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
“What is the unit of merit, is it success, or is it effort?” (Tony C.)
What a great question and perfectly placed in context!
I wish some genius would come up with a test or series of admittance tests that measures effort rather than success. The semantics/shading between those two words when placed within the context of the question is fascinating. If one could measure the effort on either end of the scale (low to high) one could identify not only the determined but also the talented. Fascinating
Mike: 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.
I do not believe that is true; Einstein was a poor student (in the view of his professors) and his job in the patent office was not the result of merit, but a favor from a relative. I believe the Wikipedia entry is accurate.
A quote: After graduating, Einstein spent almost two frustrating years searching for a teaching post, but Marcel Grossmann’s father helped him secure a job in Bern,[37] at the Federal Office for Intellectual Property, the patent office, as an assistant examiner.[38] He evaluated patent applications for electromagnetic devices. In 1903, Einstein’s position at the Swiss Patent Office became permanent, although he was passed over for promotion until he “fully mastered machine technology”.
Nobody put him in a “position,” in school he learned to write a paper and submit it for publication, which is essentially all he did. Fortunately for Einstein, hard work was not a necessity of academic publication (and still is not), peer review (which is something I am both subject to and participate in) evaluates the originality and merit of the ideas and arguments presented, not the person or the amount of work that went into them.
“My point is those who are certain he is a racist, and have called him that numerous times, should now be calling for his recusal since this is about race. Pretty simple.”
And who might those be? Beyond that though since he won’t recuse himself what point are you really making? It would be nice to add any of your points of view to the topics at hand on this thread.
shared witnessed participated in the birth of my two daughters. I’m glad I was the one standing up!!!
Anyone that thinks women are not tough has never seen women giving birth and the look in their eyes.
I have stood twice in front of the maternity ward and beamed at my child. Both times I found myself beaming at the other newborns.
Both times I saw the other new Dads beaming at their newborns, We Dads also beamed at each other. There is no BMW dealership anywhere ever that had better beamers than that small area with New Dads beaming at their Newborns.
There was no distinction for melanin content listed on the little cradles these precious infants were nestled. There was no distinction of the care they were given by the goodly nurses attending them. …. And there was NO distinction between the Beams of the Beaming Fathers.
No we wait to get the newborns home before we and society start to mold and fill these precious new ones with hate and ignorance. The fickleness of DNA coupling of melanin content has morphed into a purposeful excuse to promote the superiority or inferiority of skin color. I call BULL LONEY on this.
The falseness of race is a convenient excuse for the continuance of tribalism.
I hope the enlightenment of the human species continues and we grow beyond this primitive vestige of tribalism still deeply embedded in our caveman brain.
http://science.howstuffworks.com/life/inside-the-mind/human-brain/brain4.htm
We humans perform these functions as well, and so have a “reptilian” brain built into us. That means we have the same parts of the brain found in reptiles, namely the brain stem and the cerebellum.
We will never lose the reptilian part (caveman part) but we sure can work on the higher human areas. We the human species can raise ourselves higher.
We can start by recognizing which reptilian emotions (or adrenalin releases) we don’t need anymore.
“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.”
Gary T,
What examples can you provide?
“If it took you that much effort to make a simple answer, then I see your agenda getting in the way of your realism.
The simple answer is “yes”, genius does warrant merit.”
The effort was minimal. The necessity to clearly state my opinion required more than the simple “yes” that satisfies you. The problem is the definition of genius is not so easy. Some here define Von Mises as a “genius”, others define him as a fraud. From an academic standpoint, which is what this is about, genius is never that apparent. From an economic standpoint genius does not always garner merit and one person’s genius is another’s dim bulb.
“However you pretty it up, and package it as being “fair”, it is what it is, the preferential treatment of someone for reasons other than merit.”
I understand that is where you are coming from in your perspective, but I disagree. The element of fairness is a worthy topic when one discusses how a society should be organized. I know of no society that has ever existed that was based on merit, but will grant that I know of no society that has ever been fair. Perhaps we are both Utopians, but envision it somewhat differently.
“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.”
While I agree with your first premise that the idea of “race” is meaningless, I reject the notion of “breeds” as it might currently be formulated. I don’t doubt there are human “breeds”, but I do doubt and see no evidence that they are based on the melanin content of the skin. I don’t believe we have the knowledge yet to define breeds genetically and I think the “science” is equal to the 19th Century “science” of Eugenics. The problem exists in measurement of characteristics that gets polluted by pre-conception and pre-judgement. What were called “traits” in many cases then were really socio-economic judgments. I fear that is still the case today in genetics. Even scientists are guilty of pre-judgments of which the are consciously unaware and thus design and conclusions of their data may be skewed.
I’m away for the day now and will respond to any of your responses tomorrow.
Cowards
My point is those who are certain he is a racist, and have called him that numerous times, should now be calling for his recusal since this is about race. Pretty simple.
I’m mystified why you would want a call for recusal of the racist Scalia, since the decision on this case is today? Another example of your famously unfunny ball busting?
Secondly, most bullies are also analingually inclined. That’s why they’re bullies in the first place.
Barkindog, Firstly, You just gave a superb and concise history of Italian Americans. I’m quite familiar w/ The Hill, having friends in STL. Played my share of bocce ball up there while drinking some dago red and then a good peasant meal. You nailed the regional pecking order, that was an important factor in JoeD’s life. He was a poor Sicilian growing up in a city comprised of many northern Italians. A northern Italian started the Bank of America in SF.
