Regardless of what you think about affirmative action, can we at least agree that it is a complicated issue? Can we at least agree that the vagaries of constitutionally permissible racial conscious admissions programs are subtle? Is it too much to ask that when reporters try to get the public to freak out about affirmative action proposals, they at least read the proposals first?
The Daily Caller got a hold of an affirmative action story yesterday, and they totally blew it. They’ve got a juicy headline: “Will public law school push affirmative action in secret?” And they’ve got a really crazy hook: “[The law school] would allow [disadvantaged minorities] to study a different curriculum and take different tests than other students pursuing the same studies.”
Well damn, if a law school was pushing a secret plan to allow minorities to take different tests than everybody else at the law school, that would be outrageous! And unconstitutional! And generally horrible.
Good thing that’s not at all what any law school is contemplating…
The unsophisticated reporting on this got started on a site called “The Arkansas Project” when reporter Nic Horton went to a faculty meeting at the University of Arkansas at Little Rock, Bowen School of Law. Horton writes:
I had heard that the faculty would be discussing (and voting on) a new affirmative-action admissions initiative. The program Bowen is considering is called “Legal Education Advancement Program” (LEAP); it’s modeled after a program instituted by The Posse Foundation. As I understand it, this program would be specifically geared towards “people of color” (their words, not mine) and those who are “economically disadvantaged.” To make a long story short, admittees to the LEAP program would have to qualify either as “people of color” or “economically disadvantaged”; each LEAP enrollee would undergo a special regimen of classes, exams, and training that would attempt to prepare the enrollee for law school.
Affirmative-action policy for law school is often controversial, and not only because of recent Supreme Court decisions that narrow the permissible scope of such programs. The more I heard about LEAP, the more it looked to me as if its focus on race might push it outside what is constitutionally allowed.
Okay, so we see here the Daily Caller’s most egregious mistake. This is a pre-admissions, head start type of program for people who have not been admitted to law school. This isn’t allowing minorities and poor people to “study a different curriculum and take different tests than other students pursuing the same studies.” That’s a horribly misleading statement. People admitted to UALR Law will all take the same freaking tests in pursuit of their studies. The End.
Here’s how the proposed program would work (and Horton, thankfully, bothered to link to the actual proposal, unlike the Daily Caller): UALR Law admissions people would nominate applicants who don’t otherwise meet their standards for admission to participate in a six-week summer course designed to prepare them for law school. They’d take classes and tests over the summer, and if they passed, the UALR admissions committee would vote on whether to admit them to the law school. When nominating students for this program, the admissions committee would take into account applicants from disadvantaged racial or economic backgrounds.
Now, this seems to me like exactly the kind of “affirmative action” we should want. Not everybody comes to the law school admissions process with the same kind of preparatory background. Let’s pull a few kids out of the discard pile, give them some extra schooling, and see if we can get them up to speed in six weeks with some remedial training. If they succeed, great, they’re ready for law school. If they fail, too bad, but we’re not just going to put kids through an education that they’re not prepared for just to make our diversity numbers look better.
Whether or not you agree with the goals of such a program, it’s most likely constitutional under the Grutter framework (excuse me if I’m not yet ready to think through how Anthony Kennedy’s maddening prose in Fisher might be applied to a real world situation). Here are the proposed factors in being nominated for the program:
I know, I know, when you read it there, it sounds really stupid. I mean, “Intrigues”? WTF? “I find this applicant who made his LSAT scantron look like the Sagittarius constellation intriguing.” But this looks like the kind of “race isn’t the defining thing” decision matrix that makes Grutter happy. Is it BS? Probably. Is it constitutionally permissible BS? Most likely.
Of course, I’m a liberal and I think affirmative action is generally constitutionally permissible. Conservatives generally don’t read the constitution that way. Reporter Nic Horton asked a lawyer his opinion on the constitutionality of the proposed LEAP program, and he got this response:
I don’t think I have anything interesting to say about special admissions procedures for applicants who are economically disadvantaged, but at first glance UALR’s proposal for race-based affirmative action looks difficult or impossible to defend. Assuming that race is one of the two prerequisites for admission to the LEAP program (which is my interpretation of their proposal), I think its constitutionality is highly unlikely.
This seems like an excellent time to point out that the lawyer Horton asked is some guy named Dan Greenberg. Googling Dan Greenberg in Arkansas leads you to this guy, a lawyer who is also a former Republican member of the Arkansas House of Representatives out of Little Rock. Without pictures, I can’t be sure of how many Dan Greenbergs are running around Little Rock… but let’s just say that I don’t look to the opinions of Arkansas Republicans when trying to determine the legality of proposed affirmative action programs.
