Should the Court Uphold UT’s Race-preferential Admission Policy?

[Nous]

I've personally never come across a justification for why athletics is even a consideration for someone going to an institute of higher learning. And yet, it seems to be pretty acceptable to have quotas concerning athletics as the first and foremost factor in students admissions.

Admitting students on the basis of an athletic scholarship has nothing to do with race-preferential admission policies. There is no reason to conflate the two.

Sure, except in this case the "racial disparity" is meant to address a "racial disparity" that already exists within school admissions, and in general, the larger segregation within society.

You said you were unable to define what a "racial disparity" would be in college admissions, yet here you are claiming that such "disparity" exists.

UT's Top 10% Plan obviously creates no "racial disparity," as it is a race-neutral admission policy. The only way to create a "racial disparity" in college admissions is to discriminate on the basis of race, such as affirmative actions policies do.

Someone should let them know that athletes take up far more spots from Asian American students then affirmative action policies.

Where did you get that idea?

Under UT’s Top 10% Plan (which any university can implement some version of), admissions of African American and Hispanic students rapidly increased to the levels created by the previous affirmative action policy.

Factually unsupported.

https://utexas.app.box.com/s/8ctu8vo7fja7s3w7ahgfjsp5jeckh43d

UT's Brief does not dispute any of the following from Fisher's Brief (my bolding):

UT notes that from 1997 to 2002 the number of African-American “holistic” enrollees dropped from 140 to 116--a 17% decrease not, as UT claims, a reduction by “half.” Resp. Br. 38. At the same time, the number of African-American Top 10% enrollees more than tripled, rising from 50 in 1997 to 156 in 2002, JA 177a, thereby increasing the total number of African- American enrollees from 190 to 272. Id. Likewise, the rapidly increasing number of Hispanic Top 10% enrollees during this timeframe overwhelmed the reduction in the number of Hispanic “holistic enrollees.”5 Id. In total, there was an increase of 327 Hispanic and African-American enrollees, representing a 30% jump in minority enrollment during this five-year period. Id.

[. . .]

UT’s use of race could have resulted in no more than a few dozen additional minority enrollees. App. 247a-251a; Pet. Br. 46-47. UT attempts to inflate the number of minority enrollees whose admission was attributable to race, for example, by arguing that the relevant unit of measurement is admittees, not enrollees. Resp. Br. 46. But students admitted to UT who choose to enroll elsewhere cannot impact diversity at UT. App. 247a n.18. Ultimately, UT does not contest the fact that its use of race had only a “modest impact” on minority enrollment. Id. Nor could it. UT does not measure, much less track, “how many of these students would not have been admitted but-for the use of race as a plus factor.” App. 250a.

[. . .]

Further, where (as here) racial classifications have only a “minimal impact” in advancing the compelling interest, it “casts doubt on the necessity of using such classifications” in the first place and demonstrates that race-neutral alternatives would have worked about as well. Parents Involved, 551 U.S. at 734; see also id. At 790 (Kennedy, J., concurring). In 2008, after classifying 29,501 applicants by race, UT enrolled 216 African-American and Hispanic students through the race-affected AI/PAI analysis. App. 247a-49a (Garza, J.). Even assuming that race was a decisive factor for each student admitted outside the operation of the Top 10% Law, UT’s use of race still could have accounted for, at most, approximately 3% of the in-state freshman class. App. 249a. But, in fact, race was not decisive for many of the 216 “underrepresented” minority students. See supra at 10. UT does not measure or have any way of knowing how many applicants actually benefit from the consideration of race, see supra at 9, but the number is undoubtedly “tiny.” App. 328a (Jones, J.)

Footnote 8:

In 2003, UT proudly announced that it had “effectively compensated for the loss of affirmative action.” JA 396a.

http://www.americanbar.org/content/.../briefs_2015_2016/14-981_pet.authcheckdam.pdf

There's a lot to unpack there. Is there a specific element you are wanting to address?

Yes, the fact that affirmative action policies harm the very class of racial minority students (especially African Americans) that such policies are intended to benefit. Such policies achieve this harm by putting students in classes where their grades are at the bottom of the class, which is the primary factor that leads to high attrition rates. This leads to the conclusion that affirmative action policies have apparently resulted in the existence of fewer African American physicians, scientists, engineers, lawyers, professors than if there had never been any such policies.

The Supreme Court has upheld multiple programs

The only specific policy that the Court has upheld was the UM Law School policy upheld in Grutter. This policy was premised on the idea of there needing to be a "critical mass" of (certain) racial minority students. No one was able to define what a "critical mass" is.

The review identified at least 27 schools where athletes were at least 10 times more likely to benefit from special admission programs than students in the general population."

http://espn.go.com/ncf/news/story?id=4781264

Admission of students due to their athletic performance at least doesn't violate the laws that prohibit racial discrimination by the government.

 

[Nous]

I believe the best understanding on the innumerable traits (physical and mental) is overlapping bell curves with different center points.

You're saying you believe the different center points for "mental traits" occur according to race? I know of no reason to believe that.

 

[dust1n]

Admitting students on the basis of an athletic scholarship has nothing to do with race-preferential admission policies. There is no reason to conflate the two.

Actually, it's arguably worse. Can you please explain to me how automatically reserving a 6th of the new positions in classes based solely on whether or not they can play sports benefits academy and scholarship? I'm still lost here on why it's totally okay to select students for scholarships on the premises that they can kick a ball 70 yards, but why it's an egregious act of discrimination against Asians when race is given any considering for the admissions process?

You said you were unable to define what a "racial disparity" would be in college admissions, yet here you are claiming that such "disparity" exists.

I'm sorry, where did I say I unable to define a racial disparity is? A racial disparity in this matter would mean that a minority population receives less college admissions overall when compared to the general population. The manner of determining whether such a thing exists, and whether it is getting or better over time is a matter of statistical analysis of data.

UT's Top 10% Plan obviously creates no "racial disparity," as it is a race-neutral admission policy. The only way to create a "racial disparity" in college admissions is to discriminate on the basis of race, such as affirmative actions policies do.

