A Few Additional Comments on the School Cases
The following post is from Michael E. Rosman, General Counsel, Center for Individual Rights. CIR submitted an amicus brief in the Seattle schools case.
I’d like to briefly comment on the dissents and some of the points made by others on this site concerning the school decisions.
1. Ben Winograd has questioned Justice Stevens’s provocative peroration, to the effect that all of the Justices who were on the Court in 1975 would have disagreed with the decision, and specifically states that “one could reasonably debate” what then-Justice Rehnquist would have done. Some of the comments disagreed.
At the outset, of course, precisely what Justice Stevens is saying is unclear. Is he suggesting that the vote would have been 9-0 if the case had been decided in 1975? Or that, those same Justices, were they all alive today some 32 years later, would still disagree with the majority? People and times do change, so I’m not sure those are the same questions.
In any event, Justice Rehnquist was a hard Justice to predict, so I think Ben’s “could reasonably debate” assertion is surely correct. After all, who could have predicted his opinion in Dickerson? And there is another Justice on the bench in 1975 for whom one could reasonably debate how he would have decided the school cases: Potter Stewart. In Minnick v. California Dep’t of Corrections, 452 U.S. 105 (1981), the Court considered an affirmative action program adopted by the California Department of Corrections that apparently set goals for the hiring of women and various racial or ethnic groups. The Court ultimately dismissed the writ because the judgment of the state court appealed from was not final. Justice Stewart dissented, asserting that at least part of the state court judgment was final and that the state court “has wrongly held that the State may consider a person’s race in making promotion decisions . . . So far as the Constititution goes, a private person may engage in any racial discrimination he wants, . . . but . . . a sovereign State may never do so. And it is wholly irrelevant whether the State gives a `plus’ or `minus’ value to a person’s race, whether the discrimination occurs in a decision to hire or fire or promote, or whether the discrimination is called `affirmative action’ or by some less euphemistic term.’” Justice Stewart went on to quote his dissent in Fullilove v. Klutznick at length and to the effect that the government “may never act to the detriment of a person solely because of that person’s race.” (My emphasis in both quotes.)
Obviously, a school assignment program is a different factual context, but those are pretty sweeping statements. Justice Rehnquist concurred in the dismissal of the writ as improvidently granted, but stated that he would have joined Stewart’s opinion if he believed the judgment of the state court had been final. I think one could reasonably debate how each of those Justices would have decided the school cases in 1975, much less today.
2. Bob Driscoll asserts that Justice Breyer’s opinion is “strict scrutiny” in name only. I agree, and would point out two additional pieces of evidence for this. First, the Court has repeatedly said that under “strict scrutiny,” the compelling governmental interest must be the actual interest that motivated the governmental actors. See, e.g., footnote 9 in Gratz, where the Court quickly dismissed the possibility that the race-conscious admissions program at the University of Michigan could be justified as a means of remedying past discrimination, a point that had been raised by intervenors in the case, but not by the University. Justice Breyer nonetheless posits all kinds of possible justifications for the programs in Seattle and Kentucky including the remedying of past discrimination – that the schools themselves disclaimed. (Is anyone else puzzled by Justice Breyer’s vote in Gratz to find the system unconstitutional, especially in light of his dissent yesterday?) Second, note how many times Justice Breyer refers to outside articles and studies which purport to prove that the systems at questions were narrowly-tailored to achieve a compelling governmental interest, and how infrequently he refers to the actual record. Both, it strikes me, are earmarks of a lower level of scrutiny.
3. I remain convinced that the opinions of both the Chief and Justice Kennedy are fairly narrow, and that there is not much difference between them. All the language about “racial balancing” and “racial diversity” as compelling governmental interests cannot obscure the following facts: The Chief’s opinion does not, as far as I can tell, reject the proposition that significant educational benefits can be a compelling governmental interest under the Fourteenth Amendment. Justice Kennedy does not, again as far as I can tell, accept the proposition that racial diversity for its own sake is not a compelling governmental interest. (For that matter, I think the dissenters probably would agree with that statement.) Both opinions concluded that the school districts had not demonstrated that their programs were narrowly-tailored to achieve significant educational benefits. Whether that means that the school districts’ “true” motivation was really “racial balancing” for its own sake, or whether that means the school districts were not sufficiently careful in demonstrating in the record that their programs were designed to use race only to the degree necessary to procure the professed educational benefits, strikes me as a semantic distinction.
