Friday, June 24, 2016

When Keeping It Mediocre Goes Wrong: Supreme Court Rejects Abigail Fisher's Attack on Affirmative Action

It's not often that we misread how the Supreme Court is going to vote on an issue in this highly politicized world we live in, but I'm happy to say that this was one of those times.  The Supreme Court voted yesterday 4-3 to uphold the University of Texas' affirmative action program that considers -- but does not assign significant weight to -- race as one of several other aspects that can factor into a candidate's overall admissions package.  We'll address the legal analysis below in a moment, but first let's deal with the real issue that lead to this case in the first place: entitlement.

Entitlement is when you graduate high school with a GPA of 3.59 out of 4.00 and an SAT score of 1180 out of 1600 (which would put you in the 75th percentile of SAT test takers), apply to a university where the average high school GPA is 3.72 (0.13 points higher than yours) and the average SAT score is 1340 (160 points higher than yours), and then, when you don't get in, blame minorities for your shortcomings.  That is what Abigail Fisher did here.

Fisher said in news reports that she hoped for the day universities selected students "solely based on their merit and if they work hard for it." But Fisher failed to graduate in the top 10 percent of her class, meaning she had to compete for the limited number of spaces up for grabs.
She and other applicants who did not make the cut were evaluated based on two scores. One allotted points for grades and test scores. The other, called a personal achievement index, awarded points for two required essays, leadership, activities, service and "special circumstances." Those included socioeconomic status of the student or the student's school, coming from a home with a single parent or one where English wasn't spoken. And race.
Those two scores, combined, determine admission.
Even among those students, Fisher did not particularly stand out. Court records show her grade point average (3.59) and SAT scores (1180 out of 1600) were good but not great for the highly selective flagship university. The school's rejection rate that year for the remaining 841 openings was higher than the turn-down rate for students trying to get into Harvard.
As a result, university officials claim in court filings that even if Fisher received points for her race and every other personal achievement factor, the letter she received in the mail still would have said no.
It's true that the university, for whatever reason, offered provisional admission to some students with lower test scores and grades than Fisher. Five of those students were black or Latino. Forty-two were white.
Neither Fisher nor Blum mentioned those 42 applicants in interviews. Nor did they acknowledge the 168 black and Latino students with grades as good as or better than Fisher's who were also denied entry into the university that year.
(Probublica June 23, 2016)

Entitlement. It's what's for dinner.

Justice Kennedy
Now, on to the case itself. In Fisher v. University of Texas,swing voter Justice Anthony Kennedy surprised many in the legal community when he changed his traditional anti-affirmative action position and actually voted with liberal Justices Ruth Bader Ginsburg, Sonia Sotomayor and Stephen Breyer to uphold the University of Texas' limited use of race in its admissions programThe Court voted 4-3 that the University's race-conscious admissions program in use at the time of Fisher's  application is lawful under the Equal Protection Clause of the 14th Amendment.  (NOTE: the Supreme Court usually has 9 Justices but after Justice Scalia's death, Republicans in the Senate have refused to vote on the President's appointment of Merrick Garland to the Court; also Justice Elena Kagan had to recuse herself from this decision because she argued this case in her prior role as Solicitor General).  Last time this case made it up to the Supreme Court back in 2013, the Supreme Court voted 7-1 to send it back down to the 5th Circuit Court of Appeals because the 5th Circuit applied the wrong standard of review when it upheld Texas' affirmative action program.  According to Justice Kennedy who wrote for the 7-1 majority back in 2013, the 5th Circuit should have applied a more difficult Equal Protection standard known as "Strict Scrutiny."  Under Strict Scrutiny review, state laws that involve race are typically struck down under the Equal Protection Clause as unconstitutional because the standard requires a state to show that whatever compelling goal they're trying to achieve can't be achieved in a more narrowly tailored way that doesn't involve race.  Usually this is a hurdle that most state laws are not able to overcome because you can almost always think of another way to achieve a state goal that doesn't involve the use of race.

When the case went back down to the 5th Circuit, they applied the Strict Scrutiny standard of review and still arrived at the same result: the University's admissions program, where race is literally 1/7th of 1/6th of 1/3rd of 1/2 of the holistic review system, is Constitutional.

When the Fisher case made its way back to the Supreme Court, Justice Kennedy, again writing for the majority, held the following:

Drawing all reasonable inferences in her favor, [Fisher] has not shown by a preponderance of the evidence that she was denied equal treatment at the time her application was rejected...
The component with the largest impact on [Fisher's] chances of admission was not the school’s consideration of race under its holistic-review process but the Top Ten Percent Plan.  Because [Fisher] did not challenge the percentage part of the plan, the record is devoid of evidence of its impact on diversity. Remand for further fact finding would serve little purpose, however, because at the time of [Fisher's] application, the current plan had been in effect only three years and, in any event, the University lacked authority to alter the percentage plan, which was mandated by the Texas Legislature. These circumstances refute any criticism that the University did not make good faith efforts to comply with the law. The University, however, does have a continuing obligation to satisfy the strict scrutiny burden: by periodically reassessing the admission program’s constitutionality, and efficacy, in light of the school’s experience and the data it has gathered since adopting its admissions plan, and by tailoring its approach to ensure that race plays no greater role than is necessary to meet its compelling interests.  
In other words, the reason why Fisher, a mediocre student at best, did not make it into the University of Texas at Austin is because she failed to make it into the top 10% of her high school class -- which, under Texas state law, would have earned her an automatic seat into the University.  Her grades were otherwise too average to stand out under the non-Top 10% grading system used by the University.  So just to be clear, race had nothing to do with it.  Some students just don't work hard enough to get into their school of choice; Fisher was one of those students.

