The California Cover-up
California’s state-run universities have long been considered among the glories, if not the crowning glory, of public higher education in the United States. They have also, for over four decades, been the sites of battles-royal over some of the most fractious issues facing the nation. The radical student movement of the 1960’s found a prominent home on the Berkeley campus; in 1966, vowing to “clean up the mess” and fire Clark Kerr, the university’s accommodationist president, the political novice Ronald Reagan bested Pat Brown, California’s sitting governor, and began his upward ascent to the White House.
The most contentious battles by far have come in the realm of affirmative action. In 1973 and 1974, Allen Bakke sought admittance to the medical school at the University of California at Davis. Rejected in both years, he sued after learning that his test scores were higher than those of other candidates whose applications had been weighted favorably because they were members of minority groups. In 1978, the Supreme Court agreed with Bakke that his rights under the equal-protection clause of the Fourteenth Amendment had been abridged. But the decision was an ambiguous one, outlawing the use of explicit numerical quotas while continuing to allow race to be taken into account in admissions to public schools and universities.
In the mid-1990’s, Ward Connerly, a member of the university system’s board of regents, led his colleagues in resolving this ambiguity, behind which the state had been steadily granting preferential treatment in admissions to targeted minorities and women—and thereby discriminating against others. High-school students of Asian descent, for example, needed a far higher grade-point average than their black or Hispanic classmates to win admission to the schools of their choice. Connerly championed and secured passage of a statewide referendum, Proposition 209, declaring on solid constitutional grounds that “the state shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting.”
And yet, notwithstanding the fact that Proposition 209 was made law at the behest of 54 percent of California’s voters, a determined alliance of school administrators and liberal activists has continued to resist, evade, and even violate its provisions. The center of the fight is, once again, the University of California—and it involves specifically the data kept by administrators both on their particular school’s admissions procedures and on the subsequent academic performance of the students they have accepted.
Tim Groseclose, a professor of political science at UCLA, made news this year when he noisily resigned from the university’s faculty committee overseeing undergraduate admissions. Groseclose quit, he explained, because the university had refused to turn over documents that might reveal the ways it was systematically continuing to select students by race. As he wrote in an 89-page report published last August:
A growing body of evidence strongly suggests that UCLA is cheating on admissions. Specifically, applicants often reveal their own race on the essay part of their application. This allows admissions staff members to learn the race of the applicants; then, in violation of Proposition 209, readers use such information to evaluate applicants. To the extent that this happens—an extent which can only be assessed with systematic data on admissions—such practices are de-facto implementations of racial preferences.
Groseclose went on to trace the genesis of the “cheating” he alleged. In 2006, a firestorm had engulfed UCLA when it emerged that only approximately 100 African-American freshmen had been admitted out of a class of 10,000. At a special meeting of the UCLA admissions-oversight committee, according to Groseclose, then-Chancellor Norm Abrams reported that “[s]everal constituencies of UCLA are distressed and upset about the very low numbers of African-American freshmen. . . . [T]here is pressure exerted upon me. The numbers of underrepresented minorities on campus are too small.”
To remedy the situation, Abrams directed that UCLA abandon its standard admissions practice of splitting every application into two parts, one concerning the student’s academic record and the other his extracurricular activities, with each part evaluated by a different reader, and adopt instead a “holistic” procedure in which an application was considered as a single whole. As it happened, the “holistic” method was the one being used by Berkeley, and Berkeley was admitting more black students than UCLA. Was this, Groseclose wondered, because the method allowed a reader surreptitiously to take note of the race of an applicant, which might be mentioned in the section on matters extracurricular, and weigh the entire application accordingly?
Groseclose’s suspicions were reinforced when, soon afterward, the UCLA administration voiced concern over the “demographics” of its sitting admissions readers. A slew of new readers was subsequently hired, of whom 40 percent were African-American—far in excess of the proportion of blacks in the work force of Los Angeles. Moreover, enhancing “diversity” was a clearly defined goal of the training received by these new readers. Predictably, the following year saw a spike in the percentage of African-American applicants admitted to UCLA, accompanied by a dip in the percentage of Native American and Chicano/Latino admittees.
