The College Fix

The National Association of Scholars has filed a friend-of-the-court brief alongside the Pacific Legal Foundation, the Center for Equal Opportunity (CEO), Project 21, and the American Civil Rights Institute asking the United States Supreme Court to take another look at Fisher v. University of Texas.

The original suit was brought forth by Abigail Fisher in 2008. She wanted the court to rule that Texas’s race-based admission policy was “inconsistent” with the 2003 Grutter ruling. Grutter’s 5-4 decision held that a university had a legitimate interest in achieving a “critical mass” of minority students — essentially defined as that

“… to ‘ensure that … minority students do not feel isolated or like spokespersons for their race; to provide adequate opportunities for the type of interaction upon which the educational benefits of diversity depend; and to challenge all students to think critically and reexamine stereotypes.'”

(You might surmise — correctly — that universities have a lot of leeway in determining just what their “critical masses” need to be.)

Texas won in district court and again in the Fifth Circuit Court of Appeals.

In 2012, however, the US Supreme Court nixed the Fifth Circuit’s ruling and remanded the case, the majority saying the circuit court did not apply the “strict scrutiny” standard when siding with UT.

“Strict scrutiny” with regards to race-based college admissions was established in the 1978 Bakke case, and confirmed in Grutter.

Justice Anthony Kennedy said in the 2012 Fisher review that “a university must clearly demonstrate that its purpose or interest is both constitutionally permissible and substantial, and that its use of the [racial or ethnic] classification is necessary . . . to the accomplishment of its purpose.”

The lower courts gave the University of Texas the benefit of the doubt; they didn’t ask for a definition of the aforementioned “critical mass,” nor how it actually helps academics.

From the NAS (Fisher) brief:

If “critical mass” is wholly subjective, then lower courts cannot determine whether any given race-conscious policy is “not a quota,” “sufficiently flexible,” and “limited in time.” Fisher, 133 S. Ct. at 2421. Moreover, without clearly defining “critical mass,” lower courts are unable to scrutinize whether race-neutral alternatives would provide the same benefits at a lower cost to individuals subject to a university’s discriminatory admissions practices.

Speaking of benefits, back in 2001 the NAS shredded the notion that “critical mass” — and the equally subjective “diversity” — is actually beneficial to academic achievement.

From that study’s executive summary:

In fact, the very database on which the University of Michigan relies shows that there is no such connection. This was first pointed out in the amicus brief sub mitted by the National Association of Scholars in Gratz v. Bollinger in July 2000. Our present report comprises the first full, in-depth explication of the errors on which the University of Michigan has based its case.

To test the claim that racial diversity produces educational benefits, one needs extensive student data from a nationally representative sample of campuses with sufficient variance in the proportions of minorities. There is one (though only one) such data set, a product of the Cooperative Institutional Research Program (CIRP), which was founded in 1966 by the American Council on Education (ACE) under the direction of Alexander Astin.

Our central point is this: the appropriate statistical analyses show that one should reject the claim that campus racial diversity is positively connected with educational benefits. That is, after controlling for other explanatory variables, there are no educationally significant positive relation ships between the racial diversity of an institution and any of the 82 cognitive and non-cognitive student outcomes included in the study.

The NAS reiterates in its Fisher brief what Justice Kennedy says above, further noting “[the] Court’s decision in Fisher explained that public universities must seriously consider whether the educational benefits of race-conscious admissions can be achieved in a less discriminatory and costly manner.”

Thus far, the Supreme Court’s warning “has fallen on deaf ears.”

Here’s hoping the high court will settle the matter once and for all this time.

Read the full friend-of-the-court brief.

Dave Huber is an assistant editor of  The College Fix. (@ColossusRhodey)

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