As a result of the findings, Rep. Steve Nass, R-Whitewater, issued a statement calling for an oversight hearing to review the “possibly illegal” process. Nass chairs the Assembly Committee on Colleges and Universities.You know, I've been thinking about last night's debate between Roger Clegg of the Center for Equal Opportunity (which released the reports accusing the UW of "severe racial discrimination") and Wisconsin lawprof Larry Church. Describing it afterwards, I said:
“The study raises serious allegations against the UW System that they would use race and ethnicity as a core admissions test,” said Mike Mikalsen, a spokesperson for Nass. “It seems to show numerous students are being bypassed, with hundreds of more qualified students not being admitted.”
Mikalsen said the hearing, which would be scheduled in the upcoming weeks, could lead to the drafting of new legislation concerning the issues at hand or a request being made to the attorney general for formal review.
He added litigation against UW lies “almost certainly” on the horizon.
I would have liked more discussion of legal doctrine and the precise issues from the case law, but both men chose to concentrate on policy, with the assumption that racial equality and harmony are the desired ultimate goals. What's the best way to get there? It's an old, old question, and the 2 men mainly assembled the usual pro and con arguments, so I doubt if any minds were changed.What I need to say this morning is that there are 2 separate matters: whether affirmative action is permissible and whether it is a good idea. If affirmative action violates the Constitution, it doesn't matter whether it's a good idea or not. It's not permissible. It isn't an option in the set of options that the University has when it designs its admissions policy. (Yes, you could try to get the Constitution amended or the University could decide to go ahead and violate the Constitution and try to cover up what it's really doing.)
But is it a good idea? What struck me last night is that both Clegg and Church spoke almost entirely about whether it's a good idea. Each man had his set of reasons for his policy position, and, frankly, I found it a bit dull, because they weren't honestly agonizing over the difficult costs and benefits and ethical trade-offs. They already had their positions and they advocated them. There was no view into a real human mind thinking seriously about a difficult problem, no real-time performance of decisionmaking.
Now, why did both men choose to discuss the matter at the policy level, each endeavoring to sell his policy? Why did neither man have much to say about whether it's constitutional? One answer is that it's a complicated question, and the answer is that it's constitutional if you do it the right way and it takes a long time to explain what the right way is, and it takes a really long time to go into the matter of whether the University is presently doing it the right way. You could also say that the legal question is difficult enough that most people — including judges! — are going to decide it based on what they want the answer to be. So it's best to talk about policy anyway.
But shouldn't Clegg want to emphasize law? Clegg wants to deny the University the full range of options and the way to do that is to put the affirmative action option off limits by designating it as a constitutional rights violation.
Scroll back to the top of this post for your answer. The University is currently the decisionmaker about which policy to adopt among the range of permissible policies, but the state legislature could trump the University. Clegg may seem to be threatening a lawsuit and, if he takes that route, he will need to speak in the language of constitutional rights.
But there is a different route, the legislative route, and it doesn't depend on aligning the facts of this case with the fussy particularities of the Supreme Court's case law. It's a direct appeal to the people of Wisconsin and their representatives in the Capitol. And nobody needs to understand the law for that groundswell of antagonism to affirmative action to take the policymaking power away from the University.