December 24, 2015

Why Linda Greenhouse can't remember the Supreme Court's affirmative action doctrine.

She has this in a piece titled "The Supreme Court’s Diversity Dilemma":
In writing the opening sentence of this column, I first began by referring to Justice Scalia’s musings about whether affirmative action "hurts those it is intended to benefit." But I rewrote the sentence after considering that as a doctrinal matter, applicants who receive consideration under affirmative-action policies are not considered beneficiaries. Universities benefit, corporate America benefits (as a group of Fortune 100 companies tells the court in a brief in the current case) the military benefits (as a group of retired officers famously told the court in the Michigan case). Society as a whole benefits, as Justice O’Connor explained. It’s almost as if minority students do everyone a favor by showing up, but we can’t acknowledge that they themselves get anything out of the bargain.
And that drives home the difficulty people have understanding affirmative action! Greenhouse has followed the issue for decades, writing about it in detail, and sitting down to write about it one more time, she forgets the basic structure of the legal doctrine. I've seen this raging ignorance over and over. I'm saying "raging" not to disparage Greenhouse, but to visualize the ignorance of affirmative action doctrine as a beast with a lot of fight in it.

What's going on?! Part of it is, I think, people who support affirmative action don't approve of the theory. They would prefer to see affirmative action as benign, a benevolent assistance to members of traditionally disadvantaged groups. But, as Greenhouse eventually got around to reminding herself, that isn't the theory at all. The good or bad visited upon the minority students is actually irrelevant in the doctrine that is so hard to remember. They don't need to be recipients of good. They're supposed to provide the good, improving the educational experience of all students.

It's not just the supporters of affirmative action who have trouble remembering the actual legal theory. Last week, I blogged about Thomas Sowell's misunderstanding. He'd written:
Affirmative action is supposed to be a benefit to black and other minority students admitted with lower academic qualifications than some white students who are rejected. But Justice Scalia questioned whether being admitted to an institution geared to students with higher-powered academic records was a real benefit.
I had to say:
Actually, affirmative action is supposed to be a benefit to the entire student body. That's the compelling interest that the Court has relied on to justify race discrimination. But it should be a benefit to the students who are admitted under the program, and if it is not, then they are being used for the (purported) benefit of the whole group of students.
Unfortunately, perversely, the Supreme Court has an extremely important doctrine that affects millions of people and riles American politics, and almost no one gets it. Those few who get it probably don't agree with it, even when, like Greenhouse, they agree with the results.

73 comments:

Tank said...

This is what happens when you don't tell the truth.

We are awash in truckloads of daily BS.

buster said...

I think that shows the intellectual and moral vacuity of affirmative action. Diversity is a social benefit if it is voluntary and spontaneous. Forced diversity is bullying by the government, not to say tyranny.

EDH said...

So was Scalia in his comments actually decrying white privilege?

damikesc said...

If argue that if affirmative action was a theory on more solid ground, it'd be less of an issue. It'd a terrible policy desperately seeking a justification.

SGT Ted said...

Leftists like Greenhouse don't care about legal arguments, except as a tactic. They want what they want.

mezzrow said...

Thank you, professor. Some might say that those who support affirmative action can't handle the truth when confronted with its actual legal reasoning. It's almost like what the supporters believe about it is a fantasy, a concoction of some sort.

(in the back of my head Sam Kinison is screaming "say it! say it!")

RAH said...

The reason is because the SCOTUS used Orwellian reasoning to justify race based discrimination preferences. If there were for the benefit of the minority it violates the equality principle. So it was dressed up as to a general benefit to society.
But the reality is that it is a benefit. Sometime people forget the lie that created that benefit

Roger Sweeny said...

It simply shows that the reason ordinary people support affirmative action and the reason the Supreme Court does are very different. (And perhaps it shows that the Supreme Court doctrine has as the same intellectual integrity--for the same reason--as the doctrine that the Obamacare penalty is a tax.)

MikeR said...

A college and society as a whole are supposed to benefit because you accept a rich black kid instead of a poor white kid. No one can remember this because it doesn't make any sense.

Hammond X. Gritzkofe said...

Justification of Affirmative Action as a benefit to "the system" rather than benefit to the individual admittee only makes sense if there is no lowering of standards.

What benefit of diversity in the fauna at Chipotle Mexican Grill?

James Pawlak said...

"Affirmative Action" (aka Racial Discrimination") has failed to change the anti-civilization mind set of too many Blacks and has worked against Asians and Whites by depriving them of "equal justice under law".

