"Affirmative action era is over, longtime foe says"?/After this victory, what?

Wed Nov 29 07:38:20 PST 2006

Professor Levinson's message allows me to restate a single question.   If affirmative action is over, what is to happen in the remainder of O'Connor's 25 years?   What you do think is going to happen in the United States as we know it over the remainder of the 25 years?

MH

-----Original Message-----
From: SLevinson at law.utexas.edu
To: nebraskalawprof at yahoo.com; conlawprof at lists.ucla.edu
Sent: Sun, 26 Nov 2006 5:24 PM
Subject: RE: "Affirmative action era is over, longtime foe says"

I recommend that people read the following article in today's Boston Globe, concerning a lawsuit filed by a Yale first-year student, Jian Li, against Princeton (which rejected his application).  He claims systematic discrimination against Asian-Americans.  For almost three decades now, white students have been explaining their failure to get into, say, the University of Texas Law School on the basis of our having preferential programs for African-Americans and Mexican-Americans.  (It should be immediately obvious that very few of the rejected white students would actually have been admitted even if there were no African-American or Mexican-American admittees, simply because there are so many more of the former than the latter, but that is irrelevant to the victimization narrative that white rejects like to portray.)  I'm curious what the response will be if the consequence of getting rid of affirmative action will be a giant leap in the admissions rate of Asian-Americans and!
  the continued difficulty of many whites to get into the relatively few selective universities that actually practice race- or ethnic-oriented affirmative action (as opposed to the far more important legacy and athletics preferences).  Indeed, I wonder what will happen in Michigan if an increasing number of Arab-Americans from Dearborn choose to apply and gain admission to the University. 

None of this is meant as an argument against getting rid of affirmative action, though I continue to be an ambivalent supporter.  My own view is that its life is limited far less because of Ward Connerly than because of the increasing presence of "mixed race" persons who bring out the problematic features of how we decide who is eligible for such preferences in the first place.  (The most powerful critique of affirmative action, in my opinion, can be found in Justice Stevens's Bakke opinion evoking the Nuremberg and South African laws regarding racial definition.)

http://www.boston.com/news/globe/ideas/articles/2006/11/26/victim_of_success/

In the late 1980s, in response to complaints, the Office of Civil Rights investigated whether Harvard had been discriminating against Asian-Americans. It found that while Asian-Americans faced longer odds than whites at admissions time (a 13.2 percent acceptance rate, compared with 17.4 percent for white students, from 1979 to 1988), the difference could largely be explained by the fact that few were legacy kids or recruited cornerbacks. The investigation did, however, turn up some embarrassingly stereotypical descriptions of rejected Asian students in Harvard records ("he's quiet and, of course, wants to be a doctor").

To bolster his case, Li has cited work by two Princeton researchers, Thomas Espenshade and Chang Chung, that was originally framed as strengthening the case for affirmative action. In articles published in 2004 and 2005 in Social Science Quarterly, Espenshade and Chung analyzed the admissions fates and qualifications of 45,500 students who applied to three very elite, unnamed universities in 1997.

The chief finding, according to the authors, was that ending all admissions preferences -- for athletes, legacy kids, and minorities -- would cut the number of black students at elite colleges by two-thirds, and Hispanic enrollment by one-half. Ending just legacy and athletic preferences, meanwhile -- something often proposed by egalitarians -- would, on its own, not help black and Hispanic students much.

But Li's complaint draws attention to other aspects of the study: Asian-American students faced by far the lowest admissions rates of any ethnic group (17.6 percent, compared with 23.8 percent for whites, 33.7 percent for blacks, and 26.8 percent for Hispanics). What's more, contrary to the Office of Civil Rights report from 1990, legacy and athletic preferences trimmed Asian-American enrollment by only a few percentage points. But if preferences based on race, legacy status, and athletic talent were all done away with, Asian-American enrollment would jump 40 percent (while white enrollment would drop by 1 percent). To Li, it seems Asian-Americans alone bear the burden of affirmative action.

-----Original Message-----
From: conlawprof-bounces at lists.ucla.edu on behalf of Rick Duncan
Sent: Sun 11/26/2006 3:33 PM
To: conlawprof at lists.ucla.edu
Subject: "Affirmative action era is over, longtime foe says"

>From today's LA Times <http://www.latimes.com/news/local/la-me-connerly26nov26,0,5468311.story?coll=la-home-local> . Here is an excerpt:

As Ward Connerly sees it, the demise of affirmative action in America is fast approaching.

Buoyed by the victory this month of the Michigan ballot measure banning racial preferences in public education and hiring, the former University of California regent is ready to take his crusade to the rest of the nation.

Connerly talks enthusiastically of an "anti-affirmative action wave washing over America" that will wipe out the race-based preferences used for decades to help African Americans, Latinos and other disadvantaged ethnic groups.

"I think the end is at hand for affirmative action as we know it," he says.

For his next target, the conservative activist is considering sponsoring a ballot measure in one or more states, including Oregon, Nevada, Arizona, Utah, Missouri or South Dakota. "We don't have to go to every state if we can get a critical mass of seven or eight states," he says.

I hope he adds Nebraska to the list.

Cheers, Rick Duncan

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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