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Sotomayor, Gates And Race

Sotomayor and Gates share a habit of drawing dubious lessons about race from their own experiences.

Soon-to-be-Justice Sonia Sotomayor has called herself "a product of affirmative action" who was "accepted rather readily into Princeton" despite test scores that were lower than those of more privileged classmates due to "cultural biases built into testing."

Harvard professor Henry Louis Gates Jr., capitalizing on the avalanche of publicity he touched off by attributing to racism his July 16 arrest at his home by a white police officer, has declared that America is "racist" and "classist" and that "there haven't been fundamental structural changes in America.... The only black people who truly live in a post-racial world in America all live in a very nice house on 1600 Pennsylvania Avenue."


What Sotomayor and Gates share is a habit of drawing dubious lessons about race from their own experiences.

Sotomayor was right to praise the kind of "affirmative action" that may have helped her get into Princeton, and her admission was resoundingly vindicated by her stellar academic performance there. But she has been quite wrong to imply that what affirmative action has become -- a euphemism for giving blacks and Hispanics large preferences based solely on race over better-qualified and often less affluent whites and Asians -- is necessary to open opportunities for talented minorities today.

The young Sotomayor, raised in modest circumstances in the Bronx, N.Y., had shown special promise and drive by becoming valedictorian at a competitive Catholic school. And, by her own account, her test scores were not terribly "far off the mark" set by more privileged applicants from better schools.


In short, while Princeton's admissions office no doubt considered her ethnicity, she was an ideal candidate for the kind of class-based affirmative action that crusading liberal Justice William O. Douglas -- who saw race-based preferences as unconstitutional -- advocated for extraordinarily promising students of all races in his 1974 dissent in DeFunis v. Odegaard.

The case involved law school admissions. Douglas called for "evaluating an applicant's prior achievements in light of the barriers that he had to overcome" -- not his or her race. He explained:

"A black applicant who pulled himself out of the ghetto into a junior college may thereby demonstrate a level of motivation, perseverance, and ability that would lead a fair-minded admissions committee to conclude that he shows more promise for law study than the son of a rich alumnus who achieved better grades at Harvard. That applicant would be offered admission not because he is black, but because as an individual he has shown he has the potential [to excel].... Such a policy would not be limited to [racial minorities], although undoubtedly [they] may in practice be the principal beneficiaries of it. But a poor Appalachian white, or a second-generation Chinese in San Francisco, ... may demonstrate similar potential and thus be accorded favorable consideration."

Contrast Douglas's vision with the quota mentality displayed by Sotomayor's complaint in 2001, in one of her "wise Latina" speeches, that "we [Latinos] have only 10 out of 147 active [federal] Circuit Court judges and 30 out of 587 active District Court judges. Those numbers are grossly below our proportion of the population [emphasis in original text]."


Sotomayor ignored the fact that the talent pool for judicial appointments is not the general population but rather the population of lawyers with the experience and accomplishment to qualify. By that measure, Latinos were overrepresented in the federal judiciary, as Ed Whelan, head of the Ethics and Public Policy Center, has documented. "According to the ABA," he wrote, "in 2000 the percentage of lawyers who were 'Hispanic' was only 3.4 percent [and] the very numbers that Sotomayor complained about equate to 6.8 percent of federal Appellate judges ... and 5.1 percent of District judges."

Sotomayor similarly focused on raw racial numbers instead of applicants' job qualifications in her cryptic rejection last year of a reverse discrimination lawsuit by 18 white firefighters (including one Hispanic) who were denied promotions because blacks had not done well on a qualifying test.

Almost all selective colleges and graduate schools have long displayed a similar quota mentality in giving large preferences in admissions based solely on race to predominantly middle- and upper-class blacks and Hispanics.

These preferences are not justified by what Sotomayor called "cultural biases built into testing." To the contrary, as a predictive matter the SAT is biased in favor of blacks and Hispanics; studies show that on average they do worse in college than whites with the same SAT scores.

Pushing for more integration of our elite institutions is a worthy goal. But, as studies show, the racial preferences used by selective colleges today are so great as to bring in academically ill-prepared students, clustering most blacks in the bottom 10th of their classes (in GPA) and most Hispanics in the bottom quarter.

The same is true at selective law schools, with the result that fewer than half of blacks entering law school (compared with 80 percent of whites) ever pass the bar. Our racial preference system thus annually produces many thousands of minorities without usable degrees but saddled by enormous educational debts.

Meanwhile, the best black and Hispanic students are stigmatized by erroneous but widespread suspicions that they owe their positions to preferences.

While Sotomayor has ignored the downside of racial preferences, Gates sees racism where there may well be none and waves aside the unprecedented racial progress that led last year to the election of a black president.

To be sure, Gates was right to complain that he should not have been arrested merely for mouthing off to a cop, and that mistreatment of blacks by police (not to mention overly punitive drug laws) remains a major problem.

But he was quite wrong to stereotype and smear as racist Sgt. James Crowley, the arresting officer -- who, as Gates himself admitted in an interview with his daughter for the Daily Beast, "obviously... didn't know it was my home" and "was terrified that I could be dangerous to him." Crowley also turns out to have an impeccable record on race.

Gates was even more wrong to suggest in subsequent interviews that America -- in which systematic oppression of blacks was once pervasive -- has not fundamentally changed, as he told The Root, of which he is editor in chief.

As Gates's Harvard colleague Orlando Patterson, also an African-American, said in 1991: "America, while still flawed in its race relations... is now the least racist white-majority society in the world; has a better record of legal protection of minorities than any other society, white or black; [and] offers more opportunities to a greater number of black persons than any other society, including all those of Africa."

Indeed, Gates himself seems to understand this in his more lucid moments. "America is the greatest nation ever founded," he told the Daily Beast.

But in much of his rhetoric, Gates has emulated the countless other academics and politicians who encourage black people to blame whites for problems that no white person alive today did much to cause or has much power to fix. As professor Amy Wax, of the University of Pennsylvania Law School, has written in a penetrating new book, Race, Wrongs, and Remedies: "Although these problems can be traced to historical mistreatment [and] although discrimination still persists, [discrimination's] role in perpetuating black disadvantage is now minimal as compared with factors that lie within the control of blacks themselves.

"Behaviors such as low educational attainment, poor socialization and work habits, criminality, paternal abandonment, family disarray, and nonmarital childbearing now loom larger than overt exclusion as barriers to racial equality."

Gates stresses the shockingly high "percentage of black men in prison" -- while ignoring the shockingly high black crime rates that land them there. Gates stresses "the number of black children living near the poverty line" -- while ignoring the evidence that "patterns of conduct and thinking [by black parents] now have a far greater role in perpetuating inequality than the racism and bias that dominated in the past," as Wax explains.

Did conservative commentator Thomas Sowell exaggerate in writing that "academics who run black studies departments, as professor Henry Louis Gates does, ... have a vested interest in racial paranoia"? Well, consider the Duke lacrosse rape fraud, about which I co-authored a book. Eighty percent of Duke's African-American studies faculty (joined by many other humanities faculty) signed a statement implicitly accusing white Duke lacrosse players of rape and racism -- and stuck to their smear even after the students had been proven innocent of both accusations.

Gates also says, of course, that "race definitely played a role" in his arrest -- while ignoring the fact that countless white people have also been improperly arrested for mouthing off to cops. I happen to be one of them.

This article appears in the August 1, 2009 edition of National Journal Magazine.

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