The following contribution to our Fisher symposium comes from Stuart Taylor, Jr., a fellow at the Brookings Institution, and Richard Sander, Professor of Law at UCLA.. Their forthcoming book is Mismatch: How Affirmative Action Hurts Students It’s Intended to Help, and Why Universities Won’t Admit It. Mr. Sander and Mr. Taylor filed an amicus brief at the merits stage in support of neither party in Fisher, as well as an amicus brief in support of the petitioner at the certiorari stage.

We offer three observations for this symposium: first, some thoughts on how Fisher can reform Grutter; second, observations on the social science offered in this case; and third, a comment on the broader issues, and proper path for reform, in the Court’s longer-term jurisprudence on affirmative action.

Justice O’Connor’s formulations in Grutter v. Bollinger have clearly not achieved their professed intent to limit racial preferences to situations where a university (a) articulates clearly its objectives, (b) explores and exhausts race-neutral methods for achieving those objectives, (c) avoids racial balancing, (d) evaluates race as an individual facet of diversity, not as a group characteristic that counts the same way for all members of a racial group, and (e) sets out a timetable for phasing preferences out.  Empirical evidence that we and others have carefully laid out shows, for example, that many universities are using racial preferences that are larger and more mechanical than those used before Grutter, and that – whether schools call their admissions “holistic” or not — race is being applied in a uniform way to all persons who can plausibly (and sometimes implausibly) be counted towards racial balancing objectives.

The Court can clarify this doctrine by putting teeth in Grutter‘s narrow-tailoring requirement to vindicate equal protection principles that the Court has articulated but has not so far enforced. Specifically, it should strike down the University’s racial-preference regime based on evidence that it (and other schools) have made a mockery of Grutter‘s holdings that consideration of race should be a last resort, after “serious, good faith consideration of workable race-neutral alternatives”; that the Constitution forbids both “racial balancing” and “enshrining a permanent justification for racial preferences”; and that “[t]he Court expects that 25 years from now, the use of racial preferences will no longer be necessary.” Contrary to these principles, Texas adopted its racial-preference plan with no serious consideration of race-neutral alternatives; explicitly pursues proportional representation of all racial groups in the state (i.e., racial balancing); and seeks to have a “critical mass” of each racial group in every class, which is a formula for many, many more decades of racial preferences.

Second, we have seen in this case – as we saw in Grutter and Gratz – a wide array of evidence offered to the Court for the idea that current racial preferences programs valuably enhance the diversity of university campuses, and that even a diversity that seeks racial balance in every classroom (the UT policy) satisfies compelling state interests.  The research adduced by the University and its amici on these points is remarkably uniform, and also remarkably empty.  Diversity achieved through large racial preferences creates a serious and self-evident danger of fostering or hardening racial stereotypes, because large preferences create large, color-coded differences in academic and classroom performance.  Careful empirical research shows that very large racial preferences also increase social distance between races, because students are more likely to form friendships with other students with similar levels of academic preparation.  Moreover, the “science mismatch” effect means that students who receive large preferences and arrive on campus hoping to major in the sciences or engineering end up finding they cannot compete and retreat to “softer” majors.  This means that the more aggressive the preference, the greater the tendency for blacks and Hispanics to self-segregate in corners of the university.  This is the opposite of the University’s stated intent and rationale for using preferences in the first place.

Third, we think that a mounting volume of social science evidence shows that academic mismatch is a very broad problem that infects current racial preference programs at nearly every level.  Blacks who want to be scientists, physicians, and engineers end up switching to other fields to survive academically; black and Hispanic law students are placed through preferences at schools where their chances of failing the bar exam are doubled or tripled; would-be minority academics get poor grades and end up abandoning plans for academic careers; and black and Hispanic graduation rates at state universities are seriously depressed by mismatch. In the process, students suffer grave damage to their intellectual self-confidence.  We outline these harms in our brief and, in far more detail, in our forthcoming book: Mismatch: How Affirmative Action Hurts Students It’s Intended to Help, and Why Universities Won’t Admit It.

