On Tuesday, the U.S. Court of Appeals for the Fifth Circuit released the latest opinion in UT v. Fisher, the ongoing battle over the role of race-based preferences in the University of Texas at Austin’s undergraduate admissions policy. Last year, the U.S. Supreme Court ruled that the Fifth Circuit had failed to apply the proper strict scrutiny standard to its earlier review of UT’s admissions scheme. Justice Anthony Kennedy wrote the court “must ultimately be satisfied that no workable race-neutral alternatives would produce the educational benefits of diversity.” He cautioned that, if a non-race-discriminatory approach could bring about UT’s stated goal of a “critical mass” of campus diversity, “then the university may not consider race.” The Court remanded the case back to the Fifth Circuit. This week, two of the three judges on the Fifth Circuit panel concluded that the use of race was, indeed, necessary.

Judge Emilio Garza’s dissent (beginning on page 44) criticizes the majority opinion for deferring impermissibly to UT’s claims, despite the Supreme Court’s instruction. He writes, “Although the University has articulated its diversity goal as a ‘critical mass,’ surprisingly, it has failed to define this term in any objective manner.” He later writes, “The majority entirely overlooks the University’s failure to define its ‘critical mass’ objective for the purposes of assessing narrow tailoring. This is the crux of this case — absent a meaningful explanation of its desired ends, the University cannot prove narrow tailoring under its strict scrutiny burden.”

How much diversity is a critical mass of diversity? Is this a unit of measure like a team of oxen or a murder of crows? How can a court possibly determine whether a given policy is necessary to achieve critical mass if we don’t know what that is? UT isn’t exactly the International Bureau of Weights and Measures, but a little bit more precision would be helpful.

The concept of critical mass is problematic for many reasons. Its vagueness provides a poor measure for reviewing courts. It packs in several dubious assumptions about the meaning of race. Here’s one more reason why “critical mass” is such a critical mess . . . .

The concept of “critical mass” highlights a weakness in most admissions policies: while scrambling around assembling an ideal student body, schools don’t know as much as they should about what actually makes someone likely to succeed in school after they are admitted.

Even without trying to satisfy some ephemeral standard of diversity, admissions policies can devolve into crude social engineering. Students represent tokens of the demographic attributes universities place on their wish lists for ideal student populations — not only with race, but with other characteristics like playing the trombone, being the star striker on a soccer team, or even just earning high grades. Of course, schools should curate their incoming classes, rather than admit everyone on a first-come-first-served basis. Nonetheless, the process commodifies student characteristics, no matter what criteria a school uses. But this project grows suspect when schools don’t have — or don’t consistently use — information about what factors actually do lead students to do well in college.

Consider what goes on at UT. UT admits most of its undergraduate students through a scheme known as the “Top Ten Percent” plan. Students who place in the top ten percent of their graduating class at Texas high schools are automatically eligible for spot in UT’s freshman class. UT selects the remaining twenty percent or so of each incoming freshman class through a “holistic review” of applicants’ qualifications. Admissions officials consider an applicant’s race when choosing which students to admit through this secondary procedure.

Notice that the Top Ten Percent Plan favors students who may have low SAT scores but who have high grades compared to their high school classmates. Under that plan, high school class rank becomes the sole factor — potentially drawing in students whose metrics would otherwise exclude them from consideration.

UT could improve its policies by looking closer at how students admitted via the Top Ten Percent Plan with low SAT scores fare once admitted. If most of them perform well in college, then perhaps schools should not continue to rely so heavily on SAT scores at all in admissions decisions. We could then start to determine which factors are stronger predictors of college success.

If 10%ers with low SAT scores tend to fare poorly once admitted, then how can schools justify overlooking the predictive value of SAT scores when it comes to holistic review? We would then have an empirical basis for concluding that special factors in the absence of high SAT scores still means that a student is likely to be unsuccessful once admitted.

Regardless of race or any other factor, schools should not admit a student if the school has reliable data predicting the student’s failure to thrive in their academic environment. Schools should also not use criteria the school knows are poor statistical discriminators — i.e. factors that don’t do a good job of predicting student success. If data analysis shows that SAT scores are actually weaker predictors of actual college success than previously believed, then schools do all students a disservice by relying so heavily on SAT scores.

Determining which factors do lead to the likelihood of success should, indeed, look beyond conventional metrics like scores and grades. A host of factors may correlate strongly with earning solid college grades, engaging with fellow students, and contributing positively to the school’s community. Persevering despite the handicap of racial inequities might well be one of those factors. But admissions procedures shouldn’t trust a gut feeling. They should rely on evidence.

A sharper picture of what qualities successful students have would benefit applicants from a range of backgrounds. It would reduce the exclusion of majority-race students whose conventional credentials are weak but whose potential for success is strong according to more reliable predictors. But it would also do the important job of not systematically excluding minority students whose socially or economically disadvantaged backgrounds may have prevented them from getting SAT prep courses, private schooling, etc. It’s a merit system, but it’s a merit system that does not overlook the tremendous inequalities minority students may face earlier in their educations and lives.

What about the “educational benefits of diversity” for all students? Isn’t there an independent interest in giving students the chance to interact with classmates from backgrounds different than their own, even if data show that a lot of those students won’t do well once admitted?

There is nothing enlightening for majority-race students about watching minority classmates fail. Broadening the horizons of some racist or xenophobic white kid from an all-white rural town is, indeed, a good thing. But sitting in classrooms filled with minority students who lag behind doesn’t exactly shatter stereotypes. There is also nothing empowering for minority students about struggling in college.

We shouldn’t fear using actual-success metrics because they will exclude minority students. We already know that many students from minority groups do thrive in college, even when their applications lack the conventional indicia used by admissions offices. We know this by looking at many of the students currently admitted who end up doing well once they get the chance — both students in the Top Ten Percent Plan who have low SAT scores and those admitted through holistic review.

Maybe Justice Sonia Sotomayor is right that she would not have been admitted to Princeton without race-based admissions preferences. That doesn’t mean that we ought to lower our standards for Latina applicants, though. It means that we ought to do a better job of figuring out what factors not otherwise emphasized actually contributed to Younger Sonia’s success once she got to Princeton. If schools respond to the mess that is UT v. Fisher’s “critical mass” by increasing their efforts in this way, students of all races would be better off.


Tamara Tabo is a summa cum laude graduate of the Thurgood Marshall School of Law at Texas Southern University, where she served as Editor-in-Chief of the school’s law review. After graduation, she clerked on the U.S. Court of Appeals for the Fifth Circuit. She will be working at the Center for Legal Pedagogy at Texas Southern University during the 2013-2014 academic year. She looks forward to a career of teaching and writing about, but never practicing, law. You can reach her at tabo.atl@gmail.com


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