Jim Gust said...

Affirmative action has only survived this long because the general public has never understood the idiotic, irrational legal unpinnings of it.

Owen said...

What buster said. Diversity delivers some net benefit? "Net" is cute, it lets you burden the minority so long as others gain more than it loses. So the hapless students get a worse education and are psychologically damaged (both aspects are capable of empirical investigation) but net net it is OK because the already-too-privileged white elites on campus thereby gain a petting zoo and that frisson of a livelier classroom (impossible to investigate empirically).

If blacks do benefit from diversity programs, say so and show how. If not, we are left with the foregoing "net" argument which even after all these decades is still shockingly cruel and cynical.

Shouting Thomas said...

The entire racism/affirmative action (quota system) industry is a load of bullshit because the intellectual rationale provided by the Court is a load of bullshit.

And, I made my own contribution, inadvertently, to deepening the pile of bullshit.

I was just trying to make a buck.

Mike Sylwester said...

The policy does prevent an excess of Asian students in the student body. That might be the major result.

buster said...

People don't understand the diversity rationale for affirmative action because it makes no sense

Mid-Life Lawyer said...

While I understand that the law created the fiction that orchestrated diversity is good for everybody and I, and almost everyone else, lose sight of that, I think you are off a little in your criticism of Sowell. Sowell was reacting to the idiotic reaction to the Scalia questions which were only dealing with the mismatch theory that was presented in the amicus brief. So, in that context, it would be appropriate just to focus on the effect on the minority students who are in over their heads, which mismatch is about.

If Sowell were reacting to the Roberts' questions that dealt with the effect of diversity on all the students in a Physics class then he would probably have specifically dealt with the silliness of thinking that diversity is a benefit to the student body as a whole, especially in that type of class.

But I could be wrong. I was educated in a very diverse public school setting and so I didn't learn a hell of a lot being as I was generally being taught at about 3 grade levels lower than where I was and I was basically bored as hell when I wasn't high as a kite. But I did learn how to play "get like me" and we had a good football team on which I played a prominent role and that helped my self-esteem greatly.

Saint Croix said...

Society as a whole benefits, as Justice O’Connor explained.

Perhaps affirmative action is controversial not just because of racism, but because its proponents feel the need to avoid reality as they describe the doctrine. Similar to abortion, I would say.

It's certainly clear to opponents that a recipient of affirmative action has a benefit. He has grades for Ohio State, but for some reason he is sitting in Harvard. Similarly, a person who is denied a place at Harvard, and finds himself at Wisconsin, can perhaps detect a cost. This is why the Supreme Court had trouble applying their own doctrine to Mr. Bakke. They could sense the racism when an individual was before them.

The Supreme Court prefers to think systematically (i.e. by not thinking of the individuals involved). Thus abortion is great for society, but the actual decapitation and dismemberment might be unfair in a particular case. It's a framing device. Think in the abstract, avoid the details.

Hagar said...

And here I have always been under the impression AA was necessary as a temporary measure to get some Black people "into the pipeline," which would get things started so that eventually college and white collar jobs would even out between the races. ("Black" and "White" that is; "Red" and "Yellow" were not considered yet in this.)
And, of corse, as with any government program, there are always a search for more reasons to keep it going and expand it.
The real beneficiaries are the administrators; not the cannon fodder.

Gahrie said...

Unfortunately, perversely, the Supreme Court has an extremely important doctrine that affects millions of people and riles American politics, and almost no one gets it. Those few who get it probably don't agree with it, even when, like Greenhouse, they agree with the results.

That is because, like the whole penumbra of an emanation thing, the legal "doctrine" is complete bullshit used to justify an outcome desired by the political Left, and everyone knows it.

If diversity truly was the goal, and truly was deemed important, there would be Affirmative Action for Whites at the historically Black colleges.

Ambrose said...

This is a lie we tell ourselves. No one wants to come out and say that minorities need assistance because many of them are not qualified for the positions we'd like to see them fill - witness the emotional outbursts when Scalia asked about "mismatch" in the oral argument. So we have to banish that thought and instead enforce the orthodoxy - AA is solely and exclusively for the benefit of diversity as an end in itself.

JCC said...

I wonder if the same logic applies when considering criminal justice reform and racial disparities. Are prison populations better when more diverse?

Michael K said...

"No one can remember this because it doesn't make any sense."

Of course ! This is why lying is a risky strategy. Everyone has trouble keeping track of what you said when you were lying.

jacksonjay said...

