Supreme Court Takes Up Affirmative Action In Higher Education

This week the Supreme Court will find itself facing yet again the question of the use of race in higher education. It is question that the Court failed to definitively answer in 1978 and then again in 2003 and will now try again in 2012. Fisher v. University of Texas Austin however has the makings of a decision that could not only answer the question with finality but effectively bar the use of race in admissions in higher education. While the Court has repeatedly allowed the limited use of race for the purposes of achieving diversity in classes, the record of these programs suggests that this one factor is difficult to confine and tends to overwhelm other considerations. The Court now appears to have the votes to adopt a bright-line rule that ends decades of experimentation with this controversial factor.

While many defend race-conscious admissions in terms of the need for affirmative action to correct historic discrimination, the Supreme Court barred such affirmative action in 1978 in Regents of the University of California v. Bakke. Justice Lewis Powell allowed for only a limited use of race for the purpose of achieving “diversity” in classes. This exception however soon swallowed the rule as schools fought to maintain levels of minority students as a diversity rather than an affirmative action program. Many academics privately admit that the real purpose of these programs remains the original affirmative action rationale to ensure greater numbers of minorities in higher education.

At George Washington Law School, we spend a considerable amount of money to recruit top minority students without having the type of score differential reports in the Texas case. This takes money and time but it is well worth it. I happen to believe strongly in the educational value of diversity. I am convinced that my classes are greatly improved from an educational perspective by a more racially diverse class of students. I also see similar benefits from diversity in religion and socio-economic backgrounds. Moreover, race is not always a good criteria for bringing in different social and cultural experiences since many minority students come from elite schools and backgrounds.

The main concern however remains the natural gravitation of diversity programs into de facto quota systems. These cases reflect a tendency to weigh race more and more heavily to achieve greater numbers of minority students rather than spend the money and time to attract more competitive minority students.

The gap in scores among students at Texas will be at the heart of this case. The Texas data on the freshmen (not admitted under the Top Ten Percent Law) show that Asian students had a mean SAT score of 467 points and white students a mean of 390 points above the mean for black students (on a maximum score of 2400). This meant that Asian students scored in the 93rd percentile and whites in the 80th percentile nationally while black students scored in the 52nd percentile. These scores are a verboten subject among academics since they highlight the unfairness to students rejected with much higher scores due to their race.

With race-conscious systems, the concern is that white students are denied any ability to compete on this criteria for admission and must overcome the weight given to it with even higher scores. The discomfort with race-based criteria in educational admissions is reflected on the Court itself. In Grutter v. Bollinger, the Court divided 5-4 on the question in upholding the admissions criteria for Michigan Law School. However, even the author of the 2003 majority opinion, Associate Justice Sandra Day O’Connor, stated that she did not believe the use of race would be acceptable for more than a couple decades more. The Court ruled that it “expects that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.” O’Connor’s statement was ridiculed by other justices (and others) since the constitutionality of affirmative action should not have an expiration date like one-percent milk. Yet, even under O’Connor’s view, affirmative action would only have an expected life of roughly 15 more years of constitutionality.

What is interesting is that the University of Texas-Austin achieved remarkable levels of minority students under the earlier race-neutral system of admissions. In the year before the school changed to a race-conscious system, Hispanic and African American students constituted a total 21.4% of the entering freshman class. Asian students made up another roughly 18% of the class. This impressive success was achieved in large part by the Texas legislature enacting the 10% Law, which required the University of Texas to admit all Texas high school seniors ranking in the top 10% of their classes. That law not only achieved racial diversity but geographic and economic diversity at the university. For those of us uneasy with the use of race-conscious criteria, that record was encouraging and suggested that it is indeed possible to achieve considerable diversity without the use of race.

However, the university said that this roughly 40% minority rate was not sufficient because it wanted to see a greater percentage in individual programs and classes – requiring an even higher percentage. The school turned back to race-conscious admissions and the federal appellate court upheld the change. The race conscious rules are also likely to result in further discrimination on the basis of race. For example, while Asian Americans are indeed a minority and presumably would bring diversity to a class, they outperform blacks and Hispanics in scores by a significant degree. Their scores are also higher than white students. Thus, there is a growing trend to count the race of Asian students against their admission at some universities. Thus, if you are white or Asian, your performance in school and tests may be effectively negated by the color of your skin.

Under the current system, a student’s race is displayed on the front of their application. Significant numbers of minorities are still admitted under the Top 10 Percent law, but minority students are then given a preference if they do not make that cut based on their race. The result has been to increase minority admissions to over 50 percent of the entering class at UT. The goal and result are the same as the pre-Bakke affirmative action programs. Indeed, in a statement that likely had his lawyers wincing, the UT’s President proudly announced that his incoming classes achievement of 52 percent minority students would finally “reflect[] the changing demographics of the state” – an apparent reference to the affirmative action rationale.

Universities were given the opportunity to show how race can be used as a limited factor to achieve diversity. The University of Texas system may now offer a majority of the Court the perfect record for achieving what dissenters failed to achieve by one vote in 1978 and 2003. It will be seen by some members as evidence that race-conscious diversity programs tend to gravitate toward quota systems or affirmative action programs. If a majority has finally solidified on the Court, schools would then have to seek diversity (as many law schools do) through scholarships and targeted recruitment. Fisher would become a tale of an opportunity lost and perhaps the start of a new chapter in the struggle of diversity in education.

