Category Archives: Politics

Can We Ever Have Too Much Diversity in Our Classrooms?: Grutter, Parents Involved, Fisher and the Fight Over Race-Based Affirmative Action

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If at first you don’t succeed, sue.

If you haven’t been living under a rock for the past few months, you’ve probably heard that affirmative action is back on the docket of the Supreme Court this term. Even if you have been living under a rock, you’ve probably still heard about it. You may be sick of hearing about it already. (If so, stop reading.) While there is a whole hell of a lot that can (and will) be said about race-based affirmative action in the context of higher education–whether it’s about its consequences for certain minority groups, its main beneficiaries, its effectiveness or its future direction–I’m going to limit myself to an overview of SCOTUS’ recent affirmative action cases and try to point out some of the inconsistencies that the Court must resolve with Fisher v. University of Texas (to be argued this Wednesday), and then close out with a couple of thoughts on affirmative action in general.

Fisher arises directly from a pair of 2003 cases involving the University of Michigan, Gratz v. Bollinger and Grutter v. Bollinger. Jennifer Gratz, a white applicant to the undergraduate school, argued that UM’s practice of granting underrepresented racial minorities automatic “points” in an admissions equation violated the Fourteenth Amendment’s Equal Protection Clause. Barbara Grutter, a white applicant to the law school, argued that UM Law’s practice of taking race into account in its admissions decisions, period, was also unconstitutional.

Now for a little bit of constitutional law: in Equal Protection challenges, a government policy that affords differential treatment between the races is examined under a standard known as “strict scrutiny.” Strict scrutiny means that the policy can only be upheld if the government can show two things: (1) a “compelling state interest,” and (2) “narrowly tailored” means to achieve this goal. Applying this standard, the Supreme Court ruled for Gratz–striking down the undergraduate school’s “bonus” points for underrepresented minorities–but against Grutter. It distinguished the two admissions schemes based on the fact that the law school merely considered race as one of many potential “pluses” and not as an automatic “booster”. Significantly, the Court accepted UM Law’s rationale that student body diversity itself is a compelling state interest “essential” to UM’s educational mission, because we learn to reject racial stereotypes and see members of different groups as individuals (rather than spokespeople for their entire race) when we encounter them frequently in our classrooms.* It then found that the law school had narrowly tailored its use of race in the admissions process. While quotas and automatic points unfairly insulated candidates from comparison with other applicants, taking race into account as part of a holistic process did not. Thus, UM Law’s policy was constitutional. The majority opinion, authored by Sandra Day O’Connor, represented a compromise between the reality of the obstacles still encountered by underrepresented minority students and the American ideal of a pure, colorblind meritocracy. But Justice O’Connor also wrote that she expected race-conscious admissions policies to be “limited in time” and Grutter to be obsolete in twenty-five years.

Who doesn’t want to be a part of this?

The Court is sixteen years ahead of schedule, but it looks ready to limit or even overturn Grutter now. In Fisher v. University of Texas, Abigail Noel Fisher argues that her rejection from UT violates the Equal Protection Clause. Under existing Texas law, the top 10% of students in every high school in the state receives automatic admission to state-funded universities. Race is not taken into account for this group of students, which is how UT gets 70-80% of its incoming class. For the rest of the applicants who do not make the 10% cutoff (now competing to be part of the remaining 20-30% of UT’s incoming class), race is taken into account as one factor among many, per the Grutter rule. Fisher, who is white, didn’t make the top 10% of her high school, and didn’t make the cut when her application was passed down to the pool where race was taken into consideration. She contends that the UT plan is unconstitutional because Texas doesn’t need to give underrepresented minorities a boost in the non-top-10% pile. UT’s race-neutral top-10% plan already results in a significant number of Latino and African American enrollees and makes UT’s classrooms plenty diverse enough without having to disadvantage Asian American and white applicants, Fisher claims. Any further consideration of race is just a smokescreen used by UT to admit a target number of Latinos and African Americans per year–in other words, a racial quota, which is expressly banned by SCOTUS. Texas, on the other hand, doesn’t see a problem with making its classes more racially diverse than the top 10% plan would allow and thus considers race as merely one part (“a factor of a factor of a factor of a factor”) of its holistic look at the non-top-10% applicants.

