Charles Krauthammer has a typically terrific column about the colossal reversal, the mother of all flip-flops, of President Obama saying repeatedly that he lacked the authority to impose provisions of the Dream Act by executive fiat and then … imposing the provisions of the Dream Act by executive fiat.
Among his points is the following:
With a single Homeland Security Department memo, the immigration laws no longer apply to 800,000 people. By what justification? Prosecutorial discretion, says Janet Napolitano.
This is utter nonsense. Prosecutorial discretion is the application on a case-by-case basis of considerations of extreme and extenuating circumstances. No one is going to deport, say, a 29-year-old illegal immigrant whose parents had just died in some ghastly accident and who is the sole support for a disabled younger sister and ailing granny. That’s what prosecutorial discretion is for. The Napolitano memo is nothing of the sort. It’s the unilateral creation of a new category of persons — a class of 800,000 — who, regardless of individual circumstance, are hereby exempt from current law so long as they meet certain biographic criteria.
This is not discretion. This is a fundamental rewriting of the law.
Remind you of anything? It should. The courts and the Civil Rights Act of 1991 instructed selective universities that they can’t do what they’d most like to do, accept the highest ranking applicants from separate, race-based applicant pools, a practice known as “race norming.” And then, adding insult to injury, the voters in several states have gone farther and instructed their universities that they may not give any preferences based on race.
In response, selective universities have created their own euphemistic equivalent of Obamian “prosecutorial discretion” — “holistic review.” No separate, race-based applicant pools. No (overt) points added for being black or Hispanic or subtracted for being Asian. Fortunately for the “diversifiers” most Asian applicants can be identified based on their names, blacks and Hispanics can identify themselves with personal essays chronicling their efforts to overcome racism or escape gangs in the barrio, and universities can develop fancy tools for identifying race without mentioning race, such as the College Board’s “Descriptor Plus” program developed in consultation with the University of Michigan.
As reported by the Michigan Review,
U-M admissions officials hope to use Descriptor Plus to analyze applicants in a more “holistic” fashion….
Descriptor Plus, at a cost of $15,000 per year, will analyze an applicant’s geographic location to place the student in a “cluster.” According to the College Board, they have segmented the entire U.S. population into 180,000 geographic “neighborhoods,” and placed each of these “neighborhoods” into one of 30 clusters, each with unique attributes. Among the included attributes are: mean SAT scores, average parental education levels, percentage of high school graduates entering college, and the percentage of students that are minorities. Using these collected attributes and clusters, U-M hopes preserve current minority enrollment levels while obeying the letters, if not the spirit, of Proposal 2 [which banned the consideration of race].
According to Teresa Sullivan, now the embattled ex-president (and, as this is written, perhaps the soon to be next president) of the University of Virginia but then the provost at the University of Michigan (and, as a sociologist specializing in labor force demography, probably involved in the development of Descriptor Plus), these demographic indicators are “applied in a holistic admissions evaluation” and “are not simple substitutes for race or ethnicity.”
Of course they are not “simple substitutes for race or ethnicity.” They are complex, expensive substitutes but, as Shika Dalmia has just pointed out in “Diversity Schemes,” just as clearly dedicated to the “flouting of voter will.”
“Holistic review,” in short, is very much like the “prosecutorial discretion” announced by President Obama. Like the Napolitano memo implementing it eviscerated by Krauthammer, it recognizes and rewards a “category of persons … who, regardless of individual circumstance, are hereby exempt from current law so long as they meet certain biographic criteria.”
At what point can those denied admission on this basis resort to a disparate impact suit? Seems like a reasonable application of DI.
Good question. And here’s a parallel one: if Richard Sander is right (and he is) that the “mismatch” of preferentially admitting blacks and Hispanics to schools where they are much less qualified than their peers does them serious harm (they cluster in the bottom of their classes, fail to graduate, fail to pass the bar, etc.), why shouldn’t those students sue the schools that admit them for disparate treatment discrimination?