December 17, 2018
The original 12/17/18 version of this essay overlooked the SFFA lawsuit’s concluding request for a completely color-blind “decisional process” and therefore offered several unwarranted criticisms of Elise Boddie’s 10/10/18 op-ed. The author and the CRB apologize for these criticisms, and wish to thank Professor Boddie for calling their attention to the above-mentioned error. The version below has been modified.
fter “diversity” was wedded to affirmative action in the 1980s, it became an amazingly protean word. When defending racial/ethnic preferences in higher education, unfortunately, the “mainstream media” regularly appeal to diversity in an intellectually irresponsible manner that obscures key issues—and exacerbates polarization. One could offer numerous examples from the Chronicle of Higher Education, the New York Review of Books, the Washington Post, the New Yorker, the San Jose Mercury News, the New Republic, the Nation and Time. I shall focus my discussion, however, upon several recent op-eds in the New York Times, two of which were written by law professor Elise C. Boddie. Boddie nonetheless deserves ample gratitude for highlighting an unreasonable and potentially destructive demand proffered by the Students for Fair Admissions (SFFA) lawsuit against Harvard, which is currently playing out in Boston’s Federal District Court.
The title of Boddie’s 10/10/18 op-ed, “A Damaging Bid to Censor Applications at Harvard,” reflects an alarming passage from the very end of the filing: the request for a “permanent injunction requiring Harvard to conduct all admissions in a manner that does not permit those engaged in the decisional process to be aware of or learn the race or ethnicity of any applicant for admission.”
Boddie wisely warns us of pernicious consequences that could ensue if the court provided such relief to SFFA. Harvard’s admissions officers, for example, could encounter piles of “heavily redacted” applications scrubbed of “all references to an applicant’s race,” while applicants would refrain from “writing about icons like Dolores Huerta” or from mentioning their “leadership roles in their high school’s Latino Student Alliance.”
It is extremely difficult to imagine how a large and highly selective school such as Harvard could conduct “all” of its admissions processes while ensuring that no one in “the decisional process” will learn the race or ethnicity of “any” applicant. Because names—especially for Asian-American and Latino students—often reverberate loudly, Harvard College would presumably have to number (or provide codes names for) all of the 35,000+ students who apply in a typical year. It would likewise need to scrub names from recommendation letters and from profiles of prospective athletes. And such profiles—along with videos of stellar musicians, details about valedictorians and prize-winning debaters, etc.—would have to be purged to remove features that could reveal the applicant’s name or photo. There could also be serious problems with interviews and tours.
Although the early portions of the SFFA suit recommend the “outright prohibition of racial preferences in university admissions,” they also admit that society may employ racial preferences “as a last resort.” Nothing in the brief, however, justifies the scope of the final plea regarding the “decisional process.” In an academic or policy piece, a conclusion should integrate smoothly with the prior material. I am told by lawyers, however, that an implausible pitch for “relief” in the concluding “Wherefore” section of a lawsuit would not discredit the suit’s other demands.
Edward Blum, the founder of SFFA, also promoted the lawsuit submitted by Abigail Fisher against the University of Texas. None of the briefs submitted by Fisher, however, even suggested that admissions personnel be prohibited from learning about the race or ethnicity of applicants. Nor did the briefs submitted on behalf of Jennifer Gratz and Barbara Grutter in the famous 2003 Michigan cases. And even though the Supreme Court in Gratz v. Bollinger struck Michigan's undergraduate plan, which automatically gave a large boost to every applicant who checked the appropriate identity box, no one discussed “blinding.” We can only speculate about what led SFFA to suggest such a far-reaching rejection of affirmative action.
Boddie’s op-ed, unfortunately, sometimes exaggerates the threat the suit poses. First, Boddie errs in claiming that the suit asks the court “to bar colleges” from becoming “aware of” an applicant’s race. That request is directed specifically at Harvard, a hyper-selective school that has a particular history regarding its Asian-American applicants. Boddie, moreover, traffics in crude stereotypes when she claims that “the Asian-American students who have brought the case” argue that colleges should focus “only on grades and standardized test scores” (Noah Feldman errs similarly in “Justifying Diversity,” New York Review of Books, 12/6/18, 28.) The filing includes numerous passages that smile on the consideration of athletic and musical achievements, leadership roles, volunteer work, and related matters, not to mention socioeconomic disadvantage.
Scholars who criticize racial preferences in higher education almost invariably recommend that specific applicants be given credit for overcoming racially-linked adversities.* The lawsuit echoes such scholars by encouraging Harvard to promote racial/ethnic diversity in a color-blind manner by eliminating preferences for students whose parents are alums or large donors, and by mimicking states such as California and Texas that give preferences based on region and socioeconomic disadvantage.
The Times did publish a letter protesting Boddie’s op-ed. After signaling that he supports racial preferences and is “skeptical” about the SFFA lawsuit, the author (Professor Jonathan Zimmerman) faults Boddie’s posture towards the students filing the suit. Boddie “condescends to the plaintiffs,” Zimmerman notes, by depicting them as “pawns” of Edward Blum. “If you believe in human equality,” the letter concludes, you must assume that your opponents have “their own honest reasons for thinking and acting the way that they do.” Zimmerman, unfortunately, says nothing to challenge Boddie’s presumptuous and inflammatory assertion that Blum’s “real purpose” in the Harvard case is “to deepen inequality in higher education.”
