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