The Supreme Court and #BeckyWithTheBadGrades - Affirmative Action in the USA

[TheRealJoeFish]

I wanted to post a thread to discuss the US Supreme Court's recent decision in Fisher v. University of Texas at Austin (II).  The one-sentence summary is that the Supreme Court upheld the University of Texas's Affirmative Action program.  It's a rather interesting case, and, I think, worthy of discussion.

***Disclaimer*** I know that "affirmative action" threads have a reputation for devolving into debate and invective and the like. My purpose here is to provide info on what the present issue was, what the court did, and what it means going forward, and to possibly have a discussion about some of the legal principals involved (but only if everyone's polite and respectful!).  So, you know... blame me if it all goes to hell.

I've included what I think to be interesting background information on the history of affirmative action in the USA.  If you're caught up on all that and want to skip to what happened yesterday, go past all the hide tags to the #BeckyWithTheBadGrades discussion at the end.

I. Intro/Background on Affirmative Action

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Essentially, "affirmative action" is a name given to a series of policies that benefits people falling into a certain minority (or, more accurately, underrepresented) class. The term was first used in legislation regarding discrimination of employees associated with unions in the early 1900s, but today is usually associated with race or gender.  Affirmative action is used most famously in college admissions, but exists in many forms in situations (job applications, say) and is meant to remedy underrepresentation.  For instance, suppose the pool of 18-year-olds in a state is 25% white male, 25% black male, 25% white female, and 25% black female, but the top 1000 applicants for that state university's 1000 spots are: 500 white male, 200 black male, 200 white female, 100 black female.  If the university a) views this lack of representation among non-white males as a problem, and b) evaluates applicants of the underrepresented groups more positively to reduce the magnitude of the underrepresentation, then that university is utilizing affirmative action.

There are two main reasons cited for affirmative action.  The first is that many institutions believe there is an intrinsic value to diversity.  For instance, a diverse group of students, discussing topics from different points of view and different upbringings, may be able to treat the topic in a more circumspect and ultimately more informative/productive manner than if the topic is discussed from a single point of view.  The second reason is a belief that the underrepresentation is attributable to factors that are not the fault of the underrepresented party and should be remedied in the interest of fairness.  For example, it is well known that the typical black high school graduate is less likely to have gone to a private school and less likely to have parents who have gone to college, both factors that correlate strongly with acceptance in the college application process.  If one believes that these things are attributable to socio-economic factors and a history of government-sponsored (or at least government-accepted) discrimination, then one may feel it is fair to consider black applicants in the light of those institutional factors.

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II. Affirmative Action Laws/Court Cases Prior to Fisher II

In 1961, President Kennedy issued Executive Order 10925, which required any programs receiving federal funds "to take affirmative action to ensure that applicants are employed and that employees are treated during employment without regard to their race, creed, color, or national origin."  Similar ideas were made official in federal law over the next decade, most famously in Title VII of the Civil Rights Act of 1964.

The two major affirmative action cases involving university admissions, prior to the ones involving Abigail Fisher and UT Austin, were Regents of the University of California v. Bakke and Grutter v. Bollinger.

II.A: Regents v. Bakke

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Regents v. Bakke was decided by the Supreme Court in 1978.  The University of California Davis medical school's admissions worked essentially as follows:
1) You applied to "regular admission" and were given a score out of 100, based on your MCATs, GPA, and such.
2) You could also note on your application that you wished to be considered "economically and/or educationally disadvantaged" or as a member of a "minority group", and, if the committee agreed, you were also given the chance to matriculate via "special admission." 
3) Each year, 84 applicants were admitted via regular admission, and 16 applicants were admitted via special admission.  Over the four years of the program, 44 of the 336 students admitted via regular admission were minorities, and 63 of the 64 students admitted via special admission were minorities.  Essentially, this created a quota system, in which 16 spots each year were effectively reserved for minority applicants.

The trial court initially held that the University could not take race into account at all, and invalidated the program.  This was appealed to the California Supreme Court, which held that it may or may not be proper to take race into account, but that a quota system was not a valid way of doing so.

The US Supreme Court was very fractured in its ruling; six of the nine Justices wrote opinions, and none of the opinions was joined by a majority of the Justices.  What ultimately shook out of the ruling was the following:

1) Affirmative action based on race is permissible in some cases (in J. Brennan's words, "government may take race into account when it acts not to demean or insult any racial group, but to remedy disadvantages cast on minorities by past racial prejudice."
2) Whether affirmative action is appropriate in a given situation is subject to strict scrutiny (the government must show a compelling state interest, and that the program to accomplish that interest is narrowly tailored to the interest and is the least restrictive means to accomplish it).
3) A quota system, like the one at UC Davis, is unconstitutional, because it is not narrowly tailored and is not the least restrictive means of achieving a diverse student body (J. Powell cited Harvard, which did not have a quota system but actively recruited minorities and strived for a diverse student body, as a possible guide).

