Elie Mystal’s latest take on affirmative action is really something

In the wake of the SCOTUS decision on affirmative action, Elie Mystal wrote a typicaly overheated piece titled “The Supreme Court Has Killed Affirmative Action. Mediocre Whites Can Rest Easier.” As I pointed out at the time, Mystal made some claims in that piece that were misleading. Specifically he claimed “California, which ended its affirmative action policies over 25 years ago, the studies show that, without affirmative action, Black enrollment plummets, Latino enrollment plummets, AAPI enrollment goes up a little bit, and whites flood the remaining opportunities.”

That claim is both false and misleading. As I pointed out at the time, the actual data direct from the UC system website shows that the year after the ban on affirmative action took place, the enrollment of blacks, Latinos, Asian Americans and whites dropped. In fact, the enrollment of whites dropped 6% that year from 40% to 34%. How is it possible for the enrollment of every major racial group to drop at the same time? Because the category labeled “unknown” shot up from 5% to 15% that year. Most likely, a lot of people simply declined to state their race.

So what Mystal wrote was false but it was also misleading in that he failed to point out that, as of today, the enrollment of black students is higher at every UC school except one (Berkeley) than it was in 1997 when affirmative action was still legal. So the situation he’s warning about, i.e. a future where black enrollment plummets and whites take up all the space, is not what has happened.

Anyway, yesterday Mystal wrote another piece about affirmative action titled ” The White Media Has Missed a Key Part of the Affirmative Action Ruling.” His argument is that since there’s no real enforcement mechanism in the ruling, the only way universities can demonstrate compliance is to show declining numbers of black students.

…the real upshot of the affirmative action ruling is this: Colleges and universities must now punish Black applicants by decreasing the enrollment of Black students, by any means necessary. That’s because the only way universities can show compliance with Roberts’s new rules is to show that they’ve decreased the number of Black kids they let into school. Anything less than that will likely trigger litigation from the white supremacists who have already promised to hunt down schools that admit too many Black people, as determined by their own white-makes-right accounting system.

…Again, the white media has made a big deal about the part of Roberts’s ruling where he says that colleges can still consider how race has affected an applicant (for instance, as described in a college essay), but they’ve ignored the last lines of his ruling where he specifically threatens schools that use those very essays to achieve racial diversity.

Roberts writes:

But, despite the dissent’s assertion to the contrary, universities may not simply establish through application essays or other means the regime we hold unlawful today…. “[W]hat cannot be done directly cannot be done indirectly. The Constitution deals with substance, not shadows,” and the prohibition against racial discrimination is “levelled at the thing, not the name.”… A benefit to a student who overcame racial discrimination, for example, must be tied to that student’s courage and determination. Or a benefit to a student whose heritage or culture motivated him or her to assume a leadership role or attain a particular goal must be tied to that student’s unique ability to contribute to the university.

I’s sho hopes Massa Roberts thinks I is a good Negro wit the determination to keeps learnin’ my letters at the fancy school.

The minstrel show line is Mystal mocking the idea that black applicants should be judged on their achievements and character rather than their skin color (where have I heard that idea before?), but of course that’s exactly the point of these essays. It’s a chance to write something personal about your life and experiences and what you’ve done that doesn’t necessarily come across in a test score or a transcript. And obviously those essays aren’t being judged by Justice Roberts but by admissions offices. The key here is that every student of every race is writing these same types of essays and being judged in exactly this same way. Asian, white and Latino students also have to demonstrate actual desirable qualities beyond skin color. What irritates Mystal is that black applicants no longer get a boost simply because the school can’t hit certain enrollment percentages without it. Judging black applicants the same way other applicants are judged isn’t punishing the black applicants, it’s basic fairness.

The other point here is that Mystal assumes the outcome here must be a decline in black admissions. He writes as if it will be necessary to hold black applicants back just to prove Harvard (for instance) is being fair. But that’s not the situation. We should expect black enrollment to drop initially because, for years, race has been used to increase enrollment where it would otherwise be down. Literally, if you stop giving one group an advantage the others don’t get, their numbers decline. A bit later, Mystal argues a kind of corollary to this.

It is worth noting that nothing in Roberts’s ruling or Miller’s posturing requires universities to increase enrollment of AAPI students, the students these white-wing forces used to accomplish their agenda. Roberts was unconcerned that enrollment for AAPI students at Harvard also remained in a tight band (around 18 to 20 percent) for a decade, and his ruling does not require universities to increase that number.

I don’t think this is a terribly impressive insight, i.e. a ruling against racial benefits for one group doesn’t include demands for racial benefits for another group. That would sort of defeat the point wouldn’t it? What Mystal is doing here is ignoring the obvious. If schools take their collective thumbs off the scales, Asian applicants are likely to benefit not because they are Asian but because they have disproportionately outstanding academic scores. No one has to demand they benefit in a court ruling because under a fair system they will benefit based on academic merit.

But as I showed above, there’s every reason to think those changes, which probably will happen initially, will be temporary. Schools will work around this the same way California’s UC system has over the past 25 years. In fact, there are reports that schools have already started discussing this before the decision was even announced. Because Mystal wasn’t honest about how things worked out in California, he’s still pretending the decline is permanent rather than temporary.

Going forward, it will be beneficial for some Black students—any whose test scores are less than exemplary—to pass as white or “other” on their college or graduate school applications. That’s because colleges and universities are now disincentivized from extending an offer to anybody they have to report as “Black,” for fear of being sued for admitting too many.

Again, he’s just wrong. Students involved know how the system works. Black students are eager to emphasize their race and Asian students are eager to minimize theirs because everyone involved knows how the playing field is slanted.

Nearly every college admissions tutoring job I took over the next few years would come with a version of the same behest. The Chinese and Korean kids wanted to know how to make their application materials seem less Chinese or Korean. The rich white kids wanted to know ways to seem less rich and less white. The Black kids wanted to make sure they came across as Black enough. Ditto for the Latino and Middle Eastern kids.

Seemingly everyone I interacted with as a tutor — white or brown, rich or poor, student or parent — believed that getting into an elite college required what I came to call racial gamification. For these students, the college admissions process had been reduced to performance art, in which they were tasked with either minimizing or maximizing their identity in exchange for the reward of a proverbial thick envelope from their dream school.

That’s the reality that existed prior to the court’s ruling. It will probably be close to the reality again in a few years once schools have come up with new, legal ways to achieve the same results.