Jonathan Turley

72 thoughts on “Supreme Court Takes Up Affirmative Action In Higher Education

  1. You have to give Swarthmore mom credit for this alert…… I think she posted the link to the daily Texan on Sunday….. But for other reasons….. What’s that french word for….. Say la vee……

  2. In another generation or so whites will be in the minority in the US. Wonder how long it will be before race is used for admission then? America is changing and I fear it will get ugly before it gets better. I work in a suburban school district outside of Dallas TX and our white pop is 18.6% of our student population. The Hispanic pop is almost 55%. This is a major change in numbers over the last 25 years. Our students handle the change much better than the grandparents. It gives me hope for an America where race and money do not determine your worth as a person but character does! Strong character traits of honesty, empathy and thinking for yourself are missing in public life today.

  3. hopefully raced based admissions will be done away with.

    People of all colors should be admitted to a college or university based on ability and nothing else.

    Why should the Hispanic kid be denied admission because there needs to be X number of Asians and the Hispanic quota is already filled.

    The whole thing is sick.

    Here is a part of what Thomas Sowell said in 2003:

    “The dishonesty that is incidental to other policies is central to affirmative action. Most of what is said in support of this policy is either wholly unsubstantiated or demonstrably false.

    What about the notion that affirmative action has helped blacks rise out of poverty? The black poverty rate was cut in half before affirmative action — and has barely changed since then.

    What about the notion that blacks would not be able to get into colleges and universities without affirmative action? After group preferences and quotas were banned in California’s state universities, the number of black students in the University of California system has risen.

    Fewer are attending Berkeley and more are attending other universities, whose normal admissions standards they meet. These students are now more likely to graduate, which is the whole point. Before, they were being used like movie extras to create a background — until most either dropped out or flunked out.”

  4. If one can’t afford SAT prep it is more difficult to get the high scores that are needed to be admitted in that 25% group that is outside of the top 10%.

  5. Here’s hoping Kennedy comes to his senses and admits that “diversity” can in no way justify gross unfairness to white and Asian students in requiring them to score significantly higher than black students to be treated equally. The numbers are truly shocking. A quick look at any of the admissions charts on Law School Numbers very clearly demonstrates that the supposedly “holistic review” of an applicant’s race serves to do absolutely nothing but lower the bar (significantly) for “minority” applicants. That is not diversity. That is a quota system.

  6. Reminds me of Libya before it was destroyed in order to save it:

    Libya provides a complete education to all students free of cost to them, from the kindergarten level up through the university level.

    (… Sins of Libya). There is probably a realignment in the taking place to make education only available to the 1% and their servants:

    Republican presidential candidate Rick Santorum said Wednesday that “the left” uses universities to indoctrinate young people for the purpose of “holding and maintaining power.”

    After saying “we’ve lost, unfortunately, our entertainment industry,” Santorum told a Naples, Florida, audience that “we’ve lost our higher education, that was the first to go a long time ago.”

    “It’s no wonder President Obama wants every kid to go to college,” said the former Pennsylvania senator. “The indoctrination that occurs in American universities is one of the keys to the left holding and maintaining power in America. And it is indoctrination. If it was the other way around, the ACLU would be out there making sure that there wasn’t one penny of government dollars going to colleges and universities, right?”

    He continued: “If they taught Judeo-Christian principles in those colleges and universities, they would be stripped of every dollar. If they teach radical secular ideology, they get all the government support that they can possibly give them. Because you know 62 percent of children who enter college with a faith conviction leave without it.”

    (Why The Right-wing Is Anti-Education). The Supreme Court will be a part of this social engineering no doubt.

  7. UC supports University of Texas in admissions case
    Email this article
    Date: 2012-08-13
    Contact: UC Office of the President
    Phone: (510) 987-9200
    The president and the 10 chancellors of the University of California today (August 13) submitted a “friend of the court” brief in the United States Supreme Court in support of the University of Texas in Fisher v. University of Texas at Austin. The case challenges the use of race in undergraduate admissions decisions.

    In filing its amicus curiae brief, UC seeks to inform the court about its efforts to enroll a student body that encompasses the broad diversity of California while for the past 15 years operating under a constitutional prohibition against race-conscious admissions. As the brief details, this concerted systemwide effort at the University of California has been less than completely successful.

    “Ours is a unique story that shines a light on the obstacles we face as we seek to enrich the UC educational experience through diversity,” said UC President Mark G. Yudof. “The facts tell us the educational and societal benefits from a diverse student body cannot be realized fully at the nation’s largest highly selective university system without the judicious use of tools that take race into account during undergraduate admissions decisions. Telling that story is the appropriate thing to do in the context of this legal case.”

    Under the heading, “The Limited and Disappointing Results of the University’s Race-Neutral Admissions Initiatives,” the amicus brief speaks of the “unfortunate reality” that a key finding UC reached years ago still stands. “In a highly selective institution, implementing race-neutral policies leads to a substantial decline in the proportion of entering students who are African American, American Indian and Latino.”

    In fall 2011, UC had a total undergraduate and graduate enrollment of more than 235,000 students. The university makes the point that it is broadly comparable in size and importance to the University of Texas system, another of the nation’s largest systems of public higher education, which also has multiple campuses (nine universities, plus six health institutions) and a total enrollment of more than 211,000 students.

    The UC brief may be accessed at

    UT-Austin’s brief may be accessed at

  8. I don’t know why this even needed to be posted? Antonin Scalia already has stated that this is a “no-brainer” decision and in his case I trust it will be.

  9. Antonin Scalia already has stated that this is a “no-brainer” decision and in his case I trust it will be. ~Mike Spindell
    hahahahahahaha! oh dear….thank you Mike, for my morning laugh… that was ever so subtle…

  10. Some people are obviously disturbed and this case probably puts them over the edge. There is nothing quite like a morning therapeutic dose of properly prescribed medication.

