Tag Archives: Fisher

Why Size Matters in College Preferences

mismatch.jpg

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.

Continue reading Why Size Matters in College Preferences

A ‘Magisterial’ Work on Affirmative Action

SCOTUS.jpg

“Mend it, don’t end it” was the famous advice
on affirmative action from Bill Clinton, who did neither. There are, of course,
other useful slogans, such as “Muddle it,” which the Supreme Court essentially did
in the 2003 Gratz and Grutter cases. The Court held that the University
of Michigan could not give a fixed number of points to minority applicants but
that its law school could give even more substantial preferences based on race
so long as it sufficiently disguised what it was doing under the smokescreen of
individualized, “holistic” review.

Now under new leadership and with a few new
members, the Court will see if it can do better when it decides, after hearing
oral arguments this week, whether the University of Texas is allowed to
supplement its successful, facially race-neutral diversity-producing “top 10%”
admissions policy by taking race into account in the admission of other
students. 

Continue reading A ‘Magisterial’ Work on Affirmative Action

We Don’t Need a Different “Affirmative Action”

On
the day the Supreme Court heard oral arguments in Fisher v. Texas, a case challenging racial preferences in college
admissions, the Wall Street Journal published a piece purporting to give “A
Liberal Critique of Racial Preferences.”

Author
Richard Kahlenberg argued (as he almost always does) in favor of changing “affirmative
action” to a system based on socio-economic class. That is, rather than
colleges giving preference to students because of their ancestry, they would
instead give preferences to students from relatively poor families. Kahlenberg
thinks it better to selectively admit some applicants, no matter what their
race, from low-income and working-class families than to admit some from
affluent families on account of their race.

The
case for preferences based on socio-economic status (SES) is no better than
that for race. I will focus on the most central one: It accomplishes no good.

Kahlenberg’s
argument is that racial preferences made sense in the past, when doors were closed
to many Americans based on their skin color, but today “obstacles to
opportunity are more closely associated with economic disadvantage.”

I
strongly disagree. Today the “obstacles to opportunity” are overwhelmingly
creations of government: occupational licensure, minimum wage laws, red tape
that impedes business formation, and so on. Those obstacles affect everyone,
although they have their strongest impact on the poor. But being poor is not itself
an obstacle.

But
this is besides the point. Kahlenberg isn’t describing a generic plan to boost
up the poor and working-class. He wants elite colleges and universities to give
prefer to the children of poor and working-class families. Suppose that a
plumber’s daughter in North Carolina has grades and SAT scores that make her an
automatic admit at UNC-Charlotte and a fairly likely admit at NC State. She applies
to Duke on a whim and is accepted not for her academic prowess but Duke’s desire
for SES diversity.

As
a diligent student, she will succeed whether she goes to UNCC, NC State, or
Duke, although at the latter she might find herself competing with students who
have more academic ability. Even if going to Duke wouldn’t cost her more (and
it almost certainly will), how is it beneficial for her to go there? Her career
prospects depend on her own accomplishments, not the name of her alma mater.

There
are two hidden assumptions in Kahlenberg’s argument — that elite schools give
students elite education and that America will be a fairer country if children
from “lower” SES backgrounds attend elite schools. Neither assumption is correct.
The supposedly elite schools don’t necessarily provide a better education.
Moreover, shuffling a few students “up” into those schools — while
simultaneously shuffling an equal number of non-preferred students “down” —
won’t make America any fairer. 

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

Fisher and “Diversity”: The More Things Change…

Browsing through the collection of over
70 pro-“diversity” amicus briefs
submitted on behalf of the University of
Texas in the Fisher case, I am reminded, as I often am, of how eerily
the current defense of “taking race into account,” i.e., preferential treatment
based on race, resembles the old Southern arguments in defense of segregation.

As I have
pointed
out
on my blog a number
of times,
one of the oddest, saddest things about contemporary liberalism is the degree
to which it stands on the shoulders, and repeats the arguments, of dead
racists. Anyone, for example, who defends racial preferences must reject
Justice John Marshall Harlan’s stirring comment in Plessy that
“our Constitution is colorblind” and agree with the majority’s holding that the
14th Amendment does not require colorblindness and hence that racial
discrimination can in many circumstances be reasonable and hence
constitutional.

