Saturday, January 30, 2010

The BCS, Antitrust Laws and Politics

Back in October, Senator Orin Hatch wrote a letter to President Obama asking for a Justice Department probe of the Bowl Championship Series, the method currently in use to determine the national champion in Division I football. The Department of Justice acknowledged that it is reviewing the Senator's request.

I have three reactions to this.

The cynic in me wonders whether the federal government, and particularly the Department of Justice, doesn't have anything better to do with its time. Gone are the times when the Attorney General would go to Congress and explain that some federal laws would go under-enforced for lack of attorneys to enforce them (I have in mind here the debates over the Voting Rights Act back in 1965).

The college football fan in me hopes they succeed. For the life of me, I cannot understand the appeal of the BCS, nor do I, or anyone anyone, believe the arguments proffered by University Presidents against a college football playoff. The usual response is their worry that a playoff would cause too much disruption to the lives of student athletes. Tell this to college basketball players who participate in the three-week long basketball tournament March Madness -- or to the scores of student athletes who take part in playoffs for lower divisions within the NCAA, or those players who appear on ESPN night games on ESPN, some of which ended long after 11:00pm. The Presidents' want to tell us they care about the students, but their hypocrisy is too apparent.

The American citizen in me is tantalized. We know this much: Senator Hatch and President Obama do not agree on many things. After the recent State of the Union address, for example, Senator Hatch issued a statement labeling the President "stone deaf" for refusing to hear the American people on health care. He also called the President's budget for the fiscal year 2010 "simply awful."

And then there is college football and the BCS. For his part, Senator Hatch has been a longtime critic of the system. President Obama similarly said in 2008 that he was going to "to throw my weight around a little bit" to move college football towards a playoff.

Strange bedfellows, don't you think?

Maybe the BCS violates antitrust laws, maybe it doesn't. The real lessons, however, lie elsewhere. When the President reaches out to Republicans, as he recently did during a House Republican retreat, it might be a good idea to air their policy differences over a game of basketball, maybe touch football. Or perhaps they should debate our country's many problems while watching a football game.

Super Bowl Sunday might be a nice place to start.

Thursday, January 28, 2010

On Judging, Race and the Game of Basketball

I was at a girls high school basketball game last week when the most amazing thing happened. It was a game between my local high school, middle class and predominantly white, and a high school from Indianapolis, which happens to be predominantly black. The teams reflected their schools' student bodies and were mirror images of one another. The local team only had two black players, and the visiting Indianapolis team had only one white player. Their respective fans at the game were mirror images as well.

This game helped me understand many things, most notably the Ricci firefighters case, the Supreme Court's continued attacks on the use of race in public life, and even the recent Citizens United case.

However indirectly, this game is the reason the Voting Rights Act will not be among us much longer.

The game began uneventfully and remained so for some time. Over the span of a few short minutes, however, the complexion of the game changed and the Indianapolis team surged to a double-digit lead. One player in particular was clearly the best player on the floor. She could do anything she wanted. The game seemed over, and this was only the second quarter.

Then the tide changed, and it was then when things got curious.

Things got chippy, play tightened, and the local team began to chip away at the lead. What had been a 15 point lead became 9, then 5, and towards the end of the fourth quarter the game was close once again. I could give away one punch line, as it appeared in the local paper the next day. To paraphrase: the local girls high school team played with guts and great courage, hung in there, and ultimately won a hard-fought battle.

Or I could give you an alternative reality, the one deeply felt by the players and fans from the visiting team.

Go back to that time in the game when the visiting team held a double-digit lead. From that moment forward, there is no question that the complexion of the game changed. I wish I could say that one team began playing harder than the other. What I saw, and what fans from the visiting team saw as well, was a number of calls by the referees go against the Indianapolis team. Not just a few calls, mind you, but just about every close call. Whether a foul, a walking violation, or who knocked the ball out of bounds, the calls went largely to the home team.

