The Supreme Court will ban it.
Here are the latest two articles.
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http://www.slate.com/articles/news_and_politics/politics/2015/06/fisher_v_university_of_texas_the_supreme_court_might_just_gut_affirmative.html/
THE SUPREME COURT MIGHT DESTROY AFFIRMATIVE ACTION BECAUSE A WHITE WOMAN’S GRADES WEREN’T GOOD ENOUGH
POLITICS
WHO'S WINNING, WHO'S LOSING, AND WHY.
JUNE 29 2015 8:44 PM
Easy AA
The Supreme Court might destroy affirmative action because this white woman’s grades weren’t good enough.
By Jamelle Bouie
Abigail Fisher (R), a white suburban Houston student.
Abigail Fisher, a white suburban Houston student who asserted she was wrongly rejected by the University of Texas–Austin, and Edward Blum, director of the Project on Fair Representation, speak at a news conference in Washington on June 24, 2013.
Photo by Jonathan Ernst/Reuters
In 2008, Abigail Fisher, who is white, sued the University of Texas at Austin for race discrimination. The school rejected her, and she blamed its affirmative action program, which considers race and ethnicity in a “holistic review” of certain candidates. “There were people in my class with lower grades who weren’t in all the activities I was in, who were being accepted into UT, and the only other difference between us was the color of our skin,” she explained.
Jamelle Bouie
JAMELLE BOUIE
Jamelle Bouie is a Slate staff writer covering politics, policy, and race.
Her rhetoric aside, however, Fisher and her lawyers couldn’t prove discrimination in court. In 2009, a federal district court upheld the university’s policy and rejected her lawsuit. She appealed the decision to the 5th U.S. Circuit Court of Appeals, which upheld the prior ruling. In a last grasp for success, her lawyers appealed their case to the Supreme Court, which—in a 7–1 decision—vacated the previous ruling and sent it back to the 5th Circuit for a second hearing. Writing for the majority, Justice Anthony Kennedy explained that the university hadn’t proved “its admissions program [was] narrowly tailored to obtain the educational benefits of diversity.” Everyone had to try again.
That was 2013. The 5th Circuit returned to the question, and last year it came to the same place: UT’s policy was constitutionally kosher. “It is equally settled that universities may use race as part of a holistic admissions program where it cannot otherwise achieve diversity,” wrote the 2–1 majority. Undeterred, Fisher appealed to the Supreme Court again. And on Monday, the Supreme Court took her case, again.
What’s striking about this case—and what makes it frustrating to some observers—is the curious question of Fisher’s academic record. Put simply, as Nikole Hannah-Jones documented for ProPublica, affirmative action wasn’t her problem.
If you want entrance to UT Austin and you live in Texas, you have three options: You can score in the top 10 percent of your high school class, which grants you automatic entry; you can try for the non–top 10 slots; or, if your grades are weak, you can attend a satellite campus and transfer, provided good grades and a strong course load.
When Fisher applied in 2008, notes Hannah-Jones, the UT Austin filled 92 percent of its in-state spots with students from the top 10 program. She wasn’t among them. With a 3.59 grade-point average and a modest SAT score of 1180 out of 1600, she was a solid student but not a great one, not for a school with an overall acceptance rate of 40 percent and an extremely low acceptance rate (comparable to Harvard’s) for in-state students admitted outside of top 10.
For the remaining 8 percent of in-state spots, UT Austin used a comprehensive approach that weighed grades and test scores along with essays, leadership, activities, service to the community, and “special circumstances.” Those ranged from socioeconomic status and school quality, to family background and race. As the university’s director of admissions explained for the 5th Circuit, “[R]ace provides—like language, whether or not someone is the first in their family to attend college, and family responsibilities—important context in which to evaluate applicants, and is only one aspect of the diversity that the University seeks to attain.”
Neither special circumstances nor grades were determinative. Of the 841 students admitted under these criteria, 47 had worse AI/PAI scores (a combination of the holistic measure, grades, and test scores) than Fisher, and 42 of them were white. On the other end, UT rejected 168 black and Latino students with scores equal to or better than Fisher’s.*
To call this discrimination is to say that Fisher was entitled to a space at the UT Austin, despite grades that didn’t make the cut. It’s worth pointing out that the university gave her the choice of transferring from a satellite school, which she rejected.
Fortunately for Fisher, this latest trip to the high court might be the try that sticks. At least four Supreme Court justices believe affirmative action is unconstitutional. In his concurrence to the first Fisher opinion, for instance, Justice Antonin Scalia wrote, “The Constitution proscribes government discrimination on the basis of race, and state-provided education is no exception.” Likewise, on the same grounds, Justice Clarence Thomas attacked affirmative action as morally equivalent to Jim Crow. Justice Samuel Alito has sided with affirmative action opponents in the past, and in reference to a voluntary school desegregation plan—which he struck down—Chief Justice John Roberts has said that “the way to stop discriminating on the basis of race is to stop discriminating on the basis of race,” as if race consciousness is the same as racism. Meanwhile, a member of the court’s liberal wing, Justice Elena Kagan, will recuse herself from hearing the case because she worked on it when she was solicitor general.
