That is my point! Scalia is rearguing diversity as a compelling interest which he doesn’t agree with. It isn’t relevant and is just Scalia spouting off unless he can sway one of the more centrist judges.
I agree- no reason to hear the case of you split 4-4.
I won’t link to the National Review (don’t think it’s allowed) but the writer there pointed out the technical issues the case raises.
In 1996, UT was prevented from using race as a criteria by the Hopwood case. Then after the Grutter case (2003) UT added race back in as a factor. At the same time the legislature adopted the 10% rule. So between 1996 and 2003 race was not used.
Under strict scrutiny the burden is on UT to prove that the use of race was necessary to promote a compelling governmental interest. They should have done this back in 2003. Apparently they did not. And I gather they still have not.
Scalia was not spouting off, he was asking UT to justify the use of race as a factor. Assumedly he was trying to illuminate the school’s inability to articulate a position In favor of their critical mass theory. In other words, how can you show that the method chosen is narrowly tailored when you can’t even tell me what the goal is? This is a point hit in argument by Alito (with an assist from Sotomeyor) Roberts and Kennedy. In fact, this has been an issue with Kennedy since his solo opinion in Gruetter. He has seemingly always felt that granting deference to a school essentially removed the case from strict scrutiny analysis. It is likely Scalia was highlighting this point. I think it helps to understand this stuff if you think of it as the Justices playing multi level chess, not checkers.
Any time race is used as a factor in a decision strict scrutiny applies. It has been that way forever, and is a bedrock principle of constitutional analysis. What has changed is that prior to Fisher 1 schools were entitled to deference in the means chosen to meet the goal of diversity. Fisher I removed this deference, and now schools are being put to the test of proving why the means they have chosen are both necessary and the least discriminatory means available.
Why yes. The mismatch theory is based on [*Mismatch: How Affirmative Action Hurts Students It’s Intended to Help, and Why Universities Won’t Admit It[i/i]](http://www.amazon.com/Mismatch-Affirmative-Students-Intended-Universities-ebook/dp/B008RZRLHA), by Sander and Taylor, which claims, as the title suggests, that students admitted to schools on the basis of affirmative action do worse than they would have done at lesser schools.
Critics claim that Mismatch used bad data sloppily analyzed. Sander and Taylor are not social scientists, mathematicians or economists, and they do not, apparently, have a good understanding of how to use the mathematical tools they attempted to use.
Researchers need to be careful making causal inference-- going from the observation that event B followed event A to the conclusion that A caused B-- but analysts say Sander and Taylor incorrectly jumped to causal conclusions. People who actually understand the statistical methods Sander and Taylor used are scathing. The amicus brief for Fisher I replying to the Sander’s brief said:
A better 2011 study by Dale and Krueger reported the opposite result: black students going to more selective schools had better outcomes than other black students who were admitted to the more selective schools, but chose less selective schools instead. This was not true for white students. In other words, in this study black students were better off (in terms of future income) attending the most selective school that admitted them, but for white students it didn’t make a difference.
http://www.nber.org/papers/w17159
Excellent, Fang.
I warned about leaning on “mismatch” because I feel many refer to it (and other similarly problematic studies) to bolster personal views about who “deserves” some particular college opportunity. If you feel you are fair, if you’ve done a little testing of your views, it does not always come through that way in post wording. (Applies to justices, to.)
If you aren’t familiar with how admissions vets, you have to, imo, not rest opinions on a string of “he said” or “she thinks” or one more study by those who examine narrowly. Just saying.
Comments about critical mass seem insufficient, yes. But that does not mean it’s not a valid concern. Nor that they are purposely admitting unqualified kids simply to make numbers. Think about it, maybe go back to Fisher 1.
I don’t see he was asking anything. He was stating what he was in a brief about mismatch and stating that he is not sure it is the best thing to admit as many blacks as possible - that is a question about whether diversity meets a compelling educational interest. I don’t think his question was directed just at UT’s pursuit of diversity but at all universities’ pursuit of it. I think he has one, maybe two allies on this. Kennedy doesn’t appear to be conflicted on whether diversity is a good thing for education. He is particular about the methods employed to get there.
