The University of Texas’ Weak Affirmative-Action Defense

Richard Kahlenberg, The Chronicle of Higher Education, August 8, 2012

On Monday, as Peter Schmidt noted in the Chronicle, the University of Texas at Austin filed its brief with the U.S. Supreme Court defending the use of racial preferences in admissions. Like the brief of the petitioner, Abigail Fisher, the UT Austin argument is pitched directly at the likely swing vote on the Supreme Court, Justice Anthony Kennedy. I doubt it will be persuasive.

UT Austin faces an uphill battle because the Supreme Court has long held that race can be used to promote diversity in higher education only if it is “necessary”; Kennedy has emphasized that race should be used as a “last resort,” where race-neutral means won’t suffice. For years, supporters of affirmative action argued that no workable alternatives existed for creating racial diversity. In the words of Justice Harry Blackmun’s opinion in the 1978 Bakke case: “I suspect that it would be impossible to arrange an affirmative action program in a racially neutral way and have it successful. To ask that this be so is to demand the impossible. In order to get beyond racism, we must first take account of race. There is no other way.”

But UT Austin did find another way. As the UT brief acknowledges, in the fall of 1996, using race in admissions, UT Austin’s freshman class was 4.1 percent African American and 14.5 percent Hispanic. When UT Austin was temporarily barred from using race by a lower court, it adopted a socioeconomic affirmative-action plan and a program to admit students in the top 10 percent of every high-school class which resulted, in 2004, in a freshman class that was 4.5 percent African American and 16.9 percent Hispanic—marginally more diverse than under the race-based plan.

Faced with these facts, the UT Austin brief makes two central arguments to suggest that its race-neutral plans were nevertheless inadequate, justifying the reinsertion of race after 2004. First, UT suggests that diversity at the school-wide level is insufficient; what’s truly important is diversity at the classroom level. Even with the 2004 levels of diversity, there were thousands of classroom in which black and Latino students “were nearly non-existent,” the brief argues.

Second, UT suggests, the class-based affirmative-action and top-10-percent plans didn’t produce sufficient levels of socioeconomic diversity within the student body’s black and Latino communities. Those admitted through the 10-percent plan were more likely “to be the first in their families to attend college,” for example, than those admitted through a racial preference. Having wealthier black and Latino students in the mix, Texas argues, is critical to the process of “breaking down racial stereotypes” that other students might have.

Will these arguments fly with the Supreme Court? Shifting the traditional focus from schoolwide diversity to classroom diversity seems unlikely to convince a majority of the justices, as there are mathematical challenges to ever ensuring a critical mass of students in all classrooms. {snip}

And the argument for using race to admit more advantaged students of color highlights the very weakest moral argument for affirmative action. President Obama himself recognized this when he suggested that his own daughters, as fairly privileged students, do not deserve an affirmative-action preference. {snip}


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  • Missing from this defense:  Any attempt to explain why diversity is desirable.

    •  Diversity is a benefit merely by existing, sort of like oxygen!

    • The__Bobster

      They’ll usually either feed you back the definition of diversity or rave about foreign restaurants. That’s all they have.

    • alastairabbacle

      Because it’s got electrolytes

  •  “Having wealthier black and Latino students in the mix, Texas argues, is
    critical to the process of “breaking down racial stereotypes”

    But didn’t they always tell us that it was only poverty that kept blacks and mexicans from succeeding? Now what could be preventing wealthier blacks and mexicans from getting into UT?

    Funny, to me, needing  afro-action to get into college because you are not intelligent enough to qualify without AA only reinforces stereotypes. But that’s just me of course.

  • Enar_Larsson

    —First, UT suggests that diversity at the school-wide level is
    insufficient; what’s truly important is diversity at the classroom
    level. Even with the 2004 levels of diversity, there were thousands of
    classroom in which black and Latino students “were nearly non-existent,”
    the brief argues.—

    I have never had a class improved in any way simply by the presence of black or Latino students. There is only one kind of student that improves a class setting: good ones. Students who have a strong work ethic, a sense that they are responsible for their own ,education (rather than the instructor), who complete the reading assignments and bring questions and objections in class, who can relate texts to new and different contexts, who mull over assigned readings and lectures even while not in class, who can clearly and concisely express an opinion and form an argument–these are the students who improve the overall class experience and who teach the others what it means to learn and what it means to be a good student. The worst students are those who have an overwhelming sense of entitlement. I’ll let you figure out who they are.

