More high comedy at the High Court

More from the transcript of oral questions at the Supreme Court in the Fisher affirmative action case today:

 CHIEF JUSTICE ROBERTS: General Verrilli. 

[General Verrilli is the Obama Administration's Solicitor General]

... JUSTICE ALITO: Does the United States [i.e., the Obama Administration] agree 

with Mr. Garre that African American and Hispanic 

applicants from privileged backgrounds deserve a 

preference?

 GENERAL VERRILLI: I understand that 

differently, Justice Alito. Here's how we understand 

what is going on with respect to the admissions process 

in the University of Texas, and I am going to address it 

directly.  I just think it needs a bit of context to do 

so.

 The Top 10 Percent Plan certainly does 

produce some ethnic diversity. Significant numbers get 

in. The problem is the university can't control that 

diversity in the same way it can with respect to the 

25 percent of the class that is admitted through the 

holistic process.

 So my understanding of what the university 

here is looking to do, and what universities generally 

are looking to do in this circumstance, is not to grant 

a preference for privilege, but to make individualized 

decisions about applicants who will directly further the 

educational mission. For example, they will look for 

individuals who will play against racial stereotypes 

just by what they bring: 

[In other words, economically privileged blacks and Hispanics should also be personally given special legal privileges in order to undermine the stereotype of blacks and Hispanics as disprivileged. It's a tough job but somebody's gotta do it!]

The African American fencer; 

the Hispanic who has -- who has mastered classical 

Greek. 

[I love the General's pause before coming up with the example of the Hispanic who gets into UT despite presumably mediocre grades and test scores but "who has -- who has mastered classical Greek." His pause as he tries to come up with an example reminds me of Waugh's Scoop where novice foreign correspondent William Boot is shown into the office of newspaper magnate Lord Copper and gets some advice on covering wars in Africa:

There are two valuable rules for a special correspondent — Travel Light and Be Prepared. Have nothing which in a case of emergency you cannot carry in your own hands. But remember that the unexpected always happens. Little things we take for granted at home, like...” he looked about him, seeking a happy example; the room, though spacious, was almost devoid of furniture; his eyes rested on a bust of Lady Copper; that would not do; then, resourcefully, he said: “...like a coil of rope or a sheet of tin, may save your life in the wilds. I should take some cleft sticks with you. I remember Hitchcock — Sir Jocelyn Hitchcock, a man who used to work for me once; smart enough fellow in his way, but limited, very little historical backing — I remember him saying that in Africa he always sent his despatches in a cleft stick. It struck me as a very useful tip. Take plenty.]

They can also look for people who have a 

demonstrated track record of -­

JUSTICE ALITO: If you have two applicants 

who are absolutely the same in every respect: They both 

come from affluent backgrounds, well-educated parents. 

One falls within two of the groups that are given a 

preference, the other doesn't. It's a marginal case. 

It's the last -- the last position available in the 

class. Under the Texas plan, one gets in; one doesn't 

get in. Now, do you agree with that or not?

 GENERAL VERRILLI: No. I think -­

JUSTICE ALITO: Do you agree with -- do you 

agree that that is an incorrect statement of the facts, 

or do you agree that that's an incorrect understanding 

of the Equal Protection Clause?

 GENERAL VERRILLI: I think it's both. I 

think the -- there is no automatic preference in Texas. 

And I think this is right in the -- it says at page 398a 

of the Joint Appendix -- the -- they describe the 

process as saying, "An applicant's race is considered 

only to the extent that the applicant, viewed 

holistically, will contribute to the broader vision of 

diversity desired by the university."

 JUSTICE SCALIA: Yes, but -- but the 

hypothetical is that the two applicants are entirely the 

same in all other respects.

 GENERAL VERRILLI: Right. But the point -­

JUSTICE SCALIA: And if -- if the ability to 

give a racial preference means anything at all, it 

certainly has to mean that, in the -- in the 

hypothetical given -- given by Justice Alito, the 

minority student gets in and the other one doesn't.

 GENERAL VERRILLI: I disagree, 

Justice Scalia. What the -- Texas, I think, has made 

clear -- and I think this is a common feature of these 

kinds of holistic approaches -- that not everyone in an 

underrepresented group gets a preference, gets a plus 

factor.

 JUSTICE SCALIA: It's not a matter of not 

everyone; it's a matter of two who are identical in all 

other respects.

 GENERAL VERRILLI: Right.

 JUSTICE SCALIA: And what does the racial 

preference mean if it doesn't mean that in that 

situation the minority applicant wins and the other one 

loses?

 GENERAL VERRILLI: There may not be a racial 

preference in that situation. It's going to depend on a 

holistic, individualized consideration of the applicant.

 JUSTICE KENNEDY: I don't understand this 

argument. I thought that the whole point is that 

sometimes race has to be a tie-breaker and you are 

saying that it isn't. Well, then, we should just go 

away. Then -- then we should just say you can't use 

race, don't worry about it.

 GENERAL VERRILLI: I don't think it's a 

tie-breaker. I think it functions more subtly than 

that, Justice Kennedy. 

[C'mon, that's the best you can do, General? "More subtly"? What about "more ineffably"? "More transcendentally"? Lay it on thick, man! You have to get Kennedy's vote.]

CHIEF JUSTICE ROBERTS: It doesn't function 

more subtly in every case. We have findings by both 

courts below -- and I'm reading from the court of 

appeals opinion at Petitioner appendix page 33.

 "The district court found that race is 

indisputably a meaningful factor that can make a 

difference in the evaluation of a student's 

application." If it doesn't make a difference, then we 

have a clear case; they're using race in a way that 

doesn't make a difference. The supposition has to be 

that race is a determining factor.

 We've heard a lot about holistic and all 

that. That's fine. But unless it's a determining 

factor, in some cases they're using race when it doesn't 

serve the purpose at all. That can't be the situation.

 GENERAL VERRILLI: It can make a difference. 

It just doesn't invariably make a difference with 

respect to every minority applicant, and that's the 

key -­

CHIEF JUSTICE ROBERTS: You have to agree 

that it makes a difference in some cases.

 GENERAL VERRILLI: Yes, it does.

 CHIEF JUSTICE ROBERTS: Okay.

 GENERAL VERRILLI: But it doesn't 

necessarily make a difference in the situation that 

Justice Alito posited -­

JUSTICE GINSBURG: But that's the same -­

the same would be true in -- of the Bakke plan, that in 

some cases it's going to make a difference. The same 

would be true under Grutter. The same would be true 

under the policies now in existence at the military 

academies.

[In other words, we've been BSing Americans since Bakke in 1978 and we'd better not stop now, or embarrassing questions might be asked.]

 GENERAL VERRILLI: That -- that is exactly 

right, Justice Ginsburg, but the point is that it's not 

a mechanical factor.

[It's an organic factor! No, it's a supernatural factor! I've got it, it's a metaphysical factor!]

 Now, with respect to the implementation 

of -- and the narrow tailoring inquiry, with respect to 

the University's implementation of this -- of its 

compelling interest, I do think it's clear that, 

although the Petitioner says she's challenging 

implementation, that this plan meets every requirement 

of Grutter and addresses the concern of Justice Kennedy 

that you raised in dissent in Grutter. Whether Texas 

had to or not, it did address that concern.

 There's no quota. Everyone competes against 

everyone else. Race is not a mechanical automatic 

factor. It's an holistic individualized consideration. 

[Yeah, that's the ticket: It's a holistic factor! It's an holistic individualized consideration!"]

