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.