California Legislature Proposes Racial Discrimination in University Admissions Policy


Tim Kowal

Tim Kowal is a husband, father, and attorney in Orange County, California, Vice President of the Orange County Federalist Society, commissioner on the OC Human Relations Commission, and Treasurer of Huntington Beach Tomorrow. The views expressed on this blog are his own. You can follow this blog via RSS, Facebook, or Twitter. Email is welcome at timkowal at

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134 Responses

  1. Avatar sonmi451 says:

    Good effort trying to compare slavery to affirmative action, opps, I mean “reverse discrimination”. Three cheers!Report

  2. Avatar Jeff Wong says:

    Realistically, the UC is going to admit whomever will benefit the university, regardless of the resentment that whites and Asians about having their rightful place in a UC school snatched by someone less deserving. Having attended to UC Berkeley, I am pretty familiar with this debate and the annoying liberal hipsters whining about social justice.

    The policy really only affects people who are on the borderline of acceptance, a very small percentage of each class. Students are very comparable in this range. GPAs are approximately in the same range as are SAT scores. GPAs are very difficult to compare high school students, even if they went to the same high school. How stable were your SAT scores? I went to Kaplan, which made me better at taking the test. You could say I cheated, in fact.

    The argument for diversity is this: allowing the student body to become more of a monoculture is not in the interests of the State of California as a whole. Foreign and out-of-state students pay higher tuitions and help bring new ideas to the state and it also makes it easier for California to export ideas and culture throughout the world. You never know which graduates are going to go home and start a business of become prime minister.

    Objective measures simply don’t exist. You can make the case that certain people are definitely better academically than others. UC uses its own composite based on GPA, SAT, and AP courses to classify certain applicants as “sure bets” (as in they will graduate and probably will succeed). No one will read these students essays or recommendations or care that they lived in a poor neighborhood and raised their siblings.

    For the borderline cases, there is a huge qualitative difference between someone from a upper-middle class family who used test prep courses for several years (me) and someone who didn’t have time for that because they spent their time being leaders and making their communities better.

    It’s not good for UC Berkeley to have 75% of its incoming class to come from elite magnet schools. Otherwise, it would be basically admitting the same sets of students who all went to the same high schools. A large portion of students prefer to stay near home so the applicant pool is already skewed towards locals. These people go home on the weekends for free food and laundry.

    In any case, with Asian Americans intensely game the college admissions process. Will a person who’s done everything they were “supposed” to do be an asset to the university? Or a student who doesn’t come from that culture? Or comes from a culture that is hostile to education? Who is more likely to make a difference? Who is more likely to make a unique difference?

    If we focus on *strictly* standardized measures because some feel wronged that someone “less worthy” got in ahead of them, the American education system gets closer to the masochism and mediocrity of universities in Asia. I certainly don’t want the next generation of Americans to be even more worked up by comparing their test scores when most students have enough variance that making a cutoff is a matter of luck and resources to spam the test system.

    Favoring one student over another purely because of race (ceteris paribus) is slightly wrong. Allowing race to count too much or to making it a free pass would be wrong, but not that wrong. Probably any applicant from Bhutan would probably be admitted, assuming they meet the minimum measures for being likely to finish and not stay over 4 years.Report

    • Avatar Murali says:

      Hi Jeff, interesting reply. Just a few things

      1. As a state university, arguably, UC must be held to a higher standard when it comes to admissions than private universities. Whereas private universities have their own reasons which may legitimately allow them to use whatever admissions process which would be to the best interests of the university, state organisations must apply an equal opportunity standard. At the very least there is a presumption in favour of operating in a race-blind manner.

      2. It is not clear that diversity is good for the university as an institution. This is especially the case where said person comes from a culture hostile to education. The fact that they may make a unique difference to the school is not sufficient. The unique difference they may be making could be detrimental to the university and its culture.

      3. It is not even clear that the students (who fared worse on standardised tests) from non-magnet schools are sufficiently different vis a vis culture to be able to provide meaningful diversity. The student from Laos or Indonesia would be a better choice if you were aiming at diversity.

      4. Even if diversity were a good to the university, that isnt the only or even the over-riding consideration when it comes to admissions.

      5. There is a difference between having a neutral and rigid set of criteria, giving discretion in dealing with a neutral criteria and discretion coupled with race-base criteria.

      6. The mere fact that american universities are allegedly better than asian universities does not imply that anything that makes amrican universities more like asian universities is bad. Its like saying that the Nazis made the train run on time and the Nazis were bad. Therefore making the trains run on time is bad. There is a name for this logical fallacy but I can’t remember this right now.Report

      • Avatar Culture hostile to education says:

        “It is not clear that diversity is good for the university as an institution. This is especially the case where said person comes from a culture hostile to education. The fact that they may make a unique difference to the school is not sufficient. The unique difference they may be making could be detrimental to the university and its culture.”

