Governing through Reason
Supreme Court Watch: Fisher v. University of Texas
Not Appearing in This Case
One of the most important cases of this year’s docket is up for argument before the Supreme Court today. At issue is whether the Equal Protection clause of the Fourteenth Amendment permits consideration of an applicant’s race a one of many elements in accepting or rejecting college admission applications. This case could decide the fate of affirmative action laws, not only in college admissions, but in the fields of hiring and federal contracting as well.
Section 1 of the Fourteenth Amendment is below, with the Due Process and Equal Protection clauses highlighted:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
The Equal Protection clause thus requires each state to provide equal protection under the law to everyone within that state. The Supreme Court used this requirement in Brown v. Board of Education (1954) to order the desegregation of American schools. Fisher v. University of Texas will determine if this requirement still stands.
In 1966, the Texas legislature adopted the race-neutral “Top Ten Percent” law as the undergraduate admissions policy for the University of Texas. This law guarantees that all Texas high school students who graduate in the top ten percent of their class will be accepted into the state University. This did have a positive affect on minority admissions, but after the 2003 Supreme Court decision in Grutter v. Bollinger (see below), the University of Texas added to the legally-defined standard to allow race as one of many considerations for students not falling in the top ten percent.
These additional criteria for the remainder of UT students is called a “holistic whole-file review” of applications. The schools may consider essays, leadership qualities, extracurricular activities, awards, work experience, community service, family responsibilities, socio-economic status, and languages spoken in the home. As of 2005, the University may also consider race.
In 2008, two white students (Abigail Noël Fisher and Rachel Multer Michalewicz) sued the University of Texas when denied admission under these rules, arguing that the race-conscious admissions policy violated their rights to equal protection under the Fourteenth Amendment. We should not miss the irony that white students claimed their rights were being violated using precisely the arguments that had created the admissions policy designed to protect the rights of minority students.
The Court last considered the issue of race in college admissions in the 2003 case Grutter v. Bollinger. Justice Sandra Day O’Connor, a Reagan appointee, wrote that 5–4 decision upholding the affirmative action policy of the University of Michigan Law School. The ruling held that a university may consider race as one of many elements in its admissions process, in order to help ensure diversity or to avoid any possibility of discrimination against minorities. Justice O’Connor wrote that it may not be necessary to consider race at some point in the future, but that it still made sense to do so in 2003.
In 2009, United States District Court judge Sam Sparks upheld the University’s policy, writing that it satisfied the standards and requirements of Grutter v Bollinger. In 2011, the Fifth Circuit Court of Appeals panel voted 9–7 to uphold the District Court decision. Fisher appealed again to the Supreme Court, which granted certiorari in February of 2012. Oral arguments are today.
Since the Grutter v Bollinger decision, Justice O’Connor has been replaced by the more conservative Chief Justice John Roberts, an George W. Bush appointee, thus making it more likely to go the other way this time around. The swing vote on the Court these days is usually with Justice Anthony Kennedy, another Reagan appointee, who voted against the majority decision in Grutter v Bollinger. A further complication in Fisher is that Justice Elena Kagen has recused herself from this case. She was Solicitor General when the United States filed an amicus brief while the case was being argued on appeal before the Fifth Circuit.
This may thus come down to a 5–3 decision, with the Court’s conservative majority ruling, and it could have an enormous impact on racially conscious policies, not only in college admissions, but in other areas such as employment rights, hiring and promotion decisions, rules awarding federal or state purchasing and construction contracts, perhaps in other areas as well.
Justice Kennedy could surprise observers; last term, Chief Justice Roberts showed a particularly strong independence in his decision on the fate of Affordable Care Act. In case of a 4–4 tie, the Circuit Court’s decision will stand, and the University of Texas will retain its current admissions policy. Stephen Menendian has an excellent article discussing likely clues to look for in oral arguments in an attempt to divine how the Justices are leaning.
What are your thoughts? Is it permissible — even, perhaps, required — to consider race as one of many factors in college admissions? Was affirmative action ever required as a means of correcting racial discrimination? If so, is it still required today? What about areas of discrimination in sexual orientation, gender, or religious faith? Does the Equal Protection clause of the Fourteenth Amendment, enacted after the American Civil War, still have meaning in 21st century America?
