New York Times non-biased article – DEI

Today’s front page includes a fascinating article that reflects on the status of DEI at universities in America. The headline reads – “Diversity Statements by Faculty Complicates Hiring on Campus.” The story revolves around a Toronto professor who was rejected by UCLA for a job because, although he was a strong proponent of DEI programs at universities, he had previously questioned in a podcast whether requiring job applicants to complete a “diversity statement” was worthwhile versus being merely performative.

According to the NYTimes, “Diversity statements tend to run about a page or so long and ask candidates to describe how they would contribute to campus diversity, often seeking examples of how the faculty member has fostered an inclusive or antiracist learning environment.” Despite his misgivings about the effectiveness of a diversity statement, the Toronto professor completed and submitted a fine statement, but the UCLA grad students and faculty conflated his opposition to the statement with implicit opposition to DEI.

The article is surprisingly fair and dispassionate (for the NYTimes) concerning a controversial progressive issue like DEI (the governors of Texas and Florida have banned DEI programs from all state colleges). In fact, some of the online comments suggest that the author, Michael Powell, was so biased against diversity statements that the article should have been moved to the Opinion section. Of course, from my perspective, the article wasn’t biased against diversity statements, but the facts surely were.

The facts:

1. Diversity statements at UC are used in the initial screening of applicants, and “candidates who did not look outstanding on diversity could not advance, no matter the quality of their academic research. Credentials and experience would be examined in a latter round.”
2. Berkeley rejected 75% of applicants based on diversity-statement screening. Latinos were 13% of applicants and 59% of finalists; Asians were 26% of applicants and 19% of finalists; Whites were 59% of applicants and 14% of finalists; and Blacks were 3% of applicants and 9% of finalists.

Obviously, the Diversity Statement is working just like the Affirmative Action that the Supreme Court recently declared unconstitutional. (One of the commenters to the article asked Ed Blum, the Affirmative Action killer to take up this cause.) Furthermore, California may be a liberal state, but the voters have directly and clearly spoken that they don’t want affirmative action in college admissions, and there is no reason to expect a different opinion on hiring college professors.

Berkeley is apparently rethinking how strongly it values DEI over other qualities – “Many departments now twin diversity and research statements and often include teaching statements.” I guess we can label that as progress.

The latest developments with affirmative action

Today’s New York Times had two articles on affirmative action.

The first article (page A16) was a narrow look at how aggressively colleges are using application essays to circumvent the SCOTUS ban on race-based decision-making. Because the court’s decision explicitly authorized applicants to discuss race in their application, some colleges are explicitly encouraging such discussion with their so-called prompts to for the essays. One college, Sarah Laurence College, “saucily incorporates a quote from the official summary of … the majority decision in its prompt: ‘Nothing prohibits universities from considering an applicant’s discussion of how race affected the applicant’s life.'” Harvard’s prompt is not quite saucy, but relies on verbiage from the SCOTUS opinion (not its summary) – “How will the life experiences that shape who you are today enable you to contribute to Harvard?” Johns Hopkins ‘ “Any part of your background, including but not limited to race, may be discussed in your response to this essay if you so choose.”These essay prompts expose colleges that clearly disagree with the SCOTUS decision and can be expected to act accordingly when “no one is looking.”

The second NY Times article (page A21) concerns a more circumspect and respectful White House – “White House Offers Advice To Keep Campuses Diverse.” (More diverse can usually be translated to mean more nonwhite or less white.) The two articles seem coordinated because, while the first focused exclusively on the application essay, the second focused on pre-application issues (recruitment) and post-application issues (campus programs like affinity clubs). The guidance from the Biden administration approved both recruitment and affinity clubs, but did not address related issues of hiring and scholarships.

I think we have turned the corner on race-based discrimination, a/k/a affirmative action, but I’m sure the pro-abortion people felt the same way with Roe v. Wade. Time will tell.

Davis Medical School and affirmative action

SCOTUS recently ruled that racial affirmative action in college admissions was unconstitutional. And the majority decision concluded by specifically warning Progressives against any sneaky work-arounds – ““[W]hat cannot be done directly cannot be done indirectly. The Constitution deals with substance, not shadows,” and the prohibition against racial discrimination is “levelled at the thing, not the name. Nevertheless, we can be sure that Progressives will continue to pursue racial balancing under some other name. One possibility already exists.

Cal Davis Medical School has a program called Socioeconomic Disadvantage Scale, or S.E.D. According to an article in The Times, “The scale rates every applicant from zero to 99, taking into account their life circumstances, such as family income, zip code, and parental education. Admission decisions are based on their score, combined with the usual portfolio of grades, test scores, recommendations, essays, and interviews.”