        I imagine you might have a specific example of which person comes from a “culture hostile to education”? Should we exclude everyone from that cultural/racial background then to make universities a better place for everyone else?Report

        • Avatar Culture hostile to education says:

          I might be wrong, but I think you’ve mentioned being from Singapore, right? I presume you have a specific culture in mind with regards to Singapore when you mention “culture hostile to education” (probably the racial group that starts with M, right?) Well, how you guys prefer to do things over there might not be the best things for the US, see.Report

          • Avatar Murali says:

            Actually I dont have any particular gorup in mind. Rather, I was rifing off Jeff’s use of the term. Jeff was claiming that getting people from different cultures even such a radically different culture thamay have been hostile to education was a good for the school. I think he is overstating the case. If there were hypothetically some people who do come from a background so hostile, it is not clear that they contribute anything constructive to the university. Granted, if people were hostile, it is not clear what they are doing in a university in the first place. People who want to go to a university, for some measure of want, want an education. They are not hostile.Report

        • Avatar Kimmi says:

          ya, I do. Rednecks, due to a sort-of reverse selection process, tend to have a cultural attitude that is hostile towards education.

          It comes from seeing your best and brightest leave, and likely look down upon you when they do come home to visit.

          A perfectly understandable attitude.

          I wouldn’t mind getting rid of bullies, but people from that culture deserve a chance to leave.Report

          • Avatar Culture hostile to education says:

            “I wouldn’t mind getting rid of bullies, but people from that culture deserve a chance to leave.”

            Don’t understand what this means. Rednecks = bullies? Why can’t people just retire that term once and for all?Report

            • Avatar Kimmi says:

              feh. meant no offense. bullies exist everywhere (I should know, most of all!).

              But there’s definitely a culture that exists in certain rural areas, where they do not like “book-learning”, and anyone who’s got it is viewed with much skepticism. (not so much in PA. Penn State has many shinies, and loves to get free research done in farmer’s fields, so they pass around the goodies a lot).Report

      • Avatar Jeff Wong says:

        1. There something in the framing of this that should be addressed. Yes, the UC is mostly equal opportunity in that it doesn’t discriminate against classes of people. However, when you’re dealing at the margins, basically all candidates are classified as approximately equal. Applicants get a little bonus point for being Native American. At this stage, essays get read anyways. You need to check for obvious frauds.

        2. If they are going to go through all of the trouble and expense of university, they probably aren’t that hostile to education and interested in sabotage. Although, I would favor expulsion for AA protestors (who are clearly stupid tactically and rhetorically) to make room for more AA admits.

        3. There is a huge difference between going to a high school where you’re considered a loser for not getting into any UCs (my school) and one where the school doesn’t help college applicants because there aren’t that many.

        4. Which is why it is only matters for a small portion of the applicants. Diversity is good for universities and many other types of organizations like business and the military. Especially when it comes to idea generation and learning.

        5. I agree with this. AA should never create race quotas. That is a legitimate problem with the proposed bill.

        6. You’re thinking of a bad analogy, but no. However, the characteristic I am talking about is part of the difference. Students spend so much time and effort (see hagwons in Korea and elsewhere) that once they get into university, there is a huge tendency to coast and not work. I know this from being a TA of foreign students and discussion with peers who did undergrad in Asia. The system is largely about cutoffs though there are quotas for different ethnic groups and provinces. In the American system, numerical measures are used for gross sorting, people who cannot be rejected because it would be anti-meritocratic, and likely to be definitely harmful. Below the auto-admit cutoff, qualitative assessments are weighted equally with quantitative.

        I bring up Asia as an example because of the public idea that Americans need be more like Asians, based on test score comparisons and the stereotypes from Asian-Americans, which is a very flawed idea.Report

        • Avatar Murali says:

          There is a huge difference between going to a high school where you’re considered a loser for not getting into any UCs (my school) and one where the school doesn’t help college applicants because there aren’t that many.

          This seems right. But, the solution to this may not necessarily be the kind that gives additional points just because you come from a poor inner city school. (as a tie breaker it could be okay)

          The major worry is that the number of points afforded to coming from a disadvantaged background is adjusted until the university population (at least among the local damissions) starts looking a lot like the american or state population. This is functionally equivalent to a quota system which you do agree is bad.Report

  3. Avatar Chris says:

    An interesting paper for discussion.

    What I find frustrating about these discussions is the facile treatment of the fundamental issues. Not all discrimination is the same. Not all race-consciousness is the same. Yet, if we accept the reasoning of Tim and those like him (as usual, it’s not like this is not a post of cliches), then it would be pretty much impossible to address harmful racial discrimination through policy. I’m sure this is quite fine with Tim, but given the world we live in, the consequences are too great to let people who are allergic to nuance drive the discussion.

    Also, apparently the Supreme Court’s history on this issue is unknown to Tim.Report

    • Avatar Tim Kowal says:

      SCOTUS has in certain cases given states leeway in setting their own “reverse discrimination” policies. It is up to the states, however, to identify a need for racial discrimination. California’s constitution is clear that the people of this state do not regard the moral principle against racial discrimination as something to be compromised for light and transient causes. As other commenters have pointed out, schools are free to use non-arbitrary factors like geography, economic condition, where the students might have traveled and lived, etc.

      Arkes again:

      The language of morals must presuppose, of necessity a being who is free to choose one course of action or another. It is only because that being is free that he can be held responsible for his acts, and that he may, with coherence, be blamed or praised. When people are rewarded or punished not for their own acts, but for the accident of their racial background, they are not praised or blamed for anything that it was in their power to affect, and they are treated, therefore, as though they did not in fact possess the freedom or autonomy of moral agents. They are treated as though their acts were determined by causal laws beyond their own governance. As we shall see, then, the wrongness of this racial discrimination is rooted in the very logic of morals, and therefore it must be said that racial discrimination is wrong of necessity.