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Understand, Mule, that in my response I’m not saying I agree with this philosophy, just laying it out.
The theory behind affirmative action is that in our society there is racism (and other
“-isms”) so pervasive and insidious that the only way of correcting for them is to re-weight the admissions scales for those individuals.I think that whether you feel that life is a level playing field for minorities and other disadvantaged groups makes a huge difference in where your analysis goes. For me personally, I think there’s a strong societal bias against (for example) African-American children that causes a diminished performance of that group on standardized exams. However, I’m not convinced that affirmative action in college admissions is the “right” solution to that particular problem.
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#3 written by astrodude 7 months ago
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#4 written by astrodude 7 months ago
Mono and Mule,
I’ve heard many times (and these were opinions, so I don’t have links that I can point to) that the real way to address the inequities in education are at the elementary school level (or earlier). By the time you get to college, it may not be as useful. In an ideal world where we as a society could come up with effective and wide-spread early-education improvement, we would not need any kind of race-based consideration at the university level and we could judge just based on merit.
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#6 written by Mule Rider 7 months ago
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#7 written by shortchain 7 months ago
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I agree that we need to invest more in earlier education, and undo the class and racial discrepancies there. (One of the reasons we need to continue to fund public television.)
However, that does nothing for the people who have already come through primary education and are now ready to get into college. Furthermore, many areas of the country have a clear history of racial discrimination regardless of merit, and it makes sense to institute rules which make it harder to continue such discrimination.
How about the other factors which are considered in the University of Texas process — essays, leadership qualities, extracurricular activities, awards, work experience, community service, family responsibilities, socio-economic status, and languages spoken in the home. Should these factors be considered? Or, out of the panoply of current factors, is race the only one that should be dropped?
Should residency in Texas be considered? If you went to a Texas high school and scored in the top 10% of your class, you are guaranteed admission to a Texas university. Residency has got nothing whatever to do with merit. Should the U of T be required to drop that as well?
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Not to be the fly in the ointment, but…
I think you’re looking at it too much from a handout perspective. Monotreme and shortchain, you two are directly in the world of academia, so I’m most interested in your perspective on the following.
Let’s say we have two applicants, neither of whom were in the top ten percent. Both have similar GPAs and SATs (we’ll say that the Caucasian has a slightly higher GPA, and the Latina a slightly higher SAT). The Caucasian was involved in many extracurricular activities, but the Latina was not, because she spent her time working to help accumulate enough money to offset the cost of college education. Or perhaps she didn’t have access to as many extracurricular activities due to her geographical location. Whatever.
Both have essentially equivalent academic merit, but schools typically give “bonus points” for the extracurriculars. Should the Caucasian get the spot, simply because the family wasn’t as worried about money and more opportunities were available at the Caucasian’s school?
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I mentioned in my earlier article that we had a points system for dental school admissions, and because we were bound by the Fifth Circuit’s decision at that time which prevented race-based policies, we went with a score for “overcoming adversity”.
I was a lot more comfortable with that system, which gave a preference (real-world examples) to a young Caucasian woman whose family owned a junkyard in rural Mississippi over a wealthy young man whose family was one of the most prominent African-American families in the state. -
#13 written by shortchain 7 months ago
I’m vastly more comfortable with a score for “overcoming adversity” rather than race-based scores.
This would give points to the Latina to make up for the economic disadvantage.
Let me be clear: I support Affirmative Action. I would prefer it be done through positive intervention before the students get to college, so that they can compete on a roughly equal playing field — and I believe that could be done, if we weren’t saddled with approximately 30 percent of the electorate which just hates the idea of paying for one of “those other people” to get a chance and a political party which panders to that portion of the electorate in order to gain electoral power.
There has been an experiment, carried out at a large university, in which economically disadvantaged children (k-6, I believe) were given personal tutoring for a few hours a week, and then tested to observe the effectiveness of that tutoring. From what I gather (informally from a person involved, not from one of the researchers), the program was fairly effective in increasing test scores, but was pretty expensive (as these things go).
I think it has been discontinued due to lack of funds.
