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Fisher v. University of Texas Wrap-Up – Whew!

UT President Bill Powers speaks with media after U.S. Supreme Court hearing.Photo: Paul Fetters.

It’s been a busy last couple of weeks for us here at the Center for Equal Opportunity, with the oral argument before the Supreme Court in Fisher v. University of Texas and all the media coverage before and after.  In our email this week, I’ll be focusing on some of what we’ve written — most of what you’ll read below is “truth squad” work that first appeared on National Review Online — and said about the case, which involves a challenge to that school’s use of racial and ethnic preferences in undergraduate admissions.

A Vehement Agreement with Chief Justice Roberts -- At the oral argument in Fisher, Chief Justice Roberts asked the school’s lawyer — who was defending the use of racial preferences in order to achieve the educational benefits (for white and Asian American students) that supposedly result from a diverse student body (that also includes black and Latino students) — this line of questions:  “[W]hat unique perspective does a minority student bring to a physics class? . . . [W]hat are the benefits of diversity in that situation?”

That is, Chief Justice Roberts, a skeptic when it comes to weighing race in university admissions, was implying that a prospective student’s skin color, and the background and perspectives that a student might be presumed to have because of that skin color, should not matter because it is irrelevant — that the only things that should matter are nonracial criteria that tell us whether the student is eager and able to learn about physics.

So soon thereafter the New York Times published an op-ed by a black physicist who is really upset with Chief Justice Roberts. And the reason she is really upset is that she thinks that it is wrong to ask students about race, wrong to ask them what unique perspective their race might give them, wrong to ask them about anything except whether they are eager and able to learn about physics, and wrong to view black students as having the function of enriching the learning experience of white students.

This is almost funny, this failure to see that Chief Justice Roberts and the black physicist are really saying the same things.  Except that the reason for this blindness is that the Times and other liberals, and of course the op-ed’s author, really equate the opposition of racial preferences to opposition to the admission of black students. 

Oh, and by the way, the op-ed’s author is also the proud graduate of Norfolk State University — a historically black school to which she was, therefore, not admitted because of a racial preference, and where she was therefore more likely to succeed in her goal of graduating with a degree in a STEM field. Just ask Justice Scalia, whose question about academic “mismatch” caused such a furor, as discussed below.

Trump/Scalia Question for the Other Candidates --  Also soon after the oral argument, Donald Trump joined the liberal chorus in criticizing Justice Scalia’s line of questioning in Fisher. Justice Scalia was raising, albeit a bit inartfully, the problem of “mismatch” when such preferences are used: Students who are admitted with substantially lower academic qualifications than the rest of the student body’s are likely to struggle and flunk out, drop out, switch majors (especially from a STEM discipline to a non-STEM one), or get lower grades.  So we might expect a question like this for one of the other candidates, followed by my suggested answer:

Q: Do you agree with Donald Trump that Justice Scalia was wrong in suggesting that black students should go to lesser schools because they aren’t smart enough to keep up with white students, or are you in favor of affirmative action?

A: Wow, what a question — I feel like I’m back on CNBC.  Look, I think the point that Justice Scalia was making is that any student, of whatever color, who is admitted to a school with significantly lower academic qualifications than the other students’ is likely to have a tough time. There’s a lot of data supporting the existence of this problem at schools that use racial preferences in admissions. So it’s a mistake to have racial double standards, and I’m confident in the ability of African-American students to meet the same standards that other students are held to. 

By the way, this is just one of many problems that result when schools discriminate on the basis of skin color or what country someone’s ancestors come from in deciding who gets in and who doesn’t. It’s fundamentally unfair — and it’s not just white kids that are being discriminated against, by the way, but Asian-American kids more and more, too. Plus it creates resentment, and it reinforces racial stereotypes, and schools have to decide how many of these boxes they should have and which student goes into which box — the list goes on and on.  

I’m against this sort of “affirmative action,” and I think most Americans agree with me.

“Why ‘Mismatch’ Is Relevant in Fisher v. Texas” -- That’s the title of this commentary by Richard Sander, the leading researcher in the area of racial preferences and academic “mismatch.”  It’s a terrific piece, because it usefully summarizes the three kinds of mismatch effects, and provides updates on the increasing academic support for the existence of this problem. 

The third kind of mismatch effect if of particular relevance in light of the recent campus protests:

The third type of mismatch—“social mismatch”—is in some ways the most intriguing.

Several studieshave now found that college students are much more likely to form friendships with students who have similar levels of academic preparation or performance at college. The phenomenon operates even within racial groups, but when a college’s preferences are highly correlated with race (as they are at many elite schools), social mismatch can lead to self-segregation by blacks and/or Hispanics. 

