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Does It Violate the Constitution to Not Admit Students Who Wouldn’t Be Admitted Anyway?

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The Supreme Court seems poised to rule all public affirmative action programs unconstitutional, although Anthony Kennedy might step in with another one of his “affirmative action might be permissible in theory although it never is in practice” specials. This would be regrettable, as well as revealing the “originalism” of Thomas and Scalia for what it is. Jamelle Bouie reminds us of an instructive fact about this particular plaintiff:

What’s striking about this case—and what makes it frustrating to some observers—is the curious question of Fisher’s academic record. Put simply, as Nikole Hannah-Jones documented for ProPublica, affirmative action wasn’t her problem.

[…]

Neither special circumstances nor grades were determinative. Of the 841 students admitted under these criteria, 47 had worse grades than Fisher, and 42 of them were white. On the other end, UT rejected 168 black and Latino students with scores equal to or better than Fisher’s.

To call this discrimination is to say that Fisher was entitled to a space at the UT Austin, despite grades that didn’t make the cut. It’s worth pointing out that the university gave her the choice of transferring from a satellite school, which she rejected.

Despite the “taking slots from people who deserve them” narrative so beloved by opponents of affirmative action, the “victims” are highly likely to be these kinds of very marginal cases, coming from the part of the applications process where distinctions are essentially arbitrary. Using diversity is a criteria in making these otherwise arbitrary distinctions isn’t bad policy and doesn’t violate the Constitution.

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  • J. Otto Pohl

    University and college admissions are neither wholly based on merit nor do they provide a representative sample of the racial composition of the US. This leaves them in a middleground that leaves a number of people unsatisfied. As a thought experiment what would happen if universities actually went all the way with Affirmative Actions and instituted quotas? If 15% of admitted students had to be African Americans (probably at the expense of Asians and Asian Americans) what would be the result? I am not sure what it would be. But, the mushy middle between meritocracy and racial representation doesn’t satsify either position.

    • TribalistMeathead

      I’ve heard several people who are anti-affirmative action say “well, I’m also opposed to legacy admissions.” Which is nice, but as long as universities rely on alumni donations to any degree, legacy admissions aren’t going anywhere any time soon.

      • J. Otto Pohl

        I am not oppossed to Affirmative Action. I think meritocracy under the best of circumstances is a myth and that diversity has far reaching benefits. But, we should be more honest about this. Universities and colleges give consideration of diversity for a whole host of factors beyond race including geographical origin and this is generally beneficial to the institution. This sometimes results in admitting marginal students. People on admissions committees understand this. But, I don’t think outsiders fully understand it.

        • TribalistMeathead

          I didn’t think you were, your post just triggered that thought re opposition to affirmative action and legacy points. In general, I think opposition to affirmative action is the unholy alliance of “someone is getting something they don’t deserve and/or I deserve but didn’t get” and the expectation that admissions decisions be wholly objective (which is impossible for any institution that includes essays/personal statements or interviews as part of their admissions criteria).

      • dilan

        The question should be what they are going to do about legacy admissions?

        As of now, poverty is not a suspect class under the equal protection clause (a real black hole in our constitutional law– of course it should be) and there’s no movement whatsoever towards any sorts of laws banning private schools, or even just private schools with financial aid, from giving out legacy admissions or other preferences to donors and their children.

        There’s actually lots of highly problematic things about college admissions. And race-based affirmative action IS problematic, for two basic reasons, it doesn’t give a preference to whites who come out of poverty, and it basically sets an upper ceiling on Asians (a historically persecuted minority) which is similar to the maximum quotas of Jews in years past.

        But of course the right wing project is not to reform the whole thing. It’s just to take the one thing away that allows a lot of blacks to go to college. And in that context, arguments about legacy preferences are a distraction.

        • Unemployed_Northeastern

          Exactly. Because socioeconomic status is not a protected class, any talk of “class-based AA” is necessarily dead on arrival. The policy can’t be enforced, selective colleges don’t actually want a student body of poors or even middle class students, and even arguing such a system were to take hold, it will take Richie Rich approximately five minutes between getting the rejection letter from HYPS/etc and filing suit for taking someone on Pell Grants instead. If Fisher ultimately wins *her* case (*her* because she is remarkably absent from the 5th Circuit and USSC opinions), it will already create a dangerous precedent for aggrieved wealthy rejectees to sue their putative alma maters for accepting just about anybody else.

          • Just_Dropping_By

            it will take Richie Rich approximately five minutes between getting the rejection letter from HYPS/etc and filing suit for taking someone on Pell Grants instead

            And what, pray tell, would be the cause of action? SCOTUS is going to find a constitutional right for rich people to go to the college of their choice? I’m curious as to how that reconciles with the theory that big business always wins in the Roberts Court.

            • Unemployed_Northeastern

              OK, that last bit was a bit half-baked. However, the point is because wealth/income/socioeconomic status is not a protected class, selective colleges have the right to discriminate in favor of wealthy applicants, as they have done since before the American Revolution.* Heck, one can argue that every college without a need-blind policy (which is most colleges) is explicitly saying it favors wealthy applicants over all others. Hence all of this talk of socioeconomic AA is just silly. If colleges don’t want them (and they don’t; poor students cost more than wealthy students and have much smaller rolodexes), they aren’t going to accept them and cannot be forced otherwise. If affirmative action is repealed, it will be replaced by… nothing.

