Fenster writes:

1.

Porto

I should add relative to my upcoming trip that I am a big fan of Portuguese and Basque cooking, and that the culinary aspect of the trip holds great appeal.  The Basques in particular have a fondness for tripe, and I am partial to tripe dishes from the region.

2.

Harvard

That said, despite my fondness for tripe there were many things I found “off”, or even somewhat distasteful, about the Harvard decision regarding Asian-American admissions.

3.

Ensemble

An example of the “off” taste: the decision seemed to me like another instance of advocates for diversity wanting to have it both ways.  The main takeaway of the decision, as enunciated by the judge and as reported loudly and clearly in the press is that, in the words of the Boston Globe’s headline:

Harvard University does not discriminate against Asian Americans in its admissions process.*

*bold-face font in original

Indeed, as of this writing, the text string “Harvard does not discriminate” yields over 30,000 hits in Google News.  Your results may vary; I expect the number to rise.

That’s the feel-good takeaway.  But is it so?

Certainly not.  Like the picture of the young lady and/or the crone

the decision is ambiguous.  You may have a hard time holding both ideas in your head at the same time but there are clearly two of them in there in tension.

Harvard “does not discriminate”–except that it does, and intentionally so.  That is established and agreed to by the court.

In 2003, the Supreme Court articulated its expectation that in twenty-five years, it would not be necessary to use racial preferences to achieve a diverse student body. As time marches on and the effects of entrenched racism and unequal opportunity remain obvious, this goal might be optimistic and may need to change, but it remains imperative that Harvard and other schools that make use of racial preferences to achieve a diverse learning environment ensure, through data and experience, that “race plays no greater role than is necessary to meet its compelling interest” in diversity and to keep in mind that “racial classifications may sometimes fail to capture diversity in all of its dimensions.”

Harvard employs a system of racial preferences.  Now, the court finds them defensible under a strict scrutiny reading.

For purposes of this case, at least for now, ensuring diversity at Harvard relies, in part, on race conscious admissions. Harvard’s admission program passes constitutional muster in that it satisfies the dictates of strict scrutiny. The students who are admitted to Harvard and choose to attend will live and learn surrounded by all sorts of people, with all sorts of experiences, beliefs and talents. They will have the opportunity to know and understand one another beyond race, as whole individuals with unique histories and experiences. It is this, at Harvard and elsewhere that will move us, one day, to the point where we see that race is a fact, but not the defining fact and not the fact that tells us what is important, but we are not there yet. Until we are, race conscious admissions programs that survive strict scrutiny will have an important place in society and help ensure that colleges and universities can offer a diverse atmosphere that fosters learning, improves scholarship, and encourages mutual respect and understanding.

So let the record show that the case breaks no new ground.  It follows in the path of many other decisions, decided rightly or wrongly, which conclude that discrimination–or preferences if you will–are defensible.  It says not that Harvard does not discriminate but rather that it does so for good cause.

It makes you wonder why that idea does not make it into the headline.  Perhaps something like this:

HARVARD UNIVERSITY ALLOWED TO CONTINUE TO DISCRIMINATE BECAUSE OF ENTRENCHED RACISM AND THE BENEFITS OF DIVERSITY

It appears that we prefer to see the attractive young lady rather than the crone.  And is that such a bad thing?  Is it not a positive thing on balance that the press recognizes that its readership likely prefers “no discrimination” over “justified discrimination”?  Hypocrisy, as they say, is the tribute vice pays to virtue.

4.

Encore Ensemble

Note as well that the decision references the famous remark made by Justice O’Connor in the Supreme Court’s Grutter decision of 2003 to the effect that the

Court expects that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.

That statement does not comprise a mandate.  Indeed not all the justices who concurred in the majority opinion subscribed to that expectation.  But does that not make the statement–which is probably the thing most remembered about the decision–all the more poignant?  Like the hypocrisy of headlines blaring “Harvard does not discriminate” the cultural importance accorded O’Connor’s statement is surely another instance of the public’s distaste for the kind of remedies higher education thought–and continue to think–vital and necessary.

No surprise the judge in the Harvard case moves the goalposts, too.

In 2003, the Supreme Court articulated its expectation that in twenty-five years, it would not be necessary to use racial preferences to achieve a diverse student body. As time marches on and the effects of entrenched racism and unequal opportunity remain obvious, this goal might be optimistic and may need to change, but it remains imperative that Harvard and other schools that make use of racial preferences to achieve a diverse learning environment ensure, through data and experience, that “race plays no greater role than is necessary to meet its compelling interest” in diversity and to keep in mind that “racial classifications may sometimes fail to capture diversity in all of its dimensions”.

