Affirmative Inaction

Donald Trump figured it out. Americans are not a nice people, and they’re proud of that. No one is going to push us around anymore. It’s time we stopped being nice to people and decided to be the bullies, because being nice only gets us killed. Respect others and they’ll walk all over you, or stab you in the back – that’s what being politically correct does for you. They’ll think they matter, and they don’t, and it’s time to be realistic. Those folks pouring in across our southern border, or who used to pour in, before our economy fell apart, really are rapists and murderers and drug dealers, and those Black Lives Matter folks only want to kill heroic white cops, the good guys, and those gay folks do want to molest our children and turn them into flaming queers, and every one of all these people wants free stuff from the rest of us, who do all the work. And of course all Muslims want us dead, now – so this is not the time to be nice to anyone. Maybe it’s time to buy a gun, or actually a fourth or fifth gun.

That may or may not be a minority view – there are always angry cranks out there – but Trump seems to be betting that’s how a whole lot of people feel. Being polite and respectful, and showing others what is called common decency, is for suckers, or for the French – although spend enough time in France and you’ll discover that the French are exceedingly formal. That’s not the same thing as being polite. Sometimes it’s the opposite. The French seem to have perfected the art of subtle but outwardly polite devastating ridicule – you realize what hit you the next day – not that it matters. Americans insult you to your face, or should. We don’t mess around, and we don’t take shit from anybody. We’re Americans.

Donald Trump is betting on that, and his bet is paying off:

Republican presidential frontrunner Donald Trump’s recent proposal to ban all Muslims from entering the U.S. has far from hurt his poll numbers; in fact, a poll released Wednesday found that almost two-thirds of GOP primary voters back the widely-condemned plan.

In a new Bloomberg Politics/Purple Strategies poll, 37 percent of all likely general election voters said they support Trump’s plan while 65 percent of likely Republican primary voters said they back the ban.

And there’s this:

Support for the controversial proposal remained nearly unchanged after those surveyed were presented with more information about the plan, including the statement “it will make our country less safe by alienating the allies we need to fight ISIS.”

Who cares if this makes us less safe? These people need to be put in their place, although there’s this:

“We believe these numbers are made up of some people who are truly expressing religious bigotry and others who are fearful about terrorism and are willing to do anything they think might make us safer,” Doug Usher, leader of Purple Strategies’ research arm, said of the results.

But Doug Usher doesn’t know – that’s a guess – so this may just be folks tired of being nice about everything, but not all folks:

Trump’s anti-Muslim plan makes 18 percent of all general election voters more likely to vote for the real estate mogul, Bloomberg reported. Thirty-three percent of voters said they were less likely to back Trump after the plan, while 44 percent reported the proposal has no impact on their vote.

Still, eighteen percent is a considerable number, and Kevin Drum is puzzled:

I don’t really know what to say about this. On 9/11, nineteen Muslim terrorists killed 3,000 Americans and destroyed two skyscrapers. There was an enormous thirst for revenge, and eventually George Bush used this to send us to war in Iraq. But even at the height of the fear, there was never any call to ban Muslim immigration.

This year, 14 people are killed by a couple of deranged Muslims with no real ties to international terrorism, and two-thirds of Republicans are in favor of banning all Muslims from the country. So what’s happened over the past decade?

Multiple things, I suppose. This is an election year, and 2001 wasn’t. In addition to the San Bernardino shooting, there have been several overseas attacks and a huge tide of refugees coming from Syria. Republican voters have been driven crazy by Barack Obama, who they’ve been told repeatedly is all but a Muslim mole. Finally, in 2001 a Republican president spoke pretty firmly against anti-Muslim bigotry. No one on the Republican side is doing that now.

That’ll do it, along with this:

And of course, there’s Donald Trump. Is he cause or effect? A bit of both, I think. In any case, it’s increasingly clear why Trump isn’t paying a price for what he says: It’s because most Republicans like it.

