A new low in apologies for racial discrimination, Part Two

Yesterday, I commented about an op-ed in which Martha Minow (dean of Harvard Law School) and Robert Post (dean of Yale Law School) defend their institutions’ consideration of race in law school admissions decisions as a means of assessing the character of applicants. I argued that such an assessment smacks of racism, relies on the unverified stories of applicants about how race has affected their lives, and has nothing much to do with what colleges and universities actually do when they grant racial preferences.

A friend with vast experience in employment law offers an additional point. He focuses on the claim by Minow and Post that a rule forbidding all consideration of race by colleges, law schools, etc. could not possibly be enforced. They say:

Essays and letters of recommendation are critical components of the application process at law schools. They allow us to evaluate intangible virtues such as courage, commitment and moral compass. In their personal statements, many applicants discuss how race has influenced their lives. Writers of recommendations frequently mention race in explaining how an applicant has overcome challenges. Would those advocating race-blind admissions have us censor the statements of applicants and their recommenders? How could we carry out such a task, even if we were inclined to do so?

My friend responds with this helpful suggestion:

Plenty of employers are subject to Title VII and similar state and local laws, and they operate within a legal framework that requires them to make employment decisions without “consideration of race.” Indeed, taxpayers annually pay several hundred million dollars to fund the EEOC with the idea – perhaps quaint, perhaps naive – that the EEOC will enforce race discrimination prohibitions in employment.

Given the enforcement difficulties identified by Deans Minow and Post, perhaps Congress could create a similar agency that would be responsible for policing admissions decisions by colleges and universities. With their help, Congress can probably come up with a catchy name for such an agency. How about the Equal Entrance Opportunities to Colleges Commission? The EEOCC has a nice sound, and given the lousy economy, the government would have no trouble staffing it with investigators and lawyers who could then demand that places like Harvard and Yale Law Schools be subject to lengthy, time-consuming and expensive investigations and litigation just like employers.

The academic hiring and tenure decisions of colleges and universities are subject to legal challenge by those who believe they have been discriminated against based on race, gender, etc. These claims may entail involve a tricky review of the qualilty of published work, the value of certain kinds of research, etc.

One would hope that external review isn’t necessary when it comes to college admissions decisions. One would like to trust the administrators of law schools to make color blind decisions if they are told that this is what the Constitution requires. But if Minow and Post say they aren’t capable of doing so, they would have only themselves to blame if a special agency were established to help them out.


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