SED seems to be working. Its most recent class was 14% Black and 30% Hispanic. “Although there is no set formula on how to balance SED with an applicant’s academic record,” Davis appears to heavily weigh SED because 84% of the class comes from disadvantaged backgrounds and 42% are the first in their family to go to college.

As applied, SED seems horribly unfair to people from advantaged backgrounds, but the same argument can and is used by opponents of Legacy admissions. Perhaps we can eliminate both of them.

America’s overwhelmed asylum system

There was an article in today’s Times about America’s overwhelmed asylum system – “For Many Migrants, Clock is Working Against Them; Asylum Seekers Face Deadline of a Year and a Complex Process.” The system is overwhelmed because of 250,000 new applications this year to create a pending total of 1.6 million. I was going to say that article was interesting, or even fascinating, but upon further reflection, it was typically mediocre, especially considering the resources that The Times has at its disposal.

As suggested by the headlines, the article focuses on a requirement for asylum seekers to file a formal application within one year of starting the process. You might wonder why a one-year period is particularly onerous, but The Times explains through an expert – “Our immigration system is broken,” said Henry Love, vice president for policy and advocacy for Win, which runs 14 family shelters. “You’re going to have so many people who won’t have the opportunity to apply for asylum simply because of the logistical complications of it,” he said, adding: “I have a Ph.D., and there’s no way I could.” Maybe just a bit of hyperbole.

The Times further explains – “The application itself can be incredibly difficult: It is 12 pages long, in English, and includes questions like the last five addresses where the applicant lived, the names and addresses of relatives and a portion to explain — in detail — what harm or mistreatment they have faced. Missing one question can result in the return of the application.” Sounds like applying for an apartment lease, and twelve months to do it.

The article touches on so several issues, but leaves unanswered questions:

1. You might think The Times, as a starting point, would provide some context to the exploding number of applications, but they utterly neglected it. My understanding is that recent immigrants have gravitated toward making asylum claims after they discovered that it is the loophole that will most likely gain them immediate entry on U.S. soil.
2. The Times briefly explained that asylum is granted to those who face a “credible fear of persecution in their country of origin,” and its lede described a Honduran who “walked nearly 2,000 miles on a dangerous trek last spring to escape from a violent gang that was extorting him. The group demanded a monthly payment to allow him to run his car shop in peace.” An obvious unanswered question is what does persecution mean. As a general matter, it can be a variety of physical harm or threats, but in the context of asylum law, the persecution must be on account of race, religion, nationality, membership in a particular social group, or political opinion. This requirement is why the vast majority of asylum claims are easily rejected unless the applicant has prior access to an attorney or advocate who expertly describes the acceptable rationales and statements. It is possible The Times reporter wasn’t aware of this requirement; otherwise the Honduran could have been coached to tweak his story to contain some element of asylum-type persecution.

The WIN Ph.D. referenced above concluded the article by saying his organization had partnered with legal aid attorneys and created an application clinic. Wonderful.

p.s., if there were 250,000 newly-completed applications last year, just imagine how many we would have if the process were streamlined.

Student-debt relief goes down

When SCOTUS ruled against affirmative action on Thursday, my attention quickly shifted to the last remaining major decision – student-debt relief. I asked myself which of the two, if I had to choose, was most important, and I couldn’t decide. (Like picking a favorite child.) I felt heavily invested in both. Fortunately, I didn’t have to choose and SCOTUS came through again 6-3.

Although I felt equally strong toward both issues, I understand reasonable minds can disagree about affirmative action. We all want poorly performing populations to perform better; the question is how best to achieve it. Reasonable minds can disagree.

But student-debt relief seems to have no redeeming qualities. Any argument in support of relief makes little sense to me and seems nothing by a rationalization looking for a handout.

The Times article on the holding focused on how this result was a huge political setback for President Biden for failing to deliver on a big campaign promise and whether there was any other way to skin this cat. Biden said, “Today’s decision has closed one path. Now we’re going to pursue another.” He said his administration would attempt a similar relief plan through the Higher Education Act. But The Times countered, “But the Supreme Court’s decision… limited Biden’s alternatives and suggested that other attempts to address student debt would be met with skepticism at the court.”