The UT Top 10% Plan is dumb for a number of reasons. But it doesn't create racial disparity as far as I'm aware of it, just that contributes little to fixing and already preexisting disparity that has existed since schools were first desegregated?

Where did you get that idea?

Pretty simple. More spots in an incoming class are generally held for sports scholarships as a primary consideration, and this would generally way outnumber the number of people who admitted on the basis of AA.

UT's Brief does not dispute any of the following from Fisher's Brief (my bolding):

UT notes that from 1997 to 2002 the number of African-American “holistic” enrollees dropped from 140 to 116--a 17% decrease not, as UT claims...[/snip]

http://www.americanbar.org/content/.../briefs_2015_2016/14-981_pet.authcheckdam.pdf

The 10% rule was done by the legislature, and it is race-neutral up to a certain point. If I understood you correctly, the 10% does not account for the total jump of minority students.

"Contemporaneous with UT’s alteration and expansion of its admissions criteria, the Texas Legislature formulated its own response to Hopwood. It passed a law requiring UT to grant admission to any Texas high school student graduating in the top 10% of their class. H.B. 588, Tex. Educ. Code § 51.803 (1997) (“Top 10% Law). The Top 10% Law took effect for the 1998 admissions cycle. From that point forward, UT’s AI/PAI system continued to be used for two purposes. First, it was used to fill those seats in the entering class that were not taken by students admitted under the Top 10% Law. Second, it was used to determine program placement for all incoming freshmen, including those admitted under the Top 10% Law. Fisher I, 133 S. Ct. at 2416-17. The combined effect of the Top 10% Law and the AI/PAI system was to steadily increase African-American and Hispanic admissions, “result[ing] in a more racially diverse environment at [UT].” Id. at 2416. In 1999, UT announced that its “enrollment levels for African American and Hispanic freshman … returned to those of 1996, the year before the Hopwood decision.” JA 393a. Moreover, UT learned that “minority students earned higher grade point averages [in 1999] than in 1996” and that they had “higher retention rates.” Id. UT proudly announced that the Top 10% Law “had enabled [it] to diversify enrollment … with talented students who succeed” and led to the enrollment of “a more representative student body and … students who perform well academically.” Id. This upward trend in minority enrollment continued unabated. In 2003, UT announced that it had “effectively compensated for the loss of affi rmative action.” JA 396a. That year, UT “brought a higher number of freshman minority students—African Americans, Hispanics and Asian Americans—to the campus than were enrolled in 1996.” JA 412a. By 2004, the combined system produced an entering class that was 21.4% African-American and Hispanic. Fisher I, 133 S. Ct. at 2416. This system also resulted in a steady increase in the admission of AsianAmerican students who constituted 17.9% of the 2004 class. App. 166a. 7 Nevertheless, on June 23, 2003—the very day Grutter was decided—UT announced it would “modify its admission procedures to ... combine the benefits of the Top 10% Law with affirmative action programs that can produce even greater diversity.” JA 406a-07a. To that end, in 2004, UT presented a “Proposal to Consider Race and Ethnicity in Admissions” (“Proposal”) to its Board of Regents for approval. SJA 1a-39a. The Proposal set forth two reasons for why racial preferences were needed at UT. First, they were needed to overcome “signifi cant differences between the racial and ethnic makeup of [UT’s] undergraduate population and the state’s population.” SJA 24a. Second, they were needed to achieve classroom diversity; that is, the presence of more minority students in smaller “classes of participatory size.” SJA 24a-26a; see App. 167a, 169a. UT’s Proposal included a classroom diversity study. The study defi ned “classroom diversity” as being satisfi ed only in classrooms where at least two African-American, two Hispanic, and two Asian-American students were present. SJA 69a-70a; App. 291a. This study focused on “a subset of undergraduate classes containing between 5 and 24 students.” Fisher I, 133 S. Ct. at 2416.1 UT determined that many of these “participatory” classes did not meet its classroom-diversity standard. SJA 70a."

I don't disagree that it helped, but it seemed you were applying this happened without any racial consideration at all, which is not the case. Perhaps I misunderstood you originally.

cont...

 

[dust1n]

Yes, the fact that affirmative action policies harm the very class of racial minority students (especially African Americans) that such policies are intended to benefit. Such policies achieve this harm by putting students in classes where their grades are at the bottom of the class, which is the primary factor that leads to high attrition rates. This leads to the conclusion that affirmative action policies have apparently resulted in the existence of fewer African American physicians, scientists, engineers, lawyers, professors than if there had never been any such policies.

"How could such a miscalculation about the effects of affirmative action occur? As University of California, Los Angeles, law professor Richard Sander and legal journalist Stuart Taylor, Jr., describe in their important, recently released book,Mismatch: How Affirmative Action Hurts Students It's Intended to Help, and Why Universities Won't Admit It, one consequence of widespread race-preferential policies is that minority students tend to enroll in colleges and universities where their entering academic credentials put them toward the bottom of the class. While academically gifted under-represented minority students are hardly rare, there are not enough to satisfy the demand of top schools."

http://www.nationalaffairs.com/publications/detail/the-sad-irony-of-affirmative-action

"This paper presents a comprehensive examination of the empirical literature testing the academic mismatch hypothesis as it applies to affirmative action and students of color in U.S. higher education. The primary focus of this paper is the mismatch research addressing American legal education (Part II). This includes a detailed assessment of the empirical basis of claims made by Richard Sander and, more recently, by Doug Williams, showing flaws in their work, including questionable claims and methodological choices. In particular, this paper calls into question all research using the LSAC Bar Passage Study data that treats schools in tiers 2 and 3 in that study as separate and hierarchically ordered, arguing that this treatment is statistically unjustified and due to idiosyncrasies in the data and factors that in fact distinguish these tiers serves to enhance the odds of finding a mismatch effect while lowering the likelihood of finding reverse mismatch effects. The paper also reviews research on mismatch at the undergraduate level (Part III), specifically examining the outcomes of graduation rates and earnings and again finding that the mismatch hypothesis lacks empirical support and is, if anything, empirically less plausible than claims made for a reverse mismatch effect. In examining both legal and undergraduate education, this paper both critiques work that purports to find evidence of mismatch and references numerous studies that find no evidence of mismatch effects or evidence of reverse mismatch effects, including studies that use state of the art methods to control for selection bias. Overall the social science evidence points clearly in one direction: affirmative action as practiced today is not plagued by mismatch effects; indeed the evidence indicates that underrepresented minority students tend to do better over the life course if they attend the most selective school that will admit them."

