Fisher v. UT, the Court punts

A disappointing decision all around. The full text is here:

7-1 decision to remand to the 5th circuit for more exacting scrutiny on whether there were more race-neutral alternatives available.

This just makes the parties use more paper and pay more attorney’s fees.

Look, we all know that these schools use race as a plus factor. Just tell us if it is good or bad.

I think this is the best possible decision. If they’d struck down affirmative action in admissions, they’d have had to do it 5-4. This decision is essentially a nearly unanimous decision to further restrict the use of race in admissions.

This case isn’t much different from the Michigan case. Overturning precedent by 5-4 wouldn’t have looked good. Almost everyone agrees that the use of race as a consideration for anything is bad(polls show a 50 point margin against using race), but legislative solutions like in California are a better way of dealing with it.

I disagree. I think when (if) it comes back from the 5th circuit, the liberal 4 will find that the UT program is narrowly tailored and survives strict scrutiny and the conservative 4 will find it doesn’t. The wildcard (as usual) is Kennedy. The decision didn’t do much except restate the vague, unknowing nightmare that is Grutter.

I agree with a portion of Ginsberg’s dissent, however. The Top 10 Percent program is affirmative action in disguise. If the Court applied it’s prior precedents, it would see that the program, although facially neutral, has a discriminatory purpose and effect. I would strike down the Top 10 Percent plan as well.

I cannot understand how people continually laud “diversity” as a great goal. To me it translates into “We need more blacks/Hispanics/Native Americans” etc. (and by implication, less whites). Although it is subjectively better than saying, “We need more white people” (and by implication less blacks, etc.) the constitution doesn’t make value judgments on racial preferences by public entities. It abhors them all equally.

Let’s not even call it diversity, let’s just call it racial preferences. Diversity would imply seeking out different viewpoints and backgrounds, rather than just superficial diversity.

One may recall, of course, that the Constitution was not always so color-blind. In fact, it made quite a few rather strong preferential statements regarding race.

Whether the effects of those first 76 years (and another >100 later in which the Constitution was blinder than the law) are still being felt is a rather important point.

You’re assuming racial diversity does not correlate to viewpoint and background diversity. It does. And like the other factors UT looks for (such as being raised in a single-parent household), it is the kind of difference in background that needs to be actively sought out because of the disparate impact that things like the cost of tuition and having no members in the family who went to college have on admissions–factors that don’t bear on the number of, say, Conservative applicants.

Moreover, going to college with people of different ethnic backgrounds has all kinds of personal and social benefits above and beyond the benefits that accrue from the other forms of diversity that racial diversity encourages. Does that really need to be spelled out?

First, it wouldn’t have been 5-4 - Kagan recused herself from the case.

I’m not sure why you think the remand to the Fifth Circuit is a further restriction of race in admissions. SCOTUS essentially said that the Fifth Circuit didn’t apply the narrowly tailored test established in Bakke and re-stated in Grutter. Affirmative action is still intact. Now of course, the burden is on the university to prove that the use of race was in fact narrowly tailored (I think it is - really, race is not even explicitly stated, but it can factor in to one of 14 factors in the personal index. It’s an infinitesimally tiny aspect, potentially, of the personal index.

UT will have to prove that all other race-neutral means did not provide diversity. What the plaintiffs will argue is that the Top 10% Plan provides diversity. There’s only a slight problem with that: while Hispanic enrollments are up since 1997 (when the use of race was banned), Black enrollments are barely up to where they were before Hopwood. I’d argue that Hispanic enrollments are up because of demographics and South Texas.

Understand the mission of UT Austin. It is the state’s flagship institution (sorry, Ags). It has a responsibility to create leaders in commerce, public affairs, education… every educated function of society. There would be a real problem if this group doesn’t reflect the diversity of the state. It’s not like there’s an excess of White superintendents, bilingual teachers, and public defenders in inner-city Dallas or the Rio Grande Valley.

Like all elite institutions, a numerical cut score for admissions is crude and frankly insulting to administrators and faculty who know what is needed to create a university of the first class. Harvard doesn’t populate its freshman class with valedictorians and perfect SAT scorers, even though they could. It takes all kinds - and the “kinds” also include racial diversity - to create a learning environment where one learns as much from one’s peers than from the textbook.

This does actually further restrict the use of race in admissions, to the point where it may have even unofficially outlawed it. At least that’s the interpretation of Ilya Somin:

To determine the likely impact of today’s decision, it’s worth asking the following question: How difficult will it now be for a university to prove that it is permissible for it to adopt a program of racial preferences in admissions? I say it’s going to be pretty darned hard. Without any judicial deference to their educational expertise, schools will be hard-pressed to show that their programs are “narrowly tailored” or that there are no “racially neutral” alternatives that could have achieved the same goal. Many legal battles turn on the issue of who has the burden of proof and how high that burden is going to be. Fisher emphasizes that the burden is both high and clearly imposed on the university. By contrast, after Grutter, the conventional wisdom was that affirmative plans were largely safe from legal challenge so long as they did not include clear racial quotas or precise numerical bonus points for minority applicants.