Among the interesting perspectives discussed in two Times articles:

1. In his opinion, Chief Justice Roberts said the law allows the secretary of education to “waive or modify relevant statutes and regulations in an emergency – “The secretary’s plan has ‘modified’ the cited provisions only in the same sense that ‘French Revolution “modified” the status of the French nobility’ – it has abolished them and supplanted them with a new regime entirely.”
2. Many experts had warned that SCOTUS very possibly could rule that the plaintiffs had no standing to bring the case. Most in the media never even mentioned that aspect of the decision, and The Times buried a couple of paragraphs near the end of a long article. Standing was granted to the Missouri Higher Education Loan Authority, which claimed that its potential losses from loan forgiveness were sufficient to confer standing. Two other plaintiffs were denied standing.
3. Many memes on Twitter argued that it was hypocritical of the GOP to oppose student-debt forgiveness while previously supporting PPP forgiveness, which cost almost as much. President Biden parroted this nonsensical argument after the decision – “Biden lashed out at Republicans who challenged his plan, saying they were willing to forgive loans for business owners during the pandemic, but not for Americans struggling with college debt. ‘The hypocrisy is stunning.'” Biden’s comment in stunning in that PPP was given to businesses in the middle of the pandemic that were shut down by government. By contrast, student-loan forgiveness had almost nothing to do with the pandemic because the its affect on the finances of most individuals at this time is minimal.
4. The Times article concluded by saying loan payments will resume in October. “Mr. Biden renewed the pause several times since taking office, but has said it will not be renewed again now that the pandemic has largely ended.” This is poppycock. Payments will resume in October because the GOP included a provision in the recent Debt Extension legislation requiring that payment resume in October. This is the law of the land. There can be little doubt that without this law, Biden would issue another extension to reflect his frustration with the Supreme Court and GOP.

SCOTUS ends affirmative action in colleges

Chief Justice Roberts long ago said that the way to end discrimination is to stop discriminating. On Thursday, with three new Trump justices on board, his thinking became the law of the land. A college’s interest in a racial diverse class (ostensibly to improve the learning experience for all students, but really to increase the percentage of underrepresented minorities) does not justify racial discrimination against over-represented races (whites and Asians).

There are, however, a few loose ends:

1. Chief Justice Roberts said that colleges could continue to consider the race of individuals in the context of their life’s experiences and challenges when considering their applications. “Nothing in this opinion should be construed as prohibiting universities from considering an applicant’s discussion of how race affected his or her life, be it through discrimination, inspiration, or otherwise.”
2. Progressives quickly latched onto this loophole and are already advocating for colleges to evade the decision. As The Times noted, “How can they know whether an admissions decision was based on an essay about personal grit – or the race of the applicant that it revealed?” One admissions officer has suggested that students should tailor their personal essay to describe how race affected their lives. And says they are considering asking applicants to comment on DEI – e.g., “”One of the core values of our college is diversity of all kinds. Please tell us why you value it, and what you think your bring to this college community in terms of diversity.”
3. But Chief Justice Roberts also limited the loophole by warning against using a personal essay as a stealthy means of telegraphing race. And Edward Blum, the conservative most responsible for leading this legal charge against affirmative action, warned that his organization would not allow an end-run by colleges – “We remain vigilant and intend to initiate litigation should universities defiantly flout this clear ruling.”

Lost in all the coverage of this decision is a fact brought out by Justice Thomas in his concurring opinion – admissions at an elite college is essentially a zero-sum game. So while this decision may result in some applicants not getting into their preferred college, it will result in other applicants getting in. Many stories about anxious Black and Hispanic high schoolers, but not about inspired White and Asian high schoolers.

Justice Thomas in his concurring opinion referred to one of my favorites Thomas Sowell for the proposition that there are always disparities in numbers between groups, and that disparities don’t prove racism. And Thomas threw this position at Justice Jackson’s argument for affirmative action until the numbers match up. Well said.

zero sum

What to do with eleven million illegal immigrants

Donald Trump’s strong stance against illegal immigration continues to dominate the contest for the GOP presidential nomination.  Because Trump is the dominant front runner, some of his opponents have been taking potshots at him, but even more forcefully, the media went after him this past weekend.

The principal anti-Trump argument on the Sunday TV shows didn’t concern his bold argument against birthright citizenship, but rather the media asserted that it was not financially and logistically possible to remove eleven million illegal immigrants.  According to cited studies, it would cost hundreds of billions of dollars and take years.

When confronted with these numbers, Trump gave a fuzzy answer that this challenge could be met through his excellent “management.”  Although that answer generally quieted his questioners, I suggest that there is a better answer, which was developed by a man much smarter than Trump – i.e., Mitt Romney.

In 2012, Romney concluded that millions of illegal immigrants would “self-deport” (a) if an effective e-verify system prevented them from securing employing in America and (b) if an improved detection and apprehension process made living in America less safe and secure (no sanctuaries).  At some point, America’s laws could also be tweaked to deny birthright citizenship and educational benefits to illegal immigrants.

I realize these measures are draconian, but if America wants to end illegal immigration, then the magnets that attract illegal immigrants must be eliminated.  Of course, millions of America don’t think that illegal immigration is a big problem, and they will be willing to leave things pretty much as they are.