They’d rather not be nice, and Trump is their man:

While defending Donald Trump’s proposed ban on Muslims visiting the United States during a debate with CNN’s S.E. Cupp, Trump spokeswoman Katrina Pierson dismissed Cupp’s assertion that a ban on all Muslims goes too far. Pierson told CNN that Trump’s plan is “nothing new” because U.S. law already prevents individuals from nations hostile to the U.S. from entering the country. Cupp disagreed.

“There really is something new to the idea of banning an entire religious group from entering the country,” Cupp said in response. “Peddling this un-conservative, un-American, unconstitutional garbage has got to stop.”

Pierson countered by saying that “never in United States history have we allowed insurgents to come across these borders.”

“No one’s talking about allowing insurgents,” Cupp hit back. “You’re talking about not allowing regular Muslims. That’s what you’re talking about.”

“Yes, from Arab nations,” Pierson replied. “You know what? So what? They’re Muslim.”

And that settles that, or so Pierson thought, and Steve Benen sees something new here:

Jeb Bush told MSNBC’s Chuck Todd yesterday that the Trump campaign is relying on “dog-whistle proposals to prey on people’s fears.”

That’s half-right – Trump is clearly preying on people’s fears, but these aren’t “dog-whistle proposals” – they’re the exact opposite. The whole point of dog-whistle politics is subtlety and coded language. Trump’s racism, however, is explicit and overt. “So what? They’re Muslim?” That’s less of a dog whistle and more of a bullhorn.

Kevin Drum adds this:

Even Jesse Helms felt it necessary to talk about the “bloc vote” – wink, wink, nudge, nudge. In other contexts, candidates will use phrases familiar to evangelicals, or terms of art specific to deep knowledge of the Israeli-Palestinian conflict, or academese with a very specific meaning only to those in the know. Trump isn’t bothering with any of that. He thinks Muslims are all potential terrorists and he’s saying it just as loudly and as clearly as he can.

And guess what? It turns out that maybe you don’t need dog whistles after all. Republicans don’t need them because their base turns out to be pretty tolerant of outright bigotry.

Drum isn’t happy:

We should all hail our new era of two-fisted politics. Finally, we can just say all the stuff we’ve been holding back for so long. Doesn’t that sound great?

Yeah, right – now two-fisted politics includes four Trump supporters beating the crap out of a Black Lives Matter protester, and spitting on him, and Trump saying that maybe the guy deserved to be roughed up, for being disrespectful to Donald Trump. Muslim-Americans had better be careful in line at Starbucks or wherever. Some sort of permission has been granted. Real Americans are not a nice people, and they want you to know that.

This permission has now reached the Supreme Court, and this has nothing to do with Donald Trump. The issue is Affirmative Action:

An affirmative action plan at the University of Texas seemed to be in trouble at the Supreme Court on Wednesday. By the end of an unusually long and tense argument, a majority of the justices appeared unpersuaded that the plan was constitutional.

A ruling against the university could imperil affirmative action at colleges and universities around the nation.

In a remark that drew muted gasps in the courtroom, Justice Antonin Scalia said that minority students with inferior academic credentials may be better off at “a less advanced school, a slower-track school where they do well.”

“I don’t think it stands to reason that it’s a good thing for the University of Texas to admit as many blacks as possible,” he added.

He seems to be saying that these black kids just can’t cut it – you know how “they” are – so let them go to crappy schools, where they might actually do well. But the Los Angeles Times’ Michael McGough says it’s more complicated than that:

This is the “mismatch” theory, which holds that some minority students admitted to highly competitive universities fare worse there academically than they would have at less selective institutions. The argument is propounded in a book titled Mismatch by Richard H. Sander, a UCLA law professor, and the journalist Stuart Taylor Jr. (Their view is summarized here.) Sander also submitted a friend-of-the-court brief in the Texas case.