I happened to be sitting close to a man who had traveled all the way from Indianapolis to watch the game. He was neither happy nor afraid to show it. He was clearly frustrated, at one point yelling "let us compete;" at another, "you're not letting us play!" But he was not alone. The coaches soon showed their frustration as well, and so did the players. The star player never stopped playing, mind you, but by the end of the game, you could see that her demeanor changed. She was still smiling, but it was not a confident, assertive smile. By then, it was more of an incredulous smile. She knew she was beat and there was nothing she could do to stop it. As for the fan, the last straw came with 20 seconds left, when the refs called a phantom traveling violation on the Indianapolis team. The man got up from the bleachers, mumbled some choice words, and stormed off.

This game offered alternative realities. From the same set of facts, one side rejoiced in their hard-fought victory, the other left angry and feeling cheated. The fans and players saw and experienced completely different games. If asked, both sides would argue the other side is crazy for feeling the way they did.

In the end, there was only one reality that mattered: the referees'. They made the calls, disputed or not, and there was no way to appeal them.

Now, I don't think they were biased, at least not overtly. They did happen to be white, all three of them, and most of their calls did happen to go against the Indianapolis team. But by most objective markers, something was awry (at one point, for example, the foul differential was 7 fouls to 1). One side felt it deeply; the other was indifferent, maybe incredulous.

I could not help but think of Chief Justice Roberts' balls and strikes analogy during his confirmation hearings (he would only call cases as he saw them, no differently than calling balls and strikes). If only judging were that simple.

More troubling still, what to do when our realities differ as markedly as they sometimes do, and often along racial lines?

Tuesday, January 26, 2010

On the Candidacy of Harold Ford Jr.

Guy poses two questions on Harold Ford, Jr.'s impending primary challenge: has he correctly read the political tea leaves within the state of New York; and, if he fails, is his political career over?

I am not sure how to answer either one. If pressed, I'd say that he is on the wrong side of public opinion. It is also a safe bet that a failure to win the Democratic nomination would end his political career.

But his challenge to Senator Gillibrand is much more interesting than that.

Take first the early criticisms from the left. Criticisms against Senator Gillibrand focused on her centrist and right-of-center positions on issues ranging from gun control to immigration reform. Any primary challenger hoping to unseat her would need to bring an attack from the left. This would be difficult for Ford, whose last race was state-wide, and in Tennessee no less. This is when we saw him telling Tucker Carlson, " "I'm pro-life, I'm pro-life, so I mean, I don't run from that." He also flaunted his vote for the PATRIOT Act, defense spending, and opposition for amnesty for illegals immigrants. Try running away from that. This would be a tall order even for Winston Smith.

Yet I choose to view in a more forgiving way. In fact, Ford's Senate candidacy in Tennessee and his primary challenge in New York ask us to think hard about the concept of representation. What is it that we want and expect from our politicians? One view is that we want them to represent us, their constituents, and if they don't, we are ready to hold them accountable for their votes and positions. A competing view sees politicians as Burkean trustees, holding views independent of those held by their constituents and ready to carry them out even if it means losing future elections.

In recent days, Ford has changed some of his earlier views on some of these volatile and controversial issues. For example, he has recently changed his position on same-sex marriage and on the abortion question. Senator Gillibrand's positions similarly evolved once she was appointed to the Senate. To some, Ford's policy shifts underscore his "soullessness" and "deceit," as well as his willingness to humiliate himself in his quest for public office. Maybe. But isn't this what a representative, or a candidate running for office, should do? He is either out of touch, for sticking to his guns, or pandering, if he changes his views.

I was prepared to write this entry late last week. In the meantime, Ford wrote an op-ed for the New York Times where he called for, among other things, tax cuts and malpractice reform. This is either a statesmanlike display of his views or sheer foolishness. Over at Salon, Alex Koppelman nails the issue in the head: "[Ford] doesn't seem to realize that he'll be running in his new home state of New York and not in Tennessee." Pandering is thus expected of somebody running for statewide office; you just need to know who you are pandering to. Harold Ford Jr.'s sin, to go back to Guy's initial question, is not that he is shifting his views, but that he is misreading the relevant electorate.