Opposing the Michigan Civil Rights Initiative
in 2006 (before he was convicted
and sent to prison
for fraud and corruption), Detroit Mayor Kwame
Kilpatrick declared
to applause in a speech to the NAACP, “We will affirm to the world that
affirmative action will be here today, it will be here tomorrow and there will
be affirmative action in the state forever.” Kilpatrick unwittingly channeled
George Wallace’s 1963 acceptance
speech
as Governor of Alabama: “I draw the line in the dust and toss the
gauntlet before the feet of tyranny, and I say . . . segregation today . . .
segregation tomorrow . . .segregation forever!”

One of the most famous documents in the
South’s massive resistance to school integration was the “Southern
Manifesto
” of 1956, signed by 19 Senators and 77 Representatives, defending
states’ rights and criticizing the Supreme Court for overturning settled law.
To demonstrate how closely its arguments resemble current defenses of
preferential admissions I once posted a version of
that document
substituting “diversity” or “racial preferences” for
“segregation.” It is an uncanny fit. The Southerners argued, for example, that
“the ‘separate but equal’ principle [substitute: the amount of diversity and
the means of achieving it
] is within the discretion of the state in
regulating its public schools and does not conflict with the Fourteenth
Amendment.”

The Jackson Clarion Ledger quoted a spokesman for the Mississippi
Attorney General’s office explaining that representatives from that state had
“signed on … in the interest of fighting to allow our universities to set their
own admission policies without unnecessary interference or second-guessing by
federal courts.” In a closely related legal document  Mississippi joined
several other states in asserting that “states must have the freedom and
flexibility to create strong institutions tailored to the needs of each
particular State and its citizens” and urging the Court “to reject petitioner’s
invitation to … destabilize the careful judgments that each State has made in
light of the conditions and needs facing its own particular institutions of
higher learning.”
 

The petitioner referred to above is actually
Abigail Fisher, and the attorney general’s spokesman is actually referring to
the amicus
brief
Mississippi joined with New York, North Carolina and several other
states defending the University of Texas’s admitting some applicants and
rejecting others based on their race and ethnicity.
 

Mississippi, still defending racial
discrimination. The more things change….

Texas: Racial Preferences Now, Racial Preferences Forever!

The
University of Texas has filed its main brief
in Fisher v. University of Texas, and it’s a doozy. It argues, among
other oddities,

  • that
    the continuing “underrepresentation” of blacks and Hispanics requires the
    continued use of racial preferences to increase their numbers, but that the
    reason for increasing their numbers has nothing to do with increasing their
    numbers; it is necessary only because the “diversity” they provide is essential
    for the “acquisition of competencies required of future leaders”;
  • that
    assessing “the educational benefits flowing from student body diversity” might
    seem “amorphous,” but “trained educators” are competent to do so and courts
    should defer to their expertise;
  • that
    because Texas has no specific “race-based target” it should be allowed
    virtually unlimited latitude to give as much weight to race as it chooses;
  • that
    race-based preferences are necessary to combat racial stereotypes, presumably
    including the stereotype that minorities are incapable of succeeding without
    race-based preferences;
  • that
    not only is it too soon to limit or overturn Grutter; it will always be
    too soon because there are still “thousands of classes” where blacks and
    Hispanics are “nearly non-existent” and “diversity” is required not just
    institution-wide but in all classes.

I
discuss these and other aspects of the brief in more detail here.

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.

Continue reading An Unusual Brief Could Tip the Fisher Case

Could “Diversity” Become Mandatory?

diversity mandate.jpgThose of us who were disappointed when a divided Supreme Court upheld the distribution of burdens and benefits based on race in Grutter are hopeful that decision might be overturned — or that at least its most deleterious effects might be reined in — when the Court revisits affirmative action next fall in Fisher v. University of Texas. It would be a mistake to assume, however, as many do, that the worst-case scenario is the possibility that racial preferences in admissions and hiring might remain legal. If this administration’s arguments about the unprecedented and virtually (or even actually) unrestrained power the government possesses are upheld — either in currently pending litigation or by a future Supreme Court with new justices appointed by a re-elected President Obama– then “diversity”-justified discrimination could actually become mandatory.

