Bench Memos

“Marginally” Dishonest?

In a ruling last week, a divided panel of the Fifth Circuit rejected a constitutional challenge to the University of Texas’s use of racial classifications in its admissions process. Writing online for the New York Times, Linda Greenhouse extensively praises the majority opinion. I haven’t yet had time to read the ruling, so I have no comments on it or on Greenhouse’s praise. But I was struck by this assertion of hers:

[T]he [Supreme Court’s] decision last June [in Fisher v. University of Texas] alarmed the world of higher education, where race is commonly — even if marginally — a factor in the overall admissions picture.

“Marginally”?!? As UCLA law professor Richard Sander and legal journalist Stuart Taylor, Jr. discussed in their amicus brief in Fisher, the racial preferences that UT and other universities use for African-Americans and Hispanics “are very large indeed”:

For example, among freshmen entering the University of Texas at Austin in 2009 who were admitted outside the top-ten-percent system, the mean SAT score (on a scale of 2400) of Asians was a staggering 467 points and the mean score of whites was 390 points above the mean black score. In percentile terms, these 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. [Emphasis added.]

I suppose that Walter Duranty, another longtime reporter at the New York Times, might likewise have said that the food shortages in the Soviet Union in the 1930s were “commonly—even if marginally—a factor” in the lives of Ukrainians.

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