I then came upon his N.Y. Times interview, which Glen Greenwald has labeled "cringe-inducing" and Peter Beinart at Daily Beast has called "the most embarrassing interview I’ve ever read by a politician not named Sarah Palin." This is where Ford declined to disclose how much Merril Lynch pays him and where he exhorted the virtues of capitalism and his belief that "people take risk, and there are rewards if they do well; they should lose if they don't" while at the same time blasting Senator Gillibrand's opposition to the taxpayer bailout of the financial industry. Come again? At the very least, nobody can accuse him of pandering on this issue. He also redefined what it means to be "pro-life" and acknowledged visiting all five New York City boroughs "by helicopter."

To end where Guy began: this interview reminds me of some professors all three of us encountered at Michigan Law: very smart, to be sure, even brilliant.

And maybe a little too smooth, with a tad of crazy.

Monday, January 25, 2010

What to Make of Harold Ford Jr

Both Luis and I went to law school with Harold Ford, Jr., who was in our first-year section at the University of Michigan Law School.  At the time, we both knew Harold quite well.

Friday, January 22, 2010

What To Do with Some of Haiti's Orphans: International Foster Care

I'm watching CNN and they're doing a segment on Haitian orphans.  The issue is that there are a lot of orphans with a lot of well-meaning westerners, in this case Americans, who want to adopt them.  Wolf Blitzer cautions that some of these "orphans" have parents who may be looking for them now or later. So, adoption, for those orphans whose paperwork had not started or were not completed, is not an option.   Soledad O'Brien is having none of it.  She launches into an intellectually and emotionally compelling argument this is not the time to drag one's feet and be bureaucratic because a lot of these kids are dying without a moment to lose.  She concludes her argument with comment that there has to be a middle ground between leaving these kids to die in Haiti and taking them to the United States and elsewhere for permanent adoption.  I think there is a middle ground.

Thoughts on Citizens United

I am a big fan of the First Amendment. A big one. What's not to like about its ringing endorsement of free speech, religion, and assembly?

But I am also a big fan of democracy and fair elections.

That's why yesterday's opinion in Citizens United leaves me dissatisfied, even dumbfounded.

The specifics should be well-known by now: in its 5-4 ruling, the conservative wing of the Supreme Court overruled a twenty-year old precedent and struck down provisions of the campaign finance law that had been upheld seven years ago. Their message was simple: long live free speech. Or in Justice Kennedy's words, writing for the Court:

When Government seeks to use its full power, including the criminal law, to command where a person may get his or her information or what distrusted source he or she may not hear, it uses censorship to control thought. This is unlawful. The First Amendment confirms the freedom to think for ourselves.

The liberals responded with a 90 page dissent. Their message was just as powerful: long live democracy, and God save this honorable Court.

The Court’s ruling threatens to undermine the integrity of elected institutions across the Nation. The path it has taken to reach its outcome will, I fear, do damage to this institution.

Opinions about the case abound. One common reaction would be to defend or attack the Court's ruling on the merits. This is great fun, and something law professors are quite good at. For the moment, the discourse remains at a much higher level of generality. To some, the Court dealt a severe blow to our Democracy, handed lobbyists a potent weapon to use against members of Congress, or, instead, the Court did what had to be done to defend our free speech -- the lifeblood or our democracy -- and "cherished American freedoms."

Seen this way, the question at the heart of the campaign finance debate comes into fuller view: how to decide between these competing arguments? How to choose one? Is the answer as simple as having the ability to count to five?

One answer, which the Court has used from time immemorial, points to the Constitution and the justices' oath to uphold it. In Citizens United, the argument is that the First Amendment is doing all the heavy lifting; the justices are simply doing their duty. This argument is fine as far as it goes. So is the story of the tooth fairy.