And because of the way the process is structured, they 

do not monitor the racial composition on an ongoing 

basis. 

JUSTICE SOTOMAYOR: General, I think, as I 

take your answer, is that the supposition of 

Justice Alito's question is truly impossible under this 

system. There are not two identical candidates because 

there are not identical mechanical factors that -­

except the 10 percent plan.

 Under the PIA, the factors are so varied, so 

contextually set, that no two applicants ever could be 

identical in the sense that they hypothesize.

[It's a contextual factor!]

 GENERAL VERRILLI: That's correct. They 

make specific individualized judgments about each 

applicant -­

JUSTICE SOTOMAYOR: Because no two people 

can be the same -­

[It's an in-the-mind-of-God factor.] 

CHIEF JUSTICE ROBERTS: To get back to what 

we're talking about

[Oooh, diss ...]

, you -- as I understand it, race by 

itself is taken into account, right? That's the only 

thing on the cover of the application; they take race 

into account.

 And the district court found -- and you're 

not challenging -- that race makes a difference in some 

cases, right?

 GENERAL VERRILLI: Yes. But the key, 

Mr. Chief Justice, is the way it makes a difference. 

And it makes a difference by casting the accomplishments 

of the individual applicant in a particular light, or 

the potential of an individual applicant in a particular 

light.

 What -- what universities are looking for 

principally with respect to this individualized 

consideration is what is this individual going to 

contribute to our campus? And race can have a bearing 

on that because it can have a bearing on evaluating what 

they've accomplished, and it can have a bearing for the 

reasons I tried to identify earlier to Justice Alito on 

what they can bring to the table, what they can bring to 

that freshman seminar, what they can bring to the 

student government, what they can bring to the campus 

environment -­

JUSTICE BREYER: All right, sir. But it is 

the correct answer to Justice Alito's -- if there are 

ever two applicants where the GPA, the test -- the 

grades, the SA1, SA2, leadership, activities, awards, 

work experience, community service, family's economic 

status, school's socioeconomic status, family's 

responsibility, single-parent home, languages other than 

English spoken at home, and SAT score relative to 

school's average race, if you have a situation where 

those -- all those things were absolutely identical, 

than the person would be admitted on the bounds of race. 

GENERAL VERRILLI: Not necessarily.

 (Laughter.)

[The audience gets the joke!]

... CHIEF JUSTICE ROBERTS: General, how -- what 

is your view on how we tell whether -- when the 

University has attained critical mass?

 GENERAL VERRILLI: I don't think critical --

I agree with my friend that critical mass is not a 

number. I think it would be very ill-advised to suggest 

that it is numerical.

 CHIEF JUSTICE ROBERTS: Okay. I'm hearing a 

lot about what it's not. I'd like to know what it is 

because our responsibility is to decide whether this use 

of race is narrowly tailored to achieving, under this 

University's view, critical mass.

 GENERAL VERRILLI: May I answer, 

Mr. Chief Justice?

 CHIEF JUSTICE ROBERTS: Oh, yes.

 GENERAL VERRILLI: Thank you.

 I think -- I don't think that this is a 

situation in which the Court simply affords complete 

deference to the University's judgment that it hasn't 

yet achieved the level of diversity that it needs to 

accomplish its educational mission.

[Complete deference -- that's all were asking.]

 I think that the Court ought to -- has to 

make its own independent judgment. I think the way the 

Court would go about making that independent judgment is 

to look at the kind of information that the university 

considered. That could be information about the 

composition of the class. It could be information about 

classroom diversity. It could be information about 

retention and graduation rates. It could be information 

about -- that's specific to the university's context in 

history. Is it a university that has had a history of 

racial incidents and trouble or not? 

[If we haven't had any racial incidents, we can get you some quick. Our Ed School professors are very obliging when it comes to racial incidents. You want a noose? We can get you a noose, believe me. There are ways, Dude. You don't wanna know about it, believe me. Hell, we can get you a noose by 3 o'clock this afternoon.]

A series of 

factors.

 And then what the Court's got to do is 

satisfy itself that the University has substantiated its 

conclusion based on that -- based on the information 

it's considered, that it needs to consider race to 

further advance the educational goals that Grutter has 

identified as a compelling interest.

 And I will say, I do think, as the number of 

minority enrollees gets higher, the burden on the 

university to do that is going to get harder to meet. 

But I don't think -- I don't think there is a number, 

and I don't think it would be prudent for this Court to 

suggest that there is a number, because it would raise 

exactly the kind of problem that I -- that I think 

Justice Kennedy identified in the Grutter dissent of 

creating hydraulic pressure towards that number.

 JUSTICE SCALIA: We should probably stop 

calling it critical mass then, because mass, you know, 

assumes numbers, either in size or a certain weight.

 GENERAL VERRILLI: I agree.

 JUSTICE SCALIA: So we should stop calling 

it mass.

 GENERAL VERRILLI: I agree.

 JUSTICE SCALIA: Call it a cloud or 

something like that.

 (Laughter.)

[Vapor?]

 GENERAL VERRILLI: I agree that critical 

mass -- the idea of critical mass has taken on a life of 

its own in a way that's not helpful because it doesn't 

focus the inquiry where it should be.

[In other words, nobody should think nuthin' about nuthin', the Supreme Court should just let the public universities do whatever they feel like. If you can't trust college administrators, who can you trust?]

[For the Supreme Court's questioning of the U. of Texas lawyer, which is also pretty amusing, click here.]

[It's hard not to be reminded once again of Theodore Dalrymple's insight:

“In my study of communist societies, I came to the conclusion that the purpose of communist propaganda was not to persuade or convince, not to inform, but to humiliate; and therefore, the less it corresponded to reality the better. ... I think if you examine political correctness, it has the same effect and is intended to.”]

Why it pays to read iSteve: Naive Hong Kong parents pay conman $2.2 million to bribe their sons into Harvard

From the Boston Globe:

To Gerald and Lily Chow, education consultant Mark Zimny must have seemed like the answer to many parents’ prayer: Please let my child get into Harvard University. 

The Chows, who lived in Hong Kong, knew little about the US educational system, but they did know that they wanted an Ivy League education for their sons. And they had money to spend on consultants like Zimny, who, they believed, could help make the dream come true. 

What transpired, however, turned out to be a cautionary tale for the thousands of parents who are fueling the growing global admissions-consulting industry. 

Zimny, whom they met in 2007, had credentials. He had worked as a professor at Harvard. He ran an education consultancy, IvyAdmit. And he had a plan to help the Chows’ two sons, then 16 and 14. 

First, Zimny’s company would provide tutoring and supervision while the boys attended American prep schools. Then, according to a complaint and other documents the Chows filed as part of a lawsuit in US District Court in Boston, Zimny said he would grease the admissions wheels, funneling donations to elite colleges while also investing on the Chows’ behalf. 

According to the suit, Zimny warned the Chows against giving to schools directly. “Embedded racism” made development offices wary of Asian donors, he allegedly advised them; better to use his company as a middleman. 

Over two years, the Chows gave IvyAdmit $2.2 million. 

Now, they are charging that Zimny lied to them repeatedly, committing fraud, breach of contract, unjust enrichment, and several other transgressions — and they want their money back.

If only the Chows had been regular readers of iSteve, they would have known what the real Harvard Number for getting your kid into Harvard is, and that anybody asking for only $1.1 million per child is a palpable fraud.

