Missing the forest for the trees

March 01, 2012 | By JOSHUA THOMPSON

Over at The Volokh Conspiracy Professor Ilya Somin wonders whether Fisher may turn out to be a Pyrrhic victory for opponents of racial preferences. He argues:

If the Supreme Court strikes down explicit race-based affirmative action, but endorses the ten percent plan and other similar ‘race-neutral’ subterfuges, we might end up with the worst of both worlds. Racial preferences in university admissions would not disappear. They would instead become less transparent and more costly to society by creating more perverse incentives like those of the ten percent plan.

I’ll explain the problems with his view after the jump.

First.  To the extent that Professor Somin’s argument is a critique of the “diversity rationale” broadly, it is certainly something that I support.  Indeed, I have previously blogged favorably about Professor Somin’s diversity critiques.  “Diversity” elevates group rights over individual rights, and, in so doing, requires universities to stereotype individuals in order to fit them into the “right” racial group.  Professor Somin is correct in his criticism of the Top Ten Percent Law, insofar as it is a critique of the “diversity” rationale generally.

Second. I also agree that a result that would have universities go underground (i.e. mask their racial preferences) is not optimal.    Professor Somin explains, “[I]t is more likely that harmful effects will remain unmonitored and undetected. If public universities are going to strive for racial diversity, the costs and benefits of doing so should be as transparent as possible.”  He is absolutely right, and few deny that underground preferences are getting more pervasive at elite institutions.  Harvard and Princeton are currently being investigated for discriminating against Asian students.  Of course, Harvard doesn’t use racial preferences (wink, wink), they use a “holistic” process, and “give serious consideration to all of the information [they] receive.”  They aren’t fooling anybody.  When the SAT scores for Asians must be hundreds of points higher than those of other minorities, “holistic” review shows its true colors.  The time will come when these underground discriminatory policies will be put under the constitutional microscope.

Third. I disagree with Professor Somin that the Top Ten Percent Law is an example of underground racial preferences.  Unlike “holistic” review, finishing in the top ten percent of your high school class is an objective (race-neutral) criterion that can be judged on its face, and permits no obfuscation by university admissions officials.  If you make the grade, you get in; if you don’t make the grade you are out.  While it’s true that the Top Ten Percent Law was passed in order to increase racial diversity,  this is much more out in the open than most preference policies.  Whether a law passed with this intent is unconstitutional is a topic I will return to shortly, but it’s incorrect to analogize the Top Ten Percent law to those policies that are blatant underground racial preferences.  Not only is the Top Ten Percent Law known, monitored, and transparent, but it also achieves its diversity goal without looking at skin color.

Fourth. Professor Somin does raise some potentially valid criticisms against the Top Ten Percent Law. To summarize: (a) it doesn’t necessarily admit the most academically qualified candidates; (b) it leaves the university little flexibility in its admissions decisions; (c) it allows students to “game” the system by taking weaker classes or transferring to weaker schools; (d) it hurts (better qualified) minorities that go to better schools when they don’t get into the top ten percent of their class.  While each of these criticisms may be true, I do not think they significantly undercut the utility of the Top Ten Percent Law.  Professor Somin’s point is that the Top Ten Percent Law may actually be worse than an overt preference scheme.  But, I do not see how that can be the case.  Let’s tackle each criticism he levels agaisnt the Top Ten Percent Law.

As to the first concern — failure to admit the most academically qualified — it is undoubtedly more true of straight racial preferences.  Preferences, definitionally, let in those who are less academically qualified. Under a preference regime, someone is getting in because of their skin color.  Under the Top Ten Percent Law someone is getting in because of their grades.  Professor Somin’s critique may be valid against an imaginary world where SAT, GPA, and class schedule are the only criteria univerisities look to when admitting students.  But the complaint loses all purchase when compared to the pro-preferences status quo. Further, I’m not even sold that the Top Ten Percent Law does, necessarily, admit the “lesser qualified.”   Class rank has been used as an objective criterion since the beginning of time.  Is a student that was in the top 13% of her class with a 1400 SAT better qualified than a student in the top 5% of her class with a 1300 SAT?  Maybe.  Who knows?  The Texas legislature made a policy decision to weigh class rank higher.  It can always re-evaluate that decision, but it is not per se racially discriminatory, because students are not treated differently on account of race. Most of all, the criticism is surely not a reason to favor preferences over the Top Ten Percent Law.

