October 10, 2012

What the Fisher affirmative action case is actually about

The University of Texas has two main affirmative action programs, only one of which is at issue in the Fisher case now before the Supreme Court.

Everybody appears to be totally A-OK with the first affirmative action method, Texas's Top Tenth plan whereby anybody in the top 10 percent of his or her class in high school, gets in. This plan was publicly designed back in the 1990s, after a Circuit Court decision temporarily banned direct racial preferences, to have disparate impact against whites and Asians.

As you may recall, however, in Judge Nicholas Garaufis's much praised decision in the Vulcan Society case, disparate impact is illegal. The city of New York was discriminating against would-be firemen by asking job applicants to take a test that presented reading selections about how to fight fires and then asking questions about how to fight fires.

For example, one paragraph was about which kind of chainsaw to use to cut through wooden doors and which kind to use to cut through steel doors. There was then a question about which kind of chainsaw to use to cut through steel doors.

Obviously, this kind of test discriminated against blacks and Hispanics because there are two ways to score well on it: either:

- You could be good at comprehending the kind of text found in the technical manuals you will be told to read as a fire cadet so you don't, say, mutilate yourself by using the wrong kind of chainsaw;

- Or, you could study up ahead of time so that you already knew what kind of chainsaw to use.

Judge Garaufis saw right through the obvious racism of hiring firefighters based on their ability to learn how to use the right chainsaw and not rip their own faces to shreds when the wrong kind of chainsaw kicks back on them.

You see, blacks and Hispanics tend to be worse at reading comprehension on average, and they tend to be less interested in learning how to fight fires. So, the NYC hiring test was an illegal subterfuge and must be thrown out!

In contrast, the Texas Top Ten Percent plan was publicly proclaimed by all in favor of it as a way to have disparate impact in favor of blacks and Latinos. So, the Fisher case isn't about that system at all.

No, Fisher is only complaining about a second set of racial/ethnic preferences added on top of the Ten Percent Plan after Justice O'Connor's scintillating opinion in the Grutter/Gratz cases of 2003. O'Connor accepted the "diversity" claim discriminating against whites and Asians is really doing a favor for whites and Asians because it allows them to be exposed to the Vibrancy of Diversity. (That the whites and Asians who get the putative benefit of associating with racial preference beneficiaries aren't, technically, the same individuals as the white and Asian victims of the preferences is one of those minor details that get brushed aside in the quest for Strange New Respect.)

The "critical mass" rationalization dreamed up in Grutter/Gratz is more than taken care of by the Top Ten Percent plan.

But ... the problem with the Top Ten Percent plan, you see, was that not enough affluent, privileged blacks and Hispanics get in under it. For example, say you are a Hispanic student attending Highland Park High School because your father is currently doing a tour as a Senior Vice President at the headquarters of a multinational corporation in downtown Dallas, from whence he hopes to move on to head the South American Division in his native Buenos Aires, before perhaps one day returning to Dallas in triumph as CEO of the whole shebang.

Now, if you were attending high school in, say, Laredo, you'd be in the Top Tenth of the class, no problem. Your 620 math SAT score would make you a prodigy in Laredo. In Highland Park, however, you are just another pretty smart rich kid who is only in the Top Half of the class. So, no taxpayer supported education at UT Austin for you! Your dad will just have to pay for you to go to SMU.

But, you are Hispanic and thus deserve freebies from the taxpayers. Your Conquistador ancestors didn't mow down the Indians to have to pay list price at SMU.

Therefore, UT has added special preferences for privileged blacks and Hispanics, which is what Ms. Fisher is complaining about.

P.S. Sure, I made this Highland Park kid up, but I was actually talking last night to the father of a former classmate of one of my sons. The father of this official Hispanic is an American-born Chinese architect, who is chief partner of a practice of about 30 architects. They mostly design hospitals. His wife is a white lady whose mother was born in Spain, so their kid was honored at their high school graduation in the College Board's National Hispanic Recognition Program.


Anonymous said...

This business of people from Spain getting authorized as "Hispanic" or "Latino" for the purposes of affirmative action drives me crazy.

Yes, Admiral Farragut is now a Latino, because his father was from Minorca.

Totally insane.

Vic said...

What is the NHRP's definition of Hispanic/Latino?
To qualify for this program, you must be at least one-quarter Hispanic/Latino. Hispanic/Latino is an ethnic category, not a racial category; you may be of any race. For purposes of the NHRP, you must be from a family whose ancestors came from at least one of these countries: Argentina, Bolivia, Brazil, Chile, Colombia, Costa Rica, Cuba, Dominican Republic, Ecuador, El Salvador, Guatemala, Honduras, Mexico, Nicaragua, Panama, Paraguay, Peru, Puerto Rico, Spain, Uruguay or Venezuela.

