Phi Beta Cons, May 23, 2012, http://www.nationalreview.com/phi-beta-cons/300841/interview-crumbia-university-s-president-roger-clegg%23#.