A Legal Brief Supporting Affirmative Action

I credit one book in particular to be instrumental to developing my framework and theory on diversity: Problem Definition and the Course of Public Policy in America (2015). Here’s an Amazon link.

  1. Introduction

In Fisher v. The University of Texas at Austin, we believe that the court should uphold the decisions of Grutter and Bakke and reaffirm the University of Texas’s compelling interest in seeking the educational benefits of racial diversity and its use of racial consideration as a part of a holistic process.

Precedents established in Previous Supreme Court Cases

In Regents of the University of California v. Allan Bakke (1978), the issue presented was whether or not the special admissions program of the University of California, which reserved a predetermined amount of spots for minority students, was constitutional or whether including race in the admissions process violated the Equal Protection Clause of the Fourteenth Amendment. The court held that accepting a predetermined minimum of minority students was unconstitutional and did not guarantee a diversity of viewpoints in the educational environment, but considering race in the admissions process was permissible under the constitution.

The issue set forth in Barbara Grutter v. Lee Bollinger, et al. (2003) was whether diversity constituted a compelling interest that could justify the narrowly tailored use of race in a public university’s admission process. The Supreme Court ruled for the Defendant, holding that diversity is a compelling interest that can justify a narrowly tailored race-conscious admissions process.

Both cases accept that the use of race as a portion of the admissions process that incorporates other factors is constitutional under the Fourteenth Amendment. The Petitioner has not moved to challenge either of the aforementioned Supreme Court cases and thereby accepts the precedents set by each. These multi-factored processes describe the process by which UT holistically evaluates applicants who are ineligible for admission under the Top 10% Law passed in 1997.

Summary of Petitioner’s Argument

In her current challenge of UT’s holistic admissions policy, Petitioner, Abigail Fischer, has raised certain arguments against UT. In order to establish a common framework for the evaluation of this case, we outline the arguments which the Petitioner has brought forth against the university. The Petitioner points out that there are three main requirements UT must meet in order to survive the application of strict scrutiny. These include:

  1. Articulating a clear and compelling interest in educational diversity,
  2. Recorded evidence from the university that shows the university articulated and justified that interest at the time the decision to use racial preferences was made; and
  3. Proof that the use of race is necessary to achieve its articulated interest.

The Petitioner claims that UT meets none of these requirements. The Petitioner claims that UT:

  • Has never been clear about the precise reason that it needs to utilize race.
  • Utilized shifting justification, expressing a new interest in ‘intra-racial diversity’ after the commencement of litigation.
  • Is guilty of stereotyping minority and non-minority students; and
  • Failed to show that the desired results could not be achieved through race neutral means since UT makes no qualitative assessment of students admitted through Top 10% Law.

These reasons constitute the Petitioner’s arguments against the ability of UT’s policy to survive strict scrutiny. Furthermore, the Petitioner asserts that for these reasons, UT has abandoned its representational and classroom diversity interests.

  1. UT Has an Interest in Including Race as Part of the Admissions Process

All else being equal, race provides unique challenges that colleges should consider when evaluating applicants

We would like to isolate why race in particular and even by itself is such a differentiating factor in shaping one’s identity. As much as we would wish to live in a post-racial society, we absolutely do not.

To illustrate the sheer racial obstacles students face in isolation, we can follow the journey of two people in disadvantaged households, from birth to the age of 18. Circumstances are almost identical. They even go to the same school. However, the only difference is that one person is Caucasian and one person is African American.

Racially based Stereotype Threats Contribute to Achievement Gaps

One key aspect of why race makes one person different from another is the role stereotypes and stereotype threats play in achievement gaps. In a high-level summary of a wide body of psychological research, The American Psychological Association concluded that “even passing reminders that someone belongs to one group or another, such as a group stereotyped as inferior in academics, can wreak havoc with test performance.”

In a series of experiments published in 1995 by Claude Steele (Stanford University) and Joshua Aronson (UT Austin), experimenters administered a difficult Graduate Record Examination (GRE) to a group of 114 Stanford students of both genders who were either African American or white. In one group, they told students that the test measured intellectual ability (diagnostic test). In a second group, they told the students that the task was a problem-solving task that indicated nothing about ability (non-diagnostic test).