Shorter Althouse: Only the best of the betters understand this bullshit! The common-sense lessers are raging stupid! The providers are supposed to benefit not the beneficiaries. Got it.

Mizzou and Yale, among others are reaping a hell of an ROI!

Rob said...

Let's not ignore the profound implications of Greenhouse's approach. The persons admitted under affirmative action are victims. They're entitled to a special easier grading standard, special concessions to avoid having their sensitivities bruised. They're entitled to reparations. They're not only victims, they're heroes!

Ann Althouse said...

"Shorter Althouse: Only the best of the betters understand this bullshit! The common-sense lessers are raging stupid! The providers are supposed to benefit not the beneficiaries. Got it."

Uh, no, you don't have it. You misread the post. Don't be sarcastic about getting regarded as a "lesser" exactly when you are missing the point.

AlbertAnonymous said...

Maybe it's time the supremes overturn the cases that gave us the idiotic doctrine in the first place. If Diversity is a goal in and of itself and somehow justifies racial discrimination, Then we can discriminate in public employment, private employment, historically black colleges, black student unions, you name it. As long as we have the goal of "diversity" and "we" decide who is diverse from whom.

Garbage!

And why constitutional legal doctrine only remains so "for 25 years"?

Absolute garbage!

Bruce Hayden said...

I guess this doesn't bother me as much, now, as it should, maybe because I remember when Justice O'Connor came up with this nonsense. To me, it was like the ObamaCare decisions, where a majority of the Court decided to support the Dem/Progressive side, but didn't have precedent or logic on their side. So, they stood on their heads, and came up with something that was somewhat limited, that mostly didn't violate precedent.

But, it has always been somewhat idiotic in my mind. It isn't inner city blacks who didn't have any family members attend college who benefit from the preferences, but rather, middle class, upper middle class, and even very rich blacks who merely have the right skin color. What do they add in diversity? Many of them were raised almost "white", so about all it does is make for better photographs. But, it also consigns many of them to mediocrity because scholastically, they very often aren't up to the same level as their classmates, and so are much more likely to flunk out, or end up in easy, hard to monetize, majors.

Eventually, something has got to break here. Affirmative Action is a litmus test on the left, but one of their constituencies, Asians are, by far, the biggest losers. So much so that a number of colleges now have Asian quotas, just like they had Jewish quotas up until about the time we were in college. We are sometimes seeing upwards of a couple hundred SAT points between Asian and Black applicants at some schools. What happens when the Asians, who have driven their children throughout their lives to be the best of the best, only to lose out to Blacks and Hispanics who are grossly less qualified, wake up and realize that much of their problem revolves around being loyal Democrats? The cognitive dissonance is getting pretty significant there.

Owen said...

Michael K: "...why lying is a risky strategy." Amen.

Such a sad mess. The proliferation of intellectual epicycles is bad enough. It is made worse by the moral posturing that must be paid for by the students' inevitable disillusionment and cynicism. And giving it the force of law makes it downright evil.

But other than that, awesome work.

Ann Althouse said...

"Let's not ignore the profound implications of Greenhouse's approach. The persons admitted under affirmative action are victims. They're entitled to a special easier grading standard, special concessions to avoid having their sensitivities bruised. They're entitled to reparations. They're not only victims, they're heroes!"

Your sarcasm is ugly.

If students are admitted because they serve the university's educational goals that are about using them for the benefit of others, they might have a claim that they were damaged by intentional race discrimination. I don't see them suing, but it would be interesting think through what that claim could be. They did choose an offer that they could have refused, so it would be difficult.

buster said...

Diversity doesn't always work as a pseudo-rationale for affirmative action. E.g., women in infantry units.

Hagar said...

It is a con. The Democrat "establishment" is as lily-white as ever.

buster said...
This comment has been removed by the author.
n.n said...

Affirmative action should have been about addressing latent prejudice that deprives individuals of equal protection. Instead, it has become another policy under the pro-choice doctrine that enables the narration of good perceptions through exploitation for profit.

The cognitive dissonance is deafening.

AlbertAnonymous said...

@Bruce Hayden:

You're right about the idiocy. It isn't the inner city disadvantaged blacks that benefit. But interestingly, in the first Fisher v UT case, there was some oral argument about that issue. Texas law requires the top 10% of every high school in the state be eligible for admission, so the numbers of minorities went up, but the school claimed it still needed to discriminate (to get more "diversity") because they weren't the "right kind" of minorities. That time around, they were claiming they needed black kids who had professional parents and came from upper class neighborhoods in order to prevent people from stereotyping all the black students as poor kids from inner city schools that won't do well.

