"Sure, let’s have the whole 'is now a good time to go to law school?' debate again."

Teases David Lat linking to "To Apply or Not to Apply? That’s a Tough Question" in the WSJ Law Blog. Lat's implication that the very article he's linking to is not worth reading is, I think, apt.

Lat follows on with "Especially if you’re a minority, since white people are losing interest in law school," linking to The Am Law Daily's "'White Flight' Hits Nation's Law Schools," which I'd noticed yesterday and decided not to blog. Are white people losing interest in law school? There are some numbers and charts at the link, but plenty of white people still go to law school. My hypothesis would be that it's not "lack of interest" or "flight" but individuals with imperfect information assessing the risks and potential benefits.

Using the most recent U.S. News & World Report rankings—not because they measure prestige precisely but because they are widely known—it's clear that the bulk of the 6,528-person decline in white 1Ls occurred at lower-ranked schools.

So it seems that there's more of a tendency among white applicants to decide that in a soft job market, it's not worth getting a degree from a less prestigious school. Why should there be a racial difference in sensitivity about risk, awareness of prestige, and belief in the strength of the connection between your personal fate and the name of your school?

Arne Duncan would like people to stop talking about the time he said "white suburban moms."

The phrase was "clumsy," and he's sorry about letting it slip out. But why was it in there, capable of slipping out?

Former George W. Bush adviser Nicole Wallace asked Duncan if his comments were indicative of an Obama administration that views the nation through a lens of race.

“My point was when you dummy down standards, you’re lying to children. That affects all children, that affects all families … even in more affluent suburban areas, not just in the inner city,” Duncan said. 

So the point — and he fully intended to make it — is that he thinks white women in the suburbs deceive themselves imagining that urban black kids are the ones with the education problems.

When Nina Totenberg is calling affirmative action "racial preferences," affirmative action is in trouble.

Here's her report — at the NPR website — on yesterday's oral argument in a case she doesn't mention the name of but which I happen to know is Schuette v. Coalition to Defend Affirmative Action. This is the case where the people of Michigan — after the Supreme Court approved of the University of Michigan Law School's use of race in admissions — amended their constitution to require that the state "not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin." Another way to put that is to say: The state constitution bans affirmative action.

Under U.S. Supreme Court case law, affirmative action in university admissions does not violate the Equal Protection Clause of the U.S. Constitution when it is done in a way that is narrowly tailored to the compelling interest in the benefits of classroom diversity. In Schuette, the question is not whether the university can choose not to have a policy of affirmative action, but whether the policy against affirmative action can be put in the state constitution — where, as a political matter, it becomes difficult to change. The idea is: 1. The political process has been restructured along racial lines, and 2. That restructuring violates Equal Protection.

It's a difficult argument to make, since it sounds like choosing equality imposes inequality, but there are a couple old cases upon which to build. I just want to focus here on Totenberg's (perhaps) careless adoption of the state's characterization of affirmative action as "racial preferences." Boldface added:

Students seeking to enact or get rid of other preferences can lobby the regents, [the ACLU's Mark] Rosenbaum observed. But racial minorities cannot lobby for reinstatement of consideration of race in college and university admissions decisions. Moreover, he said, to get back their preferences, minority students would have to embark on a difficult and multimillion-dollar campaign to re-amend the state constitution in a state that is more than three-quarters white.

Also arguing against the referendum was lawyer Shanta Driver. Justice Stephen Breyer posed this hypothetical to her: Most cities have "a vast number of administrators" of all kinds of programs. Suppose an administrator of one project decides to adopt a racial preference, for a good reason, but then the city council votes to abolish that preference. Would that be unlawful?

"No," replied Driver. Breyer pressed on, asking "Where's the line?" How do you avoid giving every individual administrator the power "to decide on his own whether to use racial preferences without a possibility of a higher-up veto?"

So there's Justice Breyer saying it too. Perhaps Totenberg picked up the cue from him. It seems to me, if you want affirmative action to be accepted as important, good, and — as we say in legal doctrine — compelling, you don't want to encourage the habit of thinking of it as preferences, which seem to be special benefits that some people get because of their race. You want people to think in terms of taking into account all of the many factors that play a role in the university's practicing of a subtle art of composing a student body with a marvelously fine-textured, beneficial-to-all diversity.

