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Why Aren’t There More Black Scientists? Lamar Alexander, Virginia Foxx and John Kline Can Help Remedy the Problem. (Part 2)

In my last blog post, I drew attention to my Wall Street Journal op-ed, Why Aren’t There More Black Scientists?, in which I urge Congress to put an end to efforts by accreditors to force colleges and universities to engage in race preferences (or in greater racial preferences than they would otherwise choose to). I particularly urge Lamar Alexander, Virginia Foxx and John Kline, the leaders in the re-authorization of the Higher Education Act, to action.  The reason for my proposal is simple:  Race-preferential admissions policies do more harm than good, especially for their intended beneficiaries.  See Gail Heriot, A Dubious Expediency:  How Race-Preferential Admissions Policies on Campus Hurt Minority Students (2015).

I believe that the my legislative proposal administers a relatively light touch to the problem.  No school would be prevented from engaging in race-preferential admissions if that’s what it wants to do.  But schools that don’t wish to (or wish to do somewhat less of it) would be freed from the pressure currently being exerted by accreditors.

That initial blog post gave more detailed information than the op-ed on exactly how medical schools are bullied by their accreditor—the Liaison Committee on Medical Education or “LCME”—into greater racial preferences.  In this post, I concentrate on law schools.

Like LCME, the Council of the American Bar Association’s Section on Legal Education and Admissions to the Bar (the “ABA”) requires law schools to demonstrate their commitment to diversity. Not long after Grutter v. Bollinger, 539 U.S. 306 (2003), the ABA ramped up its requirements for diversity, apparently in the mistaken belief that Grutter, empowered it to do so. These changes were a significant focus of discussion in a report by the U.S. Commission on Civil Rights. (See U.S. Commission on Civil Rights, Affirmative Action in American Law Schools at 90-137, 175-80 (2007)(“USCCR-AAALS Report”)).

In essence, the ABA enforces a “diversity cartel” among law schools, effectively insulating schools that give large preferences from competition on issues like bar passage rate with schools that would rather give smaller preferences or none at all.

The ABA is fully aware that the only way to comply with its standards is to give preferential treatment to students from under-represented minorities. In its amicus brief in Grutter, it told the Court that “[r]ace-[c]onscious [a]dmissions [a]re [e]ssential to [i]ncreasing [m]inority [r]epresentation in the [l]egal [s]ystem.” “[I]t is unquestionable,” the ABA wrote, “that the improvement in minority participation … has been achieved largely by the use of race-conscious admissions policies such as those under attack here.” Brief Amicus Curiae of the American Bar Association in Grutter v. Bollinger, No. 02-241 at 18-21 (filed February 19, 2003). Nine years later, it took the same position in its amicus curiae brief in Fisher I. Brief Amicus Curiae of the American Bar Association in Fisher v. Texas, No. 11-345 at 20-29 (filed August 13, 2012)(“Race-conscious admissions policies are essential to increasing minority representation in the legal profession”)(original in all capitals).

The ABA has not hesitated to overrule the educational judgment of the law schools it regulates. In 2006, for example, the Charleston School of Law unexpectedly failed to win accreditation from the ABA after a favorable recommendation from its Accreditation Committee. According to news reports, the ABA’s concerns focused in part on race. See James T. Hammond, Charleston School of Law: Fails to Win Accreditation So Students Can Take Bar, The State (Columbia, S.C.) (July 12, 2006). Final accreditation was not awarded until the dean had declared that “[w]hatever we have to do [to win accreditation], we’ll do it” and a new director of diversity was publicly announced. Id.; College Notes: Charleston Law Taps Diversity Director, The State (Columbia, S.C.) B3 (August 13, 2006). See also David Barnhizer, A Chilling Discourse, 50 St. Louis L. J. 361 (2006) (describing ABA influence on faculty diversity-hiring).

The case of George Mason University School of Law is particularly troubling. Its story began with the ABA’s site evaluation team visit in 2000. The site-evaluation team was unhappy that only 6.5 percent of entering day students and 9.5 percent of entering evening students were minorities. (USCCR-AAALS Report at 181)).

Nobody could argue that GMU’s problem was lack of outreach. Even the site evaluation report conceded that GMU had a “very active effort to recruit minorities.” Indeed, it described those efforts at length. It noted, however, that GMU had been “unwilling to engage in any significant preferential affirmative action admissions program.” Since most law schools were willing to admit minority students with dramatically lower academic credentials, GMU was at a recruitment disadvantage. (Id. at 182.)