To put it mildly, the mismatch theory is controversial. In his excellent book For Discrimination (a defense of affirmative action), Harvard Law School professor Randall Kennedy approvingly cites academics who say that the theory underestimates the advantages minority applicants receive from attending highly competitive schools even if they earn lower grades than their classmates. (Michael Kinsley made the same point in a characteristically pithy op-ed column.)

What isn’t controversial – even among supporters of racial preferences – is that there would be fewer minority students at top-tier institutions if admissions programs didn’t treat race as what the Supreme Court has called a “plus” factor. In other words, black students often come to such campuses with lower SAT scores and grades than their white classmates.

You may not want to follow all those links, but McGough essentially argues that Scalia was being only half-racist here. There is evidence some of these kids will struggle – so he was being intentionally provocative, implicitly mocking the politically correct who would never even imply that black kids are inherently a bit dim and useless. He’ll imply that. That’s the brave American thing to do these days. Like Donald Trump, he figured that out.

Slate’s Dahlia Lithwick puts it this way:

If we had hoped that the Supreme Court would model a civil, respectful discussion about race in oral arguments Wednesday in its second kick at Fisher v. University of Texas – the case testing UT’s affirmative action policy – the results were mixed. While the general tone was thoughtful and nuanced, the morning ended with Justice Antonin Scalia suggesting that perhaps black students would prefer to attend “less advanced, slower-track” schools where they might feel less challenged, and Bert Rein, who represents plaintiff Abigail Fisher in the appeal, all but shouting at Justice Sonia Sotomayor in the awkward closing moments of his argument.

That’s because the problem is this:

The case is known as Fisher II, because it first came to the high court in 2013, when Fisher contended that she had been refused a spot at UT-Austin, because part of its admissions program takes race into account, and students who were less qualified, but members of minority groups, were admitted in her stead. She claimed that this use of race in admissions violated the Constitution.

The University of Texas system is not your ordinary affirmative action program, however. Texas has what’s called a top 10 plan, in which the top 10 percent of all high school students automatically gain admission to the UT program; this accounts for about 75 percent of the admits. The remaining admits come from a second assessment – a “holistic” review of numerous factors ranging from leadership roles, awards, family adversity, and race. Because Texas neighborhoods and thus high schools are often segregated as a matter of practice, this allows for some minority admits but, in the UT system’s view, an insufficient number of them.

Fisher was not in the top 10 percent but claims she should have been accepted under the holistic review without the race factor. She has since graduated from Louisiana State University. The real issue Wednesday, however, isn’t simply whether universities may continue to consider race as one of many factors, holistic-style, as the court has allowed in the past. The question is what Justice Anthony Kennedy, who doesn’t like affirmative action programs but doesn’t quite not-like them enough to end them altogether, is going to do this time around.

It’s complicated and the court is split, and Salon’s Amanda Marcotte takes it from there:

Instead of telling her where to shove it, the Supreme Court sent Fisher’s case back to the appeals court. Now she and her lawyers are back again. This time, they’ve tweaked their argument a bit, trying to argue that diversity itself is an illegitimate goal for schools and, to add a bit of extra nastiness sauce to it, they’re claiming that diversity is bad for students of color.

That is odd, particularly given this:

When you read about this case, it quickly becomes self-evident why the admissions committee didn’t think Fisher had some hidden potential that wasn’t reflected in her grades. Fisher, however, has decided her unparalleled genius is going unnoticed because of the notorious racism against white people. But since that argument hasn’t gotten her very far, her lawyer, Edward Blum, is now trying a different tactic to argue that schools should admit mediocre white people over talented students of color: His claim is that giving students of color an opportunity somehow hurts them.

“Rigorous judicial review,” Blum’s new petition argues, “would have revealed that UT’s ‘qualitative’ diversity interest is in fact illegitimate. It depends on the assumption that, as a group, minorities admitted through the Top Ten Percent Law are inherently limited in their ability to contribute to the university’s vision of a diverse student body, merely because many come from majority-minority communities.”

