Tag Archives: Grutter

Racial Preferences–Time to End Them?

A New book by Peter H. Schuck, One Nation Undecided: Clear Thinking about Five Hard Issues That Divide Us, focuses on five issues: poverty, immigration, campaign finances, affirmative action, and religious objections to gay marriage and the transgender movement. This excerpt deals with affirmative action.


Institutions argue that a “critical mass” of favored minorities assembled through preferences is crucial to achieving educational diversity, and the Supreme Court has accepted this notion. But what does it mean? It must be a function of either the number or proportion of students needed to produce it, yet the Court, as explained below, has flatly barred any numerical or proportional quotas; even Fisher II demands individualized assessments.

Moreover, the critical-mass criterion is only intelligible if one specifies the level of university activity at which racial assignments are permissible to achieve the critical mass. Is the level campus- wide? academic program–wide? each major, or only some? seminars? lectures? dormitories? sports teams? Neither the schools nor the Court says which it is. Finally, what constitutes a critical mass depends on the individual school, yet the Court in Fisher I emphatically refused to defer to schools’ judgment in this matter.

Related: Dismissing the Reality of Affirmative Action

Stereotypes. In Grutter, the Court majority saw a very close link between critical mass and stereotype destruction: “[W]hen a critical mass of underrepresented minority students is present, racial stereotypes lose their force because nonminority students learn that there is no ‘minority viewpoint’ but rather a variety of viewpoints among minority students.”

But just the reverse is much more likely. A school cannot prefer students on the basis of skin color or surnames without at the same time endorsing the notions of ethno-racial essentialism and viewpoint determinism. By admitting minority students with academic records that are much weaker (whatever the school’s metric) than those of their competitors, the school can only reinforce the stereotype of academic inferiority. The faculty and non-preferred students notice what is going on and draw the logical and stigmatizing inference that the preferred innuendo about the deserts of almost all but the most unquestionably superior performers in the preferred group—and, as the “lemon” phenomenon suggests, perhaps even of them.

This innuendo tends to perpetuate the very stereotypes that affirmative action is supposed to dispel. A group qua group (which is how preferences treat it) can confer diversity value only if it possesses certain desired qualities—and it can only do that if those qualities inhere in all of its members. (If it doesn’t, then the program should redefine the group to exclude those who lack those qualities, but affirmative action programs do not do this.) But to affirm that a quality inheres in a racial group is to “essentialize” race, utterly contradicting liberal, egalitarian, scientific, and religious values.

These values hold that all individuals are unique and formally equal regardless of genetic heritage and that their race per se causally determines little or nothing about their character, intelligence, experience, or anything else that is relevant to their diversity value. Indeed, if an employer used racial stereotypes in this way, it would clearly violate the law—whether or not the stereotypes were generally true

Related: Is Affirmative Action Micro-Aggressive?

The Size of the “Plus Factor.” The Court majority in Grutter held that “each applicant must be evaluated as an individual and not in a way that makes an applicant’s race or ethnicity the defining feature of his or her application.” This, the Court reasoned, will place members of all groups on the same admissions track, where they will compete “on the same footing.” Race and ethnicity can be a “modest plus factor” in a system of “individualized assessments,” but this must not constitute either a “rigid quota” or “racial balancing.”

Fisher II reaffirmed this. But are the ethno-racial plus factors merely “modest”? In fact, they are huge. In the program at issue in Grutter, as the dissenters showed statistically, the plus factor was weighted so heavily that it effectively created a two- track system, tantamount to racial balancing to reach its racially defined “critical mass.” And what was true in Grutter is essentially true of most if not all other affirmative action programs. In 2003, I reviewed the empirical studies on the size of preferences, which showed that the programs gave enormous weight to ethno-racial status—much larger, for example, than the preferences given to legacies and athletes.

This situation is unchanged, judging by more recent analyses of admissions patterns. For example, a study of all students admitted to the nation’s medical schools in 2014–15 found that blacks and Hispanics were vastly more likely to be admitted than whites and Asians with comparable MCAT scores and GPAs. And this was true in every credential range: average, below average, or above average. Writing in 2009, researchers Thomas Espenshade and Alexandra Radford reported that the admission “bonus” for being black was equivalent to 310 SAT points relative to whites and even more relative to Asians. The GPA differences are even greater than for SAT scores. An earlier analysis by another researcher, Thomas Kane, found that black applicants to selective schools “enjoy an advantage equivalent to an increase of two- thirds of a point in [GPA]—on a four-point scale—or the equivalent of] 400 points on the SAT.”