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#14 written by astrodude 7 months ago
I was going to add to my comments above something along the line of what Michael said. Given that we don’t live in an ideal world, something should be done to address inequities. I would be more comfortable with a consideration of the economic circumstances rather than race (as in both Michael’s and Mono’s examples). If done right, this can still lead to a good merit-based evaluation of the applicants. That is, you can correct for the effect that, say, well-to-do New Yorkers know to push their kids into extracurricular activities, can afford to support them in those activities, and furthermore know about and push their kids into élite private high schools that have a fast-track into the Ivy League and other big-name colleges. Those kids will have a much more impressive looking application than someone who is the first member of his/her family to attend college, but not necessarily because they are smarter or have more potential.
I will admit to a fair amount of bias in this position, being a midwestern kid from a poor family who made it into an Ivy League college via a public high school.
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I’m vastly more comfortable with a score for “overcoming adversity” rather than race-based scores.
I am as well. I look at the motivations behind affirmative action and see two:
1) Overcoming adversity
2) Cultural diversityThe first seems pretty easy (though I’d imagine there are some who would oppose it…are any of them reading Logarchism?). The second gets especially messy. What’s the purpose of the cultural diversity motive? Does it make sense in the context of academic admissions or hiring decisions?
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#16 written by astrodude 7 months ago
Another benefit of college is the mind-opening experience of living and taking classes with people who grew up in different circumstances than your own. That’s why diversity in the student body is a good thing — as long as schools can find a fair way to achieve that. It seems that the U of Texas “top 10%” strategy goes some way toward achieving this goal.
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#17 written by astrodude 7 months ago
Michael,
I think that “cultural diversity” may be more easy to defend in college admissions than in hiring practices, as I mentioned in my previous post (which I wrote before seeing your #15). However, I have read (in the Economist, I believe, but I’m not sure) that some companies value something like cultural diversity because different people bring different ways of approaching a problem. Thus, their ideas may be more “out of the box” than those of the dominant culture in that industry, and may lead to breakthroughs. If this were obvious, and I don’t know if any rigorous studies have been done to test this assertion, you might imagine that companies that hired for diversity would do better and thus, in this case, the market might drive things toward diversity.
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#18 written by PNE 7 months ago
About Michael’s scenario, in that case I think the Latina should write her college essay about how she worked, what job she did, and what she learned from it. I think by doing that, it would be pretty clear that she falls into the ‘overcoming adversity’ category, and that would give the college a pretty good reason to accept her.
P.S. Most of my beliefs about Affirmative Action have been said already, so I’m not just going to repeat everyone here.
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#19 written by channelclemente 7 months ago
One point of clarification. The 10% law is not race neutral. If it were the top 10% in the state then maybe, but it’s from within each school. As long as education in Texas schools is essentially segregated, and it is, relative to % representation of each race in the population. Let’s just hope the court rules narrowly.
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#20 written by shortchain 7 months ago
My opinion about counting extracurricular activities in college and university admissions is hopelessly biased by three factors:
1. Where I grew up the extracurricular activities available were slopping the hogs, milking the cows, dipping the sheep, vaccinating the cattle, etc, etc, until we moved into town during HS.
2. After that, my extracurricular activities were such as to make the person best suited to write a testimonial be my probation officer (we developed a good relationship over the years). Dunno if that would have impressed the Ivy League entrance board. Frankly, there were almost no legal extracurricular activities in the small city we moved to for a kid with no father and a mother who worked.
3. When I wasn’t getting into trouble, I was trying to earn money, because it was beyond obvious that nobody was going to put me through college except me.Personally, I value a capacity for independent thought in a potential student — and that isn’t reflected in any “extracurricular activity” history. I suspect that weighting for such is a sub rosa means of giving advantage to the advantaged.
As for cultural diversity, there’s a value to cultural diversity, but it’s very hard to quantify, IMO.
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#21 written by mclever 7 months ago
Unsurprisingly, my views have largely already been expressed by those before me. I like the idea of having “points” for “overcoming adversity” as an alternative to race-based considerations, because I see the opportunity disparities these days as being driven more by socioeconomic status than race. I think there are still pockets where subtle racism and cultural pressure may deprive certain people of opportunities, but the problem is probably not as pervasive as it was in years past. I do think there was significant merit in Affirmative Action policies thirty or forty years ago. I’m not as sure racial-based preferences are as relevant today.