In fairness to Greenberg, it’s unclear if he actually read the proposal, or if he just took Horton’s say so on what it was. Again, affirmative action programs are complicated and you’re putting a lawyer in a tough spot if you just say, “Long story short, can you have a special admissions procedure for people of color?” For what it’s worth, I don’t read the written proposal as making race a “prerequisite” for consideration. Is that really Greenberg’s interpretation of the proposal, or is it Greenberg’s interpretation of Horton’s report about the proposal?
Meanwhile, it’s not like UALR Law Dean Michael Schwartz covered himself in glory when Horton asked him to talk about the proposal. For instance, he said this really, really dumb thing:
[Nic Horton]: … Does that necessarily mean that any applicant that applies for the LEAP program must be a person of color [again, that’s the phrase used by the LEAP proposal] or must be someone that is economically disadvantaged? Are those things required, or just encouraged?
[Dean Schwartz]: I think those people do way better. Let’s put it that way. I don’t think we would prohibit anyone from applying but I think they would have a better shot.
Jesus Christ. No, Dean Schwartz, I don’t think it would be a good idea to PROHIBIT WHITE PEOPLE from being considered in this program. I think that would be unconstitutional and also freaking racist. Why don’t you stick to looking for students of intrigue and let others comment on what you’re really trying to do?
Of course, there’s a difference between the legality of a proposal as written, and the legality of a program as implemented. Most of the problems with affirmative action programs arise in their implementation. If UALR admissions people are going to look at a person who meets all of their intriguing qualifications but then disqualify them from nomination “just” because they’re white, that’s going to be a pretty big problem of implementation. But at this point, this is just a proposal and UALR Law is trying to hammer out the details of how it can and should be applied.
Which brings me back to other failure in reporting on this from the Daily Caller and Horton. They’re trying to pass off this program as something being done “in secret,” suggesting that the public will be shocked if they really knew “what these people are doing.” That’s a dumb frame. The faculty had a meeting to talk this thing out. And from Horton’s reporting, you can clearly see that the dean was uncomfortable when a reporter showed up to listen in.
I’m as big of an advocate for law school transparency as you are likely to find, but one can totally understand why law school admissions people are uncomfortable when reporters show up to their meetings about complicated new ideas. The Daily Caller couldn’t even repack Horton’s report correctly. Horton got the dean to say an idiot thing. It’s hard enough to think through ways to promote diversity in law school admissions without some reporter who may or may not know what he’s talking about screaming “that looks unconstitutional to me.” I’m not saying that UALR should have tried to exclude Horton from their deliberations — UALR should be able to talk about this stuff without being terrified of what might come out of their own mouths. But I can understand why they were uncomfortable.
But that doesn’t mean that this proposal was being pushed through “in secret.” They’re considering an idea. If they implement it, it’s not going to be some secret “shadow track” for admissions UALR that nobody knows about. Have you seen what’s been happening to law school applications? If UALR Law does go with this plan, they’re going to try to promote the hell out of it. Every law school reporter with an active email address will get a press release about the “new, innovative” program at UALR to enhance diversity in law school admissions. People of all races will be encouraged to apply, because even if they have no business being in law school, they might be eligible for this six-week starter course.
There are not going to be any “secrets” here, they’re going to be freaking proud of it… once they hammer out the details. Once they run it by their legal counsel. Once they think through how it’s going to be implemented. And then Horton and the Daily Caller and Arkansas Republicans will have all the opportunity in the world to argue about the constitutionality of affirmative action.
Right now, it’s just an idea. An idea that was written down. An idea that could advance goals that you may or may not find important. Can we at least talk about the idea, as opposed to somebody’s incomplete understanding of the idea?
UPDATE (1/27/2014, 2:45 p.m.): Here is a statement from Dan Greenberg:
I was disappointed to read Elie Mystal’s recent post on the Bowen Law School affirmative-action controversy. I think Mystal incorrectly described the nature of Bowen’s affirmative-action proposal, the attempt to keep deliberations over it secret, and the news coverage that the proposal generated: our response to Mystal’s post is here. It’s also newsworthy that, just a few days after we broke the story at The Arkansas Project, the faculty advocates of Bowen’s affirmative action proposal amended it so as to eliminate any express mention of race. Maybe the motivation for their amendment had nothing whatsoever to do with concerns about constitutionality; a more likely possibility, in my opinion, is that the faculty pushing the proposal were ultimately just a bit more thoughtful about the constitutional questions it raised than Elie Mystal.
The Law Professors’ Affirmative Action Plan: ‘Just This Side’ of the Law? [The Arkansas Project]
Will public law school push affirmative action in secret? [Daily Caller]