Fair? Well… a response to “A Farewell to Affirmative Action”
(image via wwu.edu)
To read Margaret Schmidt’s blog post, “A Farewell to Affirmative Action,” click here.
Affirmative action can be a divisive topic, especially when university admissions programs use such policies as part of their decision-making process. Fittingly, the Cornell Law School Journal of Law and Public Policy Blog is an ideal forum to analyze affirmative action policies as its goal is to “foster[] debate and publish[] diverse viewpoints.” As such, I presumed that Margaret Schmidt’s recent post, “A Farewell to Affirmative Action”, was written from the standpoint of someone seriously engaged in considering the merits of affirmative action.
I was wrong.
Unfortunately, Ms. Schmidt used the blog to compose a piece devoid of legal analysis that over-simplified serious issues surrounding affirmative action in higher education. Indeed, throughout Ms. Schmidt’s post, she fails to cite the U.S. Constitution, the Equal Protection Clause, or the Fourteenth Amendment, and instead opts to make blatantly false assertions which reflect what the reader can only surmise is a personal opinion.
In her piece, Ms. Schmidt discussed Fisher v. University of Texas at Austin, a case considered before the Supreme Court of the United States on October 10, 2012. The Court’s decision will address whether the Equal Protection Clause permits the University of Texas at Austin to consider race as one factor in admissions decisions. I agree with Ms. Schmidt that soon the Court may find affirmative action policies to violate the Equal Protection Clause of the Fourteenth Amendment, but not because the Supreme Court of the United States rendered a “misguided decision” in prior affirmative actions cases. Rather, I believe that the Court may determine that student body diversity in higher education is not a compelling state interest that can justify the use of race in admission decisions. Judging from the content of her article, it would appear that Ms. Schmidt weighed both the merits of controversy and of substance for her piece, and clearly opted for controversy.
For example, Ms. Schmidt veers away from scholarly analysis and chooses to cast broad (and unsupported) assertions when she notes that “affirmative action policies do not accomplish any of the objectives furthered to justify them… [and that] they create an unfair situation for any individual who does not fit into the rigidly defined category of a ‘qualified minority candidate.’” [Emphasis added]. Beyond failing to support her claim, Ms. Schmidt fails to recognize the breadth of such an assertion when contrasted against such a narrow observation. Most notably, she takes issue with this “unfair situation” with respect to race, but fails to criticize policies that afford so-called “Legacy Candidates” the similar perceived advantage. Indeed, in 2009, Princeton admitted 9.2% of the applications submitted for admission, while they accepted 41.7% of alumni children applicants. Surely, Ms. Schmidt’s moral outrage should extend to such admission decisions as well.
It is disingenuous to say that affirmative action policies do not accomplish any of their objectives. A glance as the Amicus Curie briefs for the University of Texas in this case shows that there are many associations and organizations who find that such policies not only accomplish diversity objectives within schools but also greatly enhance educational and professional communities. Just within the legal community, the Law School Admissions Council believes that affirmative action “has been effective in facilitating optimal legal education, allowing law schools to account for numeric measures of certain cognitive skills along with many other applicant attributes, including race, in assembling a class that will maximize the educational experience of all students.”
Perhaps most disturbing is Ms. Schmidt’s analysis of remedial measures to address past discrimination. She notes that affirmative action benefits “people who have suffered absolutely no discrimination” and that “past discrimination definitely does not automatically influence their status today.” This is patently false and a gross generalization. Indeed there is a large body of literature that shows how racial discrimination affects educational attainment, mental and physical health outcomes, and socioeconomic status. Ms. Schmidt should know that students of color – regardless of socioeconomic status – still experience discrimination, even at Cornell University.
Ultimately, affirmative action policies in admission decisions will likely always draw both criticism and support, and I believe that there can and should be informed and sophisticated discourse surrounding such controversial topics. Disappointingly, Margaret Schmidt’s post did not provide for such a productive discussion, instead presenting the legal community with flawed commentary and void of support for inaccurate assertions. Instead, I will look forward to the Court’s opinion in the coming weeks.
so the next post will see an actual discussion on the merits, right?