The study found three notable results. First, African American participants in the diagnostic group performed statistically significantly worse than African American participants in the non-diagnostic group. Second, African American participants in the diagnostic group performed statistically significantly worse than white participants within that same diagnostic group. Third, African Americans in the non-diagnostic group had sufficiently similar scores to white within that same non-diagnostic group.

In one of their follow-up experiments, Steele and Aronson told students that the test was not a measure of intellect. However, they had students report their race before taking the test. Even in this experiment, African American students scored statistically significantly worse than white students.

Before we move on, we should readily acknowledge that what is true for a small number of student volunteers from Stanford University in the 1990s is not necessarily applicable to America as a whole.

However, the problem may be even worse when applied to local communities. As admits of Stanford, a highly selective school, these African American students are highly accomplished individuals, and are more likely to see themselves as equals compared to peers from different ethnicities or backgrounds. African Americans in disadvantaged communities may not have the same confidence in their academic ability.

Stereotype Threats are effectively impossible to avoid

When examining under what circumstances stereotype threats apply, the most disheartening part is that it may be inadvertently caused by well-intentioned people or peers operating under unhealthy institutions and societal trends. Before students reach an age where critical thinking and higher level thinking become a normal and frequent part of the curriculum, they may conflate academic performance with intelligence in such a way that grades become associated with a fixed mindset. Societally, people sometimes mistake hard work with intelligence, phrasing praise in ways that drive intrinsic association (“she is so smart!”) rather than extrinsic association (“she is such a hard worker!”) In pop culture, such as Hollywood, minority ethnic groups are overwhelmingly cast into one-dimensional stereotyped roles, and rarely do we see any semblance of complexity or nuance in their portrayal. It only takes so much exposure before students learn to associate intelligence (perceived as an inherent or fixed trait) with academic ability, rather than with factors they can control, such as hard work or diligence. Once this thinking becomes entrenched in a student’s mind, it is disproportionately difficult to unlearn.

Even in the best case scenario, where teachers actively fight stereotypes and challenge their students on the basis of effort rather than relative grades, they may not be able to successfully reverse this intrinsic association. And not all teachers will pay close attention to these factors.

Achievement Gaps are likely to self-reinforce and widen over time

After generously assuming that neither student has been affected by stereotype threats in the first 5–6 years of their lives, both students start their first year where curriculum subjects are introduced: first grade. Both students spend the year learning how to read and write. However, for any number of reasons, perhaps something as benign as linguistic diversity, the African American student adopts a distinct reading voice. Even an outstanding teacher may have a slight bias against that difference compared to standard American English, and act in ways that subtly favor the white student over the African American one. The African American student instinctively realizes that he is being treated differently. And here the divergence begins.

By definition, when one student is treated differently from another student, they are operating under different incentives. And even the slightest shift in incentives (again, unintentional and probably unnoticed) can alter behavior in highly complex ways. If the African American student does not feel sufficiently valued, he may lose motivation over time. Alternatively, he may act out (i.e. misbehave) in an effort to draw attention to himself. More optimistically, he may work even harder to differentiate himself from the white student. However, more likely than not, these behavioral changes may reinforce the notion that he is a worse student, even if he exerts an identical amount of initial effort and learns concepts at an identical pace. These small changes, when applied throughout the school year, then throughout K-12 education, can eventually lead to wide gaps. For instance, if the African American student reaches 99 % potential every given year, that will cumulatively translate to 88.6 % after 12 years, a sizable gap. If it gets to the point where the white student is sorted into a more rigorous class and the African American student into a less rigorous class, the divergence only accelerates.

Worse, this example tries to replicate something as close to a post-racial society as we can get. We seriously doubt that the circumstances will be anywhere near as ideal in reality.

Stereotype threats adversely affect minority students and drive divergence in results even when all else is equal, including effort and learning ability. When assessing an applicant, we believe that race serves as a useful corrective mechanism for structural factors that drive divergence in results.