GMU’s faculty members did not all have the same views on affirmative action. Some members considered even small admissions preferences to be morally repugnant; others believed they would hurt rather than help their intended beneficiaries. But some were willing to put a slight thumb on the scale in favor of African Americans and Hispanics. What set GMU apart from many laws schools was that a strong majority opposed the overwhelming preferential treatment commonly practiced elsewhere. The site-evaluation report noted its “serious concerns” with GMU’s policy. Id.

Over the next few years, the ABA repeatedly refused to renew GMU’s accreditation, citing its lack of a “significant preferential affirmative action program” and supposed lack of diversity. Back and forth the negotiations went. Although GMU could and did step up its already-extensive recruitment efforts, it was forced to back away from its opposition to significant preferential treatment. It was thus able to raise the proportion of minorities in its entering class to 10.98 percent in 2001 and 16.16 percent in 2002. Id. at 183.

None of this was enough. The ABA didn’t want slow, deliberate movement in its direction; it wanted utter capitulation. Shortly after the Court’s decision in Grutter, an emboldened ABA summoned the GMU president and the law school dean to appear before it personally and threatened the institution with revocation of its accreditation on account of its alleged diversity problem. GMU responded by further lowering minority admissions standards and expanding resources devoted to diversity, all in hopes of soothing the ABA’s wrath. As a result, 17.3 percent of its entering students were minority members in 2003 and 19 percent in 2004. USCCR-AAALS Report at 183.

Still the ABA was not satisfied. This time their focus was on African-American students specifically. “Of the 99 minority students in 2003, only 23 were African-American; of 111 minority students in 2004, the number of African Americans held at 23,” the ABA complained. It didn’t seem to matter that sixty-three African Americans had been offered admission or that the only way to admit more was to lower admissions standards to alarming levels. It didn’t even matter that many students admitted under those circumstances would incur heavy debt, but never graduate and pass the bar. GMU’s skepticism about racial preferences was heresy, and the ABA was determined to stamp it out. Id. at 184.

GMU finally got its re-accreditation after six long years of abuse—just in time for the next round in the seven-year re-accreditation process. Id. Sure enough, the ABA’s 2007 site evaluation team report again raised concerns that GMU was not in compliance with ABA diversity standards.

Meanwhile, an important question was not being asked: What happened to the minority students who were admitted in the first round against the GMU’s faculty’s better judgment? The ABA was apparently not so interested in that. The ABA was not making an educational judgment about pedagogy; it was preening itself in an effort to show its highly superficial concern for social justice.

But GMU’s dean, Daniel D. Polsby, was very interested in the fate of his students. In a letter dated January 3, 2008 to Hulet H. Askew, the ABA Consultant on Legal Education (the “Polsby Letter”), responding to the ABA’s 2007 site evaluation report, Dean Polsby patiently explained the damage inflicted by the ABA’s enforcement of diversity standards.

As the ABA failed to recognize, when students attend a school at which their entering academic credentials are well below those of their peers, they will usually earn grades to match. During the period from 2003 to 2005, while GMU was under pressure to increase its racial diversity, African-American students experienced dramatically higher rates of academic failure (defined in GMU’s academic rules as a GPA below 2.15). Fully 45% of African-American law students at GMU experienced academic failure as opposed to only 4% of students of other races.

Dean Polsby put the problem plainly: “We have an obligation to refrain from victimizing applicants, regardless of race or color, by admitting them to an educational program in which they appear likely to fail.” Polsby Letter at 14.

Part of the tragedy, of course, is that the empirical evidence (as explained in my article, A Dubious Expediency:  How Race-Preferential Admissions Policies on Campus Hurt Minority Students) indicates that many of these students would have stood a greater chance at success in their goal of becoming lawyers if they had attended a law school at which their entering academic credentials had been more like the median student’s. But the ABA prevented that.

Lamar Alexander, Virginia Foxx and John Kline can eliminate the damage being caused by such over-zealous accreditors.  I urge them to do exactly that.

Why Aren’t There More Black Scientists? Lamar Alexander, Virginia Foxx and John Kline Can Help Remedy the Problem.

In my Wall Street Journal op-ed tomorrow (Why Aren’t There More Black Scientists?), I urge Congress to prohibit accreditors from bullying colleges and universities into engaging in greater racial preferences than they would otherwise feel comfortable with. These preferences are hurting rather than helping African-American students to achieve. I particularly call on Lamar Alexander, Virginia Foxx and John Kline, who are the leaders in the re-authorization of the Higher Education Act, to act.  I think the best part of my proposal is that it uses a relatively light touch.  No college or university that wants to engage in race-preferential admissions would be prevented from doing so.  The only effect would be to prevent accreditors from forcing schools to go further than they feel appropriate.

