In the last post I described the misrepresentation of admission statistics as the ethical issue of 2012 for college admissions.  Little did I know that another case was about to be revealed.  A January 2 article in reported that Tulane had sent U.S. News and World Report incorrect information about test scores and total number of applicants for its M.B.A. program.

It’s only January, but it’s a good bet that the 2013 ethical issue will be tied to the Supreme Court decision in the case of Fisher v. Texas.  Back in the fall I did a post about the oral arguments in that case, and I subsequently received several lengthy e-mails from Jay Rosner.  Jay is the Executive Director of the Princeton Review Foundation and a passionate defender of affirmative action, having testified as an expert witness in the Grutter case and organized a panel on Fisher at the NACAC Conference in Denver.  I appreciate his passion and views even though he accuses me of being too sympathetic to conservative criticisms of affirmative action.

Our e-mail exchange follows:

  Jim, Your NACAC list serve post a few weeks ago prompted me to read your Ethical College Admissions piece on critical mass, which motivated me to email you.

I put together the panel at the NACAC Conference on Fisher, and have been a pro-affirmative action activist for years. I had the honor of testifying as an expert witness in Grutter.

For me, what clarifies the issues is realizing how conservatives have skewed the debate with very clever framing and use of language. Your whole piece adopts too much of the conservative frame. I’m glad that you state, “I accept the continuing need for affirmative action …” but you do it in a hesitating way, as if there is no clear manner of justifying it. The muddle here is a result of very effective anti-affirmative action framing. Let me try to help.

For me, the appropriate framing of the larger issue is integration. Do we want selective campuses to be integrated, or do we want them revert to the racial composition that existed in the 1950’s? Remember the arguments against integration (and, for that matter, the arguments for slavery): that people of color were inferior and not a good fit for university education, that their presence would upset and impinge upon the rights of white folks, that the races should remain separate (and unequal), etc. Affirmative action is the only way we’ve found thus far to produce a modicum of integration in selective higher ed programs, aside from the 10% plan, which manages some degree of integration only at the flagship campus in Texas.

Conservative Supreme Courts first distorted the integration debate by holding that taking race into consideration for the purposes of integration could only occur when the entity involved had to correct a history of segregation. Justice Powell in Bakke created the special limitation that diversity was the only rationale for taking race into consideration in admissions in higher education.

A fair framing, of which folks of color are very much aware, is that admissions litigation from Bakke forward, for more than 30 years, has been about discrimination against white people. To elevate that concern to the focus of Supreme Court’s jurisprudence reveals a lot about this country and the Court.

Here’s the very best framing in this domain: Justice Roberts’ wonderful-sounding tautology (from Parents Involved) that we should end discrimination by stopping discriminating, when the actual meaning of his statement is that we should end discrimination against whites by stopping discriminating against whites.

Perhaps Justice Powell didn’t even intend to set a trap with his use of diversity, but he certainly did. Diversity is hard to define with precision, and, ironically, has been most forcefully argued as a benefit to whites. Justice O’Connor, I believe unintentionally, set another trap with critical mass, which also is very hard to define with precision; however, Justice O’Connor got it exactly correct, in my opinion, when she summarized Grutter with the two words “Race matters.”

It’s easier to understand and support the concept of integration. Those who argued white rights (as in the property rights in slaves, or the right to pay for segregated schooling with public funds, states rights, etc.) were thoroughly discredited. Yet, they cleverly chipped away over time in the legal domain (in a parallel manner that Thurgood Marshall chipped away at segregated schooling), leaving us to focus like a laser on consideration of the individual rights of white applications.

Here’s my simplest reframing: I ask conservatives whether they think race matters, or not, in the US in 2012. Most say that it does, but it shouldn’t. I agree that in an ideal world, race shouldn’t matter, but it does. If it matters, it should be taken into consideration in admissions. If it’s not, we’ll have significantly more segregated campuses, particularly selective ones (Berkeley and UCLA are good examples). If someone says that race doesn’t matter in the US in 2012, I think they are seriously out of touch with reality.

I suggest that being sensitive to framing helps to clarify answers to most of the questions below that you imply are quite vexing:

1.) What is the proper balance between giving every applicant fair and individual consideration in the admissions process and meeting institutional goals and needs?

