With Fisher, the Supreme Court will again face 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. Now in 2013, Fisher v. University of Texas Austin could create a bright-line rule that bars the use of race as a factor . . . or not.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 Bakke. Justice Lewis Powell allowed for only a limited use of race for the purpose of achieving “diversity” in classes. Notably, in Bakke, the Medical School at the University of California at Davis had a more modest program over all by setting aside 16 of the 100 seats for “Blacks,” “Chicanos,” “Asians,” and “American Indians.” Those slots were justified as a matter of diversity, but found unconstitutional by the Court. However, the Court was deeply fractured. Five justices Powell and the plurality found that Bakke had to be admitted and that the weight given race was unconstitutional.
The 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.
The fact that the case continues to be referred to as the “affirmative action case” shows how little has changed since Bakke when the Court supposedly closed the door on affirmative action in admissions. By allowing race to still be used for diversity, educators sought to achieve the same numerical goals as a matter of diversity and achieving a racial “critical mass.”
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. 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.
UPDATE: The Kennedy decision does not rule out the use of race as a factor and appears to continue its support for race elements in diversity. However, it rejects the use of good faith as a showing. Instead, it wants proof that a race-nuetral approach is not possible. That could present a challenge since the top-ten-percent program in Texas achieved a far degree of diversity without using race as a factor.
Here is the ruling: Fisher decision
nick, Scalia probably has made far more homophobic statements….no recusal there.
nick:
there you go kissing a$$ again. I wonder if Jake Tapper knows?
Jake Tapper and Mr. Turley are a good team. Tapper has evolved into my favorite MSM reporter.
Since it’s been made clear in this forum Scalia is a “racist,” shouldn’t he recuse himself here. Just quoting an august member of our Guest Blogger lineup.
Mike S: I also do not think anybody’s academic success is unfair (presuming no cheating was involved).
Some of us are inherently (either because of genetics or instilled by culture) better academic performers than others. Just as some are better singers, actors, athletes, musicians, negotiators, sales men, mechanics, artists, chess players or businessmen.
I do not consider it an “unfair” advantage to be naturally suited to some task; even if that task is academic achievement.
“With Fisher, the Supreme Court will again face 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. Now in 2013, Fisher v. University of Texas Austin could create a bright-line rule that bars the use of race as a factor”
Professor Turley the reason settling the question of race is so difficult is because the word race has no scientific standing. I would get a panel of scientists to testify to this fact.
Using a bogus senseless word for a 1000 years does not change the bogusness, factless, meaninglessness of the word. … I must pause now, my computer warning light for being low on esses just came on. LOL.
How about recognizing that the term race is a vestige of the bogus term Creationism. The courts have tackled that word, I have yet to see the courts, or liberals, or conservatives discuss the complete fallacy of the term race. …. We are all Africans, we are all one species, we are all human.
Race is a tool word for White supremacy. It has no other purpose.
…. or a tool word for whatever the common dominant amount of melanin the average ruling population consists of.
If anyone can counter this statement with scientific fact that I am wrong
… PLEASE PROCEED.
Race is not a meaningless word.
Firstly even if it is just based upon perceptions, and the reactions that people have to those perceptions, it is meaningful in a policy anticipation way.
But I would go further, and say that human races are much like dog breeds.
In both cases there should be no question that the breeds come with common traits respectively. What those traits are is another question, but to simply deny them as existent is head-in-sand mentality.
TaySachs, Sicklecell, are just examples that are race related, on the bad end.
There are race related benefits on the good end too, but it is not PC for discussions like that in polite conversation.
Mike Spindell:
Well then you can just call me a starry-eyed idealist, a Utopian dreamer and a pollyanna.
The thing is, libertarianism doesn’t expect the best out of people at all, in fact it is a harsher mistress than most, but it is a fair one as well.
We haven’t had a clean libertarian system in place, but whenever it manages to creep into existing governing systems, suddenly there is huge prosperity and overall satisfaction, except from special interests.
What will be proof positive, is when the Free State Project institutes a full blown libertarian domestic governing rule in NH. Then we will all see how successful it is, or isn’t.
Mike S: Was this meritocracy, or even fair to the students who worked so hard for their grades.
That depends entirely on what you define as having merit. Is it brains, memory, problem solving talent and the ability to employ those under pressure, or is it “hard work?”
Does genius warrant “merit”?
That is not a rhetorical question, I really do not know the answer. Most modern advances (that I see) are made by the highly intelligent. There is an element of work, but some of the most stunning insights are not a result of hard plodding work, but a result of genius inspiration, and seeing the problem in a different light. The hardest part is verifying them and writing them up (tasks that can be delegated to graduate students). Should we deny geniuses a college education because they did not demonstrate to us a committed work ethic?
