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
“The Supreme Court struck down Section 4 of the Voting Rights Act on Tuesday, the provision of the landmark civil rights law that designates which parts of the country must have changes to their voting laws cleared by the federal government or in federal court.
The 5-4 ruling, authored by Chief Justice John Roberts joined by Justices Antonin Scalia, Anthony Kennedy, Clarence Thomas and Samuel Alito, found that “things have changed dramatically” in the South nearly 50 years after the Voting Rights Act was signed.
The court’s opinion said it did not strike down the act of Congress “lightly,” and said it “took care to avoid ruling on the constitutionality of the Voting Rights Act” in a separate case back in 2009. “Congress could have updated the coverage formula at that time, but did not do so. Its failure to act leaves us today with no choice but to declare [Section 4] unconstitutional. The formula in that section can no longer be used as a basis for subjecting jurisdictions to preclearance.”
Congress, the court ruled, “may draft another formula based on current conditions.” ”
http://www.huffingtonpost.com/2013/06/25/voting-rights-act-supreme-court_n_3429810.html
I feel so much better knowing Congress is there to protect voting rights and is free to act….
BarkinDog: FYI, Service animals are already “admitted” to college; not only is it the law, it is the right and humane thing to do. Not only for blind persons, but for any disability that requires it; for example students subject to seizures can have service animals trained to detect the imminent onset of a seizure. Some disabled students so disabled they cannot operate a joystick have large dogs trained to pull their wheelchair for them on voice command.
Service animals cannot be refused admittance to a classroom based on allergies, phobias or disapproval of other occupants of the room; the most a professor can do in accommodation is seat people and animals on different sides of the room.
David Blau: It is time for dogs to be admitted to colleges. We can start with guide dogs for blind guys.
David Blauw,
In reading what I wrote, I think you mistake that I’m saying the social construct of racism for being minor. Racism is a huge pain in the ass and a wedge that the unscrupulous of the world use to keep a wedge between people. It’s not even close to a minor problem. It’s a major problem, but a social construct based on minor differences. Perhaps I should have been more explicit, but from the majority of your post, I’d say we’re more on the same page than not.
Robin H, since the long handle spoon I have been trying to stir the pot with must have broken off, I will take a break from my sisyphusian effort and say … Thank you for your post. Education is the equalizer for all youth. The differences of available opportunity for children is deplorable, and a significant reason for all this denial that is going on …on this thread tonight.
IM Humble O.
BarkinDog
1, June 24, 2013 at 9:14 pm
“The discussion above is almost goofy.”
What breed is goofy? What color phenotypes does your dog pack consider to be a lesser color. Are spots good on a dog or bad?. ..I don’t know.
Do you have a supreme Dog court that decides which phenotypes make a dog a lesser dog? I thought dogs were too smart and diverse to be Racists.
Gene H.
“Race is a social construct based on minor differences in phenotypes”,
Did the supreme court say that today?
What is a social construct, …. Perhaps a Phoney Placebo Putting Pale People Perpetually Perched …. darn it i ran out of bhhs…. on a higher status rung than melanin enhanced humans.
By all means Gene H, I think the Supreme court should spend all their time debating Minor social constructs.
This is my point, phenotypes are minor and interchangable. Race is a social construct that only exists in the minds of Racist. The validity of race, the falseness of race, is only accepted by Racists.
Phenotypes my BUTT. Minor differences okay…maybe.
You are slave and 3/5 human because of your phenotypes….
I don’t think so. You just made an argument against race.
Are you a dumb blonde Gene? phenotypes ARE minor.
Race is phony if it is based on phenotypes.
Racism is a reflection on the idiocy of the racist.
Did the Supreme Gods of the court mention that today?
Tony C, I saw a picture of Maureen O’Hara and Marilyn Monroe standing together. Some one asked me which one was redhead and which one was blonde. I knew right away. What I didn’t know was which one was going to be lessened by societal acceptance of dumbass think.