O’Connor’s own language was undoubtedly ambiguous.  But it did more, rhetorically, than simply say “wouldn’t it be nice?”  But now we see the Grutter language can be in a sense gutted: “expected” now only means “if and when”.

But give the devil his due here.  We are without question race obsessed in 2019 to a degree almost unfathomable in those innocent by-gone days of 2003.  The period in which Grutter was decided was a kind of lull in the culture wars that erupted in the 1990’s.  For a time it looked like racism–or charges or racism, or racial thinking, or race obsessions–would decline.  Instead it has come back with a vengeance.

So in a sense I cannot fault the judge for wanting to stretch the taffy out just a little bit further.  But taffy can only be stretched so far before it droops and breaks.

More importantly might it not a good idea for our judges to consider whether the renewed focus on race has happened not in spite of but in part because of the insatiable demands of the diversity regime?

5.

Encore Ensemble

In that regard consider the many data points that the Court found credible in making its decision.  Was there any reference to the many legitimate arguments and studies regarding the deleterious effects of “diversity” as practiced?  No.

Instead the court relies on things like a statement by Ruth Simmons, former president of Brown and first African-American president of an Ivy, to reach its conclusion about the benefits of diversity.  But that is like asking the Pope if Christ rose from the dead.

It is somewhat axiomatic at this point that diversity of all sorts, including racial diversity, is an important aspect of education.3

_________________________________________________________________________________________

3 On October 30, 2018, the Court heard testimony from Dr. Ruth Simmons, the current President of Prairie View A&M University. President Simmons was born in a sharecropper’s shack on a plantation in Grapeland, Texas. She attended primary and secondary school in a completely segregated environment in Houston, and then Dillard University, an African American institution supported by the Methodist Church in New Orleans. President Simmons was selected to spend her junior year of college at Wellesley, where she studied alongside white students in the United States for the first time. After graduating from Dillard University, President Simmons traveled to France, where she studied as a Fulbright Scholar. She then returned to the United States and earned a Ph.D. from Harvard’s Department of Romance Languages and Literatures. President Simmons held positions at Princeton University, Spelman College, and Smith College before becoming President of Brown University. She retired from Brown University after eleven years and returned to Texas, where she worked on nonprofit projects in the Houston area before being persuaded to come out of retirement to serve as the president of Prairie View A&M. President Simmons offered expert testimony on Harvard’s interest in diversity. Her testimony and her life story, perhaps the most cogent and compelling testimony presented at this trial, demonstrate the extraordinary benefits that diversity in education can achieve, for students and institutions alike.

You may not need to take heed overly of a coal miner’s daughter.  But a sharecropper’s daughter is another matter altogether.

The decision has more things like this too, such as referencing Harvard’s Report of the Committee to Study the Importance of Student Body Diversity.

That report makes its aims clear at the very outset.  It does not intend to inquire much about the benefits of diversity.

Through this Committee’s work, we have sought to examine and restate the benefits that the College derives – as an institution, and for its students and faculty – from student body diversity of all kinds, including racial diversity.

Yes, it will examine diversity but the goal is clear: to restate its benefits.  As such this is like asking the cardinals and the priests if Christ rose from his grave.

In fairness the report’s authors did not just stop with the clergy.  They spoke to at least some rank-and-file as well.  But even here there are oddities to note.  A graduating senior tells this story:

In my case, the learning from diversity came . . . when I became very upset about how a fellow black student approached discussions in our sociology class.

I was stunned when one of my black classmates became visibly angry and accused the professor of not realizing how much it hurt him to hear information [about out-of-wedlock birthrates among African Americans] presented in class. Thank goodness he did it politely and not accusingly. But he was obviously upset. And his upset got me very upset, but in the opposite direction.

This was the whole reason I had signed up to take this course. I need to grapple with unpleasant realities. . . . But my fellow black student really made it awkward—both for the professor and for me. I actually wanted to hear more details about those demographics. Not because I am happy about them, but because I absolutely need to understand them as well as I can. Illusions are definitely no help.

Well, frankly, I didn’t know quite what to do. [Fortunately,] there was a third African-American student in the class [who] had the courage to speak right up, and to thank the professor for sharing this awkward but real data. This guy basically said what I was thinking, except I didn’t have the courage to verbalize it out loud.