              *I was just reading William Fowler’s biography of Samuel Adams. In the chapter regarding Sam’s formative years, Harvard’s admissions scheme comes up. It was as follows:

              “According to college [Harvard] practice, incoming students were ranked by their family’s standing in the colony. The ordering principles were as follows: (1) son of the governor of the colony, (2) lieutenant governor, (3) members of the governor’s council, (4) justices of the peace by date of commission, (5) sons of alumni, and (6) the rest, generally about half the class, by intellectual promise.” (page 15, Samuel Adams: Radical Puritan, William M. Fowler, Jr.)

        • matt w

          Race-based affirmative action does not set a ceiling on Asians. Even if you had a strict quota system mandating a certain number of black and Latino admissions, there would still be lots of spaces left open for Asians to get into.

          What sets a ceiling on Asians is colleges discriminating in various covert and overt ways because they don’t want to let in too many Asians. Legacy and athletic admissions are part of that (or at least were around 1990 when Harvard got sued for not letting in enough Asians). Getting rid of race-based affirmative action won’t change that one bit.

          • Unemployed_Northeastern

            As I wrote elsewhere in this thread, Harvard slipped out of that suit and concomitant Department of Education civil rights investigation when it was discovered that once the white legacies and recruited athletes – the overwhelming majority of each group – were removed from the equation, the SAT and GPA scores of accepted Asian-American and white students became virtually identical. The DOE, being as rife with Ivy privilege as any other cabinet-level department, gave legacy and athletic admissions a free pass because they were in the legitimate interests of the university, and that was that. Harvard still has the same admissions dean today.

          • dilan

            It depends. When Prop 209 passed, Asian enrollment skyrocketed in the UC system, and I’ve heard from some sources that there was some really damaging statements out there in some of the litigation by university officials talking about “too many Asians” and ensuring the class was no more than 25 percent Asian.

            So I suspect at least some affirmative action programs substantially reduce Asian enrollment. (And, by the way, the stated theory of “diversity” requires it. That’s the whole point– you can’t have too many of any one race.)

            • matt w

              there was some really damaging statements out there in some of the litigation by university officials talking about “too many Asians” and ensuring the class was no more than 25 percent Asian.

              So I suspect at least some affirmative action programs substantially reduce Asian enrollment.

              I’m kind of stunned that you think that this is “affirmative action programs reducing Asian enrollment” and not “a deliberate attempt by deans to reduce Asian enrollment.” The deans are saying that they want to limit Asian enrollment! This isn’t because of affirmative action, because they could easily have affirmative action for black people and Latinos and also have a high Asian enrollment. This is because they want to limit Asian enrollment.

              And, by the way, the stated theory of “diversity” requires it. That’s the whole point– you can’t have too many of any one race.

              Unless affirmative action had got to the point where the proportion of white enrollees fell below the proportion of black or Latino enrollees, this is simply not true. The idea is that you need representation of lots of different races. A class that was, say, 50% Asian, 20% white, 20% Latino, and 10% black would fit the bill.

              Affirmative action and Asian enrollment are only in tension if you assume that there will also be lots and lots of white students.

              • matt w

                I see that white enrollment has in fact fallen below Latino enrollment–but since it’s still way above black enrollment, and would be even if UC reinstated affirmative action and kept the share of Asian-American enrollment as high as it is, the point stands. Affirmative action doesn’t prevent Asian-Americans from being the plurality or knock white enrollment down to where there’s a problem from a diversity standpoint.

            • stryx

              There’s a story in the LA Times about this today

              Among ethnic groups in California, Asian Americans once again won the largest share of UC freshman admission offers, 36.3%, up from 36% last year, and their percentages were above 40% of offers at several campuses, including UCLA, Irvine and Berkeley. Latinos were next, comprising 29.6% of those admitted, up from 28.9% last year. Whites were 25.4%, down from 26.7%, and African Americans remained at 4.3% of the offers.

          • Warren Terra

            I feel that all this discussion of “Asians” is confusing, in one critical way: it conflates our fellow Americans who are of Asian heritage (while propagating stereotypes about academic success in this community that are far more complicated) with foreign students – actual Asians. The University of Washington, for example, is enrolling vast numbers of Chinese citizens because they arrive trailing huge sums of money, paying the enormous non-resident tuition. I don’t know whether they are receiving special consideration to help them gain admission to the school (though I’d hardly doubt it), but there certainly has been a policy change to encourage their enrollment, and they are taking slots that in previous years would have been filled with Americans of some or another ethnic or economic background.

  • Gwen

    She probably could have gotten into Texas A&M. Just sayin.

    • mds

      Hell, given that she’s either a moronic puppet or a willing reactionary tool, you’d think she wouldn’t have been so eager to attend a flagship state university that presumably de-emphasizes being a brainless spewer of Fox News cant.