If that way of thinking is lost, affirmative action is doomed.

"A Texas Christian University professor reached out in an e-mail to a group of students he deemed to be 'of color' to help them succeed in his class."

"But the move backfired with at least one student, who was insulted at being included for her perceived ethnicity."

The student said she doesn’t strongly identify as Hispanic, although her last name is of Hispanic origin and she is one-quarter Hispanic.... The student said she wondered what her friends would think, and posted it on Facebook, with the tag: “I straight up just got segregated by my own teacher. I'm 75 [percent] white.”

One friend said: "Wait is this a joke? Your professor is trying to have a study session for 'students of color' only?"... Yet another wrote: "But what if ur Hispanic yet u have a white sounding last name. U get left out?" The student responded: "yeah that's kind of my point. he just judged me by my last name."...

The teacher subsequently emailed that it was his policy to "participate in and contribute to the [university's] mission by being available to all students." He says he has "always been open to having review sessions with an entire class or with smaller groups of students without excluding others" and: "I do like to offer myself as a resource to students (particularly those of color) who may face challenges and become discouraged..."

"The worst forms of racial discrimination in this Nation have always been accompanied by straight-faced representations that discrimination helped minorities."

Justice Thomas, in today's opinion in Fisher v. University of Texas, likening affirmative action to slavery and segregation. ("Slaveholders argued that slavery was a 'positive good' that civilized blacks and elevated them in every dimension of life.... A century later, segregationists similarly asserted that segregation was not only benign, but good for black students.... Following in these inauspicious footsteps, the University would have us believe that its discrimination is likewise benign. I think the lesson of history is clear enough: Racial discrimination is never benign....")

"If you think that you can think about a thing inextricably attached to something else without thinking of the thing which it is attached to, then you have a legal mind."

Justice Ginsburg, quoting Professor Thomas Reed Powell, in today's opinion in Fisher v. University of Texas, mocking the notion of race-blind alternatives to affirmative action.

AND: What really distinguishes the legal mind is knowing whether you want 2 things to be the same or different and the skill and the nerve to say that they are. That is, it's not about what you think you are capable of thinking. It's about what you are willing and able to say. Powell is willing to deploy the dead metaphor inextricable attachment and to soothe you into thinking that you're better than other people — ugh, lawyers! — if you don't ask whether those 2 things really are inextricably attached.

The 2 things in today's context are: 1. taking race into account in admissions and 2. other admissions policies that would produce a racially diverse student body. 

The Supreme Court sends Fisher back to the lower court with instructions to take strict scrutiny much more seriously.

Here's the PDF of the opinion, which was 7-1. Instead of applying the "searching examination" of strict scrutiny...

... the Court of Appeals held petitioner could challenge only “whether [the University’s] decision to reintroduce race as a factor in admissions was made in good faith.” 631 F. 3d, at 236. And in considering such a challenge, the court would “presume the University acted in good faith” and place on petitioner the burden of rebutting that presumption. Id., at 231–232. The Court of Appeals held that to “second-guess the merits” of this aspect of the University’s decision was a task it was “ill-equipped to perform” and that it would attempt only to “ensure that [the University’s] decision to adopt a race-conscious ad- missions policy followed from [a process of] good faith consideration.” Id., at 231. The Court of Appeals thus concluded that “the narrow-tailoring inquiry—like the compelling-interest inquiry—is undertaken with a degree of deference to the Universit[y].” Id., at 232. Because “the efforts of the University have been studied, serious, and of high purpose,” the Court of Appeals held that the use of race in the admissions program fell within “a constitutionally protected zone of discretion.” Id., at 231.

IN THE COMMENTS: "Someone explain this to me like I'm ten, please and thank you." Okay. The Supreme Court has said that all race discrimination by the government — including well-intentioned, supposedly benign things like affirmative action — must be subjected to "strict scrutiny," which normally is said to require that the government have a "compelling interest" and that the discriminatory policy is "narrowly tailored" to serve that compelling interest. But in Grutter v. Bollinger, the narrow majority made it seem as though universities, if they used race as a factor in a holistic judgment about whom to admit, deserved some deference, and the Court of Appeals relied on that. Today, the Court seems to reject that reading of Grutter. Take into account that Fisher didn't ask for the Court to overrule Grutter, so that enterprise is pushed into the future. Also in the future, there's a pending case from Michigan about affirmative action. So the drama over affirmative action continues.