A much more intriguing answer is that the justices make it up as they go along. This is all about ideology and the justices' political attitudes. The justices themselves lend considerable fodder to this view, perhaps inadvertently. To see this, consider the Court's rejection of the avoidance doctrine.

Citizens United urged the Court to carve out an exception to the law's expenditure ban for non-profit corporations. If the Court had accepted this argument, it could have avoided the constitutional question. But of course, this argument is "not sustainable under a fair reading of the statute." Maybe so. One almost believes this to be true, but for the elephant in the room: The Namudno case. Then, the Court could interpret the Voting Rights Act's bailout provision in a way that steered the justices clear from the constitutional question. The only problem was, such a reading was not "sustainable under a fair reading of the statute."

In his concurring opinion in Citizens United, the Chief Justice does not hide the Namudno case under the rug, but cites it triumphantly, as a shining example of a Court doing its job, and doing it right. I would have thought that Namudno stood for exactly the opposite proposition: to what lengths will the Court go in order to reach its desired conclusion, notwithstanding the statutory text or the intent of Congress?

Such is the lesson of Citizens United. When five members of the Court set their sights on a price, they will stop at nothing, and neither precedent nor the statutory text will get in their way. Unless, of course, they change their minds.

This is the true measure of the philosopher king, bound not by his oath or duty but his legal acumen, his ability to get five votes or, as Justice Thomas reminded us in Holder v. Hall, his "imagination."

Something in our jurisprudence has indeed gone awry.

Thursday, January 21, 2010

Will the Administration's Fight with Banks Help the Democrats

The White House, which is showing its political astuteness, is reacting to populist anger by adopting populist policies.  The target: banks.  An early move was a tax on big banks.  The latest move is to restrict the size and types of risks that the big banks can take.  The question is whether this is going to work.

Citizens United on the Way?

At the close of oral argument yesterday, the Supreme Court marshal announced that the justices would hold a special session on Thursday at 10:00am. It appears that the long wait for the Court's ruling in Citizens United v. Federal Election Commission will finally come to an end.

Nothing gets me more excited than seeing professed fans of judicial modesty carving up federal laws and molding them to their liking while overturning long-standing, settled precedent. With a straight face.

I for one can't wait.

Wednesday, January 20, 2010

Red Cross Needs People who Speak Creole and English

If you speak both creole and english, please read below.  If you know someone who does please pass this on.

The American Red Cross is looking to deploy 100 Creole interpreters to workon the hospital ship USNS Comfort, which will be harbored outside Port-au-Prince.  Volunteers need to be fluent in Creole and English. Other skills are helpful but not required.

 Things to keep in mind:

 (1) The ship will be deployed for a month;

 (2) Volunteers won't be able to leave the ship during that time; and

 (3) They will not have luxurious quarters. It is important to stress the second point: The interpreters will stay on the ship to assist and won't be able to get off the ship to see family in Haiti.

 We are looking for volunteers to be in Miami no later than Wednesday night/Thursday morning (January 20/21). The Red Cross may be able to provide accommodations for those coming from out of town.  All volunteers would be fully trained, either in Miami, or at their home chapters of the Red Cross before they come to Miami.  Again, no skills are required beyond speakingboth Creole and English. Anyone interested in this opportunity will be contacted ASAP with additional steps. Please communicate to me immediately if you have persons who can do this and contact information.

Michael A. Blake
Deputy Associate Director
The White House - Offices of Intergovernmental Affairs & Public Engagement
(202) 456-4772 - Office
(202) 503-5649 - Cell

Gerrymandering in Massachusetts

Everybody has an opinion about yesterday's election in Massachusetts. To some, this was a referendum on health care, with the voters telling President Obama where to stuff it. To others, this was Coakley's fault, or Brown's doing, or likely a little bit of everything.