“And for my next impression . . . Jesse Owens!”
OH Man. I just read all of the comments above. The only thing that I can say is” Where The White Women at?
Blazing Saddles.
The discussion above is almost goofy.
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.
Could this be due to the fact that in the suburban areas the students receive a education far better then those in the urban areas not only scholastically but they receive classes and programs urban students can only dream about.. suburban schools get science rooms urban schools barely get a science class in the auditorium. suburban schools get far more educational materials ex books, supplies, etc while the urban schools have to share the books between the students. the racial divide was done on a deliberate basis im sure most of us can agree and if not then i’ll assume you have not read the
The Destruction of American Education.
http://www.hermes-press.com/education_index.htm
“The ruling class in the United States is intensifying its campaign to dismantle public education.
“With the new fiscal year that began yesterday [7/1/2011], states throughout the country are slashing education funding, leading to the layoff of tens of thousands of teachers and the closure of hundreds of schools.
“Both the Democratic and Republican parties are using the fiscal crisis–the outcome of decades of tax cuts to the rich, the bailout of the banks, and an economic crash caused by rampant speculation–as an opportunity to undermine and eliminate public education.”
It’s no accident that America’s schools have slowly eroded and that the intelligence of the average American has become so debilitated. American learning has plummeted and public school performance has nose-dived ever since the middle of the twentieth century because it was planned that way.
Some thirty million adults in the U.S. do not have the skills to perform even the most basic tasks such as adding numbers on a bank slip, identifying a place on a map, or reading directions for taking a medication. Eleven million Americans are totally illiterate in English.
Only twenty-nine percent of Americans have basic reading and computing skills. One out of every twenty Americans lacks the ability to understand what is going on in the world or to develop an informed opinion for voting.
and thats just in the first 2 paragraphs.
to find out how and why also the true purpose of charter schools and what they are really doing to and in the colleges is a must read. and please read the school to prison pipeline. There is a reason for it all and the above is literally for show. if nothing has changed since 1977 it will not change now unless we fight for that change. and that means that equal education is afforded and given to all the same. not one over the other. to keep one suppressed while keeping the other distracted as to what is really going on
Dredd
No one ever said that those events did not happen. Two wrongs do not make a right. Discrimination is discrimination plain and simple. Many want to go to college but are not college gifted. I want to go to the moon but I am not cut out to be in that field. If I were let in for affirmative action reasons I would only hurt the program which is what is happening to our colleges and universities.
You’re welcome.
Thank you David (probably).
Tony,
Somebody beat me to it. You should probably thank David would be my guess.
Gene, can you check why my comment is stuck in moderation?
Thanks in advance…
The American holocaust.
After being brutally kidnapped, and on their way to the holy land, where they would serve the holy white people, millions of the kidnapped mothers, fathers, and children slaves were thrown overboard into the deep ocean because they became sick because they were stacked like sardines.
Once they got here to heaven, the white folk exorcised the demons out of them for a century.
When the exorcism failed, they were tortured to death, or if unlucky, they were slaves for life free of demons.
Those who survived eventually began the slave church system, and other forms of asking someone for help (“blues”), from their decade after decade of horrors.
Like the Jews did for several years in Germany.
If only the Germans had as weak a memory as Amurkans what to have … this Affirmative Action crap could go away and …
we could all be whites once again.
Are you now trying to say race has something to do with intelligence, Dredd?
I thought you were talking about intelligence as a lethal mutation.
Race is a social construct based on minor differences in phenotypes, intelligence is a major component of our whole species genetic makeup that in fact is part of what makes us a distinct species from other hominids.
Are you even sure of what you are saying?
Why did everyone leave … Gene H is not through mutating yet …
Gene: That’s your primitive semi-aquatic plains ape brain at work.
Dredd: that primative aquatic foggy race brain of yours.
Gene: ad hominem argument and non-responsive on the merits.
This post is about race.
You lose biggie.