I didn’t get much opportunity to detail how these federally-recognized accreditors function as enforcers of the higher education “diversity cartel.” Let me do that here:

In the academic world, accrediting agencies are frequently the most active enforcers of diversity. In the 1990s, fully 31% of law schools and 24% of medical schools admitted to political scientists Susan Welch and John Gruhl that they “felt pressure” “to take race into account in making admissions decisions” from “accreditation agencies.” (See Susan Welch & John Gruhl, Affirmative Action in Minority Enrollments in Medical School and Law School 80 (1998)).

When accreditors speak, the institutions they govern must listen. For example, the Council of the American Bar Association’s Section on Legal Education and Admissions to the Bar (“ABA”) and the Liaison Committee on Medical Education (“LCME”) are the U.S. Department of Education’s designated accreditation agencies for law schools and medical schools respectively. They get to decide whether a school will be eligible for federal funding, including funding for student loans. Effectively, these accreditors are the federal government.

Note that neither the ABA nor LCME is an academic institution itself. LCME, for example, describes itself as consisting of “medical educators and administrators, practicing physicians, public members and medical students.” See About the Liaison Committee on Medical Education (LCME), available at http://www.lcme.org/about.htm. More importantly, neither is an individual institution. If centralizing forces like the ABA and LCME are given their own “academic freedom,” they have the power to destroy the academic freedom of individual college and universities in those situations where academic freedom is truly appropriate.

There is considerable evidence that the pressure from accreditors to increase diversity is growing (and no evidence of which I am aware to the contrary). I recently conducted a round of state public records requests of state medical schools in cooperation with the California Association of Scholars and the National Association of Scholars. (I sit on the boards of both.) Out of the sixteen schools that have responded or partially responded, half have been cited for problems with diversity. At the University of Nevada Medical School at Reno, for example, the 2009 Survey Team found that “the numbers of students and faculty of diverse backgrounds have been consistently low,” and the 2012 Survey Team found the school to be “noncompliant” with diversity accreditation standards. (Ad Hoc Survey Team, Report of the Secretariat Fact-Finding Survey of the University of Nevada School of Medicine 4, 9 (April 1-3, 2012)).

Similarly, the 2009 Survey Team for Wright State University School of Medicine reported:

“Diversity of the student body has been somewhat problematic. There has been a steady decline in the number of African-American student applicants and students from 309 applicants in 2001 to 241 in 2007, and from 50 total African-American students in 2001 to 32 in 2007. At the same time there are no Hispanic students. The number of Asian students has increased ….”

(Ad Hoc Survey Team, Team Report of the Survey of Wright State University, Boonshoft School of Medicine 2-3 (Hopkins Letter), 38 (March 22-25 2009)).

As a result, the accreditor classified Wright State’s diversity as an area “of transition, whose outcome could affect the school’s ongoing compliance with accreditation standards.”

At the University of South Alabama College of Medicine, the accreditor named diversity as an area of “partial or substantial noncompliance,” finding that “[d]iversity among faculty and students has not increased notably in the past seven years.” (Ad Hoc Survey Team, Team Report of the Survey of University of South Alabama College of Medicine 2 (Moulton Letter) (September 26-29, 2010)).

You can bet that medical schools respond to such pressure by beefing up the level of preference given to under-represented minority students. They have to in order to stay in business. You can also bet that LCME representatives believe this is good for under-represented minority students. But as I explain in A Dubious Expediency: How Race-Preferential Admissions Policies on Campus Hurt Minority Students, the opposite is true. We would have more African-American physicians (and more African-American engineers, scientist, college professors and likely lawyers) if schools practiced race-neutral admissions policies.

If anything, the ABA has been even more aggressive in pushing schools toward greater (and more destructive) racial preferences. But I will demonstrate that in another blog post (coming soon).

NY Post: “Liberal Discipline Policies are Making Schools Less Safe”

The Commission on Civil Rights did a briefing and a report on the Department of Education’s discipline policy a couple of years ago. This article in the NYPost makes mention of some of the testimony we heard. My conclusions were in keeping with the headline from the NYPost article–“Liberal Discipline Policies are Making Schools Less Safe.” I would add that the effects are especially bad for minority students who are trying to learn amid the classroom disorder. Maintaining order in a classroom full of children or teenagers is never easy. But the Department of Education’s insistence that efforts to do so are racist just makes the job harder.

