I didn’t check nces, as Gator did, but UT’s own stats show 91% gradated in the top 25% of their hs class. That doesn’t suggest an issue with actively selecting kids based on other holistic qualities. It’s more complex. And, more complex than simply race.
@lookingforward, taking it for granted that UT is looking at factors other than race in admissions decisions outside of the auto admits via the 10% rule, the question at hand is why is race a factor at all. Not does UT look at a variety of factors. But what justification does the school have to even consider race in that context?
LF, the critical mass argument has been challenged by Roberts on more than one occasion, but yet the University did not have a clear response. Back in '12, on the question on narrow tailoring:
"“What is the critical mass of African Americans and Hispanics at the university that you are working toward?” When Garre responded that the University did not have a specific number in mind, Roberts pressed the point: “So how are we supposed to tell whether this plan is narrowly tailored to that goal?”
No doubt that it is, but as Roberts noted back in the previous hearing (to the UT attorney), “race is the only one of your holistic factors that appears on the cover of every application.”
@gmtplus7 almost 40 percent of the state is hispanic yet 22 per cent of the UT students are hispanic. Conversely 19 per cent of the students are asian yet only represent 4.5 per cent of the state. That is discrimination against hispanics not pandering. The income of hispanics is about half of asians so they cant generally afford fancy test taking prep or the ability to go to a 60,000 per year boarding school to help with admissions
Diversity of the student body is important to me and my kids in the selection process
Fisher is arguing race be removed as a criteria from holistic not that holistic go away or else she would not have had a shot being outside the top 10 percent herself.
"JUSTICE ALITO: Well, the issue in this case is not whether the University can have holistic review.
MR. REIN: Correct.
JUSTICE ALITO: The issue is whether they can have as a component of holistic review after they have taken into account other characteristics that are not dependent on race; they can add race as an additional characteristic. "
Using admissions to match up ethnic percentages though is a quota, which is unconstitutional.
NASCAR has an old saying, “it ain’t unconstitutional if you don’t get caught.” That was said that with UCLA in mind.
Nobody said to use quotas. However discrimination against hispanics is unconstitutional
@gettingschooled, yeah I agree. People seem to be skipping over the fact that the default position under our constitution is that race should not be a factor in any decision. The only reason that the Supreme Court is willing to allow race to be considered in admissions at all is because it furthers the compelling educational interest of having a diverse student body. If, however, a diverse student body can be achieved in a race neutral way (the 10% admit rule) then there is no justification to consider race independently or as part of a holistic review. Pre Fisher I, UT could basically come in and say that they are not achieving sufficient diversity through the 10% admit rule (a critical mass), and that they need to consider race as part of their holistic review process. The Court had previously held that schools were entitled to deference in making those kinds of determinations. In Fisher I, the Court said no, schools are getting too much deference and vitiating the purpose of strict scrutiny review. Now schools are supposed to prove why the additional use of race is necessary. That is where we are now.
@tiger1307, the point is that you can’t just point to a variance in the percentage of a minority group in the general population and compare it to the percentage of admitted or attending students as proof of discrimination. And numerically adjusting admissions so that a specific percentage of specific groups of people are admitted is a quota by definition.
The case, it would appear, now comes down to three options: kill affirmative action nationwide as an experiment that can’t be made to work, kill just the way it is done at the Texas flagship university because it can’t be defended, or give the university one more chance to prove the need for its policy.
(From Scotus Blog).
My bet would go for the middle option.
Statistically, one has to know the % of Hispanic high school graduates who qualify for UT before one can claim “discrimination.”
Years ago, for example, UC did a study of University readiness of the high school grads in California, and it found that xx % of Asians were UC-ready, yy % of whites were UC ready, and a smaller % of URM grads were UC ready. (The demographics of Texas and California are not that dissimilar.)
Using statewide stats to indicate discrimination, if there is one here, is in the K12 system which is producing grads who are not University-ready.
Now, perhaps the legal argument should be that K12 is so bad, and hurts URMs the most, that the University should give them a boost in holistic admissions. (But such an argument would probably not sell to well in state legislatures…)
I thought the chart in this article was interesting because it shows the applicant pool at UT versus admitted and enrolled. It is hard to be precise with the data in that chart and it does not speak to qualifications of applicants.
Ohiodad, my experience is that “race,” as a consideration, rarely stands alone.
Race may appear on the cover, so to say, but just turn a few pages and you find the rest of the story. It is not a rubber stamp, where they stop at race.
Nether side has had a clear representation on critical mass, including in Fisher 1. I know I could do it, um, better. And you have to be careful when using the word, “discrimination,” when you don’t know more than how many matriculated. There are many local alternatives in Texas and many solid reasons a percentage of kids will choose them.