Speaking of all the useful information you learn from reading iSteve, I gratefully announced last night that the first full day of my first fundraising drive in 14 month was most encouraging.

UPDATE: It turns out the next paragraph was based on a wrong assumption. It turns out that Amazon simply turned off my account without mentioning it to me when I check in to my account on their website. They've sent me an email demanding I answer the exactly same questions I answered the last time they turned off my account in the middle of Sunday night, which is why I posted their questions and my answers on my Amazon page.

Being a former member of the marketing research industry, I hoped that would encourage fencesitters to want to jump on the bandwagon. But being a notoriously bad marketer, my strategy, perhaps unsurprisingly, has so far had the opposite effect from what I intended: donations have since slowed to a trickle. So, today, let me beg you: I really, really need to make more money off my writing. It's all I do. I'm not a good multitasker, and if I had to go back and get a real job, I wouldn't be able to write much at all.

There are a few ways to support my work:

UPDATE: A reader emails:

I tried to send you another $10 (wish it was a lot more), but when I clicked on the one-time $10 donation button, I was taken to a page that says this:
Invalid Request

Error Message:

An Amazon Payments Business account with verified email address and

credit card is required to accept payments using Amazon Simple Pay.

Which I provided last weekend.

This is extraordinarily frustrating. Here you have Amazon, a company with a $100 billion market capitalization and it can't seem to not break down every day or two. 

You might almost think it's personal. 

Nor does Amazon go out of its way to publicize where to call or email when it decides to stop working.

So, for the moment:

First: You can send me money via Amazon (not tax-deductible). Click here and then click on the button for the amount you want to pay. It's especially quick if you already have an Amazon account, but any major credit card will work fine. (I want to thank all the generous folks who helped me work out the kinks in this method, using their own real money.)

Here's what is still working at present:

Second: You can make a tax deductible contribution to me via VDARE by clicking here.

Third: You can mail a non-tax deductible donation to:

Steve Sailer

P.O Box 4142

Valley Village, CA 91617-4142

Thanks.

The irony of "critical mass" in the pursuit of academic diversity

After the Grutter / Gratz cases of 2003 legalized racial/ethnic preferences in college admissions to ensure a "critical mass" of minorities on campus, a lawyer complained to me that I had introduced the concept of "critical mass" to the debate in my 1995 National Review article "Where the Races Relate." I am extremely doubtful that I was the first to use the term "critical mass" in regard to college admissions quotas, but it would be ironic since I pointed out why the pursuit of diversity works against the achievement of a critical mass:

What could colleges learn from the Army and from their own athletes about race? 

(1). Selection 

(1A). Specialization and Critical Mass -- One little-appreciated reason for the impressive record of accomplishment by blacks in the Army (e.g., after Desert Storm there were 26 black generals) is their lack of success in the Navy (only two black admirals). Achievement in one field naturally breeds more success in that same field. Initially arbitrary variations self-perpetuate. Successful immigrant group like Asian Indians rise to affluence precisely by dominating niches of the economy like motel-keeping. As Adam Smith pointed out on P. 1 of The Wealth of Nations, specialization is the road to riches. 

According to Charles Moskos of Northwestern, the leading sociologist of military life, one key to the strong performance of black Army officers has been a widespread self-help organization for black officers called Rocks. In it, senior officers mentor younger men in how to live up to the demands of being an officer and a gentleman. In the Navy, however, a lack of critical mass hampers similar efforts: if, say, you are the only African-American officer on your nuclear submarine, you can't turn to another black man for advice for your entire cruise. Thus, it continues to makes more sense for an ambitious young black to join the Army than the Navy. 

On campus, however, the automatic reaction whenever an embarrassing shortfall of blacks in any field is pointed out is another affirmative action campaign. For example, architecture schools have been attempting for years to recruit more blacks and Hispanics. Now, I commend a career in architecture to any young person with a trust fund, but the less privileged should remember that architecture pays wretchedly for the first decade or two (or three or four). 

Conservative critics of quotas often argue that lowering entrance standards for minorities is Bad, but that more intensely recruiting minorities is Good. Yet, seldom does any race-based recruitment campaign stem from a hardheaded analysis of what's in the best interest of the minorities. Instead, affirmative action is an automatic response by white leaders to their discomfort over their Black Lack. African-Americans have enough problems of their own without taking on this new Black Man's Burden of helping whites feel better about themselves. 

Before affirmative action, unpopular but "unprotected" minorities tended to initially congregate at certain congenial schools: e.g., Mormons at Brigham Young, Catholic ethnics at Jesuit colleges, lesbians at Smith, or free-market economists at the University of Chicago back during the Keynesian heyday. At these havens, the minorities could be confident of ample role models, freedom from snubs, fair shots at leadership positions, courses addressing their interests, responsive audiences for their ideas, and opportunities for their future leaders to meet. The most striking example of this occurred during the Depression when the Ivy League enforced anti-Semitic quotas. So, brilliant Jews concentrated at City College of New Yorks (e.g., three Nobel Prize winners came from the class of 1937 alone). This critical mass of talent set off chain reactions that energized American intellectual life for decades. 

Today, though, a black high school senior looking for universities where blacks comprise a significant fraction of the best minds on campus would end up with the same list as his grandfather: the historically black schools like Howard. In fact, these colleges still appear to produce a disproportionate share of black high achievers, despite debilitating competition from far richer colleges for the brightest black minds. 

Why can't wealthy mainstream universities afford the critical mass of top black talent that would make them nurturing environments for black students and professors? Paradoxically, the lock-step obsession of elite colleges with appearing "diverse" has scattered the finest black thinkers in a homogeneously thin and lonely diaspora across every college town in urban and rural America. Consider the career path of the outstanding scholar of African-American literature, Henry Louis Gates. A few years ago he publicly mused about going to Princeton, where he could have teamed with Nobel Laureate Toni Morison, philosopher Cornel West, and other leading black humanists. But hiring Dr. Gates is a quick (though not cheap) way for a school with few first rate black professors to advertise its Commitment to Diversity. Bidding wars have thus carried Dr. Gates instead from Yale to Cornell to Duke to Harvard.

Down the affirmative action rabbit hole at the Supreme Court

From the justices' questions to the U. of Texas's lawyer (Mr. Garre) defending the University of Texas's racial/ethnic preference systems. It gets pretty comic.

(By the way, a couple of days ago the humor/satire site Fark linked to my annotation of a Wall Street Journal article on the the latest kindergarten contortions in New York City. It got 200+ comments on Fark, which get progressively better as more readers start to wrap their heads around it. But, if Fark is looking for humor in the news, they should check out this cross-examination of an affirmative action defender by the Supreme Court's Murderer's Row:]

CHIEF JUSTICE ROBERTS: Counsel, before -- I 

need to figure out exactly what these numbers mean. 

Should someone who is one-quarter Hispanic check the 

Hispanic box or some different box?

 MR. GARRE: Your Honor, there is a 

multiracial box. Students check boxes based on their 

own determination. This is true under the Common 

Application -­

CHIEF JUSTICE ROBERTS: Well, I suppose a 

person who is one-quarter percent Hispanic, his own 

determination, would be I'm one-quarter percent 

Hispanic.

 MR. GARRE: Then they would check that box, 

Your Honor, as is true -­

CHIEF JUSTICE ROBERTS: They would check 

that box. What about one-eighth?

[How about one-thirtysecond American Indian?]

