Erwin Chemerinsky, Dean of Berkeley Law School, is seen on a video recently surfaced by Chris Rufo talking about “unstated affirmative action” in the hiring process.
“What I mean by Unstated Affirmative Action is what if the college or university doesn’t tell anybody, doesn’t make any public statements, [inaudible] … I’ll give you an example from our law school, but if ever I’m deposed, I’m going to deny I said this to you [audience laughs], when we do faculty hiring, we’re quite conscious that diversity is important to us, and we say diversity is important, it’s fine to say that, but I’m very careful when we have a faculty appointments committee meeting, any time somebody says you know we should really prefer this candidate over this candidate ’cause this person would add diversity, I say don’t say that, you can think it, you can vote it, but our discussions are not privileged, so don’t ever articulate that that’s what you’re doing. Well that works more easily with regard to faculty hiring, with regard to student admissions it becomes more difficult because there’s a statistical measure ….”
It’s not clear when the presentation in the video took place, and obviously it’s only a snippet. Maybe there’s some context not shown in the snippet. Dean Chemerinsky is not happy that he was videotaped:
When reached for comment, Chemerinsky told Fox News Digital, “I am sad that someone took a video of my class discussion and excerpted it in this way. The Law School strictly complies with Proposition 209 in all of its hiring and admissions decisions.”
But what is shown is important in its own right.
I don’t have the hair-on-fire reaction some have had to the statement about lying in a deposition. From his tone of voice and audience reaction, it is clear he was making a joke.
But there is a more fundamental truth in what he is saying, which is how the absolute obsession with race and skin color diversity (as opposed to viewpoint diversity) has forced unlawful racial preferences in the name of diversity so deep into the fabric of even the hiring process that the conduct continues even when unstated.
No one who works in academia, or in the HR department of a major corporation, would find any of this suprprising. Maybe that’s why my reaction is so muted, I’m numb to it.
There’s a reason particularly in California a nod and a wink is needed, and what’s happening must remain unstated. California voters twice voted against affirmative action. Dean Chemerinsky mentioned that in an op-ed the day the Harvard/UNC affirmative action decision was released:
For decades, conservatives have railed against judicial activism, but Thursday’s decision striking down affirmative action by colleges and universities in admissions was the height of conservative judicial activism. The court rejected almost half a century of precedents, overturned decisions made by public and private universities across the country, and ignored the history of the 14th Amendment of the Constitution.The experience of California — where affirmative action was eliminated by Proposition 209 in 1996 — shows that it still will be possible to have diversity in higher education, but it will take sustained effort and it will be difficult.
After the Harvard/UNC decision was released, I’ve mentioned how hard it will be to obtain compliance. How Harvard and other schools are ready to exploit a perceived loophole in the court’s opinion. allowing consideration not of the race of an applicant but the applicant’s experience with race. Kemberlee and I have an op-ed coming out at a major news website next week on the other tactics colleges and universities will use to evade the Supreme Court ruling.
Dean Chemerinsky’s video statement shows that unlawful affirmative action will go into hiding, but it will not disappear. Racial preferences in the name of diversity are too much a part of the fabric of society to disappear just because the Supreme Court declared them to be a violation of law. These racial preferences will contine to be thought about and voted on, but not articulated, even more so now.
That’s why the Harvard/UNC decision is a good start, but it’s far from the end. The work of our Equal Protection Project will become more challenging because evidence will be harder to come by even though the conduct continues.
A cultural change is needed in which the constitutional principle of treating each individual as an individual not as a proxy for a racial or ethnic group is accepted even behind closed doors. We are a long way from that.
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