Whether that means that the school districts’ “true” motivation was really “racial balancing” for its own sake, or whether that means the school districts were not sufficiently careful in demonstrating in the record that their programs were designed to use race only to the degree necessary to procure the professed educational benefits, strikes me as a semantic distinction.
Of course, it is a semantic distinction for you. Whenever a school district tries to use race only to the degree necessary to procure educational benefits, your organization sues them and claims “the school districts’ ‘true’ motivation was really ‘racial balancing’ for its own sake”!
Comment by Jacques McKenzie — June 29, 2007 @ 4:34 pm
Jacques, what are the “educational benefits” of diversity? As far as i know, there aren’t any. And yes, i’ve read books like “the shape of the river”, etc. the social science evidence that the SCOTUS cited in 2003 when it upheld affirmative action at U. of michigan is absurdly flimsy and methodologically flawed, probably because it is produced by liberal scholars desperately keen to support AA.
Comment by stevej — June 30, 2007 @ 1:15 pm
Steve,
I suspect your definition of “educational benefit” relies on an underinclusive conception of “education” and necessarily rejects racial integration as a “benefit”.
Comment by Jacques McKenzie — June 30, 2007 @ 2:33 pm
Jacques, my definition is very inclusive. it means that a majority of students learn to read better, do math better, become better writers, etc. as a result of the policy.
If someone can show that a “diverse student body” helps our kids do better in math, science, literature, etc. than i’m all for it. But calling “racial integration” an educational benefit makes the term meaningless.
Comment by stevej — June 30, 2007 @ 6:24 pm
Steve,
Like I said, your definition is question-begging and overly narrow. Let me use an anecdote. I once met a guy who asserted that Jews had horns. I was shocked at the statement. I had never before heard such nonsense. Then again, I went to school with Jewish children. I asked him if he knew any Jews, and his answer was: “No.”
If someone — after having taken geology, or earth science — asserts that the Earth is flat, he has not been “educated”. If he asserts that the moon is made of cheese, I suggest he visit the planetarium. If your argument is that educators have no duty to teach children to distinguish between truth and falsity, then I can see the merits of your position. It’s just about test scores. That’s all that matter. Tests.
Rousseau was an idiot. So where all those guys that the Founders read, like Locke and so forth. And John Dewey, screw that guy. Because true Americans are ignorant.
Comment by Jacques McKenzie — June 30, 2007 @ 9:59 pm
Whoops, I meant “were”. Not where. And I aced all my grammar tests. Look at that.
Comment by Jacques McKenzie — June 30, 2007 @ 10:03 pm
Jacques, how does my definition beg the question? And what makes you think i think educators have no duty to distinguish between truth and falsity?
Where the heck did that come from?
And i didn’t say that my definition involves kids being better at math or science or lit *as indicated by a test score*, i said it involves actually doing those things better: Test scores are not a magic bullet. If a test is valid, it tells us something about what the test-taker has learned. If it’s not valid, it doesn’t.
But even for me it is “all about test scores”, you can’t call that “narrow” while failing to explain what else should matter.
So what else should matter, and how is that provided by having a diverse student body?
Comment by stevej — July 1, 2007 @ 1:34 am
To audience:
See my point?
Comment by Jacques McKenzie — July 1, 2007 @ 2:23 pm
To audience:
Good luck grasping his point.
Comment by stevej — July 1, 2007 @ 5:31 pm
Jacques, let me be a bit more specific in my comments about “educational benefits of diversity”. Here is a study lead-authored by Dr. Mitchell Chang, probably the leading researcher in this field. His research was cited as showing the educational benefits of diversity by Justice O’Connor in 2003 when the SCOTUS upheld the U. of Michigan’s AA program. This paper was published in the May 2006 issue of the “Journal of Higher Education”, and you can find it here:
http://www.gseis.ucla.edu/faculty/chang/Pubs/77.3chang.pdf
This paper exemplifies the problem i have with this body of research. The purpose of the study is to determine if “Cross-Racial Interaction” (CRI), measured on a 4-12 scale, and defined as how often students interact with, date, study with, and dine with other-race students, has a positive impact on what they call three educational outcomes:
(1) Openness to Diversity: knowledge of and acceptance of other races/cultures. Score range (min to max) possible was 2-10.
(2) cognitive development: student’s beliefs about their knowledge, problem solving, and critical thinking skills. Score range 3-15.
