Being Born Black Is an 'Achievement'?                                           

This would, for starters, explode the myth that racial preferences are typically modest "plus" factors to break ties and near-ties among well-qualified students, or are similar in magnitude to the relatively modest legacy preferences at many schools.

To the contrary, undisputed data summarized in a 2009 book by pro-preference scholars Thomas Espenshade and Alexandria Walton Radford (among other works) show that racial preferences give blacks an enormous "admissions bonus . . . equivalent to 310 points"(on a scale of 1600) relative to whites, and 450 points relative to Asians, at a sample of elite colleges. The black-white gaps in admitted students' mean high school GPAs often average a full grade point or more.

At UT, among freshmen entering in 2009 who were admitted outside the top-ten-percent system, the mean SAT score (on a scale of 2400) of Asians was 467 points above the mean black score, and the mean score of whites was 390 points above. In percentile terms, the Asians scored at the 93rd percentile of 2009 SAT takers nationwide, whites at the 89th percentile, Hispanics at the 80th percentile, and blacks at the 52nd percentile; the mean high school GPA's of these racial groups were, respectively, 3.07, 3.04, 2.83, and 2.57.

These numbers give the lie to UT's claims that race is just one marginal consideration among several that are used to compute the so-called "Personal Achievement Index" component of its admissions formula. (Yes, at UT being born black or Hispanic -- but not being born Asian or white -- is officially deemed an "achievement.")

Indeed, these numbers strongly suggest all by themselves that UT should probably flunk even the very lenient tests for whether a school's preferences pass constitutional muster that the Court laid down in 2003, in Grutter v. Bollinger: An applicant's race must not be "the defining feature of his or her application" or a basis for "insulat[ing] the individual from comparison with all other candidates for the available seats."

Size also matters for at least three other reasons. First, the larger the preferences, the more well-qualified Asians and whites are denied admission on account of their race. This is highly relevant to Grutter's holding that racial preferences are unconstitutional if they "unduly harm members of any racial group."

Second, as our new book and previous works have documented, very large preferences lead to very large racial gaps in the academic performance of students at the vast majority of selective universities. These gaps have multiple bad academic "mismatch" effects on the supposed beneficiaries, most of whom get low grades, cannot survive in challenging courses or majors, and suffer blows to their intellectual self-confidence and other harms. In short, large preferences unduly harm members of every racial group.

Third, research shows that large racial gaps in academic achievement severely inhibit the interracial friendships and interactions that are the main justification invoked by universities for using racial preferences to increase diversity in the first place.

Why have the size of UT's preferences and related harms not been issues in Fisher? Apparently because of an understandable choice by her excellent pro bono legal team to seek a fast summary judgment ruling rather than incurring the large expense of extensive discovery on all the complexities of the size issue.

Transparency is Essential

Similar plaintiffs in future cases are likely to face the same cost disincentive to document the size of the preferences -- as long as their size, operation, and effects are closely guarded secrets at most schools.

But the Court could justifiably use the Fisher case to begin requiring that schools that use racial preferences must fully and publicly disclose their size, operation, and effects on the academic performance of preferred-minority students.

Such a transparency requirement would not only help minority students and their families make better-informed choices among colleges, and help citizens and policymakers evaluate the costs and benefits of preferential admissions; transparency is also essential to enabling courts to police whether a university's racial-preference policies are "narrowly tailored" as required by Grutter.

In short, secret admissions can't possibly be narrow tailoring.

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Stuart Taylor, Jr. and Richard Sander are the authors of Mismatch: How Affirmative Action Hurts Students It's Intended to Help, and Why Universities Won't Admit It.