Who Has Time For This Nonsense?

A few years ago, when my kid, Samira, was eight-years-old, she picked up her e-reader and started a little book called Fisher v. University of Texas at Austin (Fisher II, PDF).

That “book” was a 2016 U.S. Supreme Court opinion. I’d sent it to my e-reader, which is connected to my children’s devices. Samira reads everything she gets her hands on. 

But with Fisher, she stopped at 13%, abandoning it to read something with a more sympathetic main character. She called it “the most boring book ever,” saying, “it’s just about some girl who couldn’t get into college.”

More specifically, Abigail Fisher, the white plaintiff in the case, didn’t get into the college of her choice, the University of Texas, and she blamed the University’s mildly race-conscious admissions process for it. 

In truth, Abigail Fisher was a good, but hardly exceptional, student who was trying to get into a highly selective school with a multi-factorial admissions policy. Even if she had been a different race, the outcome of the admissions process probably would have been the same. Many Black and Latinx students with grades and test scores as good or better than Abigail’s also didn’t get in, and some white students with worse academic credentials, did.

The admissions process included consideration of an applicant’s “special circumstances.” Factors included an applicant’s socioeconomic status, family responsibilities, their spoken language at home, whether they live in a single-parent home, their standardized test score compared to the average score at their school, and their race. 

“Therefore,” as Justice Kennedy explained in the decision, “although admissions officers can consider race as a positive feature of a minority student’s applica­tion, there is no dispute that race is but a ‘factor of a factor of a factor’ in the holistic-review calculus.” 

This admissions policy survived Abigail Fisher’s challenge. It did not violate the Equal Protection clause of the United States Constitution, which applies to public entities. 

This decision is four years old, coming shortly before Donald Trump became President of the United States. It was one of several similar challenges at the time, and since then, the attacks on race-conscious university admissions policies have continued. 

For example, in Students for Fair Admissions v. President and Fellows of Harvard College (Harvard Corporation), a group alleged that Harvard’s multi-factorial undergraduate admissions policy violated Title VI of the Civil Rights Act, which applies to private schools that receive federal funding and imposes the same standards as the Equal Protection Clause. They argued that the process penalized Asian American students while favoring students from other racial backgrounds, including white students, and the goal was to prohibit Harvard from considering race in the process. In 2019, after a bench trial, the federal district court ruled in favor of Harvard. The case is on appeal, and in February 2020, the Trump Administration’s Department of Justice (DOJ) filed an amicus brief against Harvard’s admissions process.

Yale, where I went to undergrad, is facing a similar line of attack. A few days ago, the DOJ announced their finding that “Yale illegally discriminates against Asians and whites” in violation of Title VI. Yale denies the allegations, saying that the DOJ’s investigation, which started two years ago, failed to involve a full review of the information they received.

In the class of 2023, about half of matriculated students identify as white and a quarter identify as Asian American. I don’t know the specifics of Yale’s current admissions practice, but it’s unlikely that it’s very different from all the policies that courts have already upheld. It’s also hard to believe that any school with a preference for legacies is somehow discriminating against white people. Yale was a very white place when I went there.

It’s a shame that our DOJ spends its time and our nation’s resources on nonsense like this.


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