What does it mean to look "presidential" (or "professorial," or "decanal," or...)?

One of the big stories of the 2016 presidential election is whether Donald Trump looks and acts presidential. This is no idle conversation.  What voters want to know is whether Trump can act like a president is supposed to act, do the things a president is supposed to do, look like a president is supposed to look.  Note that the bar for candidate Trump is very low.  Reading from a teleprompter will do.  Or not behaving like a sixth grade bully.  Note also that the point is not whether he is or can be presidential.  The point is whether he can pass for one.

Think first about what that means.  And think next about who benefits and who does not when we think about candidates, and jobs, and life, in that way.

A word on Justice Kennedy's "surprising" turn to the left

A few weeks ago, the US Supreme Court upheld the University of Texas' affirmative action plan in Fisher v. Texas.  The big story of the case was Justice Kennedy's apparent switch on questions of race.  How in the world does a justice who refers to the use of race by the state as a "corrosive category," and who argues that “[p]referment by race, when resorted to by the State, can be the most divisive of all policies, containing within it the potential to destroy confidence in the Constitution and in the idea of equality," vote to uphold an affirmative action plan?

This was the leading narrative in the wake of Fisher.  Justice Kennedy's opinion was "stunning," "surprising," even "shocking." But that's not quite right.  

What do Affirmative Action and the Recent College Football Playoff Selection Have in Common?

Three days ago, the college football selection committee finalized its final four choices to take part in the first annual playoff to determine the sports national champion.  The University of Oregon and and the University of Alabama were certain to make it, but the other two choices were a bit more controversial.  Critics of Florida State University argued that, though undefeated, FSU played a soft schedule and escaped from defeat myriad times this season.  The fourth choice, Ohio State University, was even more surprising.  Never in the time I have watched college football do I remember a time when a team jumps those above it in any type of ranking, whether traditional polls or BCS rankings, after all the relevant teams win their final games.  Ohio State destroyed Wisconsin, to be sure, but Baylor and TCU similarly won their games.  And yet Ohio State made it into the playoffs.  And the debates began.

I watched these developments with great amusement.  I wondered whether anybody else could see the connection between this so very public debate and the use of race in employment, college admissions, and elsewhere.

The similarities are astounding. And it makes clear that the affirmative action debate should be more like the college football selection process.  But there is no chance of that.  When it comes to race, reason and judgment leave us, and stupid sets in.

Making Sense of Schuette; or, it might be time to give back the 14th Amendment

In the wake of Grutter v. Bollinger, Michigan voters approved Proposal 2, a measure designed to prohibit the use of race in admission to state universities.  It stood to reason that the Roberts Court would uphold this proposal, and so it did, in the recent Schuette v. BAMN.  According to the plurality opinion, authored by Justice Kennedy, this case involved a fundamental right held "by all in common:" "the right to speak and debate and learn and then, as a matter of political will, to act through a lawful electoral process."

I wonder what he means by that.  Assume that citizens of the state of Michigan return to the polls ten years from now and reverse Proposal 2.  Assume, that is, that they continue todebate, learn, and act once again through a lawful process.  What if the citizenry takes it further and in fact demands that state universities take race into account during their admissions processes?  What would the plurality say then?

This is when our bizarre constitutional world kicks in.  Opponents of race conscious policies can eliminate these policies through the political process and the Court stands aside.  Were supporters of these policies able to overturn this outcome through the same political process, the Court will be ready to stand in their way, in the name of constitutional justice.

This is a  perverse constitutional world.  If this is what the 14th Amendment demands in fact, it must be time to give the Amendment back.

How does anyone committed to an originalist jurisprudence make sense of this?

Better question: is there anybody left in the world who believes that our race jurisprudence is guided by law and not ideology and the justices' personal preferences?

