06 July 2016

Fisher v. University of Texas: Dishonest, Inconsistent, and Weak Arguments

Stephen Kershnar
The Shabby Left: Fisher and Affirmative Action
Dunkirk-Fredonia Observer
July 5, 2016

            In a recent Supreme Court Case, Fisher v. University of Texas at Austin, 579 U.S. ____ (2016), the Supreme Court held that the Equal Protection Clause allows state universities to discriminate against whites and Asians in order to accept more blacks and Hispanics. The reasoning of the University of Texas at Austin (the best state university in Texas and one of the best in the South) is so shabby, it is a wonder to behold. That Justices Kennedy, Ginsburg, Breyer, and Sotomayor signed on to it shows them to be an embarrassment to the court and a statement about the contemptable senators who confirmed them.
Texas’ Top Ten Percent Law offers 75% of its admission spots to the University of Texas at Austin (UT) to students who graduate in the top 10% of their high school class (it actually requires the student be in the top 7-8% because of limited spots). This was explicitly done to increase the enrollment of blacks and Hispanics as state legislators reasoned that students from predominantly black or Hispanic schools would get into UT even when they are less talented than white and Asian students who graduate in the top 10-15% at better schools. After this law was passed more than one out of six students at UT was Hispanic and roughly one out of twenty was black. Still, this wasn’t enough.

UT also accepts 25% of its students in part on the basis of a personal achievement score. This score looked at the applicant’s race, whether he comes from a single mother or poor household, and whether a foreign language is spoken in his home. The purpose of this admissions track is to discriminate against white and Asian applicants, especially ones who come from middle class and married parents. On a side note, one might wonder why the state should discriminate against intact families who pay for the university.
Supreme Court precedent requires that race conscious admissions pass strict scrutiny. Strict scrutiny requires that UT show that its race preference is necessary to achieve a compelling state goal.

UT argued that its compelling state goal is to promote interracial understanding, break down racial stereotypes, prepare students for a diverse workforce and society, and cultivate leaders whom citizens view as legitimate. It argued that a critical mass of blacks and Hispanics is necessary to achieve these educational goals because a class in which only one out of five students is black or Hispanic results in those students feeling lonely. It also led to uneven classroom diversity. After all, the Court noted, only 88% of classes had Hispanics in them. If you find this reasoning ridiculous, you’re not alone.

The dissent (Justices Alito, Roberts, and the incomparable Thomas) pointed out that UT refused to define “critical mass.” It did not define it in terms of a number or percentage. Precedent uncontroversially rules out numbers or percentages designed to mirror Texas’ population. Thus, neither UT nor the liberal justices knows what a critical mass of blacks or Hispanics is and yet it still justifies discrimination.

Worse, UT offers no evidence, repeat no evidence, that a critical mass helps it to achieve its goals (increasing interracial understanding, reducing stereotypes, etc.) at all, let alone that it is necessary to achieve them. UT instead adopts a “we’ll know it when we see it” standard that is little more than a plea for deference. This despite the fact that the Court previously held that courts may not merely to defer to universities’ good faith efforts.  

UT’s inconsistency and dishonesty was breathtaking. It first argued that critical mass depended on whether the university’s race and ethnicity makeup tracks state percentages and then denied that it so depended. It argued that the focus was on classroom-wide (rather than university-wide) diversity and then later denied it. It even argued that it needed to discriminate in favor of blacks and Hispanics because the Top Ten Percent Law admitted poor-and-disadvantaged blacks and Hispanics and it wanted to admit privileged ones. It later denied it.

It is a delicious irony that UT officials seek to discriminate against (on average, smarter) children of poor Asians in favor of (on average, dumber) children of rich blacks for wispy educational reasons that it can neither define nor measure.

Its race-conscious plan discriminated in favor of Hispanics and against Asians even though more of Hispanics attended UT when the plan was implemented. Apparently, Asians don’t get as lonely as Hispanics when more than one out of six UT students were members of their group. UT implicitly reasoned that Asians didn’t add to classroom diversity in a way that merited race preferences, but black and Hispanics did. This despite the fact that Asians include such diverse groups as Cambodian, Chinese, Filipino, Indian, Japanese, Korean, and Thai and that they constitute 60% of the world’s population.

The ridiculous program didn’t even define what makes someone black, Asian, Hispanic, or so on. Instead, it argued that students’ self-labelling was a sufficient guide. This produces a mess given that many students are interracial and in the future their numbers will increase (for example, 28% of Asian-Americans marry someone of another race). Only an academic would think that an 18-year-old who is one-eighth black adds more to diversity than an 18-year-old from rural Thailand.  

The proponents of discriminating against whites and Asians are forced into using dishonest, inconsistent, and weak arguments because neither they nor anyone else really believes in them. The reduction of stereotypes, interracial understand, and other such fluffy goals are poorly defined, not very valuable, and certainly not worth trading off real talent for.

No coach or fan of the New England Patriots wants both their cornerbacks chosen by considering which players had disadvantaged childhoods, are Hispanic, or were raised by single mothers. No one whose daughter faces surgery after a terrible car accident wants a less talented surgeon operating on her because the medical schools or the hospital to which she is taken had some fluffy diversity-related goals that officials could neither define nor measure. There is every reason to believe that, on average, the doctor will do less well over her lifetime.

The liberal justices and the weak-minded Kennedy should have told UT to either stop discriminating against whites and Asians or make a respectable argument.

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