      She ended up attending Louisiana State, and now has a job in finance. Which is why the harm she’s claiming consists of “possibly having been able to land a better first job via U of T’s alumni network,” and the damages she’s seeking are the refunding of her application fee. It’s gotta be really frustrating for the 5th Circuit to have been handed such an obvious slam dunk against this entitled little racist shit and her deep-pocketed conservative backers, only to have the Supreme Court call a do-over. And now they’re likely to out-and-out reverse.

      • efgoldman

        It’s gotta be really frustrating for the 5th Circuit….

        Speaking of the fifth circuit, did you see who issued the order today for LA, MS, and TX to stop screwing around, and issue same-sex marriage licenses already? It was Smith, who I think is the same judge who admonished Obama’s DOJ lawyers from the bench and made them submit some kind of high-school paper about a point of law, way back in the beginning of the administration.

      • Gwen

        OTOH, Texas is just full of entitled little snots. I went there.

        Who needs diversity when you can have more obnoxious suburban white kids?

        • Ahuitzotl

          I’m going with the assumption that you met lots of them, not the (to me) straightforward implication that you were one of them

        • Karen24

          I went there in the early 80’s, and my godson went there from 2011 until 2014. Based on Lance’s experience the number of entitled twits has declined under the top 7% admission rules.

  • efgoldman

    Using diversity is a criteria in making these otherwise arbitrary distinctions isn’t bad policy and doesn’t violate the Constitution.

    Sez you.
    But then, you’re not an original textist constitutional conservative who gets to wear a long, black robe to work, under which he’s probably naked, and say stream-of-consciousness stupid things from a high bench, and fuck with people’s lives, because you can.

    • Ahuitzotl

      Really? Cos I always envisage Scott at work, naked except for a long black robe, saying stream of consciousness things. OK, so we need to have a Gofundme for his high bench.

  • Barry Freed

    My impression* is that the Roberts court has made a lot out of the question of standing in a variety of cases. So if she was such a mediocre student that she wouldn’t have gotten in anyway how the hell does she have standing to bring this suit and have it get taken all the way to the SCOTUS?

    *Admittedly not so well-informed.

    • Joe_JP

      standing is sort of a game of Calvinball when it comes to affirmative action cases & probably a bit in general

  • howard

    when this kind of discussion comes up, i am truly unable to figure out what the right-wing notion is here? that applicants to college can be ranked by some sort of objective metric that can clearly tell us who is #1 and who is #27 and who is #3459?

    even by right-wing standards, that is an insane notion.

    • efgoldman

      even by right-wing standards, that is an insane notion.

      Remember, these are the folks who tried to get a major statutory/regulatory framework thrown out because of one incorrect pronoun in one sentence. The only “insane notion” in their view is the possibility that they might lose.

      • matt w

        It was an incorrect preposition, not an incorrect pronoun. Therefore Adler and Cannon have declared your whole comment invalid.

        • Hogan

          herefore Adler and Cannon have declared your whole comment this entire blog invalid.

        • efgoldman

          Therefore Adler and Cannon have declared your whole comment invalid.

          Gakk! Does this blog have a corner to which I will be banished for the day, to sit with a dunce cap?

          • EFG –

            I’m sure you’ll be glad to hear that the RI board of registration just sent me a web survey to discuss my satisfaction with how they handled my license renewal, including specifically asking me to compare whether RI is better or worse than the other states in which I am licensed.

            I’m teaching Mini__B to always be gentle with little guys, so I was nice.

            • efgoldman

              I’m sure you’ll be glad to hear that the RI board of registration just sent me a web survey to discuss my satisfaction with how they handled my license renewal,

              Law license? Truck driver’s license? Plumber’s license?
              I didn’t know bears required licensing.

              • Ahuitzotl

                yes … its an unbearable burden

              • PE license. I are a engineer.

          • cpinva

            “Gakk! Does this blog have a corner to which I will be banished for the day, to sit with a dunce cap?”

            as long as that corner has an open bar, do you really care?

            • efgoldman

              as long as that corner has an open bar, do you really care?

              I’m a really cheap drunk – genetically very low capacity.

    • Unemployed_Northeastern

      The point is affirmative action does not primarily benefit white applicants, unlike most recruited athletes at highly selective colleges,* legacy admissions,** development cases, children of national politicians, the SAT-household income correlation, attendance at one of the proper private schools,*** etc, etc. Besides, it is axiomatic that one of those five URMs with lower scores than Fisher stole her spot because Republicans say it is axiomatic, and an axiomatic axiom is tautological. There’s no escaping it! Those 5 students didn’t steal it because they were minorities; it was because they were less qualified – and minorities! The 42 accepted white students with lower scores than Fisher? Uh, shut up! They were all qualified! Sometimes you can just tell these things, like Potter Stewart’s definition of pornography! And the 168 more qualified URMs than Fisher who were also rejected? Shut THE HELL up!

      /Republican talking point impression

      *See Princeton president emeritus William Bowen’s study “Reclaiming the Game,” among other studies. He found that the more selective the school, the greater the latitude afforded to underqualified applicants, and that most beneficiaries in the Ivy League (and similar) bracket play things like golf, squash, rowing, sailing, polo, etc. Sports that even most upper-class public high schools don’t offer.

