Last week, we published an account of a new affirmative action program being considered at UALR’s Bowen Law School. We suggested that the Bowen proposal (“LEAP”) was almost certainly unconstitutional, given that LEAP seemed to create a special procedure for law school admissions that was available only to certain groups (for instance, “people of color”) and not to all applicants. Since then, two interesting things have happened:
First, 48 hours after our story was published, the Bowen faculty amended the LEAP proposal. The amended proposal eliminates all express mention of race; now it is limited only to “students historically underrepresented in law schools or [who] come from socially or economically disadvantaged backgrounds.” This change conceals LEAP’s constitutional problems, but I don’t think it eliminates them. (I will write more about this later, once the faculty considers the new proposal: a quick summary is that if the goal of the amendment is to change the optics of the affirmative action plan from “this is unconstitutional on its face” to “there is good reason to believe that this is unconstitutional,” that goal has been achieved.) After reading the amended proposal, I think it’s a reasonable inference that the buzz over Nic Horton’s original LEAP story helped motivate the amendment. (Advantage: The Arkansas Project!) Nic will probably write about the new proposal soon; it is scheduled to be considered at today’s Bowen faculty meeting.
Second, I think it is fair to say that the proposal has been misreported or misunderstood in an article in a national law blog, Above the Law – an analysis which, regrettably, Max Brantley mindlessly endorsed. The rest of this post responds to Elie Mystal’s post on Above the Law: if you’re not interested in how I disagree with Mystal, by all means stop reading.
In his post, Mystal explained that the issues swirling around affirmative action are often “complicated” and “subtle.” He said that when reporters write about affirmative action, they should “at least read the proposals first.” He asked: “Can we at least talk about the idea, as opposed to somebody’s incomplete understanding of the idea?” I agree with all of that. But Mystal so completely misrepresented both what has happened at Bowen as well as the subsequent news coverage of it that I find it hard to believe that he has followed his own counsel – namely, read texts before you write about them. Here are four ways in which Mystal got it wrong.
1. To explain Mystal’s first mistake, it’s necessary to discuss how LEAP would have worked. According to the LEAP proposal, it focuses on the admission of two types of law school applicants, namely “students of color and economically disadvantaged students.” Again, according to the LEAP proposal, it’s partially modeled on a program for undergraduates, which “provided a method of entry and retention to undergraduate education for students of color and economically disadvantaged students.”
As soon as I saw the three-page LEAP proposal, I started wondering about its constitutionality. If we want to assess LEAP’s constitutionality, one question we have to answer is: what’s the role of race in the admissions process? Mystal wrote that “when nominating students for this program, the admissions committee would take into account applicants from disadvantaged racial or economic backgrounds.” He then cut and pasted a block of text from the proposal which contains 11 application factors that LEAP will take into account, and claimed that this list will constitute “the proposed factors in being nominated for the program.”
But Mystal was wrong: he reproduced nearly 300 words from the LEAP document but apparently didn’t bother to read them. This is where Mystal made a mistake of interpretation or construction. The portion of the LEAP document that Mystal reproduced says nothing whatsoever about “focusing on the admission of students of color and economically disadvantaged students.” If the list of factors contained a 12th and 13th factor – for instance, “color” and economic “disadvantage” – then Mystal’s description might have some merit. (To put it another way, if “color” and “disadvantage” were just two of thirteen factors, the program would be easily constitutional.) Notably, these factors are absent from the list Mystal provides. There is no textual basis whatsoever for Mystal’s statement that the LEAP admissions committee will merely “take into account” the race and socioeconomic status. On the contrary, the proposal expressly states that LEAP is directed at (to repeat) “students of color and economically disadvantaged students.” That has to mean that there is some other test, in addition tothe eleven factors that Mystal lists, that shackles applicants who are lacking in both the “color” and economic “disadvantage” departments. Mystal simply misdescribed how LEAP would have to work.
