On what basis can we credibly claim that a university that trades off academic talent for diversity or financial resources (to a degree disciplined by market forces) is discriminating and not simply selecting the optimal set of inputs to maximize its objective function in furthering the university’s institutional mission?
The court in the Harvard discrimination case may further delineate the boundaries of university discretion insofar as the admissions calculus is concerned. Whereas the court’s job is to enforce the law dispassionately, a ruling that eliminates or even tightly circumscribes the use of racial preferences while leaving athletic and legacy preferences largely intact would send a message that is likely to cut against the grain in the arena of social discourse: not all preferences in college admissions are created equal.
1. Note that if a university has the right to discriminate in favor of blacks, then it has a right to discriminate against them. That would seem rather awkward, except to a libertarian who subscribes to the view that only the government has an obligation not to discriminate.
2. I restate my suggestion, which is to abolish the admissions office and admit applicants by lottery. Then ruthlessly flunk out the lottery winners who cannot pass their courses. If the football team is more amateurish, so be it. If wealthy alumni have less incentive to contribute bribes on behalf of their children, so be it.
3. The issue of racial bias in college admissions is not high on my list of concerns. My concern is that the elite institutions of higher education may have reached a point where they do more harm than good, because of the way that they inculcate progressive dogmas.
4. Those of us who are worried about the issue of progressive dogmas in higher education have three avenues. One, which I call the Samizdat approach, is to utilize alternative media and hope that the availability of our point helps to save our culture. A second is to support Jonathan Haidt’s efforts to reform the academy from within, although I give these efforts almost no chance of succeeding. A third is to promote competing avenues for attaining access to wealth and status. The Thiel fellowship is one drop in what I would like to see fill a large bucket.
The Bob Jones case (1978) held that the IRS could yank tax-exempt status from universities for discriminating against those in inter-racial marriages as contrary to a compelling government public policy. In Rumsfeld v. FAIR, the Solomon Amendment that permitted the denial of federal grants to institutions which discriminated against military recruiters was held to be Constitutional. Plenty of legally valid strings have been attached to making ones students eligible for student loans too.
So, Harvard as a private institution can do whatever it wants and doesn’t have to explain itself to anybody. But, like Hillsdale, if it’s going to discriminate on the basis of race (and constantly lie about what they are obviously doing in a brazen and ludicrous manner), then they can do so one their own dime. And they have a truly enormous pile of dimes with which to do so.
The principle would be a simple extension of the State Action Doctrine, which is that the government should neither subsidize or contract with institutions discriminating in ways that violate Constitutional rights and would be forbidden were the government to own and run the institution itself.
The irony in this particular case is that this one of Harvard’s main arguments, as it happens. Public institutions are certainly allowed to discriminate on the basis of race and impose racial quotas in all-but name so long as they hide the ball and produce a huge incoherent thicket of the right magic buzzwords to ritualistically purify the acts. As Groseclose has demonstrated, even in California, where such discrimination was theoretically officially banned by constitutional amendment over 20 years ago, it still goes on as before. If the UC system can do it as an open secret even while spitting in the face of a constitutional ban, then why can’t Harvard?
Nowadays it’s hard to get into an Ivy-league university: acceptance rates below 10% are the norm. But for most of their history, Ivy-league admissions policies were very similar to what you suggest. That is, they admitted most students who showed evidence that they could do the work, and flunked out those who couldn’t.
“Note that if a university has the right to discriminate in favor of blacks, then it has a right to discriminate against them. That would seem rather awkward, except to a libertarian who subscribes to the view that only the government has an obligation not to discriminate.”
Right. And, if a government prevents or discourages universities from discriminating against some races but does not prevent or discourage universities from discriminating against other races, then the government is, in fact, discriminating on race.
Yes, this. The civil rights suits should be directed at the various governments directly.
In Lemon (1971), SCOTUS announced the infamous (and, judging from recent comments, at least in its extreme form, perhaps not-long-for-this-world) ‘Lemon test’ for avoiding government entanglement with religion.
