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Should the Court Uphold UT’s Race-preferential Admission Policy?

Nous

Well-Known Member
Premium Member
Fisher v. University of Texas is again before the Supreme Court, having just endured oral arguments on this challenge to the university’s race-preferential admissions policy. Such policies are commonly known as “affirmative action”.

The Court reviewed this challenge in 2012, and kicked the case back to the Fifth Circuit because the majority on the Court found that the Fifth Circuit did not apply strict scrutiny in arriving at its decision to uphold the policy. The Fifth Circuit then reconsidered the challenge under the strict scrutiny standard of review--which requires that the racial classification achieves a compelling governmental interest, and that the law or policy is narrowly tailored--and held again that the policy is constitutional, does not violate the Equal Protection Clause of the Fourteenth Amendment. So the Supreme Court granted certiorari on Fisher’s appeal of that decision.

Beginning with Regents of U. Cal. v. Bakke (1978), the Court has upheld “affirmative action” admission policies, so that universities may offer and students may partake of “the educational benefits that flow from a diverse student body,” as long as race is but one consideration and the policy does not impose a system of specific quotas or “racial balancing” (where the racial make-up of the student body is made to coincide with the racial percentages of the population or of applicants). The UT Law School had a race-preferential admissions policy that was struck down by the Fifth Circuit in 1996. The next year, the state legislature enacted its race-neutral Top 10% Plan, wherein all Texas high school students graduating with a GPA in the top 10% of their class were guaranteed admission to a public state college or university (but not necessarily to the program of their choice).

Admissions of African American and Hispanic students rapidly and significantly increased under the Top 10% Plan. But with the Court’s upholding of the race-preferential policy at University of Michigan Law School in 2003 (Grutter v. Bollinger), UT implemented its own race-preferential admission policy to work in conjunction with the Top 10% Plan. In Fisher I, Justice Kennedy informs us that UT developed:

. . . a new holistic metric of a candidate’s potential contribution to the University, to be used in conjunction with the Academic Index [AI]. This “Personal Achievement Index” (PAI) measures a student’s leadership and work experience, awards, extracurricular activities, community service, and other special circumstances that give insight into a student’s background. These included growing up in a single-parent home, speaking a language other than English at home, significant family responsibilities assumed by the applicant, and the general socioeconomic condition of the student’s family.

[. . .]

. . . the University included a student’s race as a component of the PAI score, beginning with applicants in the fall of 2004. The University asks students to classify themselves from among five predefined racial categories on the application. Race is not assigned an explicit numerical value, but it is undisputed that race is a meaningful factor.

Once applications have been scored, they are plotted on a grid with the Academic Index on the x-axis and the Personal Achievement Index on the y-axis. On that grid students are assigned to so-called cells based on their individual scores. All students in the cells falling above a certain line are admitted. All students below the line are not. Each college -- such as Liberal Arts or Engineering -- admits students separately. So a student is considered initially for her first-choice college, then for her second choice, and finally for general admission as an undeclared major.
http://www.supremecourt.gov/opinions/12pdf/11-345_l5gm.pdf

Several universities have implemented admission policies that use such proxy measures for race.

By a large margin, most African American and Hispanic students are admitted through the race-neutral Top 10% law, and the largest gains in admissions for African American and Hispanic applicants occurred through the race-neutral law, not through the affirmative action program. From the Brief for Fisher in Fisher I:

During the ten years from 1998 to 2008, the percentage of African American and Hispanic students who enrolled in the incoming freshman class at UT increased from 16.2% to 25.5%, with most of the increase attributable to the Top 10% Law. SJA 156a. Indeed, over the same ten-year period, the percentage of African American and Hispanic students enrolling through the Top 10% Law increased from about 44% to almost 86%. SJA 156a-157a. The trend has continued. [. . .] UT’s President recently announced that “[f]ifty-two percent of our [2010] freshman are minority students, including 23 percent who are Hispanic, reflecting the changing demographics of the state.”
http://www.americanbar.org/content/...rt_preview/briefs/11-345_pet.authcheckdam.pdf

