Wednesday, October 10, 2012

I don't know why she couldn't swallow a fly....

Trying to get information on Fisher v. UT  is a dicey business at best, but NPR gave me some facts this morning which are supported by the brief filed with the Supreme Court on behalf of UT:

Petitioner, a Texas resident, applied for admission to UT’s Fall 2008 freshman class in Business Administration or Liberal Arts, with a combined SAT score of 1180 out of 1600 and a cumulative 3.59 GPA. JA 40a-41a. Because petitioner was not in the top 10% of her high school class, her application was considered pursuant to the holistic review process described above. JA 40a. Petitioner scored an AI of 3.1, JA 415a, and received a PAI score of less than 6 (the actual score is contained in a sealed brief, ECF No. 52). The summary judgment record is uncontradicted that—due to the stiff competition in 2008 and petitioner’s relatively low AI score—petitioner would not have been admitted to the Fall 2008 freshman class even if she had received “a ‘perfect’ PAI score of 6.” JA 416a.
In other words, as NPR reported this morning, Fisher never would have gotten into UT when she applied because her scores were not good enough.  To hear Fisher tell it in the NPR report, she was at the top of her class and she should have been a shoo-in for admission.  However, she wasn't in the top ten percent (which makes admissions race neutral so far as I can see) and so she went through the review process like everyone else.  In that process, race is taken into consideration, but as one of seven factor considered in one step of a multi-step process.  Or, as they explain it in their brief:

UT’s applicant pool is divided into applicants who are eligible for automatic admission under the top 10% law, and applicants who are not. Although most admits fall into the former category, the admission of students not eligible for the top 10% law is a critical means of pursuing UT’s educational mission and an important counterpart to the top 10% law. A Texas applicant may be ineligible for the top 10% law because she was in the bottom 90% of her class (like petitioner), or because her school does not rank students (as is true of some of the best private high schools in Texas).

After the files of the non-top-10% applicants are scored, they are plotted on a matrix corresponding to the school or major for which admission is sought, with the AI score on one axis and PAI score on the other. Each cell on the matrix contains all applicants with a particular AI/PAI combination. JA 392a. After considering the number of students in each cell and the available spaces for a particular major or school, admissions officers draw a stair-step line on the matrix, dividing the cells of applicants who will be admitted from those that will be denied. JA 386a-87a.

For each cell, admission is an all-or-nothing proposition: all the applicants within a cell are either admitted or denied. PAI scores are fixed long before this step in the process occurs, and nameless applicants clustered within each cell are not identified by race. So, as petitioner has acknowledged, admissions officers cannot—and do not—consider the racial demographics of the cell (or the race of any applicant within it) when they draw the stair-step line dividing cells. JA 387a-89a, 411a-12a; Summ. J. Hr’g Tr. 20, ECF No. 118 (petitioner’s counsel: “[T]hey use a matrix where you don’t know who’s who. Because once they’ve made a score, you become a number. So they’re not doing what Michigan was doing in Grutter.”).

An applicant’s PAI score is based on two essays and a Personal Achievement Score (PAS). JA 374a. Essays are reviewed by specially trained readers, and are scored on a race-blind basis from 1 to 6. JA 374a-76a. The PAS score ranges from 1 to 6 as well, and is based on holistic consideration of six equally-weighted factors: leadership potential, extracurricular activities, honors and awards, work experience, community service, and special circumstances. JA 379a. The “special circumstances” factor is broken down into seven attributes, including socioeconomic considerations, and—as of 2005—an applicant’s race. JA 380a. Race is one of seven components of a single factor in the PAS score, which comprises one third of the PAI, which is one of two numerical values (PAI and AI) that places a student on the admissions grid, from which students are admitted race-blind in groups. In other words, race is “a factor of a factor of a factor of a factor” in UT’s holistic review. App. 159a.

No automatic advantage or value is assigned to race or any other PAS factor. JA 379a-81a. Each applicant is considered as a whole person, and race is considered “in conjunction with an applicant’s demonstrated sense of cultural awareness,” not in isolation. JA 397a, 130a. “Race is contextual, just like every other part of the applicant’s file,” JA 169a, and “[t]he consideration of race helps [UT] examine the student in ‘their totality,’” JA 129a. Adding race to the mix in whole-file review “increases the chance” that underrepresented minorities will be admitted. App. 434a. But because of the contextualized way in which race is considered, it is undisputed (JA 130a) that consideration of race may benefit any applicant (even non-minorities)—just as race ultimately “may have no impact whatsoever” for any given applicant (even an underrepresented minority). JA 381a, 397a-98a; see JA 207a-09a, 285a, 434a; App. 29a, 46a.
 Sorry for the tedium there, but I figure this is important.  It's important because I still can't shake the fact that this is a curious case for Supreme Court review, for one simple reason:

