April 10, 2012

An ignorant post on race-based admissions

By Joshua P. Thompson Senior Attorney

Baylor Law School accidentally released admissions data on its incoming class.  This data included all of the personal information that is normally kept confidential by law schools — LSAT score, GPA, addresses, and race/ethnicity.  Accordingly, it was quite simple to see the scale of preferences that Baylor Law was granting to students of certain races, and superficially it appeared as if Baylor’s race-based preference was not that large.   And, for that reason, over at Above the Law, Elie Mystal castigates those of us who oppose race-based preferences.  He writes:

So, all the hand-wringing from some white people and conservatives and Chief Justice Roberts, people who act as if affirmative action is somehow the racial Waterloo for white people in America, concerns about three or four LSAT points at a middle-of-the-pack private law school in Texas. That’s what we’re fighting over, folks. Sorry. 

Mystal’s post really demonstrates his ignorance of the arguments for equality under the law.  I take him to task after the jump.

First. To state the obvious, Mystal’s ugly stereotype that it’s just “some white people” that oppose racial preferences is wholly false — not to mention demeaning to those persons of color who stand up for equality. To my mind, the most powerful voices against racial preferences are those African-Americans who grew up in a system where they were treated as second class citizens.  Thomas SowellWard ConnerlyWalter WilliamsClarence Thomas.  Maybe Mystal should read this piece in the Chicago Tribune by Esther J. Cepeda — a Latino who was constantly reminded that she was Latino.   Put simply, treating people differently because of their skin color is not a black/white issue.  To those who oppose racial preferences, it’s a moral one.

Second.  Piggybacking on my last point, ethnicities that are affected by admissions preferences today are — at least as frequently — Asians (detrimentally) and Latinos (favorably).  Accordingly, Mystal completely misses the mark when he writes:

After 300 years of slavery in America, 100 years of legalized segregation and oppression, and not one generation removed from not being allowed to go to school with white children, the conservative establishment wants to deny opportunity to the black and brown children of this country based on three or four points on a standardized test?

What justification does Mystal have for treating Asians so wrongly?  After forced exclusion of Chinese-Americans from business and industry, after denying Chinese-Americans the right to vote, after brutally forcing Japanese-Americans out of their homes, after forbidding all Asian-Americans from owning land, after capping the number of Asians that could immigrate to the United States, after banning Chinese immigration outright, what justification is there for discriminating against them?

Third. While Mystal’s Above the Law post is mysteriously devoid of any legal analysis, it is important to note that his argument has been completely foreclosed by the Supreme Court.  The Supreme Court has rejected the notion that racial preferences can be justified by generally pointing in the direction of past societal discrimination.  [The Supreme Court has sanctioned “diversity” as a compelling interest in university admissions.  Accordingly, only the “diversity rationale” can be used to discriminate on the basis of race, and that rationale is hanging by the thinnest of threads.]  But even the inventor of the diversity rationale, Justice Powell, rejected the rationale put forth by Mystal.  In Bakke, Justice Powell wrote:

There is no principled basis for deciding which groups would merit “heightened judicial solicitude” and which would not. Courts would be asked to evaluate the extent of the prejudice and consequent harm suffered by various minority groups. Those whose societal injury is thought to exceed some arbitrary level of tolerability then would be entitled to preferential classifications at the expense of individuals belonging to other groups. Those classifications would be free from exacting judicial scrutiny. As these preferences began to have their desired effect, and the consequences of past discrimination were undone, new judicial rankings would be necessary. The kind of variable sociological and political analysis necessary to produce such rankings simply does not lie within the judicial competence — even if they otherwise were politically feasible and socially desirable.

Fourth. As Roger Clegg points out, it’s not just a matter of the Constitution, the justices were right:

[T]he justices were right to [reject past discrimination as a compelling interest].  There is no reason to use race as a proxy for social disadvantage.  Most African Americans who benefit from admissions preferences are from middle-class or upper-class backgrounds; there are plenty of whites and Asians who are poor.  What difference does it make if a student asserts that his disadvantage can be traced to his ancestors’ suffering under Jim Crow rather than the fact that his ancestors were fleeing a tyrannical regime or grew up in Appalachia or some other cause.

