The Racial Preference War At Yale

            Look no further than the federal Department of Justice’s accusation that Yale University engages in racial discrimination in its admissions policies if you want to understand the widening racial fault lines in American politics. And consider Yale’s response to the accusations as a sign of how far we are from justice and peace any time soon.
            After a two-year investigation of Yale’s admissions policies, federal investigators concluded that Yale intentionally discriminates against Asian and white applicants. Race, the investigators concluded, is “the determinative factor” in hundreds of admissions decisions each year. The Justice Department ordered the university to suspend the use of race in making admissions decisions

      “There is no such thing a nice form of race discrimination,” said Eric S. Dreiband, an assistant attorney general in the Justice Department’s civil rights division. “Unlawfully dividing Americans int racial and ethnic blocs fosters stereotypes, bitterness and division.”
            Yale’s response? A promise to keep on doing what drew the ire of the Justice Department. “At this unique moment in our history, when so much attention properly is being paid to issues of race, Yale will not waiver in its commitment to education a student body whose diversity is a mark of its excellence,” said Yale President, Peter Salovey.
            Yale will no doubt seek relief from the order in the courts. A similar case involving similar discriminatory practices at Harvard will be argued in federal appellate court next month.
            I side with the Justice Department on this one.
            Chief Justice John Roberts nailed it in a dissent written in 2014 involving the Seattle schools: “The only way to end discrimination on the basis of race is to stop discriminating on the basis of race.”
            To many, Robert’s words sound quaint. What about systemic racism? What about the “epidemic” of police shootings of men of color? What about “white privilege”? This has been a season of protest devoted to a “racial reckoning,” we’re told.
            I’ve attracted scorn for calling this narrative into question. When I asked whether we really needed another national holiday – Juneteenth – to reflect on the nation’s continuing struggle with racial justice, a “woke” white lawyer took exception. The legal press pounced. “I spoke up,” the social justice lawyer virtue-signaled. obliged with a story. It was enough for me to conclude the lawyer wasn’t worth referring cases to, and that would engage in race-pandering for click bait.
            There is no epidemic of police shootings of people of color. A handful of folks were shot in the most recent year for which there are statistics, and the majority of them were resisting arrest. The long arc of American history shows a growing commitment to racial justice: we started in slavery, moved to emancipation, eliminated Jim Crow, and enacted comprehensive civil rights laws. To suggest, as The New York Times does in its 1619 Project, that our history is an unbroken chain of racial injustice is not worthy of an undergraduate term paper. Shame on the Times.
            I am grateful to the Justice Department for calling out Yale’s use of race in distributing a scarce good – admission to the college. It sheds a useful light on what’s at stake in the new racial rhetoric wars.
            Consider the topic of marginal utility, perhaps the most illuminating of all concepts in economics. In a world of scarce resources, each choice made by consumers of services and in distribution of goods involves a weighing of costs and benefits. At the margin, we all evaluate what is important in the choices we make. Marginal utility means deciding what is the best use of a scarce resource the next time a choice has to be made about the resource.
            To conclude, as has Yale, and as has its president, Peter Salovey, that it is all right to discriminate against some folks so that others may benefit on account of skin color is to adopt a notion of just desserts based on group membership. Members of the classes white and Asian deserve less because members of the class black deserve more. In form, that is discrimination – it involves drawing distinctions between folks based on class-membership characteristics. (Never mind how those group ascriptions get made: Just how is Kamala Harris the promised African-American women? Her mother is from India, her father is from Jamaica. She’s a first-generation Caribbean-Indian-American who apparently descends from slave owners, at least on her father’s side.)
            Just how “diversity” is a mark of an entering class’s “excellence,” as Salovey would have it, is a mystery. Diversity is a demographic term that applies to the character of a group, not a moral term describing an individual. I can be excellent, but not diverse.
            What’s at work in the world just now is what C. Wright Mill’s called “the sociological imagination.” We’re all busily at work trying to situate ourselves in histories, narratives and cultures larger than ourselves. Wright thought it an error to judge a person simply on the autobiography; what’s need is context, and the social structures in which biographies unfold.
            I can’t quibble with Wright on that score. We each are born, educated and mature in a world not our choosing. But in making the world in which we choose to live and which we choose to bequeath to our children and grandchildren, we have choices to make.
            The DOJ v. Yale dispute makes the choices clear, and for that I am grateful.
            On Yale’s scale comes a commitment to a grand narrative in which the color of a person’s skin encodes them. To be dark is to be oppressed and entitled to a thumb on the scale the next time a scare resource is to be distributed. To be white is to have acquired a debt that must be paid through no fault of your own.
            I reject that narrative. The marginal cost of each interaction and transaction is supposed to me more costly for me because I'm white? How's that work?

            I represent individuals in crisis regardless of the color of their skin, their gender or their other idiosyncracies. In the market for goods and services, I no more owe you a discount, or free representation, on account of your accidents of birth than Yale owes you a point or two on your admission’s rating. The social justice wars brewing all around us are all about the next exchange, the next transaction.
            Or course race-based decisions spawn bitterness and hatred.
            Of course this country has a tragic past.
            And, moreoever, of course it is time to put an end to the use of race as a token of entitlement.
            The time to start doing so is now. The DOJ is right. Yale is wrong. Shame on Yale and on Peter Solvey, too. Do black lives matter? You bet. So do Asian lives and so do white lives.

Comments: (2)

  • Yale discrimination
    You are a wise man Mr.Pattis.I really respect you. Q.
    Posted on August 17, 2020 at 2:13 pm by Quentin Osiecki
  • Racial Preference War at Yale
    rarely do I disagree with you but on this topic I have to agree with Yale. Going back in time Yale was essentially a white university, then the government decided that affirmative action was the way to go. Recognizing we all have different circumstances, a racial quota system helps in attempting to realize the melting pot vision of America. I do not pretend to know what the proper mix should be, that is a job for admission officers. I like Asian people very much and have spent several years in Asia, but I do not want to see Yale 100% Asian.
    Posted on August 28, 2020 at 12:10 pm by Raymond Sitar

Add a Comment

Display with comment:
Won't show with comment:
What is 3 X 3?
*Comment must be approved and then will show on page.
© Norm Pattis is represented by Elite Lawyer Management, managing agents for Exceptional American Lawyers
Media & Speaker booking [hidden email]