SB 185 Follow Up
Although the passing of Steve Jobs is no doubt the topic of the day, law students should note the passing of another influential thinker: Derrick Bell, often credited as the father of Critical Race Theory. But because theory is boring, I’m going to write about one of the more recent applications of race-conscious thinking: SB 185.
SB 185, which prompted the baking of many tasty treats last week, authorizes the University of California to "consider race, gender, ethnicity, national origin, geographic origin, and household income, along with other relevant factors, in undergraduate and graduate admissions, so long as no preference is given."
The last bit of that is crucial, as Prop 209 prohibits giving "preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin". The obvious question: Can you "consider" race, gender, and other immutable characteristics without giving "preferential treatment"?
As our own Professor Oppy points out, while SB 185's authors intended to push as far as federal precedent in Grutter v. Bollinger would allow, it's unclear how far the definition of "preference" goes under California law. So in the spirit of law school, let's throw out some hypos.
Plus Twenty - What's clearly not allowed is assigning an extra twenty points to students of a particular race. That's the scheme struck down in Gratz v. Bollinger. And it's literally a preference based on race.
Critical Mass - What about letting enough students of a particular minority group in to build up critical mass? Grutter suggests this is OK, but most strategies to build critical mass look a lot like "a sliding point scale of preference" or "preference until we reach a certain quota".
More importantly, Grutter itself suggests such a scheme is a form of "preference" and wouldn't pass muster under California law. 539 U.S. at 342. Grutter says that critical mass can be a sufficiently compelling purpose for allowing racial preference, but Prop 209 bans preference altogether.
Hardship - What current law clearly does allow is consideration of hardship. Suppose an applicant writes a personal statement about being the only Latina in an all-white school, and about her difficulties in overcoming stereotypes, cultural barriers, and so forth. While her Latina identity is a crucial part of her story, the overall theme is about overcoming hardship, not race.
But it's unclear whether SB 185 really adds anything here. Personal statements and concerns about hardship are fuzzy. Admissions officers can already argue they simply found one statement more persuasive than the other. The fact the most persuasive statements tended to be about overcoming racial hardship? Coincidence.
Eminem and Yao Ming - In the above examples, the applicant is affirmatively raising the issue of race. What if the applicant doesn't raise the issue though? For example, suppose a white rapper or an Asian basketball player apply, but don't explicitly mention how their race has affected these activities. May the University assume that white rappers have more to offer than black rappers? Or that Asian basketball players are more likely to experience hardship than black players?
Or more likely, may the University discount the effect of low SAT scores for a particular minority group because those minorities have historically scored below average on standardized tests?
This looks like preference to me, but it's not the same kind of preference as a simple +20 points for minority students. Rather, it looks like a set of multiple constantly shifting preferences, the overall effect of which is somewhat unpredictable. If SB 185 makes it to the courts, I'd expect that it's these sort of concerns that give judges the most trouble.
From a public policy perspective though, is this what we want? I'm a huge fan of diversity in theory. But I get queasy thinking about admission officers making some subjective valuation of white rappers vs. Asian basketball players. Or Mormon civil rights activists vs. lesbian ROTC cadets. Turkish English majors vs. Native American nuclear physicists. For all our concerns about correcting old biases, this also creates a lot of room to hide new ones.
Thoughts?
Update: Jerry Brown has vetoed SB 185.
SB 185, which prompted the baking of many tasty treats last week, authorizes the University of California to "consider race, gender, ethnicity, national origin, geographic origin, and household income, along with other relevant factors, in undergraduate and graduate admissions, so long as no preference is given."
The last bit of that is crucial, as Prop 209 prohibits giving "preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin". The obvious question: Can you "consider" race, gender, and other immutable characteristics without giving "preferential treatment"?
As our own Professor Oppy points out, while SB 185's authors intended to push as far as federal precedent in Grutter v. Bollinger would allow, it's unclear how far the definition of "preference" goes under California law. So in the spirit of law school, let's throw out some hypos.
Plus Twenty - What's clearly not allowed is assigning an extra twenty points to students of a particular race. That's the scheme struck down in Gratz v. Bollinger. And it's literally a preference based on race.
Critical Mass - What about letting enough students of a particular minority group in to build up critical mass? Grutter suggests this is OK, but most strategies to build critical mass look a lot like "a sliding point scale of preference" or "preference until we reach a certain quota".