I suspect the real issue (functionally, not this crazy race sensitivity among people, in general,) is that the 10% rule is not working to achieve diversity in matriculation. Hence, this look at critical mass.
I think one suggestion on the Fisher 1 thread was finding ways to encourage under represented minorities who are accepted to UT to matriculate. But it disturbs me (from a discussion standpoint,) that Rein can’t suggest alternatives. To me it weakens his point.
I don’t think UT could present new evidence to the 5th Circuit. It is an appellate court. They would have had to go back to district court. It sounds like they tried but because they wanted to put in evidence about her legal standing to sue and her attorneys rejected the notion of going back to district court. In her rebuttal brief they address the fact that everyone agreed to summary judgment and there are no do overs on that. I think Kennedy was irritated that UT Fisher won’t go back to district court and if UT did, they won’t enter anything worthwhile to meet strict scrutiny. I think that makes another remand a waste.
@lookingforward, I don’t doubt your experience. Again though the question before the Court is in light of the admits under the 10% rule, can or should race be considered at all (in the holistic pool)? You have to remember that to the Justices, and I mean all nine of them, the default position is that race should not be used in admissions decisions. The default position is not we have been doing things like this and there is no reason to change.
What is clearly troubling a number of Justices is precisely that no one can make a clear presentation on critical mass because no one knows what in the heck it is. Rightly or wrongly, there seems to be a feeling (expressed by Roberts in the question quoted above) that unless someone from UT can articulate what exactly they are trying to achieve, then a lot of this will be viewed as a smokescreen to cover the use of quotas of racial admits. At the end of the day, under the strict scrutiny test, it is the school’s burden. Several Justices appeared frustrated (most importantly Kennedy) that the school didn’t even really try to do so.
@gettingschooled you are correct UT sought remand to the District Court to re-argue the standing issue and the 5th Circuit summarily denied the request (correctly I think). I believe Kennedy was trying to give their counsel an out by leading him to say that if the case had been sent down they would have provided data on this or that or that the program had changed somehow. Somewhat surprisingly (to me at least) UT’s lawyer pretty much said nope, we like the hand we have. Maybe UT is worried that the Court s going to drift rightward in the next several years (Ginsburg is mid 80s, Kennedy is just about 80) given the political climate in the US and they don’t think the ground is going to get any better for them, but it sure seemed to frustrate Kennedy.
Simple explanation, from our Wiki friends, my bold:
"The opinion was issued on June 24, 2013—unusually late given that it was argued in October 2012. In a 7–1 decision, the Court vacated and remanded the Fifth Circuit’s ruling. Writing for the majority, Justice Kennedy concluded that the Fifth Circuit failed to apply strict scrutiny in its decision affirming the admissions policy. Instead, he wrote, the Fifth Circuit held that Fisher could only challenge "whether the University’s decision to use race as an admissions factor ‘was made in good faith.’ It presumed that the school had acted in good faith and gave petitioner the burden of rebutting that presumption". Kennedy argued that per the Grutter ruling, the burden of evidence primarily lies with the university “to prove that its admissions program is narrowly tailored to obtain the educational benefits of diversity”
That last line seems a giant clue, to me. They want to see the U prove the need. And the U keeps coming back to critical mass, an issue which, it sure seems, is undeniable, when looking at the matric numbers.
Fifth: "In June 2013, the Supreme Court ruled the Fifth Circuit had failed to apply strict scrutiny to the university’s race-conscious admissions policy and sent the case back to the Fifth Circuit court. In November, the Fifth Circuit court heard oral arguments from both sides. In their questions during the arguments, Judges Patrick Higginbotham, Carolyn Dineen King, and Emilio M. Garza focused on the way the university defines “critical mass” as well as past attempts the university has made to increase minority enrollment.
On July 15, 2014, the Fifth Circuit announced its decision in favor of UT Austin, with Judge Garza dissenting. In its decision, the majority wrote, “It is equally settled that universities may use race as part of a holistic admissions program where it cannot otherwise achieve diversity.”
So, where do we get this idea that, “if UT did (go back to district court,) they won’t enter anything worthwhile to meet strict scrutiny?”
Primarily because of the exchange between UT’s counsel and Kennedy during oral argument. I am sure the briefing on remand in the 5th Circuit contains the same arguments.
No, because you are assuming my friends were underprepared. They are no different than my daughter, accepted to a tier 1 schools, but chose to go to an HBCU for a variety of reasons.
Indeed, it was the numbers that Roberts was asking about, when he asked about critical mass the first time this case was heard, but that UT’s attorney chose not to address it then or now. Perhaps the answer is, as Justice Potter noted, “I’ll know it when I see it,” but that is likely a very difficult position for the University to take. (In effect, that is their position, they just didn’t state it publicly.)