It imposed the jurisprudential equivalent of the ‘wall of separation’ between church and state – that is – between government funding and anything openly describing itself as having even partially a religious nature or purpose.
I propose the same Lemon Test for identity-based and ideologically-based discrimination. Private parties can do it if they like, but the price is to find itself surrounded by a Big Beautiful Wall impermeable to funds from the public fisc.
+1
I wonder what sort of shenanigans would crop up as professors assign grades under the lottery proposal?
The statute that should govern the case in Students For Fair Admissions, Inc. v. President And Fellows Of Harvard College is title VI of the Civil Rights Act of 1964:
“No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.”
(Pub. L. 88–352, title VI, § 601, July 2, 1964, 78 Stat. 252.)
Harvard receives federal financial assistance. Harvard collects race data, Harvard uses race data in admissions. Harvard guilty. End of story.
But for US courts, the trial court decision, whatever it may be, is just an opening for an appellate court to exercise a imagination. The text of a statute is merely an invitation to pontificate and if a judge wants to rule in favor of a party before it, then the text of the law is waved away with a few dozen pages of impassioned moral grandstanding and random cites to previous demagoguery by other judges and the cake is baked and the judge’s preferred outcome achieved.
Libertarians love this style of juridical practice because for them governance is all about high moral principles and dogma. Laws can and should be interpreted to reflect Libertarian preferences. Judges are there to create a higher moral order. And so if it was illegal aliens bringing the case, and not Asian citizens, then of course the case would be interpreted differently and the illegals should win.
Democrat judges, committed to racial corporatism will decide the case based on how it advances the interests of a neo-apartheid ruling coalition. Republican judges will decide the case in such a way as to whether or not the attorneys involved were members of their frat or attended the same law school and failing that whatever will maximize legal guild revenues.
I’d have more sympathy for the libertarian dogma that private parties should be immune from the civil rights laws if they were to either propose an amendment to title VI of the Civil Rights Act, or, just eliminate federal financial assistance to private colleges.
But that is never going to happen.
So again, I call for an Article V constitutional convention to introduce the notion of the rule of law to the US judiciary by repealing the court provisions of Articles II and III of the US constitution and replacing them with the Part VI of the 1953 Constitution of Denmark in order to provide for a meaningful rule of law. See: https://www.constituteproject.org/constitution/Denmark_1953.pdf?lang=en
I looked at Part VI and I fail to see how it is any more likely “to provide for a meaningful rule of law”.
If there is no good mechanism to police an appellate court acting as if it is above the law whenever it can get away with it, then there is no meaningful rule of law. Instead, it is rule by judges.
Kisor just pulled back the extreme position of Auer, but for some time, and perhaps still, it is a source of some irony that the courts let the bureaucracies interpret their own regulatory issuances post facto and with a high level of discretion, but don’t allow legislators to do anything close to that for statutes.
The Rule of Law index published by the World Justice Project, an independent organization advocating the advancement of rule of law around the world, ranks Denmark #1 in the world for the rule of law year after year. The USA most recently was ranked 19.
Part VI of Denmark’s constitution contributes to this achievement in two key ways.
First, it provides for balance in the appointment process and minimizes the impact that a single justice can have in interpreting the laws of the country. Rather than a highly politicized cult of celebrity appointment process in which the appointment of a single supreme court justice can decide case outcomes for decades, subpart 59.1 provides for up to 30 justices, half based upon seniority, the other half elected for 6 year terms by the legislature using proportional representation. None of this nonsense where we get stuck with an ideological court for decades because the Senate and the President happened to be of the same party and some justices happen to die. Adopting this appointment process would ensure that the US would never again be subject to the judicial tyranny of 5 ideologues.
Second, subpart 61 would invalidate the power grab the US Supreme Court made in Marbury vs Madison. It provides “1. The exercise of the judiciary power shall be governed only by Statute.” No more self-aggrandizing power grubbing from vaporous constitutional doctrines. Further, subpart 64 eliminates gaseous living constitutionalism by explicitly stating “In the performance of their duties the judges shall be directed solely by the law.” No more idiosyncratic, grandiose notions of what is right or wrong. These two provisions alone would save billions in litigation costs annually.