Believing that the system had been manipulated by allowing or even encouraging black applicants to identify their race in their admissions essays—for instance, in discussing personal hardships they had overcome—Groseclose requested a random sample of 1,000 application files, half from the new “holistic” system and half from the prior system. The response to his request ranged from silence and evasion to outright refusal. On various occasions, Groseclose was told that privacy concerns prohibited any release of the data, even though he had specifically stipulated that the names on the applications should be removed, offered to sign whatever confidentiality agreement might be needed, and promised to refrain from using the material for other academic purposes or research. Eventually, the head of the oversight committee proposed an internal review that would not begin until the spring of 2009—a date that the school’s director of admissions then proceeded to push farther into the future by four or five years.
Outside sources seemed to confirm Groseclose’s suspicions that the university was creatively evading, if not violating, Proposition 209. In a September 2007 New York Times Magazine article, David Leonhardt reported that a black alumnus named Peter Taylor had been tapped to head a UCLA task force “to get more black students to apply, more black applicants to be admitted, and more black admits to enroll.” As for how the university meant to achieve its aims without, in Leonhardt’s words, “breaking the law—or at least without getting caught,” Taylor himself gave the game away. Asked whether overcoming Proposition 209 required civil disobedience, he replied:
Exactly when you cross over into civil disobedience is not always clear. And I probably come down on the side of pushing the outer limits. I’m much more of the attitude of, “So what if someone sues?” If you lose, you at least define the line a little more clearly. You say, “Mea culpa,” and you don’t do it anymore.
In short, Leonhardt wrote, “It’s hard not to conclude that race was a factor in this year’s admissions decisions at UCLA.” Nor was there any blinking the standard-lowering lengths to which the university was prepared to go in recruiting students: according to the Times Magazine article, “average SAT score for admitted African-American students fell 45 points” in 2007, while “for Asian, Latino, and white students, the averages were much more stable.”
Groseclose is not the only member of the UCLA faculty struggling to procure crucial data on racial preferences. Richard Sander, a professor at the law school, has taken on the California bar and, indirectly, law schools throughout the state. His particular focus is not so much admissions procedures on one campus as the general effect of racial preferences on those whom they are supposedly designed to help. Sander had already published groundbreaking work concluding that students admitted to elite law students by virtue of racial preferences suffer dropout rates much higher, and bar-passage rates much lower, than either white students at the same schools or minority students who attend less prestigious schools without the need for racial preferences. He calls this the “mismatch” effect.
In 2007, wishing to pursue his research further, Sander turned for assistance to the California state bar, which retains comprehensive data on all examinees. The aim of his proposed study, he wrote, was to assess “whether students tend to do better in law school and on the bar exam if they go to a law school where their classmates are more like themselves (in terms of admissions credentials and other background characteristics) than if they go to a law school where most of the students have substantially better admissions credentials.”
The extent of the problem nationally was enormous, he told the bar:
In California, for example, the first-time bar-passage rate of whites taking the bar from 1997 through 1999 was 76 percent whereas for blacks it was only 43 percent. The statistics are much the same and sometimes worse in other jurisdictions. A national study commissioned by the Law School Admissions Council during the 1990’s, known as the Bar Passage Study (BPS), found that blacks were four times as likely as whites to fail the bar on their first attempt, and six times as likely to never pass the bar. Smaller but still very serious disparities affect Hispanic bar-takers.
Addressing the issue of privacy, Sander proposed “a detailed mechanism for protecting the confidentiality of information” and assured the bar that “[i]ndividual applicant data will not be released to anyone. Our reports will not refer to schools by individual name, but by general type.”
After discussing the matter internally and consulting with California law schools, the bar rejected Sander’s proposal, claiming that bar applicants themselves had restricted access to the data and/or that other privacy concerns prevented the release of the information. In fact, the bar’s own website had previously provided much of the data Sander was seeking. But in any case the confidentiality argument was clearly a dodge. Writing in the Wall Street Journal, Gail Heriot, a professor of law at the University of California-San Diego, clarified why administrators might look askance at Sander’s inquiry:
If racial preferences really are causing more harm than good, [some of Sander’s critics] apparently don’t want you—or anyone else—to know. Take William Kidder, a University of California staff adviser and co-author of a frequently cited attack of Sander’s study. When Mr. Sander and his co-investigators sought bar-passage data from the state bar of California that would allow analysis by race, Mr. Kidder passionately argued that access should be denied because disclosure “risks stigmatizing African-American attorneys.” At the same time, the Society of American Law Teachers, which leans so heavily to the Left it risks falling over sideways, gleefully warned that the state bar would be sued if it cooperated with Mr. Sander.
