Hooked on the Horns of a Dilemma: Great Expectasians in Fisher v. Texas

The University of Texas affirmative action case of Fisher v Texas reminds us that UCLA stands for University for Caucasians Lost among Asians (link no longer available). And at 38% UCLA is behind other University of California campuses, such as Irvine (50%) and Berkeley (41%).  Stanford lags behind (or forges ahead?) with only 24% Asian enrollment.

Of course these enrollment percentages are multifold greater than the Asian population, even in southern California. As President Clinton once hyperbolically asserted, without racial preferences for others, some universities would have all-Asian freshman classes. At the University of Texas, Austin the freshman class was just under 16%, while the Asian population of Texas was just under 4%.  In light of such figures, how can Asian-Americans, the argument goes, claim discrimination?

A glance at the briefs in the upcoming (October 10) Supreme Court case of Fisher v. Texas reveals the variety of arguments for and against preferences. The appellant, an unsuccessful white applicant, Abigail Fisher, claims that she was denied admission to the University of Texas while minority students who had considerably lower SAT and academic achievements were admitted. Not granted automatic admission under the top ten percent of one’s public high school class track, she did not qualify under the other track. (Disclosures: My wife, Althea Nagai, cosigned the Abigail Thernstrom et al. brief and also works for the Center for Equal Opportunity, which filed a brief together with the Pacific Legal Foundation and National Association of Scholars. I co-signed the brief of Current and Former Federal Civil Rights Officials.)

The opposing sides in debates over affirmative action generally fall into two camps—the conservative one of color-blind merit, and the multiculturalist one of transforming society along racial and ethnic lines. Of course the universities can’t say they are interested in producing racial and ethnic diversity for its own sake and need to allege some other goal. Moreover, they may not impose racial quotas, though they may take account of race (see Justice Breyer’s differing votes in the University of Michigan undergraduate versus the law school cases). But universities simply don’t exist for the sake of academic merit by itself, and multiculturalism, an exotic flower of contemporary nihilism, is an assault on reason and intellectual honesty. Universities have longstanding roles in developing citizenship (“leadership”), commerce, faith, and character. Even before the aspirations of early modern political philosophy and Progressivism, the universities were not solely devoted to fostering the contemplative life. A color-blind Constitution does govern America, including its public universities, but its application to particular instances is always a prudential, that is, political matter. Political theorists will recognize this as the problem of the best practicable regime.

To seek a more practical end, some try to work between these contrasts of merit and multiculturalism. The brief by Richard Sander and Stuart Taylor dwells on academic “mismatch”—putting unqualified students into selective colleges where they are in the bottom of their classes statistically imperils their academic and professional future. (In another study, Sander and Taylor also show how the color-blind standard, following quickly made adjustments, improved overall black outcomes in California.) The admissions office sets the stage for a slow-motion trainwreck that the faculty and ethnic studies counselors try to clean up. When minority background is being “rewarded” a huge plus by admissions, the harm is even greater than the inappropriateness of the policy—Ms. Fisher’s exclusion aside. What sadist would want to put the first kid in the family to go to college to enter into what would all too often become a demolition derby? Is affirmative action a live-fire, four (or more)-year reality show?

In the face of these and other disasters, I know affirmative action programs that led to recruitment of black students who were academically superior to the white students. It was actually pretty simple. At the large Midwestern state university I once taught at, quite renown for drinking and sports, the admissions standards for the overall student body were so low that any element of academic selectivity, such as an affirmative action program might produce, led to those recruits being a cut or more above the majority white students. There you have it: affirmative action that produces meritorious results. (N.B.—to file away for future reference—I believe without exception these African-American students all graduated from inner-city Catholic high schools. N.B. #2: The State of Texas has a “color-blind” affirmative action plan that guarantees admission to the top ten percent of each graduating class at public high schools. Private schools, including religious ones, are excluded.)

These peculiarities of affirmative action aside, the real problem we face is the discrimination against Asian Americans. Here is a group whose mean SAT scores are 230 points above those of black applicants. With a policy of attempting to mirror the demographics of the State (or some other measure), one Asian group protested that Asian applicants had to meet a far more rigorous evaluation than black or Hispanic applicants. The statistical variance also reflected, critics say, unflattering stereotypes of Asians held by admissions officials. All that suffering under a Tiger Mother, only to meet with rejection! Let the traditional civil rights standard of “strict scrutiny” protect Asian-Americans in their admissions, and justice will be done, this argument goes.

In contrast, two Asian-American briefs bluster on behalf of the Texas preferences, arguing that the high numbers alone show that this enlightened policy is expanding opportunity and not promoting discrimination. Texas has 11.8% blacks but only 4.5% at the University of Texas. As with blacks, some academically lagging Asian subgroups may eventually benefit from preferences (how, they never say). One brief even boldly asserts that the higher rejection rate for Asians comes about because they apply for the most competitive programs in the University (e.g., sciences and engineering). Of course, they cannot make such a case without offering group comparisons (not to mention comparative graduation rates), which they decline to do.

It is hard to resist comparing Asian discrimination with the appalling injustice of anti-Jewish policies in various selective universities. The comparison works only partially. The Jewish quotas were part of an attempt to preserve a Protestant establishment against the rise of a group that threatened its dominance in not only the universities but in the ruling elite of the country—and that opposition applied to other unwelcome groups, too, such as  southern Europeans, Catholics (see McGeorge Bundy’s dismissal of William F. Buckley’s God and Man at Yale), and others. This threat to established power may be involved in Asian exclusion today, but there is a more obvious and insidious explanation. Asians, along with high-achieving white groups, are mere “bumps in the road” or collateral damage in the ongoing war for ideological transformation of the universities. Indeed, I heard the Asian-American representative on President Clinton’s Commission on Race, a Korean-American woman, make the argument that other groups had suffered more than Asians, and they should get deference. Asians should relish their role as houseboys on the liberal plantation. The best essay on Asian-Americans as immigrants can be found in Richard Rodriguez’s  collection,  Days of Obligation—a lovely parallel with the Merchant of Venice, on how immigrant children betray their fathers—they are Jessicas.

