Archive for Roger Clegg
I like following the Center for Equal Opportunity’s Roger Clegg around the web. A recent comment lands on a Dallas News blog post titled, “Gap Rap: The future of minority contracting.”
The blogger mentions “pressure” on investors and contractors that do business with the government to give business to black- and Hispanic-owned companies in Dallas. He believes this practice may discourage outside investors because of red tape (brown tape?) that involves jumping through race-based hoops.
An excerpt: “So here’s my question: Do minimum minority-participation requirements wind up hurting investment and dampening development in southern Dallas? Or do they serve a useful purpose?”
Instead of answering the blogger’s question, Clegg asks and answers a common sense question of his own (emphasis added):
“Why do race, ethnicity, and sex need to be considered at all in deciding who gets awarded a contract? It’s fine to make sure contracting programs are open to all, that bidding opportunities are widely publicized beforehand, and that no one gets discriminated against because of skin color, national origin, or sex. But that means no preferences because of skin color, etc. either–whether it’s labeled a ’set-aside,’ a ‘quota,’ or a ‘goal,’ since they all end up amounting to the same thing. Such discrimination is unfair and divisive; it costs the taxpayers money to award a contract to someone other than the lowest bidder; and it’s generally illegal to boot (see 42 U.S.C. section 1981 and comments we submitted to the Colorado DOT here: http://www.ceousa.org/content/view/655/86/ ).”
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Earlier this month we blogged about the Ricci v. DeStefano in the context of higher education. Some assert that Ricci applies only to standardized employment tests and won’t impact overall efforts to achieve diversity in higher education. Peter Wood of the National Scholars Association states the matter this way:
“If Ricci turns out to mean that employers can now administer skills tests for hiring and promotion with much less fear of disparate impact lawsuits, perhaps we will see some relief from the pressure on high school graduates to go to college to ‘get the credential.’ History, of course, cannot just be shoved into reverse. The cultural pattern in America of sending on to college higher and still higher percentages of high school graduates has momentum of its own, and is bolstered by the need of colleges and universities to keep the tuition flowing.”
The Center for Equal Opportunity’s (CEO) Roger Clegg, writing for the Pope Center, discusses the impact Ricci will have on academia:
“If university officials breathed a sigh of relief after the Supreme Court handed down its recent decision in Ricci v. DeStefano, the New Haven firefighters case, they made a mistake. Many seem to believe that the case won’t have any impact on their use of racial preferences in faculty decisions…A gulp would be more appropriate than a sign of relief. Ricci should and will apply to common college and university racial preference policies in hiring. Officials ignore it at their peril.”
Clegg recalls a similar case, Rudin v. Lincoln Land Community College. The school selected a candidate pool that didn’t include a black person. A black man named Paul Hudson was added. Although he ranked second from the bottom of the pool, he got the job. Janine Rudin, who ranked second from the top, sued on racial and sexual discrimination grounds. The trail court dismissed her case, but the 7th Circuit reversed and remanded. Although the case was settled, it’s an example of shifting court sentiment on disparate impact, a judicial interpretation of the Civil Rights Act.
“The Rudin and Ricci cases together show that the courts won’t take a blasé attitude toward hiring practices in higher education where some people are given advantages simply because of their race,” Clegg writes.
Read the full article here.
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Lani Guinier, who said African immigrants should not receive racial preferences because they are not descendants of black American slaves, co-wrote an article in the New York Times with Susan Sturm, a fellow liberal law professor. Guinier was Bill Clinton’s nominee for Assistant Attorney General until her pro-quota views became known.