Thoughts on Evan Kaufmann, Terrence Cody and Memory

This past Sunday, the New York Times' Sports section featured a story about Evan Kaufmann, an American-born hockey player who plays for the German national team.  This is a gripping story and a must-read.  For me, it connects to an issue that I've been thinking about for quite some time about the uneasy relationship between Black high school athletes and major college sports.  The question is one of historical memory: How do we choose to remember, and why do we sometimes choose to forget?  More importantly, do we have a  responsibility as individuals to honor these memories, whatever they may be, and to live our lives accordingly?

For here's the thing: Evan Kaufmann is an American Jew, playing in Germany and for the German national team because, according to the Times, this is "his best pro opportunity to play hockey."  Should Kaufmann have the right to do that?

This is not the easiest of questions.

What Will Kennedy Do in the Texas Affirmative Action Case?

The Supreme Court has agreed to hear an affirmative action case that challenges the affirmative action program administered by the University of Texas.  Many commentators think that this case signals the end of affirmative action.  Afterall, why would the Court take this case if not to overturn its 2003 decision in Grutter v. Bollinger? For those despairing about this case, I want to make the case for some cautious optimism.  I also want to present a more nuanced analysis than the analysis that I'm seeing on some of the blogs and in the media.

First, it takes four Justices on the Court to grant cert, but it will take five Justices to overturn the judgment of the court below, a panel of the 5th Circuit Court of Appeals, which upheld the constitutionality of the Texas affirmative action program.  (By the way, the author of the 5th Circuit opinion is the conservative judge Patrick Higginbotham, who wrote a very strong and careful opinion upholding the Texas plan.) I don't know which Justices voted to take the case, but there are easily four Justices who would vote to strike down the program and maybe even reverse the Court's decision in Grutter.  Chief Justice Roberts, Justices Scalia, Thomas and Alito are all good bets to both strike down the program and find that the constitution does not allow raceconscious decisionmaking by state actors.  So this leaves Justice Kennedy.

Second, Justice Kennedy's views on race is more nuanced than the commentators are giving him credit for.  Unlike his fellow compatriots on the right, especially Justices Scalia and Thomas, and maybe even the Chief, Justice Kennedy does believe that the government can take race into account as long as the government does so in a manner that is consistent with the Constitution.  Even in his dissent in Grutter, Justice Kennedy cited Justice Powell's Bakke opinion approvingly for the "principle that a university admissions program may take account of race as one, nonpredominant factor in a system designed to consider each applicant as an individual." He closed his opinion in Grutter and by "reiterat[ing] [his] approval to giving appropriate consideration to race in this one context." More pointedly, in the Parents Involved case, Justice Kennedy stated explicitly, "Diversity, depending on its meaning and definition, is a compelling educational goal a school district may pursue."  This means that as a matter of principle, Justice Kennedy agrees with the diversity rationale.  This is why commentators who fail to distinguish between Justice Kennedy and the other conservative Justices are making a mistake.

Third, unlike the other Justices on the right, Justice Kennedy has consistently expressed solicitude for the circumstances in which folks of color find themselves. In Grutter, he cited approvingly, "the Court's important holding allowing racial minorities to have their special circumstances considered in order to improve their educational opportunities."  Justice Kennedy expanded upon this theme in his concurrence in Parents Involved.  In that case, he made the argument that even though we aspire to live in a colorblind world, the reality is that race continues to matter.  Along with Justice O'Connor's opinion in Grutter, Justice Kennedy's concurrence in Parents Involved is the most sophisticated attempt by a conservative Justice to to reconcile conservative ideology with a view of the constitution that takes into account the equality concerns of Americans of color.

Fourth, and this is where the rubber meets the road, Justice Kennedy has a narrow view of the types of governmental programs that can use race consistent with the Constitution. In he disapproved of the University of Michigan Law School's affirmative action program in Grutter because the thought that race played too big of a role in the admissions process.  He thought the Michigan Law School's program was the equivalent of a quota.  He disapproved of the programs in the Parents Involved case because neither Seattle nor Louisville, according to Justice Kennedy, fully explained the manner in which they took race into account  He did not think they used race as one consideration among many other considerations.  He wrote that "Race may be one component of . . . diversity, but other demographic factors, plus special talents and needs, should also be considered."  What he objected to is "Assigning to each student a personal designation according to a crude system of individual racial classification."    He encouraged government actors to use "race-neutral means first  and "if necessary" they can use "a more nuanced, individual evaluation of school needs and students characteristics that might include race as a component."

