University News

Affirmative action case draws nearly 100 amicus briefs

Senior Staff Writer
Wednesday, October 10, 2012


The U.S. Supreme Court will begin hearing arguments today in Fisher v. University of Texas at Austin to determine whether the university’s use of race as a factor in its admissions process violates the Equal Protection Clause of the Fourteenth Amendment. Along with other Ivy League schools and four other highly selective universities, Brown submitted a joint amicus brief to the court this summer in support of the University of Texas’ use of affirmative action.

“This decision is so important it can affect the welfare of other institutions,” said Beverly Ledbetter, vice president and general counsel for the University. “We have a vested interest.” 

Abigail Fisher sued the University of Texas in 2008 after she was denied admission to the school. The University of Texas system automatically grants admission to all Texas students who graduate in the top 10 percent of their class. This process fills 70 to 80 percent of admission slots. The remaining spaces are then filled through a more holistic and subjective process similar to Brown’s admissions system. 

Fisher did not graduate in the top 10 percent of her class and so did not gain automatic admission to the university. Fisher’s statement to the court argues that she was denied admission despite having better academic credentials than many minority candidates whom the university ultimately accepted.


Past precedent 

Three other Supreme Court cases have thus far established what types of affirmative action policies are constitutional for public universities, Ledbetter said.

The first major affirmative action case, Regents of the University of California v. Bakke, occurred in 1978. The court ruled that though diversity was a “legitimate interest” that permitted the use of affirmative action in some circumstances, strict quotas for different races were unconstitutional, Ledbetter said.

In 2003, the court convened again to determine the appropriate place of race in the admissions process, this time as it related to the University of Michigan’s law school in the Grutter v. Bollinger case and as it related to the University of Michigan’s undergraduate school in the Gratz v. Bollinger case.

While Michigan’s undergraduate school used a specific point system that gave applicants of minority races an extra 20 points out of the 100 they needed to gain admission, the law school used a less-defined process based more on the qualities of individuals. The court ruled that the undergraduate admissions process was unconstitutional, but the law school’s was permissible under the law. Considering race on an individual basis as part of a holistic admissions process was different from the quota system ruled unconstitutional in the Bakke case, the court found.

“It’s a very complicated situation, but it reaffirmed that yes, diversity is a compelling interest for universities and the nation,” Ledbetter said.


‘A vested interest’

The brief the University submitted encourages the court to uphold the decision it made in the Grutter case. It “says to the court that this is an issue important enough to us that we will weigh in on it,” Ledbetter said. 

Though the University’s admissions process is different from that of the University of Texas, there are “central components” of the Texas system that are supported by the colleges who submitted the brief, Ledbetter said. 

“Diversity is a compelling factor, and universities should have a great deal of liberty in executing their responsibilities,” she said.

Though Brown is a private school, it receives federal funding to assist with financial aid packages, said Jim Miller ’73, dean of admission. As a result, the court’s ruling could potentially affect Brown as well, Miller said. 

The impact of the University’s use of affirmative action during the admissions process is “hard to quantify,” Miller said. But the University seeks to create a diverse student body to expose students to different viewpoints and experiences. “In the end, you’re able to deal much more effectively in a world that’s increasingly complex and increasingly small,” he said.

It would be detrimental to the student body to be able to consider a wide variety of criteria in admissions, but not race, Miller said. 


A controversial policy

The University’s brief is one of around 100 that were submitted in support of either Fisher or the University of Texas.

Supporters of both the petitioner and the respondent have cited social science studies to illuminate the subtle effects of affirmative action policies. Some research suggests that such policies may harm the groups they are intended to benefit.

The use of affirmative action policies causes minority students to drop out of science, technology, engineering and mathematics disciplines at a disproportionately high rate, said Frederick Smyth, a research assistant professor of psychology and the director of the Full Potential Initiative at the University of Virginia.

Smyth’s study used data collected by other researchers that include the high school grades, SAT scores and intended majors of students enrolling in 23 selective institutions. He found that regardless of a student’s race, those whose high school grades and SAT scores placed them toward the bottom of their college class were more likely to drop out of STEM fields.

A key aspect of his data is that students’ relative scores were more important than their absolute scores, Smyth said.

“If they had gone to schools where they were selected just like everyone else and were around the mean on average, they are going to fare better and achieve their goal of a STEM career,” Smyth said. “The idea of building a sense of identity and confidence is instrumental in moving forward and making up ground … you are more likely to do that in an environment where you are competitive in terms of your background and preparation.”

The performance gap is especially notable in STEM fields because falling behind is more likely to lead to dropping out.

Despite these patterns holding true for students of all races, Smyth found that underrepresented minority students were far more likely to fall toward the bottom of the distribution and were disproportionately more likely to drop out of STEM fields. 

Admissions processes at schools “created enormous deficits for underrepresented minority students in terms of grades,” Smyth said. “Surmounting those gaps is a huge challenge.”

Universities like Brown need to be aware of such research, Smyth said, both so that they can evaluate their own admissions processes and, more importantly, s
o they can provide students with the data that may allow them to make a more informed decision about what type of school will maximize their chance at attaining their planned career.

But both Miller and Ledbetter were unconvinced of possible negative effects of affirmative action policies.

“I haven’t experienced a sense of people feeling like they’re overmatched here,” Miller said. “It doesn’t mean everyone has a perfect experience, but it’s often due to other factors – there’s lots going on in people’s lives.”

“I think it’s very difficult to take subjective measures, to take a component of a person’s life and predict how successful or unsuccessful they will be,” Ledbetter said. 

“The argument would be that because you were admitted because of some affirmative action criteria, you don’t have the confidence, the self-reliance that other people have and that is necessary for success,” Ledbetter said. “I don’t think you can show that. When you have early statistical data … you may not have selected for people who were positioned for success.”

The Supreme Court justices will likely take into consideration every brief submitted, Ledbetter said. 

In the Grutter decision, an amicus brief submitted by the military that relayed the critical importance of a racially diverse officer corps had a powerful influence on some of the justices, Miller said.

The Supreme Court will likely announce their decision in May or June, Ledbetter said.

“I don’t think there will be an abrupt departure from holistic review,” she added. 

One Comment

  1. It is disgusting that there are actually people in this day and age that still defend racial discrimination. If you support “affirmative action,” you are a bigot and a racist. There is no debating that. It is simply fact. The Supreme Court should have outlawed racial discrimination entirely many years ago and it is a national disgrace that we are still discussing this issue in 2012.

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