More importantly, Grutter itself suggests such a scheme is a form of "preference" and wouldn't pass muster under California law. 539 U.S. at 342. Grutter says that critical mass can be a sufficiently compelling purpose for allowing racial preference, but Prop 209 bans preference altogether.
Hardship - What current law clearly does allow is consideration of hardship. Suppose an applicant writes a personal statement about being the only Latina in an all-white school, and about her difficulties in overcoming stereotypes, cultural barriers, and so forth. While her Latina identity is a crucial part of her story, the overall theme is about overcoming hardship, not race.
But it's unclear whether SB 185 really adds anything here. Personal statements and concerns about hardship are fuzzy. Admissions officers can already argue they simply found one statement more persuasive than the other. The fact the most persuasive statements tended to be about overcoming racial hardship? Coincidence.
Eminem and Yao Ming - In the above examples, the applicant is affirmatively raising the issue of race. What if the applicant doesn't raise the issue though? For example, suppose a white rapper or an Asian basketball player apply, but don't explicitly mention how their race has affected these activities. May the University assume that white rappers have more to offer than black rappers? Or that Asian basketball players are more likely to experience hardship than black players?
Or more likely, may the University discount the effect of low SAT scores for a particular minority group because those minorities have historically scored below average on standardized tests?
This looks like preference to me, but it's not the same kind of preference as a simple +20 points for minority students. Rather, it looks like a set of multiple constantly shifting preferences, the overall effect of which is somewhat unpredictable. If SB 185 makes it to the courts, I'd expect that it's these sort of concerns that give judges the most trouble.
From a public policy perspective though, is this what we want? I'm a huge fan of diversity in theory. But I get queasy thinking about admission officers making some subjective valuation of white rappers vs. Asian basketball players. Or Mormon civil rights activists vs. lesbian ROTC cadets. Turkish English majors vs. Native American nuclear physicists. For all our concerns about correcting old biases, this also creates a lot of room to hide new ones.
Thoughts?
Update: Jerry Brown has vetoed SB 185.
Labels: Affirmative Action, Prop. 209, tl;dr
posted by A. Fong at 4:54 PM
19 Comments:
I'm sorry but the word "Latina" drives me crazy. The English word is Latin, Latin-American, and probably even the all-encompassing masculine "Latino" is passable now (though probably not technically an English word).
In English, there is generally no gender distinction with adjectives or nouns. While obviously "Latina" is a borrowed word, it is unprecedented to adopt a foreign word and use it differently based on gender. A woman, a transgendered person, an asexual person, a rock, a tree, or whatever person or object you can think of that is from Latin-America is referred to as Latin or Latino in the English language.
This is not to take anything away from the identity or culture of Spanish speakers who consider themselves, in Spanish, "latina." It is simply proper grammar.
That is all.
You must really go ape shit at "alumnae" then.
Romani ite domum.
@5:25, I specifically intended to use the feminine form of the word. One of things I noticed during 1L year was that all the professors used feminine pronouns to refer to individuals in the abstract. Must have rubbed off on me.
I'm sure there's a fun debate about gender and race lurking around here somewhere too.
I don't know if it's fun, but the debate goes like this:
Student [to professor, at office hours]: Why do you use only feminine pronouns when you lecture in class?
Professor: Because I want no part of the cultural bias our language exhibits toward women.
Student: But, um, what does that have to do with the torts lecture?
Professor: I'm trying to change the current of popular usage.
Student: You mean 'the current of hundreds of years of history.' Aren't you being a tad presumptuous about the amount of influence you exert?
Professor: Aren't you being a tad negative? A journey of a thousand miles . . . think globally act locally . . .
Student: I'm not being negative. It's that I think you're not being straight with me.
Professor: Oh? You do know that "straight" is another symptom of another latent cultural bias, don't you?
Student: That's not what I'm talking about right now. What I'm talking about is the reason you use the feminine pronoun. And I think that reason is this: your use of the feminine pronoun is calculated to show others how much gender issues upset you -- so much indeed that it has affected your speech -- because you think that by doing so you will score points with your colleagues.
Professor: I don't care how what colleagues think; I have tenure.
Student: Contraire. Caring how your colleagues think is exactly what got you tenure in the first place.
Professor: Do you really believe that I believe my colleagues will believe I'm less of a person if I say "he" rather than "she"?
Student: Yes. Well, no. I believe you believe they will believe you are MORE of a person if they see you making a deliberate choice to draw attention to the feminine pronoun.
Professor: That's some pretty murky and nuanced psychological speculation.