  11. diversity might be good in the classroom, but does that mean we should make laws that discriminate on race, and force institutions to adopt it?

  12. I agree largely with what Swarthmore Mom and Frankly said in Sunday’s post on this subject, and I would only add 3 observations:

    1. Abigail Fisher did not make it into the top 10% of her high school class which would have automatically admitted her into the Univ. of Texas. Nearly 80% of the freshman class is admitted through this top 10% rule. Moreover, she applied to Univ. of Texas with a 3.59 GPA (out of 4.00) and an SAT score of 1180 (out of 1600). These are not competitive academic credentials and, unfortunately for Fisher, account for 1/2 of the total holistic review score at the Univ. of Texas.

    2. The holistic review score used by the Univ. of Texas for students who are not admitted through the top 10% rule is comprised of 2 parts: (1) Test Scores & Grades and (2) a “Personal Achievement Index. This Index, in turn, is based on 3 things: (1) an essay; (2) another essay; and (3) a “Personal Achievement Score”. The “Personal Achievement Score” is comprised of 6 parts: (1) leadership potential, (2) extracurricular activities, (3) honors and awards, (4) work experience, (5) community service, and (6) special circumstances. The “special circumstances” factor is broken down into seven attributes; 1 of those 7 attributes is race (another is socioeconomic status, FYI). In other words, race is literally 1/7th of 1/6th of 1/3rd of 1/2 of the holistic review system used at the Univ. of Texas. When you run the math, that means that race accounts for exactly 0.39% of the total admissions criteria. How race — and only race — could have prevented Fisher from gaining admission at the Univ. of Texas is difficult to imagine.

    3. The data from Univ. of Texas shows that there were White students with lower GPA and SAT scores than Fisher who were admitted, and there were also Black and Latino students with higher GPA and SAT scores than Fisher who were rejected. Say what you will about race-based affirmative action programs, but Fisher’s race had little, if anything, to do with her rejection at UT.

  13. @Nick: I think affirmative action is racist; by definition, it is using race to give one person a preference over another.

    @All: I like the Texas 10% rule, or something like it. If students are judged relative to their opportunity (the high school they attended) then that achieves the goal of offsetting lack of school opportunity for poor or rural students (regardless of race or gender, wealth, or physical handicap). It levels the playing field for students, those in poor districts have roughly the same chance as those in wealthy districts.

    I could see a consolidated “Dutch Auction” type of procedure, at least within the State universities: Students apply and list their top picks for the top four schools they want to attend, in order. Each school fills their incoming class from the highest ranked of those that chose it first; if that isn’t enough to fill, then they move on to those that chose it second and did NOT get their first pick, then on to those that chose it third and did not get either their first or second pick, and then those that chose it fourth and did not make the cut for any of their top three picks.

    At the end most students will have been assigned to the school they wanted most and had the rank to get into; if there are seats left, those that did not get in can be contacted with a list of the schools that have seats left and submit a new “top four” list.

  14. “When you run the math, that means that race accounts for exactly 0.39% of the total admissions criteria. How race — and only race — could have prevented Fisher from gaining admission at the Univ. of Texas is difficult to imagine.”


    The University’s claim that the breakdown works this way is betrayed by the statistics that Professor Turley points out in his column above. The black students scores are significantly lower than those of white and Asian students. This is the problem with all universities that claim “holistic review” and that race is “one factor among many.” The actual scores of the admitted students give a starkly different impression. Namely, the impression that race plays a very significant role in lowering the admissions bar for “under-represented minority” students, and that “holistic review” is a substitute for a quota system.

  15. I fail to see what a skin color contributes to the benefit of the whole. Unless these groups were performing tactical operations where the people with the correct tone are sent into the environments closest to their colors. Or something stupid like that.

    Any diversity that arises from the mixture is from their cultures, and ideas. These are where the true diversity is that we should strive for- in a multitude of views and considerations. This can arise from incorporating different cultures and styles- not ridiculous skin pigmentation and genealogical backgrounds.

    Or did I miss the point again?

  16. I remember when all the southern states, including Mizzoura where I lived, were strictly segregated and by that blacks were excluded from all the main universities and given some little places that were all black (separate but equal) to go get a degree of sorts. The University of Mizzou was a sort of a went in dumb, come out dumb too, kind of place. It has certainly improved over the years since deseqregation. Just this year they made great strides to move their sports program from the old Midwest group called the Big Eight and later the Big Twelve and now are going to the SEC or South East Conference. Culture and intellect are better intwined in the old south than with Kansas, Nebraska, Iowa and other more 21st Century states. Alll the former slave states need to play sports together.
    Went in dumb, come out dumb too..
    Hustlin round Atlanta in our alligator shoes…
    We’re Rednecks, We’re Rednecks…
    We dont know are arse from a hole in the ground..

    Randy Newman in Good Ol Boys.

    So. Supreme Court. Your old south schools have cleaned up their rachist ways. Take away any affirmative action duty. Even the guy from Pin Head Georgia will agree. Scalia will agree. They let Italians into Mizzou and points south way back when. Not in most Frats though. Be an originalist on this one. The Framers would not approve of affirmative action– it went against the basic premise of slavery.

  17. NICK:

    so Thomas Sowell is a racist?

    If there was no affirmative action, Asians and Indians [from India] would probably have most of the seats in the top universities.

    So you are a proponent of low expectations for minorities? Dont think they could get ahead without whiteys help? Cant do it on their own so they need help from the master?