      • Avatar E.C. Gach says:

        By his account, IQ is as arbitrary as race. So entrance standards based on that would be as percarious, no?Report

        • Avatar Kimmi says:

          ya. Now, me, I understand more about IQ. It is a fantastic measure of how normal your brain is, how equal it is at learning in different modalities.

          I have many doubts on how well the IQ test can tell you how smart you are.

          Apply, connect, reform, restructure — these are the strategic qualities that define high intelligence. They are quite hard to measure — if you think about it, can you measure them?

          Even if I could devise a test to measure these things, it might not be retakable (though it might be quite replicable interpersonally)Report

        • Avatar Tim Kowal says:

          Yes. Which is why if IQ fails to lead to some measurable merit that can be objectively considered, the number itself is basically meaningless from the perspective of the state.Report

      • Avatar Chris says:

        I like that you call it “reverse discrimination.” It’s just discrimination, but like I said, not all discrimination is the same.

        I don’t know much about the constiutional provision passed with Prop 209, but from the looks of it, the law definitely violates it. Not for any of the reasons you’ve laid out, because your reasons essentially say, “Hey, if we can’t do it, then you can’t either!” But based on my extremely limited knowledge, I can’t imagine how the new law will hold up.Report

        • Avatar DensityDuck says:

          “… your reasons essentially say, “Hey, if we can’t do it, then you can’t either!” ”

          If it’s bad to do it, then why isn’t it bad to do it?Report

          • Avatar Jaybird says:

            Here’s an analogy.

            Some people look at pushing little old ladies out of the way of a bus and pushing little old ladies into the path of a bus as pretty much the same thing: Pushing little old ladies around.

            There are, however, distinctions that can be made. Useful ones.Report

            • Avatar DensityDuck says:

              Yes, but–in context–we’ve been told that the reason it’s bad to push little old ladies in front of buses is that pushing little old ladies is bad, and that unfortunate bus interactions are just the kind of harmful things that happen to little old ladies when you push them.

              And, furthermore, that the way to stop people pushing little old ladies in front of buses is to push other people away from little old ladies.Report

              • Avatar Chris says:

                Yeah, now map your extension of the analogy onto affirmative action, and you’ll understand the way supporters actually see it: a necessary evil, in a sense. Discrimination is pervasive, and pernicious, and the only way to counteract it in some cases is, unfortunately, discrimination.Report

              • Avatar Tim Kowal says:

                Discrimination is pervasive, and pernicious, and the only way to counteract it in some cases is, unfortunately, discrimination.

                Chris, can you explain why racial discrimination is necessary here? Why not discrimination based on wealth, geography, school district, etc? We have more discrete tools at our disposal than race, do we not?Report

              • Avatar Jesse Ewiak says:

                I’ll do all of the above as well. Again, I’ve got no problem with bonus points for being the first kid to go to college, bonus points for achieving x GPA despite working 20 hours/week, and so on.

                But, race is still a factor. As much as being a poor white kid sucked, I knew even as a kid that on the average, being a poor black kid or Hispanic kid was even worse for a variety of reasons that has been gone over zillions of times in fifty different places.Report

              • Avatar Tim Kowal says:


                Probably true in many instances, but I still don’t see why race should be a factor. For example, if a kid grew up in a Spanish-speaking household and had to learn to excel in an English-speaking school, by all means, put it in the admissions essay. Could also ask those questions in the application form. But it would be absurd to assume that every Hispanic kid shares that experience.

                Why can’t we account for the discrete hardships of these students using the tools we have? More importantly, how does race tell us anything meaningful about these hardships?Report

              • Avatar Jason Kuznicki says:

                Along with abolishing legacy preferences, it might be good to have a sort of anti-legacy preference: Reserve a non-trivial number of spots for anyone who has never had a family member go to college.

                This might be difficult to prove, but I have a hard time thinking it’s a bad idea.Report

              • Avatar Chris says:

                Tim, if you look at the data, you will quickly find that race is a statistically significant factor in school performance and admittance, even when controlling for other factors. That’s why. It’s not really that difficult. If you research this issue a bit, you won’t change your opinion, because it’s an ideological one, but you might at least understand the reasoning.Report

              • Avatar Tim Kowal says:

                Chris, could you give me some more breadcrumbs? The data I’ve found so far is not nearly as clear as you suggest. For example, I’ve found that in 1998, the first year in which affirmative action was abolished in California following Prop 209, the UC system reported just a 2.2% drop in minority admissions. (Incidentally, the rate of minority enrollment in private four-year institutions increased.)

                Interestingly, white admissions also decreased from 1997 to 1998 by a staggering 9%. Apparently, the group affirmative action had really been short-changing was Asian-Americans.

                But I would be very interested to read the kind of study you described.Report

              • Avatar Koz says:

                In a backwards way I’m with Tod on this. Let them figure out what they think they can accomplish with AA. Then, if we do go down that road hold them to it.

