The University of Texas Case and the Unintended Victims of Racial Preferences?

by Ed Whelan

Pending before the Supreme Court is Abigail Fisher’s certiorari petition inviting the Court to review the Fifth Circuit decision (in Fisher v. University of Texas) that rejected her claim that the University of Texas’s use of race in its admissions program violated the equal-protection guarantees of the Fourteenth Amendment. (The Fifth Circuit voted against rehearing en banc by a vote of nine to seven; Chief Judge Edith Jones’s dissent from the denial of en banc rehearing is here.)

Fisher’s core argument is that the Fifth Circuit’s decision violated the Court’s 2003 ruling in Grutter v. Bollinger by giving far too much deference to university administrators. For more background and discussion, I’ll refer the interested reader to the cert petition and to this new Weekly Standard article by Terry Eastland.

Six sets of amici filed briefs last week in support of Fisher’s petition. (Those briefs should be available soon at SCOTUSblog’s case page.) For present purposes, I’d like to highlight a provocative new line of attack on racial preferences made in two of the amicus briefs—one by law professor Richard Sander and journalist Stuart Taylor Jr., and the other on behalf of three members of the U.S. Commission on Civil Rights, Gail Heriot, Peter Kirsanow, and Todd Gaziano.

As Sander and Taylor summarize it, “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 focuses on the so-called academic “mismatch” effect of racial preferences—that is, the effect of placing the recipients of racial preferences in more advanced academic settings than their objective qualifications would warrant.

It is, of course, not surprising that anyone who is overmatched by his academic environment would tend to do poorly compared to others who are well matched for that same environment. (Sander and Taylor note that the “median black receiving a large admission preference to an elite law school … ends up with grades that put her at the 6th percentile of the white grade distribution.”)

But what recent research has discovered, according to the two amicus briefs, is the more striking finding that, across various measurements, the recipients of racial preferences perform worse than similarly qualified minority students attending less elite institutions. For example, mismatched students transfer at a higher rate out of science majors, are less likely to pursue a doctorate, are less likely to become college professors, have lower graduation rates from law school, and have much lower success rates on bar exams. Again, in each case the comparison is to similarly qualified minority students attending less elite institutions, so the broader implication is that racial preferences affirmatively harm many of their intended beneficiaries.

According to a separate amicus brief filed by the Asian American Legal Foundation, another group of minority students harmed by the University of Texas racial-preferences admissions program consists of Asian-Americans. Here the harm is more straightforward, as the UT admissions program “prefer[s] Hispanics over similarly situated Asian applicants,” even though there are more Hispanic students attending UT than there are Asian students. It’s much less clear, though, whether the harm to Asian-Americans can fairly be deemed unintentional.

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