Since today is Law Day here at ephblog, it would be wise to consider what George Tolley ’88 has to say on the topic on Oren Cass’s ’05 citation — “we know from Williams’ Supreme Court brief that only one in three would be admitted without taking race into account” — of a recent Supreme Court brief that Williams was a party to.

The amicus brief is here.

Having read through the brief quickly, I think that it is a stretch to call it “Williams’ Supreme Court brief” — although Williams signed onto the brief with 27 other “private, highly selective residential colleges,” there was [to my reading] absolutely nothing specific about Williams College in the body of the brief (particularly when compared with Amherst, about which we learn quite a bit).

In any event, it is even more of a stretch to say that we “know” anything from this brief about what would happen to the racial makeup of the student body at Williams College if race were not taken into account.

Cass is undoubtedly referring to this language in the brief:

“Moreover, research and experience suggests that for small, highly selective, largely private colleges like amici, carving out race from all the other kinds of diversity that colleges consciously aim for will have a predictable, substantial resegregating effect, probably moving black students from roughly 5-7% of the student body to 2% or so.” (Amicus Brief, at 3).

Would “only one in three” minority students at Williams College be granted admission if race were not taken into account? I don’t know, and neither does Cass, if this brief is his only source of information. Let’s look critically at what the lawyers wrote in the brief — keeping in mind that this was written for consumption by Supreme Court Justices and their law clerks, and that as lawyers, the authors are highly trained at using the English language to make their point.

First, we learn that, based upon “research” (not clearly cited in the brief) and “experience” (completely undefined), the lawyers have drawn some conclusions.

Are these conclusions accurate? Do they properly reflect the research data upon which they are based? Do the conclusions comport with the learned experience of admissions officers at these highly selective private institutions? Who knows? The basis for the conclusions that these lawyers have drawn is entirely hidden from our scrutiny.

The lawyers’ conclusion is that eliminating race from the admissions equation will have an effect at unidentified “small, highly selective, largely private colleges like amici.”

But what schools are sufficiently “like” Williams College so as to allow an accurate analogy? UC Berkeley and UCLA!! I’m not kidding — if the “research” is what is cited at footnote 20 on page 11 of the brief (and it appears to be), then UC Berkeley and UCLA are the selective California schools whose experience apparently forms the sole research basis for these conclusions (I checked the UCLA Law Review article on Westlaw).

At last count, UC Berkeley had 21,137 undergraduate students, about 40 times the size of Williams (I googled their website; I didn’t bother to check UCLA). Is that “small” enough to justify the lawyers’ logical leap of faith? I can’t be sure. But it raises some doubt as to how accurate the analogy can be from UC Berkeley’s experience to Williams College.

At last, the nut of the argument: what effect would eliminating race actually have on enrollment? Well, we are not told the “actual” effect, but only what “probably” would happen — that eliminating race from consideration “probably” would reduce the percentage of black students from 5-7% to 2% or so (“or so” translating roughly to “another, different percentage that is no less than 2% but, perhaps, somewhat greater”).

Does this persuade you that “only one in three [black Williams students] would be admitted without taking race into account”? Me, neither.

Cass ’05 is not a lawyer — he’s a college student. Should Cass be expected to have vetted the brief’s argument as strenuously as I just did? Probably not (although but for the Westlaw research, everything I did was on Google).

However, Cass didn’t just parrot the argument; he translated it: “we know from Williams’ Supreme Court brief that only one in three would be admitted without taking race into account” (emphasis added). In doing so, he ignored the red flags in the argument — such as “like” and “probably” — and spun the argument to make a point that he wanted to make, but that was not completely supported by the language of the brief itself.

He was not “at his best,” as some might say.

Special thanks to George for taking the time and trouble to provide this analysis. I shudder to think what this would have cost ephblog should George have charged us his usual rate!

Thanks also to Preston Brooks for also providing a link to the brief.

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