Operations Research Management Science - Supreme Court Decisions

<BODY bgcolor="#ffffff" link="cc0000" vlink="cc0000" text="#000000"> <img src="../cleardot.gif" width=1 height=1 vspace=4 border=0><br>   <table border=0 cellspacing=0 cellpadding=0 width=480><tr valign=top> <td width=10><img src="../cleardot.gif" width=1 height=1 hspace=4 border=0></td> <td width=470> <FONT face="verdana, arial, helvetica" SIZE=2><B><I><A HREF="../../ORMS.shtml" TARGET="_top">OR/MS Today</A> - December 2003</I></B></font><BR> <hr size="1"> <img src="cleardot.gif" width=1 height=1 vspace=4 border=0><br> <font face="times new roman, times"> <img src="../cleardot.gif" width=1 height=1 vspace=4 border=0><br> <FONT face="verdana, arial, helvetica" SIZE=2><B>Supreme Court Decisions</B></FONT><br> <IMG SRC="../barbluehook.gif" WIDTH="468" HEIGHT="4"><br> <img src="../cleardot.gif" width=1 height=1 vspace=8 border=0><br> <FONT SIZE="+2"><B>And Justice for All</B></FONT><BR> <img src="../cleardot.gif" width=1 height=1 vspace=2 border=0><br> <FONT SIZE="+1"><I>Supreme Court's decisions on affirmative action in college admission cases raise challenges for quantitative analysts.</I></FONT><BR> <img src="../cleardot.gif" width=1 height=1 vspace=6 border=0><br> <FONT face="verdana, arial, helvetica" SIZE=2><B>By Douglas A. Samuelson</B></FONT><br> <hr size="1"> <img src="../cleardot.gif" width=1 height=1 vspace=12 border=0><br>    The U. S. Supreme Court recently decided two cases redefining the acceptable limits of affirmative action in admissions to higher education. The Court's reasoning raised a number of statistical and assessment issues that could keep OR/MS analysts, among others, busy for quite some time. <P>A comprehensive analysis of the case law history and the legal implications of the two cases, <I>Grutter vs. Bollinger</I> (concerning the University of Michigan Law School) and <I>Gratz vs. Bollinger</I> (concerning the University of Michigan's undergraduate admissions) is beyond both the space available for this article and the expertise of this reporter, but here are the key findings: <P> Justice O'Connor, writing for the Court in a 5-4 decision, held that the Law School's "tailored" admissions policy, which takes race into account but does not do so in a fixed, quantitative way, is constitutional. No other justice fully concurred with her reasoning, indicating that she was the swing vote in a Court divided into multiple factions. Justice O'Connor decided the case on narrow grounds, from a detailed analysis of the prior case law, while other justices argued more broadly, trying to establish more general policy guidance. <P> Chief Justice Rehnquist, writing for the Court in a 6-3 decision, held that the undergraduate admissions policy, using a numerical scoring system with a substantial number of points added for minorities, used race to an impermissible extent. <P> Taken together, the decisions appear to mean that race may be considered but that it cannot be applied in too broad or unvarying a way. <P> The Court also shifted somewhat the acceptable reasons to use affirmative action. Originally developed as a short-term remedy for past discrimination, affirmative action has now been recast as a means to achieve cultural diversity in educational programs, when such diversity is essential to achieve a compelling government interest. Educational excellence, especially in public institutions, is one example of a compelling government interest, the relevant one in this case. <P> The justices are deeply divided over how much affirmative action is appropriate, under what circumstances, and for how long. Some justices, particularly Justice Scalia, favored a firm 25-year sunset, if not sooner, for all such programs. Others seem to be prepared to accept affirmative action programs indefinitely, subject to the strict scrutiny mandated by earlier decisions. In practical terms, their disagreements are mostly over how and to what extent race should be taken into account, balancing the justification for doing so against other values. <P> In the undergraduate case, the Court, following a recent trend in other cases, tilted further against the use of point-scoring systems in which the applicant's membership in a minority race gets a fixed number of points regardless of other circumstances. In this case, all black applicants got 20 points on a 140-point scale. The Court held that this made race a "predominant" factor in the selection, violating the equal protection clause of the 14th Amendment as interpreted in prior cases.<BR> <img src="../cleardot.gif" width=1 height=1 vspace=12 border=0><br> <FONT face="verdana, arial, helvetica" SIZE=3><B>Quantitative Issues</B></FONT><BR> <IMG SRC="../barbluehook.gif" WIDTH="468" HEIGHT="4"><br> <img src="../cleardot.gif" width=1 height=1 vspace=2 border=0><br> The Court's analysis and some of the individual opinions relied on quantitative evidence for support. These citations and uses of evidence raise interesting questions for additional analysis. <P><B><I>What kinds of behavior constitute an impermissible quota system?