This post is by far the most poorly written, inflammatory, and unprofessional thing I’ve read on here. Quasi-academic writing does not make a post professional or reasonable, and Ms. Marcelino should extend an apology to Ms. Schmidt (and to the staff of the JLPP) immediately.
First off, as a preliminary matter: when critiquing another writer, it is best to do so in a polite, or at least reasonable way. This post is far from polite or reasonable. This post is not a good counterpoint; this is whining bordering on ad hominem attacks. Ironically, this post reads exactly like “blatantly false assertions which reflect what the reader can only surmise [are] personal opinion[s].” I’m not sure who authorized this to be posted, but I’d be just as embarrassed as Ms. Marcelino should be if I put this on this website.
But maybe I’m being too general. Let’s do some analysis, shall we?
Here, Ms. Marcelino takes a single issue (legacy candidacy) and uses it to refute a distantly correlated, but not on-point, issue (affirmative action). Ms. Marcelino’s implication here is simple: if Ms. Schmidt wants to argue against affirmative action, she is affirmatively (pun intended) tasked with attacking all questionable admissions policies. This is, of course, ridiculous and excessive. Not only is there no indication that Ms. Schmidt supports legacy admissions, but there’s also nothing to indicate that, in writing a small article on affirmative action, that she took up the Herculean task of discussing all admissions processes.
While Ms. Marcelino is correct that Ms. Schmidt does not cite much to support her argument (not strictly an issue, as Ms. Marcelino fails to do so as well), this is a blog, not an academic publication. Though Ms. Marcelino tries to be clever and use numbers (which look like relevant statistics, though they are not, as I address above — they relate to legacy admissions, not affirmative action), both parties are utterly guilty of lacking in any studies. If Ms. Schmidt is guilty in any way, Ms. Marcelino is equally guilty, and both of them are going to some sort of academic jailhouse.
But hey, this is a blog. Both are at least vaguely excused from citing, I guess.
Here Ms. Marcelino has a point: arguably, affirmative action policies fulfill some objectives. Obviously, there are parties currently benefiting from affirmative action, and it doesn’t take a law student to argue their benefit is an objective of affirmative action. Even a drunkard could argue “Hey, someone is happy about it, so it is clearly an effective/good/worthy policy!”
Despite how easy this argument is to make, Ms. Marcelino doesn’t make it. Instead, she makes an easy mistake: she cites Amicus Curiae briefs as definitive “proof” that affirmative action works. Opinionated statements by the UoT and the LSAC do not constitute proof, nor do they even constitute reliable research: they are (by definition) arguments like any other. Their argumentation on the matter, while interesting and helpful, fails to prove that (1) there are objectives, (2) they are being met, or (3) that these objectives are being met in an efficient way that justifies the systematic harms that affirmative action may solve. They just show that two interested parties who have some experience in the matter may have reasons beyond personal preferences to believe that affirmative action works.
In other words, Ms. Marcelino catches Ms. Schmidt being too broad, and then counter-argues with some unpersuasive and obviously biased quotes.
Here’s where we’re meant to be shaken to the core, because Ms. Schmidt’s analysis is allegedly “disturbing.” I’m not sure what that means, other than that Ms. Marcelino likes to dramatize.
Here, Ms. Marcelino again fails to show evidence, though she does (correctly) refer to a “large body of literature” that indicates racial discrimination. This, of course, is largely true, though Ms. Marcelino fails to cite a single one of these sources for our convenience. I suppose we’re meant to Google them.
The problem here is that Ms. Marcelino fails to connect the need for affirmative action with current discrimination, nor does she address how affirmative action is a preferable (or even better-than-nothing) approach to discrimination.
Ms. Marcelino’s argumentation thus boils down to the following:
there's discrimination -> affirmative action is clearly necessaryWhereas one might rather prefer something more thoughtful and nuanced, such as:
there's discrimination -> it can be fixed by governmental and educational policies -> affirmative action is a preferable policy -> affirmative action is a superior policy to others because it promotes diversity more and externalizes less harm on society -> affirmative action is fulfilling these goals in modern society.That sounds complicated because it is. There is a reason arguments about affirmative action have been going on for a while — it’s a complicated issue with a huge number of factors and influences. Ms. Marcelino is not exactly providing a nuanced analysis of the issue, even in retort.