      **Rich legacies, of course. Studies going all the way back to the early 1990’s have shown that legacy advantage disappears the second you apply for financial aid. Of particular interest is a Dept of Education civil rights investigation from the late 1980’s into alleged anti-Asian American admissions policies at Harvard. The DOE found that accepted Asian-American students at Harvard did indeed have notably higher SATs and GPAs than their white counterparts. That is, until the white legacies and recruited athletes were excluded from consideration. All of a sudden, the remaining white students had identical scores as the Asian-American students. Yeah, that was 25 years ago. Guess what? Harvard still has the same admissions dean (William Fitzsimmons).

      ***According to Pulitzer Prize-winning journalist Daniel Golden’s “The Price of Admissions,” even today, just 100 of America’s >37,000 high schools provide Harvard, Yale, and Princeton with just shy of 25% of their student bodies. 96 of those schools are private (and I’d wager anything that two of the four public schools are the exam school Boston Latin and Cambridge Rindge & Latin, which has had obviously had a long relationship with Harvard – and where the median house price this year was $1.3 million).

      • howard

        wow, i am going to have to look into golden: that stat about high schools is staggering, just staggering, about as perfect a summation of our class-ridden society as could be found.

        • Unemployed_Northeastern

          Whoops – went back to my notes; that stat comes from William Deresiewicz’s Excellent Sheep (page 208), not Daniel Golden’s “The Price of Admissions.” Still, I suppose it is a bit better than the era Jerome Karabel studied in “The Chose”; here are some of his better tidbits:

          – P. 200: in the 1930’s, 70 to 80% of Y’s freshmen were from prep schools
          – P. 228: 15 private schools provided ~50% of P freshman in 1932
          – P. 258: In 1955, when 52% of all applicants were rejected at H, the dozen leading prep schools had acceptance rate of 72% and the six St Grottlesex schools had acceptance rate of 74%, while Exeter and Andover had 79% acceptance.
          – P. 547: in 1954, Groton, Exeter, and St. Pauls sent roughly 2/3 of their grads to HYP.

          All three are very interesting reads in their own way; I’d recommend any and all of them.

          • howard

            thanks for the references.

            • Unemployed_Northeastern

              Karabel is the choice for an academic, historical/sociological look into HYP admissions from the late Gilded Age to about 2003 or so. Golden is the choice for an investigative look into present-day elite college admissions, not afraid to name names of either colleges or wealthy benefactors of nonmeritocratic college admissions policies. Deresiewicz is a rumination on the clout of wealth in college admissions, plus the larger problem that most students at these colleges aren’t really intellectually curious, just really good at taking tests and getting A’s. He also bemoans the Ivy/Little Ivy –> Econ major* –> Wall Street or MBB color-within-the-lines life progression, the preponderance of such people hitting their mid-30s and slowly wondering what the hell they are doing with their lives, has a devastating review of Amy Chua’s Tiger Mom, and is an all-around great book.

              *He claims that based upon his research, of the top 20 national universities and top 20 national liberal arts colleges according to USNWR, Economics is the most popular major in at least 26 of them.

        • Unemployed_Northeastern

          -duplicate-

          • Ahuitzotl

            OK, I duplicated, what do we do next

            • Unemployed_Northeastern

              Jinx?

        • Srsly Dad Y

          I guess I’m jaded. Of course I don’t deny the class angle, but wouldn’t we expect to see the same statistics to arise just because selective high schools exist? Total HYP admissions are about 4,400 per year. If 100 high schools send 1/4, or ~1,100, that means at those 100 (assuming it’s always the same 100), 11 kids per year, on average, out of classes of 200-400, go on to either H or Y or P. Of course, it’s much higher than that at, e.g., Stuyvesant, Bronx Science, Hunter College High (all free but selective publics), Sidwell, St. Albans/National Cathedral, and the Phillips schools, so at other schools in the 100, it’s less. I went from a regular old public school to an Ivy, but I would be amazed if it were not true that high schools that can select their students in huge metro areas could find a dozen a year for H/Y/P.

          • Unemployed_Northeastern

            Ah, but college admissions are holistic and not entirely meritocratic, so the question I would put to you is this: do colleges really care all of the plus factors that are really de facto wealth preferences, or do they just use them to weed out the nonmeritorious nonwealthy? Calendars full of community service time are impossible for low-income families where the kids work after school to help buy food. Most families can’t afford a few grand for personalized SAT tutoring to get that score up another 75 or 100 points. Forget about helping with those orphanages in the developing world or getting cultured with your teenaged Grand Tour. Hard to have 6 or 8 AP courses on the transcript if you are in an underfunded working class high school that doesn’t have 6 or 8 AP courses in the first place.

            The thing I really took away from Karabel’s ~550 page academic work on 20th century HYP admissions was that the criteria for admissions was always very carefully crafted to ensure a certain type of student (institutional fit and all that). That certain type of student always came from means. It’s not any different today.