Consider, first, the administration’s view of government power.
Twelve Catholic bishops, the Archdioceses of New York and Washington,
Notre Dame, Catholic University, Catholic Charities and the Consortium
of Catholic Academies — all told, 43 plaintiffs in 12 concurrently
filed lawsuits — have charged the Obama administration with trampling
their religious liberty by requiring them to finance or enable behavior
that violates their religion. Both the Washington Post and the Wall Street Journal covered the lawsuit on their May 22 front pages; the New York Times
buried it on p. A17. They charge, both implicitly and explicitly, that
the government now refuses to recognize any limits to its power, that
it does not have to follow the rules that formerly restrained it.

Continue reading Could “Diversity” Become Mandatory?

Stereotype Threat Coming to the Supreme Court

studying.jpgGet ready for a brand new defense of affirmative action that you’ve never heard before: preferences are necessary to assure selection by merit. How can that be? Simple. Just rework Claude Steele’s theory of stereotype threat–that minorities do less well on tests than their abilities warrant out of fear that their performance will confirm negative stereotypes about their race or ethnicity. Greg Walton, an assistant professor of psychology at Stanford, and several co-authors have just dressed it up in a new study currently in press at the journal Social Issues and Policy Review. They plan to include their findings in an amicus brief supporting affirmative action in Fisher v. University of Texas.

According to a celebration of their work just published in Stanford News Today,
the authors believe they have come up with a gold-plated defense of
racial, ethnic, and even gender preferences that does not rely on the
promotion of diversity. The conflict between diversity and merit, Walton
et al. believe, is bogus. “Our argument is that you need affirmative
action to make meritocratic decisions – to get the best candidates.”

Continue reading Stereotype Threat Coming to the Supreme Court

Texas Finds That Discrimination Isn’t Cheap

Inside Higher Ed reports this morning that the University of Texas has hired a big Los Angeles-based law firm, Latham and Watkins, to defend its race-based admission policy before the Supreme Court in Fisher v. University of Texas, which the Supreme Court will hear next fall. “The law firm, with extensive Supreme Court expertise, will be paid a flat fee of $977,000, with up to another $10,000 for expenses.”

Continue reading Texas Finds That Discrimination Isn’t Cheap

“Diversity” Takes More Lumps

“Diversity,” as everyone surely knows by now, is the sole remaining justification for racial preference in higher education allowed by the Supreme Court. Defenders seem to regard it as even more essential to a good education than books in the library or professors behind the podium. But a funny thing has been happening on the way to the Supreme’s Court revisiting racial preference in the Fisher case next fall: an increasing array of academic studies has been demonstrating that the “diversity” emperor has no clothes.

Continue reading “Diversity” Takes More Lumps

The “Mismatch Thesis,” Eye-Opening Research, and the Fisher Case

As the most important higher-education case in a decade makes its way to the Supreme Court–the Fisher case on racial preferences–UCLA law professor Richard Sander had an excellent series of posts at the Volokh Conspiracy summarizing one critical argument that his research has helped to highlight: that even the ostensible beneficiaries often are harmed (or at the very least, not helped) by racial preferences in admissions. I strongly recommend Sander’s three-part series, and thought it would be useful to summarize its main points.

Continue reading The “Mismatch Thesis,” Eye-Opening Research, and the Fisher Case

The Anger of Affirmative Action Advocates

Kevin Carey, policy director at Education Sector, a DC think tank, has a commentary in this week’s Chronicle of Higher Education that signals the kind of rhetoric we may expect from proponents of affirmative action as the Fisher case heads to the Supreme Court. It is a mixture of high-mindedness for one side and denunciation of the other.

Continue reading The Anger of Affirmative Action Advocates

Admission Standards and How to Lower Them Legally

Surprise, surprise. Affirmation action for college admissions is yet one more time in the hands of the Supreme Court (Fisher v. Texas). Given the Court’s changed personnel from the last go around (Grutter v. Bollinger, 539 U.S. 306 2003), race-based preferences may soon be history. But, would this judicial outcome finally doom preferences? Opponents of affirmative might wish to hold off celebrating.

Continue reading Admission Standards and How to Lower Them Legally

What Will the Court Do About Affirmative Action?

As you probably know by now, the Supreme Court has agreed to hear Fisher v. Texas, depending on your point of view a promising or threatening challenge to affirmative action. Major and minor media, blogs, whatever, are all filled with cries of hope or wails of fear that the racial preferences sanctified in Grutter will be overturned or at most/least seriously reined in.

