About a decade ago, a bit uncharitably but not inaccurately, I described George Washington University law professor and New Republic legal affairs editor Jeffrey Rosen as “A Brown-Defying, Meritocratic, Quota-Mongering Preference Pusher.”
He’s still pushing preferences, as in a new New Republic piece offering a depressing if unoriginal argument why the Supreme Court should not prohibit preferences outright in Fisher: if universities are told they can no longer give race-based preferential treatment, they will cheat and do it anyway, often to even worse effect.
He points to a new generation of data mining products such as Descriptor Plus, developed by the College Board working with the University of Michigan, that allows blacks to be identified without the universities appearing to use race. “Armed with the Descriptor Plus categories,” Rosen writes,
the University of Michigan could give preference to applicants from low-income clusters … in which African-American students were disproportionately represented, without explicitly relying on race. The method worked. Two years after Michigan voters banned the use of racial preferences, Michigan’s freshman class saw a 12 percent increase in African-American enrollment, even as the overall class size shrank and other minority groups lost ground.
According to Teresa Sullivan, the former and still president of the University of Virginia but then the provost at the University of Michigan (and, as a sociologist specializing in labor force demography, probably involved in the development of Descriptor Plus), these demographic indicators are “applied in a holistic admissions evaluation” and “are not simple substitutes for race or ethnicity.”
Of course they are not “simple substitutes for race or ethnicity,” as I argued here. “They are complex, expensive substitutes.”
“If the Supreme Court’s decision in Fisher puts new restrictions on racial preferences,” Rosen concludes, “it is likely that universities will expand their use of data mining to get around the ruling.” Although it is debatable whether giving preferences to some students because they live in a black “cluster” and are thus highly likely to be black would successfully “get around” strengthened restrictions on racial preferences, Rosen is no doubt correct in predicting that university preference addicts will no doubt attempt in the future to evade any restrictions just as they have done in the past.
In their masterful Mismatch Richard Sander and Stuart Taylor, Jr., also defended their refusal to call for the absolute abolition of race preferences by predicting that such a ban would be followed by widespread cheating. “[B]ecause of universities’ determination to circumvent any ban,” they argue (p. 279), outlawing preferences would not end them but would lead — and has led — to universities evading bans, thus possibly making mismatch much worse, not better.”
In Grutter, Justice O’Connor’s majority opinion unjustifiably “presumed” the “good faith” of the University of Michigan Law School and accordingly gave “a degree of deference” to its desire to use race in admissions. Now it appears that one of the strongest arguments for the Court allowing colleges to continue their regime of racial discrimination is that they are so addicted to it they can’t be trusted to stop even if ordered to do so.