Mike Kueber's Blog

June 25, 2013

Fisher v. Texas finally decided anticlimactically

The U.S. Supreme Court finally decided its affirmative-action case, Fisher v. University of Texas.  Unfortunately, they punted on the decision by instructing a lower court to reconsider its previous decision.  In this reconsideration, the lower court is supposed to hold the University to a much heavier burden for justifying race-influenced admissions.

Because of this holding, both sides can claim victory.  Liberals like the New York Times and the San Antonio Express-News editorial boards are thrilled (or relieved) that affirmative action has been allowed to live at least another day, while conservatives are encouraged that all future cases with be subjected to most difficult equal-protection analysis – i.e., strict scrutiny.

After reading an article in the SA Express-News (whose reporting is scarily similar to its editorial page), I submitted a comment suggesting that this legal issue is a sham because the liberals are pretending to pursue diversity while in reality they are pursuing racial balancing.  The sham is required because the Bakke decision by the Supreme Court in 1978 said that racial balancing was illegal but diversity was not.

Shortly after making the comment, another Express-News reader, Daniel Miller, suggested that I was mistaken.  He accused me of falsely charging the universities of seeking racial balance when, in fact, they were purely pursuing diversity.  He also accused me of failing to define racial balancing.

With this prompt from Miller, I googled the difference between racial balancing and diversity, and was taken to an interesting website that contained an excellent description of this issue.  The website contains several quotations from legal decisions relating to racial balancing:

  • Accepting racial balancing as a compelling state interest would justify the imposition of racial proportionality throughout American society, contrary to our repeated recognition that “[a]t the heart of the Constitution’s guarantee of equal protection lies the simple command that the Government must treat citizens as individuals, not as simply components of a racial, religious, sexual or national class.” 
  • Allowing racial balancing as a compelling end in itself would “effectively assur[e] that race will always be relevant in American life, and that the ‘ultimate goal’ of ‘eliminating entirely from governmental decision-making such irrelevant factors as a human being’s race’ will never be achieved.”
  • An interest “linked to nothing other than proportional representation of various races … would support indefinite use of racial classifications, employed first to obtain the appropriate mixture of racial views and then to ensure that the [program] continues to reflect that mixture.

After responding to Miller’s comment, I decided to read the Fisher decision again, and while doing that, I noticed the concurring opinion of conservative Justice Thomas and the dissenting opinion from liberal Justice Ginsberg.  Justice Thomas described the stark difference between diversity and racial balancing:

  • Attaining diversity for its own sake is a nonstarter. As even Grutter recognized, the pursuit of diversity as an end is nothing more than impermissible “racial balancing.” (“The Law School’s interest is not simply ‘to assure within its student body some specified percentage of a particular group merely because of its race or ethnic origin.’ That would amount to outright racial balancing, which is patently unconstitutional.”  (“Preferring members of any one group for no reason other than race or ethnic origin is discrimination for its own sake. This the Constitution forbids”). Rather, diversity can only be the means by which the University obtains educational benefits; it cannot be an end pursued for its own sake. Therefore, the educational benefits allegedly produced by diversity must rise to the level of a compelling state interest in order for the program to survive strict scrutiny.

Justice Thomas also provided interesting information relating to the extent of racial discrimination at UT in admitting its class of 2009:

  • In the University’s entering class of 2009, for example, among the students admitted outside the Top Ten Percent plan, blacks scored at the 52d percentile of 2009 SAT takers nationwide, while Asians scored at the 93d percentile. Blacks had a mean GPA of 2.57 and a mean SAT score of 1524; Hispanics had a mean GPA of 2.83 and a mean SAT score of 1794; whites had a mean GPA of 3.04 and a mean SAT score of 1914; and Asians had a mean GPA of 3.07 and a mean SAT score of 1991.

Liberal Justice Ginsberg admitted that all of this talk about diversity was merely camouflage:

  • Petitioner urges that Texas’ Top Ten Percent Law and race-blind holistic review of each application achieve significant diversity, so the University must be content with those alternatives. I have said before and reiterate here that only an ostrich could regard the supposedly neutral alternatives as race unconscious.  As Justice Souter observed, the vaunted alternatives suffer from “the disadvantage of deliberate obfuscation.”  Texas’ percentage plan was adopted with racially segregated neighborhoods and schools front and center stage….  It is race consciousness, not blindness to race, that drives such plans.  (Footnote – The notion that Texas’ Top Ten Percent Law is race neutral calls to mind Professor Thomas Reed Powell’s famous statement: “If you think that you can think about a thing inextricably attached to something else without thinking of the thing which it is attached to, then you have a legal mind.” Only that kind of legal mind could conclude that an admissions plan specifically designed to produce racial diversity is not race conscious.)  As for holistic review, if universities cannot explicitly include race as a factor, many may “resort to camouflage” to “maintain their minority enrollment.”

