Repeal of race preference programs: Effects on Asiansandpublicreactions

[Rick Duncan]

Trevor: When I use the term "on the merits" I mean whatever qualifications (not including racial characteristics) that educators believe are relevant. If we were to redact race from applications, you can look at GPAs, at test scores, at essays, at experience, at volunteer activities, and at whatever else you think would make for an excellent student. I would live with whatever resulted from such a process (even though I might quibble about this or that qualification--I am not personally a big fan of alumni and geographic preferences, for example).
   
  I mean it the same way MLK meant it when he said he wished his children to be judged on the content of their character, not on the color of their skin. Me too!
   
  But when a black child of two MDs is admitted and given a full scholarship over a white child from a non-privileged home, because the former is a member of a disadvantaged minority group, something is rotten in the state of Allen.
   
  Rick

Trevor Morrison <trevor-morrison at lawschool.cornell.edu> wrote:
        To Rick and others who seem to be using the term:  what, exactly, does it mean to admit someone "on the merits"?  As far as I can tell, the term is not being used to mean "without regard to any unearned advantages."  So what does it mean?   
   
   

    Trevor W. Morrison
Associate Professor of Law
Cornell Law School
116 Myron Taylor Hall
Ithaca, NY 14853
ph. 607.255.9023
fax 607.255.7193
SSRN author page:  http://ssrn.com/author=372569

  
  
---------------------------------
  From: conlawprof-bounces at lists.ucla.edu on behalf of Rick Duncan
Sent: Tue 11/28/2006 12:46 AM
To: CONLAWPROF at lists.ucla.edu
Subject: Re: Repeal of race preference programs: Effects on Asiansandpublicreactions


    In response to Steve: Coincidentally, I am teaching the Michigan cases this week, and on the blog I maintain for my class, I posted the following, which attempts to respond to the issue that AA does not harm students like Ms. Gratz:
   
  Are Racial Preferences Benign? How About Treating Them as Takings That Require Just Compensation?     
  Here is what I would like you to think about concerning our class discussion of racial preferences, particularly as part of the educational admission/financial aid process.

Some supporters of AA argue that using race as a "plus" is benign in the sense that it helps some deserving students without harming anyone else? They argue, for example, that Jennifer Gratz was probably not denied a seat in the class at Michigan, because she was only one of many white students whose applications for admission were rejected.

How about a hypothetical to illustrate this issue!

So let's assume that an elite state law school has, say, 3500 applications for a first year class of 250. The school admits 180 students (including 5 minority applicants) with very high GPAs and LSATs "on the merits," and 70 students with much lower academic credentials who receive a substantial racial "plus" based upon their status as minority applicants.

And lets say that 1000 white applicants with very good GPAs and LSATs (lower than the 180 "merit" students, but quite a bit higher than the 70 students who received the racial plus) are denied an offer of admission.

Questions:

How many of the 1000 rejected students actually lost a seat in the class?

How many of them believe they were unfairly denied a chance at a seat in the class on the basis of their race?

Is this belief concerning unfair treatment reasonable? Why or why not?

Is there some way that the state university could address the real harms caused by AA (both the lost seats and the lost opportunity to compete without regard to race) without sacrificing the racial diversity that some believe is critical to the university's educational mission?

How about treating racial prefences as a kind of taking that require just compensation? Here is an idea I posted to a conlaw professors listserv:

I don't have a problem with the ends of racial diversity, just with the means of using racial preferences to redistribute opportunities from young adults of one race to young adults of another race.

Why should we single out a few young adults to pay for the costs of a "compellingly" important social goal? Why shouldn't all of society bear these costs in the form of taxes? So why not view AA as a taking that requires just compensation. Here is how it might work in the admissions area.

First, make admissions decisions on the basis of all relevant factors without taking race into account (this might require redacting admissions applications to prevent admissions committees from knowing the race of applicants).