Getting on bigotry, it’s always the group JUST above the lower class that is so bigoted. That’s why the Irish hated Italians so much, and the list goes on. You can trace the lowest class people in the US by seeing who were the boxing champs during the different eras. So, while the ugly dynamic you described did exist[Do The Right Thing, covered it well], it has waned quite a bit. The more positive aspect of being shit on for being Italian is it also stoked the empathy gene, which is strong in the Italian culture. Vince Lombardi had the most black players and even supported a player marrying a white woman in the 60’s which was a HUGE taboo. Ralph Branca was one of Jackie Robinson’s empathetic teammates.
Finally, understand, there are people here who routinely have called Scalia a “racist”, and they gave no nuanced qualifiers..just shoot from the hip, “racist.”
rafflaw: How do they get ahead if universities do not have some leeway in deciding how to obtain diversity in their students?
The first problem is that leeway cuts both ways, the leeway to include based upon race is the leeway to exclude based upon race.
The second problem is that race is increasingly less correlated with “disadvantaged circumstances,” so perverse decisions are increasingly made; like admitting the son of a black millionaire instead of the son of a white janitor, when the former has a 3.0 GPA and the latter has a 3.1 GPA.
If we want to make some attempt to level the playing field in admissions with regard to unequal opportunity, then we should stop looking at proxies for unequal opportunity (race) and start looking at the relative achievements made instead.
One way of doing that is as Texas did it with their top 10% rule: How did students do relative to others in the same schools, or at least in the same school districts? Something like that can removes biases introduced by wealth and school quality, and schools cannot game that system very easily because their students are competing with each other for relative rank (for example, inflating grades or making tests easier doesn’t get more of their students into colleges).
If we want to address disadvantage, we should look for that, we should not assume that the color of somebody’s skin can determine the quality of their K-12 education. That was once true, and may still be partially true, but it is no longer true enough to be the basis of a decision that can have significant and lifelong ramifications for a child’s life.
Gary T 1, June 24, 2013 at 10:19 am
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.
==================================
You need not go any further, because you have dropped off the edge of scientific reality:
(PubMed). About 98-99% of the human genome is microbial, and a tiny 1-2% is non-microbial.
Your concept of race is something that comes from your bridge too far which does not reach to the other side.
WASHINGTON (AP) — The Supreme Court has sent a Texas case on race-based college admissions back to a lower court for another look.
The court’s 7-1 decision Monday leaves unsettled many of the basic questions about the continued use of race as a factor in college admissions.
Justice Anthony Kennedy, writing for the court, says a federal appeals court needs to subject the University of Texas admission plan to the highest level of judicial scrutiny.
The decision is out – 7 to 1… not a bad decision for those that favor affirmative action. Very pro-affirmative action Ginsberg dissents. Kagan recuses.
“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.”
And your point regarding this topic……….is?
Mike,
If it took you that much effort to make a simple answer, then I see your agenda getting in the way of your realism.
The simple answer is “yes”, genius does warrant merit.
I don’t think that Scalia is a “racist” in your classic sense. He is an American of Italian background and that is big. Italians put themselves on center stage. They get dissed for being Italian. And then there are Sicilians who get dissed for being Italian and Sicilian. In Saint Louis there was discrimination by Northern Italians against Southern Italians especially Sicilians. There was a community called The Hill. It was populated mostly by Northern Italians. They did not want Sicilians living there. The Mafia come mostly from Sicily. So, here you have a guy like Scalia who has had great advantages in America, born here, done that, goes to good schools, put on honors lists. But deep in his head there is a hierarchy. And by god or Dog, if those Northern Italians are going to dis the southern Italians then he has to have some upstream advantage over somebody and it might be the African Americans.
For those of you who have never been a: dog, and Italian, a Sicilian, or a lower ranked person on Earth then this little comment might give some context to a guy like Scalia. There is no such thing as an Italian Dog so don’t give me apCray about that.
“Diversity”, a really charged newspeak word, is just another form of racism.
However you pretty it up, and package it as being “fair”, it is what it is, the preferential treatment of someone for reasons other than merit.
As Swarthmore suggested earlier, this is a bogus case. Ms. Fisher was not denied access due to any race related program. That being said, the poor, whether black or white or Hispanic or Asian, are disadvantaged on a daily basis. How do they get ahead if universities do not have some leeway in deciding how to obtain diversity in their students? Doesn’t diversity help the students, the university and the country as a whole?
Ross:
“The government is definitely too big in some areas but the worst possible option is no government at all.”
Yeah, so what is your point?
How many times to I have to correct the misconception that libertarianism is “no government at all”?
Government exists quite effectively under libertarianism, there is absolutely a government in place by libertarian fundamentals.
Libertarianism is NOT Anarchism.
Re: Gary T.
The government is definitely too big in some areas but the worst possible option is no government at all.
James Madison and many of the Framers did want to protect minority groups. In less than 30 years the minority group will be European Americans and the roles may reverse.
Madison warned about the “tyranny of the majority” or pure democracy – where the majority group has too much representation. Today immigration, gay marriage, warrantless surveillance, etc. are good examples of the minority issues being under-represented or ignored.
American government was designed to a “constitutional democratic republic” where citizens vote (democracy) for “representatives” (republic) and Congress/state legislature is restrained by the U.S. Constitution.
Like any law, the U.S. Constitution is interpreted by both the “letter” and “spirit” of the amendments, articles and preamble. It is designed for equal opportunity NOT equal outcomes. It gets complicated when you have Supreme Court rulings like “Brown v. Board of Education” – denying equal opportunity (childhood education) can have consequences that last over 50 years. An African-American child that lost his education is at a life-long disadvantage making less income over his life-time in most cases.
For example: On Affirmative Action it depends on whether you view a 5 year context versus a 50 year context – very complicated issues.
nick:
can you please stop with your serial a$$ kissing. 🙂