Fisher never directly argues that Grutter was wrong to accept diversity in higher education as a compelling interest, only that UT has already achieved adequate diversity through race-blind means and should stop there. (In other words, there is a “tipping point” of racial diversity after which you become less diverse by admitting too many students of color, despite the irony that white students are currently admitted at a higher rate under Texas’ non-top-10% holistic consideration than under the top-10% rule, thus… increasing racial diversity at UT.) But Fisher also wants the Court to consider clarifying or overturning Grutter altogether because courts have been too deferential to schools’ admission schemes–not truly questioning whether there is both a compelling state interest and narrowly tailored means–thus turning Grutter into a meaningless and unworkable standard.

On this argument, Fisher may very well find a majority of sympathetic Justices. It’s helpful to her that the perspective of the Court has changed dramatically in the past nine years, now that Sandra Day O’Connor has retired and Samuel Alito and John Roberts have moved in. Justices Alito and Roberts have made no secret of their disapproval of race-based affirmative action. Importantly, Roberts ruled in 2007’s Parents Involved in Community Schools v. Seattle School District No. 1 that Seattle could not use race as a “tiebreaker” when assigning elementary students to schools. Justice Roberts refused to acknowledge that diversity was a compelling state interest at the grade school level, dismissing Seattle’s goals of reducing racial isolation and racially-entrenched housing patterns. Unlike Justice O’Connor, Roberts believes that society is already colorblind enough, and that all this talk about racism is what’s really perpetuating racism: “[t]he way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”

No diversity for you!

Where things get sticky is when we try to make sense of Grutter and Parents Involved together. Parents Involved did not overturn Grutter; both are good law. Justice Roberts made sure to dispose of Grutter early on in his opinion, noting that it was limited to the realm of higher education and therefore did not apply to Parents Involved, which took place in the context of grade schooling. But this seemingly pat division raises inconsistencies when you look at what the Court is saying about diversity in each case: how can student diversity suddenly become compelling at the age of 18 and above when it hasn’t been for the last 12 years? Does it actually make any sense to say that elementary and high school students don’t need to be exposed to peers of different cultures and backgrounds, but then say that this exposure becomes of paramount importance when you leave for college, where you can then learn to reject racial stereotypes? Wouldn’t it be too late by then, and wouldn’t it make more sense to start teaching these lessons at an early age? Roberts wriggled his way out of this in Parents Involved by appealing to nebulous “considerations unique to institutions of higher education,” though he doesn’t bother to elaborate on how exactly this is different for grade school education. But either you believe that the state has a right to cobble together diverse classrooms in order to teach its young people acceptance and respect, or you don’t. It looks as though the Court’s conservative wing–Scalia, Thomas, Roberts and Alito–is eager to take the latter approach.

I am confused but powerful.

As ever, it may come down to Justice Anthony Kennedy, the current swing vote who will surely play as crucial of a role now as Justice O’Connor did in 2003. (Justice Elena Kagan has recused herself, so a 4-4 tie would mean that the Fifth Circuit’s decision upholding the UT plan stands, but if Kennedy votes with the four conservatives, UT loses 5-3.) And on the topic of affirmative action, Justice Kennedy seems to be a bit confused. Kennedy dissented in Grutter. He agreed with Justice O’Connor that diversity was in fact a compelling state interest, but found UM Law’s admissions scheme unconstitutional because he did not think it was narrowly tailored. In Parents Involved, Justice Kennedy again found that the challenged plan met the compelling interest test but not the narrowly tailored requirement. His concurrence broke with Justice Roberts on the question of whether diversity is a compelling educational goal at the grade school level (Kennedy believes it is), but then slammed the Seattle plan for categorizing students as “white” and “non-white” and not being narrowly tailored. Ultimately, his vote alongside the Court’s conservatives decided the case in favor of Parents Involved and the Seattle plan was struck down. What’s unclear, however, is exactly what kind of a plan Justice Kennedy would find narrowly tailored enough, and whether the University of Texas scheme will meet this unknown Kennedy standard. While diversity may survive as a compelling state interest as long as Kennedy hasn’t changed his mind, the UT plan might not–and if it doesn’t, schools across the country will be sent scrambling once again to devise a plan that does pass muster.** Diversity is nice, the Court seems to be saying, but we still haven’t figured out what the best way to achieve that is, or where we cross over the line into too much diversity.