    If you think that way then lets have affirmative action in basketball, football and other sports where blacks make up a disproportionate number in relation to their population.

    I would argue that affirmative action is racism because it judges people not by the cognitive ability of their mind but by “chemical predestination.” In other words their genes.

    This is no different than the idle rich or royalty thinking they have superiority by way of genetic lineage. It says “that a man is to be judged, not by his own character and actions, but by the characters and actions of a collective of ancestors.”

  18. The legislature changed the rule to the top 8% in 2009. As janitor illustrates, the student was not qualified for admission. Racism still exist in Texas, and many white people think that their son or daughter should have priority over a better qualified minority at the University of Texas. I have been following this process since my son was in high school ten years ago, and have heard countless remarks.

  19. I mis spelled the word “racist” and some other things but I tried to make some points. Thomas is from Pin Point, GA not Pin Head, GA. Never the twain shall meet. It has been a long time since Huck and Jim went down the Mississippi on a raft each wondering where all this was going, meanwhile wondering if they would ever get to the Ohio River. Twain was a clever fellow and threw things at the reader with hidden messages. He pointed out things so thoroughly that one could not come away without feeling the injustice presented. Maybe we can each send a copy of Huck Finn to a Justice on the Supreme Court. I will send mine to Alito.

  20. @Gene H: Thanks. And you’re welcome. :)

    @Josh: The University’s claim that the breakdown works this way is betrayed by the statistics that Professor Turley points out in his column above. The black students scores are significantly lower than those of white and Asian students.

    If test scores were the only criteria then you would be correct, but you appear to be making the same mistake that Fisher made in her assumption that the race factor is the only factor that can explain this seemingly unfair scenario.

    As I stated earlier, there were White students who had test scores lower than Fisher’s who were admitted, and there were Black & Latino students who had higher test scores than Fisher’s who were rejected. The import of this fact is that if you didn’t make it into the top 10% of your class then test scores alone are not the predominant factor in your admission. Neither is race. After the top 10% have been admitted, the school then considers many other factors which have nothing to do with race or test scores. So simply pointing to test scores does not prove Fisher’s case b/c test scores are not controlling in the second stage of admissions at UT.

  21. Bron, I was merely being sarcastic, busting on the too many people who really think that. One of my biggest problems w/ racial preference is the shadow it casts on all minorities, including the many who didn’t need the preference.

  22. Yeah Trashman that was to you. All you racist people come out of the woodwork when such an important topic is at stake. Get a life. What is as hommie attack. I am not one of those gay bashers just in case that’s what that means.

  23. @Candy Picker – Perhaps you should come back when you’re better educated on this subject and able to have an adult conversation. You can start by googling the term “ad hominem.”

    (here’s a hint – if you have to resort to ad hominem attacks in a debate, then you’ve already lost)

  24. @Janitor, the only reasonable conclusion given the wide disparity between black student scores/GPA and white/Asian student scores/GPA is that race is being used as a VERY prevalent factor in lowering the bar significantly for black students. I suppose I don’t have the data to prove (the negative) that every single underqualified black student does not also just so happen to have some great non-race-related background that justifies his/her admission, and that every single underqualified white student just so happens NOT to have a great non-race-related story that qualifies him/her. But the chances that that is the case are just miniscule, and the reasonable, dispassionate conclusion is that race plays a very prevalent role in allowing for the admission of otherwise unqualified black students.

    I really urge you to peruse the graphs at Here is the link to just one of them, the Harvard chart:
    The clarity of the dividing line is truly striking. Hovering your mouse over all of the lowest admissions (green triangles) shows that every one of them is a self-identified “under-represented minority.” This kind of correlation is not mere coincidence. Every single black candidate is just not that “holistically” interesting, and, more importantly, there surely must be at least A FEW white or Asian candidates who happen to be “holistically” interesting. Apparently not.

    As a final observation, just note that prospective law students are encouraged by, a practical tool used by aspiring law students everywhere, to self-identify as “URM’s.” Why would such a characteristic be inquired about, readily provided, and displayed so prominently in the rollover box (right alongside LSAT and GPA), if it were not DOMINANTLY important. Whether a candidate is rich or poor, native- or foreign-born, multilingual, liberal or conservative, a liberal arts or science major – none of this information is asked for or displayed. Not even the student’s undergraduate institution. Indeed, it seems that the practical reality for aspiring law students is that the MOST important considerations in whether or not they can gain admission to elite law schools are: (1) LSAT score; (2) GPA; (3) Skin-color.

    The playing field is not level, and it is tilted firmly upon the race of the applicant. To deny that race is a powerful or even dominant consideration is somewhere between ignorant and disingenuous.

  25. I like the 10% rule and the UT approach for the rest of the applicants. Thanks, Janitor, for the post.

    Affirmative Action isn’t about placing unqualified people into a school or job they aren’t qualified for. It’s about making sure that those who are qualified get the opportunity to compete. Some sort of quota is necessary for some to look seriously at minority (race, gender, or economic status) candidates.

    As a manager in a large corporation I had the opportunity to hear comments that were very revealing about the attitudes of the other, yes, all male, managers. It seems that male candidates had potential to grow into the higher level, advance him now. Female candidates, to be taken seriously, had to have already been doing the job at the higher level for some time. No room for women to have the potential to grow. This attitude of bias against gender and race seems to exist in a number of places. (Race was a factor but a totally different one. The number of minority employees out of hundreds in the area I was in could be counted on one hand.)

    Being in the top 10% in a not-so-good school and 10% in a really good school does speak to how prepared the student might be, and it addresses how well the student did given the education available and the hurdles to be overcome. A good student from a poor school deserves the chance to be successful over a mediocre student from a good school.

