This week the Center for Equal Opportunity joined in the filing of the friend-of-the-court brief it helped write in Fisher v. University of Texas. In this brief, we ask the full U.S. Court of Appeals for the Fifth Circuit to reconsider what we believe to be an erroneous decision by a three-judge panel last month, upholding the University’s use of racial and ethnic admission preferences.
As our supporters know, this is a case in which the Center for Equal Opportunity has been deeply involved from the beginning. I thought that we would devote most of my email this week to a condensed version of what we just filed (court rules limited the length to seven pages anyway); in particular, the opening and closing sections and most legal citations have been omitted.
A. The Educational Benefits that Flow From the University’s Race-Conscious Admissions Plan Are Highly Dubious
There is ample reason to doubt whether the evidence relied upon by the [Supreme] Court for its finding a compelling interest in the educational benefits flowing from diverse student body can apply to the University’s invocation of racial preferences here. In the years since that opinion, new research has been published that significantly questions the benefits that accrue from a diverse student body. See, e.g., Roger Clegg, Attacking “Diversity”: A Review of Peter Wood’s Diversity: The Invention of a Concept (collecting studies that the social science evidence purporting to tout diversity’s educational benefits was and is seriously flawed).
But even assuming the continued validity of the research underlying the educational benefits of the a diverse student body at the University of Michigan law school in 2003, those educational benefits of considering race cannot be assumed to be the same for all disciplines at all places at all times.
There are many reasons to find that the University [of Texas]’s use of race differs from [the University of Michigan law school’s]. [T]he reason racial preferences are being used here is not related to the University’s inability to attain a critical mass through race-neutral means. To the contrary, racial preferences are needed here because the Top Ten Percent Plan (Plan) admits “too many” lower-class black and Latino students. Are the incremental benefits of preferring some upper-class minority students really necessary to secure the educational benefits of a diverse student body? The panel never answers that question, but instead incorrectly assumes that this marginal increase in racial/economic diversity is “indistinguishable” from the interest recognized in [the University of Michigan law school case].
It is quite true that one cannot assume that all African Americans and all Latinos think alike or have the same backgrounds. There is nothing intrinsic in racial categories that assures a commonality of experience. But individual differences are precisely the reason that all stereotyping, preference, and discrimination based on race should be rejected—it is not a reason to overlay racial preferences on top of an already racially diverse student body.
And there is no reason to think that the educational benefits that result are so clear and overwhelming that it is “necessary” for the University to discriminate against student applicants.
B. Any Benefits that Flow from the University’s Race-Conscious Admissions Plan Must Be Weighed Against the Costs
Because the [Supreme Court in the Fisher case] explained that a narrow tailoring inquiry requires that universities prove racial preferences are necessary to secure the educational benefits of a diverse student body, it follows a fortiori that those benefits must outweigh the costs. And the costs of racial preferences are inherent, undeniable, and well-known. [Quoting a recent Supreme Court opinion]: “If the need for the racial classifications . . . is unclear, . . . the costs are undeniable.” Government imposed racial classifications tear at the very fabric of our society, dehumanize us as individuals, and significantly hamper the very students they are designed to protect.
The costs of racial preferences are many and widely recognized by the courts. The specific costs added in the higher education context must be weighed. Due to space limitations, [we] will only discuss one of those costs—mismatching individuals and institutions.
“Mismatch” has been widely discussed in recent years, see Richard H. Sander & Stuart Taylor Jr., Mismatch (2012)—yet remarkably was not mentioned at all in the panel’s opinion. Many studies reveal that racial preferences in college admissions result in an “academic mismatch” that leads to lower grades and higher drop-out rates among minority students.
Academic mismatch begins when elite universities lower their academic standards to admit a more racially diverse student population. Schools one or two academic tiers below must do likewise, since the minority students who might have attended those lower ranking universities based on their own academic record are instead attending the elite colleges. The result is a significant gap in academic credentials between minority and nonminority students at all levels.
Even supporters of racial preferences have had to acknowledge that students who attend schools where their academic credentials are substantially below those of their fellow students will tend to perform poorly. [Quoting from one well-known defense of racial preferences]: “College grades [for students admitted based on race] present a . . . sobering picture,” and “The grades earned by African-American students . . . often reflect their struggles to succeed academically in highly competitive academic settings.” These struggles tend to result in shifting majors as minority students find the coursework too advanced given their skill level (“African American students at elite schools are significantly less likely to persist with an interest in academia than are their counterparts at nonelite schools.”). The lower an African American student’s academic credentials are relative to the average student at his undergraduate college or university, the lower his grades are likely to be and the less likely he is to graduate.
Racial preferences in college admissions impose significant costs on minority students. No matter where academic mismatch occurs, lower grades lead to lower levels of academic self-confidence, which in turn increases the likelihood that minority students will lose interest in continuing their education and drop out.
The panel decision failed to consider the costs of racial preference—including mismatch—when determining that the University’s admissions policy was narrowly tailored ….
* * *
One other item: I noted a couple of months ago a bad (indeed, unconstitutional) idea being floated by the Obama administration, namely the creation of a government-to-government relationship between the United States and Native Hawaiians. Now four U.S. Senators – Jeff Flake (R-AZ), Lamar Alexander (R-TN), Tom Coburn (R-OK), and Mike Lee (R-UT) – have written an excellent letter to the administration criticizing the proposal, which you can read here.
The administration is attempting an end-run of Congress here (sound familiar?), which has repeatedly refused to go down the road of making Native Hawaiians into some sort of Indian tribe — and rightly so. The Supreme Court has made clear that Native Hawaiians are an ethnic group — and they are, conversely, not a political entity — so that singling them out for special treatment is unconstitutional, as well as divisive and unfair. The Bush administration and the U.S. Commission on Civil Rights said so, too, but apparently the Obama administration is committed to playing the race card, whenever and wherever possible.