Essentially, this ruling established that affirmative action in some forms was constitutional but that it could not be a rigid system.

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II.B: Grutter v. Bollinger

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Grutter v. Bollinger was decided by the Supreme Court in 2003.  Bollinger was the President of the University of Michigan, and Grutter was a prospective applicant to the University of Michigan Law School, one of the top 10 law schools in the country.

Michigan Law School received approximately 3500 applicants for 350 spots in an average year.  Its admissions policy was as follows:

1. The applicant's GPA, LSAT score, writing sample, personal statement, and letters of recommendation were considered.
2. Evaluators were instructed to also give weight to "soft variables" like recommenders' enthusiasm, quality of undergrad education, difficulty of course selection, and how the student would contribute to the campus's intellectual life and diversity.
3. There was no quota for minority students, and evaluators were told that "no applicant should be admitted unless... expect[ed]... to do well enough to graduate with no serious academic problems", but the admissions policy had a stated goal of achieving a "'critical mass' of [underrepresented] minority students... [to] ensur[e] their ability to make unique contributions to the character of the Law School."

The District Court found that Michigan's use of race was unconstitutional.  On appeal, the Sixth Circuit reversed, holding that, when Bakke was applied, the sort of scheme Michigan had set up was acceptable.  The Supreme Court agreed 5-4, ultimately holding that:

1) Racial and other forms of diversity in a student body do indeed constitute a "compelling state interest."
2) The "critical mass" referred to by the policy didn't mean a certain predefined percentage of students to meet a quota but, as was clear from the broad policy, whatever level of diversity would be appropriate to achieve the "laudable educational benefits that diversity is designed to produce, including cross-racial understanding and the breaking down of racial stereotypes."
3) Here, the admissions group viewed every student carefully and holistically, taking race and other background information as mere parts of a whole picture of the applicant, resulting in some high scoring minority and non-minority students being rejected in favor of lower-scoring minority and non-minority students with compelling backgrounds.  This is the sort of program that passes constitutional muster.

It is worth noting that in a companion case (ie happened at the same time), Gratz v. Bollinger, the Supreme Court held that Michigan's undergraduate admissions scheme, which involved assigning points to people and gave a certain point-value boost to underrepresented classes, was unconstitutional.  So, essentially: race is a legit factor but you can't try to quantify it; it has to be considered as part of a holistic evaluation.

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III. Abigail Fisher v. University of Texas at Austin, Parts 1 and 2

Yesterday's Supreme Court decision arose out of a case that started more than 8 years ago, when Abigail Fisher sued the University of Texas.  Abigail Fisher is a Caucasian resident of Texas who applied to the University of Texas at Austin (one of the better state universities in the country) in 2008.  That year, 29,501 students applied to the university, 12,843 were admitted, and 6,715 ended up attending.  Fisher was one of the ~17,000 who were not accepted.  It later came out that just 47 students were admitted with lower grades than hers, and that 42 of those 47 were white.

III.A: Fisher v. UT Austin (Part 1)

The first case involving Fisher v. UT Austin ("Fisher I") was heard by the Supreme Court in 2013.  Fisher challenged the University's use of race as discriminatory under the 14th Amendment to the US Constitution, which established "equal protection of the law" to all US citizens.  Texas's admissions system, rather similar to Michigan Law School's above (see Grutter v. Bollinger), was as follows:

1. Under Texas state law, anyone who finished in the top 10% of their high school class in Texas was automatically admitted to any public school in the state, including UT Austin.
2. All other candidates were scored on an Academic Index (GPA, SAT scores, etc) and a Personal Achievement Index, which originally "measure[d] a student's leadership and work experience, awards, extracurricular activities, community service, and other special circumstances [including] growing up in a single-parent home, speaking a language other than English at home, significant family responsibilities assumed by the applicant, and the general socioeconomic condition of the student's family." 
3. After the Supreme Court's decision in Grutter v. Bollinger (above), the PAI was amended to explicitly include race.
4. Each applicant's AI and PAI scores were plotted on a graph, and a diagonal line was drawn.  Anyone over the line was admitted, and anyone under the line was rejected.

The District Court granted summary judgment to UT Austin, dismissing Fisher's case.  On appeal, the Fifth Circuit (known as the most conservative in the USA) affirmed, agreeing that this policy was constitutional.

