A Conversation We Should Have

by ursavoice

Professor Jonathan D. Glater
UCI Law

Talking about race is tricky. This month’s panel, convened by APALSA to discuss possible implications of the lawsuit filed by Abigail Fisher against the University of Texas at Austin, illustrated some of the risks.

No one wanted to talk about Abigail Fisher’s case. One speaker suggested that because of consideration of race by admissions offices, it was more difficult for Asian-American applicants to elite colleges to gain admission than it was for applicants of other races with comparable or worse scores—that is, that elite institutions discriminated against Asian-Americans. It was not clear whether he meant to refer to all Asian-Americans; the label covers a very, very broad and diverse group. But let’s leave that aside for now. He based his assertion on personal recollections of experiences of applicants to an elite college in Boston for which he conducted interviews. The connection to Abigail Fisher was not explicit but as I said, no one wanted to talk about Abigail Fisher’s case.

Implicit in his criticism of consideration of race in admissions is the idea that in the absence of such consideration, spots allocated to students of different racial or ethnic backgrounds would instead go to Asian-Americans. The evidence that this is what would happen if institutions stopped considering race is—well, there is no way to gather such evidence, but there is a line of reasoning here.

The implicit idea is that use of race in admissions constitutes pollution of an otherwise functioning meritocracy. If consideration of race as a factor in admissions interferes with a system that otherwise would rely only on merit, then if institutions stop considering race, then Asian-Americans (and Abigail Fisher) will gain admission to colleges and universities that currently give more slots to members of other minority groups.

Does Abigail Fisher contend that but for consideration of race, she would certainly have gained admission to UT Austin? No one wants to talk about Abigail Fisher’s case but if they had, they might have mentioned that the answer to that question is that she cannot make that claim. (To be fair, Dean Chemerinsky addressed the facts and arguments in the case squarely, but a misbehaving computer cut his prerecorded presentation tragically short.) In her complaint, Abigail Fisher asserts only that based on her test scores, grades and extracurricular activities, “it is likely that her application would have been accepted.” She asks for reconsideration of her application—a symbolic remedy now that she has graduated from another institution.

The idea of pure meritocracy is appealing. But access to elite institutions of higher education has forever been contested, with different groups excluded at different times. A discussion of how to measure merit might be helpful.

In criticizing the effects of consideration of race in admissions, one speaker said that his study of the academic performance of African-American college students found that many earned poor grades. The implication was that students who earn poor grades should not have been admitted in the first place. Speaking from personal experience, which in debates over use of race in admissions seems routine no matter how lacking in empirical rigor, I have certainly found that people who do poorly on exams often learn a lot and contribute mightily to their communities after doing so.

Opponents of consideration of race in university admissions frequently suggest using socioeconomic class as a substitute criterion. Let me put aside the difficulty of reconciling this proposal with a commitment to rely on merit as revealed through test scores. Instead, I note a different problem: The tests universities rely on to measure merit already have a disparate, negative impact on test-takers who are poor. So reliance on standardized tests is in tension with efforts to increase the number of college students from poorer backgrounds. This raises some troubling questions about how we measure merit. Again, a discussion of how we should measure merit might be constructive.

Just one more topic: the number of students who benefit from “affirmative action” and who deprive other, more meritorious students of slots at university. Here are some facts and figures from Abigail Fisher’s Supreme Court brief, which is online here:
http://www.americanbar.org/content/dam/aba/publications/supreme_court_preview/briefs/11-345_pet.authcheckdam.pdf

UT Austin fills about 80 percent of its entering class under Texas’s “Top Ten Percent Law,” which requires the institution to admit all Texas high school seniors ranking in the top ten percent of their classes. This program does not take race into account.

In 2008, 5,114 of the 6,322 students enrolling at the university were admitted because of the Top Ten Percent Law. Of the 1,208 who were admitted through a review process that took into account the race of the applicant, 216 were African-American or Hispanic—3.4 percent of the enrolled first-year class. In her brief, Ms. Fisher writes that race may have been decisive for 33 of those students. Not that anyone wants to talk about Abigail Fisher’s case.

There is a real conversation to be had here, about how best to measure merit and how best to allocate access to higher education. It is a difficult conversation. It is a conversation we should have.

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