    The differences in the quality of the schools could partially account for the difference in scores but there isn’t enough information to determine this.
    SM’s point about having the ability to get tutoring for SATs, etc. is another factor.

  26. Josh, LSN does not give the full picture. Only those applicants that chose to sign up with them are represented. Law school admissions are not holistic as you say but one is able to disclose more information in the essays. Undergrad admissions often are holistic at many institutions. The UT case does not involve the law school.

  27. My experience in law school was this: there were some minority students who shouldn’t have been there, but conversely, there were just as many majority students who shouldn’t have been there either. Law school admissions should be totally color blind and if any criteria is used to sort out applicants other than raw ability it should be ethical inclination and empathy (to help screen out sociopaths and psychopaths regardless of race/ethnicity – the profession would be far, far better off and the justice system far less prone to abuses). That being said, my experience also mirrors JT’s (albeit from the student not the instructor perspective) in that I am convinced that my classes were greatly improved by a more racially diverse class of students and that I also saw similar benefits from diversity in religion and socio-economic backgrounds. How to encourage this without creating some other form of disparity remains the issue and at the heart of the issue at bar here.

  28. @Swarth, I guess you’re entitled to interpret the situation as you’d like, but I would hope you can be as reasonable and rational and dispoassionate about it as possible. Perhaps you think it’s just that black students be granted certain advantages that white and Asian students are not, based solely on the immutable color of their skin. But if that is the case, it’d be better for you to just say as much instead of trying to obscure and obfuscate and twist yourself into knots distorting and denying the obvious realities of the situation.

    I don’t mean to offend, so I’m sorry if any of this sounds harsh, but this discussion can become very frustrating. I personally can’t fathom how race should EVER be a relevant consideration – “diversity” should be a characteristic of someone’s character, not their skin tone – so when people argue (in my opinion dishonestly) that it is not being used dominantly and pervasively, it seems they’re trying to avoid legitimate discussion of the issues instead of defending them on their (utter lack of) merits.

  29. Josh, Since most of these law schools, unfortunately, mainly care about their rankings, they are obviously not taking too many students with sub par grades and LSAT’s. If a few people get in for diversity’s sake with numbers that are a little below the norm, it is okay with me. The University of Texas Law School seems to recruit minority undergrad from the ivies from what I see. Maybe they are better students than the locals.

  30. “Barbara Jordan studied law at Boston University, saying later, “I realized that the best training available in an all-black instant university was not equal to the best training one developed as a white university student. Separate was not equal; it just wasn’t. No matter what kind of face you put on it or how many frills you attached to it, separate was not equal. I was doing sixteen years of remedial work in thinking.” Barbara Jordan was advised not to apply to Harvard Law School because she was a black woman from a southern segregated institution. Times have changed and for the better.

  31. @Josh, thanks for the thoughtful responses. I am familiar with lawschoolnumbers and law school admissions in general and, to be sure, you make a strong argument in the law school context.

    However, Swarthmore Mom is correct that LSN are not directly applicable to this Univ. of Texas situation. As we all know, the predominant factor in law school admissions tends to be (i) undergraduate GPA and (ii) LSAT score. Very few law schools opt to take a holistic approach to admissions.

    Here, the Univ. of Texas did take a holisitc approach where grades and test cores only account for 50% of an applicant’s total admissions score, another 33% of the total score is determined by 2 essays, and the remaining 17% is determined by (1) leadership potential, (2) extracurricular activities, (3) honors and awards, (4) work experience, (5) community service, and (6) special circumstances. One of the 7 criteria that make up “special circumstances” can be race. So this is a very different animal from the law school setting.

    But even in the law school context we seem to be overlooking the fact that high grades and high test scores do not entitle anyone to a seat at the school of their choosing. The Law School Admissions Council stated in its amicus curiae brief in Grutter:

    “It has been the consistent position of LSAC that there is no entitlement to a seat in law school, regardless of one’s test scores and undergraduate grades.”

  32. @Janitor, simply denying entitlement to a benefit does not immunize its denial from legal review. As for the difference between undergrad and law school, I only pointed to law school because I’m more familiar with the accessible data. As I’ve said, I think using race as a consideration ought to be unconstitutional in public school admissions outright, so law school was just an illustration of the principle. I grant you it MAY be a smaller problem in undergraduate institutions (though I harbor serious doubts in light of numbers like those pointed out by Professor Turley). In any event, I think even >1% consideration is unethical and immoral as a matter of principle, and its purported constitutionality in the context of “affirmative action” seems to fly in the face of all other 14th Amendment jurisprudence.

    @Swarth, I can’t say I agree with your conclusion, but it seem you favor of affirmative action more along the lines of a “past remediation” rationale. While I still don’t agree with that justification (and it was not before the Court today), I think it’s a more respectable position than “diversity,” which I see as amorphous, blatantly discriminatory, and (most disturbingly) unending.

    Thanks for the discussion, all.

  33. @Gene H. My experience in law school was this: there were some minority students who shouldn’t have been there, but conversely, there were just as many majority students who shouldn’t have been there either.

    Agreed. I had a similar experience in law school.

    The interesting (ironic?) thing about the issue of using race in law school admissions (and I realize this is off topic from the Fisher discussion) is that so much debate and argument and blood and sweat and tears and frustration and emphasis is placed on the issue of using race as merely one of several non-controlling factors in law school admissions, and at the end of the day only 2.7% of all lawyers are Black. Less than 3%. And it’s even less for Latinos. Take a look at the NALP Directory for any given Biglaw firm and you will typically see firms devoid of even a single partner of color. Similarly, even the largest firms in the biggest markets employ relatively few associates of color.