I don't have any particular insight about what happened yesterday. What I do find intriguing is the notion that a Republican candidate running in a state-wide election for a seat held by a Democrat for generations -- this is Ted Kennedy's seat, for heaven's sake! -- could in fact win. This is what Senator Brown did.

I can't say that I am happy about the outcome. But I will say this: this is a wonderful teachable moment for those of us teach election law.

Here's the story we have heard a thousand times: few congressional races remain competitive, so that elections are a sham and voters have no real choices. What American Democracy needs, this argument concludes, is a structural jolt to the system, in the form of better line-drawing. And since the line-drawers themselves won't fix the problem, it must be the courts who do it.

One can respond to this argument in many ways. For example, many details affect the outcome of an election, from money and issues to the national mood and the way a candidate runs an election. I am particularly attracted to the view that voters within a district are not partisan automatons, unthinking and unbending in their partisan zeal for whomever their party's candidate may be. In the end, for example, they can always choose not to turn out to vote at all.

Whatever your views may be about elections and safe electoral seats, yesterday's election should give you a chance for pause and reflection. One approach might be to assign blame, and surely there is much of that to go around. You should resist that impulse, unless you are a campaign operative seeking to learn from this election as you move on to the next. For the rest of us, this elections offers an opportunity to reflect on the nature of campaigns, "safe" seats and calls for courts to structure our democratic institutions in whatever way we deem proper.

Here is how I see it: a scant few weeks ago, Coakley was a prohibitive favorite, an incumbent running within the safe confines of an electorate strongly tilted in her favor. All indicators pointed to her return to the Senate. What seemed like no choice at all for voters in Massachusetts, however, became a stark issue the week before the election. In the meantime, something happened on her way back to Washington. The electorate changed its mind, or rather, independents made up their minds.

To place too much stock on this election would be foolish, of course. Elections seldom happen this way, with the nation focused on one particular race, and the fate of the western world seemingly hanging on the balance. I get that. I also get that Senator Kennedy kept this seat for over forty years, and would have won every election into the future. (query: for all the blame going around, and the claims about all the messages and signals the voters sent Washington yesterday, what does this fact about Senator Kennedy's electoral prospects in perpetuity say about the American Voter?) But at the very least, this election shows that it is possible for heavy underdogs to win, even in the face of a slanted electorate, what amounts to a statewide gerrymander.

It is trendy for election law scholars to focus much attention on electoral structures, or the many obstacles facing the American voter. The real lesson of yesterday's election in Massachusetts is that we should focus just as much attention on the American voter.

Tuesday, January 19, 2010

What Does Scott Brown's Win Mean for President Obama's Agenda

As far as I'm concerned, any Democrat who says that this victory is not a major wake-up call to Democrats everywhere is either lying or delusional. 

Monday, January 18, 2010

Will Haiti be Obama's Katrina

I'm a big fan of President Obama.  I think he's doing the best that he can to address a number of domestic and international challenges.  I was never one who drank the Obama kool-aid and I don't think he's the Messiah.  But his pragmatism generally resonates with me.  As the President's popularity is on the decline, it is not inconceivable that Haiti could the crucial negative data point in the way that Katrina was for G.W. Bush.  Katrina, rightly or wrongly, signaled that the Bush Administration was incompetent.

Sports, MLK, JR, and the Hiring of Derek Dooley

Late last week, the University of Tennessee hired Derek Dooley as its head football coach. Coach Dooley replaced Lane Kiffin, who left the university to become head football coach at the University of Southern California.

Today is Martin Luther King, Jr. day. And for some strange reason, I cannot stop thinking about the connection between Dr. King and the hiring of Coach Dooley.

Then it hit me.

Too often, we think of sports as a diversion, as a way for us to escape from our everyday problems. When we sit in front of the television to watch our favorite teams, we don't like to think too much about anything. We just like to root for our teams.