Evidence of harms to preferred minorities is not formally before the Court in Grutter — because the plaintiff did not make it an issue, and because Texas and other universities carefully conceal such evidence – but the Justices are apparently aware of the phenomenon.  When a future case brings this issue before the Court, the evidence that large racial preferences harm students of all races — combined with Grutter‘s holding that “[n]arrow tailoring . . . requires that a race-conscious admissions program not unduly harm members of any racial group” (emphasis added) — should doom the system of large racial preferences at all major universities today.

We do not think that a generalized ban on racial preferences is the best solution, at least not in the short run. Our research has found that universities have evaded legal bans in California, Michigan, and elsewhere with results that are in some ways worse than racial preferences. Second, the reforms proposed below seem likely to be more effective and are more consistent with the principle of judicial self-restraint.

Reform One: Transparency. The single most important step forward is to adopt a comprehensive system of disclosure. The Supreme Court could mandate that any university that wishes to take the race of students into account in admissions must make its system of preferences (including legacy and athletic preferences) and their consequences transparent both to applicants, to help them make more informed decisions, and to the public, so that researchers, legislators, the media, the courts, and all other citizens can evaluate the accuracy and completeness of the information provided to applicants.  For example, a student admitted to a particular school should receive, with her acceptance letter, an analysis of how students with similar SAT scores and high school GPAs have performed at the school, such as their eventual GPA and their success in securing a four-year degree in their intended major.

Happily, a transparency mandate is already implicit in Grutter. As both logic and experience have shown, Grutter‘s narrow-tailoring requirements are largely meaningless without full disclosure of the operation and effects of preferences. Secret admissions can’t possibly be narrow tailoring.

Reform Two: Targeting Economic Need Before Racial Identity. Despite the Court’s recognition that the harm done by racial preferences grows with their size, it has never imposed a size limit, perhaps because of the difficulty of determining how large is too large. One solution to this dilemma – which would also have the highly beneficial side effect of returning affirmative action to its original social-mobility goal – would be to require that the racial preferences a university uses be no larger than the average size of preferences based on an individual applicant’s financial need or socioeconomic status (SES).

Socioeconomic diversity is every bit as compelling an interest as racial diversity, but most selective schools have grossly neglected the former. Creating an “SES cap” on racial preferences would provide incentives for universities to take seriously their obligations to seek race-neutral ways of pursuing diversity; would inhibit unconstitutional racial balancing; and would foster simple justice to the economic have-nots who have been so sorely neglected by our selective universities.

Data show that affluent racial minorities have far greater access to our universities than do low-and moderate-income students of any race. Students from the bottom quarter of the SES spectrum are about eighty percent less likely to enter college than are students with similar academic credentials from the top fifth. This is a shocking state of affairs, especially at a time of rising concern about economic inequality, and our proposed remedy would help change it.

Reform Three: Outlawing Race-Based Aid Awards. Our third proposed reform would reinforce the effectiveness of the second and is eminently warranted in its own right: The Court should, in a proper case, prohibit state schools from using racial preferences in awarding financial aid and scholarships. Such awards do not increase by much, if at all, the aggregate number of black and Hispanic students in college; rather, they fuel zero-sum bidding wars among competing campuses for the limited supply of blacks – most of them very affluent — with strong academic qualifications. Today, blacks from high-income families receive far more scholarship aid than whites and Asians from low-SES families.

Eliminating race-based scholarships would give a push to our other reforms, too.  With aid focused on need rather than race, schools will have more incentive to tap into the supply of academically strong, low-SES students of all races.  Left out of bidding wars, black and Hispanic candidates may well focus on the information provided by each school and choose schools based on actual outcomes.

In sum, our proposals would require a healthy transparency and provide incentives for schools both to avoid the mismatch effects that come with large preferences and to serve much larger numbers of promising working-class and low-income students.

Posted in Featured, Fisher Symposium

Recommended Citation: Richard Sander, Online Fisher symposium: A path to radical reform of racial preferences without banning them, SCOTUSblog (Sep. 4, 2012, 5:45 PM), http://www.scotusblog.com/2012/09/online-fisher-symposium-a-path-to-radical-reform-of-racial-preferences-without-banning-them/