SCOTUS Ends Affirmative Action
The inevitable has happened. Now for the fallout.
NYT (“Supreme Court Rejects Affirmative Action Programs at Harvard and U.N.C.“):
The Supreme Court on Thursday rejected affirmative action at colleges and universities around the nation, declaring that the race-conscious admissions programs at Harvard and the University of North Carolina were unlawful and sharply curtailing a policy that had long been a pillar of higher education.
The vote was 6 to 3, with the court’s liberal members in dissent.
“The Harvard and U.N.C. admissions programs cannot be reconciled with the guarantees of the equal protection clause,” Chief Justice John G. Roberts Jr. wrote for the majority. “Both programs lack sufficiently focused and measurable objectives warranting the use of race, unavoidably employ race in a negative manner, involve racial stereotyping and lack meaningful end points.”
Justice Sonia Sotomayor summarized her dissent from the bench, a rare move that signals profound disagreement, and said that affirmative action was crucial to countering persistent and systematic racial discrimination.
“The court subverts the constitutional guarantee of equal protection by further entrenching racial inequality in education, the very foundation of our democratic government and pluralistic society,” she said in her written dissent.
[…]
In dissent, Justice Sotomayor wrote that the majority had abandoned principled adjudication.
“At bottom,” she wrote, “the six unelected members of today’s majority upend the status quo based on their policy preferences about what race in America should be like, but is not, and their preferences for a veneer of colorblindness in a society where race has always mattered and continues to matter in fact and in law.”
The chief justice wrote that admissions officers could sometimes still take account of race, including in the college essay. “Nothing in this opinion should be construed as prohibiting universities from considering an applicant’s discussion of how race affected his or her life, be it through discrimination, inspiration or otherwise,” he wrote.
The point, Chief Justice Roberts said, was that applicants must be assessed individually. “In other words,” he wrote, “the student must be treated based on his or her experiences as an individual — not on the basis of race.”
Justice Sotomayor said that was thin gruel.
“This supposed recognition that universities can, in some situations, consider race in application essays is nothing but an attempt to put lipstick on a pig,” she wrote.
But she acknowledged that the majority had left colleges and universities with some tools to admit students of different backgrounds, notably by focusing on socioeconomic factors.
The chief justice wrote that educational diversity, the idea that students of different backgrounds learn from one another, is a commendable goal. But he added that such a goal resists the demanding judicial scrutiny that is required when race is a factor because it cannot be measured.
While there is a lot of handwringing over this decision, it was simply inevitable. Racial preferences in college admissions have been on life support since Regents of the University of California v. Bakke was decided—way back in 1978. Every related decision since then has further limited how race could be used until, finally, we got to this: race per se can’t be used at all but individual life experience—of which race is inevitably a part—can.
Ruling a quarter century after Bakke, Sandra Day O’Connor warned, “We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.” The six justices in the majority moved the timetable up five years.
As a matter of Constitutional law, I think they were right to do so. As a matter of public policy, coming three years after massive protests across the country under the banner of Black Lives Matter, it’s obvious that we have not reached O’Connor’s hoped-for state. Nearly seven decades after Brown v. Board of Education and six after the Civil Rights Acts, race still very much matters in America.
The impact of the decision is debatable and indeed being debated.
UC Berkley Law dean Erwin Chemerinsky (“The Supreme Court’s ultimate ‘judicial activism’: striking down affirmative action in college admissions“) ignores the clear lineage of the Court’s previous rulings, focusing only on the grudging allowance for diversity, before getting to this:
The experience in California shows what could happen at universities all over this country. Proposition 209 had an immediate and devastating effect on diversity in the University of California. The number of Black and Latino first-year students fell by 50% in the years immediately after the ballot measure was passed. It took UCLA 19 years, until 2015, to reach its pre-Proposition 209 levels of diversity.
But the UC system — and state institutions in states like Michigan and Washington that also abolished affirmative action — have found ways to achieve diversity through concerted efforts. There still can be aggressive outreach and recruitment of students to form a diverse campus community.