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2431746

I mean, many studies are addressed in the report. Some are wholly irrelevant, such as black people and white people feel better about going to school with people like them? Black people being uncomfortable because there are white students is a shoddy attempt to bolster the claim, and others are more realistic.

The only specific policy that the Court has upheld was the UM Law School policy upheld in Grutter. This policy was premised on the idea of there needing to be a "critical mass" of (certain) racial minority students. No one was able to define what a "critical mass" is.

It is the main one, but not the only one. "Critical mass" is a bit ambiguous, because numbers can't be given. It's generally considered the minimum limit needed to begin a chain reaction that pushes itself. Like in fission.

Admission of students due to their athletic performance at least doesn't violate the laws that prohibit racial discrimination by the government.

No. It prohibits laws prohibiting discrimination based on physical disabilities. So considering that no one in wheelchair can play college football, but may be many times smarter than a given football player, how is it fair to reserve 1/6th of the incoming class exclusively for football players? What about students playing sports is that allowed to be the primary and first factor in considering if a student will be admitted, when clearly, most of the new class is not going to have physical abilities to play on the teams?

 

[George-ananda]

You're saying you believe the different center points for "mental traits" occur according to race? I know of no reason to believe that.

I do see reason to believe that and that is why the subject is controversial. I would use the term 'ethnicity' rather than 'race' as race has become to difficult a term to define.

But even putting race/ethnicity aside for the moment, I believe mental, personality, physical, etc. variable traits and abilities have a genetic influence that is underrated by most people. I think things like identical twins raised apart studies support my thinking. And then if we look across ethnic groups we can see tendencies that I, controversially, do not think are best understood as caused by environment-only but better understood as caused by heredity-environment.

But don't get me wrong, I'm not the type who follows a theory for the purpose of disliking some ethnic groups or preferring other ethnic groups. In fact my religious position says that all is One and the love of all is the only path (but that doesn't mean identical in inherent traits and abilities even with the same two parents).

Here is another example that has been studied: When you see a seriously obese person do you think it is caused by the person's bad eating habits or do you think unfortunate genetics? Answers vary but I first think the unfortunate genetic factor. These type of studies tell how some people see humans more formed by their environment and others more by their genetics.

 

[Nous]

Can you please explain to me how automatically reserving a 6th of the new positions in classes based solely on whether or not they can play sports benefits academy and scholarship?

What school does that?

I'm still lost here on why it's totally okay to select students for scholarships on the premises that they can kick a ball 70 yards, but why it's an egregious act of discrimination against Asians when race is given any considering for the admissions process?

Two wrongs don't make a right. If applicants with good academic credentials are being displaced at top-tier schools by unqualified enrollees on athletic scholarships, it's unfortunate for both the displaced students and the schools. However, it isn't unconstitutional and doesn't violate the Civil Rights Act of 1964.

A racial disparity in this matter would mean that a minority population receives less college admissions overall when compared to the general population.

That’s what I thought you meant by “racial disparity,” but when I asked, you didn’t answer and seemed to suggest that some statistician would needed to figure it out.

To classify applicants according to race, and to discriminate on the basis of race in the admission of students in order to make the racial percentages of the incoming class match the racial percentages of applicants or of the "general population" is called using a “racial quota” or “racial balancing,” which is explicitly unconstitutional.

If you know of a method to prevent what you refer to as “racial disparity,” without the university engaging in systematic racial quotas, I'm certain lots of universities would like to know about it.

The UT Top 10% Plan is dumb for a number of reasons.

What's "dumb" about it?

But it doesn't create racial disparity as far as I'm aware of it

The Top 10% Plan does not and was not designed to create a student body whose racial percentages match those of "the general population". It was designed to be a fair, racially non-discrimantory method of admitting students to UT.

The 10% rule was done by the legislature, and it is race-neutral up to a certain point.

The Top 10% Plan does not classify and admit students according to race.

If I understood you correctly, the 10% does not account for the total jump of minority students.

Actually the Top 10% Plan combined with the race-neutral (pre-2004) AI/PAI policy not only admitted but enrolled more African American and Hispanic students than did the pre-Hopwood affirmative action policy (struck down in 1996). From Fisher I:

The University’s revised admissions process, coupled with the operation of the Top Ten Percent Law, resulted in a more racially diverse environment at the University. Before the admissions program at issue in this case, in the last year under the post-Hopwood AI/PAI system that did not consider race, the entering class was 4.5% African-American and 16.9% Hispanic. This is in contrast with the 1996 pre-Hopwood and Top Ten Percent regime, when race was explicitly considered, and the University’s entering freshman class was 4.1% African-American and 14.5% Hispanic. http://www.supremecourt.gov/opinions/12pdf/11-345_l5gm.pdf

The PAI only began using race classifications after Grutter in 2003. But even then, the vast majority of African American and Hispanic students admitted were admitted through the Top 10% Plan.

 

[Nous]

"How could such a miscalculation about the effects of affirmative action occur? As University of California, Los Angeles, law professor Richard Sander and legal journalist Stuart Taylor, Jr., describe in their important, recently released book,Mismatch: How Affirmative Action Hurts Students It's Intended to Help, and Why Universities Won't Admit It, one consequence of widespread race-preferential policies is that minority students tend to enroll in colleges and universities where their entering academic credentials put them toward the bottom of the class. While academically gifted under-represented minority students are hardly rare, there are not enough to satisfy the demand of top schools."

http://www.nationalaffairs.com/publications/detail/the-sad-irony-of-affirmative-action