                As it is, it’s just never-ending excuse for bureaucratic overreach.Report

              • Avatar Chris says:

                Tim, I don’t mean affirmative action data. I mean educational outcomes, admittance, hiring, etc. Just go on google scholar and search for race and education, or race and test scores, or race and hiring rates, or race and admittance rates (you could also include the search term “regression”).Report

              • Avatar James Hanley says:

                Chris, can you explain why racial discrimination is necessary here? Why not discrimination based on wealth, geography, school district, etc?

                A good point. As I understand it (and I am open to correction), when Texas ended affirmative action policies, the UT system shifted to taking the top X% of the graduating class from each high school, a policy that might actually work much better than affirmative action at getting minorities into the state’s schools (given that the schools still have a lot of de facto segregation, based on relatively homogeneous neighborhoods), and is much simpler to implement and much easier to defend.Report

              • Avatar Chris says:

                James, I haven’t seen the data since 2005, but initially, black and hispanic enrollment at UT dropped significantly after the 10% rule went into effect. In 2008 (I think), they significantly altered the top 10% rule, because it dramatically increased UT’s overall enrollment, though.Report

              • Avatar DensityDuck says:

                “Discrimination is pervasive, and pernicious, and the only way to counteract it in some cases is, unfortunately, discrimination.”

                Thank you for admitting that reverse discrimination exists.

                Although it’s interesting that you justify discrimination by pointing to discrimination. I wonder what your opinion is regarding blood feuds?Report

              • Avatar Chris says:

                Density, apparently you missed the entire discussion. Sorry about that.Report

              • Avatar Kimmi says:

                a vile cultural artifact, like the rule of thumb and child abandonment.Report

    • Avatar Koz says:

      “Yet, if we accept the reasoning of Tim and those like him (as usual, it’s not like this is not a post of cliches), then it would be pretty much impossible to address harmful racial discrimination through policy.”

      That would be a feature instead of a bug, if that were true. First of all, what Tim says is right but is something I tend not to dwell on because for good or ill most people have heard it already and have come to some sort of understanding of where they stand on the matter.

      What is more important for me are the other consequences of policies like these that are usually not considered. In the big picture, the life of our culture is being choked out by the bureaucratic sclerosis of governmental and quasi-governmental bureaucracies. People wonder, why can’t we stop the drug war or why can’t we stop the drug war considering that 70% of Americans or 70% of Minnesotans or whatever support the decriminalization of marijuana. There is an answer to this.

      We can’t stop the drug war because we have cops, prosecutors, prison guards, parole officers and the rest of it. Over the course of time, these people have acquired a fair bit of political power and have in an operational way have removed control over the drug war from the citizens.

      It’s the same here. Anybody who’s been associated with a major university knows that the diversity racket is a major component of the education-industrial complex. In our current economy, we have a lot of people in their late twenties or so who find themselves with a $40K job and $60K of student loan debt. This might even describe a fair number of our readers here. Again, this isn’t something that just happens. It happens because their university has 80 diversity officers and all of them need to get paid (and dole out scholarships).

      And getting back to Chris’ comment, let’s also note that this particular case also depends on an abuse of the law as well. The legislators and the educational establishment don’t need to address racial discrimination because the voters have already addressed it perfectly clear enough. Libs could, if they chose, try to repeal 209 the same way it was enacted. I’m sure there’s been some effort, however halting, for this. But failing that, their unwillingness to let things lie there has corrupted our culture. Libs might say that racial diversity is so important as to be worth doing anyway. So it’s important to remind them that they won’t always be able to control the ends our culture is corrupted to accomplish.Report

      • Avatar Chris says:

        OK, so it’s not bad because there’s a categorical imperative against any kind of racial discrimination, but because it’s government involvement/beauracracy/part of the education-industrial complex. Interesting.Report

        • Avatar Koz says:

          Categorical imperative is overstating the case a little bit but essentially yes.

          Here’s another example that may or may not be goring your particular ideological ox.

          As a parenthetical issue surrounding the various budget negotiations, people have brought up the home mortgage interest deduction. Economists of all stripes for the most part agree that it’s an inefficient use of tax dollars and distorts the housing market in bad ways. Nonetheless, with where we are now, there’s also a grudging realization that we can’t get rid of it because we can’t risk housing values deflating further.

          This, and other things like it, are important obstacles to what can be done. This is what I was trying to get at in a guest post from some months back (which drew quite a bit of hostile comment as you can read for yourself). If you are ideologically hostile to this point of view, it’s worth it to clarify exactly why.

          In any case, the point is that it’s very useful to get rid of detritus like the diversity-educational complex and the mortgage interest deduction when we have the opportunity to do it, so that when there’s something that we really want to do, we’ll have the resources to do it.Report

  4. While I don’t like AA at all – it’s pretty hard to refute that just about every school is going to try and implement some kind of diversity scheme. It’s not even just race, ethnic or gender based. At many schools it’s also geographical. Schools that want a national reputation don’t want 80% of their student body to come from the surrounding counties.

    At the end of the day, admissions is a black art that only they understand and there is almost no recourse for the public. Where they stumbled was putting it in writing.Report

    • Avatar Pat Cahalan says:

      > Where they stumbled was putting it in writing.