The bar’s board of governors formally rejected Sander’s request in November 2007, whereupon Sander filed suit directly with the California Supreme Court to secure the data. The case has since been remanded to a lower court.
There is indeed good reason for law schools to be concerned about what Sander might find. For instance, Berkeley’s law school advertises an overall bar-passage rate of 88 percent, but the rate is substantially lower for students who would not have been admitted to the school were it not for race-based preferential treatment. At some elite schools in the state, the gap in bar-passage rates between whites and minorities can run to a shocking 40 percentage points.
To Sander, as to Groseclose, it is clear that state-run law schools are continuing to employ racial preferences in flagrant violation of California state law. The tragedy, in his view, is that the victims of the fraud are not just the white and Asian applicants who are turned away but the black students who are admitted without the necessary skills or knowledge to succeed. In interviews with minority graduates who failed the bar, he found that despite board scores and undergraduate grades below those of most of their classmates, these students had convinced themselves that they had not received any preferences upon being admitted to law school. Perhaps worse, they had believed that the fact of their admission would assure their success in the bar exam and in their future legal careers. They had, in brief, been sold a bill of goods.
In April 2007, the U.S. Civil Rights Commission published a report on Sander’s work and its critics, and on the issue of disclosing relevant data to test the mismatch theory. The commission also examined a contentious new directive from the American Bar Association requiring law schools to demonstrate “a commitment to diversity” in order to obtain accreditation.
In its conclusions, the commission recommended additional research into “the impact of racial preferences on racial disparities in law-school academic performance, bar-passage rates, graduation rates, student loan-default rates, and future income”; urged state bar associations and law schools to cooperate by disclosing data; and called on Congress to “enact legislation requiring law schools receiving federal financial assistance to disclose to the public detailed data on the extent to which they take race into account in making admissions decisions.”
Will Groseclose and Sander, or will the Civil Rights Commission, succeed in shedding much-needed light on the mechanics and consequences of racial preferences? There is no way of knowing as yet. To this day, William G. Bowen and Derek Bok have refused to release the data they used in The Shape of the River (1998), a large-scale “empirical” defense of affirmative action.1 In another recent instance of stonewalling, two linked Supreme Court cases in 2003 regarding admissions at the University of Michigan were made possible only by freedom-of-information requests forcing that state-run institution to reveal its inner workings.
In its companion rulings in those two cases, Grutter v. Bollinger (concerning Michigan’s law school) and Gratz v. Bollinger (concerning its undergraduate college), the Court sought to address the awkward and untenable balance struck in Bakke; instead, as Carl Cohen observed in COMMENTARY, the Justices succeeded only in making “what was muddy in Bakke . . . muddier still.”2 It is therefore a bitter irony that, despite the dishonesty and even the patent unconstitutionality of Michigan’s affirmative-action programs, Justice Sandra Day O’Connor in her majority decision in Grutter deferred to the probity of public universities in policing themselves:
Our conclusion that the law school has a compelling interest in a diverse student body is informed by our view that . . . “good faith” on the part of a university is “presumed” absent “a showing to the contrary.”
If Groseclose and Sander are right, the Court has strong grounds for reassessing O’Connor’s presumption—and the people of California have even stronger grounds. Even for those inured by now to the seemingly boundless commitment of liberal establishments to the racist practice of “diversity”-based affirmative action, the likelihood that officials working for the most prestigious public institution in the nation’s most populous state are now deliberately pursuing a policy of outright lawlessness is a stunning development.
1 For a debunking, see “Racial Preferences: What We Now Know,” by Stephan Thernstrom and Abigail Thernstrom, COMMENTARY, February 1999.
2 “Winks, Nods, Disguises—and Racial Preferences,” September 2003