That enormous preferences-conferred advantage seems to have grown even larger since then. In a review article commissioned by the prestigious Journal of Economic Literature and published in March 2016, Peter Arcidiacono and Michael Lovenheim found virtually no overlap between white and black admits’ credentials, especially but not only at law schools: The median black admit had an academic index at the second percentile of the white distribution, and the seventy- fifth percentile of the black admit distribution was at the eighth percentile of the white distribution.

Related: Will the Supreme Court Stop Racial Preferences?

The difference between the black and white admit distributions is not all due to affirmative action: if the African American academic index distribution is below the white distribution, this would produce a difference in the incoming qualifications of black versus white students even in the absence of affirmative action. However, the fact that these distributions are almost non-overlapping is suggestive of a large amount of race- based preferences in admissions being given to African American students. . .

The data also reveal that affirmative action works differently for blacks and Hispanics. While affirmative action is very much present for Hispanics (the median Hispanic admit at Michigan is at the 9th percentile of the white admit distribution), the median Hispanic admit is at the 78th percentile of the black admit distribution. Hispanic admission rates were also lower than those for blacks, despite having on average better test scores and undergraduate grades.

Moreover, the SAT test, which has long been criticized as culturally biased against blacks, is actually an overly optimistic predictor of how they will perform in college. Once on campus, they do worse than the SAT would predict. Finally, 2015 data on SAT scores, broken down by ethnicity, show that the scores of whites and minorities have declined significantly since 2006, while Asians’ scores have risen in all three skills categories, not just math. (The National Assessment of Education Progress [NAEP] scores, while less discouraging, are nothing to celebrate either.)

This suggests, ominously, that those who administer preferences will have to increase their size even more in the future in order to admit low- scoring minorities. These findings raise a crucial question: Are the students who receive these enormous preferences to be admitted to elite schools likely on average to be in over their heads academically? This phenomenon, known as “mismatch,” is discussed below.

Race-Neutral Alternatives. The Court majority has repeatedly insisted that ethno-racial preferences may not be used if workable race- neutral alternatives exist. In an earlier opinion by Justice Kennedy, the Court also refused to endorse race-based assignments to public schools where race-neutral assignment methods are available to accomplish the same end. In Fisher II, Justice Kennedy reaffirmed this principle, while concluding that no such alternative existed there. Race-neutral criteria are no panacea, of course, especially when the question is not the one that the Court asks (i.e., whether the Constitution requires it) but instead is about which criteria make the most policy sense if the goal is increasing opportunity for the disadvantaged—which Americans overwhelmingly support.

Given this goal, the most straightforward criterion is to determine disadvantage directly rather than use ethnicity or race as an extremely crude proxy for disadvantage. This approach is more difficult than it sounds for conceptual, administrative, and target efficiency reasons—and it might not yield the ethnic mix that those favoring race-based affirmative action want; indeed, one analysis finds that it would increase the share of whites and Asians on campus and reduce blacks by almost 50 percent! Conceptually, we generally equate disadvantage with economic deprivation, usually measured by income or assets—but disadvantage can be social, not just economic; they are not always congruent and social disadvantage is harder to define and measure.

Related: 25 Years on the Affirmative Action Firing Line

Administratively, determining economic need directly for a very large number of applicants would be at least as challenging as it has been in the operation of need- based social welfare programs. And the difficulty of targeting the neediest is captured by questions posed by Michael Kinsley (a supporter of affirmative action): “Is it worse to be a cleaning lady’s son or a coal miner’s daughter? Two points if your father didn’t go to college, minus one if he finished high school, plus three if you have no father? (or will that reward illegitimacy which we’re all trying hard these days not to do?

Determining who is truly needy is difficult, surely, but not impossible. Richard Sander, a law professor at the University of California at Los Angeles, reports that he actually devised and implemented a sophisticated system of preferences for UCLA law school based on economic need and that the system worked “exceedingly well. Audits of financial aid statements showed little abuse; the preferences substantially changed the social makeup of the class and never to our knowledge, prompted complaints of unfairness.”