"This paper presents a comprehensive examination of the empirical literature testing the academic mismatch hypothesis as it applies to affirmative action and students of color in U.S. higher education. The primary focus of this paper is the mismatch research addressing American legal education (Part II). This includes a detailed assessment of the empirical basis of claims made by Richard Sander and, more recently, by Doug Williams, showing flaws in their work, including questionable claims and methodological choices. In particular, this paper calls into question all research using the LSAC Bar Passage Study data that treats schools in tiers 2 and 3 in that study as separate and hierarchically ordered, arguing that this treatment is statistically unjustified and due to idiosyncrasies in the data and factors that in fact distinguish these tiers serves to enhance the odds of finding a mismatch effect while lowering the likelihood of finding reverse mismatch effects. The paper also reviews research on mismatch at the undergraduate level (Part III), specifically examining the outcomes of graduation rates and earnings and again finding that the mismatch hypothesis lacks empirical support and is, if anything, empirically less plausible than claims made for a reverse mismatch effect. In examining both legal and undergraduate education, this paper both critiques work that purports to find evidence of mismatch and references numerous studies that find no evidence of mismatch effects or evidence of reverse mismatch effects, including studies that use state of the art methods to control for selection bias. Overall the social science evidence points clearly in one direction: affirmative action as practiced today is not plagued by mismatch effects; indeed the evidence indicates that underrepresented minority students tend to do better over the life course if they attend the most selective school that will admit them."

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2431746

Thank you for this article. I am aware that Kidder has been quite vociferous on the topic of “mismatch”. It’s interesting that he and Lempert note that the data they have collected and presented on graduation rates in their 5 classifications of schools do not constitute “a mismatch study” because they did not control for academic credentials, but they go on to make a number of claims that draw inferences about “mismatch” effects from the data.

Let’s assume that this article portrays a correct picture about mismatch--i.e., that affirmative action admissions policies create no mismatch effects. After all, whether or not there exist mismatch effects will not be a factor that the Court will consider in deciding the constitutionality of UT’s policy. Kidder and Lempert note in their conclusions, “Affirmative action may be less consequential when the question is whether a minority freshman will graduate, but it greatly affects the number of minorities who will get degrees, and it is the latter that is socially most important.” (Their emphasis.) That’s the problem with the attempt to justify UT’s race-preferential admissions policy: the vast majority of African American and Hispanic students admitted to UT are admitted through its Top 10% Plan, with only about 3.4% (216 in 2008) of the incoming freshman class being enrolled as a result of the race-preferential plan. Yet, as the Brief for Fisher points out:

. . . a number of the 216 non-Top 10% minority enrollees would have been admitted without regard to their race. Some were admitted based solely on high AI scores. App. 173a; JA 418a. Many others would have been admitted under an AI/PAI system unaffected by race. To illustrate, when race was not a factor in the PAI calculus, 15.2% of the non-Top 10% Texas enrollees in 2004 were African American or Hispanic; in 2008, when race was reintroduced, 17.9% were African American or Hispanic. SJA 157a. Even if the entirety of the increase between 2004 and 2008 were attributable to race, it would have been decisive for only 2.7% of the 1,208 non-Top Ten enrollees in 2008--or 33 African Americans and Hispanics combined. Id. If so, racial preferences would have accounted for 0.5% of the 6,322 in-state freshman class in 2008. http://www.americanbar.org/content/.../briefs_2015_2016/14-981_pet.authcheckdam.pdf

(The reason that Fisher has to calculate such figures from certain assumptions and fairly old enrollment data is because UT, like other universities with affirmative action policies, have stopped keeping or making available such important data. Some universities that are required by law to keep such data don’t, and there have been a number of lawsuits on such issues. Some universities charge enormous fees for access to such data--University of Maryland charges $30,000, and, in one case, when paid, didn’t provide the data in full.)

In any case, the fact that the effect of UT’s race-preferential admissions policy is so small as to be de minimis only argues for its unconstitutionality: there can’t be a compelling governmental purpose for enrolling 33 minority students out of the thousands African American and Hispanic students that were enrolled through a race-neutral policy.

I mean, many studies are addressed in the report. Some are wholly irrelevant, such as black people and white people feel better about going to school with people like them? Black people being uncomfortable because there are white students is a shoddy attempt to bolster the claim, and others are more realistic.

How comfortable a students feels at his/her college, including his/her perception as to where s/he stands academically and socially in relation to his/her class, is a highly important factor in how well the student does and whether s/he stays in school.

The only specific policy that the Court has upheld was the UM Law School policy upheld in Grutter. This policy was premised on the idea of there needing to be a "critical mass" of (certain) racial minority students. No one was able to define what a "critical mass" is.

It is the main one, but not the only one.

Name the others.

No. It prohibits laws prohibiting discrimination based on physical disabilities.

What? No, nothing does prohibits any such anti-discrimination law.

 

[Nous]

I do see reason to believe that and that is why the subject is controversial. I would use the term 'ethnicity' rather than 'race' as race has become to difficult a term to define.

But even putting race/ethnicity aside for the moment, I believe mental, personality, physical, etc. variable traits and abilities have a genetic influence that is underrated by most people. I think things like identical twins raised apart studies support my thinking. And then if we look across ethnic groups we can see tendencies that I, controversially, do not think are best understood as caused by environment-only but better understood as caused by heredity-environment.

Given that “intelligence” or something measured by IQ test scores is, at best (or worst), polygenic and heavily dependent on environmental factors, if there is an association with race, I am concerned about the negative effects as a result of emphasizing the genetic aspect of intelligence (or IQ test scores). Some members of the race at the top end of IQ test scores might begin to think that they simply do not need to work in order to improve their intelligence or increase their knowledge, whereas members of the race(s) on the low end might begin believe that it is useless for them to try to learn. We see an analogous phenomenon as a result of the promotion that “mental disorders” are due to an innate biochemical “imbalance”--people persuade themselves that there is no effort that they can possibly make to improve or alleviate their undesirable symptoms (which is utterly false), and only need to take a pill or two every day. Numerous problems flow from this.

Here is another example that has been studied: When you see a seriously obese person do you think it is caused by the person's bad eating habits or do you think unfortunate genetics? Answers vary but I first think the unfortunate genetic factor. These type of studies tell how some people see humans more formed by their environment and others more by their genetics.

I am unaware of any evidence showing that most obese people have a genetic disorder. I don't see how it could possibly benefit anyone to believe that their obesity is an intractable genetic problem.