But a large portion of the African American and Hispanic students admitted under the Top 10% Plan are from schools in which the majority of students are African American and/or Hispanic. UT argues that the university needs the race-preferential policy, described above, in order to bring in those exception Black and Hispanic students from more integrated high schools who did not graduate in the top 10% of their classes. Fisher notes that the Black and Hispanic students admitted under the race-preferential policy are more affluent and less likely to be the first in their families to attend college. It should also be noted that the race-preferential policy only applies to “underrepresented” minorities, not to Asians. Apparently some Asian applicants are denied admission to UT in favor of African American or Hispanic students who have a lower GPA.

So should the Court uphold this admission policy?

(For those who seek more information on this case, you will enjoy the briefs: http://www.americanbar.org/publications/preview_home/2015_2016_briefs/14-981.html)

One final issue: In Grutter, Justice O’Connor’s majority opinion spends several paragraphs on the fact that government-approved racial discrimination is contrary to the “core purpose “ of the Equal Protection Clause, and therefore such schemes for remedial purposes “must have a logical end point.” The nature of the principle that temporarily upholds an offense against the Constitution has always been problematic and difficult for the Court to articulate, as the principles that make a law or government policy constitutional should be the same today as tomorrow. This axiom of continuity underpins the doctrine of stare decisis. So, at what point should affirmative action admission policies be held “no longer constitutional”? How should that “logical end point” be determined?
 

dust1n

Zindīq
So, at what point should affirmative action admission policies be held “no longer constitutional”?

Presumably to the point when equality is established where it would otherwise not.

How should that “logical end point” be determined?

Empirically.


But, in my mind, it seems pretty dumb that anyone who would otherwise qualify to go into school had one additional smarter student not applied to that particular school, couldn't get in. I'm not sure why college admissions are posited as if they were competitions among students in which the outcome is definitive rankings based on anything in particular.
 

George-ananda

Advaita Vedanta, Theosophy, Spiritualism
Premium Member
So should the Court uphold this admission policy?
No. I believe in a ethnicity-blind selection process. Admitting a less qualified student because of ethnicity makes that student more susceptible to academic failure as a consequence. Plus, I believe there are some natural ethnic disproportions in traits that will show up in certain fields of endeavor as unpopular as that statement may be to some. The world just 'is what it is' and it's not always how we want it to be. I think this is unfair to the more qualified Asian students. I believe in fairness and equality to all but not that society should engineer outcomes.
 

Revoltingest

Pragmatic Libertarian
Premium Member
Death to affirmative discrimination!

I once gained some insight into the mind of affirmative action advocates.
I was buying granola at our local food coop (founded & run by hippies & lefties).
The cashier asked if I get a student discount.
I said no, & that under Ann Arbor's Human Rights Ordinance, discrimination on the basis of educational affiliation is illegal.
She said that discrimination is OK, so long as they discriminate for someone, & not against someone.
I don't recall her reply when I pointed out that she's discriminating against non-students by charging them higher prices.
 
Last edited:

Nous

Well-Known Member
Premium Member
Presumably to the point when equality is established where it would otherwise not.
How does one determine when “equality is established”?

Frankly, I wish there were a law that would require that my income be equal to that of my favorite client, who owns a Gulfstream jet.

Empirically.
What do you mean by that? What would be the “empirical” determination of when the “logical end point” for affirmative action laws has arrived?

But, in my mind, it seems pretty dumb that anyone who would otherwise qualify to go into school had one additional smarter student not applied to that particular school, couldn't get in. I'm not sure why college admissions are posited as if they were competitions among students in which the outcome is definitive rankings based on anything in particular.
Admissions to highly ranked universities are fierce competitions. Most any university that most anyone wants to get into has to turn down applicants. In Hopwood, the circuit court noted that in 1995 there were 4,000 applicants for 500 openings in the freshman class at UT Law School. The discrepancy between the number of applicants and available seats is undoubtedly greater at other schools.
 