Such approaches need to be tried and assessed more broadly, of course, but they may offer one kind of race- neutral alternative to ethno-racial preferences. A second kind of race-neutral alternative is a program that automatically admits students in the upper echelons (say, the top 5 or 10 percent) of their high school classes. Texas, Florida, and California have adopted such percentage programs (although Texas, unsatisfied with the number of minorities its percentage plan yielded, added to it the race- based program challenged in the Fisher litigation).

Percentage programs do seem to increase racial diversity on college campuses, but two realities about such programs should be kept in mind. As Justice Kennedy noted in Fisher II (quoting Justice Ginsburg’s point in Fisher I), these programs, far from being race- neutral, are designed and adopted with race very much in mind. And, given differences among the high schools in different communities, such programs inevitably bring to these campuses many students whose academic preparation is relatively poor.

A third alternative, which has attracted much interest, would not only increase the number of minority students attending selective institutions but also ameliorate a different, more tractable, and even more socially wasteful kind of problem—the substantial pool of high school students who are perfectly capable of performing well at selective colleges but do not even apply to them—or indeed to any college at all! Caroline Hoxby and her colleagues have shown that applications by these students, many of whom are minorities, can be increased through better information about how to apply, about available financial aid opportunities, and about other assistance available on campus. Moreover, increasing applications from this group can be accomplished at trivial cost—as little as $6 per student. Finally, as Justice Alito tartly observed in his dissent in Fisher II, “The most obvious race-neutral alternative” is “race-blind,

Caroline Hoxby and her colleagues have shown that applications by these students, many of whom are minorities, can be increased through better information about how to apply, about available financial aid opportunities, and about other assistance available on campus. Moreover, increasing applications from this group can be accomplished at trivial cost—as little as $6 per student. Finally, as Justice Alito tartly observed in his dissent in Fisher II, “The most obvious race-neutral alternative” is “race-blind, holistic review that considers the applicant’s unique characteristics and personal circumstances.

Related: Are Racial Preferences Now Entrenched for Decades?

The Duration of Preferences. Writing for the Grutter majority, Justice O’Connor expressed hope that “25 years from now, the use of racial preferences will no longer be necessary.” Much has been made of her expectation. In his dissent, Justice Thomas recited the grim statistics on comparative academic performance, evidence that makes Justice O’Connor’s hope seem very unrealistic. And the studies of ethno-racial preferences in other societies provide no support for it either, as the economist Thomas Sowell has shown in his cross- national studies.

To the contrary, the studies show that such preferences, once established, tend to endure and perhaps even expand to new groups and new programmatic benefits. The Court’s blessing of affirmative action in Fisher II seems more likely to perpetuate it than to herald their eventual demise. It is true that six politically diverse states (Arizona, California, Michigan, Nebraska, Oklahoma, and Washington) have banned these preferences by voter referenda, while New Hampshire has done so through statute and Florida through executive order.

But California’s experience after its voters banned the preferences suggests that such bans do not end them but simply drive the preferences underground. The California system engaged in a series of stratagems in the early 2000s expressly designed to circumvent the state’s ban. Some of the more egregious ones involved channeling minority students to new “critical race studies” programs with lower admissions standards; awarding special admissions credit for foreign language fluency to minority students who were already native speakers of the language; adopting “percentage” plans; and using unspecified (and unspecifiable) “holistic” criteria as well as winks and nods by admissions officials.

The evidence suggests that affirmative action advocates will never abandon it but will always find new ways to preserve it. And their arguments will always have a surface plausibility so long as full equality eludes us, which in the real world it surely will—however we define it.

The Role Model Rationale. Affirmative action advocates commonly argue that it is effective in producing a cadre of black professionals who can form a nucleus of group leaders and serve as role models for other group members, especially the young who need to have high aspirations and confidence that others have succeeded despite their common legacy of group disadvantage. This rationale, which has its skeptics even among ardent liberals, applies most strongly in the domain of higher education, which of course is an important training ground for future leaders of society.

Studies on how well such programs perform this function have been chewed over by proponents and opponents of affirmative action alike. There is something to the role model argument. Group members who have succeeded are surely a source of encouragement to young people thinking about their futures. If this is true, however, it is true not just for the groups preferred by affirmative action but for all low- status groups, not just the preferred ones.