    • I remember someone posting here back when we had the old system that he or she took a black civil rights history course in college, and that the white students in the class were the only ones who acted like they wanted to learn black history, all the black students did was goof off.  I wish he or she would re-tell the narrative.

      •  A couple of years ago a black reporter working for a FLA paper volunteered to teach  a journalism class at a HBCU, and he then wrote of the experience, he could not have been more critical of the behavior and the quality of the students if he were the grand wizard of the KKK

  • splitsing

    Hook ’em Diversity

  • Dr Al

    UT needs affirmative action and race based quota admission since BLACK have to have it.

    UT is admitting that the black applicants lack the intelligence to get into this average University based on academic ability.  If they COULD get in on academic intelligence, they would not need admission based on skin color.

    50 years ago Blacks were blocked at the door since the vast majority of whites new of the danger of blacks on a a white campus. The rapes, robberies, murders, assaults, etc. Whites knew this. Blacks were denied admission since whites did not want to be around them. A totally natural and normal instinct.

    Affirmative Action, based on skin color, was forced on the colleges so that denial of QUALIFIED blacks could not be permitted. It was assumed the Black students could academically DO the work ,and always could, but were denied admission due to race. Well, after 30 0r 40 years of discovery that they didn’t have the intelligence, liberal society realized they need AA to force unqualified Blacks into college or they would NEVER get in at all and the healthy Jim Crow laws were really not the reason Blacks could not make it at an average University like UT.

    Thus the mess we have. UT will not admit to the world that the Black applicant pool is not smart enough. They are not “allowed” to. They can’t say this due to the funding from the government, etc. So, they use the “advantages of diversity” argument.

    They are slowly running out of lies and more and more people are seeing the truth. The Black Racial Industry has always known the truth and so has the admissions department of every University. But, now, more and more brain-washed whites are seeing it and the comical farce of the UT argument is being shown.

    It will collapse. All this “equality” will collapse and it will quickly.

  • B

    What is the value of diversity if it’s created out of the very same racial discrimination it is meant to counter? Both pointless and hypocritical don’t you think?

    • The__Bobster

      Only YT can discriminate. Didn’t you know that? That’s what all the recent White college graduates have been telling me.

  • Jim

    UT suggests that diversity at the school-wide level is insufficient; what’s truly important is diversity at the classroom level. Even with the 2004 levels of diversity, there were thousands of classroom in which black and Latino students “were nearly non-existent,” the brief argues.

    That’s wonderful!  First, they create entire new departments to allow black students to get “degrees” without failing.  African American studies, women’s studies, Peace and Conflict studies, education, child development, public administration, etc.  (Blacks are really bad at peace, education, child development and public administration but somehow they are really good at getting degrees in those subjects.)  Now that those departments are full of blacks, they’re saying that that’s a problem.  What do they want to do?  There’s nothing they can do to make blacks able to pass STEM classes.  Those classes are hard for bright whites and Asians and they are essentially impossible for blacks.

    I think the best, simplest, cheapest thing is to give out degrees to blacks without requiring any college attendance.

    • Dr Al

      I got my first degree in Chemistry from the University of Florida. I graduated with a 3.95 GPA back before GPA inflation. I made only 1 “B” in undergraduate studies and that was in “Speech” class which I never prepared for.

      I went to U. of Fla during the height of the battle for AA and Black admissions.  UF bent over backwards to let Blacks in. This was back when they made no attempt to hide the fact Blacks with 1.5 GPA’s were let in and stayed in and tests were changed for them.  We all knew it.

      But, not a single Black was in ANY of my math, physics, calculus, Chemistry, etc classes. Not a single black in the 300 seat Anderson Hall Chemistry lecture room. Not one. No Blacks in Organic Chemistry. Not one. No Blacks in Quantitative Analysis Chem lab. Not one.

      Not a single black even in the retarded SPEECH class.

      Back then they were admitted (to make the Gov. happy) but nobody cared what they did.   They made up the sports teams and took idiot classes like History of the NFL, etc. They took 9 hours per Quarter while I took 19-21 and my classes were 300 and 400 series Chem classes.  Try taking Physical Chemistry along with German 303, Statistics, Bio-Chemistry and Zoology all at the same time.  I did. They didn’t.

      Now, they discovered   that the graduation rate was too low for the admitted Blacks. They blamed the SCHOOL for this. Racists graduation rates. Why, we need more Blacks to graduate. So they began the “Women’s Studies” ………. (the only women I “studied” were in bed with me…………………….),…….. “African Studies”,  “History of Racism”  (I’m making that one up),  “Social Worker”  (what does one do with a “social worker” degree?).  But Blacks couldn’t even pass these career paths.

