SCOTUS: What Elizabeth Warren Teaches Us About Affirmative Action

Yesterday, in a case that will determine the fate of affirmative action in higher education, the Supreme Court heard Abigail Fisher’s challenge to race-base admissions at the University of Texas at Austin.  With the possible exception of the Fisher case, the most closely watched affirmative action controversy of 2012 has been the one in the high-profile Massachusetts Senate race, where Elizabeth Warren’s claim that she’s 1/32nd Cherokee has been the subject of national debate since April.

From the start, the blond, blue-eyed Warren had a lot of explaining to do about why she used such a tenuous claim to minority status to beat out other applicants for law school faculty positions at the University of Pennsylvania and Harvard in the 1980’s and 1990’s.  Then things got worse for Warren when she had to admit that even the distant Cherokee connection she claims has no verifiable basis in fact.

Several months from now, the Supreme Court will decide the Fisher case and inform us about the legal future of race-base admissions.  But the curious case of Elizabeth Warren’s Cherokee “heritage” already tells us much about the truth behind academe’s use of racial preferences. Here’s what we can learn:

Though the purported educational benefits of diversity are the legal defense for universities’ use of race, those benefits are not the real motivation behind race-based admissions and hiring in academe. Elizabeth Warren’s career demonstrates this point.  By her own admission, Warren had no connection to the Cherokee community when she applied to Penn and Harvard. Thus, it’s hard to imagine that either school thought she could provide their students with the benefits of diversity.  But neither school cared; checking the Native American box was enough to get the job.

As a leading American Indian newspaper points out, Warren has done nothing to reach out to Native Americans since securing the Penn and Harvard jobs. In her defense, neither school asked her to.  It’s enough that she checked the box.  

If the educational benefits of diversity were as compelling as Harvard, Penn, and other supporters of affirmative action argue in court, they would be angry that Elizabeth Warren contributed nothing to those benefits while occupying a minority faculty slot.  But they don’t seem the least bit upset.

In fact, if universities really cared about the educational benefits of diversity, they would be trying to achieve the broadest diversity possible.  Instead, schools give little weight to diversity factors other than race, and ideological diversity is downright discouraged.

The real motives behind racial preferences are politics and – in the words of Justice Clarence Thomas –"racial aesthetics." No self-respecting, liberal university wants to be caught by academic accreditors, racial interest groups, politicians, or fellow intellectual elites with its student body or faculty out of racial balance. Elizabeth Warren served that concern nicely.  As the Boston Herald reported, Warren was “touted by embattled Harvard Law School officials ... as proof of their faculty's diversity."

Political motives are everywhere you look in race-base admissions, starting with the University of Texas’s reintroduction of racial preferences despite its own glowing reports about the high levels of racial diversity and increased minority academic performance achieved under a race-neutral admissions system.  Nonetheless, Texas bowed to pressure from minority activists unhappy with any admissions system that doesn’t explicitly take race into account.  As a result, the school finds itself at the Supreme Court.

Politics also explains why admissions preferences are generally reserved for the most politically powerful – or noisiest – racial interest groups.  The race-base admissions system at the University of Michigan Law School that was the subject of the Supreme Court’s previous ruling on this issue gave preferences to both Puerto Ricans born in the U.S. and Mexicans, but not to other Hispanic applicants, who apparently lacked political clout.  Likewise for foreign students of all colors.  They add a great deal to campus diversity but lack political power and typically don’t get admissions preferences.

Because it’s all about aesthetics, schools have no interest in disproving minority status.  Indian tribes all have procedures that allow people to verify their Native American ancestry.  Elizabeth Warren never tried to confirm her claim of Cherokee ancestry and presumably neither Penn nor Harvard asked her to.

It’s a dirty little secret that you can check whatever racial box you want when applying to a university and school officials will never ask you for verification. If you check a non-white box, you are helping the school meet its diversity goals and it’s not going to punish you for that.

Perhaps the lack of verification is for the best.  Verification would require that school officials determine both how many “drops of minority blood” are required to be an authentic minority and whether individual applicants meet that standard.  That would be a particularly scary practice at state schools like the University of Texas, where the school is run by the government.

Let’s face it. Under race-base admissions and hiring, there are only two options – make racial cheating easy or count drops of minority blood.  Either way, Chief Justice Roberts had it right when he described race-based decision making as "a sordid business, this divvying us up by race."

Racial preferences in admissions and faculty hiring does nothing to increase overall racial diversity in higher education.  Elizabeth Warren was already a law school professor when she began listing herself as Cherokee in academic directories.  She did it because she wanted to teach at an elite law school and she succeeded, landing jobs at Penn then Harvard.  That’s great for Warren but not so good for diversity at the less prestigious schools she left behind.

The same is true for race-base admissions.  Large racial preferences at elite universities – the equivalent of 230 extra SAT points for blacks and 185 extra points for Hispanic applicants, according to Princeton researchers – does nothing more than shift minority students from less elite to more elite schools.  Not surprisingly, researchers have found that the use of large racial preferences by the top colleges reduces student diversity at second-tier schools.

Racial preferences primarily benefit upper and middle classes minorities, not disadvantaged minorities as advertised.  Again, Elizabeth Warren is exhibit number one. When she benefited from Native American preferences, Warren was a well-paid law professor, not a struggling American Indian learning to adjust to life away from a reservation.  For one thing, she was sophisticated enough to know the advantages and lack of any risks in claiming to be Cherokee.

Similarly, students from more sophisticated families know how to play the diversity and college admissions games.  That’s one of the reasons why 86% of black students at highly selective colleges are middle or upper-middle class, according to former Ivy League university presidents and affirmative action defenders William Bowen and Derek Bok.

Racial balancing in academe is a deeply cynical game.  Elizabeth Warren may be its most visible player nowadays, but this sordid game dates back at least a century to the quotas that limited the number of Jewish students at Ivy League universities. 

The justifications for race-base admissions propounded today by Bowen and Bok and other academic elites sound eerily similar to the justifications for Jewish admissions quotas in the early twentieth century.  Back then, Yale President Charles Seymour defended the quotas as vital if Yale was to remain “a truly national institution, representative of the country as a whole,” and as necessary to prevent both “distortion of the balanced character of the student body” and “prejudice against any minority or racial group.”

Almost a century later, “Asian Americans are the new Jews,” explains Daniel Golden in his book The Price of Admission. “The nonacademic admission criteria established to exclude Jews … are now used to deny Asians.” 

The excuses for discrimination have remained the same. Only the racial fashions have changed.  Let’s hope the Supreme Court uses the Texas case to vanquish those excuses.

Curt Levey is a constitutional law attorney and president of the Committee for Justice. While working at the Center for Individual Rights, Levey and his colleagues represented the plaintiffs in the University of Michigan affirmative action cases. He can be reached on Twitter at @Curt_Levey.


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