Sure seemed backwards. And convenient. The racial tinkering will never end because there will always be an argument that they need a different kind of person.

Mark said...

Unfortunately, perversely, the Supreme Court has an extremely important doctrine that affects millions of people and riles American politics, and almost no one gets it.

No, they get it. They see through all the artiface and pretext, the house of affirmative action nonsense built on stilts.

Sure, you can say, "Actually, affirmative action is supposed to be a benefit to the entire student body," but if you do, you really should add after that "wink, wink, nod, nod."

jacksonjay said...


So, let me try to understand. The AA student provides the benefit, but may or may not reap the benefit of the benefit he provided. Now I got it?

RAH is right.

I stand in some good company of lesser raging stupids.

Owen said...

Prof. Althouse: "...think through what that claim could be." Aren't we seeing the claim made by the campus race activists? It is no bar to the claim to say they accepted an offer. Even a full ride isn't free, it takes years of one's life and if one has been seduced into the wrong (too challenging) environment or not given fair warning and help (tutorials, boot camp, counseling) then the bargain is unfair and even fraudulent. One has been used as a prop in a morality play to edify and gratify others, and if one emerges after years claiming to have been spiritually shattered by "impostor syndrome" or possessed by paranoid delusions that the whole thing was a racist conspiracy, well, in fact one would be correct.

I think that claim could be worked into a fraud case without too much effort. Even if never litigated, it is a strong script for seeking reparations and further concessions. Which seems to work; between them, prompted only by a few semi-literate demands, Yale and Brown have promised $150 million in new institutional sugar.

Fen said...

If students are admitted because they serve the university's educational goals that are about using them for the benefit of others

Are we talking about getting into college or are we talking about slavery?

"Hey there, you are going to go $60k into debt and likely drop out from being overmatched intellectually, to enrich the experience of our white students..."

damikesc said...

If students are admitted because they serve the university's educational goals that are about using them for the benefit of others, they might have a claim that they were damaged by intentional race discrimination. I don't see them suing, but it would be interesting think through what that claim could be. They did choose an offer that they could have refused, so it would be difficult.

One could use the same argument people used to complain about "unfair mortgages". How many of these kids are given the full information about what they're doing? These kids are, normally, minors at the time they agree to go to a school. Are their parents advised on the benefits AND risks of the decisions?

People can claim that they were mislead in a wide array of cases --- I don't see how it wouldn't work here. Colleges are usually really bad at listing the risks. They don't often go over the debt you'll leave with or that, in cases, it's better to go to a "less rigorous" school and succeed than to go to the school in question and fail out.

The biggest problem of AA is that it is blatantly racist from the word go and no justification can clean that up. Punishing youths of today for the sins of the past is unfair by any standard and that was LBJ's original justification for AA in the first place and it has stuck as the main justification for Americans for years.

damikesc said...

I think that claim could be worked into a fraud case without too much effort. Even if never litigated, it is a strong script for seeking reparations and further concessions. Which seems to work; between them, prompted only by a few semi-literate demands, Yale and Brown have promised $150 million in new institutional sugar.

That schools can so readily dish those things up SHOULD lead to questions why they have to raise tuition so often? If they have the money for such superfluous nonsense, then their claims of needing higher tuitions seems dubious. If you REALLY were not making much money, you wouldn't spend money pointlessly.

Sebastian said...

"Actually, affirmative action is supposed to be a benefit to the entire student body. That's the compelling interest that the Court has relied on to justify race discrimination." Supposed to be. Not that anyone ever cared to, you know, measure that "benefit."

"But it should be a benefit to the students who are admitted under the program, and if it is not, then they are being used for the (purported) benefit of the whole group of students." In practice, of course, all Prog administrators care about is making their numbers. Insofar as they have any further rationale, it is that blacks deserve compensation for historic oppression and current disadvantage. But they can't make the racial justice argument, so they squeeze everything into the diversity frame. SCOTUS forces everybody to lie. Not that Progs have a problem with that.

"Unfortunately, perversely, the Supreme Court has an extremely important doctrine that affects millions of people and riles American politics, and almost no one . . ." Sure, it is "perverse," though not quite in the way you mean. Almost no one buys, believes, or cares about SCOTUS made-up BS. Progs only care now because even the fabricated BS entails limits on what they want to do.

Jupiter said...