AND: Justice Ginsburg is the only dissenter, and she refers to her own dissenting opinion in Gratz. (Gratz was the companion case to Grutter. The majority upheld the University of Michigan Law School's "holistic" approach to affirmative action in Grutter but shot down the more mechanical methodology used in Gratz.)

I have said before and reiterate here that only an ostrich could regard the supposedly neutral alternatives as race unconscious. See Gratz, 539 U. S., at 303–304, n. 10 (dissenting opinion). As Justice Souter observed, the vaunted alternatives suffer from “the disadvantage of deliberate obfuscation.” Id., at 297–298 (dissenting opinion).

That is, forthright, transparent affirmative action is preferable.

It is race consciousness, not blindness to race, that drives such plans [as Texas's automatic admission of the top 10% in every high school].

In a footnote there, Ginsburg quotes a professor (Thomas Reed Powell): “If you think that you can think about a thing inextricably attached to something else without thinking of the thing which it is attached to, then you have a legal mind.” That is, only legalistic people think there's a way out of race consciousness.

MORE: Now, let's look at the concurring opinions. Justice Scalia has one short paragraph to underscore the fact the litigant in this case failed to ask the Court to overrule Grutter. He also joins the majority "in full." Justice Thomas has a much longer concurrence, which joins the majority but tips his hand: He's ready to overrule Grutter, and he wants to say "categorically" that a state may not use race at all in the admissions process.

Grutter was a radical departure from our strict-scrutiny precedents....

Attaining diversity for its own sake is a nonstarter....

[T]he educational benefits flowing from student body diversity — assuming they exist — hardly qualify as a compelling state interest....

There is no principled distinction between the University’s assertion that diversity yields educational benefits and the segregationists’ assertion that segregation yielded those same benefits....

The worst forms of racial discrimination in this Nation have always been accompanied by straight-faced representations that discrimination helped minorities.

Slaveholders argued that slavery was a “positive good” that civilized blacks and elevated them in every dimension of life....

A century later, segregationists similarly asserted that segregation was not only benign, but good for black students. They argued, for example, that separate schools protected black children from racist white students and teachers....

Following in these inauspicious footsteps, the University would have us believe that its discrimination is likewise benign. I think the lesson of history is clear enough: Racial discrimination is never benign....

Blacks and Hispanics admitted to the University as a result of racial discrimination are, on average, far less prepared than their white and Asian classmates....

Tellingly, neither the University nor any of the 73 amici briefs in support of racial discrimination has presented a shred of evidence that black and Hispanic students are able to close this substantial gap during their time at the University....

The University admits minorities who otherwise would have attended less selective colleges where they would have been more evenly matched....

Moreover, the University’s discrimination “stamp[s] [blacks and Hispanics] with a badge of inferiority.” Adarand, 515 U. S., at 241 (opinion of THOMAS, J.). It taints the accomplishments of all those who are admitted as a result of racial discrimination.

Here, Thomas quotes John McWhorter: "I was never able to be as proud of getting into Stanford as my classmates could be. . . . [H]ow much of an achievement can I truly say it was to have been a good enough black person to be admitted, while my colleagues had been considered good enough people to be admitted."

ALSO: Finally, let's focus on how Justice Kennedy — writing for everyone but Ginsburg and Kagan — pushed the Court of Appeals back on its understanding of Grutter:

According to Grutter, a university’s “educational judgment that such diversity is essential to its educational mission is one to which we defer.” 539 U. S., at 328.

There's that deference. It's about finding diversity "essential." That's "an academic judgment" and judges "some, but not complete" deference is "proper" under Grutter. The lower courts "were correct" about that deference. The question is whether Grutter was correct to accept diversity as a compelling interest for Equal Protection Clause strict scrutiny analysis. Kennedy cautions (as Grutter itself cautioned) that diversity isn't just another way to say racial balancing.

Is there deference in determining whether there's narrow tailoring?

