A response to Professor Somin on the Top Ten Percent Law

Professor Somin has responded to my post criticizing his view of the Top Ten Percent Law. As I noted in my first post, Professor Somin and I generally agree on the problems with the diversity rationale, and, I imagine, we both favor a system where universities do not use race as an admissions criterion (either overtly or discretely). Professor Somin disagrees with me, however, on three points.  I tackle each of these below.

First.  Professor Somin argues that “the racial motivation behind the adoption of the ten percent plan in the first place” is not objective.  That “administrators can and do pretend that they aren’t really doing anything racially motivated at all.”  And “it is difficult for the public to judge how much academic merit is being sacrificed by preferring people who graduated in the top ten percent at weak high schools over those who placed at lower percentiles at stronger ones.”

I disagree with Professor Somin on each of these points.  Everyone knows that the Top Ten Percent Law was adopted with the express intent to increase racial diversity at the University of Texas.  It was enacted one year after Hopwood v. Texas, which held that “diversity” was not a compelling state interest.  While not at issue in Fisher, it is certainly conceded that the intent of the law was to increase racial diversity.

Moreover, administrators have no say whatsoever in the application of the law.  It is a legislative requirement that the University of Texas (and its administrators) must follow.  Administrators need not pretend they are not doing anything racially motivated, because they are, in fact, not doing anything racially motivated.  The Texas legislature was racially motivated, but university officials can do absolutely nothing with respect to race.  Their hands are tied.

It is also fairly simple to see how academic merit is suffering under the Top Ten Percent Law.  You look to other objective criteria (class schedule, GPA, difficulty of the school, SAT/ACT score), and determine which students are being denied admittance under the Top Ten Percent Law. Perhaps, the legislature, after looking at those factors, determines that it wants to admit the top 8% or 12%, so that students with different academic credentials are admitted.  So long as they cannot look to race when making admissions decisions (which Hopwood prevented them from doing), the public can easily gauge where they want that line to be.

Second. Professor Somin argues that “under traditional racial preferences, skin color is only one of several reasons why affirmative action beneficiaries get in.”  That’s kind of true.  As Judge Garza noted in his special concurrence in the Fifth Circuit Fisher decision:

If two applicants, one a preferred minority and one nonminority, with application packets identical in all respects save race would be assigned the same score under a holistic scoring system, but one gets a higher score when race is factored in, how is that different from Gratz?”

In other words, race is determinative in many (most) cases.  While it’s technically true that race-conscious affirmative action theory speaks of encouraging “diverse student body,” racial diversity is the only thing that matters.

Professor Somin makes a fair point, however, when he notes that “the ten percent plan has a much greater negative impact on academic merit than traditional affirmative action [because] the former affects far more applicants.”  It is potentially true that under the Ten Percent Law, the overall SAT score for admittees will drop from where it was under a race-conscious affirmative action plan.  I do not know if it is in fact true, but this is a problem of the “diversity rationale” not the Top Ten Percent Law.  So long as universities remain committed to pursuing a racially diverse student body, and are not simply interested in maximizing the academic prestige of their institution, there are going to be sacrifices to academic merit.

The costs of looking at skin color, and treating individuals differently on that basis, however, is much greater than the sacrifice to academic merit. Racial preferences create resentment; they stigmatize the so-called beneficiaries in the eyes of their classmates, teachers, and themselves, as well as future employers, clients, and patients; they foster a victim mindset; they require stereotyping; they paper over the real social problem of why so many African Americans and Latinos are academically uncompetitive; and they get states and schools involved in unsavory activities like deciding which racial and ethnic minorities will be favored and which ones not, and how much blood is needed to establish group membership.  In other words, treating people differently on account of skin color is inherently pernicious.  That such action results in less competitive universities is another bad by-product, but it is not the only one.

Third. My final disagreement with Professor Somin is whether laws enacted with a discriminatory intent are inherently suspect. Professor Somin looks back to the Jim Crow laws and argues, “if [the ten percent law was] enacted for the purpose of advantaging African-American and Hispanic applicants over members of other racial and ethnic groups, it is unconstitutional.”  This is an important point, that may require more than this post allows, but I don’t think the analysis is that simple.

The question of legislative intent cannot be the only factor that determines a law’s constitutionality.  If so, we would have to scrutinize the intent of the legislature (or bureaucrat) when passing any legislation (or regulation) whatsoever.   We are currently litigating a case against CalTrans where it enacted a whole host of race-neutral measures in an effort to increase minority representation on construction projects.  Is hosting an outreach event for small businesses unconstitutional?  It was done to increase minority participation.  How about creating a mentor/protege program where up-start businesses can learn the ins and outs of bidding?  That was also enacted to increase minority representation.  Indeed, one of the tenets of strict scrutiny is that race-conscious measures must be a last resort.  But, under Professor Somin’s argument, how could you ever use race-neutral measures if they are motivated by a racial purpose?

The better position is that literacy tests and poll taxes weren’t simply motivated by a racial purpose, but that they were, in fact, discriminatory measures.  While literacy tests and the mentor/protege program noted above were both motivated by racial reasons, only the former did in fact discriminate against individuals on account of race.  There is the famous story of a literacy test where white applicants would have to read the local paper, but then black residents would be given copies of the Beijing Daily and asked to convey its contents. This is no longer just racial intent, but actually treating people differently on account of race.

This is why racial intent is not enough to demonstrate that a law is unconstitutional.   Laws motivated by race are not de jure unconstitutional.  Only those laws that do, in fact, discriminate are unconstitutional.  Accordingly, the Top Ten Percent Law, which doesn’t treat individuals differently according to race (at least I am not aware of any allegation that it does) should ultimately survive constitutionality.