Ann Althouse said...
"Let's not ignore the profound implications of Greenhouse's approach. The persons admitted under affirmative action are victims. They're entitled to a special easier grading standard, special concessions to avoid having their sensitivities bruised. They're entitled to reparations. They're not only victims, they're heroes!"

"Your sarcasm is ugly."

Sarcasm? Those are the claims being made by black "victims" of affirmative action at Yale.

"It's not just the supporters of affirmative action who have trouble remembering the actual legal theory."

You mean, the latest legal theory. Perhaps the reason people don't "remember" it is that no one ever suggested that AA had any educational value, until the day the SCOTUS declared that to be the only acceptable basis for the practice.

While the educational benefit explanation for AA is obviously a lie, it does raise an interesting legal question. If racial preferences are acceptable to improve the quality of education, why aren't they acceptable to improve the value of real estate?

campy said...

"Your sarcasm is ugly."

But justified.

Terry said...

The constitutionality of AA in higher ed seems like a high-wire act. If it doesn't benefit everyone (aka 'the public') you run into 14th amendment issues because you are favoring one group of citizens, and disfavoring another, based on race. The benefit to the public remains largely unexamined. The court takes the word of college administrators and friends of the court on the benefits of AA. How do you quantify it? How do you ensure that the benefits really are to the public and not to the college administrators and the amicae?
The courts have given college administrators the power to discriminate in whatever way they choose to achieve whatever results they choose (I think we may consider the 'many other factors' qualification to be a fig-leaf over the reality of racial discrimination).

rhhardin said...

It's a fake justification for a mistaken law.

Richard Epstein says repeal the civil rights law and do it right: voluntary and diverse individual actions by institutions.

Changes should happen at the margin. You meet and decide this is a little too much or a littlt too little, and change it a tiny bit.

No government involvement.

Chuck said...

This is another sparklingly well-written legal post by Professor Althouse.

I have no idea how she personally feels about Affirmative Action. Her professionalism and legal acuity are all I get.

No matter how you feel about Affirmative Action -- good, bad or indifferent -- if you are not getting the legal theory of what she is setting forth, you need to read it again and concentrate more.

Big Mike said...

Thank you for clarifying this, Professor. But surely you realize that there's a degree of misdirection and slight of hand going on.

Back in the 1960s affirmative action was sold as a means of redressing past grievances and balancing the scales (I was there; I remember). And the press and politicians have continued to act as though that continues to be the rationale. And that rationale doesn't work anymore, particularly Black people who suffered under Jim Crow and now are well into their seventies and eighties. Consequently the old rationale has been replaced by a new rationale, which I can summarize as "to H*ll with the Black students who enter poorly-prepared and wind up with no degree and heavy student loan debts, because the honkies and Asians need to see some of you up close and personal to enhance their education." Which, looking at it described that way, it's easy to see why Democrats would want to continue to describe it -- especially to Blacks! -- using the original rationale.

So that means that what Scalia was doing was explaining to those citizens of the United States who are not Con Law professors (which is most of us) that the 21st century goal of Affirmative Action is to stick it to Black people so that the precious snowflakes from the homes of lily white Progressives can say that they've been to college with Black folks. Sort of like saying that they've seen an elephant in the zoo.

Got it.

Char Char Binks said...

If AA is detrimental to Black students I'm all for it.

cubanbob said...

"If students are admitted because they serve the university's educational goals that are about using them for the benefit of others, they might have a claim that they were damaged by intentional race discrimination. I don't see them suing, but it would be interesting think through what that claim could be. They did choose an offer that they could have refused, so it would be difficult.
12/24/15, 10:10 AM "

Tread easy here. The mystique of the Ivies is that they are the cream, the best because of meritocracy-only the best of the best are accepted.
If the Ivies have an AA policy of setting aside a number of slots for otherwise qualified applicants that would be one thing but diversity for the sake of diversity that harms the otherwise not qualified applicant and throws shade on the rest of the student body is to whose benefit? It would appear the principle beneficiaries of AA in these schools are not the minority students or the non minority students but others and for their own benefit and the expense of the students. If this is the case then what is the benefit to society as a whole and what is the public interest in maintaining the status quo?

West Texas Intermediate Crude said...

If the justification for AA is that it is a net benefit to the university, or to society as a whole, then there should be empiric research that determines the proper amount of diversity to best achieve that goal. There should be academic papers that demonstrate that College A, with 15% of minority X and 12% of minority Y, does a "better" job of whatever universities are supposed to do, than College B, with 19% and 8% , respectively. There should be real science by now, with logical regressions and rho values and 2-way T tests. It should be settled science.