    And I want to be clear that I am not making a quotas argument here (completely disagree with quotas). Instead, I bring all of this up to simply ask a question of what are people really getting upset about? Are we saying that somehow 3% is too high? Is it strictly an argument about principle? Because when you consider that there are so very few Black and Latino lawyers in this country, it just seems like much ado about nothing. I could understand if Blacks and Latinos were overrepresented within the legal community but they’re not. Not even close. In fact, the opposite is clearly true.

    Having attended law school, my own personal theory as to why this is such a hotly debated topic within the law school context is because law school is an extremely competitive environment and any perceived advantage, whether real or not, is attacked by all those striving to reach the top.

  34. @Josh In any event, I think even >1% consideration is unethical and immoral as a matter of principle, and its purported constitutionality in the context of “affirmative action” seems to fly in the face of all other 14th Amendment jurisprudence.

    I think you meant less than 1% (“”) but I got your point.

    This may surprise you but we’re actually not far apart on the notion that race should not be used in admissions or hiring decisions. There’s only one problem with taking that position against affirmative action only: racial preferences are alive an well in the U.S. In other words, everybody benefits from affirmative action, some people just call it everyday life.

    So if your position is to end all racial considerations then great. I applaud you. But you have to end all racial considerations, not just the ones that have been labeled “affirmative action.” No more racial preferences in granting loans. No more racial preferences in housing. No more racial preferences in business. No more racial preferences in hiring or promotion on the job, etc.

    Look, let’s be honest, we all know that these things happen every day, we just don’t hear about them because they’re not done through a tangible program called “affirmative action” that we can point to. Instead they’re done in private, sometimes behind closed doors. So if you’re against racial preferences as a matter of principle then that principle must extend to all facets of life in all instances.

  35. Yeah. Who knows, if we had more minority lawyers we might have more civil rights lawyers. We might be ahead of the game now. Who knows?

  36. It may be a principled position that race should never be considered in any sort of academic or workplace evaluation. I am uncomfortable with considering race in admissions. But, as people upthread pointed out, in this particular case, there were black students with higher test scores than Fishers’s than did not make it. So it’s hard to see how she has a case.

    More generally I make somewhat of a distinction between affirmative action in academics, in which theoretically success is more or less under the student’s control and affirmative action in the workforce, in which there are a number of outside factors, including race, that may work negatively against the employee or business owner for that matter.

    Often what test scores are measuring aren’t just someone’s intelligence, preparation and diligence but also how much they may have internalized stereotypes of racial inferiority and damage from educational segregation. Affirmative action is just one tool, albeit an imperfect one, to deal with that.

    So I am not a huge defender of any affirmative action in academics but I AM a huge defender of affirmative action in the workplace.

  37. Yawning, I am. I am getting sick to my stomach listening to this dribble. In Pursuit of Academic Excellence should be the goal. That’s just not the case these days. Holish (hole) or Polish (pole) should not be the issue. Politically correct is a term used to justify harassing and depriving a male, regardless of race.

  38. If affirmative action for those who have historically gotten the short end of stick is banned, then legacy seats should also be banned.

  39. So now it’s not racism, it’s a sexist conspiracy to keep men down. And you used the term “politically correct” as a bait/code word. A bit transparent tactically speaking, don’t you think? (That’s a rhetorical question.)

    Also, speaking of excellence, we used to have professional trolls here.

    That’s just . . . sad and pathetic.

  40. Gene, The troll isn’t even correct.. More females are graduating from high school with higher gpa’s. This actually gives a male an advantage in admissions. Have been told that by college counselors.

  41. @The Janitor ” race accounts for exactly 0.39% of the total admissions criteria.”

    Doesn’t that percentage undermine the argument that it is important to use race as an admissions criteria?

    I have to wonder: in how many cases was consideration of race a determining factor in admission of the candidate.

    If the number of cases where race was the determining factor is small then it would seem that the objectives of diversity have been largely achieved by other means.

    Others have suggested socioeconomic status as a more equitable and perhaps more desirable selection criteria. Are there any good studies that compare race and socioeconomic status as selection criteria and examined their results in regard to diversity?

    To me there does seem to be a divergence. On the one hand it is claimed that it is vital to use race as an admissions criteria. The, upon examination, it is claimed that race is a miniscule factor.

    I don’t think that reasonable people can have it both ways. If it is vital to use race as a criteria than it must be that race influence many admissions. On the other hand if it does not influence many admissions why should we keep race as a criteria.

    I look forward to thoughtful remarks.

  42. OT

    The Supreme Court sided with Big Brother:

    The Supreme Court closed a 6-year-old chapter Tuesday in the Electronic Frontier Foundation’s bid to hold the nation’s telecoms liable for allegedly providing the National Security Agency with backdoors to eavesdrop, without warrants, on Americans’ electronic communications in violation of federal law.

    The justices, without comment, declined to review a lower court’s December decision (.pdf) dismissing the EFF’s lawsuit challenging the NSA’s warrantless eavesdropping program.


  43. I’m Asian American and know it’s possible to be accepted at universities — even highly ranked ones — without affirmative action programs. None of my grandparents were formally educated, my father had a high school diploma, and my mother had none. Also, my family was on the lower rungs of the socioeconomic ladder. However, by focusing on academics and having strong parental encouragement, my sister and I were accepted at prestigious universities and earned undergraduate and graduate degrees. As far as I know, affirmative action wasn’t a factor in our acceptance. Grades, SAT scores, written essays, and interviews with alumni (in the case of one university) were the keys.

