How Will Fisher v. University of Texas Affect the URM Boost? Forum

[John_rizzy_rawls]

Background on Fisher v. University of Texas - http://en.wikipedia.org/wiki/Fisher_v._ ... y_of_Texas

Long story short, in accepting this case the court is quite clearly attempting to visit the underlying principles of affirmative action in higher education admissions set forth in Grutter v. Bollinger (http://en.wikipedia.org/wiki/Grutter_v._Bollinger)

This thread is not to debate the merits of Affirmative Action. For that, go here: http://top-law-schools.com/forums/viewt ... 0&t=178724

This thread is to discuss functional issues pertaining to how the outcome of this case will affect URM admissions.

I, and people who know way more than me about this stuff, think it's fairly safe to assume a 5-3 against UT and thus, against affirmative action. Read here for a quick analysis on why: http://news.law.wfu.edu/2012/09/profess ... ution-day/

Now the holding could be more narrow - against UT's factoring of race in addition to the 10% plan for undergraduate matriculation, which would only have an effect on Texas, California, and Florida - or more broad - gutting Grutter, which would obviously have a nationwide effect on public and private schools alike.

My questions are:

1) How does this affect 2013-2014 URM applicants? I have a hard time imagining a decision in Spring followed by the URM boost vanishing a few months later but then again I have no clue what I'm talking about so I'm asking TLS.

2) I'm a bit confused on how overturning Grutter or ruling against UT does away with the URM boost specifically in law school admissions.

For example, post-Grutter, California passed Proposition 209 and Michigan passed Proposal 2, both in direct response to the decision. Both posit race cannot be a factor. And yet, any analysis of LSN or LSP since 2003 shows the URM boost clearly exists at Stanford, Michigan, Berkeley, UCLA, and USC.

I know we're still in the middle of this cycle but given that this decision could come out any time in the next 2 or 3 months I figure it may be worth discussing.

[thsmthcrmnl]

First, it depends on whether the holding is narrow (schools can't use AA in addition to percentage plans) or broad (no more AA). If it's the latter, it applies to (almost all) private schools too through Title VI of the Civil Rights Act.

Probably it won't affect the 13–14 cycle, because admissions choices will probably be made before SCOTUS decides. And even were the Court broadly to hold against AA, it's likely that schools will continue to have some sort of URM boost, whether it's through something correlated like socioeconomic status, or just under the table. That said, after Prop 209 passed, URM admission did decrease in the undergrad UC system. I suppose a broad ruling would also affect law-review diversity spots.

EDIT: It's also worth noting, on the narrow-or-broad question, that Kennedy has explicitly said that use of race is sometimes acceptable. But he's never voted that way. Make of that what you will.

[John_rizzy_rawls]

Probably it won't affect the 13–14 cycle, because admissions choices will probably be made before SCOTUS decides.

How do you figure this given SCOTUS's decision is set to come out this Spring (oral arguments were in October) and the 2013-2014 cycle doesn't start until September, at earliest?

[thsmthcrmnl]

I'm sorry. I misread you. I was thinking people going to school in 13–14, meaning the current admissions cycle.

I think it has to, right? SCOTUS will decide by June, and schools won't start making 13–14 decisions until the fall. If there were a broad holding, schools couldn't just ignore it entirely. The law is the law. They'll try to ignore it some, maybe, but it has to make a difference.

[John_rizzy_rawls]

Makes sense.

But the clear URM boost for law school admissions in California and Michigan still don't make sense in this context.

[BullShitWithBravado]

This Amicus Brief, written by the Association of American Law Schools is an interesting read and refers the holistic process that schools use to admit applicants: http://www.americanbar.org/content/dam/ ... eckdam.pdf.

I think that, even if applicants will no longer check a box to indicate race and ethnicity when applying to law school, race and ethnicity will still be taken into account for applicants who list certain activities on their resume and refer to their race and ethnicity in their personal and/or diversity statement.

[Percival Jenkins]

I dont think that the case will make much of a difference at all for several reasons.

1). The ruling would only apply to 3 (UCB,UM,UVA) of the top 14 schools. All the other schools are private.
2). UCB and UM seem to give a boost when their states make it illegal to consider race in admissions.
3). If Fisher wins, a person will have to sue a school every time they thought they were in violation of Fisher which could take years. And it would be tougher specifically with law schools because the practice that UT has would never work in a law school admissions, only in undergrad admissions.
4). Admissions offices are creative, even if Fisher wins, they will find a way around it. Im sure the same question was asked when the court struck down quotas in the Baake case.