Truth to tell, ethnic Japanese in particular have encountered challenges in American jurisprudence. To abbreviate the history, the Yellow Peril (I prefer Das gelbe Gefahr, as it sounds worse in German) was contained in Korematsu v. U.S., a case Justice Stephen Breyer assails with all the conventional pieties in his recent book, Making Our Democracy Work. In trying to justify the Court’s Guantanamo decisions, he misses the connection between nationality and political loyalty, which is at the heart of Korematsu. He would apply everyday legal standards to a potential wartime invasion. Of most interest here is how Breyer’s liberal Court predecessors reaffirmed Korematsu’s ethnic  categorization, with the intention of justifying affirmative action categorizations and preferences. See Justice Douglas’s dissent in DeFunis v. Odegaard (416 U.S. 312, 1974), and, far worse, Justice Brennan’s joint majority opinion in Bakke v. Regents of the University of California (438 U.S. 265, 1978).  Of sounder judgment on Korematsu is the late Chief Justice William Rehnquist’s defense in his All the Laws But One: Civil Liberties in Wartime.

As my parents were relocated in WW II, these events are part of my biography. A cousin’s daughter attended Lowell High School in San Francisco (also Justice Breyer’s alma mater). She could not have gotten in had she checked the Chinese box (her mother’s ancestry) and not the Japanese one (her father’s). In the meantime as the courts sort out this mess and as private universities continue with their social experimentation, I will tell my daughter to have a “Not with Dad” on her college application.

Reader Discussion

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on October 09, 2012 at 11:25:10 am

The top ten percent rule was doing an excellent job, all by itself, of making the campus reflect the demographic and racial profile of Texas. The alternative program is superfluous and futile in enhancing diversity.

I think the University might have had a better case if it had been honest about the reason it created the alternative admission program in the first place: sports. Without the alternative program it would be impossible for the University to recruit the talent it desires for its athletic program. Very few athletes playing at the University were in the top ten percent of their class. If the University had a different program that stated explicitly that it would admit x number of student athletes, regardless of race or academic merit, i.e. they did not make the top ten percent of their class, then the discussion would be about the merits of NCAA athletic programs and not about race.

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on October 09, 2012 at 22:55:19 pm

The non-10% could be athletes, legacies, students from competitive private schools, out of state students, etc. All such students might be said to add something (some far more than others) to university life. They just need to be academically qualified enough to benefit from the university. Race per se doesn't add anything to university life (unless adding to a "critical mass" does). And that's degrading and contrary to any sensible purpose of higher education.

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Ken Masugi
on August 22, 2013 at 23:14:17 pm

Why Fisher v. University of Texas At Austin Cannot Help Asian Americans

I see a cap against Asian Americans applying for admission to top colleges. Is the cap an unwritten maximum quota limiting Asian Americans? Quotas are illegal since Bakke was decided by the U S Supreme Court in 1978. In fact, is there disparate impact?

If we look at the SAT or GPA distribution curve for college admissions, it is a classical Gaussian Bell shape. Super-impose on that bell the racial data - not surprising it fits well into the same bell shape - it correlates. Asian Americans at one end and the other minorities on the other tail - the bulging middle is white. What does this mean?

Decades of Affirmative Action still not working? Why are Asian Americans suffering a upper cap - to benefit more white enrollment or to actually help the other minorities?

I see the current 2013 data as benefiting more the white students because the other minorities are still lagging. The Fisher case is a majority rights complaint - Abigail Fisher is a mediocre white student whose academics is below the automatic 10% top Texas high school graduates admission cut. She is arguing that she got rejected because lesser qualified minorities, i.e. African Americans and Latino Americans, cut in ahead of her. If a strict SAT/GPA criteria is used, she could NOT get in anyway because very likely Asian Americans are waiting in-line ahead of her. If the courts ordered her in, the probability is that some better Asian American will not. So how will Fisher's argument help Asian Americans? Not at all!

In my analysis and opinion, the real problem against Asian American college applicants is more due to an arbitrary cap or upper quota, and the disparate impact that results; much less on account of Affirmative Action. Asian Americans are being squeezed out of the Ivy League because of white pressure from the bulge of the middle of the bell, not from the other much smaller other tail of the bell (which squeezes from the opposite end smack into the other end of the middle bulge). In other words, the huge mass of the center of the bell squeezes against both ends and the opposite ends only squeeze into the center - therefore, there is much less direct competition contact between the two tail ends.

As some know very well and even have the honesty to point out - legacy preferences (automatic admission points awarded because an applicant's father or brother went there), big donations, alumni networks, etc. all perpetuate the historical white dominance there. On the other hand, Affirmative Action developed as a legal remedy to redress lingering discriminatory effects of Jim Crow or worse that institution of slavery.

I see a cap Asian Americans at top colleges. Is the cap an unwritten maximum quota limiting Asian Americans. Quotas are illegal since Bakke! Is there disparate impact against Asian Americans?

So how to address the problem - certainly not by throwing rocks at each other, perhaps in frustration over the misdirection of Fisher, but by coming together to discuss the issues, mediate our differences, and go forward on a critical issue for aspiring Asian American and indeed all students in the nation.

Charleston C K Wang

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Charleston C K Wang

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