By Stuart Taylor, Jr. and Richard Sander
Even for people who approve in
principle of some use of racial preferences in university admissions — notably
including Justice Anthony Kennedy — the size of the preferences, and of the
resulting racial gaps in academic performance in college and beyond, should
matter a great deal.
So it’s unfortunate (though
understandable, as explained below) that the size of the preferences at issue
in Fisher v. University of Texas was
not mentioned either during the Supreme Court’s October 10 oral argument or at
any other point in the discrimination lawsuit against UT by Abigail Fisher, a
disappointed white applicant.
But the Court could and should use
the Fisher case to impose a
requirement — suggested in our new book, Mismatch
— that from now on, a university’s burden of proving justification for its use
of racial preferences will include a requirement that it fully disclose the
size of its preferences (preferably including legacy and athletic preferences)
and of the mean gaps in college academic performance among students admitted on
the basis of preferences of various sizes.
Being Born Black Is an ‘Achievement’?
This would, for starters, explode
the myth that racial preferences are typically modest “plus” factors
to break ties and near-ties among well-qualified students, or are similar in
magnitude to the relatively modest legacy preferences at many schools.
To the contrary, undisputed data
summarized in a 2009 book by pro-preference scholars Thomas Espenshade and
Alexandria Walton Radford (among other works) show that racial preferences give
blacks an enormous “admissions bonus . . . equivalent to 310
points”(on a scale of 1600) relative to whites, and 450 points relative to
Asians, at a sample of elite colleges. The black-white gaps in admitted
students’ mean high school GPAs often average a full grade point or more.
At UT, among freshmen
entering in 2009 who were admitted outside the top-ten-percent system, the mean
SAT score (on a scale of 2400) of Asians was 467 points above the mean black
score, and the mean score of whites was 390 points above. In percentile terms,
the Asians scored at the 93rd percentile of 2009 SAT takers nationwide, whites
at the 89th percentile, Hispanics at the 80th percentile, and blacks at the
52nd percentile; the mean high school GPA’s of these racial groups were,
respectively, 3.07, 3.04, 2.83, and 2.57.
numbers give the lie to UT’s claims that race is just one marginal
consideration among several that are used to compute the so-called
“Personal Achievement Index” component of its admissions formula.
(Yes, at UT being born black or Hispanic — but not being born Asian or white —
is officially deemed an “achievement.”)
these numbers strongly suggest all by themselves that UT should probably flunk
even the very lenient tests for whether a school’s preferences pass
constitutional muster that the Court laid down in 2003, in Grutter v. Bollinger: An applicant’s race must not be “the
defining feature of his or her application” or a basis for
“insulat[ing] the individual from comparison with all other candidates for
the available seats.”
also matters for at least three other reasons. First, the larger the preferences, the more well-qualified Asians
and whites are denied admission on account of their race. This is highly
relevant to Grutter‘s holding that
racial preferences are unconstitutional if they “unduly harm members of
any racial group.”
Second, as our new book and previous
works have documented, very large preferences lead to very large racial gaps in
the academic performance of students at the vast majority of selective
universities. These gaps have multiple bad academic “mismatch”
effects on the supposed beneficiaries, most of whom get low grades, cannot
survive in challenging courses or majors, and suffer blows to their
intellectual self-confidence and other harms. In short, large preferences
unduly harm members of every racial
Third, research shows that large
racial gaps in academic achievement severely inhibit the interracial
friendships and interactions that are the main justification invoked by
universities for using racial preferences to increase diversity in the first
Why have the size of UT’s
preferences and related harms not been issues in Fisher? Apparently because of an understandable choice by her excellent
pro bono legal team to seek a fast
summary judgment ruling rather than incurring the large expense of extensive
discovery on all the complexities of the size issue.
Transparency is Essential
plaintiffs in future cases are likely to face the same cost disincentive to
document the size of the preferences — as long as their size, operation, and
effects are closely guarded secrets at most schools.
the Court could justifiably use the Fisher
case to begin requiring that schools that use racial preferences must fully
and publicly disclose their size, operation, and effects on the academic
performance of preferred-minority students.
a transparency requirement would not only help minority students and their
families make better-informed choices among colleges, and help citizens and
policymakers evaluate the costs and benefits of preferential admissions;
transparency is also essential to enabling courts to police whether a
university’s racial-preference policies are “narrowly tailored” as
required by Grutter.
short, secret admissions can’t possibly be narrow tailoring.
Stuart Taylor, Jr. and Richard Sander are the authors of Mismatch: How Affirmative Action Hurts Students
It’s Intended to Help, and Why Universities Won’t Admit It.