As a final note, it’s worth remembering that colleges and grad schools use affirmative action in their admissions decisions in a multitude of ways that extend well beyond race. Justice O’Connor noted in Grutter that the University of Michigan’s admissions policy included “many possible bases for diversity admissions,” including languages spoken, community service performed and hardships overcome. Studies consistently show that female students get better grades in school and outperform men in universities, but colleges use gender affirmative action to try to admit a male-female student ratio as close to 50-50 as possible (since a student body that skews too much toward one gender will hurt campus social life and be “unappealing”). Schools use geographic affirmative action–if there’s 50 applicants from California and 50 applicants from New York with perfect GPA’s and perfect SAT scores and one applicant from North Dakota with an almost-perfect GPA and almost-perfect SAT scores, there’s a good chance that the North Dakotan is going to be admitted ahead of at least some of the perfect California and NY applicants despite the lower numbers. Athletes get preferences. Legacies get preferences (sometimes getting a boost in admissions chances by as much as a whopping 45%). And the list goes on and on. If a school has 50 applications from clarinet players and one from a piccolo player and it just so happens that the university orchestra’s one piccolo has just graduated, the piccoloist might get a bit of a boost. Amidst a pile of 50 applications from students who speak French as a second language and one from a student who is fluent in Croatian, the Croatian speaker might get some special consideration.

Despite all this, very few people ever kick up a big fuss about the injustices in the admissions process that discriminate against non-athletes, non-legacies, non-piccolo players, non-Croatian speakers and women, choosing instead to cry foul about race-based preferences. After all, Abigail Fisher isn’t mad about the male students or the children of UT alumni who might have cost her a shot at being a Longhorn. She’s mad about the African American and Latino students who got in before her, because it’s somehow easier to swallow the idea that students of color are the ones “stealing” spots they don’t deserve, and that they bring less to the college or grad school experience than other “preferred” students do. Of course, the existing system of affirmative action is not perfect, and there are a lot of ideas out there about what we can do to improve it.*** But the Supreme Court would do well to consider the realities of the holistic admissions process–which already have built-in considerations that benefit white/upper-class/male applicants and that have largely been left unchallenged in the courts–before it tries to convince us that we’ve reached our colorblind ideal, sixteen years ahead of schedule.

—

*The idea that racial diversity in the context of education can be a compelling state interest is not a new one; SCOTUS had accepted this argument earlier in the 1978 case Regents of the University of California v. Bakke.

**Or they could switch to a completely race-blind admissions process in which top-scoring students constitute all of the incoming class. In the absolute worst-case scenario for supporters of affirmative action, Kennedy may agree with Fisher’s argument that it’s time to stop considering race in higher education, period, and overturn Grutter.

***Richard Kahlenberg, who I’ve linked to multiple times in this post, has done extensive research into both race-based and legacy affirmative action and advocates a switch to income-based affirmative action, an approach which, he argues, would benefit many underrepresented minority students as well as students from lower-income white and Asian American families.

Victoria Kwan holds a J.D. from Columbia Law School in New York and has just completed a clerkship with a judge in Anchorage, Alaska. She tweets as @nerdmeetsboy and will continue to post periodically here on legal issues. Rumor has it she and Jay Pinho are dating.

