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
Your refusal to understand or admit that social psychology is a real science and different from general psychology as applied to individuals does not mean that it is not a real thing and distinct from individual psychology.
After all, what kind of scientist or field of science would dare think to give something a different name for being a different thing?
That’s just crazy talk.
“I prefer to cast it as .999 brain dead vs .990 brain dead.
Not worth gambling over.
Especially with that primative aquatic foggy rape brain of yours.”
Weak ad hominem argument and non-responsive on the merits.
That’ll get you nowhere fast, Dredd.
Or you could get some hard causal evidence that intelligence as a lethal mutation is science fact instead of hypothetical supposition.
Just a suggestion.
Gene H. 1, June 24, 2013 at 4:18 pm
Actually, there is a big difference between individual and social psychology.
Certainly more than a beer’s worth.
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Means nothing without distinction.
You always leave out the Brady v Maryland thingy … it is the proprietorial race I suppose.
David: What? “Phenotypes” is not an argument; it is a fact; the phenotype is the body, it is the expression of genes, as influenced by a particular growth environment that can cause alteration in gene expression.
I was going to let it slide, but both you and Dredd fail to comprehend my post. Race does exist, even if we cannot pin it down. You want to wander into emotionalism and poetry, feel free, I am not being poetic or emotional.
The typical American, shown a photograph of Brad Pitt and Morgan Freeman standing together, do not have difficulty with the question “Which one of these men is an African American?”
The typical American does have an understanding of “race” that transcends their ability to articulate a hard line “rule,” but they do indeed “know it when they see it.” The typical American recognizes that there are indeed phenotype differences between blacks, whites, and Asians, that include commonalities highly prevalent in one group that are seldom found in the other groups.
That is not to say any of these commonalities are negative, affect cognition or morality or character; they are phenotypical (by which I mean purely physical) adaptations leftover from acclimation in isolation to a stable survival environment. Or genetic drift (non-adaptive but non-harmful phenotype changes) that can result from the same isolation.
Race exists. There are people with phenotypes displaying characteristics of multiple races, and those gray-line instances probably make any bright line rule impossible, but nobody has any trouble identifying Bill Cosby as an African American and Julia Roberts as a Caucasian.
“Especially with that primative aquatic foggy rape brain of yours.”
OOPS!
I meant “Especially with that primative aquatic foggy race brain of yours.”
Actually, there is a big difference between individual and social psychology.
Certainly more than a beer’s worth.
Gene H. 1, June 24, 2013 at 4:11 pm
Dredd,
No, not really. Do you think a movie like “Revenge of the Nerds” would have ever been made if aggression toward the intelligent by the less intelligent were not a real social phenomena ripe for lampooning? People tend to fear what they don’t understand and they tend to attack that which they fear. That’s your primitive semi-aquatic plains ape brain at work.
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I prefer to cast it as .999 brain dead vs .990 brain dead.
Not worth gambling over.
Especially with that primative aquatic foggy rape brain of yours.
Gene H. 1, June 24, 2013 at 4:06 pm
Dredd,
No, it’s not. You are mistaking correlation with causation. Not all of our problems trace directly to intelligence. Just because individuals are intelligent doesn’t mean we as a species are particularly intelligent. That we know better and still do the contrary seems to indicate that a lack of intelligence in application is actually a larger driver than intelligence itself could be. Consider that we know carbon changes the chemical composition of the atmosphere in ways that destabilize the environment and yet we avoid any substantive pursuit of alternative carbon free energy and keep using fossil fuels and other carbon heavy methods of energy production. Consider that overpopulation, a huge problem, is driven by a biological imperative to breed when if it was a process governed by intellect we’d limit population growth until (as Bill Hicks noted) “we get that whole food, air, water thing figured out”. Cum hoc ergo propter hoc isn’t just for breakfast anymore. A correlation between intelligence and our headlong pursuit of activities that may end the species is not causation nor is that issue as simple as a single cause.
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Distinction without a beer’s worth of difference.
A group killing itself (even with one or more intelligent idiots within them) is perfunctory at best.
Even if they have no race, Race, or RACE.
As a species and as individuals, in the cosmic sense we have not yet even begun to touch upon what we think is “intelligence.”
Dredd,
No, not really. Do you think a movie like “Revenge of the Nerds” would have ever been made if aggression toward the intelligent by the less intelligent were not a real social phenomena ripe for lampooning? People tend to fear what they don’t understand and they tend to attack that which they fear. That’s your primitive semi-aquatic plains ape brain at work.
Gene H. 1, June 24, 2013 at 12:58 pm
James K.,
Yep. Some people even react with hostility toward those more intelligent than they are.
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“We don’t know if intelligence is a lethal mutation”
That (“Some people even react with hostility toward those more intelligent than they are”) must be anecdotal then?
Dredd,
No, it’s not. You are mistaking correlation with causation. Not all of our problems trace directly to intelligence. Just because individuals are intelligent doesn’t mean we as a species are particularly intelligent. That we know better and still do the contrary seems to indicate that a lack of intelligence in application is actually a larger driver than intelligence itself could be. Consider that we know carbon changes the chemical composition of the atmosphere in ways that destabilize the environment and yet we avoid any substantive pursuit of alternative carbon free energy and keep using fossil fuels and other carbon heavy methods of energy production. Consider that overpopulation, a huge problem, is driven by a biological imperative to breed when if it was a process governed by intellect we’d limit population growth until (as Bill Hicks noted) “we get that whole food, air, water thing figured out”. Cum hoc ergo propter hoc isn’t just for breakfast anymore. A correlation between intelligence and our headlong pursuit of activities that may end the species is not causation nor is that issue as simple as a single cause.