(3) self-confidence: student’s beliefs about their intellectual and social self-confidence (2-10 score range).
Now, as you might suspect, i have grave doubts about whether ANY of these three outcomes can legitimately be called an “educational outcome”. On the other hand, they seem to fit what you would call a “broad” definition of the concept. So for the sake of argument let’s adopt your broad view and assume that they are. What do the results of the study show?
The authors conduct a lot of analysis, but what it boils down to is this:
(1) a 1 point increase in CRI led to a .17 point increase in “openness to diversity”.
(2) a 1 pt increase in CRI led to a .05 point increase in CD
(3) a 1 pt increase in CRI led to a .04 pt increase in self confidence.
All of these results were “statistically significant”, meaning they indicate a non-random effect – and increase in CRI really is ‘causing’ these three outcomes to go up.
But by how much? Just a cursory glance tells us that these “educational benefits” are trivial. For example, for cognitive development, if CRI goes up from say 6 to 7, that causes CD (which ranges from 3 to 15) to go from say 7 all the way up to … 7.04! Openness to diversity goes up the most, from say 5 to a whopping 5.17 if CRI goes up by 1 point.
And remember, CRI ranges from 4-12. A 4 being someone who never dines, dates, interacts with, or studies with an other-race person, and a 12 being someone who does all four of those things very frequently. Thus, the maximum it can go up is 8 points. Meaning that the maximum positive effect it can ever have on cognitive development is .05 x 8 = .40. If my cognitive development started at 5 and my CRI then went from 4 to 12, my CD would leap majestically upwards to …. 5.40.
Still trivial.
And remember, the real issue here is Affirmative Action. We’d need to study how much of an effect an AA program has on CRI, and surely that won’t be 100% impact because (a) not all minority-race students are on campus because of AA, and (b) CRI measures dining/dating/studying/interacting with other-race people *in all parts of our lives*, not just on campus. If i study, dine, date, or hang out with other-race people at work or church or in the neighborhood that all counts for my CRI, even if my campus is lily-white.
So in all probability, the presence or absence of an AA program probably wouldn’t change a student’s CRI score by more than 2-3 points at most. Meaning we are talking about truly trivial “educational benefits”.
Yet how do Dr. Chang et al. discuss their findings? Do they emphasize their trivial nature? Do they adopt a tone of humility?
No. Here’s what we get:
“The results of this study confirm previous findings ……… that
higher frequencies of interacting with someone of a different race during
college have added educational benefits for students.”
And..
“Overall, the effects of students’ frequency of cross-racial interaction on
all of the three outcomes tested (Openness to Diversity, Cognitive Development,
& Self-confidence) are significant and uniformly positive. Students
who have higher levels of CRI tend to report significantly larger
gains made since entering college in their knowledge of and ability to accept
different races/cultures, growth in general knowledge, critical thinking
ability, and problem-solving skills, and intellectual and social selfconfidence
than their peers who had lower levels of interaction.”
See? They discuss and report their results as if real, practical, non-trivial educational benefits are being derived, and it just ain’t so.
That’s my problem with claims about the “educational benefits” of racial diversity on campus.
Steve
Comment by stevej — July 1, 2007 @ 8:01 pm
Jacques, in re-reading that long post i noticed a couple of errors (and hell there might be more!):
1) my example of CD going from 7 to 7.04: should be 7.05
2) strike my point B about AA: interactions with other-race people outside of campus wouldn’t count, because CRI measures on-campus interactions.
But neither of these alters my conclusion.
Comment by stevej — July 1, 2007 @ 8:09 pm
See? They discuss and report their results as if real, practical, non-trivial educational benefits are being derived, and it just ain’t so.
1. I would refer you back to my anecdote.
2. Thanks for finally admitting that the point you pretended not to see was in fact obvious and cognizable.
3. Why should anyone think your interpretation of Dr. Chang’s report is more credible than Dr. Chang’s report? Are you a leading researcher in Dr. Chang’s field?
Comment by Jacques McKenzie — July 2, 2007 @ 11:19 am
I didn’t have classmates with lots of different races and ethnicities, and I never assumed any of them had horns. If your goal is to educate people about other cultures, by all means have a class on cultural diversity. General “Racial Balancing” may teach students how to positively interact with people of a limited set of other races (e.g. on a sports team) but it seems like a rather complicated and indirect way to teach people *about* other races. I’m not saying that learning to work with members of other races is a bad thing, but there are plenty of ways to accomplish this without resorting to racial discrimination.
