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U.S. Supreme Court

Law Prof’s Amicus Brief in Potential Supreme Court Case Says Preferences Hurt Minorities

Posted Dec 5, 2011 6:30 AM CDT
By Debra Cassens Weiss

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A white woman who claims the University of Texas didn’t admit her because of her race is getting some support in her quest for U.S. Supreme Court review from a law professor who claims educational preferences for minorities don’t result in the intended benefits.

George Will cites the amicus brief by UCLA law professor Richard Sander and legal journalist Stuart Taylor Jr. in a Washington Post column questioning minority preferences. If the Supreme Court grants cert in Fisher v. University of Texas, it will “confront evidence of its complicity in harming the supposed beneficiaries of preferences the court has enabled and encouraged,” Will writes.

The plaintiff, Abigail Fisher, was refused admission under University of Texas policies that determine the bulk of admissions by class rank, and then fill the remaining spots based on academics, personal achievement and race. The leading Supreme Court precedent, Grutter v. Bollinger, allows colleges and universities to use race as a factor in admissions.

The amicus brief (PDF) argues that racial preferences undermine minority achievement because of an academic mismatch in which students with weaker academic skills fall behind. Sander has studied racial preferences in law schools. In a controversial 2005 study published in the Stanford Law Review, he concluded that academic preferences resulted in lower graduation rates and lower success rates on bar exams.

“It is now generally conceded that large admissions preferences—regardless of whether these are based on race, ‘legacy’ considerations, or other factors—cause students to receive lower grades,” the brief says. “The median black receiving a large admissions preference to an elite law school, for example, ends up with grades that put her at the 6th percentile of the white grade distribution—an effect that is almost entirely due to the preference itself.”

Above the Law is not impressed with the argument that Sander's research is justification for ending affirmative action. "The real beneficiaries of affirmative action are not the recent and current students to be compared against a 'control set' of white people who have been sending their kids to college for generations," the blog says. "The real beneficiaries of these policies will be their children. ... That’s the prize that many in the black community are keeping their eye on."

Coverage of another study by Sander:

ABAJournal.com: “Study Finds ‘Lopsided’ Concentration of Socioeconomic Elites at Law Schools”

Prior coverage of the Fisher case:

ABAJournal.com: "Grutter Ruling on Use of Diversity in College Admissions Could Be Overturned, Experts Say"

ABAJournal.com: "College Affirmative Action Could Be Back Before Supreme Court"

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