Today, the New York Law School Racial Justice Project filed an amicus curiae brief in Fisher v. The University of Texas at Austin, a case the U.S. Supreme Court will hear in October. The case is a challenge to UT Austin’s consideration of race as a factor in undergraduate admissions and will be the first time the Court addresses affirmative action in higher education since Grutter v. Bollinger in 2003.
The brief was written on behalf of the National Black Law Students Association and responds to arguments that race-conscious admissions programs demoralize minority students, exposing them to stigma and academic environments in which they are outmatched. Specifically, in an amicus curiae brief submitted to the Court, Professor Richard Sander of UCLA Law School argues that the class rankings and bar passage rates of Black law students is evidence that race-conscious admissions programs lead minority students to attend colleges, universities and professional schools for which they are unqualified. The statistics cited in the Sander Brief are indeed troubling and a legitimate cause for concern. But, as the Racial Justice Project’s amicus brief points out, Sander ignores the fact that race continues to structure the opportunities and outlook of all Americans even as overt racial discrimination recedes.
Accordingly, to assess the impact of race-conscious admissions programs we must first acknowledge and address several critical factors that contribute to Black underperformance in the classroom and on the bar examination, including racial discrimination, stereotype threat and segregated and inadequate K through 12 education systems. The brief concludes that while the gap between the performance of Black and white law students is quite troubling, race-conscious admissions programs cannot be faulted for those troubles.
Finally, the Racial Justice Project’s brief responds to arguments raised in a brief filed by Abigail and Stephen Thernstrom urging the Court to adopt the position that there is no benefit to diversity on college and university campuses because positive interaction among members of different racial and ethnic groups is only possible when the number of non-white students is kept to a minimum. We argued that the Thernstroms’ anachronistic position would only lead us to a return to racial segregation and tokenism, and continued inequality. The Racial Justice Project’s brief can be found here: NBLSA Fisher Amicus Brief