Nous

Well-Known Member
Premium Member
No. I believe in a ethnicity-blind selection process. Admitting a less qualified student because of ethnicity makes that student more susceptible to academic failure as a consequence.
Actually there is some evidence that those admitted to schools on the basis of affirmative action policies have higher drop-out rates than those with similar grades admitted to other schools.

Plus, I believe there are some natural ethnic disproportions in traits that will show up in certain fields of endeavor as unpopular as that statement may be to some.
I think it is a fact that those few schools that include Asians in their affirmative action admission policies go to great lengths to avoid placing more male Asians in computer science programs--because male Asians are "overrepresented" in such programs.
 

Nous

Well-Known Member
Premium Member
Death to affirmative discrimination!

I once gained some insight into the mind of affirmative action advocates.
I was buying granola at our local food coop (founded & run by hippies & lefties).
The cashier asked if I get a student discount.
I said no, & that under Ann Arbor's Human Rights Ordinance, discrimination on the basis of educational affiliation is illegal.
She said that discrimination is OK, so long as they discriminate for someone, & not against someone.
LOL! She certainly gave the perfect answer to illustrate philosophy of affirmative action discrimination.

Actually, I thought you were probably joking about Ann Arbor's ordinance, so I looked it up. There is exactly such an ordinance, and "educational affiliation" is defined in just that way. Honestly, I don't think I've ever seen another public accommodation anti-discrimination law that includes "educational affiliation" as one of the prohibited bases. You should have filed a complaint. This co-op clearly violated that ordinance. Stamp out "educational affiliation" discrimination!
 

dust1n

Zindīq
How does one determine when “equality is established”?

Generally, when racial disparities in college admittance are relatively small enough to discount as statistical noise.

Frankly, I wish there were a law that would require that my income be equal to that of my favorite client, who owns a Gulfstream jet.

I'm not sure how those two things would be related at all. Are you and your client doing the same work at the same firm or something? Or do you not work for a company that does for your client?

What do you mean by that? What would be the “empirical” determination of when the “logical end point” for affirmative action laws has arrived?

Same answer as above. Which is can demonstrated that the school admittance no longer reflects the disparities that affirmative action was designed to redress in the first place.

Admissions to highly ranked universities are fierce competitions. Most any university that most anyone wants to get into has to turn down applicants. In Hopwood, the circuit court noted that in 1995 there were 4,000 applicants for 500 openings in the freshman class at UT Law School. The discrepancy between the number of applicants and available seats is undoubtedly greater at other schools.

I know, which is dumb. Of those 4,000 applicants, did only 500 meet the standards necessary to attend school, or did they meet the standards of being best 500 of a population, because there is only space for 500 students. The limitation is more artificial than anything. It makes no sense to not accept more tuition if it is available.
 

George-ananda

Advaita Vedanta, Theosophy, Spiritualism
Premium Member
I think it is a fact that those few schools that include Asians in their affirmative action admission policies go to great lengths to avoid placing more male Asians in computer science programs--because male Asians are "overrepresented" in such programs.
Everything and statistics I've seen have shown Asian's have higher intelligence in certain areas and they seem to outperform other groups in certain areas. And other ethnic groups outperform other ethnic groups in other endeavors. I, controversially I'm sure, do not think it is for environmental reasons only. It my opinion it just 'is what it is'. Our academic administrators are trying to social engineer things based on their conception of reality. I don't like it.
 

Revoltingest

Pragmatic Libertarian
Premium Member
LOL! She certainly gave the perfect answer to illustrate philosophy of affirmative action discrimination.

Actually, I thought you were probably joking about Ann Arbor's ordinance, so I looked it up. There is exactly such an ordinance, and "educational affiliation" is defined in just that way. Honestly, I don't think I've ever seen another public accommodation anti-discrimination law that includes "educational affiliation" as one of the prohibited bases. You should have filed a complaint. This co-op clearly violated that ordinance. Stamp out "educational affiliation" discrimination!
I've actually called the City about violations.
They couldn't have cared in the least.
The City ignores the law in some cases......
- Senior discounts
- Student discounts
They're powerful voting blocks.
All laws are what gov wants to enforce, not necessarily what is on the books.