The result is decreasing social interaction across racial lines. That’s particularly relevant to the Supreme Court’s deliberations because its tolerance of racial preferences has been based on the idea that a diverse racial campus promotes interracial contact and learning. But if preferences promote substantial social mismatch, then race-conscious admissions actually decrease interracial contact and learning — not only at the school where the preferences are used, but also at the college that the preferenced minority student would have attended in the absence of preferences.

Professor Sander concludes:

All of this should give the Supreme Court pause in assessing racial preferences. Past Court decisions have invoked a traditional deference to the independence of educational institutions. But colleges and universities have demonstrated that they are politically incapable of acting as good fiduciaries for their most vulnerable students.

Social-Science Claptrap -- The New York Times had on op-ed on the day of the oral argument in Fisher by a couple of social scientists purporting to provide evidence that “Diversity Makes You Brighter.”  The “evidence” is a series of experiments where some people had to make calculations in racially homogenous settings and others made calculations in racially diverse settings. And it turns out that the latter’s “answers were 58 percent more accurate.”

Three observations, assuming for the sake of argument that the study’s methodology is sound, that its results can be extrapolated in the way the authors would like, etc.: (1) There’s no reason to think that the same results might not obtain if the “diversity” was of a sort other than racial.  (2) This experiment provides no help to the University of Texas in this case, since their argument is that they need more high-income blacks rather than blacks per se. (3) Would any Supreme Court decision that rests on such social-science claptrap deserve to be called “law”?

Yet Another Bad Argument for Racial Preferences -- The latest arguments I’m hearing in favor of continued racial preferences in university admissions are variations on this theme:  The campus protests show how far country has to go to achieve racial equality, and to ensure that these campus conversations continue, we must continue to ensure plenty of African American students on campus.

Responses: (1) Just because protestors say there is systematic denial of racial equality doesn’t mean that is true. (2) So these conversations are of dubious value, but in any event they need not stop just because racial preferences end, since the black  students involved can all still go to college; it’s just that instead they’ll be going to a college where their academic qualifications are on par with the other students’.  (3) Of course, if they are going to schools where they are as well qualified as the other students, they are less likely to feel marginalized and discriminated against than when they go to schools where they are struggling — and are seen by others to be struggling — because they are “mismatched.”  But (4) the last thing the Left wants is for these conversations to end, because they love racial-identity politics and continuing claims of systemic discrimination, which have a symbiotic relationship with racial preferences.

The Supreme Court could do everyone a big favor if it helped to end the racial essentialism that its blessing of racial preferences has, alas, both presumed and encouraged.

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As for my speaking on Fisher recently, that includes my appearance in an “Intelligence Squared” debate, a Federalist Society debate, the Melissa Harris-Perry show, and a panel discussion at the Century Foundation.  And, of course, there were my usual conversations with reporters about the case, like this one.

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But bear all this in mind, too:  This case challenging racial preferences in student admissions relies on a legal theory that the Center for Equal Opportunity developed, and before the case's first trip to the Supreme Court we joined and helped write an amicus brief with the court of appeals, were the first to flag for conservative media the opposing Obama administration brief there, and participated in a moot court for Abigail Fisher's counsel. We joined Supreme Court amicus briefs (at the cert stage and on the merits, highlighting CEO's studies), helped coordinate other amicus briefs, advised Ms. Fisher's counsel, and did extensive speaking, writing, and media "truth squad" work. After the Court's positive ruling, we filed dozens of FOIA requests to determine if universities were meeting the criteria set out in Justice Kennedy's opinion. Last summer, when a lower court panel issued an opinion inconsistent with Justice Kennedy's opinion, we helped write and joined an amicus brief urging the full appellate court to rehear the case. This summer, the Supreme Court granted review again.

It's welcome news that the Court recognizes the continued importance of the issue of racial preferences in university admissions, and the decision to grant review is an implicit recognition that the court of appeals' decision allowing this discrimination is unpersuasive. Once again, CEO had joined and helped write an amicus brief successfully urging the Court to take the case — stressing the nonresponsiveness of universities to Fisher I that our FOIA requests had uncovered, as well as our studies documenting the continued (often increasingly) mechanical and heavy weight given race in university admission — and this fall we joined and help write another brief (discussed in a Chronicle of Higher Education article) now that the review has been granted. We are working with Ms. Fisher's lawyers, participated in a moot court, and — as discussed above— are speaking and writing about the case in the court of public opinion, and doing media "truth squad" work.