However, to pretend that we should go exclusively on “objective” criteria like test scores, GPA, extra-curricular activities, etc. would be to deny the complex reality and diversity of opportunities for students depending on their home situation, school quality, neighborhood economics, etc. That’s where Monotreme’s “overcoming adversity” bonus points come in, a concept that should probably have broader appeal.
Furthermore, it should also be acknowledged that the real problem is the inequality of opportunity for younger children. More benefit is gained by helping kids get a good start at age 4 or 5 (or earlier) than trying to retroactively compensate for disadvantages once the kid reaches age 18. If we want to be a free society where everyone has equal opportunity to get ahead based on merit and hard work, then we need to address the inequality at the preschool and elementary levels and really create a level starting field. If we did that, then I believe all discussions of “Affirmative Action” would largely become moot within a generation.
I will add that I see diversity as a laudable goal both in school and business. I don’t have stats handy, but a quick google search for studies of the benefits of diversity yields thousands of results. College is often an eye-opening experience as students encounter people from outside their comfort zone, which sociological studies have shown tends to increase qualities of empathy, social awareness, creative thought, intellectual confidence, and higher GPAs compared to those in a more homogeneous environment. Similarly in business, having people from different backgrounds helps to stimulate innovation (among other benefits), as I’ve found in my own personal experiences. I would bet that businesses who make diversity a priority are also more successful, especially if the business relies on R&D.
Because of the benefits of diversity, and because of the past injustices of racism, I think it makes sense for schools and companies to use racial identity as a check to confirm that there isn’t unintentional bias in their hiring/acceptance policies, but not as an actual hiring/acceptance criterion.
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#22 written by channelclemente 7 months ago
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mclever,
If we want to be a free society where everyone has equal opportunity to get ahead based on merit and hard work, then we need to address the inequality at the preschool and elementary levels and really create a level starting field. If we did that, then I believe all discussions of “Affirmative Action” would largely become moot within a generation.
Sadly, because the payoff for such investments is measured on the order of a couple of decades, it’s easy to avoid such investments and spend money on more immediate things.
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#25 written by Max 7 months ago
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#26 written by mclever 7 months ago
@CC
I also appreciated living in California in part because of the diversity.
I still remember taking my mom to Paseo in Pasadena where she was absolutely shocked that all these different people could be in the same place without…I don’t know what she thought would happen. Gang fights between Koreans, Mexicans, and Indians? That moment struck home how “ordinary” diversity had become for me.After six years of SoCal, the lack of diversity has been one of the biggest adjustments to moving back to Iowa.
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#27 written by PNE 7 months ago
channelclemente: I share Max’s reaction to your comment. Texas is an incredibly diverse state, probably second only to California. All of its major cities are popular destinations for immigrants, and so they have a diversity that a race map couldn’t show. As for the suburbs, they are rapidly becoming more diverse. Collin and Denton Counties (around Dallas) and Fort Bend County (next to Houston) are some of the most diverse counties in the country of their size (obviously they can’t rival the diversity of a county with 10 million people like LA County). In fact, in Fort Bend County, if two people are picked at random there is a 75% chance that those two people will be of different races. Even the rural areas are not entirely white; in the eastern half of the state there are significant African-American and Hispanic pockets.
So yeah, Texas is an incredibly diverse state, and if you wanted to live in a diverse place, then a lot of places in Texas would fit the bill. Of course, I realize that there are also many reasons why you wouldn’t want to live in Texas.
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#28 written by Mule Rider 7 months ago
“Another benefit of college is the mind-opening experience of living and taking classes with people who grew up in different circumstances than your own. That’s why diversity in the student body is a good thing…”
Sorry, but I find this kind of “diversity” argument to be un-compelling, at best. It’s very similar to conservatives who trot out the argument of why kids need “mommies and daddies” rather than be raised by same-sex couples. Sure, they might be passionate and make predominantly reasonable and rational points why children benefit from being reared by one of each gender, but as liberals always like to say, where is the science? They point that there simply isn’t compelling statistical evidence suggesting children are that much better off with hetero-parents. Same applies here. Where is the statistical evidence that children are better off being educated in a diversified environment? I mean, we’ve heard the qualitative professions and such, but where’s the quantitative evidence of benefits?