Problems that Are Off-Limits to Talk about Will Never Be Solved

Oh dear … shades of the Cultural Revolution were evident recently at UC Berkeley, where students took over the classroom of a professor who had the audacity to talk about the problem of black-on-black crime.  All that’s missing is the dunce cap that the Red Guard forced once Chinese academics to wear.  Here is an account written by someone who is apparently sympathetic to the takeover:

The “no business as usual” ethos of the Black Lives Matter movement has shut down highways, shopping malls, and government buildings, but last week that disruption occurred inside a classroom at UC Berkeley when students at the School of Social Welfare turned the tables on a professor they accuse of making racist remarks.

About 60 graduate students in the two-year social work program took control of Professor Steven Segal’s classroom on Tuesday, February 24, and held a “teach-in” on racism with Segal as their primary student. Jeffrey Edleson, the dean of the School of Social Welfare, was also present.

The article quotes a student leader of the takeover as saying, “We all experienced the emotional impact of your actions. We would not be here today if this did not really immensely impact pain on all of us.”  “We cannot stand by this institution that supports your beliefs and the beliefs that you’re teaching to this class. We refuse to let this class continue as usual.”  The article continues:

The students also hung a banner reading “School of Social Welfare: Striving to Maintain Oppression Since 1944” outside the School of Social Welfare’s building on campus.

Tuesday’s protest was planned in response to comments that Segal, a white tenured professor who has taught at Berkeley for more than 40 years, made at a Black Lives Matter event on February 9 and again in his classroom on February 10. According to Ariana Allensworth, an African American student in the program, Segal disturbed attendees at the event, which was co-planned by the school administration and student activists, by emphasizing the importance of “black on black crime” during a small group discussion and sharing a rap song he had written.

“He was saying things to the effect that black on black crime is part of the problem, and I think that a lot of students in the group were offended by what he was saying,” said Allensworth. “The focus of the event was on the Black Lives Matter movement, and it felt like he was decentering the conversation from that focus.”

Alas, problems that cannot be mentioned without offending someone are never solved.

The Administration’s proposed 31% budget increase for Ed Dept.’s Office for Civil Rights is ill-advised

Valerie Richardson writes in the Washington Times of our recent letter to Congressional leaders:

“Two federal civil-rights commissioners are calling on Congress to nix a proposed budget increase for the Department of Education’s Office for Civil Rights, charging it with enacting overreaching and even unlawful policies on school discipline, sexual harassment and bullying.

‘In our study of all three topics, we have noticed a disturbing pattern of disregard for the rule of law at OCR,’ said U.S. Commission on Civil Rights members Gail Heriot and Peter Kirsanow in a Feb. 26 letter to House and Senate Appropriations Committee leaders.

In the letter, which was released this week, the commissioners argue that the office’s proposed 31 percent budget increase should be rejected.

‘That office has all-too-often been willing to define perfectly legal conduct as unlawful,’ the letter said. ‘Though OCR may claim to be under-funded, its resources are stretched thin largely because it has so often chosen to address violations it has made up out of thin air. Increasing OCR’s budget would in effect reward the agency for frequently over-stepping the law.’

The commissioners, speaking for themselves and not the entire commission, cite the OCR’s efforts to expand federal authority on three fronts: school bullying at the K-12 level; school discipline that has a ‘disparate impact’ on minority students; and campus sexual harassment.”

Did American History’s Wrong Turn Toward Slavery Begin With Bacon’s Rebellion?

I’ve been writing about the Abolition Movement today. It made me think about why the American colonies started down the road toward slavery in the first place. It’s a question I can’t entirely answer, but at least I can shed a tiny bit of light on it. Of course, slavery was common in the world at that point. But there is more than that going on here …

The first thing that popped out to me in tracing the history of slavery in what became the Southern United States is that at no point was a choice made to use African slaves rather than free labor to work the fields. Free labor was not then a viable option–something that is easy to lose sight of. In the mid-seventeenth century, the large plantations that were being established in Virginia’s Tidewater area and the Carolina Low Country were tended mainly by indentured servants from England, Ireland, Scotland and Wales. Chattel slavery is, of course, quite different from indentured servitude, but one can see how the differences might not have been considered overwhelming at the time.

I’ve written before about indentured servants in the recent report of the U.S. Commission on Civil Rights on Human Trafficking. Somewhere between one half and two thirds of all white immigrants to the American colonies from the mid-seventeenth century to the Revolutionary War came as indentured servants–either voluntarily or as convicts. Convicts were only about 10% of the total number of indentured servants.

In Virginia, these seventeenth-century servants might serve three to seven years, and if they were lucky enough to survive the period of their indentures, they would often move further into the interior and establish small farms in the Piedmont areas. Chattel slavery of Africans was being practiced–even in the New England colonies—but it was not yet a major factor.

Life was tough for these indentured servants. But it is important to understand why the institution of indentured servitude filled a very real need at the time (and indeed in some parts of the globe continues to be a risky, but plausible way out for those mired in the worst of circumstances).