For the love of all things holy, stop distorting the tax debate

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Pulitzer Prize-winning author Buzz Bissinger has a column today on the Daily Beast titled “Why I’m Voting for Mitt Romney:”

By instinct I still cling to my Democrat roots. But I admit that as I get older, on the cusp of 58, I am moving more to the center or even tweaking right, or at least not tied to any ideology. Those making more than $250,000 should pay more taxes, and that does include me. But I also am tired of Obama’s constant demonization, of those he spits out as “millionaires and billionaires,” as pariahs. Romney’s comments at a fundraiser were stupid, but 47 percent of Americans do not pay federal income taxes. Yes, a majority are poor and seniors. But millions do not pay such taxes with incomes of more than $50,000, and whether it’s as little as $10, every American should contribute both as a patriotic obligation and skin in the game. This is our country, not our country club.

This constant emphasis on the “47 percent of Americans [that] do not pay federal income taxes” is as boring and repetitive as it is completely and utterly irrelevant. The fact that this figure continues to play a large role in our national tax discussion is proof positive of the utter lack of due diligence on the part of journalists around the nation, who’ve collectively abdicated their responsibility to readers by failing to dig deeper.

So for the millionth time, federal income tax rates do not matter. Total tax rates matter. Think about it: what is the central issue in today’s tax arguments? The key question is one of progressivity and fairness: how much, if at all, should tax rates rise with income levels? Should the poor have to pay the same percentage of their total income to their federal, state, and local governments as the rich do? Or should taxes paid to all levels of government rise relative to income, as income itself rises? Responses to this question are as numerous as respondents, and that’s OK.

It’s absolutely absurd, on the other hand, for people to continue basing their tax system preferences on deliberately misleading data. Federal income taxes cover only one portion of total tax liabilities. There are, additionally, payroll taxes, state taxes, and local taxes. And this is the key problem with using only federal income tax rates as indicative of anything.

The Republican Party knows this. It’s why its standard-bearer, Mitt Romney, insisted on the self-victimization of the 47% who don’t pay federal income tax — because it’s a number that sounds incredibly high, a number that advances the GOP’s agenda and lends legitimacy to the accusation of “class warfare” against Barack Obama.

The problem is that, just as one would expect, isolating the most politically advantageous portion of Americans’ total tax liabilities produces a phenomenally distorted piece of data. (Imagine if the Democratic Party insisted its national platform was widely supported throughout the entire nation, based on a poll conducted exclusively among New York City residents. This is an extreme hypothetical, to be sure, but it’s illustrative of the type of thinking being used by Republicans to disguise the truth about taxes.)

So what is the total income and tax intake of Americans? Here’s a helpful graph, courtesy of Mother Jones, that includes 2009 income and tax data:

Notice a couple things. First, the bars are not equally distributed: the first four pairs represent the lowest four quintiles of the American population by income level, while the last four pairs collectively constitute the top 20%. This is necessary because the top income quintile dwarfs the other quintiles, and leaving it in one piece would render the graph more difficult to interpret in a useful way.

Secondly, the share of total taxes paid by each slice of the population is roughly equivalent to its share of national income. In other words, our tax system is much, much less progressive than Mitt Romney & Co. would have us believe. And this is why, when politicians and — even worse — journalists start throwing around numbers like 47%, it would behoove us to look into the data instead of taking it at face value. It also means that, if anyone’s conducting class warfare, it certainly isn’t Barack Obama.

 

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The Nation casts its vote

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In the ongoing should-we-or-shouldn’t-we debate as to voting once again for Barack Obama, The Nation takes stock of the situation and says yes:

Progressive opinions on Barack Obama’s first term are as conflicted as his record. These differences are a sign of a diverse and spirited left, and we welcome continued debate in our pages about the president’s record and policies. But that discussion should not obscure what is at stake in this election. A victory for Mitt Romney and Paul Ryan in November would validate the reactionary extremists who have captured the Republican Party. It would represent the triumph of social Darwinism, the religious right, corporate power and the big money donors who thrive in a new Gilded Age of inequality. It would strike a devastating blow to progressive values and movements, locking us in rear-guard actions on a range of issues—from the rights of women, minorities, immigrants and LGBT people to the preservation of social insurance programs and a progressive tax structure. Inside the Democratic Party, Obama’s defeat would embolden the Blue Dogs and New Dems, who have greased the party’s slide to the right. Whatever disappointments we have with Obama’s first term—and there are many—progressives have a profound interest in the popular rejection of the Romney/Ryan ticket…

