Part of the Left’s grouchy reaction to the Supreme Court’s recent blow to race-based college admission practices has been to ask why “legacy” points for the kids of alumnae aren’t discriminatory as well.
As restated by Mark Rosenbaum, one of the ACLU lawyers who argued the case before the Supreme Court, the ban “unfairly keeps students from asking universities to consider race as one factor in admissions, but allows consideration of factors like legacy status, athletic achievement and geography.”
And high school marks and SAT scores, too. Rosenbaum apparently thinks the Supreme Court can only prohibit universities from considering race as a factor in admissions if they also prohibit all factors used to distinguish one applicant from another. Colleges must apply some criteria, and any criterion is by definition a standard by which something is to be judged, and judgment means discriminating between one thing and another.
But not discrimination based on race.
Leaving aside what Rosenbaum knows perfectly well, that the contestants in Schuette vs. BAMN never asked the court to rule on the “fairness” of legacy admissions or factors like athletics, liberals like Rosenbaum, Justice Sotomayor, and others are deliberately pretending America never crossed a legal and historic Rubicon expressly on the subject of discrimination based on race. Prohibiting the granting or denying of public accommodations based upon skin color was the entire focus of the Civil Rights era. America collectively adopted the proposition that race must not be a factor in anyone’s standing in society or before the law. It’s what we all agreed to, including the Left, who like to believe racial equality was all their idea.
At least the Left agreed until last week, when the new dogma was promulgated that we have to apply a racial standard to everything.
As Justice Sotomayor’s dissent was summarized in the Washington Post,
by passing a constitutional amendment forbidding consideration of race, [Sotomayor] wrote, Michigan had made it harder for minorities to reach their goals. Her example:
“A white graduate of a public Michigan university who wishes to pass his historical privilege on to his children may freely lobby the board of that university in favor of an expanded legacy admissions policy.”* But “a black Michigander who was denied the opportunity to attend that very university cannot lobby the board in favor of a policy that might give his children a chance that he never had and that they might never have absent that policy.”
But what Sotomayor ignores, is that every black Michigan university graduate “who wishes to pass his historical privilege on to his children” has the identical opportunity to lobby the university as the hypothetical “white graduate.” That’s because race doesn’t matter in legacy admissions policies.
And any university graduate might take issue with Sotomayor’s labeling alumni status as an “historical privilege,” as if alumni status is conferred on white kids as a door prize just for having white parents. Even in white families, like mine, there was no historical privilege: someone had to be the first one in the family to compete with the legacy kids and earn admittance to U of M (in our case, my brother), and then earn a degree to gain the status to pass on to his children.
To detour around this washed-out logical bridge, liberal megaphones like Media Matters are arguing that legacy admissions must be racial preferences, too.
According to The New York Times, "among legacy applicants for Princeton's class of 2015, 33 percent of those offered a spot were the children of alumni." And it wasn't just Princeton -- Harvard admitted about 30 percent of its legacy applicants, and Yale admitted between 20 and 25 percent. These "legacy preferences" can and should be considered a form of "racial preference," since those students are "overwhelmingly white and wealthy."
Except legacy preferences can’t be racial preferences, for the simple reason that they offer precisely the same advantages to black legacy applicants as to white ones. Obviously, the black Michigander -- or any other person of any race or sex who never attended that public university for whatever reason – isn’t going to be able to lobby that university for a legacy admission. On the other hand, President Barack Obama, to take one instance, can, and almost certainly will, use his status as a Harvard graduate to get his daughters admitted if that’s where they want to go.
The circumstantial test for discrimination (where there’s no direct evidence of it) means showing the disparate treatment of two persons otherwise so similarly situated that it’s reasonable to infer the disparity is explained by discriminatory animus. Because Justice Sotomayor’s hypothetical unfairly poses two dissimilar people – a white graduate of a public university versus a “a black Michigander who was denied the opportunity to attend that very university,” the comparison is misleading, and the resulting logic circular. The insinuation that blacks are being “denied” university admission because of race isn’t even an allegation before the court in this case: even worse, the suggestion is monumentally unfair to Michigan public universities, including the University of Michigan, which admitted its first black student in 1853. Justice Sotomayor then builds on that insinuation to explain the failure of her hypothetical Michigander to be admitted as “a chance that he never had and that [his children] might never have absent” the policy of race-based preferences. She ends up begging the whole question of the case to justify her own dissent.
Because no one’s offered a scintilla of evidence that legacy policies are being applied unequally based on race, liberals will object that the fact that the pool of graduates of elite universities is disproportionately white and wealthy, legacy admissions must represent a policy of “racial preference.” They may as well say that the overwhelming proportion of white children born to white couples shows a policy of racial preference. Clearly, as more and more qualified black applicants get into elite universities and graduate, it’s inevitable that the proportion of their children availing themselves of legacy admissions goes up, too.
This theory of discrimination is known as “disparate impact.” It presumes that, wherever facially neutral policies have a greater negative effect on minorities, a claim of discrimination can be made even without any evidence of any intention to discriminate. Liberals love the disparate impact theory because it can be used to attack virtually any unfair outcome in the life of a minority as the result of racism. Consider Brooke Kimbrough, the Detroit high-schooler who didn’t get into U of M because her grades and test scores weren’t good enough, and now figures that makes her Harriet Tubman: “I will make it my civic duty to document every noose of a rejection letter that the university produces to our black, brown and red bodies!” (Rally produced and directed by BAMN, of course).
What others have documented is that in the states that have gotten rid of racial preferences, the percentage of minorities who earn admission to elite schools and then graduate – and consequently make their own kids eligible for legacy advantages – goes up. Under the old race-based regime unprepared minorities were getting into top schools through preferences, and then flunking out in disproportionately high numbers.
Frank Beckmann cited The Journal of Blacks in Higher Education for the demonstrated improvement in outcomes for black students at University of Michigan as a result of ditching affirmative action:
In 2006, the year Michigan voters passed the ban on affirmative action for college admissions, the research revealed black students had a 67 percent graduation rate under the old rules of racial preferences, a finding that the journal called “poor” and “disturbing.”
Seven years after passage of Proposal 2 in Michigan, that number of African-American graduates had increased to 78 percent.
That’s a 16 percent increase after the school stopped using race preferences. (“Michigan must let affirmative action die”).
Research has shown that “the mismatch of students to their college academic requirements is responsible for blacks dropping out of fields like science and engineering at a rate twice that of white students.”
But the liberal scheme is to simply correct the disproportion by forcing equality of numbers through quota systems and race-based preferences. Writes Beckmann,
“The new scheme to impose racial preferences is to convince colleges, starting with the University of Michigan, to stop considering ACT and SAT test scores in determining the qualifications of applicants for college.” Or better yet, go back the old quota system. Putative victim Brooke Kimbrough boils it down: “U-M needed to ‘represent the state. Blacks are about 14% of the population, so [enrollment] should be 14% roughly.’”
Is that really the best thing for Michigan’s black students?