The Society for the
Study of Social Issues

Event report: Briefing on Fisher v. University of Texas, Austin

American Educational Research Association (AERA)

Fisher v. University of Texas, Austin
Briefing on AERA et al. Amicus Brief
On Strength of the Science

Thursday, September 27, 2012,
National Press Club, Washington, DC
The Conference Rooms

A panel of experts discusses the AERA et al. amicus brief submitted to the Supreme Court on Fisher v. University of Texas, Austin. The briefing outlines scientific evidence on the use of race as one factor in the University’s admissions policy and on issues relevant to this critically important higher education case, scheduled for hearing on October 10, 2012.


Welcome and Introduction
Felice J. Levine, Ph.D.
AERA Executive Director

Felice J. Levine served as the moderator of the briefing and initiated what she termed an "educative event” on the amicus brief, which AERA filed together with several other scientific societies1  to the Supreme Court regarding the case of Fisher vs. The University of Texas. The amicus brief was convened as part of a shared educational mission, the mission being: "to serve society by examining the state of the science and making accessible research data and findings to the public, to the media and to policy makers”. The AERA et al. amicus brief includes comprehensive research on the issue of affirmative action, which Levine believes the Supreme Court would do well by taking into consideration.

Legal Context and the Importance of Social Science Research
Angelo N. Ancheta, J.D., M.P.A.
Counsel of Record for the AERA Amicus Curiae Brief
Executive Director, Katharine & George Alexander Community Law Center, and Associate Clinical Professor, Santa Clara University School of Law

Angelo N. Ancheta was the first panelist to present at the media briefing. He did so by presenting an overview of the Supreme Court case on Fisher v. University of Texas, Austin together with an overview of the AERA et al. amicus brief.

In the Fisher case the Supreme Court will decide the constitutionality of the race-conscious undergraduate admissions policy at the University of Texas, Austin. The legality of the policy under current law is being challenged by the Fisher-plaintiff, who is also seeking to overturn the Supreme Court’s 2003 ruling in Grutter v. Bollinger, in which the Court, among other things, ruled that student body diversity is a compelling interest that can justify the limited use of race in admissions. 

Ancheta mentioned 2 main reasons for the Supreme Court taking the issue of race-conscious admissions policies and affirmative action up again. Firstly, although the admissions processes used by both the University of Texas, Austin and the University of Massachusetts are very similar, they differ to some extent – mainly due to the Top-10-Percent Plan (TTPP). The Fisher case will show whether TTPP fit with the guidelines decided by the court in 2003. Secondly, the composition of the court has changed since 2003. There will only be 8 Justices as Kagen has recused herself.
Ancheta also spoke of some of possible outcomes of the Fisher case. Justices may either revisit the basic constitutional questions and modify or even overrule the earlier ruling in the Grutter case or the Supreme Court can decide to leave the Grutter ruling intact, but decide that the particular policy at the University of Texas, Austin, either complies or does not comply with the Grutter case standards.

Next, Ancheta presented the two basic legal questions that the AERA et al. amicus brief focuses on:
1. Is the university’s interest in student body diversity sufficiently important to be a compelling governmental interest? Meaning, is it sufficiently important to justify the issue of race in admissions?
2. If so, is the university’s race-conscious admissions policy narrowly tailored to its interest in diversity?

The AERA et al. amicus brief focuses mostly on the compelling question (question 1) and Ancheta expressed the unlikelihood of the court revisiting this, as current research merely confirms what was concluded in the Grutter case – namely the fact that there are several benefits of diversity and current research remains strongly supportive of this interest in student body diversity.

Lastly, Ancheta gave a short summary of the AERA et al. amicus brief, which highlights three points of research that support the compelling interest in student body diversity.
1.Research continues to show that student body diversity leads to important educational benefits.
2.Research studies examining the harms associated with racial isolation and tokenism reinforce the university’s interest in obtaining a diverse student body.
3.Research studies demonstrate that the purported harms to minority students associated with race-conscious admissions are inconsistent with recent findings and lack a solid empirical basis.

Texas Data and Research on Race-Neutral Admissions Practices
Stella M. Flores, Ed.D.
Assistant Professor, Department of Leadership, Policy & Organizations, Vanderbilt University

Stella M. Flores presented 3 key points regarding the context of Texas and the effects of race neutral admissions policies.