This argument, moreover, cannot be separated from questions about the other social signals that youngsters receive from role- modeling. A role model might signal: “If you study hard and work hard and keep your nose clean as I did, you too can succeed.” But in a society in which preferences have become both pervasive and normative, another signal might be: “You get points for having a certain skin color or surname, so you should emphasize that identity and learn to play the ethno-racial card.” How do youngsters in such a society read role-model signals, and how do they integrate conflicting ones? These are important questions to which we have not really sought, and as a methodological matter may not be able to obtain, reliable answers.

The Representation in Elite Institutions Rationale. Like the other rationales, this one has some force. Most Americans want to see disadvantaged minorities better represented in major firms, select universities, high public office, nonprofit organizations, and so forth—if these minorities earn this recognition by meeting the institutions’ legitimate standards, whatever they might be. Affirmative action proponents believe that admitting minorities to these prestigious and advantageous precincts will level the playing field, reducing inequality by providing the advantages that these institutions can confer, including greater satisfaction and future advancement.

To what extent are these hopes actually borne out? The answer has a lot to do with the size of the preferences. In elite institutions, as we have seen, they are very large indeed—so large that they may do more harm than good to many of the putative beneficiaries. An important body of empirical research suggests that this unhappy outcome is occurring, at least in higher education, as a result of a mismatch between the institution’s demands and the preferred students’ academic performance. It indicates that although some affirmative action beneficiaries will surely succeed at the select institutions to which preferences gain them admission, on average they will perform relatively poorly, yet they would probably have succeeded at less select institutions.

In their book-length analysis of this problem, Mismatch: How Affirmative Action Hurts the Students It’s Intended to Help and Why Universities Won’t Admit it, Richard Sander and Stuart Taylor, Jr., conclude that mismatching largely explains “why, even though blacks are more likely to enter college than are whites with similar backgrounds, they will usually get much lower grades, rank toward the bottom of the class, and far more often drop out.

Justice Kennedy and Affirmative Action

The Supreme Court holds oral arguments tomorrow in Fisher v. Texas, possibly the most consequential case in years involving affirmative action. Many of us critics of racial preferences are optimistic that Justice Anthony Kennedy, the likely swing vote, will agree to modify if not overrule Justice O’Connor’s ruling in the 2003 Grutter case, which, in the name of diversity, allowed state-run colleges and universities to grant racial preferences.

Part of the reason for our optimism derives from the fact that the conservative justices decided to take this case in the first place. Abigail Fisher, who was denied entry to the University of Texas, wound up matriculating at an out-of-state institution and no longer seeks Texas admission. The Court could have declared the issue moot (as a majority of the Court did in a parallel affirmative action case in 1974 regarding preferential admissions to the University of Washington law school) and refused to hear it. It could have refused to hear the case without further explanation.

The fact that the four conservative justices agreed to take the case indicates to many court watchers both that a) they intend to issue a decision that will reverberate well beyond Abigail Fisher and Texas, and that b) they probably have Anthony Kennedy on board as a fifth vote to make some serious modifications in, if not the outright overruling of, the Grutter standard.

Continue reading Justice Kennedy and Affirmative Action

Deciphering Grutter V. Bollinger

By Edward Blum

As the saying goes, “fuzzy law begets controversy”, and nothing has proven this maxim better than the Supreme Court’s 2003 landmark ruling on “diversity” in higher education. Lacking clarity, the ruling has left individual institutions to interpret how to achieve diversity on their campuses, stoking never-ending conflict over race and admissions. However, a new lawsuit from Texas that is working its way up the appellate ladder—the New Orleans-based 5th Circuit Court of Appeals took the case this week— may compel the justices to clarify—and limit—how race and ethnicity may be used in the admissions process.

Some background is in order. Six years ago, the high court handed down a decision from a University of Michigan case that addressed the use of race as a factor in university admissions. In Grutter v. Bollinger, a challenge to Michigan’s law school admissions practices, the justices ended a debate that had bedeviled college administrators for decades by permitting institutions of higher education to employ racial and ethnic preferences in order to create a “diverse” student body.

The Grutter opinion was significant in that it held that the creation of a racially diverse student body was so beneficial to the educational experience of everyone that there was a “compelling state interest” to lower the admissions bar for some applicants, and raise it for others.

Continue reading Deciphering Grutter V. Bollinger