It's also worth noting that this is not an absolute declaration that states can use race in college admissions whenever they want. Kennedy carefully hedges the ruling here by making clear that any university which uses race in its admissions program will be struck down as unconstitutional if that school fails to carefully "reassess" their admission program each year with an eye towards eliminating race from their list of criteria.  So look out colleges and universities; Kennedy might have let you go with a warning this time, but he's watching you.

Justice Samuel Alito, who is not much of a fan of affirmative action, wrote a scathing 51-page dissenting opinion joined by Chief Justice John Roberts and, of course, by Justice Clarence Thomas.  In his dissenting opinion, Alito begins by questioning whether a diverse classroom actually adds any measurable benefit to the learning experience. He next attacks the sufficiency of the evidence presented by the University of Texas, claiming that the school has not shown that its race conscious admissions program actually solves the problem of having an underrepresentation of minority students. Specifically, he takes issue with the University of Texas' position that universities -- and not the courts -- should have the ability to determine whenever a school has achieved a "critical mass" of minority students.  He argues that:
This intentionally imprecise interest is designed to insulate UT’s program from meaningful judicial review... Indeed, without knowing in reasonably specific terms what critical mass is or how it can be measured, a reviewing court cannot conduct the requisite “careful  judicial inquiry”  into whether the use of race was “necessary.”  A  court cannot ensure that an admissions process is narrowly tailored if it cannot pin down the goals that the process is designed to achieve. UT’s vague policy goals are “so broad and imprecise that they cannot withstand strict scrutiny.”  
Alito goes on to express his deep concerns that there are not enough Asian students benefiting from the University of Texas' admissions program:
Moreover, if UT is truly seeking to expose its students to a  diversity  of  ideas  and  perspectives,  its policy is poorly tailored to serve that end.  UT’s own study—which the majority touts  as  the  best  “nuanced  quantitative data” supporting  UT’s  position, demonstrated that classroom diversity was more lacking for students classified  as  Asian-American  than  for  those  classified  as  Hispanic.  But  the  UT  plan  discriminates against Asian-American students. UT is apparently unconcerned that Asian-Americans “may be made to feel isolated or may be seen as . . . ‘spokesperson[s]’ of their race or ethnicity.”

OK I need to unpack this because this is perhaps the biggest reveal in Alito's dissenting opinion.  Alito, a Princeton grad, is a part of a group called the Concerned Alumni of Princeton, which was formed in October 1972 to oppose Princeton's decisions regarding affirmative action.  Google it.  Yet here he is seeming to argue in favor of the inclusion of Asian students at UT and taking issue with UT's affirmative action program because it is not inclusive enough.  If you didn't know anything about Alito's background, you'd think this guy was a bleeding heart liberal.  But that's not the case.  Alito couldn't give a rat's ass about the inclusion of any minority group at college admissions.  He's mocking UT here, essentially making one of those arguments your 3rd grade teacher used to make when they told you that they couldn't let you make up a math quiz because then they'd have to let "everybody" in the class make up the quiz, which of course, would cause the world to end.  Nice try, Alito.  We don't believe you, you need more people.

Alito finishes with this:
What  is  not  at  stake is whether  UT or any other university may adopt an admissions  plan that results in a student body with a broad representation of students from all racial and ethnic groups.  UT previously had a race-neutral plan that it claimed had “effectively compensated for the loss of affirmative action,” and  UT  could  have  taken  other  steps  that  would  have increased  the  diversity  of  its  admitted  students  without taking race or ethnic background into account.
What is at stake is whether university administrators may justify systematic racial  discrimination  simply  by asserting that such discrimination is necessary to achieve “the  educational  benefits  of  diversity,” without  explaining—much less proving—why the discrimination is needed or how the discriminatory plan is well crafted to serve its objectives.  Even  though  UT  has  never  provided  any  coherent explanation for its asserted need to discriminate on the basis of race, and even though UT’s position relies on a series of unsupported and noxious racial assumptions, the majority  concludes  that  UT  has  met  its  heavy  burden. This conclusion is remarkable—and remarkably wrong. Because  UT  has  failed  to  satisfy  strict  scrutiny,  I respectfully dissent.
"Systematic racial discrimination" is the classic neo-conservative way of characterizing affirmative action -- which is an attempt to heal past government-sanctioned racial discrimination by merely considering race as one of many tools -- as something that is now aimed at unjustifiably discriminating against White students on the basis of race.  To be sure, this view has been advanced by the conservatives on the Supreme Court for over a decade now, but it is a narrative that has gained traction in our society.  Many Whites now see so-called "reverse-racism" (that is, racism directed from minorities towards Whites) as the biggest problem facing race relations today.  This undoubtedly factored into part of the reason why activist groups continue to search for plaintiffs like Abigail Fisher to test these theories in court.  While the pro-affirmative action side won the day for now, times are changing.  It won't be long before another mediocre plaintiff like Fisher, with no appreciation for the historical impact that racial discrimination has had on this country, mounts another attack on affirmative action.  Enjoy it while it lasts.

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