The procedural posture of this case defines the scope of our review. There are no class claims and both students deny intention to reapply to UT. It follows that Fisher and Michalewicz lack standing to seek injunctive or forwardlooking declaratory relief. This principle is rote. To obtain forward-looking equitable remedies, a plaintiff must show she faces imminent threat of future
injury. Without that threat, these two applicants only have standing to challenge their rejection and to seek money damages for their injury.
That's from the opinion of the 5th Circuit.  Frankly, it seems to me to put the entire question of the rejection squarely on the facts of the case; and yet the 5th Circuit writes a long, complex opinion examining the status of college admissions standards following Hopwood and Grutter (especially the latter).  I'm perplexed because if the facts of the case are undisputed as to why Fisher was denied admission (well, she disputes it, but her argument, at least from the NPR report, seems to be she should have gotten in because her parents did, and because she's white), then where's the beef?  I understand the issue is about whether or not race should have played any consideration in the admissions process, but in this case the evidence is even if it didn't, she still wouldn't have suffered damages by not gaining admission to UT.  As the 5th Circuit puts it:

Texas applicants falling outside the top ten percent group face extreme competition to gain admittance to the University. There are approximately 16,000 students competing for only 1,216 fall admissions slots. The competition is so great that, on average, students admitted from outside the top ten percent of their high school class, regardless of race, have even higher SAT scores than those granted automatic admission under the Top Ten Percent Law.... It requires no empirical study to observe that those excluded under this Law have been a rich source of Texas leaders over its history and that for some applicants, admission to the flagship school of Texas is little more possible than admission to Harvard.
 So the appellant is complaining because she didn't get into the school of her choice, and the evidence is that she was denied admission because of a perfectly fair admissions procedure that takes race into account in order to assure a diverse student body, but doesn't do so in order to create even (as the appellant's lawyer put it to NPR this morning) a "back door quota system."

Oh, and there's also this:

Texas applicants are divided into two subgroups: (1) Texas residents who are in the top ten percent of their high school class and (2) those Texas residents who are not. Top ten percent applicants are guaranteed admission to the University, and the vast majority of freshmen are selected in this way, without a confessed consideration of race. In 2008, for example, 81% of the entering class was admitted under the Top Ten Percent Law, filling 88% of the seats allotted to Texas residents and leaving only 1,216 offers of admission university-wide for non-top ten percent residents. The impact of the Top Ten Percent Law on UT’s admissions has increased dramatically since it was first introduced in 1998, when only 41% of the seats for Texas residents were claimed by students with guaranteed admission.
Although this completes the admissions process for the fall portion of the freshman class, no Texas resident who submits a timely application is denied admission. Instead, those residents not admitted to the entering fall class are offered admission to either the summer program or the Coordinated Admissions Program (CAP). Marginal applicants who missed the cutoff for the fall class are offered admission to the summer program, which permits students to begin their studies at UT during the summer and then join the regularly admitted students in the fall. About 800 students enroll in the summer program each year. All remaining Texas applicants are automatically enrolled in CAP, which guarantees admission as a transfer student if the student enrolls in another UT system campus for her freshman year and meets certain other conditions, including the completion of thirty credit hours with a cumulative grade point average of 3.2 or higher.
In other words, if UT was Fisher's dream, she could have simply tried again later by transferring into UT Austin from another school in the UT system.  But apparently the state of the law now is that even the mention of race taints the admissions process; even the barest hint of consideration of race is too much.  That is the state of play in this case, and in a case where I might have expected the appellate court to toss out the entire complaint on the grounds of standing (i.e., the plaintiff had suffered no legal injury, since she had recourse for seeking admission later.  Everyone in Texas knows if you don't get into UT the first time, you transfer in next year.), the Court instead writes a lengthy opinion examining carefully the validity of race as a consideration at all.  Given that it's the 5th circuit, and Patrick Higginbotham to boot, I suppose I should be grateful the Court didn't note that we have a black president now, so discrimination has ended in America and we can stop talking about race altogether.