[thsmthcrmnl]

I dont think that the case will make much of a difference at all for several reasons.

1). The ruling would only apply to 3 (UCB,UM,UVA) of the top 14 schools. All the other schools are private.
2). UCB and UM seem to give a boost when their states make it illegal to consider race in admissions.
3). If Fisher wins, a person will have to sue a school every time they thought they were in violation of Fisher which could take years. And it would be tougher specifically with law schools because the practice that UT has would never work in a law school admissions, only in undergrad admissions.
4). Admissions offices are creative, even if Fisher wins, they will find a way around it. Im sure the same question was asked when the court struck down quotas in the Baake case.

I agree with most of this, but 1 is wrong. If there's a broad ruling against AA, under the Civil Rights Act, it applies to private schools that accept federal money.

[Percival Jenkins]

I dont think that the case will make much of a difference at all for several reasons.

1). The ruling would only apply to 3 (UCB,UM,UVA) of the top 14 schools. All the other schools are private.
2). UCB and UM seem to give a boost when their states make it illegal to consider race in admissions.
3). If Fisher wins, a person will have to sue a school every time they thought they were in violation of Fisher which could take years. And it would be tougher specifically with law schools because the practice that UT has would never work in a law school admissions, only in undergrad admissions.
4). Admissions offices are creative, even if Fisher wins, they will find a way around it. Im sure the same question was asked when the court struck down quotas in the Baake case.

I agree with most of this, but 1 is wrong. If there's a broad ruling against AA, under the Civil Rights Act, it applies to private schools that accept federal money.

Agreed. SCOTUS does from time to time go beyond the questions that are asked. But Fisher asks about EPC, so I didnt assume they would also bring in the Civil Rights Act.

[bizzybone1313]

Isn't the lawsuit particular to only undergrad admissions though? In the Michigan cases, the undergrad and law school policies were separate lawsuits.

[Percival Jenkins]

Isn't the lawsuit particular to only undergrad admissions though? In the Michigan cases, the undergrad and law school policies were separate lawsuits.

Yeah thats the question that is before the court. But that has never stopped them from making the ruling apply to other things. It would be tough to make that argument simply because graduate schools dont make admissions decisions like that and UT's practice is the first that I have heard of like that at the undergraduate level too.

[John_rizzy_rawls]

Isn't the lawsuit particular to only undergrad admissions though? In the Michigan cases, the undergrad and law school policies were separate lawsuits.

If true, this is persuasive. In that UC undergraduate URM admissions declined a lot post-Grutter/Prop 200 whereas the URM boost remained strong at Berkeley, Stanford, UCLA, USC, and Michigan law schools.

[John_rizzy_rawls]

http://www.law.com/jsp/nlj/PubArticleNL ... 0005205020

[thsmthcrmnl]

Agreed. SCOTUS does from time to time go beyond the questions that are asked. But Fisher asks about EPC, so I didnt assume they would also bring in the Civil Rights Act.

But under Bakke ("Title VI must be held to proscribe only those racial classifications that would violate the Equal Protection Clause"), the Civil Rights Act prohibits the racial discrimination that the EPC prohibits. If SCOTUS changes the EPC, I think the CRA gets automatically bumped up too, and then there's no more AA in private schools. It's awfully hard to get around the language of the CRA:

"No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance."

[Percival Jenkins]

Agreed. SCOTUS does from time to time go beyond the questions that are asked. But Fisher asks about EPC, so I didnt assume they would also bring in the Civil Rights Act.

But under Bakke ("Title VI must be held to proscribe only those racial classifications that would violate the Equal Protection Clause"), the Civil Rights Act prohibits the racial discrimination that the EPC prohibits. If SCOTUS changes the EPC, I think the CRA gets automatically bumped up too, and then there's no more AA in private schools. It's awfully hard to get around the language of the CRA:

"No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance."

I think that we both agree that it really depends on how the opinion is written. It would have to be extremely explicit to include the things you said. And even if they do include that, there are still the issues I already listed.

[TatNurner]

This Amicus Brief, written by the Association of American Law Schools is an interesting read and refers the holistic process that schools use to admit applicants: http://www.americanbar.org/content/dam/ ... eckdam.pdf.