    I truly sympathize with minority families in distressed neighborhoods, families whose children don’t have many opportunities to escape their unfortunate circumstances. Nevertheless, there are ways out of such difficulties, and I believe it starts with strong parental encouragement for academic achievement. Many parents work two or more jobs, so this may be difficult, but it is doable. After all, some children do beat the odds and succeed, even without the benefit of affirmative action programs.

    I would consider and might support affirmative action programs that take into account an applicant’s socioeconomic background. However, I’m ambivalent about using race/ethnicity as a consideration.

  44. Race, mace. The white male is very unrepresented in this discussion. They should get extra points just because they have to suffer the abuse that women give.

  45. Bill Powers: An Admissions Policy That Prizes Diversity

    History repeats itself Wednesday in an eerie but ironic way, as the University of Texas goes before the ­Supreme Court to defend its consideration of race in admissions. UT last did so 62 years ago, when Heman Sweatt, an African-American postal worker from Houston, challenged the university’s consideration of race.

    Sweatt, of course, had been denied admission because of his race. The university lost that case—but America won. UT became one of the first flagship universities in the former Confederacy to integrate, and Sweatt paved the way for the 1954 Brown v. Board of Education decision integrating all of public education and forever banishing the fiction of separate but equal.

    This time, UT finds itself back in court superficially for the same reason—considering race in admissions—but with just the opposite motivation. While our 1950 policy aimed to keep certain people out, our 2012 policy is aimed at permitting more of their grandchildren to enter.

  46. I have a question.

    Can some one specify all the minorities that can be admitted to colleges with lower grades than the Whites? Are Asians, South Eastern Indians included in this list? If not, then why not?


  47. BFM,

    The reason I like the UT policy is that by accepting the top 10%, minorities in the top 10% get in regardless of race, gender, or economic status.

    To better improve the chances for all to get the college education they want is to improve the quality of all schools, starting with pre-school. I also like what Libya had until we freed them for democracy: free education all the way through for everyone.

  48. @bettykath

    I certainly agree with universal education. I think that as long as a student is making good progress it is to society’s benefit to assure the students access to education.

  49. Everyone here has valid points from different perspectives. But, this whole mess is a cluster and it proves that if a person wants something enough, such in this case a higher education from a good school, you have to resort to one’s own devices to obtain it.

    What is a young person to do? A new adult, and faced with the possiblity of some bureaucrat wonk dictating whether or not they can enter a college based on whatever arbitrary stupid arse rule they come up with because the wind was blowing South, or whatever it is they conjure up for the day, the prospective student just can’t give up.

    The young man / woman needs to make it happen on their own because of assinine rules such as these quotas or whatever the heck a person wants to call it. They cannot just assume the school will act in the students’ interests, the best they can do is to be resolute and do whatever it takes to succeed. Sad that it has to be this way, but if you want something enough you can do well with effort and resolve.

    It would be nice to see that all students will only need to focus on is being the best student / citizen they can and not have to worry that this bureaucratic nonsense forestalling their successes in life.

  50. It always amazes me that the issue of affirmative action is only discussed within the context of university admission. I feel the playing field should be leveled at the much earlier age of kindergarten with the understanding that K-12 funding resources are mostly defined by the property and business taxes of the district that the school resides in.

    I once assumed that the disparity of funding offered through any local tax base was offset by funds from a federal level so that K-12 schools were approaching a point of parity. There was no reason for me to believe this self-imposed illusion, I had just assumed it was true through my own ignorance.

    Then I read Jonathan Kozol’s book, “Savage Inequalities: Children in America’s Schools,” and realized that my assumptions were erroneous.

    Everyone knows of the Brown v. Board of Education ruling of 1954, (347 U.S. 483) which stated, in simple paraphrase, that separate schools for white and black children was unconstitutional. Yet, rarely mentioned is the 1973 ruling given in San Antonio Independent School District v. Rodriguez, (411 U.S. 1) whereby SCOTUS stated that:

    “[A] school-financing system based on local property taxes was not an unconstitutional violation of the Fourteenth Amendment’s equal protection clause. The majority opinion stated that the appellees did not sufficiently prove that education is a fundamental right, that textually existed within the US Constitution, and could thereby (through the 14th Amendment to the Constitution), be applied to the several States. The Court also found that the financing system was not subject to strict scrutiny.”

    I only became aware of the huge funding disparity between various school districts through Kozol’s book (as I do not have any children). The facts of the matter in San Antonio Independent School District v. Rodriguez (according to Kozol) are that there were two schools, separated only by a road–one with a 96 percent minority population (whatever that means) which received $37.00 per student while the predominately white school was receiving $543.00 per student (1968 dollar amounts).

    My illusory bubble of feel-good offered by Brown v. Board of Education and my assumption of equitable funding was called into question with this new (to me) information. According to the US Department Of Education’s website:

    “In 1990-91, the federal share of total K-12 spending in the United States was just 5.7 percent. Since that time, it has risen by more than one-third and is now 8.3 percent of the total.”

    In other words, K-12 funding from any individual’s perspective is still based on where one is born, where one lives, and in many cases where one will die.

    It seems to me that the arguments surrounding affirmative action need to occur at a much earlier stage in the educational process as the funding of K-12 education is predicated on a local tax base which obviously leads, within our culture, to disparity based on the antiquated concept of race.