[A] court can take account of a university’s experience and expertise in adopting or rejecting certain admissions processes. 

But, again, it's not complete deference. Grutter demanded "a careful judicial inquiry" into the  university’s "serious, good faith consideration of workable race-neutral alternatives." But the Court of Appeals only looked at "whether [the University’s] decision to reintroduce race as a factor in admissions was made in good faith." It spoke of presuming good faith at one point as it disparaged its own ability to figure out what admissions policies are needed.

Grutter did not hold that good faith would forgive an impermissible consideration of race....

So here the Court of Appeals misunderstood Grutter. The remand isn't to determine if Grutter should be overruled, but to try again, applying a less judicially restrained version of Grutter. The word "overrule" does not appear in Kennedy's opinion, only in the 2 concurring opinions. The closest Kennedy comes to talking about overruling Grutter is at page 9, in discussing diversity as a compelling interest:

There is disagreement about whether Grutter was consistent with the principles of equal protection in approving this compelling interest in diversity. See post, at 1 (SCALIA, J., concurring); post, at 4–5 (THOMAS, J., concurring); post, at 1–2 (GINSBURG, J., dissenting). But the parties here do not ask the Court to revisit that aspect of Grutter’s holding.

Revisit. A euphemism. Obviously, the nudge to ask what was not previously asked is sharp enough.

RIP, Alton T. Lemon — the Lemon of the Lemon test.

"Mr. Lemon’s lawsuit challenged a 1968 Pennsylvania law that reimbursed religious schools for some expenses, including teachers’ salaries and textbooks, so long as they related to instruction on secular subjects also taught in the public schools."

Chief Justice Warren E. Burger, writing for the court in Lemon v. Kurtzman, said the law violated the First Amendment’s prohibition of government establishment of religion.

The ruling set out what came to be known as the Lemon test, which requires courts to consider whether the challenged government practice has a secular purpose, whether its primary effect is to advance or inhibit religion, and whether it fosters excessive government entanglement with religion....

The lawyers for the plaintiffs put Mr. Lemon’s name first in the caption of the case.

That was no accident, Professor Laycock said. The case was decided against the backdrop of resistance to the desegregation of public schools, and the choice of Mr. Lemon, who was black, underscored the point.

Alton T. Lemon died on May 4th at the age of 84.

"I was expelled from Syracuse University for comments that I posted on Facebook."

"Syracuse University School of Education graduate student Matthew Werenczak was just trying to finish his masters degree early when he decided to take a summer course that involved tutoring at a local middle school..."

On the first day of Werenczak's tutoring program at Danforth Middle School, he and another Syracuse student were introduced to their students by a member of the Concerned Citizens Action Program (CCAP). They happened to be the only two white people in the room. Shortly after the introduction, in the presence of Werenczak and the other white student teacher, the CCAP member, who is black, said that he thought that the city schools should hire more teachers from historically black colleges.

"This [comment] offended me, as well as the other student teacher in the room," says Werenczak in FIRE's latest video. "It just seemed inappropriate considering that the two student teachers happened to be from Syracuse and a not a historically black college."

So Werenczak took to Facebook to write about the incident.

"Just making sure we're okay with racism," wrote Werenczak. "It's not enough I'm ... tutoring in the worst school in the city, I suppose I oughta be black or stay in my own side of town."

"I was kind of trying to see if my friends or other peers, classmates would have a similar reaction to what I had," says Werenczak about the reason for his posting the comment....

Via Instapundit.  Video at the links.

Race, education, and conspiracy theories swirling around a Madison School Board election.

This is complicated. Too complicated to begin to read as I'd originally presented the material. So I've changed the post title and written this paragraph to try to ease you into something that will seem very intra-Madison, but it has some big, general themes that outsiders should relate to.

The Cap Times tries to untangle things.

You don’t have to be a conspiracy theorist to figure out that the Bradley Foundation’s supposed functionary allegedly behind [Ananda] Mirilli’s candidacy is Kaleem Caire, CEO of the Urban League of Greater Madison and architect of 2011’s controversial Madison Preparatory Academy proposal for a charter school aimed at African-American children.



Caire proudly claims his stint of more than a decade ago as CEO of the Bradley-funded Black Alliance for Educational Options, which supports greater parental choice options to improve education, especially for students of color.