</I></B> Chief Justice Rehnquist, in his dissent on the Law School case, included a table showing the breakdown of the applicant pool and the selected class by race. The percentage admitted, out of those who applied, for the targeted minority races appeared fairly steady over the 10-year period (1987-1996), he summarized. His conclusion was that the Law School appeared to have a more or less constant numerical goal, in terms of percentage admitted from each minority of interest, and that this violated earlier precedents against quotas. The precedental cases concerning quotas, however, mostly refer to minorities as a percentage of all those admitted, rather than percentage admitted out of those in a minority who applied. Chief Justice Rehnquist did not argue that maintaining a fairly steady percentage of admissions relative to applicants, by group, was wrong in itself, but that that "the narrow fluctuation band raises an inference that the Law School subverted individual determination." His citations of prior case law to support his point were sparse, indicating that he may not perceive broad support for this analytical point in the precedents or among his fellow justices. <P><B><I>What are appropriate ways to take individual backgrounds into account?</I></B> The Court disallowed the point-scoring system in the undergraduate case because race was too influential a factor. Many institutions have already been moving away from point-scoring systems, responding to implications from earlier cases that such systems are falling from favor with the Court. The Court did not address, however, whether anyone can devise a point system taking account of other factors, such as income, parents' education, quality of schools or quality of neighborhood, in a way that would pass the Court's scrutiny. <P><B><I>Does affirmative action really benefit those it is supposed to help?</I></B> In a dissenting opinion in the Law School case, Justice Thomas, not generally known for passionate or controversial opinions, raised this and several other potentially explosive issues. He began by quoting a speech abolitionist Frederick Douglass delivered in 1865: <BLOCKQUOTE><I>"[I]n regard to the colored people, there is always more that is benevolent, I perceive, than just, manifested toward us. What I ask for the negro is not benevolence, not pity, not sympathy, but simply justice. The American people have always been anxious to know what they shall do with us. ... I have had but one answer from the beginning. Do nothing with us! Your doing with us has already played the mischief with us. Do nothing with us! If the apples will not remain on the tree of their own strength, if they are worm-eaten at the core, if they are early ripe and disposed to fall, let them fall! ... And if the negro cannot stand on his own legs, let him fall also. All I ask is, give him a chance to stand on his own legs! Let him alone! ... [Y]our interference is doing him positive injury." </I></BLOCKQUOTE> <P>Justice Thomas went on to state: "I must contest the notion that the Law School's discrimination benefits those admitted as a result of it. The Court spends considerable time discussing the impressive display of <I>amicus</I> support for the Law School in this case from all corners of society. ... But nowhere in any of the filings in this Court is any evidence that the purported 'beneficiaries' of this racial discrimination prove themselves by performing at (or even near) the same level as those students who receive no preferences." <P><B><I>Does the use of affirmative action unfairly stigmatize qualified members of the minority it is supposed to help?</I></B> Justice Thomas declared, "The majority of blacks are admitted to the Law School because of discrimination, and because of this policy all are tarred as undeserving. ... When blacks take positions in the highest places of government, industry or academia, it is an open question today whether their skin color played a part in their advancement. The question itself is the stigma  because either racial discrimination did play a role, in which case the person may be deemed 'otherwise unqualified,' or it did not, in which case asking the question itself unfairly marks those blacks who would succeed without discrimination." <P><B><I>How beneficial is an elite (or elitist) standard of admission?</I></B> Justice Thomas argued that the combination of elitist standards and affirmative action generates mismatches between minority students and what they can reasonably accomplish. "To cover the tracks of the aestheticists, this cruel farce of racial discrimination must continue  in selection for the <I>Michigan Law Review,</I> ... and in hiring at law firms and for judicial clerkships  until the 'beneficiaries' are no longer tolerated. While these students may graduate with law degrees, there is no evidence that they have received a qualitatively better legal education (or become better lawyers) than if they had gone to a less elite law school for which they were better prepared." <P>He also observed, "In any event, there is nothing ancient, honorable or constitutionally protected about 'selective' admissions." <P>Justice Scalia, stating his concurrence in part with Justice Thomas, added, "I find particularly unanswerable his central point: that the allegedly 'compelling state interest' at issue here is not the incremental 'educational benefit' that emanates from the fabled 'critical mass' of minority students, but rather Michigan's interest in maintaining a 'prestige' law school whose normal admissions standards disproportionately exclude blacks and other minorities." <P><B><I>Are current measures of "merit" truly accurate and unbiased?