 MR. GARRE: Your Honor, that was -- they 

would make that self-determination, Your Honor. If

anyone, in any part of the application, violated some 

honor code then that could come out -­

CHIEF JUSTICE ROBERTS: Would it violate the 

honor code for someone who is one-eighth Hispanic and 

says, I identify as Hispanic, to check the Hispanic box?

[Honor code? We don't need no steeenking honor code!]

 MR. GARRE: I don't think -- I don't think 

it would, Your Honor. I don't think that that issue 

would be any different than the plan upheld in Grutter 

or the Harvard plan or in Bakke.

 CHIEF JUSTICE ROBERTS: You don't check in 

any way the racial identification?

 MR. GARRE: We do not, Your Honor, and no 

college in America, the Ivy Leagues, the Little Ivy 

Leagues, that I'm aware of.

 CHIEF JUSTICE ROBERTS: So how do you know 

you have 15 percent African American -- Hispanic or 

15 percent minority?

 MR. GARRE: Your Honor, the same way that 

that determination is made in any other situation I'm 

aware of where race is taken into account.

 CHIEF JUSTICE ROBERTS: You say the same 

way. What is that way?

 MR. GARRE: The persons self-identify on 

that form.

[The issue, obviously, is that in a country where the President is half black and chooses to identify on his 2010 Census form as only black, there are no downsides to identifying dubiously as belonging to a Designated Victim Group, other than the individual's own conscience and sense of honor. We should not underestimate the sense of honor among white people, but it's a little much to assume that it will remain wholly intact under long-term assault.

By the way, for the benefit of the Justices, here is the Pew Hispanic Center's intentionally hilarious guide to Who Is Hispanic?]

 JUSTICE SCALIA: Do they have to 

self-identify?

 MR. GARRE: They do not, Your Honor. Every 

year people do not and many of those applicants are 

admitted.

 JUSTICE SCALIA: And how do they decide? 

You know, it's -- they want not just a critical mass in 

the school at large, but class by class? How do they 

figure out that particular classes don't have enough? 

What, somebody walks in the room and looks them over to 

see who looks -- who looks Asian, who looks black, who 

looks Hispanic? Is that how it's done?

 MR. GARRE: No, Your Honor, and let me try 

to be clear on this. The university has never asserted 

a compelling interest in any specific diversity in every 

single classroom. It has simply looked to classroom 

diversity as one dimension of student body diversity.

 JUSTICE SCALIA: I don't know what you are 

talking about. I mean it is either a factor that is 

validly in this case or it isn't. Do they look to 

individual classroom diversity or not? And if so, how 

do they decide when classes are diverse?

 MR. GARRE: This Court in Grutter, Your 

Honor, and maybe the most important thing that was said 

during the first 30 minutes was, when given an 

opportunity to challenge Grutter, I understood my friend 

not to ask this Court to overrule it. This Court in 

Grutter recognized the obvious fact that the classroom 

is one of the most important environments where the 

educational benefits of diversity are realized, and so 

the University of Texas, in determining whether or not 

it had reached a critical mass, looked to the classroom 

along with -­

JUSTICE SCALIA: Fine. I'm asking how. How 

did they look to the classroom?

 MR. GARRE: Well, Your Honor -­

JUSTICE SCALIA: Did they require everybody 

to check a box or they have somebody figure out, oh, 

this person looks 1/32nd Hispanic and that's enough?

 MR. GARRE: They did a study, Your Honor, 

that took into account the same considerations that they 

did in discussing the enrollment categories -­

JUSTICE SCALIA: What kind of a study? What 

kind of a study?

 MR. GARRE: Well, Your Honor, it's in the 

Supplemental Joint Appendix.

 JUSTICE SCALIA: Yes, it doesn't explain to 

me how they go about, classroom by classroom, deciding 

how many minorities there are.

 MR. GARRE: Your Honor, there are student 

lists in each classroom. The student lists --

CHIEF JUSTICE ROBERTS: There are student 

lists in each classroom that have race identified with 

the students.

 MR. GARRE: No, no, Your Honor. Of course, 

each classroom, the university knows which students are 

taking its classes and one can then, if you want to 

gauge diversity in the classrooms, go back -­

CHIEF JUSTICE ROBERTS: Oh, you go back to 

what they checked on the form.

application form in deciding whether Economics 201 has a 

sufficient number of African Americans or Hispanics?

 MR. GARRE: That is information that is 

available to the university, Your Honor, the race of 

students if they've checked it on the application. But 

I do want to be clear on this classroom diversity study. 

This was only one of many information points that the 

university looked to.

 JUSTICE ALITO: Well, on the classroom 

diversity, how does the non-Top 10 Percent part of the 

plan further classroom diversity? My understanding is 

that the university had over 5,000 classes that 

qualified as small and the total number of African 

Americans and Hispanics who were admitted under the part 

of the plan that is challenged was just a little over 

200.  So how does that -- how does that -- how can that 

possibly do more than a tiny, tiny amount to increase 

classroom diversity?

 MR. GARRE: Well, Your Honor, first I think 

that 200 number is erroneous. There have been many more 

minority candidates -­

JUSTICE ALITO: Per class?

 MR. GARRE: No, not -- not on a per-class 

basis.

 JUSTICE ALITO: Individuals in class.

 MR. GARRE: I think in looking at the 

classrooms, Your Honor, what the university found was 

shocking isolation.

[I am shocked, SHOCKED.]

 JUSTICE ALITO: How many -- how many non-Top 

10 Percent members of the two minorities at issue here 

are admitted in each class?

 MR. GARRE: Your Honor, we didn't look 

specifically at that determination. What we did -- in 

other words, to try to find whether there were holistic 

admits or percentage admits, we did conclude in 2004 -­

and again this was before -- we did the classroom study 

before the plan at issue was adopted and at that time 

there were no holistic admits taking race into account. 

And what we concluded was that we simply -- if you 

looked at African Americans, for example, in 90 percent 

of the classes of the most common participatory size -­

JUSTICE ALITO: I really don't understand 

your answer. You know the total number of, let's say, 

African Americans in an entering class, right? Yes or 

no?

 MR. GARRE: Yes, Your Honor.

 JUSTICE ALITO: And you know the total 

number who were admitted under the Top 10 Percent Plan?

 MR. GARRE: We do, Your Honor. But again at 

the time -­

JUSTICE ALITO: If you subtract A from B 

you'll get C, right?

 MR. GARRE: Your Honor, at the time -­

JUSTICE ALITO: And what is the value of C 

per class?

 MR. GARRE: Your Honor, I don't know the 

answer to that question, and let me try to explain why 

the university didn't look specifically to that. 

Because at the time that the classroom diversity study 

was conducted, it was before the holistic admissions 

process at issue here was adopted in 2003-2004. And so 

that determination wouldn't have been as important as 

just finding out are African Americans or Hispanics, 

underrepresented minorities, present at the university 

in such numbers that we are not experiencing racial 

isolation in the classroom.

 CHIEF JUSTICE ROBERTS: What is that number? 

What is the critical mass of African Americans and 

Hispanics at the university that you are working toward?

 MR. GARRE: Your Honor, we don't have one. 

And this Court in Grutter -­

[What's going on here is that the 1978 Bakke decision more or less legalized quotas as long as they aren't referred to as quotas. Since then, quota supporters have started to use the term "critical mass" to justify quotas. Now, "critical mass" sounds very scientific and quantitative (if you have a critical mass of plutonium of a certain amount, then BOOM), but if the quota supporters ever let themselves be pinned down to putting a number to it, then it sounds a lot like a quota.