      • efgoldman

        just 100 of America’s >37,000 high schools provide Harvard, Yale, and Princeton with just shy of 25% of their student bodies. 96 of those schools are private (and I’d wager anything that two of the four public schools are the exam school Boston Latin and Cambridge Rindge & Latin,

        Well, in a way, things used to be even more tilted. My dad graduated Boston Latin in 1933, with a C average, and went to Harvard (took a year off to earn the tuition). He was definitely not of any “privileged” class, not in the 1930s. A poor Jewish kid, first generation born in this country, who commuted to school.

        • tribble

          More recently, in the early aughties I had a roommate who worked for a program designed to help poor, mostly minority 8th graders in Boston navigate the process of applying for high school. She explained that the school system had a wide variety of high schools of widely varying quality and that most of the not-crappy ones required some sort of application. The problem, of course, is that this was completely off the radar of a lot of the parents and kids. She described it being fairly common for kids to show up at the high school closest to their house for their first day as freshmen only to discover they were supposed to be someplace else entirely.

          The situation in LA seems to be similarly complex, with even greater challenges in getting kids to more desirable schools if they are farther from their neighborhood.

          It’s almost like someone sawed 90% through the bootstraps.

        • Unemployed_Northeastern

          Yeah, Karabel relates a time when Lawrenceville accounted for more than 1/3 of the Princeton student body all by itself, IIRC. I’d be curious to see what percentage of Harvard students over the centuries have been graduates of Boston Latin (public exam school), Roxbury Latin (private school in Boston founded in 1641), Andover, Groton, Exeter, and Deerfield. No need to even include the Choates or Nobleses or Middlesexes in the equation; I bet those half-dozen schools alone get us somewhere in the 10% to 15% range.

          • tribble

            I’m suddenly curious about the geographic distribution of admitted students vs applicants at the Ivies. Are they selecting for an upper/upper-middle class student body that is representative of the country as a whole, or do they tend to regional preference?

            This doesn’t touch on questions of equity in opportunity, really, but it would be revealing in other ways.

            • Unemployed_Northeastern

              I’m not sure that kind of data is publicly available, and I’ve not seen it in any of the works I’ve listed. At nominally less selective and/or cash-strapped institutions, though, international students (who aren’t eligible for student loans and tend to pay sticker) are the coin of the realm, so to speak. Inside Higher Ed had a story earlier this year about how 10% of Illinois Urbana-Champaign is from China now.

              • tribble

                The UC is also struggling with the issue of out-of-state/international student populations rising to bring in tuition money.

                I’m not surprised the data on geography aren’t available. The private schools I’ve been associated with all had more students from near by than from far away, which could be due to the applicant pool (kids not wanting to get too far from home, baseline awareness, etc) or not.

                Just curious.

                • Unemployed_Northeastern

                  I have always suspected that the easiest way to get into a small, highly selective college – your Amhersts and Swarthmores and whatnot – is to be one of the like three applicants from Wyoming or Alaska that year. They love having the 50 state representation fact on the admissions homepage, and they aren’t flooded with applications to the extent Harvard/Stanford/Duke/whatever are. The three of you could all be dumbs as bricks, but at least one of you is getting in.

                • tribble

                  Heh. Story of my life, really.

            • kateislate

              From personal experience, I was once told that I was the only student admitted to Princeton from Alberta in living memory who was neither international-baccalaureate-accredited nor a hockey player. The admissions office wanted Canadians from across the country (it isn’t actually just empty space), but supported their other institutional interests through implementing the regional diversity plan (plenty of monied private school kids from the central provinces, and hockey players from the Prairies).

              Wouldn’t be super-surprised if they did something similar in-country.

      • Manny Kant

        God, horrendous. The sports thing is outrageous enough to make me want to campaign to end all these sports on some sort of trumped up grounds, the way leftist British people manged to get fox hunting banned on some dubious “cruelty to animals” grounds, when in fact they mostly just wanted to stick it to the aristos.

        Looking at the wealthiest public high schools in the wealthy suburban school district I grew up in (Montgomery County, Maryland), golf is the only one of those sports offered.

        • Unemployed_Northeastern

          Here’s one example of many: there are several prep/private school leagues in New England, but two utterly dominate rowing and one of their member schools win the national title virtually every year. Both men’s and women’s rowing. Rowing teams in the Ivies and Little Ivies and similar schools generally have the largest or second-largest number of participants (them or football). Coincidence?

          • Unemployed_Northeastern

            Lacrosse is another sport the elite colleges favor that was traditionally a New England and Mid-Atlantic prep school specialty, though its popularity is now spreading across America. A bunch of the prep schools around can boast multiple alumni that got to the NHL, too.

        • Davis X. Machina

          Some of those sports are highly localized — Haddonfield, NJ has HS crew, as do a number of Philly suburbs, but rowing’s always been big in that region.

          Boston, ditto, with sailing.

          Many preps, but English and East Boston HS are in there….

        • Ahuitzotl

          he way leftist British people manged to get fox hunting banned on some dubious “cruelty to animals” grounds, when in fact they mostly just wanted to stick it to the aristos.