But Dr. King knew better. Sports were far more important than that. Not only are sports tremendously powerful both politically and symbolically, but the athletes themselves are influential role models for the youth of the nation. More importantly still, Dr. King understood that the athletic arena was more than a place were sports took place, but an important window to issues of racial justice.

This is probably why the picture of a black player, Terrence Cody, blocking a field goal at the end of the game to preserve an Alabama victory over Tennessee, stayed with me for as long as it did. This is the same state that gave us George Wallace, he of "segregation now, segregation tomorrow, segregation forever" fame. The University of Alabama is also the institution where Wallace made his defiant stand against federal troops and racial integration. To see a black player lead Wallace's old university to victory is, to put it bluntly, jarring.

This is also why I pay close attention every time a football coach is hired and a search begins for his successor. In the National Football League, the so-called "Rooney Rule" requires teams to interview minority candidates during the search process. This rule has led to the hiring of many black coaches since its inception, leading some to question whether the rule is "still relevant." As expected, teams have learned to live with the rule, but also to work around it. It is now commonplace for teams to conduct "sham" interviews, that is, to interview black coaches they have no intention to hire, in order to comply with the rule. This is exactly what happened during the last two searches, by teams in Seattle and Washington D.C.

This brings me back to the hiring of Coach Dooley. Who is he? He happens to be the son of legendary Georgia coach Vince Dooley. Prior to his hiring by Tennessee, Derek Dooley coached at Louisiana Tech, where he complied a less-than-stellar record of 17-20. Nothing his record suggests he will be a great coach or a mediocre one. Nothing. Yet the University of Tennessee tagged him to lead the Volunteers for next year and beyond.

This hiring is a great example of the hypocrisy found within the affirmative action debate. Critics of affirmative action argue that decisions should be made on the basis of merit and nothing else. Unfortunately, credentials are only questioned when they involve candidates or applicants of color. Derek Dooley can be hired by a major football program and not a critic is found. Before Dooley, Tennessee hired Lane Kiffin, whose only head coaching experience involved a disastrous tenure coaching the Oakland Raiders. In fact, some commentators have pointed out that Dooley may be a better hire than Kiffin was at the time. How is that for setting a low floor?

Today, major college football boasts only four black head coaches. This is in a sport where, in 2008, 50% of the players in Division I-A, 25% of the assistant football coaches, and 13% percent of the offensive and defensive coordinators were black. A pool exists, in other words, for Athletic Directors to give opportunities to black candidates. Instead, the Kiffins and the Dooleys of the world continue to move forward. `

This is nothing, I suppose, that a good ol' proposition could not cure. If only we could find Ward Connerly when we needed him.

Haiti and Security

What Haiti needs most right now is

Saturday, January 16, 2010

Help for Haitian Earthquake Victims

One of the difficulties that Haitians are currently experiencing is the difficulty of telling aid organizations where they are and what their needs are.  For example, I have an aunt and an uncle in Port-au-Prince who is taking care of 300 people affected by the earthquake.  They need water, baby supplies, and masks.  But they have no way of connecting to the aid organizations in Port-au-Prince and of course those organizations have no way of connecting to them and people like them.  I saw a report on CNN yesterday where some UN folks simply went to a location and waited for people to go them.  The location was not picked on the basis of population density or where there was the most need.  It was simply where the UN folks felt like stopping.  This is where technology can help.

Friday, January 15, 2010

Haitian Earthquake, Poverty, and Culture

As bodies are being recovered in Haiti and in what one hopes is at the very least the midst of the devastation but more likely its infancy, the armchair analysis of why the earthquake's effects are so tragic in Haiti have already started.  Pat Robertson has offered his take, Haitians made pact with the devil, which is why they're so cursed.  John Stossel has offered his take, which is that Haiti lacks economic freedom.  And NY Times columnist David Brooks, not to be outdone by Robertson and Stossel, chimes in with the old chestnut that Haitians are poor because of their culture.  Of the three, I find Brooks the most problematic not least because I have always thought of Brooks as one of the more thoughtful and reflective prominent columnists.