Also, if I was really trying to be a jerk here, I’d note that “attainmment” is spelled “attainment.” Didn’t I install a spell-checker on here?
Somewhat ironically, Ms. Marcelino calls for “informed and sophisticated” discourse after being neither informed nor sophisticated in attacking a fellow student. Her attack on “flawed commentary” constitutes flawed commentary, making her not only look childish, but oblivious.
But the worst part is the beginning:
Wow. Talk about arrogance. Rather than beginning this article in a nice, perhaps collegial way (“I’m going to provide some counter-points to help foster a debate…”), Ms. Marcelino begins by slapping Ms. Schmidt across the fact for effect. The sad thing is, Ms. Marcelino’s article is (at least in my nonprofessional opinion) much worse than Ms. Schmidt’s ever was, and yet somehow Ms. Marcelino feels the power to comment on the quality of Ms. Schmidt’s writing. Classy.
Long story short: Ms. Marcelino’s post makes her look bad, she makes the JLPP blog (and the JLPP generally) look bad, and she makes the Cornell Law School look bad. I’m embarrassed to have ever been a part of this.
Wow. Pot? Meet Kettle.
1) “Rather than beginning this article in a nice, perhaps collegial way (“I’m going to provide some counter-points to help foster a debate…”), Ms. Marcelino begins by slapping Ms. Schmidt across the fact for effect.”
Hoping the irony is not lost here, especially since this Kirk fellow starts his own piece with this collegial opening: “This post is by far the most poorly written, inflammatory, and unprofessional thing I’ve read on here.” Nice work, Kirk. You are officially a hypocrite. Solid.
2. If Kirk wishes to assume the post of Grammar Nazi, then he should learn to USE spell check and note that “face” is spelled f-a-c-e and not f-a-c-t. And buddy, from the nature of your response, I suspect you’ve never had to “really try” being a jerk. It probably happens naturally, especially when you’re the kind of person who’d use one spelling error as reason to cast aspersions about someone else’s writing ability.
For someone whose whole purpose for responding was presumably to criticize her for attacking another student, you do a fine job of doing just that yourself. You’ve no moral highground, pal. Such actions are hardly “polite and reasonable”.
3. I am praying that you are cognizant of how condescending your response was and even intended to lay it on thick in the hopes of antagonizing Ms. Marcelino. Her blog post would suggest to me that she has more dignity than to honor your response with a retort, if only because she understands the weak (and obvious) nature of your response. I’d be surprised if she did, as it would likely be a waste of her time.
Your response does not upset me or even provoke me. It just makes me sad. For you, Kirk.
I just wanted to point out that spelling errors happened even when Kirk was involved in the Blog. Spelling errors happen. I’ll be fixing this one for Ms. Marcelino right now.
“This post is by far the most poorly written, inflammatory, and unprofessional thing I’ve read on here. Quasi-academic writing does not make a post professional or reasonable, and Ms. Marcelino should extend an apology to Ms. Schmidt (and to the staff of the JLPP) immediately.”
What a joke.
Mr.Sigmon you are the one that clearly likes to dramatize, demanding an apology and saying ridiculous things about Ms. Marcelino’s article. You are guilty of many of the things you accuse Ms. Marcelino of doing. Ms. Schmidt has the right to speak her mind about her views on affirmative action. However, when you take an emotionally charged racial issue and you state your opinion without a lot of sound evidence to back up your argument, I believe you are open to scrutiny. This is especially true when your opinion can be refuted by common sense, for example when she claims that affirmative action policies do not accomplish any of their objectives. I would argue that an objective of affirmative action policies would be to increase the matriculation of minority students, which it is clearly doing. Additionally Mr. Sigmon, your critiques are biased and opinionated. You don’t like how Ms. Marcelino pointed out the issue of legacy candidacy to discuss the lack of quality in Ms. Schmidts article, but it could easily be argued that this is a good point. The main role of affirmative action in school is in the admissions process, and this is one of the few similar policies in the place that deals with the same thing. If you were asked to do a 12th grade report on affirmative action you would be expected to discuss these types of issues. In summation, your arguments are filled with hyperbole and bias.