The Supreme Court ruled 7-1 that the Fifth Circuit had not applied the proper standard to the case (strict scrutiny), and sent it back down (Elena Kagan had worked on the case before she was on the Supreme Court and had to recuse, hence 8 votes instead of 9).  Essentially, the Supreme Court said nothing about whether UT Austin's program was constitutional; rather, they said that the lower courts did not evaluate the question properly, and sent the case back to them with clarifying instructions.


III.B: Fisher v. University of Texas at Austin (Part 2)

Fisher II was argued on December 9, 2015, and the Supreme Court announced its decision yesterday, June 23, 2016.  The question was whether the admissions scheme, described above, was constitutional under Bakke, Bollinger, and the Fourteenth Amendment to the US Constitution.  A panel of 7 Justices (Kagan recused, Scalia deceased) found, 4-3, that UT Austin's affirmative action program is constitutional.

The Supreme Court held that the following 3 principles, essentially the instructions it gave when it remanded Fisher I back to the lower courts, applied:
1) "[A] university may not consider race 'unless... it [can] show that its 'purpose or interest is both constitutionally permissible and substantial, and that its use of the classification is necessary' to accomplish that purpose."  (This is what is meant by Strict Scrutiny)
2) "[T]he decision to pursue the educational benefits that flow from student body diversity is, in substantial measure, an academic judgment to which some, but not complete, judicial deference is proper."  Essentially, universities have to be able to make their own policies, and if a university thinks that diversity is good, the assumption is that it is.
3) "[W]hen determining whether the use of race is narrowly tailored to achieve the university's permissible goals, the school bears the burden of demonstrating that 'available' and 'workable' 'race-neutral alternatives' do not suffice."  Essentially, although the government should give the university the benefit of the doubt when it says diversity is a compelling goal, the university gets no benefit of the doubt on how it accomplishes that diversity, and must prove that it can't meet its goals without considering race.

The Supreme Court ultimately stated that Fisher had not shown she was denied equal protection of the law because of the University's rejection of her application.  The Court found, of the University's program:
1) It could not, as Fisher had demanded, more specifically articulate what the "critical mass" of diversity it desired was, because that would be the kind of quota-making disallowed in Bakke.
2) The University had clear goals - "promoting 'cross-racial understanding,' preparing students for 'an increasingly diverse workforce and society,' and cultivating leaders with 'legitimacy in the eyes of the citizenry'" - that could only be met through some measure of racial diversity.
3) Statistically, the University was able to show that the 10% law - a race-neutral policy - did not increase minority, whereas the race policy enacted in 2004 did; thus, the University was only able to accomplish its goals by using race.
4) Fisher pointed to the fact that including race, statistically, only made a small difference in the number of minority students admitted; the Court actually said this meant it was a good program, because it wasn't too overbroad.

III.C: #BeckyWithTheBadGrades

The hash-tag "#BeckyWithTheGoodHair" sprung up in the aftermath of Beyoncé's recent album "Lemonade", and that has humorously been coopted by Twitter, ahem, commentators on Fisher v. Texas, who have taken to calling Abigail Fisher #BeckyWithTheBadGrades.  As noted above, her admissions marks were rather terrible compared to the group of people who got in; even people who strongly believe that affirmative action is improper have sided against her, saying that she is not the sort of plaintiff who should be making the argument.

IV. Where Do We Go From Here?

Well, that's the discussion of what happened in the Supreme Court yesterday, in particular, and affirmative action in the USA, generally.  I've tried to be extremely neutral in my post above, so now I'll say where I come out on the issue: I am absolutely in favor of affirmative action, for the goal of increasing diversity in the university setting.  I am less convinced about the "redressing past issues" rationale, although by no means do I think it's bunk; rather, I think that it probably shouldn't be the main driver of affirmative action (that is, the main goal should be accruing the fruits of diversity for the benefit of all matriculants, rather than trying to bestow benefits on certain portions of matriculants, which is a laudable secondary benefit).

Thoughts on the Supreme Court case, the legal status of affirmative action in the USA, or - *gulp* - affirmative action in general?

Please please please respectful and nice and thoughtful and such

[TheRealJoeFish]

Sources:

Wikipedia: Affirmative Action in the United States
Regents v. Bakke
Grutter v. Bollinger
Fisher v. UT Austin (I)
Fisher v. UT Austin (II)

[Wyrd of Gawd]

According to the stats the university had 6,128 available slots that went unfilled. So why didn't the dummies fill those empty slots with students that had applied but been rejected on a first come, first served program?

What the whiner is complaining about is that she didn't get in because 5 minority students got in who had lower grades than hers. She wasn't bitching about the 42 white students with lower grades than hers that got in, but she's whining about the .0744% minority group that was admitted ahead of her and not a peep about the 6,128 slots that went unfilled.

Where's than damn asteroid!