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
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?
“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.”
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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.
OT
The 9th Circuit reinstated Montana election law ABC News … for a while anyway.
@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.
@Candy Picker –
Not sure if you’re talking to me (“Trashman”?) but if you are leave the ad hominem attacks at home and meet me on the merits. If you can.
Say Trashman,
You got a problem with a “push” being given for sex? You are one sick puppy.
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.
I think anyone opposed to affirmative action is racist.
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?
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.
Antonin Scalia already has stated that this is a “no-brainer” decision and in his case I trust it will be. ~Mike Spindell
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hahahahahahaha! oh dear….thank you Mike, for my morning laugh… that was ever so subtle…
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.
UC supports University of Texas in admissions case
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Date: 2012-08-13
Contact: UC Office of the President
Phone: (510) 987-9200
Email:
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 http://www.universityofcalifornia.edu/news/documents/uc_ut_amicus.pdf
UT-Austin’s brief may be accessed at http://www.utexas.edu/vp/irla/Fisher-V-Texas.html
http://www.nytimes.com/2012/04/02/us/college-affirmative-action-policies-change-with-laws.html?pagewanted=all&_r=0 UC- Berkeley and UCLA are using a more holistic approach to admissions but they worry that those may be affected by this decision.
Reminds me of Libya before it was destroyed in order to save it:
(… Sins of Libya). There is probably a realignment in the U.S.eh? taking place to make education only available to the 1% and their servants:
(Why The Right-wing Is Anti-Education). The Supreme Court will be a part of this social engineering no doubt.
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.
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%.
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.”
http://townhall.com/columnists/thomassowell/2003/01/08/quotas_on_trial/page/full/
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.
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……