Mirilli told me her campaign [for a seat on the Madison school board] was haunted by the idea that she was pro-voucher and anti-union, even though she says she is doubtful of the efficacy of vouchers and was not recruited by Caire as the local grapevine seemed to have everyone convinced....

Mirilli, a Latina, adds that she was encouraged in her run by a trio of former School Board members who filled her in on what it requires. She was not convinced that Madison Prep was the answer to the district’s woes, she says, but stresses that Caire’s putting the achievement gap issue on the public agenda has been incredibly valuable.

“We have to talk about a racial analysis; when we are looking at a curriculum or a strategy or a program, we need to look at whether it is culturally specific to the group we are targeting,” Mirilli says.

So... a conspiracy theory was used to defeat Mirilli... or is this a conspiracy theory about a conspiracy theory? I'm glad the Cap Times is getting into the act — along with David Blaska — trying to figure out what is going on. Mirilli was defeated in the primary, and one of the 2 winners — Sarah Manski — withdrew 2 days later, leaving us with only one live candidate on the ballot. Mirilli's name can still be written in.

Mirilli says she's not going to do a write-in campaign, but she hasn't said she won't serve if elected. I'm voting in that election, which is the same one with the Wisconsin Supreme Court race, and I can't figure out anything to do other than to write in Mirilli.

I'm sorry if this is a little too intra-Madison for most of my readers, but perhaps you will take some interest in the topics of school vouchers (which Governor Walker has proposed expanding to include Madison) and charter schools (you may remember my posts about Kaleem Caire's Madison Prep, which was voted down by the Madison school board in 2011).

"American Diversity" class insufficiently heartwarming for some Wisconsin parents.

Daily Mail brings news of a local high school where kids were taught that "minorities had historically been oppressed by white people."

According to handouts..., 'white privilege' in the class was defined as a 'set of advantages that are believed to be enjoyed by white people beyond those commonly experienced by non-white people in the same social, political, and economic spaces...'....

[One] parent became alarmed after seeing the handouts provided to her 18-year-old son... “I felt it was indoctrination,” she said. “This is a radical left agenda and ideology that is now embedded in our school.”

I hate the use of schools for to indoctrinate children, but what exactly is the problem here? The students should be taught American history, and racial oppression is a big part of telling the story fairly and accurately. Maybe the name of the class — "American Diversity" — is misleading, in that it suggests a happy rainbow. That said, I'm not surprised to see parents fretting that the teachers are doing political indoctrination. I understand and share this mistrust.

"I haven't been a black conservative since 1995..."

Glenn Loury talks about people he's known for 40 years who won't say hello, who won't look him in the eye because he USED TO BE a black conservative. USED TO BE! John McWhorter talks about those who think "it would be wrong to even print my name. They think of me as Satan. And that's just how it's been."



Much later in the diavlog, Loury and McWhorter weigh in on the affirmative action case that's pending in the Supreme Court. "Would you think it was a good thing if the Supreme Court outlawed racial preferences as we knew them?" McWhorter takes the "not nuanced" position that racial preferences should be proclaimed "obsolete." (Loury disagrees.)

Madison loses $4.9 million in state aid to schools as Madison kids opt to attend schools in other districts.

The state has an open enrollment policy, so you don't have to go to school in the district where you reside. You'd think students from outside of Madison would choose to enroll here. (Good lord! What property taxes we pay here! I just wrote a check for nearly $15,000.) Why is Madison a school district to flee — as more than 1,041 students have?

... Madison lost the equivalent of 3.8 percent of its student population to other public schools, not counting those who transferred into the district....

According to the district report, those leaving Madison are disproportionately white and largely come from attendance areas that border other suburban school districts. About 70 percent of students leaving are white; about 45 percent of the district population is white....

For years the district blocked many student transfer requests to preserve racial balance at schools. The School Board ended the practice in February 2008 in response to a federal court ruling. Transfers out have steadily increased since then.

A 2009 survey of families opting to leave the district found that more than 60 percent mentioned "environmental issues" related to safety, drugs, alcohol and bullying in the schools....

In Madison. Can you figure that out?

ADDED: White flight, Madison style.