So, should integrating the institution be balanced by a certain consideration of whites’ rights in admissions? You’re probably not limiting this to whites’ rights, but the Supreme Court is! Isn’t integration a higher priority than whites’ rights? Just by using the word “balance,” you give whites’ rights a stature that would make a conservative smile.

2.) Does an individual have a right to attend a particular college or university, and when is not being admitted evidence of unfair treatment?

I know of no right to attend a particular college, but students should be treated fairly in admissions. Evidence of unfair treatment may exist in individual circumstances. Conservatives argue that when a student of color with lower grades and test scores is admitted “over” a white student, that is conclusive evidence of unfair treatment. I support a more nuanced analysis, and I suspect that you and 80+% of admissions officers do also.

3.) How much discretion should colleges and universities have to determine the composition of their student bodies?

That depends. I can support things like a state dictating that 80% of admittees must be state residents, but of course everyone now is looking for out-of-state full-pays. I would give universities relatively broad latitude providing that they’re not segregationist.

4.) Are admission preferences wrong even when done for the right reasons?
“Preferences” has been corrupted to mean only affirmative action advantages given to URM students, and not advantages given to legacies, athletes, development cases, faculty kids, full-pay students, etc., or the considerable advantages and social capital that whites, and now some Asian Americans have, on average, to bring to the admissions process. If you are adopting the conservative meaning (and I assume that you are, but please tell me if I’m wrong), my answer is that preference for URM students to help integrate campuses is the American way and has been for 40+ years. If you mean all preferences are wrong, we can do admissions with programmed machines, and there is no need for admissions officers, (which is why I don’t think you are using a fuller rendition of the word).

5.) Why are those who would have found nothing wrong with racial discrimination in the 1950’s so exercised by affirmative action?

Uh, because they’re racists? Or, they aren’t racists but just happen to have views that are broadly consistent with those of racists?

6.) At what point will affirmative action no longer be necessary?

Ah, Justice O’Connor’s 25-year aspiration. I’m afraid that affirmative action will no longer be necessary when either there aren’t significant economic disparities between different races/ethnicities, or somehow we manage to equalize elementary and secondary schooling quality for all without solving economic disparities. I hope to live long enough to see one or both.

I suggest that there is one primary question that transcends the questions above: do we, as a society, want URM students to have the kind of limited access to our selective university programs that they have today, or do we want to reduce that access by emphasizing the rights of white students?

I don’t mean to imply that this situation is simple. I just think that it’s clearer if we pay attention to framing and language. I’d welcome your response.


Dear Jay,

I appreciate your comments regarding my blog post about “Critical Mass” and the oral arguments before the Supreme Court on the Fisher case.  Your passion for this issue is clear, and I started the blog not because I have any illusion that I have all the (or any) answers, but to start a conversation about ethical issues and the principles underlying them.

Of the ten blog posts I have written thus far, the one on Critical Mass and affirmative action is the one I felt least satisfied with.  I found the oral arguments from both sides disappointing, especially those on the part of Texas.  I am not a fan of the conservative wing of the Supreme Court and recognize that there are hidden (and not-so-hidden) agendas at play, but I don’t agree that the inability to articulate a coherent defense of critical mass and the Texas policy is solely a product of “clever” conservative framing of the issue.  Framing is important, and when I received your original e-mail I was contemplating doing a post on the ballot initiative outlawing affirmative action that passed in Oklahoma.  It was clear that initiative was framed by conservatives and also put on the ballot this year (when Obama was running for reelection) in order to maximize the chances that the electorate would abolish affirmative action.  By contrast, I find some of the broader questions raised about affirmative action policies by the Supreme Court to be legit and important (perhaps that shows that they have been so cleverly framed that they have deceived me, but I don’t think so).

I sense that we are coming at this issue from two different directions.  You begin with the importance of integration as a goal, and see affirmative action as essential to preventing us from returning to the 1950s.  I agree with you that we don’t want to return those days, but we are in a different time (how different is a topic for debate).  In the 1950s we had de jure segregation involving denial of the civil rights of African-Americans by law.  What we have today is de facto segregation emanating from the socio-economic divisions in society.  Clearly educational opportunity is one of the keys to overcoming the disadvantages that many in our society grow up with.