Given all this, most liberals aren’t optimistic. With that said, there’s an argument—from Richard Kahlenberg of the Century Foundation—that an end to race-based affirmative action will spur the country toward class-based affirmative action, which would assist poor and working-class students of all backgrounds, who are underrepresented at selective colleges. Because of disparities of wealth and income, minorities are as likely as whites to benefit under a class-based arrangement.
On that score, Texas—with its top 10 program—is a pioneer. Top 10 doesn’t adjust for neighborhood or school quality; the best student at an older, rural school is just as qualified for admission as the best student at a gleaming, suburban complex. With that said, Top 10 comes with two serious problems: Highly qualified students at great schools miss the cutoff, on account of high competition, while the best students from low-achieving schools are often unprepared for university work. Indeed, there’s a certain perversity to top 10, which achieves its racial diversity by leveraging neighborhood—and thus public high school—segregation. But, under a legal regime that only tolerates a “narrow” use of racial preferences in education—forcing race-neutral means for race-conscious ends—that outcome is inevitable. As Justice Ruth Bader Ginsburg wrote in her Fisher dissent, “I have said before and reiterate here that only an ostrich could regard the supposedly neutral alternatives as race unconscious.”
Top Comment
I'm not sure what the answer is to all of this. Part of me thinks that diversity in the student body is a good thing, but I really don't like the idea of racial or economic bias. More...
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Finally, it’s worth repeating a point from the Economic Policy Institute’s Richard Rothstein, who notes—correctly—that “black families and their children suffer from compounded and inherited disadvantages that are unique, not like those of white or immigrant families who happen to be from lower social classes or who happen to live in low-income neighborhoods.” Race disadvantage is different than its class counterpart, and one affirmative action isn’t a substitute for the other.
But even if it were, it’s important to note that if the court ends race-based affirmative action, there’s no guarantee that we’ll see an alternative. Opponents of race-conscious policy in education are often opponents of “diversity” writ large and won’t be fooled into accepting measures to help boost diversity by the use of the word class instead of race.
Correction, July 2, 2015: This article originally misstated that 47 of the rejected students from University of Texas at Austin had worse grades than Fisher. They had worse AI/PAI scores. (Return.)
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http://www.thecherrycreeknews.com/supreme-court-case-on-higher-ed-admissions-will-change-everything-fisher-v-university-of-texas/
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SUPREME COURT CASE ON HIGHER ED ADMISSIONS WILL CHANGE EVERYTHING FISHER V UNIVERSITY OF TEXAS
JULY 4, 2015STAFF
Liliana M Garces, Pennsylvania State University and Gary Orfield, University of California, Los Angeles
Twelve years ago, after an epic legal battle over the University of Michigan’s affirmative action admissions policy in its law school and undergraduate school, the Supreme Court upheld the importance of student body diversity for the institution’s educational mission and the need to consider race as a factor in admissions.
The case, Grutter v Bollinger (2003), which also relied on a prior case that dated back to 1978, University of California v Bakke, cited extensive evidence about the importance of a racially and ethnically diverse student body.
However, in 2012 the Supreme Court reopened the issue, with the Fisher v University of Texas case.
Abigail Fisher is a white female applicant who applied to the university in 2008 and was denied admission. She then sued the University of Texas at Austin on the grounds that the university’s race-conscious admissions policy violated the equal protection clause of the Fourteenth Amendment.
Now the case is, once again, back before the Supreme Court (after having been decided, again, in UT-Austin’s favor by a lower court and appealed, again, by Fisher) and will be heard in the 2015-2016 term.
While the case raises questions specific to UT-Austin’s program, it is also possible that the Supreme Court may further limit the use of race in higher education admissions policies for institutions across the nation.
This could be a historic decision, following a term in which the court decided to severely curtail the Voting Rights Act and uphold the constitutionality of a ban on affirmative action in Michigan.
Fisher: Round 1
The Fisher case was expected to be a fundamental decision on affirmative action in universities.
When the court first agreed to hear the case in 2012, the social science community came together, along with the Civil Rights Project at UCLA, to support the race-conscious admissions policy at UT-Austin.
The American Educational Research Association, along with numerous other scholarly organizations, filed a brief summarizing the extensive research demonstrating the educational benefits of a racially diverse student body.
Some 444 social scientists from 172 institutions across the nation submitted a brief for which the lead author of this article served as counsel of record, outlining the evidence demonstrating the limits of so-called race-neutral policies in achieving racial diversity.
