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
No everyone loves a genius. Those related to me by blood still call them “those egg-head types tellin us what to eat!”
Gary T claims “Not that I agree with that at all, as the evidence clearly shows otherwise in so many examples, but it is a viable premise at least to oppose.”
Please produce this evidence. As Dredd suggested, please reference texts written within the last 10 years while doing so.
Things are not nearly as nice and tidy as you would like them to be.
Gary T 1, June 24, 2013 at 11:18 am
Dredd:
You had a little prima facie credibility with the argument that there are no human breeds, that we are all the same. Not that I agree with that at all, as the evidence clearly shows otherwise in so many examples, but it is a viable premise at least to oppose.
But really, genius is a fatal genetic defect?
Now who sounds like the fatalist conspiracy nut.
Not something I addressed anyway – I said genius warrants merit . . . even if it is a fatal defect :^))
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Quoting yourself with no back-up is unavailing.
Whether there is merit to your position would depend on your intelligence or genius.
“Trust me” I am a genius or “trust me” I am intelligent is also unavailing.
If humanity destroys itself or its civilization by either nuclear weapons or pollution, which remains to be seen, will determine the merit of human intelligence and genius.
You seem to thnk that spouting off opinion, your opinion, is tantamount to proof of both the notion of race and of the notion of intelligence, including the highest level, genius.
That is quite a feeble position without merit.
Race does not exist,.. Racism does.
rafflaw: I think that effort plays a big part in any academic setting,
For most people, but not all. It certainly wasn’t true for me; all formal classes for my bachelor’s degree were a piece of cake. (and I graduated with a 4.0 GPA).
“Ginsburg drew some laughter in the courtroom Monday when she said those who consider the 10-percent system “race-neutral” are kidding themselves.
“But for de facto racial segregation in Texas’ neighborhoods and schools, there would be no ‘top 10 percent’ law,” she said, before reading a quote from Harvard law professor Thomas Reed Powell.
“If you think that you can think about a think inextricably attached to something else without thinking about the thing which it is attached to, then you have a legal mind,” Powell said, prompting Ginsburg to add, “Only that kind of legal mind could conclude that an admissions plan specifically designed to produce racial diversity is not race conscious.
Read more: http://www.politico.com/story/2013/06/supreme-court-affirmative-action-ruling-fisher-university-of-texas-93237.html#ixzz2X9KGdL3j
nick,
A$$-kissing is an art form whereas kicking a$$ is a sport … I support the arts 😉
My mothers heritage is Irish, my Fathers German. I have freckles.
What race am I. I am of the human race PERIOD.
Anything beyond that is prejudicial BS. socially molded, typical human weakness need, to feel different or superior, or inferior.
WHITE RACE !!! what the heck is that? BLACK RACE !!! you got to be kidding. Skin color is a natural evolutionary response to sunlight. Put all of Europe in Africa for 10,000 years and Euros will be Melanin enhanced.
(Dredd I might need help on this one) ….
The black slaves were ruled 3/5 human by our unenlightened bigoted low ethic (in significant ways) ruling class. What was the purpose of this?
Economic enhancement for one…….. OR
A conscious soothing, “look away”, from the monstrous actions of the ruling societal powers inhuman reptilian treatment of others.
And to assuage guilty consciencenesses we even used the Bible to justify horribly mistreating equal human beings.
If I claim to be White, if I claim my skin color somehow makes me physiologically different from differently melanized people…..
THEN I AM A RACIST. ….AND SO ARE YOU ALL.
I ain’t white I am a human being. I see no fallacy in my statement.
As someone stated earlier race is a perception. Yes it is, that is all it is. A stupid, divisive, ignorant, self centered, BullCrap perception.
Again Professor Turley, this is my reasoning why the courts will never reach a just decision on Race.
raff, nick, et al,
Any adult worth their salt emphasizes effort when advising a young person but what about the genius or uniquely talented who experience success with very little effort (you know raff, all those dam math whiz kids) … the beauty of Tony’s question lies within the unspoken.