</I></B> Justice Thomas opined, "...no modern law school can claim ignorance of the poor performance of blacks, relatively speaking, on the Law School Admissions Test (LSAT). Nevertheless, law schools continue to use the test and then attempt to 'correct' for black underperformance by using racial discrimination in admissions so as to obtain their aesthetic student body. The Law School's continued adherence to measures it knows produce racially skewed results is not entitled to deference by this Court." He concluded, "... the same Court that had the courage to order the desegregation of all public schools in the South now fears, on the basis of platitudes rather than principle, to force the Law School to abandon a decidedly imperfect admissions regime that provides the basis for racial discrimination." <P><B><I>Does the admission standard, with or without modification by affirmative action, really correlate to performance?</I></B> Again, Justice Thomas put it bluntly: "The Law School is not looking for those students who, despite a lower LSAT score or undergraduate grade point average, will succeed in the study of law. The Law School seeks only a facade  it is sufficient that the class looks right, even if it does not perform right." <P><B><I>Is diversity beneficial?</I></B> Justice Scalia acidly pointed out that the "educational benefit" of "cross-racial understanding" claimed as justification for the affirmative action program is not graded by the Law School or tested by bar examiners. He continued, "If properly considered an 'educational benefit' at all, it is surely not one that is either uniquely relevant to law school or uniquely 'teachable' in a formal education setting." Therefore, he argued, if it is appropriate at all, it should be applied in all areas, including employment, and "the nonminority individuals who are deprived of a legal education, a civil service job, or any job at all by reason of their skin color will surely understand." <P>Justice Thomas stated, "The Court never acknowledges ... the growing evidence that racial (and other sorts of) heterogeneity actually impairs learning among black students." <P><B><I>If diversity is beneficial, how much is necessary to produce the benefit? </I></B>Chief Justice Rehnquist noted the discrepancy between the number of blacks (usually around 110) deemed necessary to form a "critical mass" in the Law School and the number of Native Americans (usually 5 or fewer). Justice Thomas noted that in historically black colleges such as Morehouse and Mississippi Valley State, very small proportions (.01 percent and 1.1 percent, respectively) of the students are white. He concluded, "If there is a 'critical mass' of whites at these institutions, then 'critical mass' is indeed a very small proportion."<BR> <img src="../cleardot.gif" width=1 height=1 vspace=12 border=0><br> <FONT face="verdana, arial, helvetica" SIZE=3><B>Conclusion</B></FONT><BR> <IMG SRC="../barbluehook.gif" WIDTH="468" HEIGHT="4"><br> <img src="../cleardot.gif" width=1 height=1 vspace=2 border=0><br> Clearly, the justices disagreed strongly about a number of social science, evaluation and performance issues pertinent to the legality of affirmative action programs. Many of these issues may present opportunities for more thorough and rigorous quantitative analysis than has occurred to date, by analysts who can familiarize themselves with the complicated legal precedents and the use of evidence in litigation.<BR> <img src="../cleardot.gif" width=1 height=1 vspace=12 border=0><br> <FONT face="verdana, arial, helvetica" SIZE=3><B>References</B></FONT><BR> <IMG SRC="../barbluehook.gif" WIDTH="468" HEIGHT="4"><br> <img src="../cleardot.gif" width=1 height=1 vspace=6 border=0><br> <font size=1>The opinions are available on line at several Web sites, including <A HREF="http://caselaw.lp.findlaw.com" TARGET="_new">http://caselaw.lp.findlaw.com</A>.</font> <BR> <img src="../cleardot.gif" width=1 height=1 vspace=4 border=0><br> <IMG SRC="../barbluehook.gif" WIDTH="468" HEIGHT="4"><br> <img src="../cleardot.gif" width=1 height=1 vspace=2 border=0><br> <FONT face="verdana, arial, helvetica" SIZE=2><I><B>Doug Samuelson</B> is president of InfoLogix, Inc., a consulting company in Annandale, Va.</i></font><BR>  <img src="../cleardot.gif" width=1 height=1 vspace=5 border=0><br>  <img src="../barblue.gif" width=468 height=1 border=0 alt=" "><br> <img src="../cleardot.gif" width=1 height=1 vspace=8 border=0><br> <CENTER><script type="text/javascript"></script> <script type="text/javascript" src="http://pagead2.googlesyndication.com/pagead/show_ads.js"> </script></CENTER><br> <img src="../cleardot.gif" width=1 height=1 vspace=8 border=0><br> <FONT face="verdana, arial, helvetica" SIZE=1> <LI> <A HREF="tocfr.html" Target="_top"><I>Table of Contents</A><br> <LI> <A HREF="../../ORMS.shtml" TARGET="_top"><I>OR/MS Today</I> Home Page</A><br>  <img src="../cleardot.gif" width=1 height=1 vspace=8 border=0><br> <img src="../barblue.gif" width=468 height=1 border=0 alt=" "><br> <b><i>OR/MS Today</i></b> copyright � 2003 by <A HREF="http://www.informs.org/" target="_new">the Institute for Operations Research and the Management Sciences</a>. All rights reserved.<br> <img src="../cleardot.gif" width=1 height=1 vspace=3 border=0><br> <img src="../bargrey.gif" width=468 height=1 border=0 alt=" "><br> <b>Lionheart Publishing, Inc.</b><br> 506 Roswell Rd., Suite 220, Marietta, GA 30060 USA<br> Phone: 770-431-0867 | Fax: 770-432-6969<br> E-mail: <a href="mailto:lpi@lionhrtpub.com">lpi@lionhrtpub.com</a><br> URL: <A HREF="http://www.lionhrtpub.com" target="_top">http://www.lionhrtpub.com</A><br> <img src="../cleardot.gif" width=1 height=1 vspace=3 border=0><br> <img src="../bargrey.gif" width=468 height=1 border=0 alt=" "><br> Web Site � Copyright 2003 by Lionheart Publishing, Inc. All rights reserved. </td></tr></table> <img src="../cleardot.gif" width=1 height=1 vspace=2 border=0><br> </BODY>