Also, Roberts explicitly wrote, “Nothing in this opinion should be construed as prohibiting universities from considering an applicant’s discussion of how race affected his or her life, be it through discrimination, inspiration, or otherwise.”
This appears to allow admissions decisions to examine the diversity of experience, which includes the importance of race, in the applicant’s life. And as Sotomayor wrote, universities may consider other factors — like socioeconomic status — that may yield diversity. But the court left unclear whether any factors used in admissions decisions to achieve diversity are constitutional if they are done with the purpose and effect of increasing access for minority applicants.
The immediate impact of Thursday’s decision cannot be overstated. At least in the short term, there will be a dramatic change in admissions decisions and students of color will be harmed.
NPR’s Emma Bowman goes into greater detail on that history (“Here’s what happened when affirmative action ended at California public colleges“) but notes that the initial drop-off wasn’t the end of the story:
Faced with plummeting minority enrollment, admissions offices began a years-long effort to figure out ways to get their numbers back up.
Admissions offices pivoted to a more holistic approach, looking beyond grades and test scores. Starting in the early 2000s, the UC system implemented a couple of initiatives to increase diversity: The top-performing students graduating most high schools in the state were guaranteed admission to most of the eight UC undergraduate campuses. It also introduced a comprehensive review process to “evaluate students’ academic achievements in light of the opportunities available to them” – using an array of criteria including a student’s special skills and achievements, special circumstances and location of high school.
In 2020, the UC system eliminated standardized test scores as an admission requirement, nixing a factor that advocates say disadvantages underserved students.
However, the effort to boost diversity has come with a heavy price tag. Since Prop 209 took effect, UC has spent more than a half-billion dollars on outreach programs and application reviews to draw in a more diverse student body.
It’s taken 25 years of experimentation through race-neutral policies, for UC schools have begun to catch up to the racial diversity numbers lost in the wake of the affirmative action ban, says UCLA vice chancellor Chang.
“There was no magic bullet. Some things worked better than other things. And this is also work that doesn’t happen overnight,” Chang said.
Still, the California schools are unable to meet their diversity goals systemwide. Chang says his school is not where it wants to be. It still enrolls far fewer Black and Latino students than their share of California high school graduates — a problem it didn’t have before the affirmative action ban.
As with the UC system, experts think that across the country, similarly competitive universities will be most affected by the Supreme Court’s ruling.
Gabrielle Starr, president of Pomona College, a small Southern California school that wasn’t subject to the state ban, fears the selective, private university will lose its racial diversity under the nationwide affirmative action ban.
Tyler Austin Harper, a Black environmental studies professor at Bates College, takes to the NYT op-ed pages (“I Teach at an Elite College. Here’s a Look Inside the Racial Gaming of Admissions.“) to share this perspective:
Let me be clear that I am not an opponent of affirmative action. I don’t think I would have gotten into Haverford College as an undergraduate if it had not been for affirmative action, and the same is probably true of my Ph.D. program at New York University and the professorship I now hold at Bates College. I believe that affirmative action works, that it is necessary to redress the historical evils of chattel slavery and its myriad afterlives and, above all, that it is a crucial counterbalance against the prevailing system of de facto white affirmative action that rewards many academically mediocre (and wealthier) students for having legacy parents or for being good at rowing a boat.
Yet I also believe that affirmative action — though necessary — has inadvertently helped create a warped and race-obsessed American university culture. Before students ever step foot on a rolling green, they are encouraged to see racial identity as the most salient aspect of their personhood, inextricable from their value and merit.
Many prestigious institutions have themselves racially gamified the admissions process, finding ways to maximize diversity without making dents in their endowments. For example, some colleges and universities boost diversity statistics on the cheap by accepting minority students who can pay full freight. And even purportedly need-blind institutions seem to have a remarkable track record of recruiting minority students who don’t need financial aid. (By some estimates, over 70 percent of Harvard’s Black, Latino and Native American students have college-educated parents with incomes above the national median.)
Even though elite institutions haven’t always lived up to the spirit of affirmative action — giving a leg up to those who need it most — the present system has managed to secure some racial diversity in higher education, including for working-class minority applicants. (I was one of these students.) In the world after affirmative action, however, our unhealthy system of racial gamification will intensify without any of the benefits of racial justice and real structural redress that affirmative action afforded.