I echo what the Center for Equal Opportunity’s Roger Clegg says about the op-ed (via National Review Online):
“In a New York Times op-ed today, Profs. Lani Guinier and Susan Sturm discuss why they dislike standardized tests. They have no empathy, as it were, for Frank Ricci in the New Haven firefighters case, who earned his promotion by doing well on one. But the issue in that case was not whether this or that test was perfect; the issue was whether, having administered a particular test, it was illegal racial discrimination for the city to throw out the results because it didn’t like the skin color of the people who did well in it. And it’s hard to imagine that Guinier and Sturm would have written this op-ed if Frank Ricci and the other successful firefighters had been the right color or, more broadly, that they would work so hard to find objections to standardized tests if such tests didn’t so often have a politically incorrect disparate impact. Myself, I’m perfectly happy for cities to adopt whatever selection device they think is best, so long as they ignore race in making that decision.”
I believe objective tests are an excellent way to avoid being the victim of racial discrimination, even if minorities perform relatively poorly on those tests. There is always room for improvement, and factoring in race, even when it benefits minorities, has unintended consequences.
Minorities would do well to remove the government’s hand from the deck and rely on a “standardized” shuffle of the cards.
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The Center for Equal Opportunity’s Roger Clegg, blogging at The Corner, dubs the coming months “Civil-Rights Summer,” because of several related issues. “Wise Latina woman” Sonia Sotomayor faces what I predict will be an easy confirmation process, and the Supreme Court will hand down rulings in the Ricci v. DeStefano and Voting Rights cases.
In Ricci, New Haven decided not to promote white firefighters who qualified for promotions because too few minorities qualified for promotions. In the Voting Rights case, the plaintiff seeks to eliminate Section 5’s pre-clearance requirement for changing voting procedures.
Clegg, who’s heard the oral arguments in both cases, says liberals won’t be too happy about the rulings. (I’m holding out hope the court properly interprets the Constitution and leads us in the direction of colorblind government policy.) Leftists will want the decisions in those cases overturned, naturally. Nothing new here to see. But here’s the novelty: a biracial president is on the hot seat. Clegg writes:
I think it’s fair to describe this as a crisis. The way it plays out will determine (not finally, since nothing is ever final in politics) but for some time whether America has shrugged off the principle of E pluribus unum. This, notwithstanding the fact that, in an increasingly multiracial and multiethnic society, it is untenable to have a legal regime in which citizens are sorted according to skin color and the national origin of one’s ancestors, and treated better or worse depending on which box they check.
We know that the Democrats in Congress will do the wrong thing — that is, they will do whatever they can to advance the use of racial preferences to the nth degree. They are hopeless. The question is, what role will the Republicans play — and what will President Obama do?
It’s going to be an interesting summer.
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In the comment section of an LAT blog article on racial quotas in Los Angeles County contracting, Roger Clegg asks, “Why do race, ethnicity, and sex need to be considered at all in deciding who gets awarded a contract?”
Apparently, the county is not reaching its minority contract set-aside goal of 25 percent. Since discriminating against or preferring individuals or groups based on factors like skin color and sex in government hiring, contracting, and admissions is illegal in California, the county is an a quandary.
The article mentions several race-neutral ways to possibly increase minority-owned business representation among contracting ranks: make the bidding process more accessible and easier to understand; hold workshops to instruct business owners how to apply for contracts; and notify business owners of new projects via e-mail.
Will these approaches satisfy quota proponents? Probably not, but they don’t have much choice. Why is awarding contracts to the lowest bidders regardless of the business owner’s race wrong? Isn’t it the best way to ensure that no one, regardless of race, is subjected to racial discrimination?
Oops. My naivety is showing again.
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Thomas Perez, President Barack Obama’s nominee for assistant attorney general for civil rights, the same man who believes medical schools should drop standards for black applicants because they’re more likely to work in “underserved” communities than white doctors, also believes in watering down firefighters recruitment tests.
The Center for Equal Opportunity’s Roger Clegg posted on The Corner blog a press release from 2004 when then Montgomery County, Maryland, Councilmember Thomas Perez called for an investigation into the fire department’s written firefighter aptitude test. The problem? Too few blacks were being recruited. From the release:
“These statistics are unacceptable…But I have confidence that we can get back up to the original number of minorities in the Department, and develop a comprehensive plan to recruit diversely…I have worked closely with Fire and Rescue Chief Carr and several other leaders on this issue…We have formed a partnership and the commitment from the department is clearly there.”