Why Diversity is Important

Let us examine UT’s core mission and values. Our defining motto is that “what starts here changes the world.” Our core purpose is to “transform lives for the benefit of society,” and we want students at UT to serve as a “catalyst for positive change in Texas and beyond.” We have six core values: learning, discovery, freedom, leadership, individual opportunity, and responsibility.

Let us talk about what it takes to ensure that our students are properly equipped to become future leaders in the workforce and pillars of the community. We want our students to graduate from college as well-rounded individuals, having had additional insight in what they are most passionate about, and having incorporated a variety of viewpoints to shape their worldview.

In order to do so, it is our firm belief that racial diversity is an absolutely critical element in furthering these goals.

Diversity maximizes information exposure, which is critical for diagnosing problems and devising effective solutions

From a learning perspective, there are two prevailing organizational theories on the distribution of information: entropic search, and expert search. The former embraces a rich tapestry of perspectives and viewpoints to better define the problem, and features an even-handed forum where vibrant discourse can be held. Expert search emphasizes a single qualified viewpoint to drive “clarity,” control, and hierarchy in decision making. For situations where the problem is well-defined and the solution is clear, expert search is a superior structure, and can allow for smooth long-term decision making. However, even in scenarios where a well-established and respected solution appears to be the best course of action, continual scrutiny may very well show that there are unexpected challenges in implementation or unintended consequences that necessitate additional information (from all stakeholders involved) to resolve.

However, a lot of challenges we face in the real world are extremely complex and feature an incredible amount of nuance. We want our students to aspire to fixing the most challenging issues our world faces today. These issues are often highly interdependent: a change in one part of the system will inevitably produce side effects and even unintended consequences in a different part of the system. It is in this context of problem definition where a refined form of entropic information, “organized anarchy,” thrives. We want to maximize the diversity of perspectives available to us when defining the scope of the problem and how different pieces of the puzzle interact. This entails bouncing ideas off each other in a vibrant discourse, undergoing root cause analysis to unpack ideas and glean underlying assumptions, and then verifying whether or not these underlying assumptions are reasonable. At some point, to minimize the risk of informational overload and cognitive capacity, entire viewpoints should be crystallized in a presentable form whilst ensuring that this summarization is consistent with the views of the groups who originally expressed these views.

An organized anarchy is an optimal environment for innovation: where multiple ideas have an opportunity to flourish, and where there is fierce equality of opportunity among different ideas, there is rapid diffusion of knowledge; the best ideas would be further considered, and, with proper execution, they may eventually become mainstream features of society. Organized anarchy also presents a fantastic check against groupthink, because dissent and clarification of unclear aspects are key features of the system.

In short, we believe that diversity in general presents the optimal environment for facilitating learning and for instilling a strong respect of multiculturalism. Racial diversity breaks down racial stereotypes and increases awareness of racial issues and systemic racism. It can be seen as an information subsidy or externality, which is of substantial benefit to students at UT Austin. As a positive externality, racial diversity is something that race-blind alternatives alone cannot effectively reach.

Ethnic Minorities are disproportionately affected by different obstacles, which influences their backgrounds, their beliefs, and the conviction of those beliefs

Students with minority ethnicities are far more likely than their white counterparts to experience additional difficulties. In 2014, 26% of African Americans and 24% of Hispanics lived in poverty, compared to 10% of whites. 66% of African American and 42% of Hispanic children lived in single-parent households, compared to 25% of whites. Wealth inequality along racial lines is consistent and has been growing since the Great Recession: African Americans and Hispanics lost close to half their wealth since the 2008 financial crisis, and in 2013, the median net worth of whites is 13 times and 10 times greater than the median net worths of African Americans and Hispanics respectively. In 2011, 61% of 5 to 17 year old Hispanics and 41% of African Americans are considered first-generation students should they go to college, compared to 22% of whites.

All of these structural obstacles provide additional perspectives that these students can share with others. From their first-hand experiences, they are likelier to believe more passionately in fighting racial injustice, combating intergenerational poverty, and preventing disastrous instances of groupthink that adversely affect the most disadvantaged segments of society.