But, whatever colleges are supposed to do really can't be measured, and even if it could, there is no a priori reason to believe that the hypothesis would be proven. Affirmative action therefore assumes all of hte characteristics of faith, of religion, of belief. It can't be wrong.

And that is why the opposite of diversity is university.

HoodlumDoodlum said...

Ann Althouse said...If students are admitted because they serve the university's educational goals that are about using them for the benefit of others, they might have a claim that they were damaged by intentional race discrimination. I don't see them suing, but it would be interesting think through what that claim could be. They did choose an offer that they could have refused, so it would be difficult.

Some of us discussed this in the comments of your post correcting Sowell--I think it'd have to be some form of a fraud claim. The larger point, though, and the reason people like Greenhouse have "trouble" really seems to be the disconnect between the way the system is justified in legal terms and the system's actual function and purpose. Most people would say that affirmative action is supposed to help disadvantaged minority students. The legal theory justifying affirmative action is that it creates a more-diverse student population and that is supposed to help all the students in that population. Those two things aren't mutually exclusive, of course, but they're also not the same thing, so when people talk about one or the other and really mean (or want their audience to understand) they mean the other, well, it gets messy.

Anyway put me down in the "they understand just fine but aren't willing to argue truthfully/speak frankly about reality because they think obfuscating is more helpful to their cause" camp.

Beach Brutus said...

If under qualified minorities are not beneficiaries of affirmative action, it should follow that they would not be harmed by abolishing it.

Jupiter said...

I think we all agree, then, that the "educational benefit" argument is simply a fig leaf. And so the question is, what lies beneath? Why are university administrators so determined to practice AA that they are willing to concoct bizarre rationalizations and nonsensical "weighting" systems in order to circumvent the clear meaning of the CRA? And why is SCOTUS willing to see it circumvented, in this case and this case only?

The deference shown by SCOTUS to the administrators' wishes is without precedent. No other governmental institution is allowed to practice overt racial discrimination, simply on the basis that they believe it furthers their hazily defined purposes. And one suspects that SCOTUS would not be equally indulgent toward a claim that those purposes are best served by excluding certain races, plausible though it be.

Jupiter said...

On the other hand, perhaps the real puzzle is why SCOTUS allows the universities to discriminate so blatantly on the basis of SAT scores. Talk about your disparate impact! Any other institution whose policies so blatantly favored whites and Asians with so little justification would be sued out of existence. Perhaps the fig leaf is there to cover the harsh reality that the court holds other institutions to an unreasonable and debilitating standard.

Static Ping said...

To discuss the diversity legal reasoning, I am very much of the opinion that the legal reasoning was secondary to the results. The court did not want to overturn Affirmative Action, so it manufactured a reason. This is a very good way to lose respect as an institution.

That said, is AA caused diversity a benefit to society as a whole when applied to college admissions? In a general sense, yes. It is a good thing to be exposed to people of other races, cultures, economic classes, etc. to learn what the world really is as opposed to what you think it is. I can attest that my bubble has been popped several times in my life to my benefit, or at least to my lesser ignorance.

However, the caveats to this are rather large and undermine the fundamental argument.

First, is there really any evidence that the elites that go to elite institutions are really gaining empathy for those outside of their normal bubble? From my experience I see lots of expressions of how important caring about diversity and whatnot is, followed by the elites doing the best they can to interact with these others as little as possible. The elites also seem to care about only particular others - racial minorities, gays, Muslims, etc. - while not only denigrating other others - whites, Christians, flyover country, etc. - but appearing to incredibly ignorant of these other others to the point of self-parody.

Second, what is the lesson learned if a minority is admitted to a first tier institution and flunks out in short order? That members of that group are dumb and, as a corollary, that the culture they come from is not worthy of respect? That seems the opposite of the court's intent. Assuming the scenario is possible, it would be much better to have this be a multi-generation process with disadvantaged minorities going to schools that match their talent and prep, graduate from those schools, and then having established themselves in a better place than their parents, have their children attend institutions appropriate for them. Presumably, with a more advantaged, more stable foundation, more of those will be ready for better schools than their parents, will graduate at better percentages, will be better prepared for life, and, for that matter, will leave a better impression with their fellow students.

It seems to me that the diversity as a benefit, at least on the college campuses of elite institutions, is highly overrated, and this policy is doing more harm than good.

wildswan said...

"Unfortunately, perversely, the Supreme Court has an extremely important doctrine that affects millions of people and riles American politics, and almost no one gets it."

