Affirming Justice: More than Just an Acceptance Letter (Part I)

The issue of race has and will remain a prominent issue in America. The majority of people acknowledge that race relations have been tenuous throughout history. Yet, since the Civil Rights Movement of the 1960s, there has been an increasingly vocal call to end the use of race as a factor in decision-making processes. Sanguine supporters of this notion emphasize that racial equality has finally become a shared value among the vast majority of Americans. They argue that using race as a decision-making factor only serves to harm racial equality and divide racial groups further.

While their optimism should not be faulted, it should be tempered by the striking reality of American society. No matter what they want the country to look like, it is unacceptable to ignore the clear socio-economic divides between racial groups. As much as people would like to say that America has reached the point where all Americans share the same opportunities and life prospects, this argument is ignorant of the racial disparities that exist and continue to pervade all areas of civil life.

Look at the facts. Pew Research analysis shows that median white households had 13 times more wealth than median black households in 2013. The New York Times notes a U.S. Sentencing Commission finding that black men with similar crimes to white men receive a 20 percent longer sentence on average. According to U.S. News, which cites a non-profit and non-partisan research center study from 2013, while 33 percent of white Americans receive either a bachelor’s or advanced degree, only 19 percent of black Americans do.

These examples are by no means exhaustive of the disparities that people of color face in America each day. Many advocates for shrinking the socio-economic gap argue in favor of race-based affirmative action policies. To them, affirmative action can help make U.S. universities more representative of the demographics of our country, which, in turn, translates into a workforce and civic institutions that can better serve the American people.

On the flip side, there are many people who argue against the use of race in affirmative action policies. In June of 2016, the U.S. Supreme Court issued a decision in Fisher v. University of Texas at Austin et al. In summary, Abigail Fisher, a white applicant, claimed that she was denied admission to the school because of her race. By a 4-to-3 vote, the high court upheld the university’s affirmative action policy. This was the second time the Supreme Court heard the case. In 2013, the Court issued a 7-to-1 decision, ruling that the case return to the Fifth Circuit Court of Appeals and undergo “strict scrutiny.” Ultimately, the university had to show that policies void of race as a factor would not achieve adequate levels of diversity. In 2014, the Fifth Circuit upheld its decision, and in 2015 the Supreme Court decided to hear it again.

            The University of Texas at Austin has an admissions policy dubbed The Top Ten Percent Plan. The school automatically admits 75 percent of its entering class based on where students rank in their high school classes. While the cutoff began at 10 percent, due to the imposition of the 75 percent statute, automatic admission cutoffs fluctuate depending on the year, usually at the top seven or eight percent marks.

The other 25 percent of the class is filled through a combination of an applicant’s AI (Academic Index), which is a measure of SAT score and high school grades, and PAI (Personal Achievement Index), which is divided into two components. The first component is a 1-to-6 score on the two required essays. The second component is the PAS (Personal Achievement score), which is another numerical score from 1-to-6. The PAS is based on a holistic review of the optional essay, recommendation letters, extracurricular activities, work samples, awards, community service, and other “special circumstances.” The “special circumstances” component is comprised of the socio-economic status of the applicant’s family and school, as well as other relational measures that give insight into an applicant’s background. This includes an applicant’s race. Once the AI and PAI scores are determined, admissions officers set a composite PAI/AI cutoff and admit any applicant that scores above it.

Due to race being only a small component of the standardized admissions algorithm, the opinion of the Court written by Justice Kennedy notes that “race is ‘but a factor of a factor of a factor’” in the admissions process. The Court determined that even though race was a small component, it was able to achieve greater diversity than that achieved by previous race-neutral policies implemented by the university. The Court’s opinion echoed much of its past sentiments. The opinion makes clear that while a university can have diversity as a goal, the goal must be measurable. The use of race as a diversity-promoting factor must be narrowly tailored in the sense that race should only be used if race-neutral policies cannot sufficiently reach the goal.

So, how does this ruling fit in with past affirmative action precedents? The ruling upholds the use of race in college admissions. Yet, the Supreme Court has consistently noted that race-based policies should be narrowly-tailored, or, in other words, minimized as much as possible, in order to obtain greater diversity. The Fisher decision augments Regents of the University of California v. Bakke (1978), which was a landmark case that eliminated race-based quotas but allowed race to be a contributing factor in admissions, as well as Gratz v. Bollinger (2003) and Grutter v. Bollinger (2003), which further clarified and qualified the right of universities to include race as one factor in admissions decisions.