We had also had a law which provided benefits to unmarried significant others,
but only if they're homosexuals. They openly discriminated against hetero couples.
 

dust1n

Zindīq
Just a question, if the Supreme Court rules against affirmative action, does that mean RF's effort to bring more conservatives into staff will be illegal, or just okay because RF isn't a public institution?
 

Revoltingest

Pragmatic Libertarian
Premium Member
Just a question, if the Supreme Court rules against affirmative action, does that mean RF's effort to bring more conservatives into staff will be illegal, or just okay because RF isn't a public institution?
RF would be legal.
- The conservative-liberal political spectrum is not a protected group under the law.
- Non-public institutions are more restricted under the law than public ones.
Ask any broker you know about how fair housing laws must have absolutely no
bias regarding protected groups (& even non-protected ones).
 

dust1n

Zindīq
RF would be legal.
- The conservative-liberal political spectrum is not a protected group under the law.
- Non-public institutions are more restricted under the law than public ones.
Ask any broker you know about how fair housing laws must have absolutely no
bias regarding protected groups (& even non-protected ones).

That brings up a couple more questions in my mind.

Would such a policy disqualify RF from public grants or support?

Since political beliefs don't seem to apply to being a protected group, are institutions allowed to discriminate upon political belief?
 

Revoltingest

Pragmatic Libertarian
Premium Member
So, it would indeed be legal, for say a web forum, or a public school, to bar anyone from the Green Party from admission?
Public schools are another matter because there's an legal obligation to educate.
But discrimination in employment would be legal.
Depending upon how overt & objectionable the act taken, it might very well result in new case or legislative law.
 

Nous

Well-Known Member
Premium Member
Generally, when racial disparities in college admittance are relatively small enough to discount as statistical noise.
What’s a “racial disparity”? By what yardstick does one measure when a racial disparity in college admissions exists?

As mentioned in the OP, the Court has explicitly said that racial quotas and/or “racial balancing” are unconstitutional. The reason is because such methods of racial discrimination do not meet the strict scrutiny standard of narrow tailoring.

I know, which is dumb. Of those 4,000 applicants, did only 500 meet the standards necessary to attend school, or did they meet the standards of being best 500 of a population, because there is only space for 500 students. The limitation is more artificial than anything. It makes no sense to not accept more tuition if it is available.
Every university is limited in the number of students it can accommodate next year.

I guess if every university was able to accept every applicant, everyone would go to Harvard or Yale or Columbia or Stanford.
 

Nous

Well-Known Member
Premium Member
But discrimination in employment would be legal.
Depending upon how overt & objectionable the act taken, it might very well result in new case or legislative law.
I suspect there's no sort of discrimination more common than partisan discrimination. And as you note, it's perfectly legal (as long as it doesn't look like some forbidden type of discrimination).
 

Nous

Well-Known Member
Premium Member
Everything and statistics I've seen have shown Asian's have higher intelligence in certain areas and they seem to outperform other groups in certain areas. And other ethnic groups outperform other ethnic groups in other endeavors. I, controversially I'm sure, do not think it is for environmental reasons only. It my opinion it just 'is what it is'. Our academic administrators are trying to social engineer things based on their conception of reality. I don't like it.
I’m not sure that university boards who create these race-preferential policies do so (primarily) for social engineering purposes. For one thing, surely they are aware that even though the university is admitting a higher percentage of “underrepresented” racial minorities, they are generally not graduating that percentage. I recall one of the briefs in Fisher I providing the calculation that showed the total of African American and Hispanic students admitted under its race-preferential policy in one year was about 55, compared to literally thousands admitted under its Top 10% Plan. But UT apparently believes that the African American or Hispanic student who goes on to become a name in his/her field is more likely to be a student from a more affluent, more educated family, who went to a “whiter” school. The affirmative action policies seem to be rooted in the worst kind of racism.
 
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