The justification for segregation in the Fifties was that "Negroes" could not effectively compete with whites in the same classroom [because they were inferior - in genetic IQ or some other racial based way.]. Then, after integration, I thought (I too was there in the Sixties), I thought I say, that the argument was made that we had to have racial preferences because the Negroes could not compete effectively with whites in the same classroom [after years of discrimination and poor schooling in underfunded schools, they could not compete in the same schools as whites. The disparity was caused by segregation with an invariable consequence of underfunded, bad schools. But Negroes should be in the same schools as whites so as to get a good education and end the disparity. This required racial quotas for awhile.] This I supported.
Now it seems that the object was "diversity" and racial quotas or whatever will never end. I had no idea.

Gahrie said...

On the other hand, perhaps the real puzzle is why SCOTUS allows the universities to discriminate so blatantly on the basis of SAT scores.

"The SAT does predict success in college—not perfectly, but relatively well, especially given that it takes just a few hours to administer. And, unlike a “complex portrait” of a student’s life, it can be scored in an objective way. (In a recent New York Times op-ed, the University of New Hampshire psychologist John D. Mayer aptly described the SAT’s validity as an “astonishing achievement.”) In a study published in Psychological Science, University of Minnesota researchers Paul Sackett, Nathan Kuncel, and their colleagues investigated the relationship between SAT scores and college grades in a very large sample: nearly 150,000 students from 110 colleges and universities. SAT scores predicted first-year college GPA about as well as high school grades did, and the best prediction was achieved by considering both factors."

http://www.slate.com/articles/health_and_science/science/2014/04/what_do_sat_and_iq_tests_measure_general_intelligence_predicts_school_and.html

Terry said...

I will give the university admissions people some credit.
I think that they realize that, if they did not explicitly discriminate against whites and east Asians, universities would have virtually no Hispanics or Blacks in their student bodies. Whites and Asians outmatch Blacks (and to some extents Hispanics), even if you control for things like family structure and family income and wealth. In other words, if you decide to reserve 20% of your student body to people with no family wealth, family income entirely from public assistance, single parent family, and applicants that only attended public schools, the applicants that fit these criteria with the highest SAT scores would still be overwhelmingly white or east Asian.

Terry said...

Blogger Jupiter said...
On the other hand, perhaps the real puzzle is why SCOTUS allows the universities to discriminate so blatantly on the basis of SAT scores. Talk about your disparate impact!

As I understand it, Jupiter, SAT scores correlate highly with traditional measures of success in college -- completing a degree program with a decent GPA.
Public universities are usually highly subsidized by the state. Taxpayers have a right to see that their hard-earned dollars are spent efficiently.

Smilin' Jack said...

Unfortunately, perversely, the Supreme Court has an extremely important doctrine that affects millions of people and riles American politics, and almost no one gets it. Those few who get it probably don't agree with it, even when, like Greenhouse, they agree with the results.

This is what democracy looks like.

Terry said...

"First, is there really any evidence that the elites that go to elite institutions are really gaining empathy for those outside of their normal bubble?"
Anecdotal evidence suggests that college graduates who identify as liberal are much more sympathetic to the problems that Blacks, of whatever economic class, face than the problems that poor whites face. Our cultural elites signal that it is okay to mock the religious beliefs of poor whites, but not Blacks. Whites (but not Blacks) are told to stop whining if they complain about the uneven playing field the elites have set up in some job markets.

Michael K said...

""The SAT does predict success in college"

That, of course, is why it was devised. It was to make things equal for the children of the poor who did not have all the connections that the rich and well educated had. This country was once about equal opportunity instead of equal result, which is a fantasy. The left of course lives on fantasy,

Michael K said...

"college graduates who identify as liberal are much more sympathetic to the problems that Blacks,"

This is virtue signaling and it's like adopting a child in Nicaragua for five dollars a month.

How many people actually visit these children ? None.

Sympathy for blacks is an easy way to make your self feel good, especially if you are rewarded by peers.

Jupiter said...

Terry said...
"As I understand it, Jupiter, SAT scores correlate highly with traditional measures of success in college -- completing a degree program with a decent GPA."

Yeah, I understand that. The same is true of IQ scores, which is all the SATs really are. But an employer looking to base his hiring decisions on IQ scores - or SATs - would find little sympathy on SCOTUS if the result had a "disparate impact" on protected races. Apparently, the folks on the Court feel that education is the only economic activity of sufficient importance to outweigh the State's overriding interest in racial balance.

Steve M. Galbraith said...

