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
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.
@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.
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.
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.
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.
@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 lawschoolnumbers.com. Here is the link to just one of them, the Harvard chart: http://harvard.lawschoolnumbers.com/stats/1112/
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 lawschoolnumbers.com, 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.
@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)
This is way off topic, but here is a Google Bomb of some import. Enter the words ‘completely wrong’ in Google Images and this is what you get.
https://www.google.com/search?hl=en&sugexp=les%3B&tok=4q1HUUKnbwbdiYkXomCv2A&cp=13&gs_id=hw&xhr=t&q=completely+wrong&bav=on.2,or.r_gc.r_pw.r_qf.&bpcl=35243188&biw=1120&bih=501&um=1&ie=UTF-8&tbm=isch&source=og&sa=N&tab=wi&ei=faB1UPSoHcT00gG5woGAAg
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.
http://www.scotusblog.com/ half time…. The conservatives were quiet and the liberals were supportive of the Texas plan.
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.
@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.
How about simply increasing enrollment / admissions slots?
Also, Some high schools don’t rank.
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.
oops exists
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.
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.”
The Janitor,
Nice blog you’ve got there. And thanks for the first chuckle of the day with your 11:41 comment.
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..
etc
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.