It should be noted that political minorities in Denmark are not as dependent upon an unconstrained court. In the legislative process, when a bill is passed, 30% of the legislature can require that the bill be approved by popular referendum. Voters then have a check on the legislature and are not beholden to legal guild to protect their interests.
The long tradition of judicial restraint engendered by these provisions eliminates the ludicrous juridical anarchy so commonly displayed in the US supreme court where an opinion may have a dozen different concurring or dissenting opinions.
The US court system, by every objective measure, is wholly inferior, in every respect, to the court system of Denmark.
edgar, Would it shock you that all nine justices of the Supreme Court believe they are “directed solely by the law”? The believe they are simply interpreting a statute or constitutional provision.
As Handle said, “If there is no good mechanism to police an appellate court acting as if it is above the law whenever it can get away with it, then there is no meaningful rule of law. Instead, it is rule by judges.”
Alternative venues. We got the modern world when alternative schools and also a taking up of the vocational path freed many great minds from the group think of the status universities. Current status universities are losing their commitment to innovation and science and becoming dogmatic promoters of the freezing of human growth to maintain their status.
“Newcomen’s religion had consequences greater than absence from a local census. Dissenters, including Baptists, Presbyterians, and others, were as a class, excluded from universities after 1660, and either apprenticed, or learned their science from dissenting academies.”
“At the same time that he chartered the world’s first scientific society, Charles II had created an entire generation of dissenting intellectuals uncontrolled by his kingdom’s ever more technophobic universities.”
–p29, Rosen, Willam, ‘The Most Powerful Idea in the World’
Even if a college should have a right to discriminate on race, should it have a right to commit common-law fraud?
Harvard charges $75 to process each undergraduate application (Harvard also requires applicants to purchase standard tests (ACT, SAT) and to devote time and effort to writing their applications and to gathering recommendations).
Harvard explicitly promises to evaluate each application fairly, using these words exactly: “The University does not discriminate on the basis of race, color, religion, creed, sex, sexual orientation, gender identity, national origin, ancestry, disability, or other protected status in the administration of its educational policies, admission policies, scholarship and loan programs, athletic, social, recreational and other University-administered programs.” (source https://diversity.harvard.edu/pages/statement-equal-opportunity-laws-and-policies) Harvard and its contractors also promulgate a large number of similar related assertions and promises.
The evidence provided by Harvard in the pending “anti-Asian discrimination case” against Harvard reveals that Harvard has been collecting all those $75 application fees by fraud. Harvard discriminates drastically on the bases of “race, color… national origin, ancestry, etc.” while advertising and promising not to do that, for the express purpose of inducing applicants to tender fees to Harvard for services (a non-racist admissions process) that Harvard does not and never intended to deliver.
I don’t know whether the current plaintiffs had the wit to add causes of action for fraud and so-forth to their case, but a class-action lawsuit on behalf of all applicants defauded of $75 and other costs by Harvard would be a good idea.
Perhaps as a private school Harvard should be free to discriminate in any manner in the interest of managing its brand. However, Harvard has no right to trick prospective customers (applicants) into paying Harvard’s application fees by lying about how it will evaluate those. If Harvard wants to “manage its brand” by imposing admissions quotas for Asians and Blacks and so-on, it should clearly say so– even if that causes fewer people to waste their money applying.
Note: I posted a nearly identical comment to Steve Sailer’s weblog about a year ago: http://www.unz.com/isteve/harvards-brand-management/#comment-2440501
Weisman’s essay is boring. Everything in it has been published before a thousand times in the last 40 years. Back in 2002, John Rosenberg explained that Wiesman’s blather about athletic and legacy preferences amounted to the “The Fallacy of Fungible Discriminations,” and was very, very stale even then, seventeen years ago.
You should read Rosenberg: https://www.discriminations.us/2002/09/two-ubiquitous-affirmative-action-fallacies/
Here’s a portion:
2. The Fallacy of Fungible Discriminations
This is the argument that all discrimination is alike; if you can discriminate for one reason, you can discriminate for any reason. Thus if it’s acceptable to give preferences based on athletic or musical ability or the alumni status of parents, it’s also legitimate to give preferences based on race or religion. Preferences, in short, are preferences; if one is O.K., all are O.K.