“it’s more or less why I live in California instead of Texas.“
You know, you try really hard to pretend you’re smart, but the kind of ignorance you display regarding geography/demography in a post like this exposes just what kind of buffoon lies behind all that pretense. If you’d said Idaho or Utah — hell, even a state like Arkansas or Kentucky — you’d have a point. But you go and pick one of the four majority-minority states in the entire US. Praytell, if Texas isn’t diversified in your opinion, where exactly is???
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#30 written by Valjiir 7 months ago
Mule:
I’d like to ask a serious question. The first part of your post #28 was so intelligent and made a wonderful case for your point of view. In fact, there are many of your points with which I completely agree.
My question is why you then have to devalue your contribution to the discussion by disparaging another commentor’s opinion. cc feels that California is more diverse than Texas. Whether or not you agree with him (her, I don’t know which), s/he IS entitled to his/her opinion, is s/he not? Your question at the end of your post is apparently wondering why cc picked Texas as an example of a non-diverse locale. Could you not have asked that without the insults and name-calling, which tend to cause the reader (or, this reader, at least) to respond not to your salient points, but rather to your rude behavor?
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Here is a link to “Three Research Studies on Diversity in College Classrooms”. I haven’t read it (yet), but it might furnish some actual data on the question, “Does Diversity Make a Difference?”
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Speaking from personal experience, Texas is diverse in terms of the number of non-Caucasians, but not as tolerant of diversity as is California. It almost feels like an uneasy truce in much of Texas, whereas race is closer to invisible in California. I think it has to do with time.
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#34 written by mclever 7 months ago
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#35 written by mclever 7 months ago
@Michael
Your comparative experience between Texas and California echoes mine. In Dallas, it was ethnically diverse, but everyone stayed in their homogeneous groups where anything “different” was frowned upon. (I was frowned upon a lot, because my best friend was black and of the opposite gender, so when we went to lunch together, they always made sure we were seated way in the back…) And Dallas was one of the more “progressive” areas.
In California, different people intermingling was so common as to be unnoticed by locals. Differences were largely expected and accepted without comment. Honestly, it was refreshing in comparison.
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#36 written by Mule Rider 7 months ago
“My question is why you then have to devalue your contribution to the discussion by disparaging another commentor’s opinion.“
I’m a big believer in reciprocity. CC has made a big part of his schtick avoiding addressing me in a reasonable, rational, and/or respectful tone and dropping condescending remarks (“Yosemite Sam”) at every turn. If I could get an ounce of reasonableness out of him, I can promise you my tone would change. In short, to answer your question, audience matters.
“but it might furnish some actual data”
Not in that one, that I could tell. Looked like more of the same assertive fluff — diversity is good and should be a high priority in providing a well-rounded educational experience — with little data showing HOW it improves the educational experience.
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#37 written by Mule Rider 7 months ago
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#38 written by Max 7 months ago
Well, boys and girls, I ain’t heard any “Asian driver” jokes since I left CA!
One is rather foolish it try to comp “diversity” from one state to another, as you can find what you’re looking for without a lot of trouble either way. The ABSOLUTE best thing you can say is that it’s a matter of degree. That there are “pockets” that are the exception.
So no one, repeat: NO ONE, has the market cornered. Bragging about one over the other is opening yourself up to be made to look foolish! Because the examples are easily found to counter your mistaken assumption.
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#39 written by Valjiir 7 months ago
Mule,
Thanks for answering my question. The only rebuttal I have (if rebuttal is actually the applicable word here) is that there is more to the audience here than just CC. Though I can understand having that kind of emotional reaction to someone who, as you say, has been ungenerous to you in the past :)
Anyway, thanks again.