Indeed, this is true for any cause that progressives care about. Republican rule in Washington promises not just the closing of progressive possibilities but the repeal of gains won by the great social movements of the twentieth century. It would mean the entrenchment of the class interests of a tiny, disconnected elite that looks down on the rest of society with barely concealed contempt and has made explicit its aim to shred the social contract and rig the game in its favor, whether through an assault on voting rights, an expansion of the power of big money in politics or by stacking the courts with right-wing extremists.

The threat is clear: we can’t afford a Romney/Ryan victory…

Notice how it’s really more about defeating Romney than supporting Obama. But it looks as if that’s the only good option we’ll have next month: holding our noses and hoping for the best.

And the debate post-mortem continues

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The New Yorker‘s excellent editor, David Remnick, interviewed Obama’s old friends and mentors about his debate performance:

“The reason I hate campaigns,” Edley continued, “is that being right on the substance isn’t good enough. That’s why I’m an academic. Of course, Obama knows that, but it’s also a question of what he cares about. I admire him for caring more about the substance than the tactics even if it makes me grimace when I watch him. Why does he do it? Look, we all do things in the short term that are not consistent with a long-term goal, whether it’s failing to save for retirement or watching TV instead of doing your homework. It’s called being human rather than being the ideal client of your handlers. It makes it harder to achieve his goal, which is to get reëlected. But if you wanted authenticity you got it [on Wednesday] night. And, really, you got it in an unsurprising way. We know that Obama skews cerebral and that he has never liked debates as a way to engage issues. He has said that many times.”

I’m partially uncomfortable with this reading of the first presidential debate. Yes, Obama “skews cerebral” (whatever that means). And yes, it may be true that he dislikes debates. But part of the job of being President, or at least of running for reelection, is to confidently, assertively, and (if need be) aggressively point out the blatant lies and deceptions of your opponent — especially if that opponent swerved to the center just in time for the first debate after spending a year and a half saying something completely different.

Obama’s lack of the fighter instinct is worrying, and the implications extend beyond these presidential debates. We saw it in the healthcare fight in 2010, when he allowed Republicans to manhandle him and destroy his message because he simply didn’t have the will or the desire to hit back. We glimpsed it as well at the Democratic National Convention this year, when Bill Clinton provided an abler defense of the Obama administration than the president himself ever has. And we saw it in last Wednesday’s inaugural debate, when Mitt Romney lied and deceived his way to a startling victory — one free of facts and consistency, to be sure, but no less convincing as a piece of political theater. If Obama really intends to spend another four years in the White House, he may want to start by making sure he doesn’t let Romney run all over him with falsities and grand — but vague and mathematically impossible — budget plans.

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Obama and the super-rich

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A couple days on the Internet is a lifetime anywhere else, and so I realize that Chrystia Freeland’s phenomenal New Yorker piece “Super-Rich Irony” has already been read, digested, and analyzed by countless cybernetizens for several days now. That said, it is, I think, such a crucial article that I felt the need to post something about it as well. “Super-Rich Irony” demonstrates just how fragile a grip on reality the wealthiest among us have, and the implications of this collective delusion are enormous.

Here’s one particularly illuminating passage:

Although he voted for McCain in 2008, Cooperman was not compelled to enter the political debate until June, 2011, when he saw the President appear on TV during the debt-ceiling battle. Obama urged America’s “millionaires and billionaires” to pay their fair share, pointing out that they were doing well at a time when both the American middle class and the American federal treasury were under pressure. “If you are a wealthy C.E.O. or hedge-fund manager in America right now, your taxes are lower than they have ever been. They are lower than they have been since the nineteen-fifties,” the President said. “You can still ride on your corporate jet. You’re just going to have to pay a little more.”