Consider, for example, my own situation: I am a law professor. If I ever lose that job, I would be unlikely to find another in the San Diego area where I live, so there is a good chance I would have to move. Fortunately for me, I have a little money in the bank to tide me over and finance my move, whether it is 1000 miles to Dallas or 8000 to Delhi. I am lucky.

My ancestors were not so lucky. They didn’t have money in the bank. Indeed, I can’t be sure they had even heard of a bank. But they had heard of the New World and they wanted to come. The problem of how to finance a long voyage from a land of poverty to a land of opportunity is an old one. The seventeenth century British Isles had a lot of willing workers, but not a lot of work or even food to eat. The American colonies were crying out for them. But the logistics of getting from Point A to Point B only seem easy to us because we are looking at them from a distance of hundreds of years. In reality, it required smart thinking and a willingness to take a risk. Who would pay for their passage? And who would pay for their food during the long passage? Where would they sleep before their first payment of wages? What would they eat? They didn’t have savings. Nor did they have easy access to credit.

One of the most logical ways for aspiring immigrants to get credit was to commit themselves to labor through a written indenture, which could be sold by a labor broker to the highest bidder upon arrival in the New World. Put differently, their best option was to become indentured servants. No Old World bank could take the risk of lending money to these would-be immigrants. There would be no way to assure its repayment once they got to America. The debtor could disappear into the interior, never to be located by the lender again. But while an Old World bank couldn’t take the risk, a seventeenth-century Virginia plantation owner in need of laborers could. In addition to providing room, board and work, he could keep a sharp eye on his investment. His neighbors had a stake in helping him do so, since they had indentured servants too. The system worked imperfectly, but well enough to bring a lot of people to America—many of them desperate refugees from famine and religious wars–who otherwise could not have gotten here.

No one should be under any illusion about the potential for abuse. Stories abound of seventeenth century Britons being kidnapped and thrown onto a ship headed for America. Some of the stories were likely true. And there were other problems too. In the seventeenth century, recruiters usually knew a good deal more about what life is going to be like in the New World than did the potential recruit. They therefore were in a position to mislead the recruit in order to persuade him to make the move. “The streets are paved with gold in the New World”—or so it was said. In addition, once the servant arrived at his destination, his employer had an incentive to squeeze as much work out of him as possible. Indeed, an employer who was also a slaveholder had good reason to assign an indentured servant to the more hazardous jobs, since the death of an indentured servant, particularly one whose indenture was about to expire, was less harmful financially to the employer than the death of a healthy slave.

But it is also important not to exaggerate the abuses. Dr. Russell Menard, professor of history at the University of Minnesota and a leading expert in the social and economic history of the North American colonies, has written: “Servants … could protest ill-treatment and receive a hearing in the courts. Cases in this period are few, but the provincial court seems to have taken seriously its obligation to enforce the terms of indentures and protect servants’ rights. No instances of serious mistreatment of servants appear in the [State of Maryland’s] records in the late 1630s and early 1640s. Servants were worked long and hard, but they were seldom abused.”

Chattel slavery of Africans might never have flourished as it did had it not been for the little-understood rebellion in 1676 led by Nathaniel Bacon against Virginia’s colonial Governor William Berkeley. The rebels had a lot of grievances, some possibly legitimate, others not so much. Among other things, they wanted lower taxes and a more aggressive policy toward the Indian tribes, whose territory their farms were often pressing against. The significant aspect of the rebellion for understanding the rise of chattel slavery was that Bacon’s followers included both indentured servants and the small farmers in the interior who had previously been indentured servants (and some members of more prosperous classes too).

According to some historians, once the rebellion was over, the potential for further unrest disturbed the large Tidewater landowners. They resolved to put a stop to future coalitions between their field workers and other poor whites by increasing the use of Africans as permanent slaves, rather than continuing to rely on indentured servants. It was a conscious effort to separate the interests of the plantation field workers and the poor white farmers to the west, and it worked beyond anyone’s wildest dreams. Shifting alliances among the three groups—plantation owners and their allies concentrated in the coastal areas, poor whites concentrated in the upland areas and African American slaves and their descendants—accounted for a good deal of the history of the Southern states well into the modern era.

Indentured servitude was too important to die out quickly, but its use declined over time. As it became more rare, the difference in status between hereditary African slaves and the rest of the population become more and more stark. The immorality of the institution became more and more obvious. By then, however, it was hard to uproot the peculiar institution.

The 338th anniversary of Bacon’s death, which was the beginning of the end of the rebellion, was this past Sunday.

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