In its decision in 2013, the court reaffirmed the important value of educational diversity.
However, a contentious issue was left unresolved: the court did not reach a judgment on the key question of whether there was a nonracial way to achieve the diversity that would make consideration of race unnecessary and therefore illegal under the court’s standards.
Can diversity be achieved by ignoring race?
The decision was subsequently described as a “compromise” in which seven of the eight justices who heard the case agreed to send it back to the lower court for review.
Only Justice Ruth Bader Ginsburg dissented, on the grounds that she would have found the policy constitutional without further review by the lower court.
The decision clarified that the means institutions use to further their interest in diversity required judicial overview, meaning that a judge may not rely on the judgment of the university alone, or defer to its determination, but will require evidence that supports the institution’s decisions.
The Supreme Court will be hearing the briefs of many organizations on the issue.
Merrimack College, CC BY-NC-ND
In doing so, the decision also clarified the importance of considering workable race-neutral alternatives.
If a nonracial approach could promote diversity “about as well and at tolerable administrative expense,” then the university could not consider race directly. This placed a high, but not insurmountable, bar to justify ongoing consideration of race in admissions policies.
The justices asked the lower court, which had appeared to defer to the university’s judgment on the necessity of considering race, to reach its own decision on this issue.
The case went to the Fifth Circuit, which reheard the case and decided, for the second time, that UT-Austin’s admissions policy met the requirements of the court’s clarified standard in Fisher and that of past cases.
Fisher, however, appealed arguing that the Fifth Circuit still had not applied the test correctly.
Fisher: Round 2
In the first round, the lawyers for Abigail Fisher said they were not asking the court to reverse prior cases. What they argued, instead, was that UT Austin’s race-conscious policy was not necessary because other laws in the state, such as the Top Ten Percent Plan, allowed the university to achieve what the Fisher lawyers saw as sufficient racial diversity.
This seems to be the same argument they are presenting in this second round (though that could change as the briefing develops).
Under the plan, students who graduate at the top 10% of their class can be automatically admitted to any campus of the university they wish to attend. The university was able to achieve some level of racial diversity with the plan.
But UT-Austin found that as an alternative to the direct consideration of race in admissions, it was insufficient. The university thus sought to complement the 10% plan with a race-conscious review process.
After the remand in 2013, the Fifth Circuit agreed, but one judge strongly dissented, arguing that the university had failed to provide evidence showing that the 10% plan had not produced sufficient diversity.
This judge also argued that the court had not been sufficiently demanding in examining the university’s justifications: the university’s goals, he said, were vague and the “critical mass” of diversity the university needed not well-defined.
Need to consider race
The concept of critical mass has been at the center of affirmative action litigation efforts since Grutter, and will be central again in this second round in Fisher.
Universities seek to attain it because token representation of a minority group produces problems of extreme isolation and gives little opportunity for other students to interact with minority students.
Opponents challenge it as a goal that is ill-defined and ask for a definition that specifies a number (even though such a number could be considered an illegal quota under the court’s decision in Bakke).
My own analysis shows that the notion of critical mass cannot be reduced to a number, as it depends on a number of contextual factors necessary to obtain the benefits of diversity.
Other research also shows that when race is not considered in a holistic admissions process, as has been the case at institutions in the eight states that ban affirmative action policies, racial and ethnic diversity in the student body declines significantly, especially in highly selective campuses.
These declines have taken place at colleges and universities, in graduate education and across different fields of study, including engineering, natural sciences, social sciences and humanities, and in the important field of medicine.
Need for diversity
In recent years, even with affirmative action in the great majority of states, students of color and low-income students are earning college degrees at lower rates than their peers, deepening the concern of civil rights groups about the Court’s new move.
The court’s decision to hear the case again was also immediately criticized by the Leadership Conference on Civil Rights, representing more than 200 civil rights groups.
As with the first round, one of the justices who had recused herself earlier – Justice Kagan – will not participate, given her prior role as solicitor general when the case was being litigated earlier. With one fewer vote than usual, there is a possibility for a tie, which could leave the lower court decision supporting the University of Texas in place.
The court is likely to hear from many research and higher education organizations who can present evidence via friend-of-the-court briefs.
In the weeks before briefs are to be submitted to the court, researchers working in this field will be discussing the issues, updating research syntheses, and, once again, seeking to offer critical data to aid the court’s deliberations and to inform the broader public not yet aware of the potential consequences of the coming decision.
Our nation’s colleges play a critical role in preparing students for a multiracial society. It is our hope that the court will be guided by the weight of the social science research documenting the myriad educational benefits of diversity and the need to consider race, in a limited fashion, to meet their educational mission.
Edited by
SassyEuro2
on Sat 07/04/15 05:02 PM