Comment by Ben Kennedy — July 2, 2007 @ 9:00 pm
Jacques:
1) Your anecdote still doesn’t make sense.
2) What point did i “finally admit to”? Please speak clearly, no need to beat around the bush.
3) Anyone who understands the data analysis methods Dr. Chang et al. used is qualified to interpret his results, even people like myself who are not experts in the area of diversity research.
My interpretation is more ‘credible’ than Dr. Chang’s because it fits the data better than his. But in case you don’t trust my word, i posted the link to the article so you could see for yourself.
-Steve Jaros
Comment by steve jaros — July 3, 2007 @ 8:48 am
it seems like a rather complicated and indirect way to teach people about other races. … there are plenty of ways to accomplish this without resorting to racial discrimination.
Yes: the most indirect way to teach someone “about” elephants is to take them to the zoo. But that’s because you don’t teach aboutness, you teach facts. The disappointing part of your argument is that it hinges on the studied abuse of a preposition. Direct observation and interaction, I would say, is more direct than “about-ness”.
Also, Steve and I were not talking about racial discrimination. We were discussing whether providing the educational benefits Steve first denied were extant before he pulled up a study that purports to quantify those benefits fits within a proper definition of “education”.
If you need a modified anecdote, let me amend it to note that the guy who thought Jews had horns had aced his World Religions class. So much for teaching a class “about” topics.
Comment by Jacques McKenzie — July 3, 2007 @ 12:28 pm
Jacques, education has multiple facets – I have brought up two so far. First, the student learns facts, figures, and skills to prepare them life and higher levels of training. Second, the student learns how to interact with peer groups, authority figures.
Now one could argue that the most effective way to dispel the “Jews with horns” myth would be to have Jewish students in the classroom. But what about the many school districts that have no Jews? I submit that the most effective solution to this general problem to do is design a curriculum that educates student “about” Jews – for example, by studying anti-Semitism in the Middle Ages. A student with a thorough knowledge of Jewish history will not be under the mistaken impression that Jews have horns.
At the very least, in a hypothetical district with two Jews that live next door to each other and two high schools, it would be terribly unfair to force one of the Jews to go to a school across town so that his lack of horns can be put on display to all his ignorant classmates. Some may even find the notion offensive.
Comment by Ben Kennedy — July 3, 2007 @ 12:59 pm
But what about the many school districts that have no Jews?
We aren’t talking about any such districts. The cases decided before the court had various ethnic populations. The problem was their segregated distribution. Instead of relying on pointless hypotheticals to make your case, try dealing with the facts.
Comment by Jacques McKenzie — July 3, 2007 @ 1:04 pm
At the very least, in a hypothetical district with two Jews that live next door to each other and two high schools, it would be terribly unfair to force one of the Jews to go to a school across town so that his lack of horns can be put on display to all his ignorant classmates.
Except the programs don’t actually work that way, if you read the plurality opinion. Try reading the opinion.
Comment by Jacques McKenzie — July 3, 2007 @ 1:06 pm
But in case you don’t trust my word, i posted the link to the article so you could see for yourself.
I have been rather direct: You have yet to point out any methodological errors in the expert report.
As for your admission, you clearly state: “in re-reading that long post i noticed a couple of errors (and hell there might be more!)“. In other words, your interpretation of Dr. Chang’s report is admittedly erroneous. You further admit you are not a researcher in the relevant field: “people like myself who are not experts in the area of diversity research.”
Lastly, Dr. Chang’s expert report itself — without making the errors in arithmetic you admit to — comes to a conclusion opposite to yours: “Overall, the effects of students’ frequency of cross-racial interaction on
all of the three outcomes tested (Openness to Diversity, Cognitive Development,
& Self-confidence) are significant and uniformly positive.”
So, yes, after having read the expert report, I take the report’s conclusion as scientifically valid.
Comment by Jacques McKenzie — July 3, 2007 @ 2:49 pm
My interpretation is more ‘credible’ than Dr. Chang’s because it fits the data better than his.
Not according to the report.
Comment by Jacques McKenzie — July 3, 2007 @ 2:50 pm
Except the programs don’t actually work that way, if you read the plurality opinion. Try reading the opinion.