Sander has a Ph.D. in Economics from Northwestern. http://seaphe.org/richardsander/?page_id=47
Peter Arcidiacono, an economist at Duke, and co-authors have also touched on the mismatch theory. Here is a part of the abstract from a recent paper published in the American Economic Review:
excellent post Fang. I also agree with most of what Ohiodad said except when he says UT is “openly discriminating based on race” There is no basis to say that. It only takes 4 votes to take a case so there is no telling how it may come out. I say it is 3 to 3 now with 2 undecided. I am sure they trade votes. So alot can happen between now and decision time. My prediction is 4 to 4 and they kick the can down the road for another day.
Sander gets 300k per year from UCLA. I wonder how much he got paid for his brief and by whom?
@cardinalfang, thanks for the substantive response. I wonder why UT’s counsel did not provide such a response when asked at oral argument? Not sure it moves the ball too far on the argument, but it would have been far better than the response at oral argument.
@lookingforward I really doubt that anyone in the courtroom misunderstood the mismatch theory. And you are flipping the burden under Fisher I. The point of that decision is that the school can no longer rely on the bald statement that what they are doing is good for diversity.
@tiger1307, of course UT is discriminating based on race. That is in fact the entire point. The question for the Court is whether the discrimination is justified.
@gettingschooled I guess we just disagree. To me, since the entire thrust of UT’s argument is that the use of race is justified because of the critical mass theory, then questions about how you determine what the critical mass is, and what effect it will likely have are germane. Everyone knows that Scalia would strike AA in toto if the opportunity arose, and that there are probably insufficient votes to do so on the Court to do so, it is unlikely he would have wasted the time necessary simply to reiterate a point the other seven already know
@tiger1307 UT’s admission info clearly states they take race into consideration. The question is whether their discrimination is constitutional. i think your objection is to the word “discrimination”?
21 century. America is still arguing whether students have to be treated differently because of their race. Amazing.
I’m not saying anyone misunderstood the mismatch theory. Rather, that many here may glom onto it to support what may be personal anti-AA views. “Race” is a hot button, clearly.
UT takes race into consideration along with a host of other elements. I linked it.
@lookingforward, maybe. I don’t happen to think that asking a question about the theory during oral argument makes Scalia a racist though, nor have I seen anything that indicates discussing the theory should be outside the bounds of civilized discourse.
As far as what UT does, they can make decisions based on however many factors they choose. However, if one of those factors deals with a protected classification (race, sex, national origin, religion, etc) then they need to justify the inclusion of that factor in their decision making.
Almost all (all? I don’t know of any that don’t) law schools place first years in sections and they take all their classes together. You are a group of 75 or 80 students that have all classes together for the first year. If you are saying that UCLA has sections that have no minorities so that this professor doesn’t teach them (and he teaches a first year course like contracts or civil pro), I’d like to see that section. If a student objected to a particular professor, I could understand the school moving that one student to another section, but I’d think the student would move for all classes, not just one.
What’s the difference between an institution wanting to increase the number of say females at an engineering school and increasing the number of AA’s at UT. Both not being fully represented based on societal percentages. Is it because race is explicitly stated at UT? Trying to figure this out.
Ohiodad, you may be missing that I am referring primarily to posters on this thread, who repeatedly refer to mismatch. I have not commented on my distaste for statements that Black “underperformance is all but inevitable…” But I do believe that, unfortunately, many feel that way, in many contexts.
Why would you like to eliminate the use of race as one of many factors, holistically applied? To date, it is still allowed, except where states have banned it, so let’s not insist it is distinctly unconstitutional, at present. Would you eliminate all special circumstances, including low/lowest SES? After all, Thomas could have just as easily claimed low SES kids are at risk of being under-prepared. Or is it something unique to Blacks and Hispanics that they are “mismatched?”
Not ohiodad, but that’s an easy one: low SES applicants are not a protected class. (And yes, there probably are a lot of low SES kids who attend below average high schools that are underprepared. Think about competing in Frosh Chem against kids who took AP Chem, and scored a 5, when the highest level of chem in my HS was so-called College Prep.)
Regardless, this case is about UT’s policy to admit more middle/high SES URMs.
UT devotes two pages of its brief in Fisher II saying it does NOT seek middle/high SES URMs and calls that claim “false and disproved by the record.” It seeks minorities of all backgrounds including those who grew up in integrated communities and those who are not the first generation to attend college.
@inspiration12 I’m not aware that the Supreme Court has addressed it, but I think race and sex would be treated the same way and the same rules would apply. The engineering school can’t set a quota for women anymore than it can for a particular race. But someone would have to sue to find out if I am right.
Is it not as simple as just eliminating race as an explicit criteria? UT’s holistic approach can be anything it wants it to be, like other schools…