Tony C.,
Results always matter for any talent must be molded, refined, trained etc.
What I found fascinating within your question was “What is the unit of merit”. If we are going to attempt to measure merit for admission purposes (and this would be admission into any number of fields from academia through the arts and even into apprenticeships such as Tool and Die), what is the unit of merit (effort or success) to measure and how. There are many nuances within that simple question.
SWM, I’m merely more cautious in throwing out, “racist”, “homophobe.” “sexist”, etc. I was called a sexist once for making a blonde joke. I have quit my jobs, jobs I loved twice, to help advance my wife’s career, moving from KC to Chicago and Chicago to Madison. I have supported and motivated my wife in writing her book. But, I tell a blonde joke in the People’s Republic of Madison and I’m a sexist. I don’t suffer fools or foolishness well.
Blouise,
I think that effort plays a big part in any academic setting, as well as in life and in athletics. In high school, I was a lot like Mike S. in that I just played sports and did not give the effort that I really needed in order to succeed. Once I learned the hard way that I could not get by merely on the merits of my good looks :), I was able to succeed by working as hard as I could. I may not have the inherent talents of some, but I got the job done.
Sure none of you meant it in a harmful way but history has tragic examples of why humans should NEVER be compared to animals like breeds of dogs. One of the best books out there is “Medical Apartheid” by Harriet A. Washington where the U.S. government hired Nazi scientists following World War Two, then tortured and murdered U.S. citizens (primarily African-Americans) because using the dog breed analogy they were inferior human beings. To this day most of the doctors have never been criminally prosecuted.
It can affect things like voters perceptions of programs like Head Start to rebuilding our inner cities and poor rural areas. If some citizens are viewed as inferior to others it has consequences large and small.
Dredd:
You had a little prima facie credibility with the argument that there are no human breeds, that we are all the same. Not that I agree with that at all, as the evidence clearly shows otherwise in so many examples, but it is a viable premise at least to oppose.
But really, genius is a fatal genetic defect?
Now who sounds like the fatalist conspiracy nut.
Not something I addressed anyway – I said genius warrants merit . . . even if it is a fatal defect :^))
Blouise, Having coached baseball for decades I totally agree w/ you. I’ll take the effort kid who loves the game. That love will propel him/her past the cavalier talented player every time because they’ll play the game all day. Now, let me put on some more butt chapstick. I’ve got a lot more ass kissing to do today.
Don’t want to dispel any myths but this case will turn out to be a death nail to those in favor of Affirmtive Action…. What he Sct really said….is we really don’t want to decide this….. So…. Until… You have such a valid proposal in place…. You all can do wht you want….. But, if you dont like it you can come back….. And in 2 years…. The reality will be is that the minority races will mo longer be the minorities…. And there will be no case to decide…..
Gary T 1, June 24, 2013 at 10:33 am
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.
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Once again Gary T, you adhere to the old science books in the second hand store.
They look good on the shelf, but they are only empty space holders.
There is competent evidence that genius is actually a lethal mutation, and lesser degrees of cognition may be too:
(What Kind of Intelligence Is A Lethal Mutation?). The source of that material is several scientists who have genius and merit.
“There are many here among us who feel life is but a joke”, but some among us will live long enough to see whether the hypothesis can be falsified or not.
Blouise: Sometimes it is results that matter; as in your own profession. If one person practices every waking moment but still cannot avoid mistakes, they will lose out to somebody that can party all night, sleep in, practice for an hour and play perfectly.
Bron, I picked up some special antiseptic chapstick which should protect me from fecal bacteria. You would believe this, but I truly don’t EVER remember being called an ass kisser by ANYONE. I’m called a bully, alpha, hateful, mean, and ass kisser by the same person. I guess I am one of the very rare people that could play every position on the baseball field..NOT!.
Oops, sorry, Einstein’s job was not a favor from a relative, but a friend.