Some of that discussion is inane, such as Jesse Jackson’s almost humorous charge quoted by Inside Higher Ed that critics of double standards in college admissions practice double standards themselves because they think racial preference is worse than athletic preference, a ridiculous argument I discussed a few days ago here. Also inane is a statement quoted in the same article by Michael A. Olivas, director of the Institute of Higher Education Law and Governance at the University of Houston, “that there is no evidence that consideration of race is excluding anyone from higher education.” Of course, eliminating consideration of race wouldn’t deprive anyone of higher education either; those no longer preferentially admitted to selective institutions would simply go to less selective institutions. And some of the discussion is both inane and offensive, such as Olivas’s further comment “that aggrieved whites who bring these cases will not be pleased as long as there is a black or Mexican in college.”

The Top Ten Percent

Also by now the broad outline of the long-roiling conflict over the use of race in college admissions and hiring — is it necessary to produce educationally essential “diversity” or should it be prohibited like other forms of outright discrimination that distribute benefits and burdens based on race? — no longer needs to be rehearsed. There are, however, two distinguishing elements of Fisher that do merit discussion: the effect of the “Top 10%” admissions policy adopted at Texas after affirmative action was first outlawed there and still in effect; and what if any weight the Court will give to the growing body of scholarship — with which it will be confronted for the first time — summarized in briefs demonstrating that the “mismatch” effect of racial preferences actually harms those who receive the preferential treatment.

In order to ensure the admission of “a large well qualified pool of minority students,” in 1997 Texas enacted a law requiring the University of Texas (UT) to admit all Texas high school seniors ranking in the top 10% of their classes. By 2000 the enrollment levels of blacks and Hispanics had returned to the levels of 1996, the year before Hopwood outlawed race-based affirmative action. By 2004, “the entering freshman class was 21.4% African-American and Hispanic, thus significantly exceeding the minority enrollment rates achieved under UT’s pre-Hopwood race preference system.” Notwithstanding the success of the race-neutral program, UT re-instituted race-based affirmative action on the day Grutter gave the green light. (Petitioners Petition for Certiorari, pp. 6-7)

Grutter purported to require “serious, good faith consideration of workable race-neutral alternatives that will achieve the diversity the university seeks,” but most observers have read that ostensible requirement as little more than rhetorical window-dressing on the endorsement of racial preference. That is certainly how preference-granting institutions have read it. Thus one possible outcome of Fisher would be for the Court to say that it really meant what it said, engage in “strict scrutiny” that unlike in Grutter was in fact strict, hold that the Top 10% plan provides more than adequate “diversity,” and prohibit additional race preferences.

How Much  Diversity is Enough?

UT, no doubt anticipating this possibility, has come up with the radical rejoinder that, despite its success, the Top 10% plan is insufficient because it has not succeeded in bringing “diversity” to every classroom. You read that right: every classroom. In his Fifth Circuit opinion affirming the district court’s denial of Fisher’s discrimination complaint, Judge Patrick Higginbotham wrote that while the Top 10% law “may have contributed to an increase in overall minority enrollment, those minority students remain clustered in certain programs, limiting the beneficial effects of educational diversity.” Relying on data provided by UT, Higginbotham noted that in Fall 2002 90% of smaller classes “had either one or zero African-American students, 46% had one or zero Asian-American students, and 43% had one or zero Hispanic students.” Thus, he concluded,

It is evident that if UT is to have diverse interactions, it needs more minority students who are interested in and meet the requirements for a greater variety of colleges, not more students disproportionately enrolled in certain programs. The holistic review endorsed by Grutter gives UT that discretion, but the Top Ten Percent Law, which accounts for nearly 90% of all Texas resident admissions, does not.

The Fifth Circuit voted 9-7 against an en banc review of Judge Higginbotham’s decision. In a blistering dissent for five of those seven, Judge Edith Jones wrote:

… in an entirely novel embroidering on Grutter, the panel repeatedly implies that an interest in “diversity” at the classroom level–in a university that offers thousands of courses in multiple undergraduate schools and majors–justifies enhanced race-conscious admissions….