The reason they claim it’s for “diversity” now is because it’s illegal to do it to make up for past discrimination now. Back when actual people could point to actual discrimination keeping them personally from getting promotions or admissions, affirmative action was a useful way to make up for that. But that generation is now retired and the succeeding generations have the courts and the federal government acting as advocates on their behalf if there is discrimination. So affirmative action is now only legal to “promote diversity”, whatever that means. I had been taught that we’re really all the same, seems kinda counterproductive to promote our differences. Especially the superficial differences. And no, race no longer correlates to background or viewpoint.

Huh. I recall you taking a distinctly different view of that topic approximately 9 months ago.

The Top 10% plan is absurd; it essentially makes the top 10% of every school in the state equal in terms of admissions to Texas and Texas A&M.

Everyone knows that this isn’t true, and everyone knows that there are wild differences between schools.

Hell, I’ve even seen TV stories and newspaper articles that comment that every student in the top 25% at some schools is more academically qualified than the top graduate at other schools.

In practice though, what this does isn’t to make UT or A&M more diverse; based on the university’s own statistics, A&M’s racial makeup has shifted around a couple of percentage points here and there, but the school’s still 70% white, 20% hispanic, 3% black, and 7% everything else, which is effectively the same as it was when I was in school (graduated about 3 years prior to the Top 10% rule).

All it means is that rather than a more competitive and merit-based admissions process for those students (like there used to be), now the top 10% from any high school in the state are automatically admitted, regardless of how they stack up relative to the other students in the state, and very possibly lowering the aggregate quality of undergraduate students.

I feel that diversity is a worthy goal for universities and businesses although I am viewing this from a cultural lens rather than race. One of the things that attracted me to the university I attended ( Stanford ) was the myriad of cultures that were present. Unlike the University of Texas, it was a smaller private university so it had more flexibility to accept students based on interviews and essays and did not have to assign much weight to test scores and grades. Now that I am working for an international O&G company it is similar to a university but on a much larger scale. When I travel to our US offices, I see Kazakhs, Nigerians, Venezuelans and many others, and all of them bring a fresh viewpoint. I believe that the University of Texas was supported by significant numbers of Fortune 500 companies, the US military, and - probably not surprisingly - many other universities.

We’ve had 150 years of “we need more whites”. You can’t correct that overnight. To the extent that “diversity” is a goal in itself, it’s fairly well established (SCOTUS accepted it as fact in Grutter) that racial and socioeconomic diversity produces better educational outcomes at the college-plus level.

If you take racial groups as a whole, you might find many distinctions. However, we can’t judge individuals that way. In practice,a school can have “diversity” by just admitting upper middle class African-Americans and Hispanics and Asians, and in my experience, many schools do just that. So again, it’s superficial diversity. An all-white school with students ranging from Beverly Hills to Hells’ Kitchen to Lithuania would yield far more real diversity than a school of uniformly upper middle class kids with different skin colors.

To avoid that result, the school would have to also weigh socioeconomic status, first language, single parents, etc. Which, of course, is precisely what UT does.

And those factors make the need to weigh race unnecessary.

That’s the crux of the decision. Schools will have to pass strict scrutiny and will no longer receive any deference when they claim that they have no alternative but to weigh race.

Also, what is an acceptable level of diversity? It would be hard for a school to have 15% minorities in a state where minorities are 20% and then claim they don’t have enough diversity. At that point, they aren’t wringing hands over diversity, but over representation, which means quotas.

Given declining male enrollment in colleges, are schools starting to give extra weight to male candidates?

First you say racial diversity does not lead to other forms of diversity. Now you’re saying racial diversity is not necessary to achieve other forms of diversity. These are different arguments, but they’re both wrong.

The flaw in the new argument is that racial diversity is inherently beneficial, even if skin color correlated to nothing in one’s background other than one’s self-identified race; and in fact it does still correlate to other experiences in America that aren’t captured by the other categories of diversity.

I have no idea. Is that unconstitutional in your view? Is it unconstitutional to seek more Christian applicants? How about Tea Party applicants, is it unconstitutional to consider their political views in the admission process?’

Once you decide that a hand-up in admission to state-run colleges is the constitutional equivalent to invidious discrimination, that takes you to a pretty weird place in terms of efforts to achieve diversity of any kind. If the government cannot discriminate on the basis of First Amendment beliefs, can it directly seek to achieve intellectual diversity in admissions?

That is an unprovable assertion. Unprovable assertions don’t survive strict scrutiny, although SCOTUS still accepts the assertion.

I’m just trying to get at what kind of diversity is beneficial. For example, if males are underrepresented, is that harmful to the school?

We’ve already established that colleges don’t want intellectual diversity, which is probably why they’ve decided that racial diversity is beneficial on faith.

When did “we” “establish” that, exactly?

In what sense is it “unprovable”? As I pointed out already, SCOTUS has accepted it as sufficiently proven to support a compelling interest.