The University of Texas at Austin has 38,400 undergraduates and about 15,000 are nonwhite. A couple of thousand are black. So, keep that in mind in the subsequent gang-ups.]

CHIEF JUSTICE ROBERTS: So how are we 

supposed to tell whether this plan is narrowly tailored 

to that goal?

 MR. GARRE: To look to the same criteria of 

this Court in Grutter. This Court in Grutter 

specifically rejected the notion that you could come up 

with a fixed percentage. Now -­

JUSTICE ALITO: Does critical mass vary from 

group to group? Does it vary from State to State?

 MR. GARRE: It certainly is contextual. I 

think it could vary, Your Honor. I think -- let me 

first say that my friends have, throughout this 

litigation, not in this Court, asserted 20 percent as a 

critical mass and that's lumping together different 

minority groups.

 JUSTICE ALITO: But could you answer my

question? What does the University of Texas -- the 

University of Texas think about those questions? Is the 

critical mass for the University of Texas dependent on 

the breakdown of the population of Texas?

 MR. GARRE: No, it's not at all.

 JUSTICE ALITO: It's not.

 MR. GARRE: It's not at all. It's looking 

to the educational benefits of diversity on campus, and 

I think we actually agree on what that means and what 

Grutter said it meant in terms of -­

JUSTICE GINSBURG: Mr. Garre, could you 

explain -- I think you were trying to before -- what 

seems to me the critical question in this case: Why 

didn't the 10 percent solution suffice? There were a 

substantial number of minority members admitted as a 

result of the 10 percent solution. Why wasn't that 

enough to achieve diversity?

 MR. GARRE: Let me make a couple of points, 

Your Honor. First, if you just looked at the numbers -­

we don't think it's the numbers, but if you looked at 

the numbers after 7 years, racial diversity among these 

groups at the University of Texas had remained stagnant 

or worse. 2002, African American enrollment had 

actually dropped to 3 percent.

[That's about a thousand blacks among undergraduates.]

That's one part of it.

 The other part of it is if you look at the 

admissions under the top 10 percent plan, taking the top 

10 percent of a racially identifiable high school may 

get you diversity that looks okay on paper, but it 

doesn't guarantee you diversity that produces 

educational benefits on campus. And that's one of the 

considerations that the university took into account as 

well.

 JUSTICE SCALIA: I don't understand that. 

Why? Why doesn't it?

 MR. GARRE: Because, Your Honor, as is true 

for any group, and the Harvard plan that this Court 

approved in Bakke specifically recognized this, you 

would want representatives and different viewpoints from 

individuals within the same -- the same racial group, 

just as you would from individuals outside of that.

 JUSTICE SCALIA: What kind of viewpoints? I 

mean, are they political viewpoints?

 MR. GARRE: Anyone's experiences, where they 

grew up, the situations that they -- that they 

experience in their lives are going to affect their 

viewpoints.

 JUSTICE SCALIA: But this has nothing to do 

with racial diversity. I mean, you're talking about 

something else.

 MR. GARRE: Your Honor, I think it direct

impacts the educational benefits of diversity in this 

sense, that the minority candidate who has shown that -­

that he or she has succeeded in an integrated 

environment, has shown leadership, community service, 

the other factors that we looked at in holistic review, 

is precisely the kind of candidate that's going to 

come -- come on campus, help to break down racial 

barriers, work across racial lines, dispel -­

stereotypes -­

JUSTICE SCALIA: Also, the kind that is 

likely to be included within the 10 percent rule.

 And, incidentally, when was the 10 percent 

rule adopted?

 MR. GARRE: 1998, Your Honor.

 But with respect to your factual point, 

that's absolutely wrong, Your Honor. If you look at the 

admissions data that we cite on page 34 of our brief, it 

shows the breakdown of applicants under the holistic 

plan and the percentage plan. And I don't think it's 

been seriously disputed in this case to this point that, 

although the percentage plan certainly helps with 

minority admissions, by and large, the -- the minorities 

who are admitted tend to come from segregated, 

racially-identifiable schools.

 JUSTICE ALITO: Well, I thought that the 

whole purpose of affirmative action was to help students 

who come from underprivileged backgrounds, but you make 

a very different argument that I don't think I've ever 

seen before.

 The top 10 percent plan admits lots of 

African Americans -- lots of Hispanics and a fair number 

of African Americans. But you say, well, it's -- it's 

faulty, because it doesn't admit enough African 

Americans and Hispanics who come from privileged 

backgrounds. And you specifically have the example of 

the child of successful professionals in Dallas.

 Now, that's your argument? If you have -­

you have an applicant whose parents are -- let's say 

they're -- one of them is a partner in your law firm in 

Texas, another one is a part -- is another corporate 

lawyer. They have income that puts them in the top 

1 percent of earners in the country, and they have -­

parents both have graduate degrees. They deserve a 

leg-up against, let's say, an Asian or a white applicant 

whose parents are absolutely average in terms of 

education and income?

 MR. GARRE: No, Your Honor. And let me -­

let me answer the question.

 First of all, the example comes almost word 

for word from the Harvard plan that this Court approved 

in Grutter and that Justice Powell held out in Bakke.

 JUSTICE ALITO: Well, how can the answer to 

that question be no, because being an African American 

or being a Hispanic is a plus factor.

 MR. GARRE: Because, Your Honor, our point 

is, is that we want minorities from different 

backgrounds. We go out of our way to recruit minorities 

from disadvantaged backgrounds.

 JUSTICE KENNEDY: So what you're saying is 

that what counts is race above all.

 MR. GARRE: No, Your Honor, what counts is 

different experiences -­

JUSTICE KENNEDY: Well, that's the 

necessary -- that's the necessary response to 

Justice Alito's question.

 MR. GARRE: Well, Your Honor, what we want 

is different experiences that are going to -- that are 

going to come on campus -­

JUSTICE KENNEDY: You want underprivileged 

of a certain race and privileged of a certain race. So 

that's race.

 MR. GARRE: No, Your Honors, it's -- it's 

not race. It's just the opposite.

 I mean, in the LUAC decision, for example, 

this Court said that failing to take into account 

differences among members of the same race does a 

disservice -­

JUSTICE KENNEDY: But the reason you're 

reaching for the privileged is so that members of that 

race who are privileged can be representative, and 

that's race. I just -­

MR. GARRE: It's -- it's members of the same 

racial group, Your Honor, bringing different 

experiences. And to say that -- if you took any racial 

group, if you had an admissions process that only tended 

to admit from a -- people from a particular background 

or perspective, you would want people from different 

perspectives.

 CHIEF JUSTICE ROBERTS: Counsel -­

MR. GARRE: And that's -- that's the 

interests that we're discussing here. It's the 

interests that the Harvard plan specifically adopts 

and lays out -­

CHIEF JUSTICE ROBERTS: I understand my job 

under our precedents to determine if your use of race is 

narrowly tailored to a compelling interest.

 The compelling interest you identify is 

attaining a critical mass of minority students at the 

University of Texas, but you won't tell me what the 

critical mass is. How am I supposed to do the job that 

our precedents say I should do?

 MR. GARRE: Your Honor, what -- what this 

Court's precedents say is a critical mass is an 

environment in which students of underrepresented -­

CHIEF JUSTICE ROBERTS: I know what you say, 

but when will we know that you've reached a critical 

mass?

 MR. GARRE: Well -­

CHIEF JUSTICE ROBERTS: Grutter said there 

has to be a logical end point to your use of race. What 

is the logical end point? When will I know that you've 

reached a critical mass?