Wednesday, January 13, 2010

The Earthquake in Haiti

As an Haitian-American, I cannot put in words the feelings of helplessness, sorrow and grief that I am experiencing as I hear and watch on television what is going in Haiti. I imagine that my feelings would be similar even if I were not of Haitian descent. But to see the intense suffering of those whose faces and stories are familiar to me is close to unbearable.
I cannot imagine what it is like to be in a country where all basic services are unavailable: very little medicine, little potable water, no medical support, no government services, no one to bury the dead, few equipment to look for the living, no home to go to, few places to use the bathroom and take a shower, children looking for their parents, parents looking for their kids, etc. I can't imagine a situation where tomorrow does not bring hope but only brings more sorrow.
I have heard and read many news accounts describing the Haitian people as resilient. No human being should ever have to be this resilient.

Thursday, January 7, 2010

The Face of Affirmative Action?

Anybody interested in the debate over race and merit in higher education should take a look at the story of Harold Fernandez, recently documented in the New York Times. While his story might not change your views on the use of race in admissions, it should certainly help you consider your views more carefully.

Mr. Fernandez came to the United States as an undocumented immigrant in 1978, as a 13 year old. Through hard work and perseverance, he gained admission to Princeton University. He arrived at Princeton two weeks before most students in his class, as part of a university program for poor and minority students who came from high schools without the rigorous course work to which most other Princeton freshmen had been exposed. He also assumed his SAT scores were lower than most of his classmates. He was hardly the traditional Princeton freshman, likely an "undeserving beneficiary of affirmative action."

But he proved them wrong. After his first semester, his grades placed him among Princeton's top freshmen. He worked hard -- really hard -- and took advantage of the opportunity Princeton afforded him. Isn't that what higher education should be about? Isn't that what affirmative action should be about?

The second part of his story is just as important as the first. In the spring of his freshman year, Princeton asked Mr. Fernandez to bring his green card to the adviser to foreign-born students in order to verify his immigration status. This presented a seemingly insurmountable obstacle, since Mr. Fernandez was an illegal immigrant, and the copy of the green card he had previously sent Princeton was a forgery, and not a very good one at that. This posed a grave problem: he had accepted federal monies that were not available to illegal immigrants. He had also violated Princeton's honor code.

At this point in the story, I couldn't help but think of the life story of Christopher Langan, as examined by Malcolm Gladwell in Outliers. A brilliant student, with an IQ between 195 and 210, Mr. Langan was unable to navigate the myriad obstacles posed by both Reed College and Montana State University. Officials at both schools were unwilling to help him, and so his vast potential was not maximized.

Mr. Fernandez faced similar obstacles. But the one part of this story that bears paying close attention focuses on how Princeton officials responded to his problems. He first went to one of his professors, who in turn spoke to the adviser and to William Bowen, then president of the university. A few days later, he met with the director of studies. After telling her what he had done, her answer shocked him then, and shocks me today. In his words: "Just as I was feeling crushed by the gravity of these issues . . . she went on to say: 'But Harold, both problems have solutions.'"

Princeton did not have to do any of this. In fact, they could have, as Mr. Fernandez acknowledged, "shrugged [him] of as an unscrupulous intruder." They chose instead to treat him as one of their own. They even chose to help his finally with their immigration status.

Mr. Fernandez went on to graduate magna cum laude and Phi Betta Kappa, and went on to attain degrees from Harvard medical School and New York University Medical Center. Today he is a cardiac surgeon in Roslyn, New York.

This story should be mandatory reading to admissions officials across the country.

I am not encouraged. As a recent study documents, students of color are lagging behind all other students in admissions at the nation's law schools even while class sizes increase. This is true even as their LSAT scores and grade point averages increase. I suspect the same holds true in other areas as well.

Try to make sense of that in light of Harold Fernandez's story.