          Um, no, the biggest contingent that did this, did it for entirely non-spurious cruelty-to-animals beliefs. I was in the UK while this was happening & initially took the view that traditions like that should be honoured, til I got shown a video of the ending of a fox hunt, which certainly convinced me of the barbarous cruelty of it.

    • MrMister

      “when this kind of discussion comes up, i am truly unable to figure out what the right-wing notion is here? that applicants to college can be ranked by some sort of objective metric that can clearly tell us who is #1 and who is #27 and who is #3459?”

      No one need think the metric is objective. I take it that the thought, rather, is just that the college is using a metric, that metric does generate a list of candidates ordered by rank, and that when the metric’s account of race influences the rank ordering in such a way as to drop someone out of the otherwise-admitted class, that person has a claim to discrimination on the basis of race–and this claim should be triumphant over other interests.

      Of these, I don’t think the first two are actually the ones on which supporters of AA should push back. IMO the idea that colleges evaluate incommensurable and unrankeable candidates in a way sensitive to their deep particularity is pseudo-mystical; it is philosophically unclear if anything at all is really incommensurable, let alone college candidates as exposed in some essays and a list of scores. And arguments from the rational choice literature teach a general lesson that surprisingly thin consistency constraints on preferences can wind up generating cardinal orderings of outcomes by goodness just ‘for free.’ So I find it regrettable that SCOTUS has struck down point and quota systems; imo there are good reasons to suspect point and quota systems are just more transparent and consistent than their counterparts, not otherwise fundamentally different.

      Rather, I think supporters of AA should push back on the very last point. My own view is that the public good of integration is of such tantamount importance that it justifies rejiggering things (especially in cases that, though not arbitrary, are very very close), even admitting that doing so may re-order candidate rankings as against race-neutral criteria and thereby leave some people saying, truly, that they were not admitted on the basis of their race. C’est la vie.

  • Unemployed_Northeastern

    More fun right-wing context into the Fisher case:

    – Fisher’s counsel is Wiley Rein, a DC litigation firm-cum-lobbying outfit set up by two or three ex-Reagan cabinet members.

    – Fisher’s funding comes from the Donors Trust, a right-wing private funding enterprise fueled primarily by the Kochs. As detailed by The Guardian last month, Donors Trust and its associated Donors Capital Fund also funneled $125 million to various organizations over the last three years to promote anti-climate change nonsense. http://www.theguardian.com/environment/2015/jun/09/secretive-donors-gave-us-climate-denial-groups-125m-over-three-years

    – Fisher’s go-between with Wiley Rein is Edward Blum, a family friend and founder (and sole employee) of “Project on Fair Representation.” He’s a former stockbroker and unpaid contributor to AEI who has been fighting against affirmative action ever since he lost a Congressional race to an African-American. http://www.reuters.com/article/2012/12/04/us-usa-court-casemaker-idUSBRE8B30V220121204

    • cpinva

      “He’s a former stockbroker and unpaid contributor to AEI who has been fighting against affirmative action ever since he lost a Congressional race to an African-American. http://www.reuters.com/article/2012/12/04/us-usa-court-casemaker-idUSBRE8B30V220121204

      and he blamed that on AA? maybe, just maybe, most of the voters just didn’t like him, thought he was an upper-class twit.

      as I looked at ms. fisher’s bona fides, compared to the others, it seemed to me, absent AA, she still wouldn’t have been admitted. what I found intriguing is that she had a 3.59 GPA, but was only able to pull an 1180 (out of 1600) on the SAT. something doesn’t quite smell right. of course, I’m assuming it to be a 3.59 out of a possible 4.00, because that’s the norm in my experience. 3.59 aint half shabby, so what happened on her SAT, she just blow it that day? seems like she should have been in the 1300 area, again assuming that 3.59 to be legitimate. assuming she did really well in the cores, what higher electives did she take (AP’s in anything?), and what extra-curriculars was she involved in

      anyway, I thought this was pretty funny, because the University of Texas/take your pick of branch, isn’t exactly considered one of the top schools, where I come from, not comparable to UVA, W&M, VT, etc. I’m also curious as to what kind of “finance” job she got out of school, bank teller maybe? it’s also been my experience that people who couldn’t cut it in the accounting program, went into finance, which generally doesn’t qualify them to sit for the exam.

      I kind of feel sorry for ms. fisher, whether she realized it or not, she was used as just a pawn, in the ongoing effort to return to the days of the all white higher education population, also part of the neo-confederate long-term plan.

      • Unemployed_Northeastern

        I didn’t read the USSC opinion with a fine toothcomb, but as far as I know, no court has ever given much weight to her ability to get into UT if there were no AA. UT said before trial that she simply wasn’t qualified under any circumstances, which was good enough to get the case tossed via summary judgment. This was upheld by the 5th Circuit, and the USSC remanded to have the 5th Circuit determine if the AA policy was Constitutional, not if Fisher should have gotten in.

        That being said, I’m from New England and have never thought of Vermont being anywhere near UT-Austin’s level. The heavy hitters are Berkeley, UCLA, Virginia, W&M, and Michigan, of course, but my take was UT-Austin was just underneath that tier alongside Chapel Hill. But that might just be USNWR Law School rankings impressing themselves upon me.