2. Mystal claimed that it was a “failure in reporting” for journalists to suggest that LEAP discussions were “being pushed through ‘in secret.’ “ I can only respond that it is a “failure in reading” for Mystal to act as if the second half of The Daily Caller story Mystal’s criticizing never existed. The Daily Caller article Mystal referenced describes how AAI journalist Nic Horton contacted Dean Schwartz to ask when the meeting to discuss LEAP would take place. Schwartz responded by email: “I’m sorry, but you do not have a right to attend our faculty meetings. The faculty is not a governing board of the university. I allowed you to come to one meeting as a courtesy, You are not invited to the special meeting or any other meeting.” Notably, Schwartz had previously told Horton that the faculty meeting was public; it was only after Horton published his story that Schwartz adopted the position that the law school faculty was entitled to make governance decisions in secret. (Importantly, Bowen is a taxpayer-funded, public law school.) Schwartz’s attempt to bully Horton away from attending a faculty meeting to discuss admissions policies flouted both state law and Bowen’s rules. You know what another phrase for “attempting to conceal an open meeting from the public” is? That phrase is “attempting to push things through in secret.” I appreciate that Mystal says that he is “as big an advocate for law school transparency as you are likely to find”; frankly, Elie, I’ve seen bigger.
3. Mystal also made an additional, really basic mistake in reporting what the Daily Caller said about LEAP. According to Mystal, the Daily Caller claimed that “[The law school] would allow [disadvantaged minorities] to study a different curriculum and take different tests than other students pursuing the same studies.” Mystal misrepresented what the Daily Caller said here, which is that LEAP creates a different regime of tests and coursework for LEAP participants who are attempting to enter Bowen. Here. Mystal simply got confused about how LEAP would work and what the Daily Caller said about it; the only thing that Mystal succeeded in doing here was to demonstrate that he’s an unreliable witness. This is a demonstration of the power of the redactor: all you have to do is look at the Daily Caller piece in order to see that Mystal sloppily inserted new and incorrect language into his own brackets because he didn’t understand the referents of the words he edited out. Again, the LEAP proposal only covered its own participants, not law students; the Daily Caller got it right; Mystal got it wrong.
4. Mystal claimed that the LEAP proposal is “just an idea. An idea that was written down. An idea that could advance goals that you may or may not find important. Can we at least talk about the idea, as opposed to somebody’s incomplete understanding of the idea?” Sure, we can talk about the idea. But there is a more precise label for an idea which is written down, which is approved by policy-making government bodies, and which can bind us all. That label is “law.” That’s why LEAP became news: because the faculty was about to vote on LEAP, and (because the faculty is the final decision-making body) LEAP was about to become binding. I suppose all of law is, in some sense, “just an idea.” But if you believe that law is just as insubstantial as any other idea, I think you are missing the point. One reason that people respect and fear the law, to be blunt, is that even though it is “just an idea,” it has an immense power to push people around. I think it is a fair point for Mystal to make that we ought to avoid drawing conclusions about things before we know something about them (oh, the irony!), but Mystal’s rhetoric obscures the fact that the LEAP proposal was more than just an idea – the language of the original proposal was as developed and fleshed out before the vote as it was ever going to get.
To sum up: I tend to think that Mystal wrote all this stuff without thinking about it very much. Maybe that’s why he indulged in a bit of reflexive political bigotry when he sneeringly alluded to my views on the constitutionality of the original LEAP proposal – saying that he “doesn’t look to the opinions of Arkansas Republicans when trying to determine the legality of proposed affirmative action programs” – and then immediately demonstrated that his biases were unfounded by coming to exactly the same conclusion I did. The only opinion I expressed in the piece that Mystal criticized was that if race is a prerequisite for admission to the LEAP program, then its constitutionality is “difficult or impossible to defend” and “highly unlikely.” Here is what Mystal said, on just the same issue: “No, Dean, Schwartz, I don’t think it would be a good idea to PROHIBIT WHITE PEOPLE from being considered in this program. I think that would be unconstitutional and also freaking racist.” Mystal is more attuned to the opinions of Arkansas Republicans than he thinks; there may be hope for him yet.
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