What is the unit of merit, is it success, or is it effort?
“Does genius warrant “merit”?
That is not a rhetorical question, I really do not know the answer. Most modern advances (that I see) are made by the highly intelligent.”
Tony,
It’s a fair question for which I don’t have the answers. I do know that my career didn’t really take off until I flunked out of law school after 2 1/2 years at night. I approached Law School in the same way I succeeded in H.S. and College, did little work through the year and used my reading speed and comprehension to “learn” enough to ace the finals. Law School doesn’t work like that and it caught up to me, or rather NYState Property Law did. BTW I only got into a good law school because I aced the LSAT’s. I passed through University with a “gentlemanly C”. I finally learned the lesson from that failure that I needed to also put hard work into the mix and when I got a scholarship for my Masters it was because I outworked the competition. Any success I achieved in my career no doubt while in part came from an innate intelligence, was certainly aided by the fact that I was intense about putting in the effort I needed to produce excellent work.
This returns us though to the topic at hand. Students who arrive at the University by benefit of admissions preference still have to work to get through. No one is claiming, right now at least, that once admitted via affirmative action these student get degrees without deserving them. They need to be able to do the work. I believe this is true in the affirmative action described in this case which is merely academically based. Of course scions of wealthy families and athletes on scholarship can pass because of other factors. Nelson Rockefeller for instance had Henry Kissinger as a Professor at Yale and lo and behold hired Henry for a large salary after he graduated.
Rockefeller was known to pay for term papers and other methods to get him through, he was not adept academically, nor do I think G.W. Bush was either.
Then again I don’t think Einstein was any great student, but his brilliance did shine through to people putting him in a position to produce what he did early on. It’s a Hobson’s choice.
Fisher had the option to gain admission through another route that many students take. They choose to go to one of UT’s other campuses such as UTA or UTD and transfer in after a year of academic success. They make it relatively easy to do this. Instead she chose to go to LSU.
Another unvoiced part of this problem is someone like me. In High School I finished 78th in a class of 93. However, my SAT’s put me in the top percentile and a standardized State test awarded me a full tuition scholarship. I finished so low because I never studied until the standardized State mandated finals called the NYS Regents Exams, rarely did homework, had a terrible disciplinary record, but boy could I ace standardized tests. Was this meritocracy, or even fair to the students who worked so hard for their grades. I think not, but it sure advantaged me. It was decidedly unfair and that is why too most standardized testing and college admissions are hardly based on merit. In cases such as this, the discussion of the underlying reality of the problems of the U.S. educational system are rarely dealt with and that is where change needs to come. My academic “success” was unfair, but that was also true of G.W. Bush, Nelson Rockefeller (who literally bought his professors) or JFK. In an inequitable system is it really so terribly unfair that some from underprivileged backgrounds have some advantages thrown their way?
“legacy programs at Yale, Harvard and the Ivy League” (Mike S.)
I agree with the opinions expressed in your post @9:01am and have always refused to take seriously the opinion of any university admitting “legacy” students.
http://www.propublica.org/article/a-colorblind-constitution-what-abigail-fishers-affirmative-action-case-is-r “A claim that race cost Abigail Fisher a place at the University of Texas is not true.” The truth is she is a legacy that thought she should be entitled to go.
“After that consideration, it only properly comes down to a meritocracy, who is the more deserving as an individual.”
Gary T.,
This would be the ideal I agree. Seriously Gary do you really think a meritocracy currently exists in this country, or that those who really benefit from the lack of a merit system would ever let it be put in place. Granted there are some fields where merit is the rule. Where it isn’t though is in the higher reaches of the corporations that control our economy. For every Bill Gates, or Steve Jobs you quote me (and a strong case can be made that both were advantaged) I will give you two Donald Trumps and David Koch’s. My argument with libertarian philosophy is not that it would be a bad system, in fact I rather like it, but its flaw is that it is a Utopian system that doesn’t take into account the current state of human nature.
Since Fisher was not accepted under the top ten percent as her class rank was below the top 10%, she applied through another program that generally admits students from high schools that do not rank. Fisher’s scores, grades and leadership qualities were not outstanding enough to be admitted through that avenue either so she sued. It is not as if she was an exceptional student that was turned down in favor of a minority. Texas does not have enough quality universities to serve the growing population so the flagship UT Austin is extremely difficult to get in these days.
This is a very complex decision and I would have wished that a more distinguished SCOTUS, made up of deeper thinkers would be deciding it. In my opinion we need to look at this issue in the contexts of certain parameters.
1. Systemic prejudice against people of color is generally rife throughout this country.
2. Black, Latino and Native American students generally are still confined to segregated schooling via the mechanism of poverty, rather than the overtness of years past.