Translated from legalese to English – It’s supposedly racist to let students of color with middling grades into UT Austin, because you’re assuming they can’t do better. It’s a particularly rich argument, considering that Fisher is arguing that she should have been given the first shot, before any students of color, at getting in with middling grades.

The whole thing is a bit absurd:

The school is arguing that they should have a right to evaluate a student beyond grades, at least in the 20 percent of cases at stake here. Students who get in with less than stellar grades (most of whom are white, we must remember) usually do so by making a case that they have potential. Taking someone’s racial background and the obstacles they faced from it is part of making that case.

Blum’s argument says more about his and Fisher’s racial prejudices than it does about the school. It’s they who assume that non-whites students must have been given a leg up because they couldn’t hack it on their own. But when it comes to Fisher, they employ a different assumption, believing, against all evidence to the contrary, that she must be good enough to deserve a spot. There’s a word for casually assuming the worst about people of color while assuming the best, even in the face of contrary evidence, of white people. Needless to say, it’s not a word commonly associated with doing well by people of color.

No good will come of this:

The purpose of universities, especially land grant colleges like UT Austin, is not just about giving white people a good college experience. It’s about improving society, as a whole. And that whole includes black people, who are currently underrepresented in higher education. UT Austin found a way to balance its duty to provide education to improve lives for people, all kinds of people, with their duty to maintain a level of educational excellence. Let’s hope the Supreme Court doesn’t chuck that in favor of a system whose only purpose is to elevate white mediocre students like Abigail Fisher over promising students of color.

Scott Lemieux adds this:

Supporters of what is still frequently a necessary policy have reason to be pessimistic. Meanwhile, students who have benefited (or are perceived to have benefited from) such programs have reason to be outraged, after US supreme court justice Antonin Scalia essentially argued that they might not be equipped to profit from admittance to certain high-quality institutions. …

And I must have missed Scalia condescendingly suggesting that Fisher would have been better off at a less-demanding school.

But we are where we are:

Affirmative action in public higher education has been hanging by a thread for a while. In 2003, the US Supreme Court upheld the University of Michigan law school’s affirmative action program but struck down the undergraduate one. However, the swing justice in the former case, Sandra Day O’Connor, has since left the court. The current swing justice, Anthony Kennedy, has never once voted to uphold an affirmative action program, although he also refused to declare them categorically unconstitutional.

Scalia and Alito were inevitable votes to vote against UT anyway; the vote in doubt is Kennedy, and his arguments didn’t give observers many clues about how he would vote. At one point, he complained that because the 5th circuit did not return the case to a lower court the US supreme court has “been denied the advantage and the perspective that would be gained if there would be additional fact-finding under the instructions that Fisher sought to give” – making it seem like he still doesn’t even want to decide the case.

He will, however, have to decide this one. Does this university get to keep its careful system to assure at least a bit more diversity, because they think diversity is a good thing, or is what they do a pro-black anti-white bit of racial warfare, based on bleeding-heart liberal and thoroughly un-American political correctness? Lemieux hopes the university is allowed to keep its program:

The argument that affirmative action programs are the constitutional equivalent of racial classifications intended to uphold a racial caste system has always been weak on both textual and historical grounds. If the US Supreme Court rules otherwise in the Fisher, not only will ” lesser schools”, as Scalia termed them, not benefit from increased African American admissions, schools like UT and African American students will both suffer – and the Fishers of the world won’t win either. They’ll just lose their last excuse for their own mediocrity.

And what of Donald Trump arguing that the Black Lives Matter folks are the real thugs, as are those desperate Mexicans who sneak in to find work here, as probably are Muslims everywhere, some of whom would like a safe and warm place to start over, now that we’ve set the Middle East ablaze? Why have mechanisms by which they are guaranteed a chance at a better life, something like the same chance the angry white folks have here now?

Many don’t want that to happen. Americans are not a nice people, and we’re proud of it. And it seems, like Abigail Fisher, we’re also proud of our own mediocrity. Perhaps Trump did figure it out after all.