Racial diversity results in more ethical decisionmaking in group settings

Another benefit of racial diversity in group settings is the tendency of racially diverse groups to make more ethical decisions. In a study publishedin 2012 by Degrassi et. al, experimenters grouped 495 participants of various ethnicities into 4-person groups, either homogeneous (all participants were the same ethnicity) or heterogeneous (all participants or all but two participants were of different ethnicities). They had each group answer an ethical dilemma with a “correct” answer during the first week of the study, and then answer a second ethical dilemma on the second week of the study. They found that the heterogeneous groups were statistically significantly more likely to make the correct decision when faced with their ethical dilemma. This effect was actually even more pronounced over time, when they made their decisions on the second ethical dilemma one week later.

While research on the association between racial diversity and ethics is preliminary and there are some limitations on the applicability of the experiment, the study nonetheless suggests that racial diversity makes it more likely that students will behave ethically in group settings. Throughout college, students will face plenty of ethical dilemmas in both individual and team settings, ranging from serious offenses such as cheating on a test to smaller dilemmas such as improperly collaborating on individual assignments. Curbing unethical behavior by drawing in additional perspectives via racial diversity is immensely beneficial for both students and universities alike.

  1. UT has a long history of valuing racial diversity

The Petitioner expounds an issue with UT’s timing of expressing interest in diversity. She claims that UT is pursuing a post hoc interest in ‘intra-racial diversity,’ but her claims distort UT’s explanation of using holistic review for selecting part of the UT class. Before considering the timing, we must first rectify the Petitioner’s distortion. UT does not seek minority students with a particular background, nor does it reduce minority students to just their race as the Petitioner does. Instead, UT recognizes that each background adds to a unique perspective which enhances the university’s educational environment. Therefore, UT’s holistic evaluation policy values minority students from both affluent and underprivileged backgrounds. Furthermore, UT’s policy gives attention to the student’s achievements as a whole, which gives merit to the student and not merely his or her ancestry. This reinforces the idea that diversity is not all about race, but is sometimes associated with race. All this was outlined in UT’s 2004 Proposal and is not a ‘post-hoc’ rationalization.

Unfortunately, racial segregation is still present in the US, and Texas, along with the Deep South, disproportionately suffers from endemic racism. We saw this first-hand in June 2015 when a racist perspective resulted in a mass shooting in South Carolina and ensuing protests occurred for the removal of the Jefferson Davis statue on UT’s campus. The University of Texas at Austin is ranked among the top research universities in the country and is home to more than 51,000 students and 3,000 teaching faculty. With the motto, “what starts here changes the world,” this flagship institution has responsibility to establish systems that enable the progress of Texan and American society. The university is deeply cognizant that diversity within a race may challenge stereotypes that are reinforced by racial segregation in Texas, and is actively taking steps towards eliminating social barriers, not just as an institution, but as a society.

Moreover, UT’s diversity interest is not limited to having students of diverse backgrounds comprising the student body and being present on campus. It is also about promoting the interaction and connection among students that will yield the understanding and widening of perspectives necessary in a post-racial society. By noting issues of racial isolation of African Americans observed in the years following Hopwood v. Texas (1996), a period during which UT made a good faith and commendable attempt at race-neutral admissions, we substantiate the need for race-conscious means in a holistic admissions process. Through these efforts, not only did UT remove consideration of race in undergraduate admissions, but it undertook several race-neutral efforts to achieve diversity. These included adopting a Personal Achievement Index (PAI) to complement the Academic Index (AI). The PAI included a holistic review of a variety of factors other than race. In addition, UT bolstered recruitment and visibility in schools where few students enrolled at UT in the past. It created several scholarship programs explicitly targeted towards high-achieving students overcoming socioeconomic obstacles. Finally, UT launched promotional campaigns to recruit minority applicants from traditionally underrepresented backgrounds.

Top 10% and Other Race-Neutral Policies are Insufficient in Ensuring Racial Diversity

Despite these measures, in the years after Hopwood, racial diversity plummeted. The number of African American students admitted dropped 40% from 309 (4.1%) in 1995 to 190 (2.7%) in 1997.[1] Meanwhile, the percentage of Hispanic students remained flat, from 935 admitted (12.4%) in 1995 to 892 (12.5%) admitted in 1997. Even after the Top 10% rule came into effect in 1997, this decline persisted. In 2002, only 3.4% of the incoming class was African American.[2] While Hispanics comprised 14.3% of the incoming class in 2002, the rate should have been much higher due to rapid population growth.