One thing the appellate court decision gets right is the critique of the Ten Percent Law.  As local news has pointed out, in reporting on this story, there is a sharp drop off in minority students in UT programs after the sophomore year, especially in the more competitive and rigorous degree plans.  Why?  Not because minorities can't compete, but because so many of them are ill-prepared for college by the public schools they attended.  The problem is not in the admissions process, but in the fact Texas has such spotty public schools.  And Rick Perry's solution to this problem?  Texas has already slashed funding for public schools.  Now Perry wants to tie the money state universities receive to  the number of students they graduate.

Which would effectively turn even UT into a diploma mill.

Such is the state of play in education today.  We strain at gnats and swallow camels.  And the courts are terribly concerned with the conditions for white people.

As Chris Rock says:  "There's not a white man in this room who would change places with me, and I'm RICH!"  But whites are persecuted; at least when it comes to education.

I'll retire to Bedlam.

Update:  the oral arguments confirm my fear that the Supreme Court isn't the least bit interested in the standing of the plaintiff (what harm has she suffered if there is no evidence race considerations caused her to be refused admission?), and are only concerned with conditions for white people in education.


  1. Sherri2:16 PM

    Wait, Fisher is a WOMAN? Whatever will Scalia do? She's white, which is good; there weren't any non-white people attending universities when the founders wrote the Constitution, so clearly the Constitution has nothing to say about allowing non-whites to attend universities. But women didn't attend universities, either! How can the Constitution say anything about the right of a woman, even a white woman, to be admitted to a university? I'm sure that Scalia will take a principled stand against Ms. Fisher.

  2. How far away is Fisher from the line drawn through the matrix? If she is close to the line, should could make the case that if race were not considered in the PAI score than fewer people would have higher AI/PAI combinations than she, so the school could have drawn the line further down in the matrix allowing her to get in.

    But it sounds to me like she was not so close to the line, so her argument is pretty much the sort of whining that in other contexts her supporters would be the first dismiss.

    Anyway, I am not sure how I feel about race-based considerations (being the son of a white woman brought up in the working class who went to a "bad school" and seeing how that put her at a disadvantage -- although her religion, in spite of the history of persecution against us, actually worked in her favor as it allowed her to meet my dad whose family had some money -- I'd say we really should be taking class more into account than anything). But I do say Chris Rock has a point. How many whites would actually, seriously consider being black?

    For that matter, even in being a minority that can give you an advantage (e.g. being Jewish) in some cases and that you CAN join -- how many non-Jews would seriously consider converting?

    Of course, race does remain a problem for our society. If we truly were a post-racial society, how come my daughter would think to ask (when hearing a news story about a crime), "is he [the alleged criminal] African-American?"? How come my daughter thinks that Barak Obama must be Martin Luther King's son? And how come my daughter declared herself to be "African-American" and, when my wife pointed out that she (my daughter) is half-white (biological mother is white -- Italian and German ancestry, biological father Afro-Hispanic; I'm white and my wife is black), my daughter could only manage to acknowledge that she is "mainly African-American and a little white"? The one drop rule still lives and even kids growing up in mixed-race families in multi-cultural Queens still manage to get all sorts of what should be long dead views about race in their heads.

  3. I guess the take home of my drifting off topic is that no matter what the courts rule, race will always be an issue ... no matter how colorblind we think we are, we are not. So we might as well take race into account in a positive way rather than in a way that just re-enforces racism.

    BTW -- I still can't get over the complaints about Obama "just being an affirmative-action case". Even if you don't happen to think that Obama is the best president ever, if he's what race-based affirmative action gives us (as opposed to some of the other presidents and presidential candidates we've had recently), affirmative action is working darned well, if you ask me.

  4. Alberich--

    I agree with you on all points. From what little evidence I can review (the trial court granted summary judgment, which means it took all evidence presented in the light most favorable to the student, and still ruled for the university), she wasn't getting into UT, period. From her interview on NPR, she seems to think she deserved entry as a legacy; but UT has never had a legacy program, and isn't starting one now.

    She went to LSU, which my daughter tells me is a party school. I'll take her word for it, but the difference between them is so stark I still can't imagine what damage Ms. Fisher has suffered.

    As for the racism, it is so obviously prevalent and so obviously a factor that deciding it isn't anymore can only be on the basis of "We have a black president, so racism is dead!" Which I swear I heard some GOP candidate say in the past two days, but I can't find the news story.....

    I want to hear the oral arguments on this, as it will indicate whether the Supremes took this case to toss it out without approving of the 5th Cir. opinion (on the grounds there is no injury here, no justiciable issue, as the lawyers say), or that they are only interested in finding the flimsiest of excuses to toss affirmative action in the garbage, and will violate the most basic tenet of judicial review to do so (i.e., never act on a claim that doesn't present a justiciable issue).