A few weeks ago, I posted an entry about two dramatically different meanings of “diversity”:

  1. In the academic world, the concept of diversity encompasses acceptance and respect. It means understanding that each individual is unique, and recognizing our individual differences. These can be along the dimensions of race, ethnicity, gender, sexual orientation, socio-economic status, age, physical abilities, religious beliefs, political beliefs, or other ideologies.  It is the exploration of these differences in a safe, positive, and nurturing environment. It is about understanding each other and moving beyond simple tolerance to embracing and celebrating the rich dimensions of diversity contained within each individual.
  2. In the real world, however, people know that the term diversity was created to replace the politically-incorrect term affirmative action, which was created to replace the even more politically-incorrect terms of quotas and reverse discrimination.  In the real world, a person who refers to diversity is not talking about recognizing individuals as unique, but rather is talking about expanded  minority (and possibly gender) involvement.

In the post, I also criticized a local Hispanic leader, Lionel Sosa, who recently attempted to further obfuscate reverse discrimination by lobbying in favor of something he calls “inclusion.”  In a column in the Express-News, Sosa argued that Republicans must:

  • Add “inclusion” to our core principles. This means top-to-bottom inclusion utilizing all channels; party leaders, campaigns, candidates, think tanks, office holders, bloggers, strategists, talk show hosts, the media, the party faithful, political consultants, pollsters, faith community, etc.
  • Ban the word “outreach.” Outreach is tokenism. Inclusion means having talented Latinos present at every level.

Sosa’s “inclusion” seems very similar to quotas and racial balancing.  Coincidentally, an article on affirmative-action in the NY Times around that time included advocates using the term “inclusion,” while noting, “There is diversity fatigue. We could fall backwards very quickly.”   To its credit, the article described a widely-acknowledged side-effect of affirmative action:

  • A black associate at one Houston firm, who requested anonymity so as not to jeopardize his chances of making partner, used a familiar legal term to describe his unease at work, saying he sometimes felt there was a ‘rebuttable presumption’ that he was there to fill a quota and was not as qualified as white colleagues.

Obviously, this moral/political issue will be with us for many years to come.

February 21, 2012

Affirmative Action is back in the news – with Texas in the middle of it

Filed under: Issues,Law/justice,Politics — Mike Kueber @ 11:35 pm
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The U.S. Supreme Court announced today that, based on a pending affirmative-action case involving the University of Texas, it will reconsider its 2003 affirmative-action decision involving the University of Michigan. 

In the 2003 Michigan case, the court ruled 5-4 that a state university could consider race in its admissions decisions if doing so helped create a “critical mass” of minority students.  The decision, however, was authored by Justice Sandra Day O’Connor, who has retired and been replaced by ultra-conservative Justice Samuel Alito.  Furthermore, uber-liberal justice Elena Kagan has recused herself, apparently because of her previous involvement in the matter while she served as President Obama’s Solicitor General.  And finally, the Texas case has been substantively distinguished from the Michigan decision because in Texas, we already have a rule that grants admission to the top 10% of any Texas high school, and this rule by itself ensures that the University of Texas has the “critical mass” of minority students that the Michigan decision contemplated.

As I was reading about the Texas case, it struck me as odd that Texas is considered a blood-red conservative state, yet two of the most significant political/social issues in the news this past year have found the state of Texas opposing the national conservative consensus:

  1. Affirmative action.  While conservative red-state Texas pushes affirmative action as much as the law will allow, liberal blue-state California absolutely forbids any consideration of race.
  2. In-state tuition for illegal immigrants.  The decision of Texas to grant in-state tuition to illegal immigrants was one of the early chinks in Rick Perry’s armor. 

 Perhaps Texas has an undeserved reputation as a monolithic conservative bulwark.

January 20, 2011

Legal development in affirmative action at UT

On January 18, 2011, a three-judge panel of the federal Fifth Circuit held in Fisher v. Texas that UT’s race-conscious admissions program was consistent with the race-conscious program approved by the U.S. Supreme Court in 2003 in Grutter v. Bollinger.   

The Fisher decision from Fifth Circuit panel focused on a variety of arguments regarding the “critical mass” necessary to achieve diversity.  The panel relied heavily on the Justice O’Connor’s description in the Grutter decision of educational benefits derived from diversity:

  1. Increased perspectives.  Justice O’Connor observed that including diverse perspectives improves the quality of the educational process because “classroom discussion is livelier, more spirited, and simply more enlightening and interesting when the students have the greatest possible variety of backgrounds.
  2. Professionalism.  The majority pointed to “numerous studies” showing that “student body diversity . . . better prepares [students] as professionals.”  The Court has “repeatedly acknowledged the overriding importance of preparing students for work and citizenship.”
  3. Civic Engagement. The Court recognized that “[e]ffective participation by members of all racial and ethnic groups in the civic life of our Nation is essential if the dream of one Nation, indivisible, is to be realized.”

One of the arguments made by the plaintiffs, and rejected by the panel, was that UT’s Top Ten Percent Law had achieved a critical mass of Hispanics and African-Americans that rendered race-conscious admissions unnecessary.  Interestingly, the Top Ten Percent Law, which was admittedly enacted to increase minority enrollment, passes constitutional muster; whereas, race-conscious admissions would not be constitutionally permissible if its objective was to increase minority enrollment.  Rather, such an admissions program is permissible only if its objective is to achieve a state’s compelling interest in diversity.

