Somin Addresses Affirmative Action Case

As the Supreme Court considers Fisher v. University of Texas, Professor Ilya Somin cautions that affirmative action policies must pass what is considered strict scrutiny, and justices will have to determine what diversity means. 

In Fisher, an affirmative action lawsuit against the University of Texas, a white applicant claims she was denied admission while less-qualified minority students gained entrance, an allegation the University denies. 

Texas argues it needs a "critical mass" of minority students on its Austin campus to enhance the educational experience of all its students. At the same time, counsel for Texas would not offer a specific formula for determining "critical mass," saying it was up to the University to make that determination.

The conservative members of the high court are not likely to accept a vague definition of "critical mass" as passing strict scrutiny, says Somin. 

Somin suggests one option for the justices would be to eliminate Texas' ability to use race in admissions while allowing it to retain its current policy of automatic admission of the top 10 percent of students graduating Texas high schools. The policy, while race-neutral, provides for acceptance of the top 10 percent of students from predominantly black and Hispanic high schools.

Somin explains the concerns of some conservatives, both on and off the Court, who argue that universities may view the concept of diversity as a justification to provide extra benefits to improve likelihood that minority students will succeed.

Race is a factor in many colleges' admissions, but maybe not for long,, October 14, 2012. By Jeff Frantz, The Patriot News.


"At the heart of the case before the court — Fisher v. University of Texas — is the question of a 'critical mass.'

"Texas argues it needs a 'critical mass' of minority students on its Austin campus to enhance the educational experience for all of its students. It’s the same rationale applied at Millersville and scores of universities across the country.

"The U.S. military filed a brief in support, arguing its ROTC programs benefit from more diverse campuses. Several large corporations also filed briefs, saying diverse campuses are needed to fully educate the next generation of leaders.

"But what exactly is a 'critical mass' of minority students?

"During oral arguments Wednesday, Gregory Garre, the attorney representing Texas, could not say for certain.

"Previously, the court has barred universities from setting quotas on the number of students from any one race it wants to admit. Similarly, schools are not allowed to explicitly set a percentage of minority enrollment.

"Conservative justices pressed Garre to define a critical mass. He said that was up to a university to do for itself."

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