Stuart Taylor and Richard Sander have filed a fascinating amicus brief in the Fisher case, hoping to bring some of the relevant social science research to the attention of the Court, and (they fervently hope)--to break through the closed-minded atmosphere through which most colleges consider "diversity" issues. Taylor's and Sander's arguments doubtless won't persuade racial preference ideologues Sonia Sotomayor and Ruth Bader Ginsburg, but their carefully reasoned brief provides grounds for Justice Kennedy or even Justice Breyer to join the Court's conservatives and scale back the virtually open-ended use of preferences that the Grutter decision established.
Sander and Taylor advocate a "narrow tailoring" that would "require each state school that seeks to use racial preferences to make them no larger than its socioeconomic preferences and to disclose their size, operation and a timetable for phasing them out by 2028." This latter point is particularly significant: despite Justice O'Connor's holding in Grutter that preferences should end within 25 years, there doesn't appear to be one college or university that uses racial preferences that's taken steps to phase out the practice according to O'Connor's timetable.
The duo's chief goal, however, is to alert the Court that "a growing volume of very careful research, some of it completely unrebutted by dissenting work, suggests that racial preferences in higher education often undermine minority achievement." This research matters, since it undermines the implicit assumptions behind both Bakke and Grutter--that however much racial preferences might harm the 14th amendment, they benefit those students admitted through preferences. If preferences turn out to have harmful or even ambiguous effects, Taylor and Sander argue, "then the fundamental legal premise for permitting this type of racial classification is gone."
Duke's
President Attacks His Own Faculty
Preferences often described as tie-breakers among essentially equal candidates, but "in fact the racial preferences" used by elite schools "are very large indeed." At Texas, for instance, average SAT score of incoming Asian-American students was a "staggering" 467 points higher than the comparable score for incoming black students. Students granted major preferences, Taylor and Sander maintain, are often the victims of "academic mismatch," that is, placed into classes with far better-equipped students, during which they suffer academically. (The duo pointed to Sander's research among law students and the research of Arcidiacono et al. among undergraduates initially intending to major in science or engineering.) Among undergraduates, virtually no research has challenged the conclusions of the mismatch thesis; while there was criticism of Sander's arguments regarding law school, virtually none of the critics "have disputed the central contention of the law school mismatch hypothesis: that large preferences undermine learning in law school."
Sander and Taylor note that California's banning of racial preferences (as a result of Proposition 209) provides a useful "real world" test case of the mismatch theory in practice. The result? Black enrollment at the UC campuses initially dropped, but rebounded everywhere except for the two most elite institutions (Berkeley and UCLA), and blacks at all UC campuses fared better academically--because they generally weren't enrolled at schools with far better-equipped students.
Sander and Taylor also point out--correctly--that colleges and universities have defied the Supreme Court's desire to phase out preferences. In part, this problem came from the flawed Grutter decision itself: "Contrary to the Court's inference, the racial preferences used by the University of Michigan Law School before Grutter and Gratz were larger and more mechanical than [the point system for all black applicants] used by the College." The "holistic" approach preferred by the Court perversely made university admissions less transparent and making it harder for outsiders to see just how aggressively universities have employed preferences.
Moreover, since Grutter, "Preferences have become larger and more pervasive." Sander and Taylor (correctly and very importantly) lament that "the drift of policy is unmistakably toward using large racial preferences for many decades, or even centuries, in pursuit of proportional representation of every racial and ethnic group at every higher education institution." Indeed, according to the duo, "The political climate on many university campuses makes careful deliberation on and candor in discussing these subjects a very rare thing." Example A of this pattern, of course, was Duke president Richard Brodhead's public denunciation of his own faculty members for having their research cited to the Court by critics of racial preferences.
The Greater the Preferences, the Softer the Courses
Taylor and Sander also discuss how the aggressive use of preferences has a cascading effect on campus. "A pervasive characteristic of large admissions preferences," they reason, "is that the recipients are at a competitive disadvantage in courses. Many of them consequently seek out courses and majors where they will suffer least --academically and personally--from their relatively weaker preparation. Over time, this means that students admitted with large preferences tend to concentrate in the 'softest' majors and courses." This trend, of course, undermines the University of Texas' justification of keeping preferences in place on grounds of insufficient "classroom diversity": admitting more students with large preferences won't mean that more preferential students will take classes in biochemistry.
What do Taylor and Sander recommend? First, they suggest that if the Court retains racial preferences, it needs to increase transparency, so that universities that use preferences must "do so in a way that makes both the university's current and planned use of racial preferences in admissions and the academic consequences thereof transparent both to applicants and (with careful privacy protections) to the public."
Second, the duo urges the Court to require any public university that plans to continue using racial preferences to do so in a highly tailored fashion and in any case to no greater extent than the school employs preferences based on socio-economic status. "Socioeconomic imbalances in college access and on elite campuses," they conclude, "far exceed racial imbalances, and greater SES diversity can be achieved with much smaller preferences, and thus less risk to students, than is the norm with current racial preferences. Thus constraining the use of race in admissions makes it far more likely that racial preferences are not mechanically manipulated to achieve balancing goals, but instead really are part of a multi-faceted process of assessing an individual's contribution to a diverse campus community."
The argument is powerful. Will any advocates of preferences take up Taylor and Sander's challenge, and effectively rebut any of their research? I wouldn't hold my breath.