I remember covering this story on my personal blog in 2004. According to the Washington Post, 89 percent of class recruits in that fire department were white. Because the county’s population was 60 percent white, elected officials like Perez criticized the department. There was a drop in minority recruits, which likely was caused by the county implementing a race-blind hiring process. For the sake of skin deep-only diversity, people like Perez favor lowering standards to recruit minorities, but call the practice something else: affirmative action.
I also blogged about the New York City Fire Department (FDNY) lowering standards in a “pro-diversity” campaign to attract blacks. FDNY reduced the college credit requirement and considered changing the way the employment test was scored.
In the same post, I mentioned the Denver Fire Department’s new watered down test. I spoke with Chief Larry Trujillo, who said a Denver newspaper article left the impression that he favored the dumbed-down test, but he told me he did not. He said as a minority, he was proud to have gone through the same process as other recruits, but believed “something” needed to be done to bring in more blacks. The fire department hired a consulting firm to create a new test, and I spoke with three people (conference call) at the firm to try to find out what made the new test easier. All they would say is the test would evaluate a broader range of abilities than traditional written tests. The answers were vague on purpose. I suspected the firm watered down portions of the test on which blacks performed poorly.
Finally, years ago I read about one fire department that dropped its swimming test because too few black applicants knew how to swim!
The absurdity is too astounding for words.
I guess the Civil Rights Act and other civil rights legislation – and the entire movement – were pointless. The American people strived to eliminate racial considerations in government hiring and admissions. Almost two generations later, the government still considers race in hiring and admissions.
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Whoever thought that 40-some years after the civil rights movement, whites would be suing the government for racial discrimination?
Ricci v. DeStefano, the New Haven firefighters case currently before the U.S. Supreme Court, is the latest in a line of so-called reverse discrimination cases. Although mainstream media use the term “reverse discrimination,” racial discrimination is wrong no matter which group is the target. We can’t make amends for racial discrimination against blacks by permitting racial discrimination against whites. The government must get out of the skin color business if this country has any hope of moving forward in race relations.
Perhaps it was President Lyndon Baines Johnson’s commencement speech at Howard University in 1965 that convinced institutions that discriminating in favor of black Americans was in order. An excerpt:
But freedom is not enough. You do not wipe away the scars of centuries by saying: Now you are free to go where you want, and do as you desire, and choose the leaders you please.
You do not take a person who, for years, has been hobbled by chains and liberate him, bring him up to the starting line of a race and then say, “you are free to compete with all the others,” and still justly believe that you have been completely fair.
Thus it is not enough just to open the gates of opportunity. All our citizens must have the ability to walk through those gates.
This is the next and the more profound stage of the battle for civil rights. We seek not just freedom but opportunity. We seek not just legal equity but human ability, not just equality as a right and a theory but equality as a fact and equality as a result.
For the task is to give 20 million Negroes the same chance as every other American to learn and grow, to work and share in society, to develop their abilities–physical, mental and spiritual, and to pursue their individual happiness.
To this end equal opportunity is essential, but not enough, not enough.
In these words lay the foundation of racial preferences, race norming, and other practices that lower standards for blacks in order to satisfy an arbitrary skin deep-only diversity requirement, alleviate the burden of historical guilt, and penalize non-blacks who had nothing to do with past discrimination. Inevitably, doling out race-based perks to minorities harms members of non-preferred races, a practice obviously unconstitutional. The government’s quest to narrow educational and employment gaps between the races and increase minority representation may be noble in theory. In practice, it’s repugnant. As long as it continues, strained race relations and cases like Ricci v. DeStefano will exist.
This Associated Press article highlights the “reverse discrimination” issue and quotes Roger Clegg, of the Center for Equal Opportunity:
“The laws that Congress wrote are clear — everyone is protected from racial discrimination. Not just blacks, but whites. Not just Latinos, but whites…Quotas do not end discrimination. They are discrimination. The law makes clear that race, ethnicity and sex are not to be part of who gets a government contract or who gets into a university or where someone goes to school.”