        • matt w

          By VT you mean Virginia Tech, right? Not University of Vermont aka UVM? The main thing about UVM is that it’s a lot smaller than Texas and UVA and Virginia Tech. William & Mary is a special case as a

          I’d also say that in my field, at least, UT-Austin is definitely considered better than the Virginia schools. Overall I think it’s one of the higher-end state research universities.

          • Unemployed_Northeastern

            Oh, I was referring to Vermont, which tries to pass itself off as a “Public Ivy” because it is one of the earlier public universities, but isn’t really any great shakes.

            • matt w
              • Unemployed_Northeastern

                …It’s a small world after all. But to be fair, a 77.6% percent undergrad acceptance rate and a 25th/75th percentile SAT score of 540/640 for reading and 540/650 for math isn’t quite in UT’s wheelhouse. I’m sure the UVM philosophy department is better, though! ;-) And not just because a fellow who rhymes with Crying Biter used to teach at UT. And it’s certainly better than UNH or UMaine, and probably URI and UMASS, for that matter.

                • matt w

                  UT’s philosophy department is definitely more prestigious than ours–it’s a major PhD program and ours isn’t. UMass has a pretty good PhD program too, though pound for pound I dunno, if those comparisons even make sense.

                  As I said part of the thing about UVM is it’s pretty small for a flagship state school research university, but it is a research university–so it’s nowhere near the UNCs or UTs or Wisconsins of the world, but it definitely has aspirations over a lot of state schools. Part of that unfortunately is that it doesn’t get a lot of money from the state so it’s expensive and is kind of in the safety school for the Ivys bracket.

                • Unemployed_Northeastern

                  @Matt W,

                  I meant that UVM the institution was superior to UNH, UMaine, UMASS, and URI. I have very little knowledge of individual philosophy departments.

      • Ahuitzotl

        Some people just dont examine well.

        And some people suck up to teachers with great skill and fervour (altho I’ll admit, if she had that sort of skill, she’d have found a griftier job than finance).

        • Unemployed_Northeastern

          “Some people just dont examine well.”

          And those people don’t get into elite colleges, rightly or wrongly. That is, unless they have an in of some manner. Or are applying to one of the test-optional colleges like Wake Forest or Bates or Smith.

    • snarkout

      Working largely on his own, with the financial support of a handful of conservative donors, Blum sought out the plaintiffs in the Fisher and Shelby County cases, persuaded them to file suit, matched them with lawyers, and secured funding to appeal the cases all the way to the high court. Abigail Fisher is the daughter of an old friend of Blum’s – a man who happened to call when Blum was in the midst of a three-year search for a white college applicant who had been rejected despite solid scores.

      He spent three years looking for a model plaintiff and Fisher was the best he could fine? Wingnut welfare at its finest.

      • Hogan

        See also King v. Burwell.

  • pbfriedman

    If the plaintiff doesn’t have the qualifications for admission even in the absence of the existing affirmative action program, doesn’t that render the constitutionality of the program moot and therefore deprive the Supreme Court of subject matter jurisdiction to decide what is, in this case, a purely hypothetical question and not an existing case and controversy?

    • cpinva

      that’s kind of what I thought too, but then there are the “5”. see above, my comment regarding ms. fisher’s GPA/SAT scores. am I missing something there?

    • Unemployed_Northeastern

      Yes. And Fisher’s attendance at and graduation from LSU pretty well eradicates any notion of damages or remedies. But that’s why the USSC has “constructive standing.” See, for instance, this essay over at scotusblog. http://www.scotusblog.com/2012/09/legal-scholarship-highlight-the-trouble-with-fisher/

  • libarbarian

    All credit to Mr Lemieux for clearly enunciating the concept of Scalia’s “Ladder of Abstraction” and why the proclaimed purity of his “Originalism” is just a pretentious crock of shit.

    • efgoldman

      the proclaimed purity of his “Originalism” is just a pretentious crock of shit.

      At least you can use a real crock of shit to fertilize the garden.

  • Bugboy

    Fisher’s dream was to go to UT, by her own admission, because her family went there. It wasn’t because they had a program she wanted to pursue, or that she got a scholarship there, or that her friends went there. Her claim that UT was the only place she could acquire the social contacts to succeed in life is at best, facetious. What she wanted at UT was a “legacy admission”.

    If she wanted a “legacy admission”, maybe she (and her family) should have considered an Ivy League university? I hear they excel at such things.

  • Shakezula

    But those minority students had better grades because of affirmative action! /shouty fauxhole

    I suspect the entire point of this case was to prove that that beeelyuns and beeelyuns of stupid blahs were being admitted ahead of genius-level white children. So this case has already been a massive fail for plaintiffs and naturally they’re going to push on to the Supreme Court.

    I sometimes think white people of a certain mindset would be sorry if aa went away. There would be one less thing to blame for the fact they’re abject failures.

    • The well of excuses is bottomless.

      • Shakezula

        I’m sure, but anything that allows them to compensate by blaming black people is a favorite, hence their love/hate relationship with aa.