Cooperman regarded the comments as a declaration of class warfare, and began to criticize Obama publicly. In September, at a CNBC conference in New York, he compared Hitler’s rise to power with Obama’s ascent to the Presidency, citing disaffected majorities in both countries who elected inexperienced leaders.

Later on, a helpful summation of the über-wealthy’s view of Obama:

The President, in Cooperman’s view, draws political support from those who are dependent on government. Last October, in a question-and-answer session at a Thomson Reuters event, Cooperman said, “Our problem, frankly, is as long as the President remains anti-wealth, anti-business, anti-energy, anti-private-aviation, he will never get the business community behind him. The problem and the complication is the forty or fifty per cent of the country on the dole that support him.”

The full article is worth a careful read. But the sheer audacity of these accusations is breathtaking. Here’s Leon Cooperman, a man who makes his money speculating on the financial markets, discussing Obama’s lack of qualifications:

Cooperman’s pride in his work ethic is one source of his disdain for Obama. “When he ran for President, he’d never worked a day in his life. Never held a job,” he said. Obama had, of course, worked—as a business researcher, a community organizer, a law professor, and an attorney at a law firm, not to mention an Illinois state legislator and a U.S. senator, before being elected President. But Cooperman was unimpressed. “He went into government service right out of Harvard,” he said. “He never made payroll. He’s never built anything.”

Again, Cooperman runs a hedge fund. The guy’s enormous net worth has been accumulated via a series of (mostly lucky) life and financial decisions that put him in the right place at the right time. This is a point Freeland makes very well:

Between 1991, when Cooperman founded Omega, and the 2008 financial crisis was the best time in history to make a fortune in finance. Cooperman’s partners who stayed behind at Goldman Sachs are hardly paupers—and those who stuck around for the 1999 I.P.O. are probably multimillionaires—but the real windfalls on Wall Street have been made by the financiers who founded their own investment firms in the period that Cooperman did.

Cooperman was lucky enough to study at Columbia Business School, then he jumped to Goldman Sachs and eventually became a partner there before founding Omega. Was it hard work? I’m sure. Community organizing is also hard work. Making it as an elected official is enormously hard work. So is working at a law firm and teaching at a law school. All of these positions, in fact, have at least as much of a direct and tangible impact on people’s lives as moving futures contracts on a trading floor does.

So to hear Obama’s work qualifications disparaged by Cooperman — many of whose wealthy peers have collectively pillaged the American economy, been bailed out by the very victims of their recklessness, and have continued onward without showing remorse and (more devastatingly) without serving prison terms for the blatant fraud they perpetrated on their clients — should enrage any thinking American. To hear Cooperman tell it, the rich have quietly suffered untold abuse and recriminations under Obama’s Third Reich. And yet, what is this?

His Administration supported the seven-hundred-billion-dollar tarp rescue package for Wall Street, and resisted calls from the Nobel Prize winners Joseph Stiglitz and Paul Krugman, and others on the left, to nationalize the big banks in exchange for that largesse. At the end of September, the S. & P. 500, the benchmark U.S. stock index, had rebounded to just 6.9 per cent below its all-time pre-crisis high, on October 9, 2007. The economists Emmanuel Saez and Thomas Piketty have found that ninety-three per cent of the gains during the 2009-10 recovery went to the top one per cent of earners. Those seated around the table at dinner with Al Gore had done even better: the top 0.01 per cent captured thirty-seven per cent of the total recovery pie, with a rebound in their incomes of more than twenty per cent, which amounted to an additional $4.2 million each.

When I hear the term “class warfare,” I think of men like Leon Cooperman: hallucinating by the bright lights of their own tainted, zero-sum “successes,” they bemoan the centrist policies of the president whose meek statements urging the rich to “pay their fair share” may be the last, best hope of a society lurching towards banana republicanism. And when that breaking point arrives, the very rich will fall alongside everyone else. They’ll have no one to blame but themselves.

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