Fifth, this two-tiered approach, first use race-neutral means and then use a more limited race conscious approach that makes a narrow use of race, is precisely the Texas program.  Texas first employed its Ten Percent Plan, pursuant to which 10% of high school graduates are automatically admitted to the University of Texas.  The University then conducted a study and determined that the Ten Percent Plan did not yield sufficient diversity.  According to the 5th Circuit's opinion, "After more than a year of study . . .,  [the University of Texas] adopted a policy to include race as one of many factors considered in admissions."  That policy authorized the University to take race into account with respect to the pool of applicants that were not admitted to UT under the Ten Percent Plan (it is that policy that the plaintiffs challenge in the case.)  The 5th Circuit also found that UT does not engage in a racial quota, does not keep an ongoing tally of admits by race, does not try to mirror the state's racial demographics, and applicants of every race, including white students, can make the case that their race will contribute to the diversity of the school.

It is not inconceivable that Justice Kennedy would vote to affirm the Texas plan.  I would be surprised if Justice Kennedy reversed course and concluded that racial diversity is not a compelling state interest.  I would not be surprised if he decided that the Texas plan however idd not pass constitutional muster.  This would be consistent with what he did with the Michigan case and the Seattle and Louisville cases.  But I also think that the Texas plan coms closest to a narrowly-tailored program that Justice Kennedy described in his prior opinions. Consequently, this plan is tailor made for Justice Kennedy and he might just do the right thing in this case.

The Strange yet Unremarkable Case of Jeremy Lin

Stop me if you've heard this story before: A terrific high-school athlete is overlooked during the recruiting process because he does not fit the stereotype of what college athletes are supposed to look like.  He ends up at a terrific college, yet not an athletic powerhouse.  He has a terrific college career, but pro scouts ignore him the same way college coaches ignored him before. He catches on with a pro team, and then another, and then another.  He is not sticking with any one team for long.  And then, almost out of necessity, he gets a chance.  One chance.  One time.  One game.  And he blows it out of the water.  

The story is almost out of central casting, tailor-made for Angelo Pizzo.  For those not paying attention to the world of sports in the last week or so, this also happens to be the story, in a nutshell, of Jeremy Lin, Taiwanese American point guard for the New York Knicks.  How in the world do we explain the fact that a multi-million dollar system designed to scout talent missed as badly as it missed with Jeremy Lin? Here's the cold reality:

"It's the Asian thing," says former NBA player Rex Walters, who's Japanese-American and wound up with [Jesse] Evans' job at [the University of San Francisco]. "People who don't think stereotypes exist are crazy. If he's white, he's either a good shooter or heady. If he's Asian, he's good at math. We're not taking him."

Lin looks like a math major, not a basketball player.  Simple as that.

But make no mistake, this is not a new story. We have seen it a million times.

This is the story of Toby Gerhardt or Brock Forsey, white running backs in a world where running backs happen to be black; or the story of many black quarterbacks in a world where quarterbacks happen to be white.  The argument applies to basketball players and concert pianists, to college professors and football coaches, to welfare recipients and college students.  Stereotypes abound, and they affect our decision-making in ways that we often fail -- or refuse -- to recognize.

Think about what this means for debates over hiring and college admissions.  Close your eyes a moment and think about what a college student is supposed to look like, or better yet, a college professor.   As you do that, try to imagine what happens when a faculty gets together to choose a new colleague, or worse yet, when a faculty gets together to vote on a tenure case.  Even those who have never been privy to one of those meetings have a pretty good idea of what goes on. 

Ask Rex Walters.

Legal Education hits the big time, Again . . . and its connection to the affirmative action debate

I am starting to wonder about the New York Times' fascination with legal education.  Today's edition, right smack in the center of the first page, finds an article about "law schools that teach little about legal practice."  The punch line?  Law schools teach little about legal practice.