The pernicious impact of aspiring to or measuring “diversity” at the classroom level seems obvious upon reflection. Will the University accept this “goal” as carte blanche to add minorities until a “critical mass” chooses nuclear physics as a major? Will classroom diversity “suffer” in areas like applied math, kinesiology, chemistry, Farsi, or hundreds of other subjects if, by chance, few or no students of a certain race are enrolled? The panel opinion opens the door to effective quotas in undergraduate majors in which certain minority students are perceived to be “underrepresented.” It offers no stopping point for racial preferences despite the logical absurdity of touting “diversity” as relevant to every subject taught at the University of Texas. In another extension of Grutter, the panel opinion’s approval of classroom “diversity” offers no ground for serious judicial review of a terminus of the racial preference policy.

Over the years on my blog I have joked a number of times — at least at the times I thought I was joking — that, as I put it here, “if ‘diversity’ is important enough to the education of non-minority students at selective institutions to justify sacrificing the right of applicants to be free from racial discrimination, it’s important enough to draft some minority students and require their attendance” where it’s needed. If by some fluke the Supremes uphold Judge Higginbotham’s decision, it would be downright irresponsible of UT and other institutions not to assign preferentially admitted minority students to classes that need the “diversity” they would provide, just as diversiphiles insisted on the desirability of assigning K-12 students to schools by race.

The Mismatch Theory 

Readers of Minding The Campus are no doubt familiar with the “mismatch” theory pioneered by UCLA law professor Richard Sander. Now, the Supreme Court will have the opportunity to consider the evidence supporting it. In two powerful briefs urging the Court to grant cert — one by Sander and Stuart Taylor Jr. and the other by Gail Heriot, Peter Kirsanow, and Todd Gaziano (all members of the U.S. Commission on Civil Rights) — and presumably in additional briefs they will file now that the Court has accepted the case, the Court will be presented with the scholarship demonstrating that minorities who receive preferential treatment in admissions cluster in the bottom 10% of their classes and have much lower grades, graduation rates, and bar passage rates than their non-preferred peers. In fact, Sander et al. conclude, there are actually fewer black lawyers, engineers, and other STEM professionals than there would have been absent the preferences. Read the briefs for the excruciating chapter and verse.

Justice O’Connor held in Grutter that the “educational benefits” that flow from “diversity” constitute a “compelling interest” that can justify racial preference, but it is clear from the evidence amassed here that those benefits, whatever they are, do not flow to those who receive the preferences. Sander and Taylor argue that the Court’s past decisions

make clear that racial preferences in higher education are tolerated under constitutional law — to the extent that they are tolerated — only on the assumption that they are benefits conferred upon relatively powerless minorities. If preferences turn out to have mostly harmful effects — or even if the effects are often harmful and on balance ambiguous — then the fundamental legal premise for permitting this type of racial classification is gone.

Those of us opposed to distributing benefits and burdens based on race owe an enormous debt of gratitude to Sander and the scholars he cites, many of whom were inspired by his own work, and I certainly hope the Court takes this evidence to heart, and mind, and reverses Grutter or at least severely constrains its effects. I do, however, perhaps confirming that no good work goes uncriticized, want to offer one quibbling clarification and conclude with a more serious concern.

First the quibble: it may well be true that the courts have tolerated racial preferences only on the assumption that they benefit, and are intended to benefit, the preferentially admitted minorities, but if so they (like virtually everyone else) do not believe the justification offered by the institutions granting them. That justification, more like a mantra — that “diversity” is essential to a good education — in practice means that it is necessary to lower the bar for the preferred minorities so that the un-preferred Asians and whites can receive the benefit of being exposed to them. The preferentially admitted do not, after all, provide “diversity” to themselves. They would receive that benefit even if, in the absence of preferences, they attended less selective institutions. In practice, some Asians and whites are excluded from selective institutions because of their race so that other more fortunate Asians and whites can be exposed to the preferentially admitted minorities. Interestingly, if the Court were to recognize this reality, it might not care that preferential treatment is bad for the preferred since “diversity” doesn’t exist for them in the first place and they would still provide it from the bottom of their classes, etc.