The first tie-breaker in the Seattle plan is having siblings or close relatives in the school, the second was race. So the essentials of my hypothetical example are indeed accurate, with regard to how the plans operate. The facts of these cases were that students received different treatment based on their race. You think it was justifiable under strict scrutiny, and I disagree. It would be a shame if you thought of me as a bad person for it.
Comment by Ben Kennedy — July 3, 2007 @ 2:54 pm
The first tie-breaker in the Seattle plan is having siblings or close relatives in the school, the second was race. So the essentials of my hypothetical example are indeed accurate, with regard to how the plans operate
Those aren’t the essentials of your hypo. Your hypo consists of two lone minorities with race as the sole tie-breaker. Whether you are a bad person is something which cannot be determined solely by observing you are mistating the “essentials” of your hypo.
Comment by Jacques McKenzie — July 3, 2007 @ 2:56 pm
The first tie-breaker in the Seattle plan is having siblings or close relatives in the school, the second was race.
This is also a reductive account of the plans’ operation. You’re ignoring the oversubscribing issue (which is directly relevant to whether the kind of busing your hypo assumes is in play, and which exists precisely because there are ample populations of a number of ethnicities within reasonable range of a number of high-quality schools).
Comment by Jacques McKenzie — July 3, 2007 @ 3:00 pm
You think it was justifiable under strict scrutiny, and I disagree.
I have never claimed the plans are justifiable. But your account of them is factually wrong.
Comment by Jacques McKenzie — July 3, 2007 @ 3:04 pm
Jacques,
1) Data misinterpretation isn’t a methodological error. It’s an error in .. data interpretation. And i have indeed shown that Chang et al. have misinterpreted their data.
2) My admission of error in interpreting Chang’s report clearly isn’t the error you referenced in your last post, since you referred to a “point i pretended not to see” in a post i made prior to my discussion of Chang’s report. So by all means clarify what you meant.
Beyond that, it’s rather amusing to see you attempt to use my own admission of errors against me. I guess that must mean you are a lawyer. :)
Suffice to say that i double-checked the other numbers i posted and they are all good. So you can safely rely on those. And they do pretty clearly indicate that Chang’s conclusions are erroneous.
3) Finally, if you want to believe that, using cognitive development as an example, an increase of from 7.00 to 7.05 on a 3-15 scale justifies Chang’s claim that cross-racial interaction produces an “added educational benefit” for students, i guess this is a free country and you can do that. You’re also free to believe in the Easter Bunny, the Great Pumpkin, etc.
Comment by steve jaros — July 4, 2007 @ 10:07 am
Data misinterpretation isn’t a methodological error.
Yes. That is my point.
Comment by Jacques McKenzie — July 5, 2007 @ 12:15 pm
Jacques, what’s the point of that point? Data misinterpretation isn’t a methodological error, but it’s still an error.
Comment by steve jaros — July 5, 2007 @ 1:32 pm
Let me clarify:
[Your] data misinterpretation isn’t a methodological error [by Dr. Chang], but it’s still an error [by you].
Comment by Jacques McKenzie — July 5, 2007 @ 1:42 pm
That clarification would make sense, if it were i and not Dr. Chang who has misinterpreted the data. But such is not the case.
The article is there for everyone to read, and compare to my interpretation. If you think i have misinterpreted the data, by all means explain how.
But please, offer something more meaningful than “well he’s the expert and you’re not”.
Comment by steve jaros — July 5, 2007 @ 3:23 pm
My point is that you have yet to make an argument. You have just said “I reject the conclusion.” There is nothing you have said that merits substantive response.
http://en.wikipedia.org/wiki/Ipsedixitism
Comment by Jacques McKenzie — July 5, 2007 @ 4:32 pm
And your point is wrong, since in my post analyzing Chang’s study i clearly explained why his interpretation was wrong.
Your failure to recognize that is not my problem, though you’ve done a good job baiting me into acting like it is. sheesh.
Comment by steve jaros — July 5, 2007 @ 7:14 pm
I haven’t baited anything. Unless you can find a methodological error, you’re in no position to claim Chang’s conclusion in invalid.
Comment by Jacques McKenzie — July 5, 2007 @ 8:07 pm
Sure you have. I’ve explained to you that methodological rigor doesn’t necessarily lead to a valid conclusion. In fact, i’ve showed that in this case Dr. Chang has drawn unjustified conclusions.
Comment by steve jaros — July 6, 2007 @ 9:07 am