 

[George-ananda]

Given that “intelligence” or something measured by IQ test scores is, at best (or worst), polygenic and heavily dependent on environmental factors, if there is an association with race, I am concerned about the negative effects as a result of emphasizing the genetic aspect of intelligence (or IQ test scores). Some members of the race at the top end of IQ test scores might begin to think that they simply do not need to work in order to improve their intelligence or increase their knowledge, whereas members of the race(s) on the low end might begin believe that it is useless for them to try to learn. We see an analogous phenomenon as a result of the promotion that “mental disorders” are due to an innate biochemical “imbalance”--people persuade themselves that there is no effort that they can possibly make to improve or alleviate their undesirable symptoms (which is utterly false), and only need to take a pill or two every day. Numerous problems flow from this.

I am unaware of any evidence showing that most obese people have a genetic disorder. I don't see how it could possibly benefit anyone to believe that their obesity is an intractable genetic problem.

Well, I agree with many of your concerns. I believe the effects of genetics is greatly underrated by society in general, but that is not necessarily always a bad thing and often a good thing. But there are certain serious discussions where I believe it needs to brought up, such as in affirmative action debates in college admissions where more qualified Asian-Americans are being denied admission. But it is not something I would bring up unless it is necessary to a discussion.

 

[dust1n]

What school does that?

From the source I provided earlier to someone else:

"Based on a study of admissions and academic records of 90,000 students at 30 selective institutions, including 11 small liberal arts colleges, since 1951, they conclude:

''The recruitment of athletes has become much more aggressive, professional and intense. This is true at all levels of competition, including Division III, and in all sports, including the lower-visibility ones such as tennis and swimming. Coaches have come to play a much more important role in the admissions process than they used to play, and there are fewer and fewer 'walk-on' athletes.''

In order to assure success on their playing fields, admissions directors are setting aside specific numbers of places for recruited athletes and going lower on the academic ladder to fill them. Amherst College, for example, designates 75 out of the 450 places in each year's freshman class for athletes recruited by coaches in 27 varsity sports. At Williams, a perennial winner of the Sears Cup given to the most successful overall athletic program in each division, 71 athletes are given preferential admission in a class of 550.

''Athletic recruiting is the biggest form of affirmative action in American higher education, even at schools such as ours,'' said Philip Smith, the recently retired dean of admissions at Williams."

http://www.nytimes.com/2001/01/07/e...letes-win-preference.html?pagewanted=all&_r=0

"An Associated Press review of admissions data submitted to the NCAA by most of the 120 schools in college football's top tier shows that athletes enjoy strikingly better odds of having admission requirements bent on their behalf.

The notion that college athletes' talents give them a leg up in the admissions game isn't a surprise. But in what NCAA officials called the most extensive review to date, the AP found the practice is widespread and can be found in every major conference.

The review identified at least 27 schools where athletes were at least 10 times more likely to benefit from special admission programs than students in the general population."

http://espn.go.com/ncf/news/story?id=4781264

Two wrongs don't make a right. If applicants with good academic credentials are being displaced at top-tier schools by unqualified enrollees on athletic scholarships, it's unfortunate for both the displaced students and the schools. However, it isn't unconstitutional and doesn't violate the Civil Rights Act of 1964.

So, you do think it is wrong to do so? I'm trying to figure out the consistency here.

Whether AA is unconstitutional has yet to be fully determined, so assuming that it is unconstitutional despite the fact the SCOTUS has never stated as such, is a bit circular. Should the court state UT's system is unconstitutional? Yes! Why? Because it's unconstitutional! It does on the surface seem though that wording the Civil Rights Act of 1964 and AA have tensions. But then keep the consistency, because it's equally illegal for a college to discriminate against a physically disabled person as stipulated by ADA.

Compare.

Title VI of CRA1964:

"Title VI, 42 U.S.C. § 2000d et seq., was enacted as part of the landmark Civil Rights Act of 1964. It prohibits discrimination on the basis of race, color, and national origin in programs and activities receiving federal financial assistance."

Title II or ADA:

"Title II applies to State and local government entities, and, in subtitle A, protects qualified individuals with disabilities from discrimination on the basis of disability in services, programs, and activities provided by State and local government entities. Title II extends the prohibition on discrimination established by section 504 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. 794, to all activities of State and local governments regardless of whether these entities receive Federal financial assistance."

So, if purposefully selecting athletes to attend your school isn't unconstitutional, it's probably because nobody challenged it...

Which does give me an interesting idea depending on how this current case goes down...



I don't have to time to respond to all, and couldn't finish, so patience is appreciated, and I'll reply to the rest over time.

 

[Nous]

So, you do think it is wrong to do so? I'm trying to figure out the consistency here.

Yes, apparently you think there is something analogous between athletic recruitment and race-preferential admissions. The two have nothing to do with each other. The reason that universities do not bring up the issue of athletic scholarships in suits challenging their affirmative action policies is because no issue of athlete recruitment is relevant to the issue of race-preferential policies. The process by which one is performed does not resemble the process by which the other is performed.

Athlete recruitment does not entail any form of illegal discrimination. By recruiting athletes universities are not engaging in systematic denial of admissions of students on the basis of race, ethnicity or gender, and certainly athletic recruitment isn’t accomplished by engaging in discrimination against people with disabilities.

So, if purposefully selecting athletes to attend your school isn't unconstitutional, it's probably because nobody challenged it...

Athlete recruitment isn't unconstitutional because there is nothing in the Constitution or case law that prohibits it or that the practice is contrary to.

 

[Nous]

Well, I agree with many of your concerns. I believe the effects of genetics is greatly underrated by society in general, but that is not necessarily always a bad thing and often a good thing. But there are certain serious discussions where I believe it needs to brought up, such as in affirmative action debates in college admissions where more qualified Asian-Americans are being denied admission. But it is not something I would bring up unless it is necessary to a discussion.

Of course, the issue of genetics in whatever way it may relate to race groups is not a necessary component of enacting fair, non-discriminatory university admission policies. A number of states have outlawed affirmative action admissions policies, without considering any issue of genetics.