More seriously: Sander and Taylor make a virtue of basing their conclusions on confirmable facts regarding the effects of preferences on the preferred, not on morality or principle. Their leading argument is that

Social Science Research Has Undermined The Central Assumption Underlying All Racial Preference Programs In University Admissions: That They Are Good For The Intended Beneficiaries

Aside from the quibble discussed above regarding who the intended or real beneficiaries are, there is a troubling question here: does resting the rejection of racial preference on social science findings imply that the discrimination required to produce the desired “diversity” would or should be acceptable if only it were good for the preferred? Social science findings, no matter how impressive, are often not timeless and can provide a weak foundation on which to rest a right that many think of as flowing from the fundamental American value that everyone should be judged without regard to race, creed, or color. Kenneth Clark’s famous doll study used in Brown v. Board of Education, for example, does not look as impressive now as it did to many observers in 1954.

This is not the place, and I am not the person, for a long disquisition on the proper relationship between facts and law in Supreme Court jurisprudence, but mention of one non-Fisher example may be in order. Criticizing Rick Santorum on Huffington Post recently for suggesting that recognition of a fundamental individual right to same sex marriage might lead to recognition of polygamy, Eliyahu Federman cited the 2008 California Supreme Court decision affirming same-sex marriage but also asserting that “polygamous or incestuous relationships” are not protected because they are “inimical to the mutually supportive and healthy family relationships promoted by the constitutional right to marry.”

That, of course, sounds just like those who criticize same sex marriage, but according to Federman “[t]here isn’t a shred of modern sociological evidence to support the claim that gay marriage is harmful to society, whereas there is a plethora of historical and contemporary evidence to illustrate the dangers associated with polygamy.”

I offer no opinion about the persuasiveness of the “sociological evidence” used in California and on Huffington Post to deny rights to those individuals who want to marry more than one person and to affirm the right of individuals of the same sex to marry, but I do believe that both the affirmation and denial of fundamental rights need to rest on something more substantial than sociological evidence.

A Major Brief Against Preferences

Stuart Taylor, my colleague from the lacrosse case, and UCLA Law School professor Richard Sander, have filed a brief urging the Supreme Court to hear Fisher v. University of Texas, the University of Texas racial preferences case. Hopefully the brief will achieve its purpose; it certainly presents a compelling indictment of the racial preferences structure that governs most admissions policies in higher education.

Taylor and Sander urge the Court to look beyond the deeply misleading, even deceptive, rhetoric provided by defenders of the academic status quo. They note that while pro-preferences administrators and their allies often frame the use of preferences as tiebreakers, this claim is simply not true. At Texas, for instance, among those students admitted outside of the university’s top-10% admissions scheme, “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.”

Continue reading A Major Brief Against Preferences

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

Texas Sued Again Over Racial Preferences

The University of Texas has been sued once again over racial preferences in its admissions policy – by an 18-year-old high school senior in Sugar Land near Houston who ranks in the top 12 percent of her class but says she was turned down by the university’s prestigious Austin campus in favor of less academically qualified blacks and Hispanics. The rejected applicant, Abigail Noel Fisher, alleges in her complaint filed in federal court that the university’s use of racial preferences to increase minority enrollments violates the U.S. Constitution’s equal protection clause as well as federal civil rights laws.

Fisher’s lawsuit, which includes a request for a preliminary injunction requiring the university to reconsider Fisher’s application using race-neutral criteria in time for her to join this fall’s entering freshman class, is the latest court test of efforts by the University of Texas’s generally liberal administrators to factor in race as an admissions criterion in the face of restrictions imposed by the U.S. Supreme Court.

..In 1978 the Supreme Court ruled, in Regents of the University of California vs. Bakke, that reserving a specific percentage of entering medical-school slots for members of minority groups was unconstitutional, but the court did say that an applicant’s minority status could be considered as a plus factor in admissions decisions. The ambiguously written Bakke ruling appeared to give the green light to racial preference-based admissions policies as long as they did not amount to outright racial quotas. Nonetheless, in 1996, four white people who said they had been rejected from law school at the University of Texas under a racial-preference policy won a ruling from the Fifth U.S. Circuit Court of Appeals outlawing all race-based admissions policies at public colleges. The U.S. Supreme Court declined to review the ruling in Hopwood vs. Texas, so it became the law, at least in the Southern states, including Texas, that make up the Fifth Circuit.

Continue reading Texas Sued Again Over Racial Preferences