Hooked on the Horns of a Dilemma: Great Expectasians in Fisher v. Texas

The University of Texas affirmative action case of Fisher v Texas reminds us that UCLA stands for University for Caucasians Lost among Asians (link no longer available). And at 38% UCLA is behind other University of California campuses, such as Irvine (50%) and Berkeley (41%).  Stanford lags behind (or forges ahead?) with only 24% Asian enrollment.

Of course these enrollment percentages are multifold greater than the Asian population, even in southern California. As President Clinton once hyperbolically asserted, without racial preferences for others, some universities would have all-Asian freshman classes. At the University of Texas, Austin the freshman class was just under 16%, while the Asian population of Texas was just under 4%.  In light of such figures, how can Asian-Americans, the argument goes, claim discrimination?

A glance at the briefs in the upcoming (October 10) Supreme Court case of Fisher v. Texas reveals the variety of arguments for and against preferences. The appellant, an unsuccessful white applicant, Abigail Fisher, claims that she was denied admission to the University of Texas while minority students who had considerably lower SAT and academic achievements were admitted. Not granted automatic admission under the top ten percent of one’s public high school class track, she did not qualify under the other track. (Disclosures: My wife, Althea Nagai, cosigned the Abigail Thernstrom et al. brief and also works for the Center for Equal Opportunity, which filed a brief together with the Pacific Legal Foundation and National Association of Scholars. I co-signed the brief of Current and Former Federal Civil Rights Officials.)

The opposing sides in debates over affirmative action generally fall into two camps—the conservative one of color-blind merit, and the multiculturalist one of transforming society along racial and ethnic lines. Of course the universities can’t say they are interested in producing racial and ethnic diversity for its own sake and need to allege some other goal. Moreover, they may not impose racial quotas, though they may take account of race (see Justice Breyer’s differing votes in the University of Michigan undergraduate versus the law school cases). But universities simply don’t exist for the sake of academic merit by itself, and multiculturalism, an exotic flower of contemporary nihilism, is an assault on reason and intellectual honesty. Universities have longstanding roles in developing citizenship (“leadership”), commerce, faith, and character. Even before the aspirations of early modern political philosophy and Progressivism, the universities were not solely devoted to fostering the contemplative life. A color-blind Constitution does govern America, including its public universities, but its application to particular instances is always a prudential, that is, political matter. Political theorists will recognize this as the problem of the best practicable regime.

To seek a more practical end, some try to work between these contrasts of merit and multiculturalism. The brief by Richard Sander and Stuart Taylor dwells on academic “mismatch”—putting unqualified students into selective colleges where they are in the bottom of their classes statistically imperils their academic and professional future. (In another study, Sander and Taylor also show how the color-blind standard, following quickly made adjustments, improved overall black outcomes in California.) The admissions office sets the stage for a slow-motion trainwreck that the faculty and ethnic studies counselors try to clean up. When minority background is being “rewarded” a huge plus by admissions, the harm is even greater than the inappropriateness of the policy—Ms. Fisher’s exclusion aside. What sadist would want to put the first kid in the family to go to college to enter into what would all too often become a demolition derby? Is affirmative action a live-fire, four (or more)-year reality show?

In the face of these and other disasters, I know affirmative action programs that led to recruitment of black students who were academically superior to the white students. It was actually pretty simple. At the large Midwestern state university I once taught at, quite renown for drinking and sports, the admissions standards for the overall student body were so low that any element of academic selectivity, such as an affirmative action program might produce, led to those recruits being a cut or more above the majority white students. There you have it: affirmative action that produces meritorious results. (N.B.—to file away for future reference—I believe without exception these African-American students all graduated from inner-city Catholic high schools. N.B. #2: The State of Texas has a “color-blind” affirmative action plan that guarantees admission to the top ten percent of each graduating class at public high schools. Private schools, including religious ones, are excluded.)

These peculiarities of affirmative action aside, the real problem we face is the discrimination against Asian Americans. Here is a group whose mean SAT scores are 230 points above those of black applicants. With a policy of attempting to mirror the demographics of the State (or some other measure), one Asian group protested that Asian applicants had to meet a far more rigorous evaluation than black or Hispanic applicants. The statistical variance also reflected, critics say, unflattering stereotypes of Asians held by admissions officials. All that suffering under a Tiger Mother, only to meet with rejection! Let the traditional civil rights standard of “strict scrutiny” protect Asian-Americans in their admissions, and justice will be done, this argument goes.

In contrast, two Asian-American briefs bluster on behalf of the Texas preferences, arguing that the high numbers alone show that this enlightened policy is expanding opportunity and not promoting discrimination. Texas has 11.8% blacks but only 4.5% at the University of Texas. As with blacks, some academically lagging Asian subgroups may eventually benefit from preferences (how, they never say). One brief even boldly asserts that the higher rejection rate for Asians comes about because they apply for the most competitive programs in the University (e.g., sciences and engineering). Of course, they cannot make such a case without offering group comparisons (not to mention comparative graduation rates), which they decline to do.

It is hard to resist comparing Asian discrimination with the appalling injustice of anti-Jewish policies in various selective universities. The comparison works only partially. The Jewish quotas were part of an attempt to preserve a Protestant establishment against the rise of a group that threatened its dominance in not only the universities but in the ruling elite of the country—and that opposition applied to other unwelcome groups, too, such as  southern Europeans, Catholics (see McGeorge Bundy’s dismissal of William F. Buckley’s God and Man at Yale), and others. This threat to established power may be involved in Asian exclusion today, but there is a more obvious and insidious explanation. Asians, along with high-achieving white groups, are mere “bumps in the road” or collateral damage in the ongoing war for ideological transformation of the universities. Indeed, I heard the Asian-American representative on President Clinton’s Commission on Race, a Korean-American woman, make the argument that other groups had suffered more than Asians, and they should get deference. Asians should relish their role as houseboys on the liberal plantation. The best essay on Asian-Americans as immigrants can be found in Richard Rodriguez’s  collection,  Days of Obligation—a lovely parallel with the Merchant of Venice, on how immigrant children betray their fathers—they are Jessicas.

Truth to tell, ethnic Japanese in particular have encountered challenges in American jurisprudence. To abbreviate the history, the Yellow Peril (I prefer Das gelbe Gefahr, as it sounds worse in German) was contained in Korematsu v. U.S., a case Justice Stephen Breyer assails with all the conventional pieties in his recent book, Making Our Democracy Work. In trying to justify the Court’s Guantanamo decisions, he misses the connection between nationality and political loyalty, which is at the heart of Korematsu. He would apply everyday legal standards to a potential wartime invasion. Of most interest here is how Breyer’s liberal Court predecessors reaffirmed Korematsu’s ethnic  categorization, with the intention of justifying affirmative action categorizations and preferences. See Justice Douglas’s dissent in DeFunis v. Odegaard (416 U.S. 312, 1974), and, far worse, Justice Brennan’s joint majority opinion in Bakke v. Regents of the University of California (438 U.S. 265, 1978).  Of sounder judgment on Korematsu is the late Chief Justice William Rehnquist’s defense in his All the Laws But One: Civil Liberties in Wartime.

As my parents were relocated in WW II, these events are part of my biography. A cousin’s daughter attended Lowell High School in San Francisco (also Justice Breyer’s alma mater). She could not have gotten in had she checked the Chinese box (her mother’s ancestry) and not the Japanese one (her father’s). In the meantime as the courts sort out this mess and as private universities continue with their social experimentation, I will tell my daughter to have a “Not with Dad” on her college application.