Zimmerman’s letter also ignores the hyperbole Boddie directs against Shelby County v. Holder, another case Blum strove to advance. Although Boddie states that Shelby County “gutted voting rights for people of color,” it did nothing to remove or reduce voting rights. States are still prohibited, for example, from imposing a “qualification,” “prerequisite,” “practice,” or “procedure” that would cause a “denial or abridgement” of someone’s voting rights “on account of race or color.” The Voting Rights Act, as amended, also continues to ban literacy tests and to require multilingual ballots. By removing the “pre-clearance” requirements for nine specific states (and for selected localities in other states), however, Shelby County certainly makes it easier for them to adopt policies that obstruct voting.
Boddie also targeted Blum in a 2015 New York Times op-ed. In doing so, she anticipated the blemishes that mar her 2018 op-ed. While defending the University of Texas in the Fisher case, Boddie characterized critics of racial preferences as “opponents of college diversity” whose efforts display America’s “impatience with racial inclusion.” This accusation implies that Clarence Thomas, Thomas Sowell, and other defenders of color-blindness would prefer that student bodies be 100% WASP; it also dismisses the relevance of diversity constituted by differences in religion, age, wealth, health, political orientation, disciplinary specialization, artistic potential, and athletic prowess.
To fathom the distortions in Boddie’s op-eds, one could begin by revisiting the color-blind principles mandated by the 1964 Civil Rights Act. Title VII, Section 703a, forbids businesses (in any “industry affecting commerce”) from discriminating against anyone—regarding “compensation, terms, conditions, or privileges of employment”—with regard to “race, color, religion, sex, or national origin.” The vast majority of American colleges and universities are in turn constrained by Title VI, which bans racial discrimination in “any program or activity receiving federal financial assistance.”
The Times later printed a second Fisher-related op-ed in which a defender of diversity—astrophysicist Jedidah C. Isler—caricatured defenders of color-blindness. Isler was reacting primarily to two questions that Chief Justice Roberts had posed in oral argument regarding the Fisher case: “What unique perspective does a minority student bring to a physics class,” and “what [are] the benefits of diversity . . . in that situation?” Isler responded by condemning “the tacit implication that black students must justify their presence at all,” and exhorted us not to “limit the physics classroom to white students.”
No sane American argues that students of color need higher grades/scores than do whites, or that they must offer special explanations of their worthiness. No minimally decent person would propose such things—or even think about prohibiting non-white students from studying physics. Roberts posed his two questions because, post-Bakke, the Supreme Court has required public colleges and universities to justify racial preferences in terms of the broad educational benefits that emerge from having a diverse student body. The four justices who would have upheld the UC-Davis quota (Brennan, Marshall, White, and Blackmun) were inclined to emphasize other considerations, particularly the urgency of countering the effects of longstanding societal discrimination.
Perhaps the Claremont Institute and the Heterodox Academy should train Diversity & Inclusion consultants who could work with the editorial board of the New York Times. In addition to the three op-eds I have criticized, the Times has been publishing racist statements by professors, the most dramatic being this bald assertion by Michael Eric Dyson, the Georgetown sociologist: “Whiteness is blindness.” Editorial Board member Sarah Jeong, meanwhile, has tweeted that “white men are bullshit” and that she experiences amazing “joy” from “being cruel to old white men.”
The SFFA case is much more complex than was Bakke or Gratz, and I commend Harvard’s efforts to include students from disadvantaged racial/ethnic groups and to prepare its graduates for life in a multicultural society. Boddie, furthermore, made a major contribution by highlighting the extremism of SFFA’s concluding pitch regarding “the decisional process.”
Boddie may also be wise in arguing that certain color-blind policies can remove opportunities “to build bridges across communities” and make it harder for students to “learn from people who are different.” Her rhetorical excesses, however, belie both of these noble concerns. When we defend affirmative action, we must be meticulous regarding facts, and we must acknowledge the legal obstacles entailed by the Civil Rights Act. When the context is higher education, moreover, we must do our very best to use words precisely, to fathom the arguments made for color-blindness, and to avoid demonizing our opponents.
* Dean William Fitzsimmons, in his testimony during the first week of the trial, asserted that Harvard rewards race only when it shapes the lives of candidates who, for example, had “overcome and surmounted” racially-linked “obstacles.” Also see Nell Gluckman, “Harvard’s Admissions Trial Opens with Arguments on Diversity,” Chronicle of Higher Education, 10/15/2018. The two admissions schemes disallowed by pivotal Supreme Court decisions—Regents of the University of California v Bakke (1978) and Gratz v. Bollinger (2003)—were much cruder. At the UC-Davis medical school, 16% of the first-year seats were reserved for the targeted groups; at the University of Michigan, every undergraduate applicant who checked one of the designated racial/ethnic boxes received 20 points toward the 100 points that normally guaranteed admission (no applicant could receive more than 150 points).