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
Tony C. 1, June 24, 2013 at 12:38 pm
I think race exists in the minds of people …
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Indeed.
So is reparation.
Like giving the Jewish “race” a “homeland” in the wake of the German “purity” holocaust.
Or, like giving the African American “race” a “homeland” in the wake of the American slavery holocaust.
Like Mike S said, when discussing the disgusting slave addiction of George Washington, and other forefathers of Heavenly-White Amuka:
(Remodelling Memory For Life’s Sake). The context of a holocaust is one form of “race existing in the minds of people”, and it was just boys being boys is another form of “race existing in the minds of people.”
Tony C.
“I think race exists in the minds of people.
“Race” as it is used today is a way of using physical differences in the phenotypes of humans to distinguish groups of people.”
True and true. Also love exists, friendship exists. One chooses who to love, who to befriend. One can leave a lover, unfriend a friend.
I can choose to be a White Aryan Racist, the reasoning and definition would be totally false, the immense denial of the value of non whites would overwhelm me. I would be false soul justifying my falseness, with falseness.
My melanin content is an accident of fate. has no intrinsic baring on my worth, and over time phenotypes are simply a measure of immediate hereditary couplings.
There are no biological “Do not enter” signs that phenotypes can’t cross. …. This true statement alone proves the worthlessness of accepting phenotypes as some form of significant evaluation of human worth.
Race exists in the minds of people,…It sure does. Same as Status, Same as Royalty. It just depends how much BS one is willingly to believe in. Racism exists because it is accepted and taught. Today it was even bandied about the supreme court. No One looked at the Big Elephant, no one sees the big elephant. It is the minds of we humans that insist race is real, it is the conditioning of a racist philosophy we breathe in with every breath. Race is not in our genes, nor a factor in individual ability (ask science) it is a construct so powerfully structured in our racist society that few recognize it.
What did people think when black slaves were ruled 3/5 humans, ….Oh it must be true the supreme court allows it?
Tony I would like to see the Supreme court RULE on what race is, and detail its significance as a physical manifestation of worth and value,….. before they make any rulings on it. Or is this the premise for arguments today.
” I CAN’T DESCRIBE WHAT RACE IS, BUT I KNOW IT WHEN I SEE IT”
After 37 years in education I can honestly say that affirmative action not only is wrong due to the discrimination of those do not get in due to their color of skin but it has dumbed down our education. What is sad is if the only reason I got into college was my skin color then what does that say about me as a human being?
“currently swimming in a small pond” (nick)
I have used that metaphor over and over and in many different contexts. Any increase in diversity widens and deepens the pond and is of benefit to all who swim in it.
here is a distribution for IQ:
http://www.google.com/imgres?imgurl=http://geniusblog.davidshenk.com/images/bellcurve_2.gif&imgrefurl=http://geniusblog.davidshenk.com/intelligence/&h=385&w=450&sz=17&tbnid=dwg8HL98M1fGPM:&tbnh=90&tbnw=105&prev=/search%3Fq%3Dbell%2Bcurve%2Bfor%2Bintelligence%26tbm%3Disch%26tbo%3Du&zoom=1&q=bell+curve+for+intelligence&usg=__x8rq2XfLaiiC3DWSQjhYiTvTcrQ=&docid=vRUPj7QdooOlBM&hl=en&sa=X&ei=PojIUemmMO7q0QGk9oGYDA&ved=0CDwQ9QEwBA&dur=0#imgdii=dwg8HL98M1fGPM%3A%3BB6V7jz0eb-0v2M%3Bdwg8HL98M1fGPM%3A
if you notice the right side, only about 30% of the people in this country have an IQ above 110. And that is about the number of people with a college degree. College is self selecting for IQ. I imagine 100 years ago it was even higher.
James K.,
I’d agree with that but with a caveat. Some human behaviors are pathological and in some cases no amount of education can prevent/repair that. And as you note, it’s hard to fault the intent of AA, but I do question the methodology in light of the ultimate goal of a color blind society.
Gene reflects, “Many things we do that are bad for us as a species, we have the knowledge to know better, but simply lack the collective (and in particular instances – individual) willpower and/or wisdom to refrain.”
I think a critical mass of this has to be learned behavior, which then suggests we need better teachers, teaching from relevant texts. It is hard to fault the intent of affirmative action since at the core of it, it’s about people seeking better teachers.
We would do well to get out of their way.
Blouise,
I was too busy drowning in Geometry to notice any whiz kids!! 🙂
Rick Perry is always trying to run UT president Bill Powers off. So far he hasn’t succeeded, thankfully.
President Encouraged by the Supreme Court’s Ruling
Published: June 24
Following is a statement from University of Texas at Austin President Bill Powers regarding today’s Supreme Court ruling in the case of Fisher versus University of Texas. The ruling relates to the use of ethnicity as one factor in determining college admissions.
“We’re encouraged by the Supreme Court’s ruling in this case.
We will continue to defend the University’s admission policy on remand in the lower court under the strict standards that the Court first articulated in the Bakke case, reaffirmed in the Grutter case, and laid out again today. We believe the University’s policy fully satisfies those standards.
We remain committed to assembling a student body at The University of Texas at Austin that provides the educational benefits of diversity on campus while respecting the rights of all students and acting within the constitutional framework established by the Court.
Today’s ruling will have no impact on admissions decisions we have already made or any immediate impact on our holistic admissions policies.”
Before we judge others we should try to empathize (not sympathize) with them, put ourselves in their shoes.