Scholars John McWhorter and Glenn Loury discuss the diversity rationale for affirmative action:

http://bloggingheads.tv/videos/38073?in=51:41&out=57:57

Dr. Loury brilliantly make the point I've stumbled in making: "Diversity can make black students into objects". Exactly.

Loury on the diversity rationale: "They [i.e., the black students] have to be there because they bring diversity and that makes them into a certain kind of object...they're supposed to be representative of something..."

They're not there because it's good to have smart well educated black leaders leading the country but because they are "representative of something" that they bring to the university. It's a tokenism; black students as stereotypes who are objects or things and not real human beings with unique experiences.

Gahrie said...

. But an employer looking to base his hiring decisions on IQ scores - or SATs - would find little sympathy on SCOTUS if the result had a "disparate impact" on protected races.

Which is why Affirmative Action exists.....

Steven Wilson said...

So, in other words, a white person who is denied a place at an Ivy League school or in a medical school or in any institution including fire departments or police departments, is actually benefitting from "white privilege" as a person of color is providing a benefit to that white person by taking that person's place. And yes, I recognize that according to this theory the white persons who are admitted despite the person of color taking another white person's place are the greatest beneficiary of all.

I'm not being sarcastic. This to me is an accurate rendering of the argument. I find it more than a useful coincidence that lard is also a product of rendering just as this mind boggling contradictory, counterintuitive argument expresses the rationale for affirmative action. Every failure due to the phenomenon described as mismatch will just intensify the debt that white people owe to persons of color. It can never end. This is beautiful. This is almost as beautiful as Hillary closing all below average schools. How many rounds of closing before we down to only one school which could never be closed as it could never fall below average.

This justification for affirmative action has to fall into the category Orwell envisaged for things so stupid or non sensical or whatever that only intellectuals can believe.

Buckley was right, give me the first 200o names in a phone book and spare me the self appointed anointed.

Fen said...

The diversity canard falls apart when it comes to conservative thought on campus, so its dishonest to pretend AA is about benefiting society as a whole or whatever nonsense they are using to justify it.

Hell, even college professors are terrified of being outed as conservatives.

richardsson said...

I recall when Grutter and Granz were being argued that Justice O'Connor was quoted in the media as praising the late Justice Lewis Powell as a "wonderful dancer." I thought, Uh Oh, the decisions in these cases are going to be stinkers and indeed they were. I read the decisions and the arguments. If that's the best we can expect from someone appointed by Ronald Reagan, then I think the court is doomed.

Owen said...

Steve M. Galbraith: "...makes them into a certain kind of object." Yes. Equality of opportunity depends on seeing others as subjects, independent and autonomous actors, whose success depends in critical part on hidden internal qualities like character. Equality of results depends on seeing others as objects, helpless flotsam, whose success depends on legislated interventions that look to specious but (politically, administratively) convenient external qualities like color or gender.

It's simple but deep. Progressives always do this.

Steve M. Galbraith said...

Diversity can be viewed as a sort of dish, a stew or soup where you put in the right ingredients. A dash of this and a sprinkle of that and a little of this. Presto! Diversity stew (remember the "melting pot" metaphor; is that used any more?).

Let's all enjoy.

But this sees black men and women and Hispanic men and women and others as spices or ingredients - objects - and not real human beings with each having his or her unique experiences. We need the black spice because black spice tastes like "X". But does it really? Yeah, it's black but it's so much more than that. And does it have to taste just the way you want?

And of course what usually happens is the the black spices stay on one side of the pot and the Hispanic on another; there isn't a mixing of the ingredients.

Even worse, the general view on the left is that if you're black or Hispanic or female you must think like a black person or a Hispanic or female. That is, have the right view. If you don't then you're not a "real" spice.

If you deliberately planned to screw up the thinking of a group of people, to retard their intellectual development, you couldn't do better than to do this to them.

Peter said...

The "legal theory" of Affirmative Action appears to be, whatever the Supreme Court will accept to justify it. Should the Court hint that it no longer cares for this theory but might accept another then "legal theory" will shift accordingly.

Which is to say, "theory" in this case is all about whatever works, and that's all there is to it
.

It's sort of like what happens when one asks a salesperson to define "quality," as in "what is a quality product?" To a salesperson, "quality" has little if anything to do with a product's performance, durability, reliability, or fitness for whatever purpose the buyer may have in mind when buying it; rather, a "quality product" is whatever can be profitably sold.

And so, too, with the "legal theory" of Affirmative Action.