BTW: a brief note here is entitled Group Differences in IQ Are Best Understood as Environmental in Origin, discussing the reasons for that conclusion: http://people.virginia.edu/~ent3c/papers2/Articles for Online CV/Nisbett (2012) Group.pdf

 

[George-ananda]

BTW: a brief note here is entitled Group Differences in IQ Are Best Understood as Environmental in Origin, discussing the reasons for that conclusion: http://people.virginia.edu/~ent3c/papers2/Articles for Online CV/Nisbett (2012) Group.pdf

It is a subject where you can find differing views from different 'experts. I don't think IQ studies can tell the whole story. I think those IQ comparisons are meaningful but far from perfect. I hold that there are innumerable types of variable intelligences and personality traits with tendencies based in genetics. To unravel it all is impossible but I still contend there is much to it. No one (including me) can offer 'proof' satisfactory to all so the debate rages on.

 

[dust1n]

That’s what I thought you meant by “racial disparity,” but when I asked, you didn’t answer and seemed to suggest that some statistician would needed to figure it out.

I believed I stated a statistician would needed to do proper statistical analysis to see if this or that policy is effective at its stated goals or not.

To classify applicants according to race, and to discriminate on the basis of race in the admission of students in order to make the racial percentages of the incoming class match the racial percentages of applicants or of the "general population" is called using a “racial quota” or “racial balancing,” which is explicitly unconstitutional.

If I understand UT's argument correctly, they use "critical mass" which they define as a minimum number necessary for a diverse classrooms. I expect it might get struck down. It's not clear the 10% will stay or not.

If you know of a method to prevent what you refer to as “racial disparity,” without the university engaging in systematic racial quotas, I'm certain lots of universities would like to know about it.

I imagine people are well working into that in anticipation that this Supreme Court Case isn't going to go well.

What's "dumb" about it?

You mean, besides the fact the 50% of one given school may have higher scores than a given 10% of another school? I mean, if we are applying the understanding that a school exists for the sole function of higher education premised of SAT scores, it is really wholly arbitrary where one stands in their high school class. It has nothing to do with how well one individual is as a student... and so as a race-neutral means to achieving what obviously the same diversity anyway, even more people will not be admitted to UT, like Fisher, who fell under the 10% of her given class. She may have been in review, a better candidate than numerous students, who, regardless of any other factor, are admitted because they are in the 10% of their given class.

The Top 10% Plan does not and was not designed to create a student body whose racial percentages match those of "the general population". It was designed to be a fair, racially non-discrimantory method of admitting students to UT.

The Top 10% Plan does not classify and admit students according to race.

"Texas created the [10% Plan] in 1997 after a federal appellate court ruled, in Hopwood v. Texas, that the state’s previous affirmative-action system based on racial preferences was unconstitutional. Through the TTP Plan, the state sought to maintain diversity in its most-competitive public universities in a race-neutral way. The program soon became the model for similar policies in Florida and California...

After the Supreme Court upheld some forms of race-conscious affirmative action in 2003, UT-Austin quickly reinstated racial preferences in admissions, triggering a challenge that led to the Supreme Court’s most recent affirmative-action case."

http://educationnext.org/texas-ten-percent-plans-impact-college-enrollment/

Actually the Top 10% Plan combined with the race-neutral (pre-2004) AI/PAI policy not only admitted but enrolled more African American and Hispanic students than did the pre-Hopwood affirmative action policy (struck down in 1996). From Fisher I:

The University’s revised admissions process, coupled with the operation of the Top Ten Percent Law, resulted in a more racially diverse environment at the University. Before the admissions program at issue in this case, in the last year under the post-Hopwood AI/PAI system that did not consider race, the entering class was 4.5% African-American and 16.9% Hispanic. This is in contrast with the 1996 pre-Hopwood and Top Ten Percent regime, when race was explicitly considered, and the University’s entering freshman class was 4.1% African-American and 14.5% Hispanic. http://www.supremecourt.gov/opinions/12pdf/11-345_l5gm.pdf

That appears to be correct, that would be my mistake for implying otherwise.

The PAI only began using race classifications after Grutter in 2003. But even then, the vast majority of African American and Hispanic students admitted were admitted through the Top 10% Plan.

Tis true. It appears that following Grutter, UT instituted a new race-conscious consideration due to a lack of diversity with given departments and classes etc. Whether it is constitutional or not will be determined.

 

[dust1n]

Thank you for this article. I am aware that Kidder has been quite vociferous on the topic of “mismatch”. It’s interesting that he and Lempert note that the data they have collected and presented on graduation rates in their 5 classifications of schools do not constitute “a mismatch study” because they did not control for academic credentials, but they go on to make a number of claims that draw inferences about “mismatch” effects from the data.

Let’s assume that this article portrays a correct picture about mismatch--i.e., that affirmative action admissions policies create no mismatch effects. After all, whether or not there exist mismatch effects will not be a factor that the Court will consider in deciding the constitutionality of UT’s policy.

Wondering why it was necessary to go down that rabbit hole then...

Kidder and Lempert note in their conclusions, “Affirmative action may be less consequential when the question is whether a minority freshman will graduate, but it greatly affects the number of minorities who will get degrees, and it is the latter that is socially most important.” (Their emphasis.) That’s the problem with the attempt to justify UT’s race-preferential admissions policy: the vast majority of African American and Hispanic students admitted to UT are admitted through its Top 10% Plan, with only about 3.4% (216 in 2008) of the incoming freshman class being enrolled as a result of the race-preferential plan. Yet, as the Brief for Fisher points out:

. . . a number of the 216 non-Top 10% minority enrollees would have been admitted without regard to their race. Some were admitted based solely on high AI scores. App. 173a; JA 418a. Many others would have been admitted under an AI/PAI system unaffected by race. To illustrate, when race was not a factor in the PAI calculus, 15.2% of the non-Top 10% Texas enrollees in 2004 were African American or Hispanic; in 2008, when race was reintroduced, 17.9% were African American or Hispanic. SJA 157a. Even if the entirety of the increase between 2004 and 2008 were attributable to race, it would have been decisive for only 2.7% of the 1,208 non-Top Ten enrollees in 2008--or 33 African Americans and Hispanics combined. Id. If so, racial preferences would have accounted for 0.5% of the 6,322 in-state freshman class in 2008. http://www.americanbar.org/content/.../briefs_2015_2016/14-981_pet.authcheckdam.pdf

(The reason that Fisher has to calculate such figures from certain assumptions and fairly old enrollment data is because UT, like other universities with affirmative action policies, have stopped keeping or making available such important data. Some universities that are required by law to keep such data don’t, and there have been a number of lawsuits on such issues. Some universities charge enormous fees for access to such data--University of Maryland charges $30,000, and, in one case, when paid, didn’t provide the data in full.)