The student who had complained to the professor seemed surprised that a fellow black student would criticize him. But this other student was so diplomatic that I think he somehow succeeded in getting the complainer to take a deep breath and to pause and reconsider his views. It took some courage for that black student to criticize another black student who clearly was upset. And in the context of a mostly white class.

Got that?  Diversity is a good thing in the classroom because it forces necessary and difficult discussions.  Need I remind you dear judge that there is a veritable tsunami of information out there that this is exactly what is not happening.  Indeed, knowing that the public is likely to be skeptical of modern classroom practices academics spend an awful lot of time defending things like speech codes, microagression alerts and safe spaces, often structured quite plainly with race and racial attitudes in mind.

Of course this is when they are speaking about what they really do.  When it comes to making an argument in front of the court diversity leads inexorably to fulsome expression not censorship.

6.

Encore ensemble

The description of how the actual admissions sausage is made in the decision is worth reading.  It is hard to do justice to it in a summary–the fact that the process is nearly indecipherable is part of its appeal.

But here is the gist of it as I see it.

Race is taken into account, and explicitly so, as applications make their way through the process to final decision.

As the process unfolds the data reviewed with respect to the entire incoming class includes information on racial composition.

The composition is compared at each step with prior year’s data.

As the process proceeds the cohort is winnowed, always with at least one eye on current and past data on racial composition.

At the end, there is a “lopping” process–i.e., the Admissions Office typically ends up with too many they are prepared to admit and must do one final “lopping”.

But there are no quotas.

Instead we see an iterative process by which successive cuts of applicants permit the final racial distribution to approximate last year’s, with the lopping process allowing a final fine tuning.

But what is the reason for using last year’s composition as a baseline?  It appears to be only this: that since Harvard was satisfied with diversity last year our processes ought to allow for similar results this year.  Is that a sound rationale? Is there analytic backup that supports the historical composition? If not why not try different approaches and see what works better?

Moreover how is it that magically each year’s racial composition for disadvantaged groups–blacks and Hispanics–approximate their proportion in the population as a whole?  Is that just what happend out of holistic review?  Even if one cannot detect a thumb on the scale in the case of any given application, which is considered holistically, can one detect a thumb on the scale in the aggregate, at the level of the cohort?

In short the process seems . . . . well-designed.  It is a way of arriving at a desired racial mix, under the theory of the benefits of diversity, without relying on explicit quotas.  If you believe as Harvard appears to believe that its specific racial and ethnic mix is just what the doctor ordered its admissions process will get you there.

7.

Ensemble Encore

Finally, the vexing question of race, which may I remind you, does not exist.

In addition to monitoring the likely racial makeup of the admitted class, admissions officers use race in evaluating applicants and assigning an overall rating. Although race may act as a tip or plus factor when making admissions decisions, it is only ever one factor among many used to evaluate an applicant. Race is only intentionally considered as a positive attribute.
Admissions officers are not supposed to, and do not intentionally, take a student’s race directly into account when assigning ratings other than the overall rating, but Harvard’s reading procedures did not instruct readers not to consider race in assigning those ratings until 2018, when Harvard amended the reading procedures for the class of 2023 to provide more explicit guidance on the appropriate use and non-use of race. Further, some admissions officers may take an applicant’s race into account indirectly, for example when an applicant’s race has influenced other personal qualities that the admissions officer believes will add to the Harvard community. *

*Use of bold-face Fenster’s .  Bald-faced in the original.

8.

Conclusion

Shirely Leung at the Globe describes the outcome as a “defiant defense of affirmative action in higher education.”  If you knew Shirley like I know Shirley you’d know that that framing was entirely predictable.  Asian-American or not that woman has never seen a PC cause that she can resist.

But defiant?  There are many things one can find admirable in judicial decisions but defiance is not at the top of my list.

Judges seem intent on playing an executive rather than a purely judicial role in this day and age.  If they want to go beyond the law they ought to be willing to take in the big picture–all of it–and to make decisions that are wise in the manner of actual leaders.  An attribute like prudence should mean something different to a general or president than it does to a judge.  But judges are all-too-willing nowadays to make the “tough” decisions, and if they are going to do it they need to up their game.

Now, I don’t favor that shift.  I think judges ought to stick to judging to the extent possible and leave Wisdom–with its many subtle edges and trade-offs–to those we can hold accountable in a republic.  But we are unfortunately in the midst of overreach with the result that non-accountable officials can decide what they like.

Virtue as understood by political theorists has a hard edge that must consider results.  Judges are allowing themselves the luxury of a softer and consequence-free virtue signaling, and that is not a good thing.