      I think that’s on purpose. I think the regents would rather fight this fight in court than fight a lawsuit to put their admissions criteria in print when they haven’t done so because some kid is suing over not getting in.Report

  5. Avatar E.C. Gach says:

    Higher education is a mess. I’m not sure AA should be touched before systemic overhaul of the current university arrangment is considered and implemented.Report

  6. Avatar Mike Schilling says:

    The majority of UC students these days are women, so taking gender into account means admitting more men. I wonder if that changes anyone’s mind.Report

    • Avatar Ryan Bonneville says:

      Why would it?Report

      • Avatar Murali says:

        The perception being that women are a permanent suspect class and men are forever the priveleged class.

        Whiggas and White trash are just as disadvantaged as blacks. Even granting white privelege, they lack white privelege because they are subject to discrimination merely for being in the social class that they are. They do not get the perks of affirmative action. People who end up getting admitted are middle class blacks.Report

        • Avatar Chris says:

          You know, state universities in Kentucky have special scholarships and programs to get Appalachian students, the vast majority of whom are white, into college. You know why? Because white Appalachians are an historically and presently underpriveleged population. I’ve yet to hear anyone, anywhere (including in Kentucky, where complaints about affirmative action are not unheard of) complain about such programs.Report

          • Avatar Jesse Ewiak says:

            And guess, I, the great supporter of reverse discrimination are in full support of programs like these. Even if it means Tyler from Surbubia has to go to his second choice college.Report

            • Avatar Scott says:

              Chris and Jesse:

              But the difference is that those programs are based on economics not on race, so a white person might be able to take advantage of it unlike most AA programs that directly discriminate directly against whites.Report

  7. Avatar E.C. Gach says:

    “When the wrong of segregation is understood to hinge upon its material effects, we must necessarily dissolve the conviction that the segregation of people on the basis of race is categorically, in principle, wrong.”

    The wrong of racial segregation is that it’s based on unproven assumptions and faulty generalizations. It’s simple ignorance.

    The problem with it is that it leads to categorical policy that’s based on arbitrary criteria.

    Any policy predicated on racial segregationReport

  8. Avatar Jaybird says:

    Will employers be allowed to take the new college admissions standards into account when they look at resumes and offer interviews?Report

    • Avatar Mike Schilling says:

      You mean trying to guess why they were admitted rather than looking at what they actually accomplished?Report

      • Avatar Jaybird says:

        Would it be more okay if they didn’t have that company policy in writing?Report

        • Avatar Mike Schilling says:

          It would be silly and counterproductive. Doesn’t the great engine of The Market punish that?Report

          • Avatar Jaybird says:

            The Market punishes a great many things. Some worse than others.

            One of the big benefits of a degree, in the past, was its usefulness as a signalling device.

            It seems to me that policies as written above add to the noise portion of the signal:noise ratio and it seems to me that any given marketplace would adjust within a few years to attempt to get the ratio back to a useful one.

            Is this illogical on its face?Report

            • Avatar Pat Cahalan says:

              Only in the underlying sense that a degree was always a bad signaling device, so it wasn’t so much a big benefit as a big perceived benefit.

              It worked for the degree holder much more than the employer.Report

              • Avatar Jaybird says:

                I imagine that if there were a better signalling device, it would have been hoovered up quicker than you could say Jack Robinson.Report

              • Avatar Kimmi says:

                ya. and no. CS folks can easily prove whether they can do the work — 2 weeks, and voila! Either they’re worthy of being paid, or not.

                Nobody does this. Nobody hires someone without a degree, unless the problem is so hard that the only person who can do it has no degree.Report

              • Avatar Patrick Cahalan says:

                > CS folks can easily prove whether
                > they can do the work — 2 weeks,
                > and voila!

                That is only a high enough bar to get you a junior programmer.

                If you want a h4rd k0r3 developer, you really won’t know for sure until he’s done two large projects, four small ones, in six different working environments, with differing dependencies on the network guys and the sysadmin team, delivering for different business units including that crazy HR lady that everybody hates, and had to read and clean and troubleshoot somebody’s code other than their own.

                Then maybe you know something.Report

              • Avatar DensityDuck says:

                An observation: It sounds like you’re saying that programming is more of a trade than anything else, with apprentices and journeymen and masters.Report

              • Avatar Kimmi says:

                tch. ain’t it funny then, how people get hired doing that? Maybe it’s because hard problems take talent… And if the problem’s hard enough, you’ll work around the difficulties in the expert.

                Am I such a primadonna? no way in hell. But there are people that good.Report

              • Avatar Patrick Cahalan says:

                Generally speaking, programming and developing are two different things.

                If you want a junior programmer, “write me a sort” is going to get you a result. I personally don’t want to hire anybody like this, and while there are plenty of job openings out there for junior programmers, it’s not the sort of job that most HR people are screening for today.

                If you want a developer, then yeah, the trade model is a lot better. Tons better.

                It’s either that, or know people.

                > Ain’t it funny then, how people
                > get hired doing that?

                Not really. Hiring is hard.

                > Maybe it’s because hard
                > problems take talent… And if
                > the problem’s hard enough,
                > you’ll work around the
                > difficulties in the expert.

                Er, yes and no. It is contextual.

                You should read this and this and note the difference between the Free Electron in the two.

