The Supreme Court\u27s pending ruling in Fisher v. University of Texas at Austin is expected to largely decide how or even whether affirmative action can be used in college admissions. The university\u27s argument for why minority enrollments need to reach a certain threshold, however, is problematic because it is inconsistent with previous court rulings involving race

Sidhu, Dawinder S.

English

University of New Mexico

2-18-2013 
A Critical Look at the ‘Critical Mass' Argument 
Dawinder S. Sidhu 
University of New Mexico - School of Law 
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Dawinder S. Sidhu, A Critical Look at the ‘Critical Mass' Argument, The Chronicle of Higher Education 
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http://www.chronicle.com/article/A-Critical-Look-at-the/137369/  
 
A Critical Look at the 'Critical Mass' 
Argument 
By Dawinder S. Sidhu 
 
The Chronicle of Higher Education 
February 18, 2013 
 
 
 
 
 
 
Michael Morgenstern for The Chronicle 
 
 
 
The Supreme Court's pending ruling in Fisher v. University of Texas at Austin is 
expected to largely decide how or even whether affirmative action can be used in 
college admissions. The university's argument for why minority enrollments need to 
reach a certain threshold, however, is problematic because it is inconsistent with 
previous court rulings involving race. 
 
Abigail Fisher, a white applicant who was denied acceptance by the institution even 
though her grades and test scores were higher than those of other students who 
were admitted, is arguing that the university's policy of considering race as a factor 
in its decisions is unconstitutional. Whether affirmative action is in fact constitutional 
boils down to two separate inquiries: Is there a compelling reason for giving such 
preferences, and is there a close fit between the means and that compelling reason? 
 
In terms of the first question—the "why"—the Supreme Court has held that diversity 
provides an educational benefit to all students, and so colleges may use racial 
preferences in admissions for that purpose. Colleges have argued, and the court has 
agreed, that exposure to different backgrounds and perspectives requires people to 
defend and even reformulate their respective worldviews, and that diversity enriches 
what we think about ourselves and one another. 
 
In terms of the second question—the "how"—the University of Texas argues that it 
must enroll a "critical mass" of underrepresented minority students for the 
educational benefits of diversity to occur. 
 
A critical mass, in this case, is not a fixed percentage or number of students. Instead, 
it is defined by the university as the point at which students in underrepresented 
minority groups no longer feel isolated or like spokespeople for their races. In the 
absence of this critical mass, the argument goes, students in underrepresented 
minority groups will feel forced to communicate viewpoints that are characteristic of 
their races. 
 
With a critical mass of students of the same race, however, those students will feel 
comfortable articulating their individual perspectives and opinions. As a result, they 
will break down preconceived notions that members of racial communities share 
monolithic or predictable positions. 
 
Inasmuch as diversity is a permissible or desirable objective, the critical-mass 
approach gives rise to two concerns, neither of which was sufficiently discussed in 
2003 when the Supreme Court's Grutter v. Bollinger decision approved the 
University of Michigan Law School's use of the critical-mass theory. With the 
University of Texas' affirmative--action policy under review, an opportunity exists for 
the merit of those concerns to be considered. 
 
First, critical mass is based on the idea that, if such mass is not achieved, students in 
underrepresented minority groups will express representative racial opinions. In 
doing so, the critical-mass theory presupposes and reinforces the stereotype that 
there are such shared or common racial viewpoints that may be demanded of, and 
reflexively articulated by, an underrepresented minority. 
 
The Supreme Court, however, has rejected the "offensive and demeaning 
assumption" that individuals of a given race "think alike." For example, in the context 
of voting, the court dismissed the suggestion that members of a particular race 
possess the same "political interests" or the same favorite "candidates at the polls." 
 
It may be countered that the University of Texas does not hold those stereotypes but 
instead is attempting to challenge racial stereotypes potentially held by other 
students. But a telling example cuts against that saving argument. Counsel for Texas 
told the Supreme Court that the university wants to admit "individuals who will play 
against racial stereotypes," such as "the African-American fencer" or "the Hispanic ... 
who has mastered classical Greek." 
 
Those examples indicate that the university is itself constructing or affirming 
privately held stereotypes—that African-American students are not fencers and that 
Hispanics cannot master classical Greek—which the university then claims it must 
dismantle. For Texas to seek to validate those stereotypes seems inconsistent with 
the Supreme Court's pronouncement that "private biases may be outside the reach 
of the law, but the law cannot, directly or indirectly, give them effect." 
 
Second, the critical-mass theory implies that, without an adequate presence of 
members of the same race, underrepresented minority students are categorically 
incapable of articulating themselves as individuals. As a federal appeals court 
pointed out, it "assumes that students cannot function or express themselves unless 
they are surrounded by a sufficient number of persons of like race or ethnicity." 
 
To be sure, it may not be easy for some minority students to convey certain 
viewpoints in the face of internally or externally imposed expectations. Members of 
the same race also may affirmatively provide support that facilitates free and candid 
expression. In the eyes of the law, however, no race should be construed as having a 
set of default viewpoints or as being effectively unable to be individuals in 
educational conversations. 
 
The critical-mass theory, therefore, may actually validate racial stereotypes and 
perpetuate notions of racial inadequacy. If the court finds that it does, then colleges 
trying to create a diverse student body may be forced to find alternative means to 
meet that compelling and worthy goal. 
 
Dawinder S. (Dave) Sidhu is an assistant professor at the University of New Mexico 
School of Law. 
 
 
Copyright © 2016, The Chronicle of Higher Education 
 


A Critical Look at the ‘Critical Mass\u27 Argument

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A Critical Look at the ‘Critical Mass\u27 Argument

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