In its highly anticipated “nondecision” on Fisher v. University of Texas, the U.S. Supreme Court is said to have ducked the larger constitutional questions about the use of racial preferences in college admissions. But this decision amounts to far more than that. In fact, the court has handed selective public universities a formidable challenge—and a warning. Unless a university can show that it uses racial preferences in a narrowly tailored way to achieve campus “diversity”—of the sort that can’t be attained with race-neutral methods—then the institution’s admissions system would be unlawful.
That seems to me a far more concise statement from the court than we’ve seen in the past that the black box of selective college admissions must be completely transparent, and that universities can no longer stand behind the veil of “good faith.” Nor, it seems, can courts sit back and permit universities “a degree of deference” in their use of race without requiring a searching analysis of whether admissions systems are constitutionally valid.
In other words, it’s no longer sufficient to defer to universities regarding their making of the proverbial sausage.
One foundational aspect of sausage-making in selective college admissions is the question of merit and how it is measured and implemented. And yet this black box has not been held to strict scrutiny. It’s what courts have in the past ignored, in giving considerable deference to universities. Abigail Fisher, who is white, sued the University of Texas at Austin because she claimed she was denied admission despite academic qualifications superior to those of some minorities who were admitted. Without our deeply embedded cultural belief that test scores somehow represent absolute intelligence, academic accomplishment, and potential for success, Abigail Fisher’s case would be considerably weakened and perhaps nonexistent.
But what is a superior academic record compared to an “inferior” one? The merit argument suggests that it would be more just for admissions offices to rank-order candidates by test scores and then select a cutoff point, above which candidates are accepted and below which candidates are rejected.
But is such a sorting even academically defensible? Does the daughter of a university president, given every educational opportunity imaginable, who scores in the top 5 percent of SAT testers have superior academic potential? Or does the untutored kid from Montana, having parents with only high-school diplomas, who scores in the top 20 percent? Despite Fisher’s assertions, these are not simple questions. In fact, college entrance examinations have never been particularly good predictors of academic success. At the same time, such tests—rooted in IQ tests invented and commercialized at the turn of the last century—have always sorted viciously by class and race.
In directing colleges and universities to lay bare their affirmative-action programs to strict scrutiny, the Supreme Court may have opened the door to a much closer and more detailed examination of universities’ methods for defining merit. When it comes to assessing merit, the vast majority of American institutions have been on a dubious path for generations, which has put them in the bind they now find themselves in with respect to racial preferences.
On one hand, the colleges demonstrate by their actions that SAT scores are paramount. But when institutions make exceptions to their merit rules for certain races, they are suggesting that SAT scores aren’t really that meaningful. So which is it: Are SAT scores meaningful or not? In fact, our commonly understood notions of merit are not set in stone, handed down from the heavens. Perhaps it’s time for a new level of scrutiny of the underlying assumptions about merit in cases such as Fisher.
Peter Sacks is the author of Tearing Down the Gates: Confronting the Class Divide in American Education (University of California Press, 2009).