The Top 10% rule also posed adverse consequences for the racial composition of holistic admits. In 2003 only 73 (1.1%) African Americans and 210 (3.2%) Hispanics were admitted holistically.[3] It was not until after race was reconsidered in the application class when 6.8% of the holistic class in 2007 was African American.[4]

In addition, socioeconomic factors are not a sufficient corrective mechanism in ensuring racial diversity either. In The Shape of the River (2000), William Bowen and Derek Bok observe that almost six times as many low-income white students have the requisite test scores for gaining admission in selective universities compared to low-income African-American students.[5] Given that the actual number of white people in poverty only modestly outnumbered the number of African-Americans in poverty in 2014, this lopsided ratio would actually exacerbate low racial diversity rather than improve it.

More broadly, the more factors admissions officials must take into consideration when holistically assessing an application, the higher the search cost these officials must bear and the greater the risk for error. Alternatively, race serves as a useful signal towards the disproportionate difficulties racial minority students face and facilitates the admissions process.

IV. UT’s Admissions Process is Narrowly Tailored

In the aforementioned period following Hopwood, the decrease in racial diversity in the UT student body and evidence of racial isolation among African-American students indicate that a complement to the Top 10% law is necessary. The Top 10% provides opportunities for students across Texas, but such a one-dimensional method based on class rank or GPA clearly sacrifices diversity (recognized by the court) and leaves gaps in the qualitative composition of the student body. Without even mentioning race, some schools do not rank their students and some students do not attend high school in Texas. Both groups would be ineligible for admission under the Top 10% rule. Additionally, since most of student body is admitted through the Top 10% rule, the admissions process for the remaining portion of the student body is exceptionally competitive. In the Petitioner’s year, 21,000 applicants competed for 4,000 spots. Of these, only 216 minority students (about 5.4%) were admitted through holistic evaluation (excluding applicants from out of state).

Though the Petitioner claims that this is “minimal impact,” small numbers are to be expected when race only plays a partial and limited role in admissions. As a factor of factors, where race plays one of six sub-factors out of one of the seven factors used in the admissions process, the impact of racial consideration is diluted. Moreover, after previous discussion of the educational benefits of racial diversity, it is clear that the impact of promoting racial diversity cannot be easily quantified. In an applicant’s Personal Achievement Score, race is not assigned any weight or score, but taken into consideration in totality. This is reinforced by the fact that ultimate admissions decisions are made on a competitive basis in which race is only one factor.

Petitioner Misinterprets UT’s Admissions Process

The Petitioner claims that racial consideration implies labelling students by race, when in fact the purpose of considering race is to judge a student as an individual and not just as an academic score. The fact that UT has access to a student’s racial information does not mean it labels them by race. The university also requests name, date of birth, gender, citizenship, and other biographical information. This does not distinguish UT’s plan from those upheld in Grutter or approved in Bakke. The Petitioner argues that UT’s policy is flawed because UT fails to monitor the racial distribution of the incoming class as students are admitted, but to do otherwise only hints at monitoring a quota to be filled, a notion ruled unconstitutional in Grutter. UT accepts that it does not engage in this type of monitoring and that is exactly why its policy is constitutional.

VI. Conclusion

Evaluated through her own framework, the points brought forth by the Petitioner lack substance and fail to prove that UT cannot meet the conditions for strict scrutiny. Moreover, the petitioner’s framework ignores the very real perspectives, societal challenges, and constraints that ethnic minorities possess. Strictly by judicial opinion set forth in the landmark cases Bakke and Grutter, UT’s interests are justified. The court should dismiss the Petitioner’s motion for Summary Judgement and reaffirm the judgement of the Fifth Circuit.

[1] See p. 6 of Respondent brief.

[2] See p. 8 of Respondent brief.

[3] See p. 38 of Respondent brief.

[4] See p. 11 of Respondent brief.

[5] See p. 51 of The Shape of the River, or also p. 44 of the Respondent brief.


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