The first point was with regards to the demographic changes within the population and landscape of Texas and the US. She raised the question of whether public policies on race-conscious admissions are at all effective? In continuation hereof Flores asked whether a rise in attainment or representation of minority students in public educational institutions is a function of a policy actually working or merely a function of demography – thus revisiting the classic question of demography masking policy effectiveness. For example, Texas has the highest number of Hispanics and African Americans enrolled in public 4 year higher education institutions. However, Texas has also experienced an enormous population growth, especially with regards to these two groups. Furthermore, these enrolment rates are not translating into flagship institutions. The majority of the minority populations are enrolled in the less selective sectors of higher education.

In the second point Flores spoke of the Top-Ten-Percent Plan (TTPP). Research results consistently show that policy analyses particular to race-neutral policy admissions in Texas is not effective in increasing the race and ethnic diversity representation. Although minority students have constituted an increasing percentage of the state’s high school graduates, any recovery in the percentage of underrepresented minority students attending selective public institutions in Texas, after the state eliminated affirmative action, is likely due to the growing pool of minority applicants over time, rather than to race-neutral policies.

Flores finished her presentation with her third point regarding the state policy conditions. Research shows that optimal conditions exist in Texas for the implementation of TTPP, yet TTPP has yielded limited results in terms of underrepresented minority enrolment at selective public institutions. This serves as an indication that TTPP is an insufficient admissions procedure for ensuring a diverse student body, and thus cannot replace affirmative action policies.


Research Speaking to Narrow Tailoring
Gary Orfield, Ph.D.
Professor of Education, Law, Political Science and Urban Planning and Co-Director of
The Civil Rights Project /Proyecto Derechos Civiles, University of California–Los Angeles

Gary Orfield presented the core of the Fisher case as being a question of whether or not it is necessary to consider race to achieve diversity, also known as the narrow tailoring question. The basic argument being made, in the many briefs that are dealing with this issue, is that evidence exists that there is no alternative to race-conscious admissions, which will produce the same level of diversity that exist now. However, according to Orfield this level is in fact not very good - Whites have a 5 % better chance in enrolling than Blacks and Blacks have 3 % more probability then Latinos. Due to increased selectivity (more demands for entry, lack of spaces etc.) there is a serious threat to so called “equal access”. Thus, despite there being affirmative action in most of the US educational institutions, equal access or a representative population in these institutions has yet to come. Orfield also expressed concern that the Supreme Court is going to be making decisions in the whole country based on the application outcome of one single student in one campus (the Fisher case).

Orfield argued that the problem with the Top-ten-Percent-Plan (TTPP) is that it produces somewhat more access for some groups of students then for others, if they come from highly segregate schools - meaning there are not a lot of schools who will produce 10 %-ers of students who are ethnic minorities. “There are very few education regions in Texas where African American students are so isolated that a percent plan would mean they are automatically admitted to college”.  Orfield concluded that TTPP alone would not yield the level of diversity needed to leverage the educational benefits of diversity at the public education institutions in other states, nor at the more selective and private universities of the US.

Considering the fact that a) almost all universities believe that diversity is beneficial and necessary, b) that affirmative action is a tool by which diversity is attained, and c) that there is an enormous amount of research pointing in this direction, the Supreme Court would be overruling the judgment of the research community and of the people who actually run universities if it decided to strike down affirmative action. Consequences of this Orfield believes will be dismal for the country.

Research Speaking to Compelling Interests and Benefits of Diversity
Liliana M. Garces, Ed.D., J.D.
Assistant Professor of Higher Education Administration, The George Washington University

Liliana M. Garces followed up on some of Gary Orfield’s points and spoke of the importance of understanding that the mechanistic admissions through the Top-Ten-Percent-Plan (TTPP) do not apply to graduate admissions. This was already recognized in the Supreme Court case of Grutter in 2003. Mechanistic approaches such as the TTPP may not be workable alternatives to a whole file review process because these institutions recruit students across states, and there is a great amount of variability across the amount of training that students receive in different colleges. On the other hand, Garces emphasized that this is an important area of education to consider as these schools provide training for the future leaders, doctors, scientist, engineers etc., and that standard admissions policies may be affected by the courts rulings.

Garces stressed the important lessons that can be learned on race neutral policies by looking closer into the many experiences from the institutions that have banned race conscious admissions. Research on these institutions has shown a decline in diversity. For example at the 6 business schools within the University of California system, the average percentage of African American students dropped by 58% after banning affirmative action. UCLA and the medical schools have experienced similar drops.

