An Unusual Brief Could Tip the Fisher Case

Stuart Taylor and Richard Sander have filed a fascinating
amicus brief
in the Fisher case,
hoping to bring some of the relevant social science research to the attention
of the Court, and (they fervently
hope)–to break through the closed-minded atmosphere through which most
colleges consider “diversity” issues. Taylor’s and Sander’s arguments doubtless
won’t persuade racial preference ideologues Sonia Sotomayor and Ruth Bader
Ginsburg, but their carefully reasoned brief provides grounds for Justice
Kennedy or even Justice Breyer to join the Court’s conservatives and scale back
the virtually open-ended use of preferences that the Grutter decision established.

Sander and Taylor advocate a “narrow tailoring” that would
“require each state school that seeks to use racial preferences to make them no
larger than its socioeconomic preferences and to disclose their size, operation and a timetable for phasing them
out by 2028.” This latter point is particularly significant: despite Justice
O’Connor’s holding in Grutter that
preferences should end within 25 years, there doesn’t appear to be one college
or university that uses racial preferences that’s taken steps to phase out the
practice according to O’Connor’s timetable.

The duo’s chief goal, however, is to alert the Court that “a
growing volume of very careful research, some of it completely unrebutted by
dissenting work, suggests that racial preferences in higher education often
undermine minority achievement.” This research matters, since it undermines the
implicit assumptions behind both Bakke and
Grutter–that however much racial
preferences might harm the 14th amendment, they benefit those
students admitted through preferences. If preferences turn out to have harmful
or even ambiguous effects, Taylor and Sander argue, “then the fundamental legal
premise for permitting this type of racial classification is gone.”

President Attacks His Own Faculty

Preferences often described as tie-breakers among
essentially equal candidates, but “in fact the racial preferences” used by
elite schools “are very large indeed.” At Texas,
for instance, average SAT score of incoming Asian-American students was a
“staggering” 467 points higher than the comparable score for incoming black
students. Students granted major preferences, Taylor and Sander maintain, are
often the victims of “academic mismatch,” that is, placed into classes with far
better-equipped students, during which they suffer academically. (The duo
pointed to Sander’s research among law students and the research of Arcidiacono
et al. among undergraduates initially intending to major in science or
engineering.) Among undergraduates, virtually no research has challenged the
conclusions of the mismatch thesis; while there was criticism of Sander’s
arguments regarding law school, virtually none of the critics “have disputed
the central contention of the law school mismatch hypothesis: that large
preferences undermine learning in law school.”

Sander and Taylor note that California’s
banning of racial preferences (as a result of Proposition 209) provides a
useful “real world” test case of the mismatch theory in practice. The result?
Black enrollment at the UC campuses initially dropped, but rebounded everywhere
except for the two most elite institutions (Berkeley and UCLA), and blacks at
all UC campuses fared better academically–because they generally weren’t
enrolled at schools with far better-equipped students.

Sander and Taylor also point out–correctly–that colleges and
universities have defied the Supreme Court’s desire to phase out preferences.
In part, this problem came from the flawed Grutter
decision itself: “Contrary to the Court’s inference, the racial preferences
used by the University of Michigan Law School before Grutter and Gratz were
larger and more mechanical than [the point system for all black applicants]
used by the College.” The “holistic” approach preferred by the Court perversely
made university admissions less transparent and making it harder for outsiders
to see just how aggressively universities have employed preferences.

Moreover, since Grutter,
“Preferences have become larger and more pervasive.” Sander and Taylor
(correctly and very importantly) lament that “the drift of policy is
unmistakably toward using large racial preferences for many decades, or even
centuries, in pursuit of proportional representation of every racial and ethnic
group at every higher education institution.” Indeed, according to the duo,
“The political climate on many university campuses makes careful deliberation
on and candor in discussing these subjects a very rare thing.” Example A of
this pattern, of course, was Duke president Richard Brodhead’s public
denunciation of his own faculty members
for having their research cited to the
Court by critics of racial preferences.

The Greater the Preferences, the Softer the Courses

Taylor and Sander also discuss how the aggressive use of
preferences has a cascading effect on campus. “A pervasive characteristic of
large admissions preferences,” they reason, “is that the recipients are at a
competitive disadvantage in courses. Many of them consequently seek out courses
and majors where they will suffer least –academically and personally–from their
relatively weaker preparation. Over time, this means that students admitted
with large preferences tend to concentrate in the ‘softest’ majors and
courses.” This trend, of course, undermines the University of Texas’
justification of keeping preferences in place on grounds of insufficient
“classroom diversity”: admitting more students with large preferences won’t
mean that more preferential students will take classes in biochemistry.

What do Taylor and Sander recommend? First, they suggest
that if the Court retains racial preferences, it needs to increase
transparency, so that universities that use preferences must “do so in a way
that makes both the university’s current and planned use of racial preferences
in admissions and the academic consequences thereof transparent both to
applicants and (with careful privacy protections) to the public.”

Second, the duo urges the Court to require any public
university that plans to continue using racial preferences to do so in a highly
tailored fashion and in any case to no greater extent than the school employs
preferences based on socio-economic status. “Socioeconomic imbalances in college
access and on elite campuses,” they conclude, “far exceed racial imbalances, and
greater SES diversity can be achieved
with much smaller preferences, and thus less risk to students, than is the norm
with current racial preferences.  Thus
constraining the use of race in admissions makes it far more likely that racial
preferences are not mechanically manipulated to achieve balancing goals, but
instead really are part of a multi-faceted process of assessing an individual’s
contribution to a diverse campus community.”

The argument is powerful. Will any advocates of preferences
take up Taylor and Sander’s challenge, and effectively rebut any of their
research? I wouldn’t hold my breath.

KC Johnson

KC Johnson is a history professor at Brooklyn College and the City University of New York Graduate Center. He is the author, along with Stuart Taylor, of The Campus Rape Frenzy: The Attack on Due Process at America's Universities.

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