[What the University of Texas bigshots would say if they could be completely honest, not only with the Supreme Court but inside their own minds is: "Look, we know we've got a good thing going here with all sorts of smart white and Asian students wanting to come here, and we don't intend to screw it all up the way CCNY did in 1969 by letting in so many Hispanics and blacks that we kill the goose that lays the golden eggs. Trust us to be cynically self-serving."]

 MR. GARRE: Your Honor, this question, of 

course, implicates Grutter itself. And, again, I 

understood my friend not to challenge that. They 

haven't challenged that diversity is a compelling 

interest at all.

 What -- what we look to, and we think that 

courts can review this determination, one, we look to 

feedback directly from students about racial isolation 

that they experience. Do they feel like spokespersons 

for their race.

[This "does not feel like spokesperson for his or her race" test of when a critical mass is big enough is a very weird one since racial preferences are defended by people who are professional spokespeople for their race. The Xochitl Hinojosa-type ethnic spokespersons tend to be ethnic warriors for increasing the number of people of their supposed group in the country so they can make even more money as spokesmodels.]

 CHIEF JUSTICE ROBERTS: So, what, you 

conduct a survey and ask students if they feel racially 

isolated?

[All teenagers feel isolated. I remember watching a Britney Spears video back about 12 years ago where she plays a high school girl who feels so lonely. She really was getting into it.]

MR. GARRE: That's one of the things we 

looked at.

 CHIEF JUSTICE ROBERTS: And that's the basis 

for our Constitutional determination?

 MR. GARRE: Your Honor, that's one of the 

things that we looked at.

 CHIEF JUSTICE ROBERTS: Okay. What are the 

others?

 MR. GARRE: Another is that we did look to 

enrollment data, which showed, for example, among 

African Americans, that African American enrollment at 

the University of Texas dropped to 3 percent in 2002 

under the percentage plan.

 CHIEF JUSTICE ROBERTS: At what level will 

it satisfy the critical mass?

 MR. GARRE: Well, I think we all agree that 

3 percent is not a critical mass. It's well beyond 

that.

[Three percent is about 1,000 black undergraduates on the UT Austin campus.]

 CHIEF JUSTICE ROBERTS: Yes, but at what 

level will it satisfy the requirement of critical mass?

 MR. GARRE: When we have an environment in 

which African Americans do not -­

CHIEF JUSTICE ROBERTS: When -- how am I 

supposed to decide whether you have an environment 

within particular minorities who don't feel isolated?

MR. GARRE: Your Honor, part of this is a -­

is a judgment that the admin -- the educators are going 

to make, but you would look to the same criteria -­

["You'll decide, Mr. Chief Justice, when self-appointed minority spokespersons damn well tell you to decide that minority students no longer feel like minority spokespersons, and not a minute before!]

CHIEF JUSTICE ROBERTS: So, I see -- when 

you tell me, that's good enough.

[Roberts gets the joke.]

 MR. GARRE: No, Your Honor, not at all. You 

would look to the criteria that we looked at, the 

enrollment data, the feedback from the students. We 

also took into account diversity in the classroom. We 

took into account the racial climate on campus.

 JUSTICE ALITO: But would 3 percent be 

enough in New Mexico, your bordering state, where the 

African American population is around 2 percent?

 MR. GARRE: Your Honor, I don't think it 

would.

[Perhaps all the black college students in New Mexico should be bussed to Texas in order to benefit from Critical Mass. Hey, it worked in Boston!]

I mean, our concept to critical mass isn't tied 

to demographic. It's undisputed in this case that we 

are not pursuing any demographic goal. That's on page 

138 of the Joint Appendix.

 All of -- I think many key facts are 

undisputed here. It's undisputed that race is only a 

modest factor. It's undisputed that we're taking race 

into account only to consider individuals in their 

totality.

 JUSTICE SOTOMAYOR: Mr. Garre, I think that 

the issue that my colleagues are asking is, at what 

point and when do we stop deferring to the University's 

judgment that race is still necessary? That's the 

bottom line of this case. And you're saying, and I 

think rightly because of our cases, that you can't set a 

quota, because that's what our cases say you can't do.

 So if we're not going to set a quota, what 

do you think is the standard we apply to make a 

judgment?

 MR. GARRE: I think the standard you would 

apply is the one set forth in Grutter, and it comes from 

Justice Powell's opinion in Bakke, that you would look 

to whether or not the University reached an environment 

in which members of underrepresented minorities, African 

Americans and Hispanics, do not feel like spokespersons 

for their race, members -- an environment where 

cross-racial understanding is promoted, an environment 

where the benefit -- educational benefits of diversity 

are realized.

 And the reason why the University of Texas 

concluded that that environment was not met here, it 

laid out in several different information points that 

this Court can review -­

JUSTICE SCALIA: But that holds for only -­

only another what, 16 years, right? Sixteen more years, 

and you're going to call it all off. ...

 JUSTICE ALITO: Well, in terms of diversity, 

how do you justify lumping together all Asian Americans? 

Do you think -- do you have a critical mass of Filipino 

Americans? Cambodian Americans -­

MR. GARRE: Your Honor -­

JUSTICE ALITO: -- Cambodian Americans?

[This is hardly just theoretical. Lots of Asian spokespersons argue for more finely dividing the Asian category so that Cambodians and Hmongs and the like can be considered Underrepresented Minorities. Indeed, Pacific Islanders used to be lumped with Asians, but in the 1990s they got the Clinton Administration to give them a separate racial category so they can benefit from quotas.]

 MR. GARRE: -- the common form that's used 

has Asian American, but also, next to that, has a form 

that says country of origin where that can be spelled 

out.

 JUSTICE ALITO: But do you have a critical 

mass as to all the subgroups that fall within this 

enormous group of Asian Americans?

 MR. GARRE: Your Honor, we've looked to 

whether or not we have a critical mass of 

underrepresented minorities, which is precisely what the 

Grutter decision asks us to do.

 I think -- if I can make a quick point on 

jurisdiction -­

JUSTICE KENNEDY: If I could, before we get 

to that.

 MR. GARRE: I'm sorry.

 JUSTICE KENNEDY: Suppose we -- that you, in 

your experience identify a numerical category a 

numerical standard, a numerical designation for critical 

mass: It's X percent. During the course of the 

admissions process, can the admissions officers check to 

see how close they are coming to this numerical -­

MR. GARRE: No. No, Your Honor, and we 

don't. On page 389 -­

JUSTICE KENNEDY: You -- you cannot do that?

[Mr. Garre must be really sweating now. He needs Kennedy's vote and that's not at all a helpful question that Kennedy just asked.]

 MR. GARRE: We -- we wouldn't be monitoring 

the class. I think one of the problems -­

JUSTICE KENNEDY: But isn't that what 

happened in Grutter; it allowed that.

 MR. GARRE: It did, Your Honor. It was one 

of the things -­

JUSTICE KENNEDY: So are you saying that 

Grutter is incorrect?

 MR. GARRE: No, Your Honor. It was one of 

the things that you pointed out in your dissent. What 

I'm saying is we don't have that problem, because -­

JUSTICE KENNEDY: I'm -- I'm asking whether 

or not you could do that. And if -­

MR. GARRE: I don't think so, because the 

Grutter majority didn't understand it to be monitoring 

for the purposes of reaching a specific demographic.