In reviewing the Grutter decision, the Fifth Circuit panel quoted from Justice O’Connor – “We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.”  And the panel concluded the decision by warning:

  • “In this dynamic environment, our conclusions should not be take to mean that UT is immune from its obligation to recalibrate its dual system of admissions as needed, and we cannot bless the university’s race-conscious admissions program in perpetuity.”

Next step – the plaintiffs will probably appeal the panel decision to the entire Fifth Circuit  or go directly to the U.S. Supreme Court. 

Personally, the legal arguments in favor of diversity seem disingenuous.  I strongly suspect that diversity is a significant educational objective only because quotas and racial balancing cannot be.

August 4, 2010

Affirmative action at UT-Austin

Last week, I posted a blog entry about the death knell for affirmative action.  https://mkueber001.wordpress.com/2010/07/27/death-knell-for-affirmative-action/.  The entry was prompted by a prominent Democratic senator concluding that the practice did more harm than good.  This week, there are additional news reports about conservatives waging a frontal assault against this pernicious practice at the University of Texas at Austin. 

The news reports describe a federal lawsuit by Abigail Fisher and Rachel Michalewicz brought after they were denied admission to UT’s undergraduate school.  Fisher v. State of Texas.  Their lawsuit reveals that UT stopped giving preference to African-Americans and Hispanics in 1997 following the Hopwood decision in the 5th Circuit and then promptly resumed the preferential treatment in 2004 after Hopwood was repudiated by the U.S. Supreme Court in Grutter v. Bollinger.

UT’s post-Grutter affirmative-action program attempted to find “safe harbor” in that decision by designing the program that works much like the Michigan program approved in Grutter – i.e., there are no quotas or specific points given for minority status, but rather many general factors are considered along with race in a “holistic” review of the entire person.  An overview of the UT admissions equation is as follows:

  • Admission is based on a combination of an Academic Index or AI (grades and test scores) and Personal Achievement Index (PAI).  The PAI consists of two essays and a Personal Achievement Score (PAS), with the PAS counting more than the combined score for the essays.  The PAS consists of a holistic review of leadership, extracurricular, work, awards, service, and special circumstances.  Special circumstances consist of a holistic review of the family’s socio-economic status, school’s socio-economic status, family responsibilities, single-parent home, English as 2nd language, SAT compared to school’s average, and race. 

The plaintiffs in the Fisher lawsuit have at least two ingenious arguments to attack UT’s Grutter-based defense:

  1. Top-10% is working.  Prior to the Grutter decision, the UT administration was continually extolling the virtues and success of the state’s Top-10% law, which required UT to admit any students who finished in the Top-10% of their graduating class.  According to the administrators, minority representation at UT has actually increased post-Hopwood because of the 10% law and improved outreach.  Thus, race-neutral actions had succeeded, affirmative action was not needed. 
  2. Critical mass.  The main rationale in Grutter for allowing race-based discrimination is to enable colleges to enroll a “critical mass” of minorities.  The plaintiffs in Fisher argue that the current 20% student-population for minorities at UT has achieved the critical-mass objective.  Furthermore, UT has failed to define what percentages amount to a critical mass, which reveals that UT has no exit strategy from affirmative action, something that is required by Grutter.

On August 17, 2009, U.S. District Judge Sam Sparks ruled against the plaintiffs and in favor of UT.  He based his ruling on the fact that, if he accepted the plaintiffs’ argument that the race-neutral 10% rule solves the problem, then the Supreme Court in the Grutter decision would have required Michigan to a adopt a 10% rule.  I disagree with that argument because the Supreme Court in Grutter didn’t have the UT’s statistical information.  Furthermore, the effectiveness of the 10% rule is likely to vary from state to state, based on each state’s demographics. 

Sparks also concluded that the search for a critical mass did not prevent a university from giving preference to one minority (Hispanics) and not to another (Asians) even though there were more Hispanics than Asians attending the university.  This conclusion was based on the fact that Hispanics were “underrepresented,” while Asians were not.  I disagree because having an objective of a “critical mass” for educational purposes is completely different from having each race adequately represented based on their population in the state, which is actually what Texas is trying to do and which isn’t authorized by Grutter.       

The plaintiffs have appealed Judge Sparks’s decision and earlier this week, the appeal was argued to a three-judge panel of the 5th Circuit Court of Appeals in New Orleans.  An article in the SA Express-News reported that the questioning by the judges didn’t clearly favor either side and that a decision isn’t expected for several months.

Although my previous blog entry expressed hope that affirmative action was coming to an end, it can’t be soon enough.  Despite the apparent insignificance of race in UT’s admissions equation, the practical fact is that the race/ethnicity plays a huge role in determining admission to UT-Austin.  In the class entering UT in 2007:

                                    SAT    PGPA (top 10%)       PGPA (non-top-10%)

Anglos                          1275                3.25                             2.95

Hispanics                    1135                2.70                             2.47

African-Americans      1075                2.65                             2.42

What is equal about that?