Thanks for the link, this is probably the best explanation of how URM admissions work I have ever seen. After reading it I now understand why URM cycles can be so unpredictable. It would seem that quite a few of the schools already use the holistic approach, especially for those URM candidates with numbers that are not auto-admit. It seems the conventional TLS wisdom that softs matter for URMs is correct.

For those interested, the good stuff starts from page 6.

Also, relevant:

In addition to failing to produce racial diversity, a race-blind holistic admissions process would be unadministrable. A holistic admissions process by its very nature conveys racial information to law school decision-makers. Many factors in the admissions decision are therefore inextricably intertwined with race. For example, a student may write an essay about his desire to attend law school due to his history confronting racial discrimination. Another student may draw on the leadership experience he gained as the president of his college’s Latino Students Association, in a discussion of his career goals. A student may discuss her experience growing up in an immigrant household, or her capacities to build upon her native language skills, or reflect upon the lessons she gleaned from her cultural heritage. Law schools cannot meaningfully evaluate this information as part of a holistic admissions process while ignoring that it is related to the applicant’s race. As this Court has recognized in the electoral redistricting context, the most that can be realistically achieved is that race will not “predominate[]” in government decision-making. See Miller v. Johnson, 515 U.S. 900, 916 (1995); see also Shaw v. Reno, 509 U.S. 630, 646 (1993). And, as with redistricting cases – where race is one consideration along with “age, economic status, religious and political persuasion, and a variety of other demographic factors,” Shaw v. Reno, 509 U.S. 630, 646 (1993) – the use of race as one factor among many in law school admissions is constitutionally permissible.

If the nuanced use of race that law schools currently employ in compliance with this Court’s precedents – from Bakke through Grutter to Parents Involved – is held impermissible, the only true alternative would be to strip away every indication of race from candidates’ applications. But stripping applications of all evidence of extracurricular activities, geography, recommendations, essays, background, passions, and community service is anathema to a holistic process and to the goal of producing excellent lawyers who can function effectively in our society.

[John_rizzy_rawls]

This Amicus Brief, written by the Association of American Law Schools is an interesting read and refers the holistic process that schools use to admit applicants: http://www.americanbar.org/content/dam/ ... eckdam.pdf.

Thanks for the link, this is probably the best explanation of how URM admissions work I have ever seen. After reading it I now understand why URM cycles can be so unpredictable. It would seem that quite a few of the schools already use the holistic approach, especially for those URM candidates with numbers that are not auto-admit. It seems the conventional TLS wisdom that softs matter for URMs is correct.

For those interested, the good stuff starts from page 6.

Also, relevant:

In addition to failing to produce racial diversity, a race-blind holistic admissions process would be unadministrable. A holistic admissions process by its very nature conveys racial information to law school decision-makers. Many factors in the admissions decision are therefore inextricably intertwined with race. For example, a student may write an essay about his desire to attend law school due to his history confronting racial discrimination. Another student may draw on the leadership experience he gained as the president of his college’s Latino Students Association, in a discussion of his career goals. A student may discuss her experience growing up in an immigrant household, or her capacities to build upon her native language skills, or reflect upon the lessons she gleaned from her cultural heritage. Law schools cannot meaningfully evaluate this information as part of a holistic admissions process while ignoring that it is related to the applicant’s race. As this Court has recognized in the electoral redistricting context, the most that can be realistically achieved is that race will not “predominate[]” in government decision-making. See Miller v. Johnson, 515 U.S. 900, 916 (1995); see also Shaw v. Reno, 509 U.S. 630, 646 (1993). And, as with redistricting cases – where race is one consideration along with “age, economic status, religious and political persuasion, and a variety of other demographic factors,” Shaw v. Reno, 509 U.S. 630, 646 (1993) – the use of race as one factor among many in law school admissions is constitutionally permissible.

If the nuanced use of race that law schools currently employ in compliance with this Court’s precedents – from Bakke through Grutter to Parents Involved – is held impermissible, the only true alternative would be to strip away every indication of race from candidates’ applications. But stripping applications of all evidence of extracurricular activities, geography, recommendations, essays, background, passions, and community service is anathema to a holistic process and to the goal of producing excellent lawyers who can function effectively in our society.

Very helpful.

So in other words, the outcome of Fisher, for a variety of reasons (unless Grutter is completely gutted which is very unlikely due to the prior decisions of Roberts and Kennedy), will not have an impact on the URM bump in law schools admissions.