                And then you should read the rest of Rands In Repose, like everyone else who works with technical people, just because it is awesome.Report

              • Avatar Pat Cahalan says:

                Probably. Unfortunately, until recently we didn’t have too many boys coming back from the war as 2nd lieutenants.

                Aside from that (which is actually a *good* signaling device for types of employment), “Hey, I’m doinkin’ your daughter” and “Hey, I have a college degree from your alma mater”, there isn’t much left as signaling devices.

                Hiring is hard.Report

            • Avatar Mike Schilling says:

              Pretty much. Being admitted to a university has always been driven by a combination of factors, some sensible, some wholly arbitrary. Singling out one (race, as always) to say “Now, the system is broken” is … well, there’s a word for it.Report

              • Avatar Jaybird says:

                What if one is not saying “Now, the system is broken” but “It seems to me that policies as written above add to the noise portion of the signal:noise ratio and it seems to me that any given marketplace would adjust within a few years to attempt to get the ratio back to a useful one”?Report

              • Avatar Mike Schilling says:

                Too abstract for me. What does it mean?Report

              • Avatar Jaybird says:

                That it seems most likely that “the marketplace” would tend to give more weight to certain traits and less weight to others as a reaction to the colleges giving less weight to certain traits and more weight to certain others in an attempt to get back to the old signal:noise ratio.Report

              • Avatar Mike Schilling says:

                That is, they’d assume any black kid was an AA admission? People who tend to do that sort of thing already do.Report

              • Avatar Jaybird says:

                Is this likely to increase the number of people who tend to do that or decrease it (or keep it the same)? The degree to which they are inclined to let this sway their judgment… will this tend to increase, decrease, or stay the same?Report

              • Avatar Mike Schilling says:

                Since bigots tend not to let facts get in the way of a good hate, I’ll vote “the same”.Report

              • Avatar Jaybird says:

                You’re so Manichean.Report

    • Avatar Ryan Bonneville says:

      Employers are permitted to do almost anything they want as it is. I don’t know what you’re trying to prove here, other than you can write cute things.Report

  9. Avatar Ryan Bonneville says:

    I like that you start your post by quoting a bill that explicitly limits itself by reference to a section of the Constitution, then cite that section of the Constitution to show how the bill is unconstitutional.


    • Avatar Tim Kowal says:


      I probably should have mentioned that in the OP, though it is covered in PLF’s letter to Gov. Brown. In short, you can see what is encouraged in SB 185 is slightly different than what is prohibited in Prop 209. Despite the symbolic deference to “relevant case law,” the measure essentially attempts to pick a legal fight to change the relevant case law that currently interprets Prop 209’s mandate broadly.Report

      • Avatar Jason Kuznicki says:

        I usually admire PLF. Here they seem terribly exercised about a bill that can’t possibly have any effect.

        The constitutions of both the state and federal governments: You can’t discriminate at all.

        The bill: Discriminate as much as the constitutions allow.

        So… discriminate not at all? Why is this controversial?Report

        • Avatar NoPublic says:

          It shouldn’t be. What’s relevant is that inter alia you can now explicitly consider race etc. as long as such consideration does not reach the mark of “preferential treatment”. Before if you were trying to decide between two otherwise equal candidates you’d apparently have to flip a coin since you can’t consider anything else. I suspect they’re just codifying this so that they have legal cover for the inevitable watb suits.Report

        • Avatar Tim Kowal says:


          The Courts and Legislature frequently do battle on how broadly or narrowly to interpret a statute or constitutional provision. The angle here appears to be to pare back the “broad” construction given to Prop 209 (based on the judicial policy that if a statute is reasonably capable of interpretation consistent with the Constitution, “‘the statute will be given that meaning, rather than another in conflict with the Constitution’” (County of Madera v. Gendron, 59 Cal. 2d 798, 801 (1963)), and replace it with something more like the standard under the Fourteenth Amendment that permits racial discrimination.

          Will it work? It has to get Gov. Brown’s signature, then it has to be challenged in the courts, then who knows. I haven’t done much research on it, but I’d put my money on somewhat less than even odds and well above “can’t possibly have any effect.”Report

        • Avatar Chris says:

          The constitutions of both the state and federal governments: You can’t discriminate at all.

          The state constitution certainly seems to be saying that, but the federal constitution, at least according to the Supreme Court since at least ’89, says differently. That is, you can discriminate, you just have to pass strict scrutiny. Croson-related cases in particular end up in court constantly, and in general, the courts side with the state.Report

  10. Avatar Jesse Ewiak says:

    As soon as legacy admissions disappear, I’ll care about this.Report

    • Avatar Patrick Cahalan says:


      What if legacy admissions are less than 3%? Is that close enough?Report

      • Avatar Jesse Ewiak says:

        I’d make the argument that the amount of people who aren’t able to go to the college they want because of affirmative action being ‘discriminatory’ toward them is probably about the same as people who are barred from the college they want because the scion of a big donor graduated high school in the same year. There is no mass of white or Asian kids being barred from going to the school they want.Report

    • Avatar Will Truman says:

      You do realize that a goodly number of the whites hurt by affirmative action are not remotely helped by legacy admissions, right?Report

      • Avatar Jesse Ewiak says:

        To be blunt, as I said above, I think the number of whites (and Asians) ‘hurt’ by affirmative action is vastly overblown by those who want to attack affirmative action.Report

        • Avatar Jaybird says:

          Is the number of folks who receive help by affirmative action measurable?