  51. Affirmative Action At Supreme Court: University Of Texas Program Had A Bad Day
    Posted: 10/10/2012

    WASHINGTON — Chief Justice John Roberts may have switched his vote to join the Supreme Court’s liberals in last term’s blockbuster health care case, but on Wednesday morning he proved that he remains a rock-ribbed conservative when it comes to affirmative action.

    With retired Justice Sandra Day O’Connor looking on from the audience, Roberts and his fellow conservative justices savaged the rationale she put forward in her landmark 2003 opinion upholding race-conscious admissions practices. Although the conservatives did not have the numbers to prevail nine years ago, they may very well have them in the current challenge to the University of Texas at Austin’s affirmative action program.

    The 2003 decision, Grutter v. Bollinger, upheld by a 5-4 vote the ability of university admissions officers to consider an applicant’s race as one factor among many in their efforts to achieve a critical mass of diversity in the entering class.

    The “critical mass” concept inspired the most contempt from the Supreme Court’s conservatives during oral argument Wednesday morning in Fisher v. University of Texas. Former Solicitor General Gregory Garre, representing the university and relying upon the Grutter decision’s own language, said that critical mass is determined when the “university reaches an environment in which members of underrepresented minorities — African Americans and Hispanics — do not feel like spokespersons for their race.”

    To this, Roberts acidly asked Garre, “So, what, you conduct a survey and ask students if they feel racially isolated, and that’s the basis for our constitutional determination?”

    With Justice Samuel Alito’s replacement of O’Connor in 2006, there was no question that the balance of power on the court had shifted toward the conservatives on matters of race. The University of Texas case is their first opportunity to revisit affirmative action in higher education since 2003.

  52. gbk:

    school systems, at least in Virginia, are funded by the state and local areas but they do receive money from the federal government. So I dont think this is a funding issue. Look at DC schools, they receive about the same amount of money per student as the county I live in, our schools are far superior to the ones in DC.

    My wife is a teacher and I have 2 children who attended public schools. In fact my wife teaches children with substance abuse and behavior problems and has for about 8 years prior to that she was a classroom teacher. So while I am not an expert, I have some knowledge of the school system [at least where I live].

    The biggest problem, as I see it, is the lack of local control of the schools. Everything is mandated from the state level and now with a new program, curriculum and testing will come from the federal government. This program is nationwide and does not sound like a good program. It appears to take away control from the state and local level, teachers will almost be irrelevant. States are being forced into this by threat of losing their federal funds. Most have fallen in lockstep with the program.

    My wife says that no child left behind [a Bush program] is an abysmal failure, totally centralizing education will all but kill public education in the US.

    Control has to be given back to teachers in the classroom and we have to have separate tracks for children who are not academically inclined, we used to do this. Where I grew up we had some great technical high schools which taught sought after skills like machining, auto repair, carpentry [the real kind], welding and other well paid vocations.

    Money may have been the problem but it isnt anymore.

  53. The context of the UTexas admissions program is one of countering deeply entrenched history and attitudes. It’s kind of amusing to read “ideal world” arguments that ignore or elide this historical context considering that earlier this very year, it took the public scrutiny of a national political campaign to finally convince Guv. Perry (who lives just a few blocks from campus) that he might want to feign embarrassment at not flipping over the rock marking the entrance to his family huntin lodge with the word “N!ggerhead” painted on it.

  54. I like to begin with fundamentals, such as, “If the question relates to the importance of diversity in higher education, mustn’t we first resolve if this proposition is true: diversity is important to higher education?” If so, is it true only with respect to higher education, or is that qualifier superfluous: diversity is important to education, higher, lower or any?

    Typically, when diversity is discussed in connection with student body populations, the concentration falls on the notion diversity. This concentration is misplaced. If the discussion were the importance of molasses in the manufacture of bread, the manifest fact that bread can easily be manufactured without molasses renders the question trivial, at best, if not moot in the fact that molasses is not at all important to making bread, qua bread, but only (if at all) in making some particular kind of bread.

    If the importance of molasses in making bread can be assessed, at least fundamentally, by asking if bread can be made without molasses, the fundamental question regarding diversity in student body populations in education must be, “Are educated people possible in the absence of exposure to diverse student bodies?”.

    Intuitively, one would easily incline to the belief that (for example) Poe was an educated person, and he became such without whatever salubrious advantage there might have been to him in acquiring his education among a diverse student population. One might say, of course, the Poe might have been better educated among a diverse student population, but can one say that he was not well educated even in the want thereof?

    We are now arrived at a discussion of education, itself, what it is and what renders an education better or worse. Before we can ask these questions, however, there are more fundamental questions still we must ask, such as, is it even correct to speak of “an education,” or is the indefinite article a red herring, leading us to attribute another false quality to education: that one can “get” or “have” one. In other words, is education a thing – whether or not in extension, such as dreams or apples – that one may give, get or have; or, is education something else, perhaps comparable to a state of being, as being “good-natured” is a state of being, or “patient”.

    …and so the analysis proceeds, with each answer a question, “Is this the most fundamental description of the issue at hand that is reachable?”.

    Already, I believe there has been demonstrated ample room to doubt that a student body marked by diversity is the more likely to produce a better educated person, because that student body was diverse, than Poe, who achieved his degree of education in the absence of a diverse student population.

    Upon this dubious proposition, however (that student body diversity is “important” to education), rests the inertia to jettison the fundamental notion of the equality of man as man, weighting some men (and/or women) more important to the notion of education for what we can say about them, with no a priori necessity that what may be said of them must necessarily be of any influence (much less a definitively positive influence) on others.

    It is, I believe, a game hardly worth the candle, and certainly not worth the loss of presumptive equality based upon one’s humanity, alone.

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