For me the issue is how you accomplish that.  College admission at selective places is an example of distributive justice, where the goal is to fairly distribute a scarce resource (in this case admission to a particular institution). I don’t believe that a desirable end justifies the use of any means whatsoever, and I have never been comfortable with the idea that admissions officers should act as social engineers.  In Bakke what was judged unconstitutional was having a quota and a separate admissions process to achieve a worthy goal.  It’s no longer that overt, but one of the issues with “critical mass” is whether colleges know the result they’re looking for and engineer the admissions process to achieve that result.  That’s not just a racial issue—in some ways this debate is about the assumptions underlying selective admissions, crafting a class.  Is crafting a class at odds with the ideal of equal consideration for each individual applicant?

For me the issue is coming up with an admissions process that gives equal consideration to every individual applicant without compromising legitimate educational goals such as diversity.  It’s absurd to think that a group that was legally discriminated against for 200 years can compete immediately once that legal discrimination ends, but I think it’s important how you accomplish that, and I think it’s hard to argue that preferential treatment is desirable because the goal you are trying to achieve is desirable. I believe that the admissions process should measure qualities necessary for success in college.  I think preferences that have nothing to do with education are questionable, and in fact think preferences for underrepresented populations are far more defensible than preferences for athletes, legacies, and development cases. 

How do we do both?  I think that’s the challenge, and I don’t claim to have easy answers, but I think the integrity of whatever admissions process you use is more important than simply achieving a certain result.  I think it’s acceptable to admit students based on potential rather than accomplishment, especially when considering the disadvantages kids from poor socioeconomic backgrounds have to overcome.  Therefore, I think it’s okay to admit minority applicants who have strong grades but lower test scores (that’s the Texas 10% argument, which has other flaws) or kids whose test scores show ability.  What I don’t like is an admissions process that admits minority students with grades and test scores who wouldn’t be competitive in a regular pool.  Having said that, if it is the case that students with those grades and scores are successful once admitted and are graduating, then an institution should admit other students with those kinds of credentials.  If the use of certain admissions criteria leads to a class that does not possess diversity, then an institution should rethink whether the criteria being used genuinely predict success.

Can we achieve equality of opportunity and diversity within our educational institutions without the kind of results-based affirmative action programs that bother me?  You seem to suggest not, and I am willing to entertain that might be the case, but I don’t want to accept that view.  It insults those students from disadvantaged backgrounds who are successful on their own, and it makes assumptions about some ethnic groups that I don’t want to accept, but I hope that our country won’t shy away from an honest discussion about the challenges we face in achieving the kind of society to which we aspire.  I just think that how we accomplish that is just as important as the end itself.


Jim, Thanks for your reply. I have no problem with your posting our exchange, but I think at least one more short round should occur.

You don't want admissions officers acting as social engineers, as if that would involve something that doesn't happen now. Are you assuming that the status quo is free of social engineering? Admissions officers at selective programs (scarce resource) are and always have been social engineers. What differs are the goals and methods of their engineering. "Is crafting a class at odds with the ideal of equal consideration for each individual applicant?" Of course it is. Equal consideration has always taken a back seat to whose parents are going to fund a new building and those who can kick a 50-yard field goal, etc., and I'm glad that you find those less desirable than affirmative action.

You state, "What I don’t like is an admissions process that admits minority students with grades and test scores who wouldn’t be competitive in a regular pool." This appears to be a criticism of affirmative action employed poorly - none of us likes it when a college admits URM applicants who won't graduate just to pad its admit numbers. That happens, but poor implementation occurs with all processes, and it doesn't diminish the great value of the affirmative action that is implemented well by a large majority of competitive programs.

You state that "(results-based affirmative action) insults those students from disadvantaged backgrounds who are successful on their own, and it makes assumptions about some ethnic groups that I don’t want to accept, ..." Both parts are well-worn chestnuts of conservatives, and particularly black conservatives like Clarence Thomas. White folks find it easy to picture all URM folks in competitive programs feeling stigmatized by affirmative action. If you ask the URM students who have very high grades and test scores what they think of affirmative action (and I have asked hundreds), the large majority favor using affirmative action for access purposes even if as a result they themselves are "unfairly" seen as affirmative action admits. They'll tolerate any express or implied insults (and, they receive them!). Of course, there are some conservative URM folks who talk about individual rights and how they were successful on their own and are insulted by affirmative action (Clarence Thomas, a recipient of affirmative action, comes to mind), but I assure you their percentages are quite small. As to the second part, there are many assumptions that can be made about affirmative action, ranging from granting opportunity to those from groups who historically were excluded to addressing genetic inferiority. Again, the large majority of URM students with whom I've spoken will risk the existence of any genetic inferiority assumption to have the access that affirmative action provides.