3. The implementation of the SCOTUS ruling in Brown v. Board of ED was not only a failure, but directly led to the voucher and Charter School schemes that followed, effectively re-segregating education.
4. The law of unintended consequences, aided by the “clever” implementation of de-segregation actually increased racial hostility between “races” since only middle and lower middle class schools were affected by the silly busing solution.
5. Finally the racial divide in this country, while fueled by bigotry, is essentially one of economics and economic opportunity. While there is a minor advantage given to White students from lower economic backgrounds they too ar disadvantages by a country where the economic divide between rich and poor is growing rapidly.
6. Beyond the purpose of giving children the knowledge needed to assume the citizenship roles of adulthood, education in this country functions primarily as an opportunity for one to have social mobility. Yet in the last 40 years America has become one of the most stratified countries in the Industrial World in terms of lack of social mobility, this despite attempts to assist students coming from poverty.
In that context this coming decision will have little effect on the issues of race and of poverty. Those issues and the reality that drives them are the important ones. I write this even though I’m aware that those who would end quotas represent a regressive and somewhat bigoted element in our society.
As to the direct issue of the equity involved in this case I also see a mixed bag. The entire admissions process to higher education is farcical and I illustrate this by legacy programs at Yale, Harvard and the Ivy League. Getting a degree from schools such as this practically guarantee economic success. If Universities already use criteria to the advantage of children of privilege than where is the inequity in giving assistance to children of dis-advantage?
There will no doubt be some who respond here with the personal complaint that the opportunity of themselves, or someone they know who was white was limited by preferential treatment for someone of color. This happened to me actually during my career. While I was disappointed, I was also aware that in most careers opportunities are given not on the basis of qualification, but via other factors like nepotism. The intellectual disconnect is that there is a myth of this society being open to opportunity for every one if they just work hard enough. The myth is untrue and pernicious because it covers up the reality that connections, or social situation trump hard work and intellectual capacity. That is what really needs to be addressed to attain equity on our society, but we are sidetracked by issues such as this that truly have minor effect in either direction.
Personally, I like an extension of the 10% rule used in Texas: The classes get filled with the top X% they can get. Depending on the quality and size of the school, that may be the top 1%, top 20%, top 50%, whatever.
If you have room for 1000 incoming freshmen, go through all the applications, offer the top 1000 “confirmed” admittance and the next 1000 “marginal” admittance, with a time limit on their acceptance. If only 800 of the top 1000 confirm (because, say, 200 got better offers elsewhere) then start processing the marginal admittance students that confirmed. When you reach 1000, inform the remaining marginal admittance students ASAP that the slots have been filled.
As far as state colleges, we can mandate all of this happen on a schedule that gives students a week or so to consider their options and choose their school.
I support reality. Whether that makes me a racist or not depends upon what you define as racist.
To include a minority just because of his race, is just as racist as to exclude a minority because of his race.
After that consideration, it only properly comes down to a meritocracy, who is the more deserving as an individual.
If after that consideration we find that on the average Asians score higher than whites, and Ashkenazi Jews score higher than Asians then that is simply a reality we have to live with, and let all the accusations of racism lie where they may go. It should not be a matter of government policy.
We will see what dribble they espouse…. Now it depends on which side you support….
Really enjoy your work.Just fyi, typo in the first sentence below.)
The “human race” is more scientifically accurate than the “white race” or the “black race.”
So, what is really being litigated is skin color in a social context, a national context.
The struggle in the litigation and in the congressional lawmaking is with the extreme bias we have exhibited during the slavery holocaust.
“Thus, if you are white or Asian, your performance in school and tests may be effectively negated by the color of your skin.”
That seems to be a form of reparation, like a class action lawsuit.
I will bet that Justice Thomas will stay Unreconstructed on this issue in the Texas case. That word means that you as a lawyer or a judge do not agree with the tenants of the Reconstruction Amendments to the Constitution passed after the Civil War. That would be the 13th, 14th and 15th. Each of those Amendments stated in a paragraph that Congress can pass legislation to effectuate the constitutional provisions and intent. Uncle Clarence had a Confederate Flag on the wall behind his desk when he was an assistant attorney general for the State of Missouri. It is said that he said that it demonstrated that he was Unreconstructed. This was brought up in his confirmation hearings but Congress was more concerned with his sexual behavior. It is pretty clear to me that Thomas is on the bench and particularly on he Supreme Court because of his race. There is some irony here. I never forget that he replaced Thurgood Marshall. This case on affirmative action in college admissions is not as important as the Voting Rights Act cases coming up. Is not the Shelby County case due this week? Perhaps tomorrow? If I had been asked to argue that case I would have asked the Justices the bubble question. i.e. How many bubbles in a bar of soap? That was the literacy test in some southern counties.