This is a great debate, even a debate worth having.  But to me, the most interesting aspect of the Times' fascination is in how it reflects on the larger debate over affirmative action.  Here is why.  The argument, stated simply, is that justice demands that colleges, including law schools, must only look at grades and test scores when making admissions decisions, and only those students with the highest scores deserve admission to elite institutions.  When pushed, critics concede that institutions may consider other factors.  But the one factor that schools may not consider is race.  As soon as you find one student of color who got in with lesser metrics than a white student, a constitutional violation is born.  The argument is really that basic, and cares little for what happens next, or for what the purposes of higher education may be, or even what the particular profession at issue demands.

This is not only short-sighted, but if pressed, one might even choose to call it racist.

Start with the law in question.  The colorblind argument should strike anyone familiar with the history of the 14th Amendment as odd and misplaced.    It is particularly embarrassing for originalist justices to take a colorblind view of equal protection.  One need not be a historian to know that the Reconstruction Congress intended no such thing.  Consistency is indeed a virtue.

The beginning argument -- on the original meaning of the 14th Amendment -- is dead wrong, and the conservatives don't even try to pretend otherwise.  They simply ignore it.  And so all that remains is a debate over the wisdom of the use of race in public life.  To be sure, this is a debate worth having, but we should not for one moment pretend that this is a debate about law.  It is not.  It is a debate about Justice Kennedy's vision of a good society, and the best way to get there.  

Here is where the Times' story comes in.  It is one thing to argue that law schools may not consider race because the law demands it.  Once this argument goes away, all we have left is an argument that law schools may not consider race because it is bad for the legal profession, that is, because in so doing law graduates will not be properly prepared to handle the rigors of the profession.

But then, note what the real problem is, according to the Times: 

“The fundamental issue is that law schools are producing people who are not capable of being counselors,” says Jeffrey W. Carr, the general counsel of FMC Technologies, a Houston company that makes oil drilling equipment. “They are lawyers in the sense that they have law degrees, but they aren’t ready to be a provider of services.”

Here is what a recent graduate of the George Washington University School of Law, had to say: “What they taught us at law school is how to graduate from law school.”

Put all the pieces together and tell me what you see.  Law schools may not use race in admissions not because the law demands it, or because it produces better lawyers, but because . . . why exactly?

I would like to think that racism has nothing to do with it.  But sometimes, I can't help but wonder . . . 

Here they come again: the justices and affirmative action

Stop me if you have heard this one before: a student applies to an elite university and is denied admission.  Incidentally, admissions officials concede that they consider many different factors when making decisions, one of which is the race of the applicant.  The student who is denied admission then searches through the many applications only to discover that some Black and Latino applicants with lesser grades and/or test scores are granted admission to said university.  Alas, a federal case is born.

Abigail Fisher is only the latest in a long line of white applicants so aggrieved. It just so happens, however, that the U.S. Supreme Court might finally fall for the ruse once and for all.  Or in the words of Adam Liptak, "college diversity nears its last stand." 

This is ridiculous on too many levels. It is not terribly difficult to parse through the applicant pool and find admitted Black and Latino applicants who scored worse yet got in.  But it is also not terribly difficult to find in-state residents who scored worse than out-of-state residents yet got in, or mountain climbers, or sons and daughters of alumni, or applicants who can throw a football or hit a ball with a stick.  Somehow, we need an argument in order to differentiate the use of race from all these other factors.  But the justices -- or for that matter, critics of affirmative action -- have yet to offer one.

Here is what passes for a good argument nowadays, from anthropologist Peter Wood:

“The part of diversity that matters to me and a lot of academics is the intellectual diversity of the classroom. . . .  The pursuit of a genuine variety of opinions that are well thought through and well grounded is essential. But that has an off-and-on, hit-or-miss connection with ethnic and racial diversity.”

Here is another, from Yale law professor Peter H. Schuck: “The idea of racial and ethnic diversity altering the kind of conversation that goes on in the classroom is so overrated.” 

