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Scalia's Argument Against Affirmative Action

Without the vote of the late Antonin Scalia, the Supreme Court upheld  the decision to allow the University of Texas system to continue to use race as one factor in determining admissions to its universities. The decision was 4-3, with Justice Elena Kagan recusing herself because of her former position as U.S. Solicitor General. Scalia would have undoubtedly made the decision at least a tie. He had previously offered the opinion, which he attributed to an unnamed source, to the effect that, “it does not benefit African Americans to ­­ to get them into the University of Texas where they do not do well, as opposed to having them go to a less­-advanced school, a less – a slower-track school where they do well.”  Although liberals criticized Scalia’s comments as racist, many conservatives felt he was simply “telling it like it is.” But was he?

The University of Texas system, has abysmal graduation rates (as are the graduation rates of nearly all four-year public universities in Texas). Only two of ten schools in the UT system have graduation rates above 50%. Only 5 of 33 public universities in Texas have graduation rates that exceed 50%. Compare that to California, where 17 of 32 public universities and every single one of the University of California schools has a graduation rate above 50% (UC averages an 82.5 graduation rate). But what about minority students?  On 5 out of 9 UT campuses Hispanic graduation rates are as high or higher than Whites and on 4 of the 9 campuses, the Black graduation rates exceed those of Whites, hardly suggesting that affirmative action policies are letting in minority students who cannot compete. Furthermore, both Black and Hispanic graduation rates at the more prestigious University of Texas system, generally exceed graduation rates at inferior four-year public schools in Texas, indicating they do better when admitted to better schools. In fact, at Rice University, Texas’ most elite private school, 92% of Whites graduate and 91% of Blacks graduate.

Clearly, Scalia and his conservative supporters had their facts wrong.

It is true that four year college degree rates within the United States differ markedly by race and ethnicity. According to the U.S. Census Bureau 2015 report, 59% of Asian Americans had at least a bachelor’s degree, 36% of non-Hispanic whites did also, as did 23% of Blacks and 16% of Hispanics. With the exception that Hispanic Americans have failed to increase their graduation rates at the pace of other groups, the rates of graduation for all other groups grew at about the same rate (12-14 percentage points) since 1988.

It is also true that graduation rates at the majority of states’ most prestigious public universities show racial differences in graduation rates favoring White students (although White graduation rates are uniformly below such rates for Asian students). However, lesser graduation rates for minorities is not true across all states. Several states within the top ten graduation rates in the country have similar or higher rates of graduation for minority students than for White students (e.g. Vermont, Virginia, New Jersey).  Virtually all states show higher graduation rates for minorities at their more prestigious public universities than at their less prestigious ones. In the University of California System, graduation rates differ by race and ethnicity, although not nearly as much as in other California public colleges. For instance, at UCLA, 94% of Asian students graduate and 91% of White students, compared to 78% of Blacks and 88% of Hispanics, but these rates are all higher than at less prestigious public universities in California. The picture is even rosier at prestigious private colleges and universities. Among Ivy League schools, only Dartmouth exceeds a five percent graduation rate advantage of White over Black students and all graduation rates at these schools exceed 90% for both Black and Whites. Recent studies of admission processes at these “elite” private schools have shown that most include race in making their admission decisions.

Only eight states have banned affirmative action in making public college admission decisions, notably, of these, only California is in the to 10 states in public university graduation rates. All other states within the top ten in graduation rates continue to have some kind of affirmative action at the public universities.

Several studies have shown that enrollment of Black and especially Hispanic students in college has increased dramatically in the last decade. Graduation rates, especially for Black students have not increased commensurably. What other studies have shown is that this increase on enrollment of minority students (except Asians) has been mostly at lower tier colleges, which themselves have low graduation rates for all of their students regardless of ethnicity. Reports that have claimed that “diversity” has increased at top tier universities have made that claim on the basis of the increased percentage of Asians enrolled and graduated, not Blacks or Hispanics. In, fact, a Forbes article making such a claim about the Forbes’ 100 Elite Universities, admitted that the increase in "diversity" was almost all due to the increase in Asian students and such elite schools continued to have enrollment of Blacks, for instance of only  3-6%. Lumping universities together in which a disproportionate percentage of students at elite schools are white and a disproportionate percentage of Black and Hispanic students attend lesser colleges, does not make for a valid comparison, since graduation rates differ dramatically between the two different kinds of schools and not just between races.

The data strongly suggest that 1) Minority students, as well as White students, do better at more elite universities and 2) Minority students disproportionately attend lesser quality universities while White students disproportionately attend elite universities, giving the impression that differences in graduation rates between races and ethnicities are larger than the really are, because type of university attended is confounded with race. The late Antonin Scalia’s argument that minority students would fare better at less elite universities is patently false. The argument that minority students are grossly underrepresented at our country’s elite universities is patently true. These findings provide a strong statistical argument for affirmative action.

But is affirmative action and providing more quality education for minorities a way to overcome societal disparities between races and ethnicities in such things as income? Bureau of Labor Statistics for 2015 indicated that those with a college degree earned 1.67 times what those without a college degree earned and were less than half as likely to unemployed. According to the Census Bureau, family incomes mostly mirrored educational attainment. Asian Americans were highest, with a median income of $74, 297, followed by non-Hispanic Whites, with a median of $60, 256, then Hispanics at $42, 491 and finally Blacks with a median family income of $35,398. Clearly, attainment of a college degree has an extremely strong bearing on the income one may earn for one’s family.  If we want to make progress on the income disparity between the races and ethnicities within the United States, then altering the disparities in college graduations can be one way to attack the problem. And affirmative action, with the result that more minorities are enrolled at our country's best colleges, is a tool that can be used to accomplish this task.


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