 CHIEF JUSTICE ROBERTS: They don't -- they 

don't monitor, but race is the only one of your holistic 

factors that appears on the cover of every application, 

right?

 MR. GARRE: Well, all the holistic factors 

are taking into account on the application, and they're 

listed at various points on the application.

 CHIEF JUSTICE ROBERTS: I'm sorry. The 

question was whether race is the only one of your 

holistic factors that appears on the cover of every 

application.

 MR. GARRE: That -- that is true on the 

cover of the application.

Oral arguments in Fisher: Justice Sotomayor takes this skinny white girl's complaint very personally

Here's the transcript of the oral arguments at the Supreme Court today in Abigail Fisher's lawsuit against the University of Texas's second system of racial preferences. 

Sonia Sotomayor's questioning of Fisher's attorney reminds me of Christopher Caldwell's classic line:

"One moves swiftly and imperceptibly from a world in which affirmative action can't be ended because its beneficiaries are too weak to a world in which it can't be ended because its beneficiaries are too strong." 

True diversity

Snapperhead Soup comments:

Why is it that elite whites get to mix with the better kind of blacks like Obama who won't rob them or beat them up whereas poor whites must mix with the likes of Mike Tyson-types (via section 8 and etc)? ... 

As for elite whites, I say let's expose them to non-elite run-of-the-mill blacks. And let's see how long they remain 'progressive' and pro-'diversity'. ... 

And if we want non-elite whites to have a favorable view of blacks, I have a better idea. I say let's expose non-elite whites to elite blacks( who don't commit crime). That way, non-elite whites will have a more favorable view of blacks. 

I think this is an excellent idea. The Obamas should participate in an educational reality TV show in which various meathead white reality stars such as The Situation, Honey Boo Boo and others of that ilk, spend a month each as house guests of the Obamas in the White House.

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.

Why top universities must use racial and ethnic preferences

C. Van Carter of Across Difficult Country explains:

It's necessary for elite institutions to discriminate against non-elite whites in order to expose elites to diversity, because if elites are not exposed to diversity it would undermine their ability to attack non-elite whites for being racist.

Supreme Court affirmative action oral arguments open thread

I'm sometimes asked:

Q. How do you come up with so many analyses of the latest issues by the time I get up in the morning?

A. By sleeping through most of the Eastern/Midwestern day. 

I hope to sleep dreamlessly through Wednesday's oral arguments at the Supreme Court over the U. of Texas's affirmative action plan, so if you are paying attention, please feel free to submit a comment to this post. 

I am particularly interested if, in regard to Texas, where Hispanic youths outnumber black youths vastly, 100% of the legal and pundit discussion will continue to be about blacks. Or by now in 2012, have we advanced to such a level of sophistication that only 95% of the debate about Texas's indirect quota system will be about blacks?

iSteve Panhandling Drive Rumbles Onward

Dear Readers:

Thanks to all of you who contributed so generously during the highly encouraging first full day of my first fundraising drive since August 2011.

I did two panhandling stretches in 2011: I let May 2011 go on for many days as generous contributions continued to flow in. I called off August 2011 rather quickly after one very generous commitment arrived. We'll see how this one plays out, but we're off to a good start. Unfortunately, I also need to make a whole lot of money, so you can expect to see more requests like this.

There are a few ways to support my work:

First: You can send me money via Amazon (not tax-deductible). Click here and then click on the button for the amount you want to pay. It's especially quick if you already have an Amazon account, but any major credit card will work fine. (I want to thank all the generous folks who helped me work out the kinks in this method, using their own real money.)

Second: You can make a tax deductible contribution to me via VDARE by clicking here.

Third: You can mail a non-tax deductible donation to:

Steve Sailer

P.O Box 4142

Valley Village, CA 91617-4142

Thanks.

Bryan Caplan's exquisite moral sensitivities are all that stand between us and the horrors of an America v. Canada war of conquest and enslavement

Economist Bryan Caplan is outraged by having to listen to (what must be a tiny handful of) citizenist economists without being able to shout the Open Borders moral revelations of Julian Simon into their thick skulls:

I was just at a conference where several eminent economists embraced the following principle: 

The United States should adopt whatever policies maximize the per-capita GDP of the existing population of the United States, and their descendants.

It was frustrating to listen.  On the one hand, any philosophy professor could instantly produce devastating counter-examples to this principle of national egoism.  For starters: 

1. If conquering and enslaving Canada would increase American per-capita GDP, should we therefore conquer and enslave Canada?

2. If we could forever end world poverty by reducing American per-capita GDP by a penny, should we refuse to end world poverty?

3. If we could costlessly exterminate all Americans who produce a below-average quantity of GDP, should we exterminate them?

Uh ...

1. No.

(Unless, of course, the Canadians really piss us off. So, just watch your step, Canadians. You know what we're talking about. Oh, where was I?)

2. Whatever.

3. I suspect reducing the income of 49.99% of Americans to zero would not, on the whole, be Good for the Economy -- it would certainly be bad for the 49.99% -- although I must admit that I don't keep up with the latest fashions in economic thought, which seem to be moving in that direction.

Seriously, Caplan's excursion into the fever swamps of why Godwin's Law exists means he completely misses the point of "The United States should adopt whatever policies maximize the per-capita GDP of the existing population of the United States, and their descendants." 

The citizenist economists who so outrage poor Dr. Caplan are drawing an obvious analogy to the principle pounded into my head while getting my MBA in finance three decades ago that the board of directors of corporations should adopt whatever policies maximize the wealth of the existing shareholders of the corporation.

That doesn't mean that the board of directors should conquer and enslave Canada. All ethical principles come with endless grown-up qualifications to fantasies hatched by childish minds.

No, the most important word in that principle of financial economics is not "whatever," it is "existing." When corporate directors forget the distinction between current and potential shareholders, corruption ensues. As I pointed out in VDARE in 2005:

By "citizenism," I mean that I believe Americans should be biased in favor of the welfare of our current fellow citizens over that of the six billion foreigners. 

Let me describe citizenism using a business analogy. When I was getting an MBA many years ago, I was the favorite of an acerbic old Corporate Finance professor because I could be counted on to blurt out in class all the stupid misconceptions to which students are prone. 

One day he asked: "If you were running a publicly traded company, would it be acceptable for you to create new stock and sell it for less than it was worth?" 

"Sure," I confidently announced. "Our duty is to maximize our stockholders' wealth, and while selling the stock for less than its worth would harm our current shareholders, it would benefit our new shareholders who buy the underpriced stock, so it all comes out in the wash. Right?" 

"Wrong!" He thundered. "Your obligation is to your current stockholders, not to somebody who might buy the stock in the future." 

That same logic applies to the valuable right of being an American citizen and living in America. Just as the managers of a public company have a fiduciary duty to the current stockholders not to diminish the value of their shares by selling new ones too cheaply to outsiders, our leaders have a duty to the current citizens and their descendants.

The War Between the Sexes and the GOP: Too much fraternizing with the enemy for there to be a final victory, but not enough formal allying with the enemy for a Romney win?

Foseti points to John Derbyshires's summary of various points made about the much discussed women's vote by me, Whiskey, and Heartiste. Here's the latter's extract from a recent poll:

Married men: for Romney by 54-35, Romney's margin 19.
Married women: for Romney, 49-42, Romney's margin 7.
Single men: for Obama, 47-38, Obama's margin 9.
Single women: for Obama, 60-31, Obama's margin 29.