I happily concede either argument.  But note that similar things could be said about the use of any other factor considered by universities today, from the use of legacy or residency to extra points for doing extracurricular work or having elite athletic credentials.  

The point is this: the critics are make policy arguments, not constitutional ones.  So the issue here is whether the Constitution has anything to say about this question. If the Court's opinions are any indication, it appears that the answer is not as easy as one might think.

Here's what I would love to see in these opinions: a detailed analysis of the history of the 14th Amendment and the reasons why the Reconstruction Congress -- Bingham, Trumbull, and friends -- intended to bar the use of race by the state.  I think this is a tough argument to make, but I suppose it is possible.  Surely, I would expect Justice Thomas to at least pretend that such an argument exists.  Instead, all we get are silly and inane platitudes about the harmful effects of using racial factors.  

Hypocrisy is not becoming, much less by our resident philosopher kings.

Also, whatever happened to the norm of stare decisis?  I would expect the conservative justices to be particularly sensitive to this norm, and the notion that the public has a right to expect that the Court will not change its collective mind as the institution changes membership.  After all, remember the debate during the Kagan nomination about what makes a judge an activist.  The answer from the Republican leadership in the Senate, using the example of Justice Marshall, was that an activist judge is a judge that does not abide by established precedent.  They used the example of the death penalty and how Justice Marshall refused to accept these cases as settled law and instead continued to dissent in case after case. 

Could they really turn around this quickly and overturn Grutter, decided in 2003?

I still think that the case is still up for grabs.  The conventional wisdom is that the five conservative justices on the Court are prepared to take on Grutter.  Yet Justice Kennedy might not be quite so willing. His views on this question may be changing.  His recent concurring opinion in Parents Involved, for example, show a side of Justice Kennedy we had not seen before.  He even went as far as push back on the old conservative trope, Justice Harlan's dissent in Plessy. But to say that Justice Kennedy's views are evolving should not surprise anyone. Such is the lot of the super median.

In the end, he might ultimately save the Court from this embarrassment.

On the Failure of Black Coaches in Professional Football . . . and its lessons for the rest of us

In their terrific book, Scorecasting, Tobias J. Moskowitz and L. Jon Wertheim argue that coaches in the National Football League are now finding less success than they once did.  And that's a good thing.  This seems counter-intuitive, but only at first glance. As they explain, black coaches had a very hard time finding head coaching jobs over ten years ago, but the black coaches who were hired performed far better than their white counterparts.  The NFL eventually recognized that the bar for black coaches was set much higher, and it also recognized the value of networks and connections in employment decisions.  This is when the league came up with the Rooney Rule.

Further Thoughts on College Recruiting . . . and Admissions

College coaches zig-zag across the country looking for players for their teams.  Players similarly zig-zag across the country looking for their college campus of choice.  And between them we find a number of recruiting services willing to tell you what they think about any particular player.  Scout.  Rivals.  ESPN.  Any guy with a clipboard and an internet connection can start one.

So here is what I find intriguing about all of this: how accurate are these services?  How accurately can these recruiting outfits prognosticate whether a high school player will become a college star or bust?  For all the angst and energy that college fans now spend on national signing day, this would appear to be the only question worth asking.  The answer should not surprise anyone. 

The New Racial Discrimination

I am convinced that the term “racial discrimination” must be the most overused term in our popular culture, ranking alongside “invidious discrimination” in the legal culture.  Neither term means all that much. For a recent example, look no further than a recent letter from Roger Clegg, President and General Counsel of the Center for Equal Opportunity.  In the letter, Mr. Clegg complained that “[t]here can be no serious doubt that whites face more racial discrimination in [the context of university admissions] today than do African Americans.”

In reading this passage, and the letter in its entirety, I was reminded of Herbert Wechsler’s much criticized Holmes lecture, where he offered a critique of the Court’s reasoning in Brown.  I was particularly reminded of his closing, where he offered the following:

I think, and I hope not without foundation, that the Southern white also pays heavily for segregation, not only in the sense of guilt that he must carry but also in the benefits he is denied. In the days when I was joined with Charles H. Houston in a litigation in the Supreme Court, before the present building was constructed, he did not suffer more than I in knowing that we had to go to Union Station to lunch together during the recess.