Now after you have your "on the merits" class, proceed to apply the racial preferences by taking some seats away from the first admitted class and awarding those seats on the basis of the racial preferences. So lets say applicants 1-20 are chosen to be the sacrificial lambs whose seats are taken and transferred to the minority applicants. Why not treat this as a taking and pay applicants 1-20 some just compensation (say, $10,000 to 20,000) for the lost educational opportunity. Is it not far better to share the sacrifice among all the state's taxpayers, than to impose the full cost of diversity on the few young adults who were chosen on the basis of their race to give up the seat they had earned on the merits?

Isn't this a less restrictive means, even if it ends up with a rather steep price tag and the political costs of raising taxes to pay the bill?

What do you think? Is this a less restrictive means of advancing the goal of racial diversity in education without imposing racial harms on innocent bystanders? Notice that it addresses both kinds of racial harms discussed above. All students get an equal opportunity to be admitted without regard to race under the first admissions process. Students not admitted under the first step know that they were not denied admission on the basis of race, so we no longer need to consider their complaints. We know which students were harmed by the racial plus factor, and we proceed to compensate them economically and send them on their way to the school that is their second or third choice.

What are your thoughts?
   
  Rick Duncan

Steven Jamar <stevenjamar at gmail.com> wrote:
  There is a surreal aspect to all of this.

It seems to me that most whites don't accept the idea of white 
privilege or of structural racism or the advantage that wealth gives 
as a class, though they see it (even Rick sees it) when the wealthy 
get ahead in ways the less wealthy don't or where wealth eases the 
path at the very least.

It seems to me that most whites do have the simple gut level feeling 
and understanding that they themselves have done nothing wrong and 
so why should they be in anyway visited with the sins of the prior 
generations or of the whole class of white people?

It seems that that gut feeling gets catalyzed into resentment when 
some perceived slight has occurred, regardless of how realistic or 
rational that perception of actual harm is. (Gratz most likely would 
not have been admitted regardless of any racially aware admissions 
policy).

When we try to argue statistics and class against that subjective 
internal feeling, statistics and class and structural racism loses 
every time in the hearts and minds of those who have not studied it 
and indeed in the hearts and minds of some who have.

But, that does not make it any less real. The disparities are real. 
The wealth maldistribution is real. The number of black lawyers 
compared to the black population is grossly under represented.

Some of us believe in transforming society through law and policies 
and actions based on groups and statistics. Some of us believe that 
we are utterly autonomous and Justice Thomas-like did it all 
ourselves. Most of us are somewhere in between. Like O'Connor: 
don't like it, but can't deny the lingering problems and the need for 
continuing efforts to transform society to include everyone and to 
give everyone an equal opportunity cradle to grave.

We are our brother's keeper.

Steve

-- 
Prof. Steven D. Jamar vox: 202-806-8017
Howard University School of Law fax: 202-806-8567
2900 Van Ness Street NW mailto:stevenjamar at gmail.com
Washington, DC 20008 http://iipsj.com/SDJ/

"Nothing that is worth anything can be achieved in a lifetime; 
therefore we must be saved by hope."

Reinhold Neibuhr

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    Rick Duncan 
Welpton Professor of Law 
University of Nebraska College of Law 
Lincoln, NE 68583-0902
   
  
"It's a funny thing about us human beings: not many of us doubt God's existence and then start sinning. Most of us sin and then start doubting His existence."  --J. Budziszewski (The Revenge of Conscience)
   
  "Once again the ancient maxim is vindicated, that the perversion of the best is the worst." -- Id.

    
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  Rick Duncan 
Welpton Professor of Law 
University of Nebraska College of Law 
Lincoln, NE 68583-0902
   
  
"It's a funny thing about us human beings: not many of us doubt God's existence and then start sinning. Most of us sin and then start doubting His existence."  --J. Budziszewski (The Revenge of Conscience)
   
  "Once again the ancient maxim is vindicated, that the perversion of the best is the worst." -- Id.


 
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