Anonymous said...

This is an example of why people need to donate to this blog.

DaveinHackensack said...

"Your Conquistador ancestors didn't mow down the Indians to have pay list price at SMU."

Almost did a spit take at Starbucks reading that. One of the funniest things you've ever written.

slumber_j said...

Steve notes in the VDare piece he linked:

"John Derbyshire once told me that in his Long Island neighborhood, blue-collar women consider FDNY guys the most desirable catches as husbands; they tend to be more stable than the similarly well-paid NYPD."

On the relative lovableness of cops and firemen, a friend of mine in the NYPD once pointed me to this on YouTube, which is very funny and NSFW:


Anonymous said...

Not everyone in Texas is a fan of the Top 10% rule. My daughter was in National Honor Society and was in the top 12% of a very competitive high school class in suburban Austin. UT-Austin told her she could go to another UT campus, take certain courses and if she earned at least a 3.0 GPA during her freshman year, she could transfer to Austin as a sophomore. But she was accepted at Texas A&M so she went there.

After two successful years she managed to transfer to UT-Austin, graduating two years later, and made the Dean's List twice in four semesters. Funny how a white girl who was rejected by UT could make the Dean's list there. She is a loyal Longhorn but still wanted to rub their nose in her success. Oh, and they gave her $1000 for graduating college in four years.

Anonymous said...

"His wife is a white lady whose mother was born in Spain, so their kid was honored at their high school graduation in the College Board's National Hispanic Recognition Program."

If white kids who can be called hispanic are recognizable achievers, it proves that hispanics achieve just as well as whites and that you're just a miserable racist who should shut up about all the amerinds who can be called hispanic extra-legally immigrating here because they are obviously just as smart as you are.

Anonymous said...

The "Top Ten Percent plan" is exceptionally nutty even by the standards of government. It would be one thing if it was based on the top ten percent of students in a state, but that would too logical.

Cail Corishev said...

If the Top Ten Percent plan increases the number of NAMs accepted to college, that can only happen if the high schools are considerably segregated. Isn't segregation the biggest evil of all, though? If diversity is such an important part of the college experience, don't high school kids deserve a heaping helping of it too?

Cail Corishev said...

"This is an example of why people need to donate to this blog."

True. That Conquistadors line alone deserves to put food on the table for a week.

Anonymous said...

Exactly. I long been bemused by the horror expressed by fanatics like Garaufis at any disparate impact resulting from perfectly reasonable merit-based tests, whereas just about every Democratic Party domestic policy program, from Obama care on down, has at its very core the deliberate goal of a disparate impact in favor of its Black/Hispanic/gay/whatever client groups.

Anonymous said...

Would Gisele Bundchen and Tom Brady's offspring be classified as Hispanic owing to his mother being from Brazil which the last time I checked was in South America? Would all those South American lingerie models' offspring qualify for the same benefit? Of course Mrs. Brady is as white as Mr. Brady owing to being completely German by descent ( Wikipedia states she is a sixth generation German Brazilian, from a heavily German area of Brazil ) In other words, she is as white as Steffi Graf is, whose husband's ethnicity might qualify him as an Middle Eastern American, I guess, owing to his father's Iranian birth. Wow, so the offspring of two different multimillionaire power couples could both qualify as "minorities" when time comes to apply to Harvard and Stanford. So poor European and Asian descended kids not only will be deficient money wise but won't have the benefit of preferential policies that these kids have, Isn't American a great country?

BN said...

The Top Ten Percent rule is not well-loved by many. Douglas Laycock (former UT law professor who helped defend AA the first time around) didn't like it because it diluted the overall quality of students...he said the top students from each racial group should be admitted. Same thing you have said would be less destructive. So there have been some challenges to it.

poolside said...

Steve, thanks for posting this. The Top 10 percent rule is a horrible process that discriminates against students at the very best high schools ... those most likely to be successful at UT or A&M.

My youngest daughter has never made below an A at her top-performing high school yet she did not even crack the top quarter of her class due to the number of students who stock up on AP classes to boost their rankings.

It is not unusual for the Asian students at our school to quit activities such as band when they realize that participation will hurt their overall GPA by limiting the number of honors classes they can take to boost class rank.

Anonymous said...

The 10% rule would not exist if it only helped blacks and latinos... it also helps rural whites. Quite honestly, I have no real sympathy with people who hate the 10% rule. The 10% rule is far superior to the "best of each racial category" nonsense and the whites campaigning against the 10% rule will end up doing a lot of harm.

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