Thanks, its something worth considering.

In any case, the fact that the effect of UT’s race-preferential admissions policy is so small as to be de minimis only argues for its unconstitutionality: there can’t be a compelling governmental purpose for enrolling 33 minority students out of the thousands African American and Hispanic students that were enrolled through a race-neutral policy.

De minimis would imply it would be so small of a consideration as to a trifling matter that the court wouldn't see it. I'm not aware that things could be ruled unconstitutional because they were de minimis. I understand your point though.


How comfortable a students feels at his/her college, including his/her perception as to where s/he stands academically and socially in relation to his/her class, is a highly important factor in how well the student does and whether s/he stays in school.

Name the others.

Misspoke. The court didn't uphold any other specific programs, only that diversity was a compelling interest. There are other schools with different programs in which the case hasn't been brought the court, or, like in a lot of states, they were voted out by the public, with the Supreme Court did rule valid.

What? No, nothing does prohibits any such anti-discrimination law.

What are you talking about. Are you seriously suggesting the ADA does nothing to prohibit discrimination against the physically disabled in the same way the Civil Rights act bars discrimination against ethnicity? What about legacy admissions? The 14th amendment explicitly states that discrimination and preference can't be given by public institutions on the basis of heredity?

 

[dust1n]

Yes, apparently you think there is something analogous between athletic recruitment and race-preferential admissions. The two have nothing to do with each other. The reason that universities do not bring up the issue of athletic scholarships in suits challenging their affirmative action policies is because no issue of athlete recruitment is relevant to the issue of race-preferential policies.

We'll see. If the precedent is set that race can be given no consideration whatsoever, then legacy admissions will be the first to go after, since it's pretty obvious that it's against the 14th amendment, and I will expect sports will be challenged as a result as well, and then others...

"Although underrepresented minority status may be one of the most conspicuous of the so-called bonus factors, undergraduate admission officers in assembling a first-year class that best meets institutional goals and values routinely give extra weight to numerous other student attributes, including athletic ability, musical talent, rural background, lower socioeconomic status, gender, alumni connections, leadership ability, geography, and unusual life experiences (Fetter, 1995; Freedman, 2003; Zwick, 2002).1"

https://www.princeton.edu/~tje/files/webAdmission Preferences Espenshade Chung Walling Dec 2004.pdf

The process by which one is performed does not resemble the process by which the other is performed.

No, it's performed much more like the already constitutionally struck down notion of setting explicit goal numbers.

Athlete recruitment does not entail any form of illegal discrimination. By recruiting athletes universities are not engaging in systematic denial of admissions of students on the basis of race, ethnicity or gender, and certainly athletic recruitment isn’t accomplished by engaging in discrimination against people with disabilities.

Nope, but purposefully setting aside a portion of your incoming class for a specific number of athletes despite academic standing, would obviously be as discriminatory of any other means of setting specific numbers. I would expect consistency in the law. Either a school has a sound reason for preferential treatment for non-academic matters, or it does not.

Athlete recruitment isn't unconstitutional because there is nothing in the Constitution or case law that prohibits it or that the practice is contrary to.

It isn't unconstitutional because it's never been declared unconstitutional or not. But following the precedent of this upcoming court case... well who knows.

 

[Nous]

If I understand UT's argument correctly, they use "critical mass" which they define as a minimum number necessary for a diverse classrooms.

Not according to UT's brief: http://www.americanbar.org/content/...briefs_2015_2016/14-981_resp.authcheckdam.pdf

It's not clear the 10% will stay or not.

The Top 10% Law is not being challenged.

You mean, besides the fact the 50% of one given school may have higher scores than a given 10% of another school? I mean, if we are applying the understanding that a school exists for the sole function of higher education premised of SAT scores, it is really wholly arbitrary where one stands in their high school class. It has nothing to do with how well one individual is as a student.

I don’t see how you can claim that it is “arbitrary”. Particularly with the standardization of what is taught and tested in high schools, a 3.5 GPA should represent a somewhat similar academic ability regardless of what high school the student attended. If a student’s GPA is an “arbitrary” measure of his/her academic ability, the the academic index (AI), used along with the PAI, is arbitrary.

Obviously you haven’t identified a more fair method of admitting students to college than by their high school academic achievements as measured by their grades.

 

[Nous]

Wondering why it was necessary to go down that rabbit hole then...

Well, the Kidder/Lempert article made me aware that I was unfamiliar with some of the current research on the subject of mismatch, and, further, as noted, the issue of mismatch is irrelevant to the question of the constitutionality of affirmative action admission policies. Nevertheless, while the non-existence of mismatch effects among less-qualified students admitted under affirmative action policies does not logically argue for the continued use of such policies, the existence of mismatch effects among such students does logically argue against affirmative action policies (unless one’s goal is to harm African American and Hispanic students).

It seems to me that the data are simply not available to clearly determine whether there exist mismatch effects among intended beneficiaries of affirmative action policies. And the universities that use such policies are to blame for this--they could collect the statistics and make them available, but in many cases they merely no longer collect critical data. This is precisely what an organization would do if it has something to hide; after all, the data could help them defend their admissions policies in court. How could UT simply not be interested in how many students are admitted under its race-preferential policy, and how well those students have done or are doing in school?