If you need a citation to realize that racial discrimination exists, you have larger problems than Ms. Marcelino’s blog.
I’m sure you want to respond this but don’t bother; I will not waste my time reading it. I had enough trouble reading through your first response.
Oh and if I was really trying to be a jerk here, I’d note that you said Ms. Marcelino begins by slapping Ms. Schmidt across the fact for effect – did you mean face?
How did you get into law school? Oh, I bet your parents got you in…
Glad to see the typo is fixed! Make sure my auto-spellchecker is working on here, it should catch things like that in the future.
—
Javier,
Don’t take this personally. While I understand your first reaction to this is pretty bad (you seem to conflate me attacking her work with me attacking her personally), it appears you have nothing to say in regards to the quality of her work and the context in which it appears – the issue which I’m complaining about. I’ll agree I’m a jerk, but that doesn’t make me wrong, it just makes me a jerk. I’ll happily concede I’m a “hypocrite” (I like being mean, what can I say) and “condescending” if you’ll concede that Ms. Marcelino’s post is as inappropriate as I’m arguing it is.
Long story short: You aren’t going to hurt my feelings with your childish attacks on my character. If you are willing to discuss the core issue here — namely, the unprofessionalism of both her article and the act of putting it on this website — I’ll be glad to discuss it.
– Kirk
First of all, I would like to thank JLPP and its editors for making the decision not to shy away from covering controversial topics, as this one has proven to be. Both of the blog posts on affirmative action were well written and interesting. I agree that both posts would benefit from more empirical data and citations to past decisions. When dealing with affirmative action, it’s often hard to determine where facts end and opinions begin.
Just to clear the air, I will admit that I generally support affirmative action programs. America’s history of racial bias and discrimination have a continued negative impact on our society today, and Ms. Marcelino points to various sources which support this assertion. Opponents of affirmative action often argue that these programs support unconstitutional discrimination based on racial identity. However, this argument discounts the fact that most universities which consider race, sexual orientation, or gender in their admissions procedures consider the applicant’s identity as A factor, rather than as THE factor, in the admissions process. Why shouldn’t universities be able to consider race as one factor among many in admissions? Arguing the universities should be “colorblind” seems to ignore the fact that we, as people, are not.
I also agree with Ms. Marcelino’s point that Ms. Schmidt appears to have completely ignored the argument that universities have a compelling interest in attracting a diverse student body. Although it’s true that racial identity does not dictate everything about a person’s background, Ms. Schmidt seems to completely disregard it as one of many formative elements in a person’s identity. Having a diverse study body helps to promote understanding between different groups, but also empowers minority youth who themselves hope to pursue a degree in higher education one day. (See http://www.aaup.org/AAUP/issues/diversity/edben.htm)
Last, but perhaps most importantly, I would encourage all commenters to respect this forum as an opportunity to share our view points in a respectful and civilized (dare I saw “well cultured”) manner. Devolving to rude comments and insults serves no purpose in furthering this discussion, nor does it give any additional credibility to your points.
Jack,
I feel like I should respond, just to be fair to everyone here. I won’t do this too much, but I feel like it’s fair to back up the argument that I’m representing here. Oh, and it’s fun.
First off, everyone above is right, I mis-typed “fact” instead of “face.” Oh well, chalk it up to me looking at Facebook or something.
So let’s break your post down too!
I’ll concede I’m a jerk, but since I’m not arguing for or against affirmative action, I really don’t get sent to author-jail for not having cites. My proposition is and has always been that this article is inappropriate, unprofessional, and generally not a good step for the JLPP. I don’t exactly know what to cite for that, other than my opinion and the many other students who agree with me.
Absolutely. Except I’m not arguing about affirmative action, I’m arguing about the (inappropriate) tone and lack of professionalism by Ms. Marcelino. If you’ll read my post again, I really don’t get into affirmative action beyond indirectly addressing how complex it is.