I must confess that I really don’t get what Professor Wechsler means, the same way I simply cannot understand what Mr. Clegg is referring to.  This is cognitive dissonance in full display.

But to dismiss these views off-hand would be to miss a far more important and interesting story.

Affirmative Action for Elites . . . Not that there's anything wrong with that

In his popular course about justice, Michael Sandel spends a class session discussing with the students the modern debate about affirmative action.  As he invites the students to offer their views on the subject, the discussion soon reflects the same arguments we have now rehearsed for over a generation: the practice of affirmative action is either unfair and discriminatory, or else needed to correct past injustices or the way to attain a diverse student body.  This is not terribly surprising.  But one student in particular caught my attention. He argued that

 "racial discrimination is illegal in this country, and I believe that it was African-American leaders themselves, when Martin Luther King said he wanted to be judged not on the color of his skin, but by the content of his character, his merit, his achievement, and I just think that to decide solely based on someone's race is just inherently unfair.  I mean, if you want to correct based on disadvantaged backgrounds, that's fine, but there are also disadvantaged white people as well.  It shouldn't matter . . ." 

The student conceded, in response to a question from Sandel, that grades and tests scores are not enough; "there is more than that.  Universities need to promote diversity."  His objection focused on the one factor, race, that he argued applicants could not control.

There is a lot in that exchange, and again, there is really nothing new there. But later in the conversation, in response to a point to a student, Sandel asked about legacy admissions.  Should those exist?  Are they fair? These were uncomfortable, difficult questions, and the student's response reflected that fact.

"I do believe that, in terms of a legacy admission, you shouldn't have a special preference, I mean, there is a legacy admission, you could argue, as another part of diversity.  You could say it's important to have a small percentage of people that have just several generations of their family attend a place like Harvard."

Even while saying this, the student wasn't hedging.  Race was just different.  To him, legacy considerations  "should not be an advantage factor like race.  That should just be another part of promoting diversity." Sandel pushed him one final time, and asked him whether "alumni status, should it count at all." The student paused a moment, and then, unsurprisingly,  said "yes. it should count."

This is the ugly underside of the debate over racial preferences and university admissions.  Richard Kahlenberg, a longstanding participant in this debate, argues in this morning's New York Times that legacy admissions are the biggest affirmative action program in the country.  He argues that they are bad policy, illegal, unconstitutional, and unknown around the world.  To the charge that legacy is often used as a tiebreaker among applicants, he offers a recent study that concluded that legacy standing is the equivalent of 160 points on the SAT (on a 400 to 1600 point scale), which is close to the gain attributed to racial factors.

Where are the marches and lawsuits fighting against this injustice?  Where is Ward Connerly when you need him?  And how do we explain the contrasting reactions?  Or put another way, can we conclude, with any degree of certainty, that criticisms of affirmative action are tinged, at some level, by racism?

I have two reactions.

Back to Class . . . and Race

The debate over the use of race in public policy is in full swing, at least as far as elite opinion is concerned. I can’t really figure out why. Michael Lind issued the latest salvo yesterday, writing in salon. Unfortunately, as it is often the case with this issue, his essay does little to persuade. The reasons become obvious after reading the first few paragraphs: those who assail racial preferences and those who defend them cannot even agree on a set of basic premises. This is a debate where people are talking past one another.

Jim Webb on Race, Preferences, and -- Surprise, Surprise -- Poor Whites

This is a good week to be a poor white.  Elites are coming to their defense in the pages not only of the New York Times, but the Wall Street Journal as well. The latest salvo came from Senator Jim Webb, who argues that racial preferences might be appropriate for blacks and their descendants, but not all persons of color, many of whom have not suffered through the same history of discrimination.  He argues that this is particularly unfair when you consider that these advantages exact a cost on whites, who are not a "fungible monolith.".  In essence, and parroting Ross Douthat's earlier column in the Times, Senator Webb argues that poor whites are the ones who end up shouldering the costs of granting special preferences for undeserving non-whites.