Anyway, the Kidder/Lempert article does not seem to be balanced or fair in its review of the research on mismatch. For instance, they did not mention any of the studies cited in this 2004 Smith and McArdle study:

Ethnic and gender differences in college SME [science, math, engineering] attainment have been often studied and are well documented (Astin and Astin, 1993; Culotta and Gibbons, 1992; Green, 1989; Leslie et al., 1998; NAS, 1987; NSB, 2002; NSF, 1992, 1999; Oakes, 1990; Seymour and Hewitt, 1997). Based on data from the Cooperative Institutional Research Program for N > 26,000 students entering 4-year colleges in 1985, Astin and Astin report disproportionate losses from SME majors for minority students. Persistence rates after 4 years were 37% for Chicanos, 47% for African Americans, 51% for American Indians, 61% for Whites, and 68% for Asians. More recent data (NSF, 1999) suggest that early 1990s growth in the within-group proportions of Blacks and Hispanics completing engineering and natural sciences degrees was less than that of Asians and Whites. Shortfalls among Blacks are evident despite a consistent finding that those beginning college are as, or more, likely than Whites to initially intend a SME major (Dunteman, Wisenbaker, and Taylor, 1979; Green, 1989; Lee, 1987; Leslie et al., 1998; NAS, 1987; Oakes, 1990; Post, Stewart, and Smith, 1991). Though American Indians are less frequently studied, Culotta and Gibbons (1992) conclude that they are “just as underrepresented as Blacks and Hispanics” in the scientific workforce. Asian students, on the other hand, are typically found to be both more likely to express interest in SME and to persist in the field (Culotta and Gibbons, 1992; Fullilove and Treisman, 1990; Simpson, 2001).

[. . .]

Precollege Academic Preparation

High school grades and math test scores weigh heavily in equations predicting SME persistence, regardless of ethnicity, gender, or type of college, including single-sex female institutions (Civian and Schley, 1996; Jackson, Gardner, and Sullivan, 1993; Jagacinski, LeBold, and Salvendy, 1988; Oakes, 1990). Moreover, the Elliott et al. (1995) finding that differences in preparation account for Asian/White vs. underrepresented minority differences in science persistence is not new. Adair (1991), Astin and Astin (1993), Dunteman et al., (1979), Hilton, Hsia, Solorzano, and Benton (1989), Simpson (2001), and Ware and Lee (1988) all found that ethnic disparities in college SME persistence were not statistically significant when standard measures of academic preparation were taken into account. Astin and Astin (1993) assert, “The strongest and most consistent predictor of changes in students’ interest in science majors or careers is the students’ entering level of mathematical and academic competency” (p. 2). Fullilove and Treisman (1990) contend that the roots of the extraordinary Asian persistence lie in early mathematics preparation. Conversely, underrepresented minority students are consistently found to have significantly lower means on such precollege academic measures (Bowen and Bok, 1998; Dunteman et al., 1979; Elliott et al., 1995; Fullilove and Treisman, 1990; Ramist, Lewis, and McCamley-Jenkins, 1994).

http://www.seaphe.org/pdf/ethnicandgender.pdf

Nor did Kidder/Lempert mention the Smyth and McArdle study itself, which seems to be a more rigorous study whose findings on graduation rates in science, math and engineering at least provide a direct counterpoint to the data Kidder and Lempert presented in their article (which they admit is “not a mismatch study”). The Smyth/McArdle abstract:

Using Bowen and Bok’s data from 23 selective colleges, we fit multilevel logit models to test two hypotheses with implications for affirmative action and group differences in attainment of science, math, or engineering (SME) degrees. Hypothesis 1, that differences in precollege academic preparation will explain later SME graduation disparities, was fully supported with respect to the outcome gap between Whites and underrepresented minorities, partially supported for that between Asians and underrepresented minorities, and between men and women. Hypothesis 2, that college selectivity, after accounting for student characteristics, will be positively associated with SME persistence, was not supported. We demonstrate that the significance of the selectivity effect is overestimated when unilevel models are used. Admission officials are advised to carefully consider the relative academic preparedness of science-interested students, and such students choosing among colleges are advised to compare their academic qualifications to those of successful science students at each institution.

What are you talking about. Are you seriously suggesting the ADA does nothing to prohibit discrimination against the physically disabled in the same way the Civil Rights act bars discrimination against ethnicity? What about legacy admissions? The 14th amendment explicitly states that discrimination and preference can't be given by public institutions on the basis of heredity?

In #44, you quoted my comment, “Admission of students due to their athletic performance at least doesn't violate the laws that prohibit racial discrimination by the government.” Your reply was, “No. It prohibits laws prohibiting discrimination based on physical disabilities.” In #47, I noted in return that nothing prohibits such anti-discrimination laws. The ADA is just such a law that prohibits discrimination on the basis of disability. Admission of students due to their athletic performance obviously does not “prohibit” the ADA.

The ADA does not prohibit universities selecting students due to their athletic abilities. The ADA does not define such selection as a form of discrimination against people on the basis of their disabilities.

 

[Nous]

We'll see. If the precedent is set that race can be given no consideration whatsoever, then legacy admissions will be the first to go after, since it's pretty obvious that it's against the 14th amendment, and I will expect sports will be challenged as a result as well, and then others...

(1) The Court will need not overturn its precedent on race-preferential admissions policies, as elucidated in Bakke and Grutter (in which race can be used as a factor in admissions as long as it isn’t the only factor, and the policy passes strict scrutiny), in order to strike down UT’s affirmative action policy. The Court could easily find that UT’s affirmative action policy has such a trifling effect in creating racial diversity that it cannot possibly achieve a compelling governmental purpose. In UT’s case, the fact looms large that the Top 10% Plan creates much more racial diversity than its race-preferential policy.

(2) I don’t know how you reach that conclusion that legacy admissions violate the Fourteenth Amendment. I am unaware that any school has a policy about admissions of either legacy students or athletes, much less a policy that violates "the core purpose" (O'Connor's term) of the Fourteenth or denies applicants of particular races or gender in order to admit legacy or athletic students.

The process of effectuating a race-preferential policy begins by assigning every applicant to (or asking applicants to self-identify as) one of several pre-specified “race” categories. Then an applicant’s race classification is used to determine or at least weight who is admitted and who is denied. Notice how that’s different from legacy admits and athlete recruitment. Even if there were policies about accepting legacy and athletic students, admitting such students does not require discriminating against applicants on a basis that is prohibited by law.

 

[Nous]

I hold that there are innumerable types of variable intelligences and personality traits with tendencies based in genetics. To unravel it all is impossible . . .

Agree.