I never actually stated that they don’t meet any of their objectives. I actually agree with you here. The problem is, independent of our mutual agreement, Ms. Marcelino poorly argues the point and instead spends the majority of the article attacking Ms. Schmidt. Again, the point here is Ms. Marcelino’s poor professionalism — a procedural issue, not a substantive one.
Had Ms. Marcelino actually argued her point rather than spend her time attacking Ms. Schmidt, I wouldn’t have an issue with her article whatsoever.
I guess I’m glad they aren’t boring. You’re probably inferring I agree with Ms. Schmidt though, which I have never stated.
Yes, both are involved in the admissions process and influence it to some degree, but Ms. Schmidt is simply talking about the one issue of affirmative action, and it’s ridiculous to expect her to cover every base in a short blog post with a word limit. If she was required, she would also be tasked with discussing racial biases in the SAT, racial biases regarding the prestige and location of a student’s highschool, and the like. The point is, Ms. Marcelino attacked Ms. Schmidt on the topic of affirmative action by using a barely related topic without directly addressing Ms. Schmidt’s point whatsoever, making Ms. Marcelino’s entire blog post read like an ad hominem attack.
What Ms. Marcelino should have done, pending she had been more polite (i.e. not a jerk like me), would have been to address the topic head-on, discuss arguments proffered by those in support of affirmative action (especially those currently in the briefs before the Court), and been polite enough to address the topic generally without textually crucifying Ms. Schmidt. Her failure to do this is precisely why I (and many others reading this) are offended by it.
This doesn’t mean that Ms. Marcelino could not have directly addressed the issue rather than aver to a tangential issue. Almost by definition, 12th graders are less laser-focused on an issue than law students. One would hope that the precision of Ms. Marcelino’s writing would exceed that of a hypothetical 12th grader after two(?) years of law school.
I clearly and explicitly agreed with Ms. Marcelino that discrimination exists. I’m pointing out Ms. Marcelino’s lack of sources to highlight the hypocritical way in which she attacks Ms. Schmidt for the same thing.
Aww…
You are full of it, Kirk. Keep on playing. I’m tired of sitting around here watching people put up these RIDICULOUS photos and caricatures. And you are telling me a typo is impolite? You, Ms. Schmidt, and all of these other crazed individuals can go and take this nonsense ELSEWHERE! RACISM IS REAL, and we are not in a place in our society where we can get rid of affirmative action! The act of Ms. Schmidt putting up these photos alone is a sign that ignorance is prevalent, even in an institution of higher education such as Cornell.
So Kirk, Mr. Federalist Society, keep your comments to yourself. This is pure craziness. Wait where are these photos by the way? Oh I forgot… Ms. Schmidt had to take them down because of her white guilt.
I would like to commend Ms. Marcelino for not only standing up for what she believes in, but for doing so in a well researched and reasoned way. Rather than simply stating her opinions, Ms. Marcelino actually had concrete facts and figures to back her opinion. In addressing such a sensitive matter I also believe that actual facts must be given. Furthermore, I believe Ms. Marcelino’s post was not inflammatory as it only addressed the points made in the previous article and did not mention other more controversial topics in the affirmative action debate such as the role of white privilege. Lastly, I would also like to thank Ms. Marcelino for not posting an offensive cartoons or depictions of people of color on her post, thank you for sensitivity.
Thank you for giving us a voice, Ms. Marcelino. Ms. Schmidt’s post and the pictures she attached to her writing offended many members of the Law School community, and we appreciate the fact that you took the time to respond. This is clearly a forum that fosters healthy discussions, and there is absolutely nothing unprofessional about presenting another point of view. I will not address the “critique” that seems to be the current focal point because I think it takes away from the real purpose of your post, which was to respond to an offensive piece of writing. Again, thank you.
I’d like to clarify one more thing in response to the comment by Chloe. The cartoons on Ms. Schmidt’s post were not taken down in response to “white guilt,” they were taken down voluntarily after she was told several people were deeply offended by them.