          I mean, can we look at the folks who get in because of it and look at what happens to them X years later and see what’s up?

          If one happens to drop out with debt from a school that one would not have managed to be accepted to without these policies, should that be measured as harm done by these policies?

          Are there numbers that we could compare/contrast good done against harm done?Report

        • Avatar Will Truman says:

          To the extent that this is true, and that preferred college admissions don’t matter, then the degree to which minorities hurt by the abolition of affirmative action is rather marginal as well.

          I actually think that there is something to this, by the way. If you don’t get into the college of your choice, you simply go to the next one down on your list. It’s one of the reasons that I am not all that excitable on the subject of affirmative action more generally.

          Even so, legacy admissions are a very imperfect counter to affirmative action because it rests on the assumptions that whites and Asians are helped by one and hurt by the other, when the two are approached differently. One is expressly race-based. The other has race as being somewhat incidental to something else.Report

          • Avatar Jesse Ewiak says:

            I’m going to take a wild guess that legacy admissions doesn’t accurately reflect the demographics of even the whitest state in the Union. So, even if it isn’t directly race-based, it’s going to favor whites.

            My larger point on legacy admissions is that as conservatives talk about reverse discrimination, they never seem to remember to throw in, ‘they shouldn’t allow legacy admissions either.’ It’s the ole’ joke I’ve heard about Irving and Bill Kristol.Report

            • Avatar Will Truman says:

              Yes, but they *don’t treat all whites the same*. Or even remotely so. This is significant! Very significant! Preference for a Winklevoss doesn’t help a guy named Jespeczyk. Preference for minorities help minorities more generally.

              I know, I know, you dislike Republicans and therefore you can just dismiss all of their points out of hand. But it rings pretty hollow to people whose primary interest is not bashing Republicans.

              But a better comparison for legacy admissions are programs like Texas’ Top-10% program, which disproportionately favored minorities and people who went to minority schools. And which meets with a lot less visceral resistance among whites in general.Report

            • Avatar Dan says:

              how many public schools have legacy admissions? my impression is that only private schools. the Fourteenth Amendment only prohibits discrimination by governments not private institutions.Report

          • Avatar Will Truman says:

            I would add that the number of Asians going to the top California colleges is nothing short of astonishing. And quite possibly would not have occurred without the ending of affirmative action in that state. While I think for whites in California it may be a push*, for Asian Americans it seems to have had quite a large effect.

            * – I’ve read, and it makes sense to me, that if colleges are allowed to consider race that whites do okay because they’re still a “preferred” race due to the fact that they have higher participation rates and make more generous alumni. Asians, however, are (allegedly) much more stingy with their donations, don’t participate in general activities on campus (ie go to football games, join social clubs, etc.) and therefore are less desirable to universities. This matches my experiences in college in terms of participation.Report

        • Avatar Scott says:


          So you assume there is no problem with AA disadvantaging whites because to think otherwise might upset your world view? I can’t tell who is a legacy admission just by looking at peoples skin but I can sure tell who the AA admission is. I find it amusing that minorities scream about racism when it hurts them but want to see it codified into law when it helps them.Report

          • Avatar Chris says:

            I can’t tell who is a legacy admission just by looking at peoples skin but I can sure tell who the AA admission is.

            As I always say in reference to Bob, I prefer those who wear it on their sleeves.Report

          • Avatar Jesse Ewiak says:

            AA’s were disadvantaged in multiple ways for literally centuries. You (and I) are sitting upon so many tons of white privilege that we don’t realize. So, no, I don’t think giving a black kid an extra five points on his admission score is a bad thing, even though I’d also give the white kid five extra points over another white kid if his family is the first to go to college or he worked an average of 20 hours a week and still managed to get x GPA.

            Talking about reverse discrimination these days is like complaining about the guy who starts 30 yards behind you in a 100-yd dash a second head start.Report

          • Avatar Mike Schilling says:

            I can’t tell who is a legacy admission just by looking at peoples skin but I can sure tell who the AA admission is.

            Really? You can look at a black kid and instantly know his GPA and SAT scores?Report

            • Avatar Scott says:


              Assuming that you can read please read what I wrote before you twist it. I said the “AA admission”, which could be a black person but is not limited to them, last time I checked. Second, I didn’t mention grades but if you are an AA admission then by definition you didn’t have the grades to gain entrance on merit.Report

  11. Avatar Jesse Ewiak says:

    Also, as a side note and to show how silly the idea that the current status quo without AA is ‘unbiased’, riddle me this. Here’s two students.

    Student A lives in an upper-middle-class neighborhood, goes to a school with a dozen AP classes, attends SAT prep courses multiple times during a week, and as a result, gets a 2140 on their SAT and has a 4.2 GPA.

    On the other hand, Student B lives in a working class neighborhood, works 10-15 hours a week, and goes to a school with only 2 AP classes. As a result, they get a 1920 on their SAT and has a 3.7 GPA.

    Who deserves the admission spot?Report

    • Avatar Chris says:

      Neither. Their spot goes to the dude whose father paid for a wing of the chemical engineering building.Report

    • Avatar Scott says:


      Tell me which one is the left handed, mixed black/Latino lesbian and you will have the liberal’s choice.Report

    • Avatar Patrick Cahalan says:

      > Who deserves the admission spot?