Elections matter.  I will be surprised if the GOP selects a nominee who is soft on illegal immigration (Bush, Rubio, Walker), but I will also be surprised if the GOP nominee who is hard on illegal immigration (Trump, Cruz, Carson) is able to win a general election.  I think I’m shifting my support from one Cuban (Rubio) to another (Cruz).

An open letter to Bill O’Reilly

Bill, the word for the day is “sophomoric.”  Used in a sentence, “Your reportage this week on anchor babies was sophomoric.”

Why do I think your reportage was “conceited and overconfident of knowledge but poorly informed and immature”?  The Bill of Particulars against you contains two items:

1. False statements.  In your Trump interview on anchor babies, you paraphrased the 14^th Amendment as saying, “If you are born in America, you are a citizen.”  Your omission of the critical middle clause, “and subject to the jurisdiction thereof,” is flagrant journalistic malpractice.  Then you imperiously declared the sentence could have only one legal meaning.  Yes, the sentence you read could only have one meaning, but what is the meaning of the clause you didn’t read?  In law, there is a strong presumption against construing a clause to be redundant or irrelevant.
2. Two days later, you attempted to buttress your legal opinion by interviewing two legal experts – one a conservative and one a liberal – who agreed with you. In law, a judge will pit two advocates against each other and then decide.  Couldn’t you find anyone to articulate an argument contrary to your position?  What about one of America’s most popular constitutional authorities, Mark Levin, who earlier in the week spoke out strongly against your position?  What about one of America’s most respected federal judges, Richard Posner, who opined about anchor babies in a 2003 appellate decision, “Congress would not be flouting the Constitution if it amended the Immigration and Nationality Act to put an end to the nonsense.  A constitutional amendment may be required to change the rule whereby birth in this country automatically confers U.S. citizenship, but I doubt it.”

It’s not too late to redeem your reputation by apologizing to your viewers and presenting them with a full-throated argument on the meaning of “and subject to the jurisdiction thereof.”  Is it directed narrowly at foreign diplomats or more broadly at anyone who has allegiance to another country?

Illegals

The New York Times Magazine is publishing an article this weekend titled, “The Unwelcome Return of ‘Illegals.’”  The article points out that, despite longstanding efforts by the GOP to soften the way its leaders characterize illegal immigrants, the current crop of GOP presidential candidates are being drawn back to a harsher characterization, “illegals.”

When I googled the term “illegal immigration,” I quickly learned that the roiling argument over the proper way to describe illegal immigrants has never subsided.  Countless essays and articles nitpick between illegal and undocumented, with the term illegal preferred by those who think there is something fundamentally wrong with the individual’s status, while the term undocumented is preferred by those who think there is only a minor, correctible technicality wrong with the person’s status.

An article three years ago on CNN.com suggested a compromise based on a Supreme Court opinion by Justice Kennedy.  He used the relatively neutral term, “unauthorized migrant,” but the term hasn’t caught on, probably because most people are not relatively neutral on this subject.  Rather, they either want the migrants gone yesterday or want them welcomed with open arms.

Although I would be much more generous to illegal immigrants than my political brothers-in-arms (I would amnesty those who have been here at least 7-10 years), I have a major bone to pick with the media on its liberal coverage of this issue.  It is almost impossible to find a media article that doesn’t inaccurately conflate illegal and legal immigration.  Candidates like Trump are described as anti-immigrant when the accurate description would be anti-illegal immigrants.  Some pundits might be anti-legal immigration (e.g., Ann Coulter), but I have yet to hear of a GOP presidential candidate who wants to reduce legal immigration.  Indeed, the vast majority of them want to increase legal immigration.

Of course, if the GOP field is generally anti-illegal immigrant, that would mean the Dems could claim the mantle of pro-illegal immigrants, and I don’t think Hillary and the Dems would decline it.

Redistricting San Antonio

Yesterday morning, I attended a hearing on my lawsuit against the city of San Antonio – Kueber vs. City of San Antonio.  The lawsuit accuses the city of illegally redistricting the City Council following the 2010 census – i.e., the liberal City Council diluted the votes of Northsiders (conservatives) by packing an additional 55,000 people into the Northside districts.

The lawsuit was filed in state court, but the city removed it to federal court, claiming that the suit involved federal issues.  We argued that the dispute concerned language in the City Charter and had nothing to do with the Constitution, but the federal judge seemed disinclined to send it back to state court and suggested that we plan on the matter staying in front of him.

Although we thought the matter should have been heard by a Bexar County judge, who are mostly elected Republicans and therefore more sensitive to disenfranchised conservatives, the unelected federal judge David Ezra impressed us with knowledge of voting law.  Because the law is so favorable to us (we think), we think that having our case determined by someone with strong legal skills and an unbiased background augurs well for future success.

This matter has been dragging for months, and now it appears we may not get a decision until 2016.