Student: Not really. There is little lurk and no nuance to rote conformism, which is what I see in this case. Really, I'm using speculation at all.
Professor *thinking but not saying*: Here is something to speculate on, you little shit: speculate on whether and how much you are going to enjoy the view from P's-ville.
Professor, out loud: That's an interesting idea and, although I have not given it much thought, you should write a paper. After all, we encourage diverse points of view here at Berkeley -- it's our best feature -- and while I admit I disagree with you, I cherish your point of view as much as . . . as much as . . . as much as a general cherishes her best fighting horse!
First of all, great inaugural post A. Fong!
Your discussion raised a question for me - which may, in fact, be incredibly dumb - but here goes: How is selecting an Asian basketball player for admission (presumably because that is an interesting combination) any different from admitting someone because they are a physicist who is also a male model? Or a woman football player? Or an abalone diver with a perfect SAT score? When an admissions officer is sizing up a person as a package of different traits, skills, hobbies, privileges, and disadvantages in order to determine who would add richness and diversity to a university, why shouldn't race provide an additional dimension to the overall picture of each candidate?
I suppose the answer is: It's too easy for race to become the dominant factor. To compensate, we either need protections in place to make sure admissions officers aren't adding +20 consciously or subconsciously when the official policy says merely to "consider" race, or we don't allow race to factor in at all. While the former option is incredibly difficult to hammer out, the latter option seems perverse to me: It's untenable to sever applicants from critical components of their identities because "it’s hard" otherwise.
Where does that leave me on SB 185? I don't know... I'm not sure what the legislature plans to do (if anything) to make sure that this works well in practice.
@L'Alex, why would a physicist who's a male model be interesting? Presumably because physicists are generally not that good looking (biologists on the other hand ...).
But why is an Asian basketball player interest? Because Asians suck at basketball. That might be empirically true, but it's a racial stereotype.
And for historical reasons (or because race is immutable) society finds racial stereotypes to be more offensive than stereotypes about physicists (nerds).
But back to Prop 209 for a sec: a stereotype isn't necessarily a preference. I think if the rule was "discount Asian SAT stores because they're good at standardized tests," you'd run into Prop 209. But if you give preference to Asian basketball players over Asian mathematicians because "Asians are better at math than they are basketball", that's not as obvious a problem.
Anyhow, I'm torn on SB 185 as well. I bet it's one of those "in theory" vs. "in practice" things.
. . . why shouldn't race provide an additional dimension to the overall picture of each candidate?
Because one cannot justify that conclusion without defending a racist assumption: that people of different races are inherently different.
The best case for AA treats race as a proxy for socioeconomic differences that are meaningful from a educational diversity standpoint. Differences like income, family education, etc. The problems (from my point of view) are that the proxy has proven notoriously inaccurate, and that it is difficult to justify why we need a proxy for factors we can look at directly.
(Sent from my phone.)
"Because Asians suck at basketball"
Clearly you have not run with some of the undergrads at the RSF open gym. A lot of the Asians are serious ballers. True overall? I have no idea, nor do I really care actually.
Pat, I disagree with you about the racist assumption: I can think that all races are inherently equal, but recognize that minorities experience more racism, discrimination, stereotypes, etc. than white people.
Now, does that mean I think it's right to assume that someone had a harder or easier time in life just because they belong to a certain racial group? No. But in cases where race HAS had some impact on a person's experiences (a majority of the cases, if you ask me), it certainly deserves consideration in the admissions process.
Actually, you're making my point, at least in the second paragraph.
People aren't more deserving of admission because they belong to a particular race, but because of their own unique circumstances. When measuring those circumstances, race tuens out to be neither the dominant nor even the relevant factor; it's experience and background that count.
From that perspective, race-base preferences in admissions miss the point -- they're a cheap proxy for institutions with priorities other than true diversity.
(Sent from my phone.)
Patrick's phone makes a lot of sense.
Sorry to hijack this thread but...Can you guys start a thread about the Occupy Wall Street protest and similar movements across the country? I'm working here in New York (alum '10) and it's getting a LOT of press, obviously. I would be interested to see what everyone's views are on the merits/direction of the protests, since Berkeley's such a social activist-y place, but since many Berkeley Law students are also compassionate capitalist types (I think I made that term up, but hopefully you know what I mean).
Actually, Patrick, race provides an extra dimension not because the races are inherently different but because our society treats persons of different races as different. This experience is in addition to experience based on socioeconomic factors such as family income, family structure, neighborhood, school makeup, etc.