Research carried out by Garces shows that when institutions do not consider race as one of a number of factors in their admissions policies, the student body diversity drops across a number of different educational programs, many of which are quite critical for the future success of the US.

Consequences for Higher Education and the STEM Workforce
William Kidder, J.D.
Assistant Provost, University of California, Riverside

The presentation by William Kidder evolved around the current research literature on the issue of the benefits gained by student body diversity, which has become much more robust and mature with respect to the question of a compelling governmental interest since the Grutter case.

The following are some of the benefits of student body diversity that Kidder presented. The entire student body, (majority students as well as minority students) develops: critical thinking, cognitive skills, civic engagement, pluralistic orientation and more respect for others beliefs. Additionally interracial or cross group friendships have a long lasting impact on how students can navigate in a complex and diverse workforce in their later careers.

Another side to the compelling interest question has to do with the fact that the benefits of diversity also are related to avoiding the harms of racial discrimination and isolation. Kidder also emphasized that ‘student mingleling’ by itself is not sufficient in obtaining benefits from diversity; universities have to actively facilitate these processes as well.

Kidder argued that whether the court decides to revisit the question of the compelling interest or not, either way, the question of the benefits of student body diversity is a central part of the case, as it is what motivated the University of Texas, Austin, to change its admissions policies in the first place. He finished his presentation by highlighting that a take away from the AERA et al. amicus brief, as well as the 70 plus other amicus briefs, filed on behalf of the University of Texas, Austin is “don’t mess with success!“ – graduation rates show that the benefits of race conscious admission policies and plans together with affirmative action are compelling.

On Women in Science, Engineering, and Medicine at The National Academies
Catherine Didion, B.A.
Senior Program Officer, National Academy of Engineering, and Director of the Committee

Catherine Didion pointed at implications on where the future workforce may be. She began her presentation by making an introduction of the National Academy of Engineering (NAE), which is a private, independent, non-profit institution that provides engineering leadership in service to the nation.

Power Point slides were provided showing that underrepresented minorities made up 13.6% of all earned bachelor’s degrees awarded to U.S. citizens and permanent residents (total N = 66,529) in engineering in 2009. Breaking this number down shows that, Caucasians earned 68.6% of these degrees; Asian/Pacific Islanders 12.4%; Hispanics 8.4%; African Americans 4.7%; American Indian/Alaska Natives 0.5%; and other/unknown race and/or ethnicity 5.4%. “This lack of representation of underrepresented minorities in science and engineering continues into the U.S. industrial workforce (…)”, said Catherine Didion.

Catherine Didion pointed to the growing representation of underrepresented minorities in the U.S. population – currently 40% of the 18-23 age cohorts – that necessitate efforts to ensure that all students have access to educational opportunities. The current lack of participation of underrepresented minorities in the U.S. technical workforce underscores the urgent need for a diverse and technically trained workforce.

In supporting the benefits of diverse educational settings, Catherin Didion spoke of Scott Page, an economist and author, who argues that diverse perspectives and tools enable collections of people to find more and better solutions and contribute to overall productivity. Without diversity, the life experiences that are brought to an engineering problem would be limited and as a consequence the best engineering solution might not be found.


Further questions to the panel

The debate following the presentations evolved around the topic of race vs. socioeconomic status (SES). In trying to establish diversity, could other factors, such as SES, be included or perhaps even replace race-consciousness in admissions policies?

Overall the panelists agreed that it is beneficial to include SES in admissions policies, however SES should not replace race consciousness, because considering SES alone will not promote sufficient diversity. Furthermore, William Kidder said it is important to acknowledge the unavoidable fact that “race” still matters in America regarding topics of e.g. equality. Applicants’ SES and race are some of the many attributes that should be considered in admission processes, however they are different factors. One’s SES sometimes shifts and can be ‘left at the door’, one’s race cannot. Gary Orfield pointed out that many universities already include SES in their admissions policy, including the University of Texas, Austin – such considerations are not unconstitutional.

The question remains where the US stands on affirmative action in the future. Perhaps the universities will create new approaches that provide a leg up to economically disadvantaged students of all races and ethnicities as a way of indirectly promoting diversity.

A full webcast of the media briefing can be found here.

The entire AERA et al. amicus brief can be found here


Natasha Ann Brigham
The Society for the Psychological Study of Social Issues

Footnote 1. The American Sociological Association, the American Statistical Association, the Association for the Study of Higher Education, the Law and Society Association, the Linguistic Society of America, and the National Academy of Engineering.

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