Gene H. 1, June 24, 2013 at 3:56 pm
“Some of the things we don’t know, don’t exercise will-POWER over, and don’t exercise wisdom over” . . .
Then to assert we don’t know but some suppose – like “intelligence is a lethal mutation” – is at best asserting an unproven hypothesis as fact without sufficient evidence.
The notion doesn’t even pass casual scrutiny.
Simply not enough evidence.
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Science says we are on the eve of destruction of civilization and or life on Earth.
That is evidence of a fatal mutation.
But I digress from the topic.
“Some of the things we don’t know, don’t exercise will-POWER over, and don’t exercise wisdom over” . . .
Then to assert we don’t know but some suppose – like “intelligence is a lethal mutation” – is at best asserting an unproven hypothesis as fact without sufficient evidence.
The notion doesn’t even pass casual scrutiny.
Simply not enough evidence.
George 1, June 24, 2013 at 3:38 pm
Dredd
Both of your points forget the point of being judged on who you are and not what you look like. The fourteenth amendment is supposed to prevent discrimination and yet trying to help one race only to discriminate against another is not a solution. The are many African Americans and Jews who have done quite well without affirmative action which only proves it is not necessary. Secondly, allowing students to attend college who are not college material has dumbed down our education system. I have over 37 years in college teaching to back that statement up.
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Forget that the American slavery holocaust happened, forget that the German Jewish holocaust happened.
One happened before the 14th Amendment and one after.
Many Jews did well before and after the German holocaust.
Many whites did well before the American slavery holocaust.
But those holocausts happened anyway.
So.
Forget.
Forget.
Forget.
Now you feel better George.
Because reality was dumped on you.
A reality bigger than all your anecdotes put together.
Self.
Selflish.
Forget.
Forgetting is not intellectual, justified, or anything else –other than forgetfulness.
The Germans were punished for their holocaust.
Not by forgetting it.
Gene H. 1, June 24, 2013 at 12:54 pm
…
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.
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the knowledge to know better … lack … collective … willpower … lack individual willpower … lack collective … wisdom … lack individual wisdom …
Some of the things we don’t know, don’t exercise will-POWER over, and don’t exercise wisdom over …
Glad you said that … I was mystified until then.
Dredd
Both of your points forget the point of being judged on who you are and not what you look like. The fourteenth amendment is supposed to prevent discrimination and yet trying to help one race only to discriminate against another is not a solution. The are many African Americans and Jews who have done quite well without affirmative action which only proves it is not necessary. Secondly, allowing students to attend college who are not college material has dumbed down our education system. I have over 37 years in college teaching to back that statement up.
Tony C et al
I am a 99.99% atheist, I could add an infinite # of nines with the last one being followed by -1. I am comfortable with this because it leaves me an easy out with true believers, “okay maybe you’re right”. This actually saves a lot of time. :o).
Anyways, my atheist leanings began in my youth. Reasons are many and varied for all that are atheists, but foremost I believe it is curiosity and questioning.
Seeking truth perhaps as opposed to accepting boxed answers.
Society and environment has multiple formulas of ready made acceptable brands of lazy brain cereal for those that wish to sleep through life, or not be bothered, or have been smothered with insignificance of self, being ingrained on their unique soul.. Certainly not always true but it does have some weight to it.
How many God fearing lifelong devoted 60 yr old Christians suddenly throw away their lifetime belief and declare themselves atheist? I submit If any do there must have been doubt within them for many years prior.
Once someone has believed something for 60 years it is hard to admit they’re wrong. Religion even in all it’s 1000s of forms gets discussed and disputed. It is challenged often.
Race is not even questioned, the belief that Race is real and significant is more BS and more etheral than any BS Religious belief, AND IT IS ACCEPTED AS TRUE.
My point of this ramble is,; This is how I see race. I submit every human in our country and or world is raised in the “Church” of Race is Real.
After people believe this for 60 years and never doubt or question it, I understand how so many people have no ability to grasp “RACE DOES NOT EXIST”
Never the less I stand by my point, my statement, and my logic.
Tony C, you have made some of the strongest arguments on this Blog over time, You and about 50 others, . ….. However IMO, Phenotypes is one of your weaker ones. :o)
Bring it on, Ladies and Gentlemen, though I do suggest you each leave the word “Breeds” out of it. I think it will only make those that use it seem foolish.
George 1, June 24, 2013 at 2:10 pm
… if the only reason I got into college was my skin color then what does that say about me as a human being?
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If you are of the Jewish “race” it says “you were wronged by a holocaust, so accept this Mideast Land Area [Israel] as a form of reparation.”
If you are of the African American “race” it says “you were wronged by a holocaust so accept this chance for an education as a form of reparation.”
Your anecdotal guilt or innocence is irrelevant, as are the abstractions (void of context) you advanced as arguments.
Blouise, I have used “small pond” here in Madison quite often. It’s a very provincial city. Although a state capital, Madison is really a fairly small pond. I’ve worked in KC and Chicago and know the difference. But, for too many people their immediate environs constitutes their “world.” You see it in this forum, hell you see it everywhere. Travel is the best education for so many reasons, not the least of which being it helps you realize just how insignificant we all are. Well, maybe not for narcissists. How many narcissists does it take to screw in a light bulb? One..they just reach up w/ the new bulb and the world revolves around them.
raff,
I felt your pain as I, the lone female in a class of 10 exceptionally bright male whiz kids, cheated my way, with help from all 10 guys, to a spectacular “C”. The teacher, after writing the test problem on the board, would exit the room with these words .. “A gentleman always helps a lady.” (No false feminism for me where geometry was concerned even knowing that you wouldn’t have gotten the same treatment. Life’s a beetch. 😉 )