I don't want to talk about affirmative action. It's a messy,
horrible topic.
I just don't want to talk about it. But earlier this month,
the New York Times reported on a new Jeff Sessions initiative to hire political
appointees for the DOJ's Civil Rights Division for "investigations and
possible litigation related to intentional race-based discrimination." By
"intentional race-based discrimination," the AG means race-based
discrimination against races other than African Americans or Latinos.
And I don't want to go there. Republicans, largely speaking
off the record, see this as a win for Sessions personally, as it pleases Trump
at a time where Trump-pleasing might be important for Sessions. And it's a win
for the GOP, where affirmative action is broadly unpopular not only among party
members, but also with more moderate suburban middle and upper middle class
voters who approach the college application period with dread.
I'm still not going to going to be sucked in. Sessions'
motives and whatever political calculations they reflect are irrelevant. The
historical record on the systematic exclusion of minorities is an irrefutable
disgrace, but, when it comes to remedies, particularly their legality,
reasonable people can disagree. Either affirmative action is Constitutionally
permissible, or it isn't, and the Supreme Court gets to make that decision. To
be technical, there's no such thing as affirmative action—it's been banned by
the Supreme Court since the Regents vs Bakke decision in 1978. What has been
permitted, although narrowed by an increasingly conservative Court (see last
year's 4-to-3 decision in Fisher v. University of Texas) is that universities
can continue using race as one of multiple factors in their admissions
decisions. This is what Sessions is targeting. He really isn't talking about
pure merit—he's fine with the 21 other herbs and spices that are the alchemy of
determining an incoming Freshman—but race will be out, and he's prepared to use
the considerable power, and budget, of the DOJ to make sure it stays out.
What's next? It's not hard to predict that a lot of people
who are enthusiastic about Sessions' goal will be end up being both disturbed
and disappointed. Until the Supreme Court rules, he can't just snap his fingers
and erase any and all considerations of race in the process. And, even if he
were given an unlimited budget to pursue this, he wouldn't be able to
investigate hundreds of colleges. The best he can do in the short term is to
mount a few selective prosecutions of those he sees as excessively friendly to
minority applications, and, by extension, hope to intimidate/influence the rest
into altering their stated policies.
But here's his real problem (and it's the problem of
applicants who expect to benefit from the new policy): The existence of a
stated "pro-minority" process is easy to prove. Demonstrating the adverse
impact of it on an individual basis as means of achieving redress might be much
more difficult. To do that, to find out who really benefited and who was
"wronged," he's going to need a lot of personal and granular data on
every applicant, not just minorities, and then try to reverse engineer the
admissions calculus, substituting his own views of who is worthy for the
judgment of the school.
I suspect that this particular exercise will cause quite a
bit of unhappiness. As every parent with a high-school-aged child knows, there
are no completely objective admissions standards. There are grades, and test
results, and every other resume-stuffer that parents can think about, and then
there are the "hooks. Were Dad and Grandpa alumni? Is your family ready to
endow a Chair? Can you bench press 370 while running a 4.5 in the 40? And when
we get past those, did the school of your choice graduate out the entire tuba
section of the marching band? Is it trying to develop a specialty major, just
hire a few hot-shot professors, and need students to fill its classes? Even if
you can't build a new wing on the Engineering Building, can Mom and Dad pay
full freight, or close to it? This is data that colleges really do not want to
give and many parents would be furious if disclosed. One of the first things
they teach you in law school is don't ask a question that you don't already
know the answer to. Sessions thinks the discussion is only going to be about
race—but he's wrong, and once he (with the eventual support of the Supreme
Court) wrings race out of it, it is going to end up being about hard-wired
privilege.
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