    • matt w

      There are people still blaming ACORN for stealing elections. White people would absolutely keep blaming Affirmative Action for their failures even if it were outlawed–they’d just say that people were giving preferences to black people under the table, because THANKS OBAMA.

  • Rob in CT

    This is one of those things where the argument against is really simple/easy and explaining why it’s wrong takes time and requires that the person you’re explaining it to actually has some desire to get it. Which mostly they don’t.

    I sometimes think white people of a certain mindset would be sorry if aa went away. There would be one less thing to blame for the fact they’re abject failures.

    Inexhaustable supply.

  • sleepyirv

    Once again, the only judicial activist left are conservatives. We now have Fed Soc litigators create “cases or controversies” out of whole cloth by finding non-victims to sue for nominal damages so the courts will dismantle entire forms of public policy.

    • Davis X. Machina

      “You may not have a case but we can sure as hell gin up a controversy…”

      • efgoldman

        “You may not have a case but we can sure as hell gin up a controversy…”

        First paragraph of the RWNJ handbook: Get your talking point; scream about it long, loudly, and in unison; if the tantrum doesn’t get you your way, hire a passel of lawyers who think up is down, east is west, left is right….

  • rodger that

    Well, wait a minute. Did you catch the difference in the way he was using the terminology to get those stats?

    He wrote: “Of the 841 students admitted under these criteria, 47 had worse grades than Fisher, and 42 of them were white. On the other end, UT rejected 168 black and Latino students with scores equal to or better than Fisher’s.”

    But “worse grades” is not “lower marks in high school.” It means lower admission committee generated scores after the adcomm factored in high school academic performance, test scores, activities, essays, and race. The article doesn’t reveal how those factors were weighted and does not say what weight was given to race — which is the central question being debated.

    The author wants readers to conclude that 168 black and Latino students with higher GPAs than Fischer got rejected. If so, then she’d have no legitimate complaint. But because the author was actually referencing weighted adcom grades and because we don’t know what weight the adcoms gave race, we cannot conclude that, race aside, Fisher’s credentials were lower than the other students the author mentions.

    • snarkout

      If so, then she’d have no legitimate complaint. But because the author was actually referencing weighted adcom grades and because we don’t know what weight the adcoms gave race, we cannot conclude that, race aside, Fisher’s credentials were lower than the other students the author mentions.

      Not really, no:

      The summary judgment record is uncontradicted that—due to the stiff competition in 2008 and petitioner’s relatively low [Academic Index, the race-blind portion of admissions based on grades, curriculum, and test scores] score—petitioner would not have been admitted to the Fall 2008 freshman class even if she had received “a ‘perfect’ [Personal Achievement Index, based on race-blind judgment of admission essays, and then a bunch of personal factors, including extracurriculars and “special circumstances”, the latter of which includes race] score of 6.”

      So we know that her academic credentials were insufficient to gain her admission, even if we don’t have an exact breakdown of how scoring would work in a hypothetical race-neutral admissions scheme.

      • matt w

        There are two different things at issue here. One of them is the normal admissions process, which she would’ve been rejected from for meh grades and scores even if she’d had a maxed-out PAI. The other is a now-discontinued summer admissions process, which is the one with the comparison to specific numbers of students–there, in fact the only comparison is to the combined score Rodger is talking about. (Which is also why the numbers of applicants are so low.)

        The opinion seems to be arguing that the racial composition shows that they don’t use the combined score as a pure determinant of outcome, and that she can’t argue that she was denied a place purely on the basis of race, since other white people with a lower score on the measure that she claims was the one that discriminated against her on race were admitted–which seems sensible.

  • rodger that

    Slate has posted a correction confirming my comments above. By acknowledging that the author was discussing the race-conscious, weighted scores done by adcoms, they have exposed the pithy quote highlighted in the original post to be false and misleading. And, for that, matter it renders the entire article pointless.

    • matt w

      It doesn’t render the article pointless–if you had looked at the context, you would’ve seen that her tests and grades weren’t good enough for the normal admissions process, no matter how high her PAI score had been. The scores you refer to were for a summer admissions process which it sounds like was for borderline cases who were trying to plead for a second chance to be let into UT Austin.

      And that’s been discontinued anyway, so if the remedy were to stop considering race in those admissions it would be perfectly moot.

      • rodger that

        Note that I’m discussing a comparison offered by the author and cited in the original post as referencing a fact (that the comparison does not in fact reference). It may be the case that AA is morally justified (as I have long felt, in most circumstances). It may be the case that she was not a strong candidate. Lots of other things might be the case. But the central point of that article — the shocking fact that jumps out at first reading and that the original post highlighted — isn’t true. That’s what makes the article pointless.

        Slate added the correction on that very comparison because it was, in the original, falsely stated.

        Now, we may want to have lots of other discussions about AA and this candidate and related issues. But that article is pointless. It hinged on a false comparison.

      • rodger that

        And even if you and I will still disagree, wouldn’t you agree that given that Slate needed to issue a correction of that quoted passage, the original post should make the same correction?

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