What would it be like as a grade school student in Harlem or Detroit or Appalachia? What if you didn’t have good parents or good role models? What would it be like fearing death walking to school everyday as an elementary school student? What if your school didn’t own enough textbooks so teachers couldn’t assign homework?
Even though some may succeed, when most do not that is a systemic problem not a race problem. Great documentary “Waiting On Superman” proves that it is primarily an investment and educational problem.
Let’s try not to judge until we know all of the facts!
oops..holistic
Tony c, Overall it works well but I also think admitting a small number of students that do not fall into the top 10 percent category is also a good idea. That group includes out of state students, students with special talents and students from schools that don’t rank. A more holisitic approach is used with this group and many end up in the honors colleges. I think keeping that door is important.
James K.,
Yep. Some people even react with hostility toward those more intelligent than they are.
Also, any conclusion that genius is a fatal mutation is an appeal to probability, the conjunction fallacy, the existential fallacy, circular reasoning (possibly circular cause and consequence), cum hoc ergo propter hoc and not the least of which the fallacy of single cause.
We don’t know if intelligence is a lethal mutation for another reason: we have a fairly minimal grasp scientifically on what constitutes intelligence in our own species let alone others. There is some evidence that other terrestrial creatures are quite intelligent problem solvers with memory, self-awareness and forethought but because of differences in their biology and environment our current understanding of the scope of their intelligence is limited. I’m thinking specifically of dolphins and octopi.
Many things we do that are bad for us as a species, we have the knowledge to know better, but simply lack the collective (and in particular instances – individual) willpower and/or wisdom to refrain.
Swarthmore: I do not advocate the Texas system to produce racial diversity; if it does I am fine with that.
I advocate it because it seems more fair (to me) to measure relative performance within an environment than absolute performance. I don’t care if the winners are green or blue, I think that if you have a hundred high schools in a wide distribution of economic circumstance, skimming the cream that rose to the top within each is a good idea, some recipe of natural intelligence, work and dedication got certain students to the top of their little hill. Perhaps the mix is very different in each, but to me their academic accomplishment is at least one reasonable measure of “merit.”
Blouise, When I had a gifted student or athlete the first thing I would say to myself, and I would often repeat it, “Don’t f@ck this kid up.” I had a kid w/ the most perfect and natural swing, he went on to play Division 1 baseball on a full scholarship. I went a bit further w/ that kid. I told him “Don’t ever let anyone f@ck w/ your swing.” Minor adjustment, ok..but no major changes. The Good Lord gave him perfect hand/eye coordination and a perfect swing..a blessed twofer.
For the same kid, and for other very talented athletes and students I would constantly remind them they were currently swimming in a small pond. They were the biggest fish, but as they moved up the stream academically, athletically, or both[the aforementioned baseball player was a National Honor Society student] that there was ALWAYS..ALWAYS going to be someone smarter or better than them. That was usually all the motivation needed because they were smart enough to understand that they needed to continue to improve. I would also say sometimes, “One of the saddest things in this world is wasted talent.”
This is a good discussion, I hope I don’t f@ck it up.
“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.”
Bingo, Mike. No Utopian system will ever work and not just because of human nature. Because of mathematics. Nations, or to use the broadest samples space – humanity, operate on such a scale and with such complexity that as a mathematical certainty error is unavoidable. The best that can be done is mitigation to maintain a state as close to equilibrium as possible. That’s just the nature of complex systems. Those are ultimately the same reasons another famously Utopian system failed so miserably – Communism.
On the issue of race as an admissions criteria, my real concern is this: if the goal is a color-blind society, doesn’t this perpetuate the opposite by not focusing solely upon academic merit? Diversity is a good thing for society, but the idea of race as an admissions factor seems counter-intuitive and possibly counterproductive to reaching a state in society where we meet Dr. King’s dream of a society where people are judged by the content of their character (or content of their intellect as it may be in the instant matter) rather than the color of their skin. Encouraging diversity is a good thing, but it’s truly counterproductive if any effort to that end lapses into simply a quota system. Like many things surrounding the issue of racism, there is no one single solution, but perhaps the focus here is at “the wrong end of the stick”. Perhaps the solution is to work to provide a social environment that creates an equal opportunity to perform well in the college admissions process by removing the barriers and causation that hinder that, like a lack of quality free public education, poverty, hunger and systemic racism where it exists and encouraging social support systems that promote a chance for greater success like public libraries, laws that find solutions for domestic issues that don’t simply tear families apart in trying to address troublesome domestic problems and stop jailing non-violent offenders.
Just a thought.
I think race exists in the minds of people. Claiming it does not exist because you cannot manufacture a precise definition that fits all circumstances is equivalent to claiming that love does not exist, friendship does not exist, “great songs” or “great writing” do not exist.
All of those things DO exist; and there is no “scientific” definition for any of them. (If two people claim to be friends, no test can conclusively prove they are, or are not.) “Race” as it is used today is a way of using physical differences in the phenotypes of humans to distinguish groups of people.
David Blauw 1, June 24, 2013 at 11:56 am
Race does not exist,.. Racism does.
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What we call “racism” is deep-seated, learned bias which is perpetuated by the culture and social environment a person comes from.
The focus is skin color, nationality, ethnicity, and the like.
Disproving the old myth of “race” did not dampen the flames of hatred that “racism” starts and then expands into discrimination and violence.
The cultural myth of race is, nevertheless, as strong and blind as if race did genetically exist.
Just read some of the Mike S guest posts about myth for some additional background as to the strength of myth in American culture.