A picture speaks a thousand words:

This makes me very curious.  None of the things the Senator writes about are new.  Not one.  Why then, does he felt compelled to have a staffer -- after reading the piece, I can only hope it was a staffer who wrote it, and not a sitting U.S. Senator -- write such a piece?  Was it the Shirley Sherrod debacle, coupled with the Skip Gates's controversy and the recent accusations of racism by the NAACP against the Tea Party?  Was it Matt Bai's contention in the Times that race is "still too hot to touch"? I don't have an answer.

I only have more questions.

Affirmative Action in Northern Ireland

I've recently read Affirmative Action without Quotas in Northern Ireland, by Christopher McCrudden and his colleagues.  McCrudden is a human rights professor at Oxford and at the University of Michigan Law School.  The paper is published in The Equal Rights Review, Vol. Four (2009).

The paper evaluates positively Northern Ireland's affirmative action program (I didn't know Northern Ireland had an affirmative action program did you?), which is an attempt to reduce discrimination against both Catholics and Protestants in both public sector and private sector employment.  I highly recommend this very short paper (7 pages).

The key highlights of Northern Ireland's successful approach involve "detailed monitoring for firms' composition, plus agreed action plans, where necessary, to ensure for both groups 'fair participation' in employment, avoiding the setting of quotas."  Employers must conduct periodic audits of their workforce composition to determine whether there is fair participation and they must take remedial steps where necessary.  The process was monitored/facilitated by a government agency, which entered into both voluntary agreements and legally-biding agreements with employers.

Some key findings from the study: (a) the affirmative action program was successful; (b) voluntary agreements were more effective than legally-enforceable agreements; (c) the affirmative action program also increased the share of managerial workers in the targeted group; (d) there was a "spill-over" effect on non-regulated employers whose employment practices were more fair as a consequence of the practices of the regulated employers.


This study raised two questions for me.  First, can we in the US learn anything from the Northern Ireland experience?  Second, given that affirmative action is practiced in many countries around the world to redress discrimination of various kinds and in many cases quite effectively, should it not have greater moral authority as an important tool for addressing the effects of discrimination in the United States?

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?

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.

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.

Affirmative Action for [almost] All

In case you needed any proof, a recent report by the Associated Press concluded that athletes applying to college "enjoy strikingly better odds of having admission requirements bent on their behalf." While this is not terribly surprising in and of itself, what is surprising is how widespread the practice is. According to the report, colleges in every major conference bend their admission standards on behalf of applicants with athletic aspirations.

Amused?

Thus, to be clear about one thing: the debate over affirmative action and higher education is about the meaning of merit, often defined narrowly by test scores and gpa. By my rough count, many exceptions exist: residency, geography, and legacy, among others. To this list we may add "athletic proficiency." The reasons for admitting athletes as "special admissions," according to Gerald Gurney, incoming president of the National Association of Academic Advisers for Athletics and senior associate athletic director for academics and student life at the University of Oklahoma, is because the practice "does add value to a university."

How is this for value: at the University of Texas, the average SAT score for freshman football players between 2003 and 2005 was a full 320 points lower all other typical admits to the university. They also happen to sit atop the Forbes list of college football's most valuable teams, at $119 million.

Go 'Horns!

Tell it to the state of Alabama, of course, as they get ready to battle Texas for football supremacy. There is no better value than cold, hard cash, I suppose, and Alabama comes in fifth on the Forbes list, at $92 million.

Try to make sense of this tangled web. A university can consider anything under the sun and nobody cares or objects. In some places, they even demand it. But once a university decides to diversify its student class, lawsuits ensue and propositions spring up in state after state.

Where are Ward Connerly and Barbara Grutter when you need them? Isn't merit the name of the game, and unfairness to none?

Help?

Please?

Don't hold your breath.