Bench Memos

A few Fisher v. Texas resources

In light of last week’s Fisher oral arguments on racial preferences, I wanted to draw attention to a few resources on the topic.

The first is a Supreme Court amicus curiae brief opposing racial preferences, filed by my organization, the Judicial Crisis Network, in conjunction with the Asian American Legal Foundation.  An excerpt:  

While there is no doubt that diversity is valuable, true diversity is found only at the individual level, created by individual differences in ability, experience, interest, opinion, and other personal qualities, judged without resort to the invidious shortcut of racial stereotyping.  Racial diversity is no more than a false proxy for individual diversity, perpetuates and exaggerates the role of race and racial stereotypes in government and society, and makes impossible the goal and ideal that individuals be judged by the content of their character, and not the color of their skin.  Indeed, racial diversity is literally only skin-deep.

The second is an interesting piece in the New York Times by David Leonhardt entitled “Rethinking Affirmative Action.” Leonhardt observes that during the oral arguments, racial-preference opponents appealed to fairness, while their supporters did not. Supporters promoted diversity that focuses “on elites from every race,” instead of disadvantaged students:

Black and Latino college applicants, as well as athletes and so-called legacies, receive large preferences — the equivalent of 150 to 300 SAT points. Low-income students, controlling for race, receive either no preference or a modest one, depending on which study you believe. At the country’s 200 most selective colleges, a mere 5 percent of students come from the bottom 25 percent of the income spectrum, according to Anthony P. Carnevale of Georgetown.

While Leonhardt supports socioeconomic-based preferences, a Wall Street Journal op-ed by Richard Sander and Stuart Taylor Jr. shows why these kind of preferences could harm those it aims to help:  

There is now increasing evidence that students who receive large preferences of any kind—whether based on race, athletic ability, alumni connections or other considerations—experience some clear negative effects: Students end up with poor grades (usually in the bottom fifth of their class), lower graduation rates, extremely high attrition rates from science and engineering majors, substantial self-segregation on campus, lower self-esteem and far greater difficulty passing licensing tests (such as bar exams for lawyers).

The most encouraging part of this research is the parallel finding that these same students have dramatically better outcomes if they go to schools where their level of academic preparation is much closer to that of the median student. That is, black and Hispanic students—as well as the smaller numbers of preferentially admitted athletes and children of donors—excel when they avoid the problem of what has come to be called “mismatch.”


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