That's what I suspected anyway. Post-2003 Michigan, Stanford, Berkeley, and UCLA/USC all seem to prove this.

The last page of the affirmative action debate thread (linked in OP) came to this same conclusion.

[John_rizzy_rawls]

Random update:

Just spent the evening with some law profs.

Asked them specifically about Fisher and all of them, while arguing passionately and eloquently for diversity and affirmative action, seemed pessimistic as to the outcomes. Citing public and court opinions of Kennedy and Roberts, they seem to think Fisher could very well gut Grutter. They think elite institutions should find a way to maintain diversity if Grutter is overturned regardless, they're just not sure how that will be possible.

They also don't quite know how UCLA/USC/Stanford/Berkeley and Michigan have maintained the URM boost despite Proposition 2 and Proposition 209. Their only thought was that law schools know damn well that no affirmative action would inevitably result in racial stratification in elite schools and that that sucks, so they're simply finding a way.

Overall, it was awesome talking to them for a while, but their opinions didn't fare well for the future of diversity in higher education admissions.

[SemperLegal]

Random update:

Just spent the evening with Erwin Cherminsky, Rebecca Brown, and Adam Winkler (Con Law profs at Irvine, USC, and UCLA respectively).

Asked them specifically about Fisher and all of them, while arguing passionately and eloquently for diversity and affirmative action, seemed pessimistic as to the outcomes. Citing public and court opinions of Kennedy and Roberts, they seem to think Fisher could very well gut Grutter. They think elite institutions should find a way to maintain diversity if Grutter is overturned regardless, they're just not sure how that will be possible.

They also don't quite know how UCLA/USC/Stanford/Berkeley and Michigan have maintained the URM boost despite Proposition 2 and Proposition 209. Their only thought was that law schools know damn well that no affirmative action would inevitably result in racial stratification in elite schools and that that sucks, so they're simply finding a way.

Overall, it was awesome talking to them for a while, but their opinions didn't fare well for the future of diversity in higher education admissions.

Some of those schools have independent foundations that recruit and offer third-party scholarships to URMs who are admitted to higher schools.

[bizzybone1313]

I think Stanford is probably the best law school to refer to in order to see what the rest of the T-14 are going to do once the decision comes down. I was also thinking about how a lot of the T-14 might start using Skype interviews across the board to note the race of the applicant, if for example, they are not allowed to have applicants "check a box." I bet they will also start taking into account socioeconomic status a lot more-- they should do this anyways.

[John_rizzy_rawls]

Some of those schools have independent foundations that recruit and offer third-party scholarships to URMs who are admitted to higher schools.

Didn't know that. Surprised they didn't know either. Source?

[John_rizzy_rawls]

Nvm, just spoke to a couple of the profs again, I misunderstood them. They think a complete overturn would actually be quite unlikely and believe a more narrow approaches on the horizon. However they do fear, and deeply disapprove of, any efforts to minimize efforts towards diversity in the near future.

[SemperLegal]

Some of those schools have independent foundations that recruit and offer third-party scholarships to URMs who are admitted to higher schools.

Didn't know that. Surprised they didn't know either. Source?

I work for one of the foundations, its comprised of the alumni half (that raises the big bucks) and the student half (Raised like 30k this year) met someone on the alumni half at another school that does the same thing.

[John_rizzy_rawls]

Some of those schools have independent foundations that recruit and offer third-party scholarships to URMs who are admitted to higher schools.

Didn't know that. Surprised they didn't know either. Source?

I work for one of the foundations, its comprised of the alumni half (that raises the big bucks) and the student half (Raised like 30k this year) met someone on the alumni half at another school that does the same thing.

Interesting. So they're not subject to Prop 209. Is a prerequisite that the recruited student has to have been accepted to a higher USNWR ranked school?

[SemperLegal]

Some of those schools have independent foundations that recruit and offer third-party scholarships to URMs who are admitted to higher schools.

Didn't know that. Surprised they didn't know either. Source?

I work for one of the foundations, its comprised of the alumni half (that raises the big bucks) and the student half (Raised like 30k this year) met someone on the alumni half at another school that does the same thing.

Interesting. So they're not subject to Prop 209. Is a prerequisite that the recruited student has to have been accepted to a higher USNWR ranked school?

I honestly don't know the requirements. My understanding was that they were offered to "Exceedingly qualified" URM's, who I assume would have, or be able to secure, higher acceptances.