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In addition to the New Haven firefighters case, the U.S. Supreme Court is hearing arguments in another important case. In Northwest Austin Municipal Utility District No. 1 v. Holder, the plaintiff is challenging the constitutionality of Section 5 of the Voting Rights Act.
It’s common knowledge that some jurisdictions tried to keep blacks away from the polls. The infamous poll tax was one method. Over 40 years ago, Congress enacted a law (known as Section 5) that required states like Alabama, Georgia, Mississippi, South Carolina, and Louisiana to seek Justice Department permission to change voting procedures (pre-clearance).
In 1975, Texas was added to the list of states covered by the provision. In 2006, the act was extended for the fourth time – for 25 years. A utility district in Texas that came into existence in 1986 challenged the law. Considering the racial progress made in the last four decades, particularly the election of black officials, the pre-clearance requirement is intrusive and based on out-of-date evidence, the plaintiff contends.
Blogging at National Review Online, Roger Clegg writes:
The legal standard the Court has used in such cases is whether the challenged statute is “congruent and proportional” to the ends of the relevant constitutional provision, here the Fifteenth Amendment, which bans racial discrimination in voting. There are three ways in which Section 5 fails this test: (a) There is no rhyme or reason to the jurisdictions now covered (for example, the statute itself requires use of election statistics that are decades old: Texas is covered but not Arkansas, Arizona but not New Mexico, some New York City boroughs but not others, etc.); (b) it is extraordinarily intrusive in the kowtowing it requires from state and local jurisdictions to the federal government; and (c) it bans much that is not illegal under the Constitution, since the former covers anything with a racially disproportionate “effect” while the latter requires discriminatory intent (for example, the Justice Department has been urged, and the Obama administration is likely, to use Section 5 to block anti-voter-fraud measures on the theory that they “disenfranchise” a higher percentage of blacks than whites).
…
[T]he justices should bear in mind that it is precisely the ideals of the Voting Rights Act and the Fifteenth Amendment that will be jeopardized if they do not strike down Section 5. This statute is not only no longer congruent and proportional to the Fifteenth Amendment: By far its principal purpose is now to violate it.
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Richard Sander has documented the mismatch effect that occurs when blacks are admitted to selective schools through race preferences. He found that law students admitted under preferences tended to receive lower grades and pass the bar exam at lower rates. Sander posits that without preferences, blacks would be better matched to their schools.
Four Duke University researchers conducted a study in which they argue more information is needed to determine if the mismatch effect exists. Specifically, they contend that mismatch could occur only if selective universities possess private post-enrollment student information, which they call a “necessary condition” to make the determination. (Source)
Rather than looking at objective factors to determine whether the mismatch exists, such as GPAs and scores, the researchers suggest “two potential avenues that may lead to a more conclusive test of mismatch,” which is what they mean by “private post-enrollment information.” The subjective approach includes asking admitted black students what they expected their GPAs to be after their first year and whether they still would have attended if the GPAs turned out to be X.
Confused yet? I think that’s precisely the idea.
Leave it to a group of academics to make something simple seem complicated. As the Center for Equal Opportunity’s (CEO) Roger Clegg notes, the researchers have in front of them evidence of the mismatch theory already. His comment on NRO’s Phi Beta Cons blog (emphasis added):
All very interesting, but doesn’t this article miss the forest for the trees? The most important point, found in the last line of the table but not commented on, is this: The first-year GPA for white and Asian students was 3.33 and 3.40, respectively; for black students it was 2.90; for Latinos was 3.13. So the ethnic groups that, in all likelihood, got preferences (look at the rest of the table) did substantially worse than the ethnic groups that did not (e.g., a half-point gap between blacks and Asians). Sounds like confirmation of “the controversial ‘mismatch’ theory” to me. (This is not news, of course: The Shape of the River acknowledged that African Americans at selective schools on average had a class rank in the 23rd percentile, versus the 53rd percentile for whites; the Center for Equal Opportunity’s studies over the years have found similar gaps.)