Of course, it helps to remove the effects of race and so forth, but the effect of marriage is still very much there. One way to sum up the demographics of the American party system is that the Republicans are the party of married white people, and the more different somebody is from that norm, the more likely they are to vote Democratic.

Or you could look at it on a continuum: the Republicans are the party of married white fathers and the Democrats are the party of single black mothers.

From the Man from Mars' naive perspective, the party of married white fathers really ought to be able to beat the party single black mothers. But, perhaps the former has such an obvious advantage that it gets hijacked by special interests more? Or, perhaps the cultural industry is so bored and disgruntled with the natural ruling party that it makes vast efforts to make people feel that voting for the party of black single mothers is cool.

How George W. Bush's Bushllit Economy drove up illegitimacy rates

From my new column in Taki's Magazine on the quantity and quality of births in America:

Yet most articles about birthrates assume intellectual underpinnings that could be based upon talking points from, say, the Toilet Paper Manufacturers Association: As with opinions, everybody’s got one, so the more the better. More toilet-paper consumption is Good for the Economy, and that’s all you need to know. 

One irony is that the quality of births has perhaps been improving during Barack Obama’s tenure. At minimum, quality has not been in a free fall as it was during George W. Bush’s disastrous second administration. But not only can’t Obama mention this on the campaign trail, he probably can’t even formulate the idea without his head exploding.

And yet, illegitimate births are bad for the GOP in the short and long runs.

Read the whole thing there.

2012 iSteve Fundraising Drive

Dear Readers:

I want to thank you for all the support you've given me over the years. I hope I've provided in good measure. Looking at some stats, I see:

I'm currently at 10,010 unique visits per day.

7,200 posts at this site alone.

234,000 published comments.

29,000,000 page views

Now, though, I have some sizable bills to pay and I need to turn to you again for financial assistance. Thus, I'm kicking off my first fund-raising drive since 14 months ago in August 2011. 

There are a few ways to support my work:

First: You can send me money via Amazon (not tax-deductible). Click here and then click on the button for the amount you want to pay. It's especially quick if you already have an Amazon account, but any major credit card will work fine. (I want to thank all the generous folks who helped me work out the kinks in this method, using their own real money.)

Second: You can make a tax deductible contribution to me via VDARE by clicking here.

Third: You can mail a non-tax deductible donation to:

Steve Sailer

P.O Box 4142

Valley Village, CA 91617-4142

Thanks.

New NYC Gifted test expected to be easier for African Americans because it emphasizes "abstract spatial thinking and largely eliminates language"

Any news story about New York kindergartens is guaranteed to be pure comedy gold. Here's a tragically hilarious article in the WSJ about an expensive new test that New York City has signed up for to get more blacks into Gifted kindergartens. Yet, judging from the description, this new test is just going to demolish poor African-American kids.

In New York, the smart, ruthless people always win in the end. Especially when it comes to kindergarten.

Big Change in Gifted and Talented Testing

By SOPHIA HOLLANDER 

A new test for admission into New York City's gifted and talented program will account for the bulk of a student's score, upending a testing regime that a growing number of children had appeared to master. 

In a broader overhaul than previously announced, the Naglieri Nonverbal Ability Test, also known as the NNAT, will count for two-thirds of a student's score, said city officials, who signed a three-year, $5.5 million contract with the testing company Pearson earlier this year.

Man, there's money to be made in the test racket! Nothing new is being invented, but there's constant lucrative churn from one testing company to another as institutions thrash about blindly trying to buy their way to racial equality of results.

The Otis-Lennon School Ability Test, or OLSAT, which increasing numbers of children had prepared for intensely, will drop to a third of the total from 75%.

City officials hailed the new test as a vast improvement. It relies on abstract spatial thinking and largely eliminates language, even from the instructions, an approach that officials said better captures intelligence, is more appropriate for the city's multilingual population and is less vulnerable to test preparation.

Oh, great, this new test will work out swell for African-Americans.

As everybody seems to know lately, African-Americans aren't very good with language (the Word Gap), but they're aces with "abstract spatial thinking." Hart and Risley proved it! Plus, African-Americans don't speak English, so how can they compete with people from China on a test in English?

As a result, they expressed the hope that it would "improve the diversity of students that are recognized as gifted and talented," said Adina Lopatin, the deputy chief academic officer for the city's Department of Education. City officials said they were currently compiling data on the program's racial breakdown but students who qualified tended to be concentrated in wealthier districts. Areas such as the South Bronx produced few candidates. 

Some experts have raised doubts about the NNAT's ability to create a racially balanced class. Several studies show the test produces significant scoring gaps between wealthier white and Asian children and their poor, minority counterparts.

Really? You think?

... The shift marks the latest attempt by city officials to address a seemingly intractable problem: How to create equity in the admissions process for its gifted and talented program, which begins in kindergarten and goes through third grade. .... 

The abstract nature of the exam actually makes it more susceptible to test preparation, some argue. On the NNAT, often students "don't understand what they're supposed to do," said David Lohman, a professor of educational psychology at the University of Iowa and the co-author of a rival test, called the CogAT.

Well, give Lohman $5 million, too. That should fix the problem.

The NNAT is significantly harder than the tests city has previously used, with some questions confusing even for adults, tutoring companies reported. "We've known for some time that, on these sorts of tests, understanding what to do is half the battle," Mr. Lohman said. "You solve one problem and create another." Mr. Naglieri dismissed the idea that preparation could unduly reward students on his test.

"You're not going to be able to solve a really hard question on my test because you know how it works," he said. "You have to intellectually manage the demands of the task."

Yup, that's been the problem with previous tests: not enough intellectually managing the demands of the task for poor black kids to shine.

Tutoring companies across the city have reported a frenzy since the NNAT was announced, with families signing children up for private tutoring sessions, enrolling them in multiweek boot camp classes, and buying test preparation booklets in droves—even though the test won't be administered until January.

... Bige Doruk, the founder of Bright Kids NYC, another tutoring company, said she had no trouble selling NNAT Boot Camp packages—eight to 10 sessions, plus preparation materials—which start at more than $1,000.

Some educators said that as long as standardized tests remained the sole criteria for admissions, little would change.

I think Who You Know, not What You Know, should be the criteria.

"They can keep switching tests from now until doomsday and it's not going to make a difference," said James Borland, a professor at Teachers College at Columbia University. "The rationale behind the process is fatally flawed." Others said that even if they maintained testing, the city could still address other barriers for disadvantaged children. Currently, parents must sign up their children to take the test, screening out those whose families are less engaged or savvy. ... Others said the city isn't doing enough to promote diversity in the gifted program.  "You have to believe that what they're doing is a failure or you have to believe that African-American and Latino kids are less gifted," Mr. Borland said. "One of those has to be true."

The black hole of American comedy (continued)

One of the secrets of Saturday Night Live's long-running success is that its boss Lorne Michael's run-of-the-mill liberalism is offset by SNL's main political writer Jim Downey's Republicanism. Downey has been especially good at making sure loser Republicans like Bob Dole into crotchety minor heroes. 

But, Obama is off limits. Last month, Michaels announced that he hadn't been able to figure out anything funny about Obama yet. But, don't worry, he's still working on it and will probably come up with something in two or three months.

Now, you might think that last week's bomb by Obama in the Presidential debate would offer a comic gold mine. But, you're forgetting the Prime Directive: satire of The One We've Been Waiting For is off-limits.

So, here's a tick-tock of the agonies Downey had to go through to come up with a Presidential debate sketch that (unmentioned premise) wouldn't violate the Prime Directive.