      More useful answer:

      There is no way to tell from the information you’re providing.Report

      • Avatar Jesse Ewiak says:

        Actually, that’s sort of my point.

        But, if I make person A white and person B black, and person B gets in over person A, all of the sudden it’s reverse discrimination.Report

        • Avatar Patrick Cahalan says:

          > Actually, that’s sort of my point.

          Well, if the point is that “all signaling devices used as markers for college entrance are currently pretty dubious”, I’m on board with you, there.

          > But, if I make person A white and person
          > B black, and person B gets in over person
          > A, all of the sudden it’s reverse
          > discrimination.

          You realize that there’s a position to be staked out here that is credible, and isn’t “it’s reverse discrimination”, right?

          I can see someone saying, “All markers for admission have limited utility, so ‘deserves access to education’ is a bad assessment off of any of those markers, so adding another marker is probably a bad idea unless it’s actually a good marker.”

          I can also see someone saying, “All markers for admission have limited utility, so ‘deserves access to education’ is a bad assessment off of any of those markers, so adding another marker is probably doesn’t really matter, in the grand sense.”

          Either of those has more nuance than “Affirmative Action!” vs. “Reverse Racism!”Report

    • Avatar DensityDuck says:

      Player A has been participating in intramural sports since he was eight, has been shadowing coaches and studying football history for almost as long, has played in at least two competitive football leagues every year of his life, and acts as an assistant coach for the peewee teams at the local elementary school.

      Player B, whose parents didn’t have time to drive him all over the state to play football, had an afterschool job, and hadn’t even touched a football until high school, played exactly three competitive games in his life.

      Who deserves the football scholarship?Report

      • Avatar Tom Van Dyke says:

        Who deserves the football scholarship?

        Whichever one is 6’3″, 260 and runs a 4.5 in the 40. Perhaps another example would be more helpful.Report

      • Avatar Jesse Ewiak says:

        The difference is of course, football scholarships actually have definable characteristics. A good player from a crappy school will still get a scholarship even if his school is crappy if he puts up good stats.

        But, nice try.Report

        • Avatar DensityDuck says:

          So academic performance doesn’t have definable characteristics, then? The SAT is meaningless? (spare me the cynical nattering about test quality; the question is whether objective measure of academic performance is possible, not whether it’s currently being done well.)

          “Oh well I know lots of high scorers who failed!” Yes, does that mean that higher scorers are as likely to fail as lower scorers?

          “But the lower scorer’s performance is due to external factors and not their own innate ability!” Perhaps, but aren’t they starting from a lower baseline of knowledge and ability? The higher scorer might take four years of advanced classes. The lower scorer might take one year of remedial classes, one year of average-level classes, and two years of advanced classes. Who benefited more from the college education?

          “Well OBVIOUSLY the one who benefited more was the one who needed it more! ” Ah, so it’s No College Student Left Behind, then?Report

          • Avatar Patrick Cahalan says:

            > So academic performance doesn’t have
            > definable characteristics, then?

            It can. How well those definable characteristics map to your proxy measurement are a different issue.

            > The SAT is meaningless?

            As what? If you mean, “is it meaningless as an scholastic aptitude test?”, then no. If you mean, “is it a good predictor of future academic success?”, then oh, also no.

            > Yes, does that mean that higher scorers are
            > as likely to fail as lower scorers?

            Not precisely. Here is some baseline information. No single metric (GPA, class rank, SAT, rigor of classes taken) is very good. Aggregate measures are better, but still not very good.

            > Who benefited more from the college education?

            I guess that depends upon what you view as the purpose of college. If you think it ought to turn out engineers and other professionals, it sort of depends on what the two cases actually do after they graduate. If you think it ought to turn out at least decently educated voters, then you don’t really care about the guy who is succeeding already.

            If you think there’s an amalgam of purposes there, you’re probably coming down on “it depends”.Report

          • Avatar Jeff Wong says:

            Well, there is more to success in college and post-college than academic performance in high school. And even performance in high school is a different beast than college, where you don’t have parents there driving you to “succeed” and you need to make your own choices. Many students with overly involved parents end up majoring in something they hate. Cheating and mooching is rampant at UC Berkeley especially when you select from the population that values marks highly but haven’t learned efficient ways of managing themselves. Students driven by linear measures of success are going to be the ones bickering to turn the A into an A+ because they need it for med school. (for example)

            The number of students who experience a reversal of fortunes after entering university definitely exceeds the number of AA students. People who are used to being in the top quartile of the class are suddenly shocked. I know many of these people.

            Coming from an unsupportive background requires a person to develop their own sense of discipline. They might have more incentive to succeed and personal aspiration (as opposed to peer pressure).

            Your fictitious scenario is based on the supposition that someone unworthy is selected ahead of someone more worthy. Is a 3.5 GPA definitely better than a 3.4? And only counting 2 years of high school (not 9 or 12)? Well it certainly is, ceteris paribus. But rarely is that the case in real life.

            AA doesn’t make a large quantitative differences but makes large qualitative differences.Report

  12. Avatar Jakecollins says:

    Shorter tk: “the state can’t make me mix with the coloreds!”Report