As to the second concern — leaving university officials with little flexibility — I don’t know why that is necessarily a negative either.  As Professor Somin points out (and I agree), one of the major problems with university admissions officials is their tendency to favor skin color discretely.  Providing them fewer loopholes to subvert the Equal Protection Clause was a decision by the Texas legislature.  Of course, there are benefits to giving university officials more discretion, but whether to grant them that discretion, and how much discretion to grant them, is within the purview of the legislature.

The third criticism — allowing students to game the system — is a legitimate gripe.  With respect to taking less difficult classes, I suspect that Texas high schools “weight” more difficult classes in order to reward students’ GPA.  [When I went to high school, if you took a weighted class, your grade point for that class was based on a 5.0 scale.  Thus, earning a “B” in a weighted class was akin to earning an “A” in an unweighted class.]  Whether that is the case, the law does allow talented students to transfer into less rigorous schools in order to maximize their chance of finishing in the top ten percent.  Accordingly, the law certainly has the potential to be abused.  I would be interested in knowing how often this happens. Despite the anecdotes Professor Somin cites, I am unconvinced this is a serious problem.  But even if it is occurring on a large scale, I would still argue that this is a proper subject for the Texas legislature.  Determining local education policy — who can transfer where, what discretion public universities officials have, how best to improve local schools — these are decisions that can be made at the local level.  If the Top Ten Percent Law does indeed hurt more than it helps, the legislature can change course.

The final unique criticism of the Top Ten Percent law — that it hurts better qualified minorities — is interesting.  One of the criticisms that is often leveled against racial preferences, is that the under-represented minorities who are accepted, are not those that have been held back by societal discrimination.  In other words, the black student from Beverly Hills is more likely to gain admittance to UCLA than is the black student from Compton. Professor Somin is arguing that the Beverly Hills student (according to academic preparedness criteria) should, in justice, be gaining admittance over the Compton student.  I understand the criticism and feel the plight of the black Beverly Hills student who was denied admittance.  But isn’t this the same critique that is leveled against preferences (or the diversity rationale) generally?  Under preferences, some student of a favored race is preferred over a (more academically prepared) student of a disfavored race.  Here, it is just certain students of the same race that are better or worse off, but, importantly, it is not because of their race that they are worse off.  Regardless, Professsor Somin’s criticism is of the “diversity” rationale generally; it is not a unique criticism of the Top Ten Percent Law.

To sum up my fourth point, Professor Somin’s criticisms of the Top Ten Percent law fall into two categories: (1) a bad policy choice; or (2) a “diversity” critique.  I don’t necessarily disagree with these criticisms, but I also don’t think the Top Ten Percent Law makes the situation worse.  The Top Ten Percent Law is a race-neutral means of achieving a racially diverse student body.  While I am skeptical of that goal, I don’t think the means are constitutionally suspect.  And in fact, I believe it is an improvement over policies that admit or deny students based on their skin color.  I also think it is an improvement over “holistic” review policies that basically do the same thing.  And so while the Top Ten Percent Law is not perfect, it’s a step in the right direction.

Fifth.  Professor Somin makes an interesting historical point about the Jim Crow South, where governments routinely passed facially neutral laws that had the effect of discriminating against blacks.  Importantly, however, poll taxes and literacy tests were never ruled per se unconstitutional.  It wasn’t until Congress passed Section 5 of the Voting Rights Act, that a solution to these discriminatory laws was found.  My point is that some racial problems have legislative solutions.  Perhaps the end of the diversity rationale, and underground discriminatory admissions policies is one of them.

But, is the Top Ten Percent law unconstitutional?  Maybe.  It was undoubtedly passed in order to increase racial diversity throughout the University of Texas.  I suspect Professor Somin is correct in that there will be lawsuits in the future challenging similar race-neutral laws.  I, for one, have less problem with the objective criterion inherent in the race-neutral Top Ten Percent Law than I do for the race-neutral, but wholly subjective, “holistic” review policy.  But, even if as a result of Fisher, states pass similar laws in an attempt to increase diversity through race-neutral means, I would not see this as a Pyrrhic victory.  It’s an important, much needed step towards achieving equality under the law.

I am going to conclude with that point. In a world where the counter-constitutional principle of “diversity” is rejected, I think Professor Somin and I would not be far apart on the wisdom of the Top Ten Percent Law.  Further, he is probably right in a lot of the criticisms he levels against the Top Ten Percent law — in an imaginary world where diversity is rejected.  But none of that means that a Supreme Court victory in Fisher, even if it upholds race-neutal means to achieve diversity, would be a Pyrrhic victory.  Such a decision would seriously hamstring universities that overtly discriminate on the basis of race.  It wouldn’t be the end of the war for equality under the law, but an important battle would be won.