Such lopsided GPAs (not to mention test scores) is evidence of mismatch, isn’t it? Why is it necessary to send letters to students asking them to speculate on first year grades? The mismatch isn’t subjective; it’s an effect that either exists or doesn’t exist. If students admitted under preferences have substantially lower grades than students not admitted under the policy, there is a mismatch.
Download “Does Affirmative Action Lead to Mismatch? A New Test and Evidence” here. (PDF – 33 pages)
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After you read Affirmative-Action Programs for Minority Students: Right in Theory, Wrong in Practice (excepted at TaxProf Blog), you may come away as amazed as I was. Proponents of race preferences contort themselves into strange positions to justify the practice and avoid stating the obvious.
The article is adapted from the four authors’ new book, Taming the River: Negotiating the Academic, Financial, and Social Currents in Selective Colleges and Universities. “Critics” of skin color preferences have three basic arguments, they contend: 1) the practice is reverse discrimination; 2) the practice creates a mismatch between students and their respective schools; and 3) the practice creates a stigma for students admitted under preferences.
Reverse discrimination is a term some people use to distinguish between discrimination against whites and discrimination against blacks. Obviously, there is no difference. Racial discrimination is racial discrimination, and regardless of what the Supreme Court says, it should be illegal in all contexts.
The authors admit that minority students at 28 colleges and universities they studied tended to have test scores below the school’s average. “Such results assume that minority-group SAT scores fall below the institutional average because admissions officers trade off test scores against other criteria associated with their desire to recruit more minority students — the essence of affirmative action.”
In the name of skin deep-only diversity, schools admit minority students, who tend to have lower grades and scores than the rest. You can debate whether the practice is justified, but there is no debate that the practice goes on at colleges and universities across the country.
Strangely, the authors assert that “black and Latino students with relatively low SAT scores do no better or worse than their counterparts who scored at or above the average for their institutions,” but admit to finding a “significant effect of institutional affirmative action on the grade performance of black and Latino students…A sizable minority-majority test-score gap within any given institution appears to create a social context that makes it more difficult for minority students to perform academically.”
In other words, race preferences harm minority students not because students who “benefited” have lower qualifications and are less prepared for their respective academic settings; they harm minorities because of how others perceive them and how they perceive themselves. Let me say it another way. Race preferences, which tend to produce large gaps in scores between minorities and other students, lower minority achievement by creating a stigma and a sort of stereotype threat, both of which affect a minority student’s ability to perform.
Don’t laugh. They’re quite serious.
The authors believe the inherent weakness of skin color preferences isn’t about academic gaps and institutional mismatch. It’s how race preferences are administered.
An easier way to eliminate “reverse” discrimination, the gap, the mismatch, and the stigma would be to remove race from the equation altogether and admit well-qualified students, regardless of race.
But that would make too much sense.
I echo Roger Clegg’s sentiment. When attempting to refute the mismatch theory, the authors cite William Bowen’s and Derek Bok’s The Shape of the River, which defends racial preferences, while ignoring the more well researched work of Richard Sander, who said that law school race-based preferences result in fewer black lawyers, because blacks admitted under these conditions are placed in schools that exceed their levels of preparation. As a result, they failed the bar exam at higher rates.
Also, I recommend picking up a copy of a book that critiques Bowen’s and Bok’s thesis, Getting Under the Skin of “Diversity”: Searching for the Color-Blind Ideal, by Larry Purdy.
The four authors, like most preference proponents, support lowered standards for minorities to satisfy some arbitrary notion of diversity. Their solution to problems stemming from this practice is simply to put a different spin on what’s actually happening. Athletic and legacy preference beneficiaries don’t suffer similar problems as race preference beneficiaries, contend the authors, so there’s “no good reason that affirmative-action programs for minority students cannot be run in the same way.” (I say get rid of athletic and legacy preferences, too.)
Like all roads that lead to a very hot place, this one is paved with good intentions.
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