      So the next step was to DUMB DOWN the entire University.  Chem 401 was now the same as first year “Introduction to Chemistry” level. They moved all the hard and real stuff to Graduate School. But, as you can guess the Government and SPLC and NAACP caught on and sued the Graduate School for discrimination.  On and on the stupidity goes.

  • Dr Al

    OK, lets embrace Affirmative Action. Let’s ADMIT it is a GOOD thing and shows an advantage. How can we make employers and clients and customers aware that THIS graduate has achieved AFFIRMATIVE ACTION and beat the racists odds?

    Put A.A. after ever affirmative action degree. That’s right. You earn the B.S.A.A. degree. Or a Ph.d.A.A. degree or even better, to show the world NOTHING will hold you back, no poverty, no financial set-backs,no white racists dean of students…you’ve earned the highly desired “M.D.A.A.” degree.

    Imagine the job openings and patients demands for a Black Doctor with the M.D.A.A. degree. Not only was he the best of the best and smart as hell, but he won’t be put down by the man nor the system. This Doctor had everything it takes but was denied admission to the U.T. Medical School due to being black. But he fought back. He sued the racist admissions department as the action to affirmatively accept him resulted in the Black. MD.

    Yes, UT. Admit them and show the world their true qualities with the coveted “A.A” modifier of their earned degree.

    Notice all those who push Affirmative African Action NEVER want the public to know?


      Miss Jibowu enrolled on the college’s six year extended medical degree course for students from disadvantaged backgrounds in September 2002.

      Miss Jibowu is sueing the school because she says she was bullied after being sent down to a remedial MD program — it lasts six years in stead of three.

    • dukem1

       A Back Surgeon A.A.!!
      You go 1st.!

    • Sherman_McCoy

      Nice.  But there is an easier way.  Just avoid all black “professionals” and you will avoid a great deal of incompetence. 

      Love the idea, though. I suspect most IQ-challenged Bantus would believe you and see it as a status symbol.

  • Chimp Master Rules

    Diversity promotion?  Oy vey.    Can’t we use this race-based selection mumbo-jumbo for things that don’t matter instead of college admissions . . . which actually do?   How about we have race-based theater tickets or race-based bus seating (oh, wait, we already tried that one).  How about race-based lines at the deli counter?

    Anything . . . except using race and quotas to fill our universities.  Scholastic merit is the only thing that counts in higher education unless your dad is richer than God and he sends you to Podunk U to get a degree in basket weaving before he makes you president of his company. 

    We are producing a generation of intellectual retards who have a piece of paper on the wall that says “graduate” but whose major qualification is melanin and kinky hair.

  • And they wonder why higher education is in a tailspin.

  • Ed

    I narrowed it down, their failure to achieve is either a legacy of slavery or it’s G.W.’s fault.   It’s either one or the other, but not both……lol.

  • K.K.

    Can someone please explain me the PC ‘logic’?

    If there are no innate differences between the ‘Races’ how can there be more Diversity if the people that one adds are The Same in the first place?

  • Herman

    The article mentioned the Supreme Court.

    If Obama is re-elected he will probably pick one or two more Judges.

    When they happens there will be no more discussion on affirmative action. 

    Anti-white discrimination will be the law of the land.

  • Sloppo

    If it’s okay to lower the standards for blacks going into school, perhaps their standards should be lowered throughout the rest of their lives too.  When a building inspector looks at a structure, maybe there should be a sign saying it was built by blacks so he knows to overlook a few structural defects to “level the playing field” so to speak.  If a black surgeon removes one of your lungs when he is supposed to remove your appendix, he should get some credit for at least removing an organ from the right person.  Our main purpose in life is to make these blacks feel good about themselves just like NASA is supposed to do for the Muslim world.

  • Up to my neck in CA

    A degree in “Hate Whitey” only takes you so far in life. With out Afro-Action and gub’mint jobs there would be no black Middle Class.

    • The__Bobster

      You can go pretty far. Diversity directors make well into the six figures, even though there is no need for them outside of the government forcing you to have them.

  • shmo123

    I’m waiting to see what it will be like if and when Obama’s daughters enroll in college–no doubt some Ivy League school that will drool at the thought of them entering.  The expectations will be so high, they could crumple because of it all. They’ll be expected to be “brilliant” like their parents (especially their father), but with nothing to compare to because his records are all locked up they’ll get a pass no matter what they do.