In some respects No. 2 is simply the other side of the coin of No. 1. The Merit Fallacy says that if you accept any exception to merit you have no principled basis to criticize any discrimination, and The Fallacy of Fungible Discriminations says all discriminations are on the same moral plane. But they are not. Because of our history, and the core values that have emerged from it, race and religion are in a special, protected category. We allow, even require, the state to impose benefits and burdens on us based on a whole host of criteria — but not race or religion, which are or should be off limits to government control. As I wrote two days ago making this same point against the same fallacies, no Constitutional prohibition bars discrimination for or against tight ends or tuba players. That hardly means, as defenders of racial preferences must maintain, that discrimination based on race or religion is also acceptable.
Read article by Rosenberg in Harvard Magazine May 2019 regarding the current lawsuit against Harvard (submitted to the judge in April– everyone is now (July 2019) waiting for some kind of decision): https://harvardmagazine.com/2019/05/affirmative-action-admissions
Re: Your 2nd bullet point.
Your two-step mechanism—equal opportunity (admission by lottery), followed by merit-based retention—seems designed to maximize a mix of three values: transparency, local justice (i.e., justice in administrative allocation of a scarce good), and academic excellence.
Like UBI, your mechanism is radical. How to we get there, if we start from where the current U.S. university system is?
I am sympathetic to the idea that institutions should specialize: Colleges should educate; hospitals should heal the body; churches should tend to the soul; and so on.
A complication arises in the case of residential colleges, which are artificial societies. Now, healthy societies have many dimensions of excellence, enabling everyone to shine. If academic prowess is the only dimension of excellence that is institutionally recognized, then the residential campus thwarts healthy variety of prowess. Perhaps the fundamental issue is the institution of the residential campus (the artificial, closed society) for four years when youths come of age.
I said colleges should educate. Here another complication arises. For the most part, academic production, especially in the humanities and social sciences, is individual, solitary. By contrast, firms rely mainly on team production. Therefore, an exclusive focus on academic excellence on campus has a sharp opportunity cost, insofar as students don’t gain experience in team production and group competition. By contrast, many sports ‘educate’ youths in the mix of hierarchy (coaches, captains), relentless team production, and group competition, which firms require. Is it any wonder, then, that firms place great emphasis on internship experience, athletics, and extra-curricular experiences and initiatives, when they hire recent graduates?
Addendum:
A lottery mechanism in college admissions would remedy widespread hubris among admissions officers, who pretend, like gods, to judge “the whole person.” Current practices pointlessly offend the overall self-esteem of applicants who are rejected on the basis of a supposed assessment of their value as a whole person. Selective colleges should not take themselves too seriously!
Apart from the issue of quotas, subjective clinical judgment itself exhibits bias and inconsistency. For systematic evidence, see Patricia Conley, “The Allocation of College Admissions,” in Jon Elster, ed., Local Justice in America (Russell Sage Foundation, 1992) pp. 25-80, section about “Admissions Officers’ Consistency and Accountability,” at pp. 64-69. A lottery mechanism avoids these pitfalls.
This idea is good. A better idea is to separate grading/evaluation from instruction/coaching. Students don’t get “ruthlessly flunked” for mediocre scores. They get the academic scores that they get and they can purchase all the coaching + instruction services that they wish.
In the Honors Program at Swarthmore College, senior theses are evaluated by visiting examiners from other institutions:
https://www.swarthmore.edu/honors-program/program-overview
Affirmative action doesn’t have to be coupled to promotion of other progressive dogmas. I could absolutely see how an college could have an institutional mission to promote racial integration and otherwise not care about any other progressive issues like environmentalism or socialism. The issues progressives care about are not bundled. It’s an a la carte menu.
Hazel, you should read Robby Soave’s new book. It is emphatically *not* an a la carte menu. Soave documents and laments the phenomenon of an across-the-board drive for purity. If Soave is correct, this is a very significant development.