Bench Memos

Re: “Marginally” Dishonest?

A follow-up to my post yesterday: In its ruling last week in Fisher v. University of Texas, the Fifth Circuit panel majority acknowledges (if rather backhandedly) that the University of Texas’s use of race in its so-called “holistic review” process was far from marginal:

Given the test score gaps between minority and non-minority applicants, if holistic review was not designed to evaluate each individual’s contributions to UT Austin’s diversity, including those that stem from race, holistic admissions would approach an all-white enterprise. Data for the entering Texan class of 2005, the first year of the Grutter plan, show that Hispanic students admitted through holistic review attained an average SAT score of 1193, African-American students an 1118, and white students a 1295. For the entering class of 2007, the last class before Fisher applied for admission, the corresponding data were 1155 for Hispanic students, 1073 for African American students, and 1275 for white students, this from a universe of underperforming secondary schools. [Emphasis added.]

The first sentence of the passage above strikes me as obfuscation. Given that the plaintiff wasn’t trying to exclude from the holistic-review process anything other than consideration of race and ethnicity, I gather that what the majority really means is:

Given the test score gaps between minority and non-minority applicants, if holistic review was not designed to evaluate each individual’s racial or ethnic contribution to UT Austin’s diversity, holistic admissions would approach an all-white enterprise.

(I’m unclear whether the majority is including Asian-Americans in the “all-white” category or whether their numbers explain why race-free holistic admissions would only “approach an all-white enterprise.”)

Relatedly, a reader writes:

On “marginally”: It is interesting to me that proponents of affirmative action (1) routinely try to sell it to the public on the “it is just a feather on the scale” model, the theory being that it only ever operates as a tie-breaker between two otherwise “clearly qualified” candidates, and (2) at the same time are quick to decry and lament the steep drops in minority enrollment that public universities have experienced when forced to comply with bans on the practice.  

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