I don't think there is a "means or ends" dichotomy here. Both are important, and they are strongly linked. Prior to the 1960's, much of selective admissions engineered segregation. Since the 1960's, the large majority of selective programs have been engineering a modicum of integration through the use of affirmative action. Thus, my framing of what I see as the central question: "do we, as a society, want URM students to have the kind of limited access to our selective university programs that they have today, or do we want to reduce that access by emphasizing the rights of white students?" Again, you state that you support the former, but I perceive you taking positions and using language that (likely unintentionally) gives comfort to the latter. Am I wrong on this?


P.S. I think it's enlightening to look at where politically prominent folks stand on affirmative action. I can think of no prominent Democrat who has publicly opposed affirmative action. On the Republican side these days, relatively few whites support affirmative action (John McCain has famously been strongly in favor and strongly opposed, depending on when you ask). Marco Rubio and others of the handful of prominent URM Republicans tend to oppose affirmative action, but Colin Powell and Condi Rice have publicly expressed support.

Jim, Four more (short, I hope) thoughts this morning:
1.) I'm grateful that you're approaching this issue from an ethical perspective. You acknowledge that there aren't easy answers, and I agree. Please note that what prompted me to email you was the questions you were asking, which I found problematic in ways I hope I've made clear.
2.) On stigma, should we be concerned in a parallel way about the development or legacy admit with lower grades and test scores who thereby "insults" other rich and unconnected applicants who get admitted "on their own?" Probably not very much. There's a classic Wall Street Journal article from years ago about a development admit, Maude Bunn, whose family expressed entitlement to admission so strongly that all fairness implications were irrelevant to them.
3.) We do come at these issues from different directions: for example, I recognize the procedural differences in de jure and de facto segregation, but strongly feel that the very similar results of both make them way, way more similar than different, while you feel the differences give weight to different analyses.
4.) A slavery/white property whites analogy might be useful, even despite the transcendent implications of owning another human being. You and I both agree that slavery has to be ended; however, I believe that the property rights of slaveholders need to be a very,very low priority in the discussion and we should avoid using their language and analyses, while you have less objection to engaging slaveholders on their terms. This could be seen as an idealist/pragmatist divide, but I strongly believe that the burden of defense is on the slaveholders, not on us.


 Dear Jay,

1)      My objections to social engineering are not confined to social engineering for affirmative action purposes, and I am not naïve enough to believe that social engineering doesn’t take place in a variety of forms currently.  What I find objectionable is starting with a desired result and then manipulating an admissions process to achieve that result.  Interestingly enough, in the oral arguments before the Supreme Court the attorney for Fisher seems to suggest at one point that Texas would be fine if it manipulated criteria in a different way to achieve the same result.  I believe that admissions criteria should be chosen solely because they measure educationally essential qualities.

2)      You are correct that my concerns about affirmative action are about “affirmative action employed poorly.”  We may disagree about what constitutes “employed poorly.”  Clearly that describes colleges that admit students with no chance of graduating, but I also think it applies to colleges that admit students from different groups with radically different profiles, creating in essence two different admissions processes.  Even if the URM students graduate, the college is not practicing equal consideration as the Supreme Court has said is constitutionally required.

3)      On the means/ends dichotomy, you argue that integration is the preeminent value or consideration, whereas I argue that Equal Consideration is the preeminent value both legally and ethically.  There is room to debate what Equal Consideration requires and how to achieve it (it does not mean Equal Treatment), but ideally every individual applicant deserves equal consideration in the admissions process.  If a given set of admissions criteria at a selective institution results in lowering access to underrepresented populations, that should be cause for reevaluating those criteria for all applicants.

4)      I agree totally that Clarence Thomas has benefitted more from affirmative action than he wants to believe.  I don’t agree with either his politics or his vow of silence on the Supreme Court, but benefitting from affirmative action is nothing to be ashamed of.

5)      I don’t accept the slavery analogy.