It should make no difference, Mr. Clegg.

Fifth. As pointed out extensively by Ted Frank on Point of Law, Mystal isn’t even being completely forthright with his interpretation of the Baylor data.

[Mystal] is wrong for a couple of reasons. First, there’s an iceberg effect; the spreadsheet doesn’t have the data of the people who were rejected for admission. If a 3.7 GPA/162 LSAT gets a white a 30% chance of admission, but an African-American a 90% chance of admission (or vice versa), then there’s racial bias with real adverse effects on the disfavored race, even if the averages in the admitted student body doesn’t show a lot of disparity.

Frank goes on:

To translate into English, a bump of GPA of 0.1 is worth, on average, $2679 in scholarship money; a single LSAT point is worth $2190. But that does not compare to the scholarship money awarded for being a Star-Bellied Sneech with the power to Bestow The Experience Of Diversity upon Lithuanians and Macedonians and Jews who would otherwise be deprived. Checking the African-American box on your Baylor Law application is worth $9575/year, all else being equal; Hispanic heritage is worth $7023. In other words, if you were a white with your heart set on a scholarship to Baylor Law, and a magical genie offered you the choice of increasing your LSAT score by 4 points or changing your skin color, you’d be better off financially with the latter option.

So, not only is Mystal wrong by failing to account for those students who were not admitted, but he also ignores the real difference in cost of attending law school to those students who are admitted.

Sixth.  The minor nature of the preference does not signal that things are not that bad.  Instead, the minor preference signals that using race is not necessary.  The University is treating people differently with respect to race, and the minor nature of the preference suggests that they don’t need to.  As Chief Judge of the Fifth Circuit Edith Jones recently said in Fisher:

It is one thing for the panel to accept “diversity” and achieving a “critical mass” of preferred minority students as acceptable University goals. It is quite another to approve gratuitous racial preferences when a race-neutral policy has resulted in over one-fifth of University entrants being African-American or Hispanic.

In other words, why discriminate when you don’t have to?

Seventh. Even if Baylor Law School doesn’t use preferences on a large scale, that does not mean that other universities aren’t using extremely large race-based preferences in their admissions.  Down the road at the University of Texas, an Asian student has to score, on average, over 150 points higher on his or her SAT to gain admittance. At the University of Wisconsin, a black student has an odds ratio of 576:1 of gaining admittance over a white student with similar SAT and GPA.  So, just because this university’s discrimination is relatively minor, does not mean, as Mystal suggests, that the same holds true for all universities.

Eighth.  Mystal forgets to mention the elephant in the room. What if preferences actually hurt minority success? What if by granting race-based admissions preferences, universities are actually creating fewer black lawyers, engineers,and college graduates? How would Mystal justify race-based system when those individuals getting 4-point bump in the necessary LSAT score, do worse than those who don’t get a preference?

Ninth.  Lastly, Mystal never mentions the real harms that are associated with racial preferences.  As noted earlier, racial preferences may actually harm their intended beneficiaries directly (by making it harder for them to achieve).  In addition to that, there are a host of other negatives that are attributable to racial preferences. Racial preferences create resentment; they stigmatize the so-called beneficiaries in the eyes of their classmates, teachers, and themselves, as well as future employers, clients, and patients; they foster a victim mindset; they require stereotyping; they paper over the real social problem of why so many African Americans and Latinos are academically uncompetitive; and they get states and schools involved in unsavory activities like deciding which racial and ethnic minorities will be favored and which ones not, and how much blood is needed to establish group membership.  In other words, treating people differently on account of skin color is inherently pernicious.

At Pacific Legal Foundation, we are fighting daily for equality under the law.  Often that means litigating in courtrooms across the country, but it also means responding to some of the more outrageous claims from the pro-preference clique in the court of public opinion.  Though Mystal will probably attribute this post to a “hissy fit” from “some white person,” it is our side that values equality over skin color.

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