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#40 written by Max 7 months ago
Mule,
“CC has made a big part of his schtick avoiding addressing me in a reasonable, rational, and/or respectful tone and dropping condescending remarks”
You REALLY think CC has THAT market cornered? Valjiir hit the nail on the head. As I’ve said MANY times now, “You chose the path we walk”. And when you lay out that path, I and others (well, maybe not mc) will DAMN SURE give back what you give out.
The day YOU stop being an ass, I am CERTAIN that folks will reciprocate. You WANT reasonable, YOU GIVE reasonable.
Til then, don’t whine like a 2 y/o about people treating you as you treat others.
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Mule,
If I could get an ounce of reasonableness out of him, I can promise you my tone would change.
Here’s why I doubt that. Sure, you’ve been reasonable with me at times, but if I ever dare to agree with, say, DC on even a minor point, all of a sudden I’m a partisan hack who devalues the whole of the Interwebs. I’ve been on the receiving end of your flamethrower on numerous occasions, and have never attacked you personally.
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#42 written by Mule Rider 7 months ago
“The day YOU stop being an ass, I am CERTAIN that folks will reciprocate. You WANT reasonable, YOU GIVE reasonable.“
Maybe “some” but definitely not “all” because I know for a fact I’ve entered threads with a genial tone and had someone jump down my throat for no good reason. Shortchain comes to mind as a recent example (“take your Austrian BS and stick it where the sun doesn’t shine”).
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#43 written by Armchair Warlord 7 months ago
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#44 written by Mule Rider 7 months ago
“Here’s why I doubt that. Sure, you’ve been reasonable with me at times, but if I ever dare to agree with, say, DC on even a minor point, all of a sudden I’m a partisan hack who devalues the whole of the Interwebs. I’ve been on the receiving end of your flamethrower on numerous occasions, and have never attacked you personally.“
I regret how many of our conversations have devolved, and while this doesn’t excuse it, it might help explain why I’ve been “flamethrower mode” at times with even the more level-headed in this crowed. It’s all about alliances and numbers. Sure, you disagree with DC, shortchain, and others on a number of issues, but arguably you align with them on far more issues than you do me. Couple that with there really only being four conservative-leaning regulars here in myself, GROG, rgbact, and parksie. It’s practically non-existent that all four of us are participating in the same thread and rare for even three of us to be in the room together at the same time. Generally just 1–2 of us at the same time up against a much larger opposition that is generally much more dedicated “the cause.” It’s very easy to get into a defensive position with a me-against-the-world mentality in that kind of environment. So when I’m locked into a war of words with DC, Max, or someone else and it gets heated, and I know you, Mono, or mclever are regular participants but I don’t see you weigh in, my default position, knowing that you align with them on far more issues than you do me, is to assume they’re essentially serving as a proxy for your view on whatever the subject matter happens to be that day. I know that doesn’t seem fair, respectful, or even logical at times, but it’s a product of having these kind of heated discussions on a blog where we can only respond to sporadic written comments (which can skew context, tone, and gestures that likely wouldn’t be a problem in a live, face-to-face environment) to one another.
It is what it is, I guess.
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#45 written by Mule Rider 7 months ago
“I submit that your idea of “reasonable” is a long way from what is actually reasonable.“
See, when there’s this kind of perpetual snark from some participants, it’s very hard to find any motivation to even try with them.
Never, and I mean NOT ONE SINGLE TIME, has Armchair Warlord EVER responded to the content of one of my posts. It’s the same thing every single time. Some condescending remark akin to, “Is this guy for real??? OMG, that dude’s so outrageous! Good thing we don’t take him seriously.…stand back folks, he’ll probably just threaten to ‘gut you like a fish.’ We know he’s blowing smoke, though, and just can’t see the light of day in his delusional little world.”
That’s it. Vacuous, insulting fluff. There is content of mine in this very thread you can respond to, AW. Others have. Instead of critiquing my perception of ‘reasonableness,’ why don’t you take a hack at something I’ve said above on the subject matter of this thread.
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Why should be race be considered as a factor in college admissions? What purpose would it serve?
If all college admissions materials were structured to NOT categorize people by race, gender, sexual orientation, or religious faith, would that not, by default, make the admissions process overwhelmingly based on merit and/or academic achievement? Is that not what we want?!