Where I disagree with you, Pat, is the "cheap proxy" part - I actually think that in some circumstances, race can provide a very useful proxy to help an admissions officer understand what a person has experienced in life.
I'm sure some people will jump on that last statement as endorsing the use of stereotypes - but before pooh-poohing the use of generalities in all circumstances, think about the absurd consequences of NOT EVER using them: Do you really expect a person who has experienced a lifetime of racism, discrimination, etc. to catalogue for the admissions officer every single instance of that treatment disadvantaging them, or posing additional obstacles to their success? Are they supposed to use their admissions essay to detail a parade of societal evils without employing the useful proxy of race to explain their situation? And is the admissions officer really supposed to pretend - in the absence of such a detailed description of the candidate's experiences - that everyone is treated equally in our society?
In my opinion, the evils of such a system of starry-eyed denial are far greater than the evils of a system in which admissions officers are allowed to consider race as an "extra dimension" of each candidate's life experience.
No, L'Alex, I don't expect any of the things you propose in the middle paragraph -- they're over the top and absurd. I did not say "not ever" use them (caps or no caps) and frankly it's silly of you to assert that the only choice college admissions officers have is to employ full fledged AA type preferences, or else "NOT EVER" consider race in any capacity.
In case you care to respond to my actual points, let me remind you what they were: (1) a school that seeks diversity should consider what counts as diverse and then look for that actual thing (not some weird proxy), and (2) any person who believes that race is -- standing alone -- enough to make an individual "diverse" in a meaningful way is guilty of making a racist assumption about that individual.
I don't think either of those observations are particularly unreasonable, though they are uncomfortable.
First of all, no need to get so cranky.
Second, I think it's YOU (pardon the caps) who are making MY points now. You indicate that you're not opposed to "considering" race in at least some capacity (which is what I've been arguing for - and what SB 185 proposes), though you seem to be against full-fledged AA-type "preferencing" of students based on race (which is something I've never argued for, and which A. Fong very neatly pointed out is illegal).
In case I'm not responding to your points enough, let me be clear: (1) I think a university should be able to CONSIDER race where it assists in understanding a candidate's experiences (e.g. where it is more than a "cheap proxy"), and (2) Your second point is totally moot, for reasons that I have already pointed out: Equating race with diversity (in at least some circumstances) doesn't entail a racist assumption because every college applicant has appox. 18 years of life experience during which (for some) race has played a critical role. Distinguishing for whom and how race should be "considered" is the difficulty with SB 185, and as I stated before, I have no solutions to offer on that front and am eager to see what the CA legislature proposes.
And as a philosophical aside: I think the fundamental difference between our views is that you treat race as something that is neatly compartmentalized from everything else about a person - and I don't. For some people, race is inseparable from life experience and, for that reason, we should grant admissions officers the ability to evaluate those experiences as a whole (race and all).
L'Alex you miss the point, again.
Here's how... you talk about "those experiences as a whole (race and all)." If you stop to think about what those experiences are, e.g. experiencing exclusion, overcoming adversity, etc., you are then focusing on the non-racial qualities that you think should matter in admissions. The color of one's skin, an utterly arbitrary physiological condition like height or eye color, is not the quality you are looking for. Said another way, you don't want people whose skin happens to be black, you want people who have experienced exclusion (or racism) but have overcome it.
This is what Patrick means when he says "a school that seeks diversity should consider what counts as diverse and then look for that actual thing (not some weird proxy)"
His next point follows logically. If you then use race as a factor to, as you put it, "assist[] in understanding a candidate's experiences (e.g. where it is more than a "cheap proxy)" , you are then drawing a line between one quality, race, as indicative of another, overcoming adversity/etc. This is what Patrick means by a racist assumption. You presume that race -> good admissions qualities. By using the word "assist", you make his point about it being a proxy. The proxy of race, in your view, assists the admissions officer in determining certain other beneficial qualities in a candidate. We can debate the merits of this as a policy, but you cannot deny the transitive or proxy use of race in "assisting" admissions officers.
The last bit of that is crucial, as Prop 209 prohibits giving "preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin". From a public policy perspective though, is this what we want? I'm a huge fan of diversity in theory. Nice sharing.
As our own Professor Oppy points out, while SB 185's authors intended to push as far as federal precedent in Grutter v. Bollinger would allow, it's unclear how far the definition of "preference" goes under California law. So in the spirit of law school, let's throw out some hypos.
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