Matt Yglesias weighs in with “19 thoughts on affirmative action,” some of which are from associates. The most interesting:
Milan’s take: Many defenders of affirmative action still, implicitly, view it as a reparations program, with the “diversity rationale” being a required legal fig leaf. But as a reparations program, it doesn’t make sense. For one, the numbers show that burden of adjustment is falling on Asian-Americans. To put it bluntly, we weren’t the ones doing slavery or Jim Crow, and it feels unfair that we are being asked to pay for someone else’s father’s sins. It also doesn’t help most Black and Hispanic kids, because the vast majority do not attend highly selective colleges.
Maya’s take: As a Harvard student, I am deeply saddened by this ruling. I think college students learn just as much from their peers as they do from their professors. Harvard’s race-conscious admissions allowed students with diverse backgrounds to learn from each other’s perspectives. In my classes, we had discussions about race, identity, and oppression that would have been intellectually impoverished without the presence of Black, Hispanic, and Native American voices. I am concerned that by reducing diversity in the classroom, this Supreme Court decision will worsen the quality of education at Harvard and universities around the country.
As a person who benefitted from affirmative action in college admissions, I’m struck that one of the key flaws of the program is that it would be considered an insult to say that I benefitted from affirmative action. That strikes me as a really deep conceptual problem with this approach. You don’t see people saying “look at all these great affirmative action success stories” because it’s considered demeaning and insulting to characterize a person that way.
Because progressives are uncomfortable with straightforwardly defending affirmative action, they often pivot to whataboutism regarding admissions benefits that primarily benefit white students — legacies, athletes, donors’ kids, people from rural states. And there are a lot of good criticisms of those programs. But I think one of the biggest is that they are all ways of assuring that the burden of adjustment related to affirmative actions falls, unfairly, on Asians, while ensuring the most privileged strata of white society are insulated.
[…]
In the real world, Harvard and Yale and Princeton and Stanford make decisions based on what they think is good for Harvard and Yale and Princeton and Stanford. They think it would be a “bad look” for Harvard and Yale and Princeton and Stanford to have very few Black and Hispanic students, and they are probably correct about that. So they have crafted admissions policies to avoid that outcome.
It’s notable that Harvard and Yale and Princeton and Stanford don’t mind if one of their Hispanic admits is a quarter-Cuban guy with light skin who grew up in an English-speaking household in Greenwich Village and went to Dalton. The point is to avoid the “bad look” by putting something down on the official diversity numbers.
For years, there’s been a move among Harvard students and faculty who are descended from people held in slavery in the United States prior to the Civil War to get the university to say how many of its Black students are Generational African-Americans as opposed to descendants of recent immigrants from Africa and the Caribbean. The university keeps refusing to do this, again because the priority is to avoid the “bad look,” not to achieve any particular social justice goal.
[…]
When my son was five, he asked if the weakest students enroll at the best colleges because they’re the ones who need the most help. That is, of course, not how it works. But “the smarter you are at age 18, the more educational resources you should receive” is not an obviously correct allocation of social resources. I think if you’re concerned about social justice, you should just not give your money to Harvard and Yale and Princeton and Stanford and should instead give it to an institution that educates more students from modest backgrounds.
I think professors at top universities face a conceptual problem in that they want to affirm values like “diversity, equity, and inclusion,” but the whole point of top universities is to be elitist, hierarchical, and exclusionary. I’m not 100 percent sure what to tell people in this situation. But if you want to be equitable and inclusive, go teach in a community college or a public high school. If you want to cultivate excellence among a social elite, then own up to that as a mission in life. I don’t think there’s one right thing to do, but it’s deeply confusing to try to do both of them simultaneously.
[…]
To the extent that you take seriously the educational benefits of diversity, ending affirmative action will redistribute diversity away from the most selective schools to a set of somewhat-less-selective schools which seems … fine.
To the extent you worry about Black and Hispanic underrepresentation in selective colleges in general and the downstream consequences of that for representation in skilled professionals generally (and I think we should worry about this), you really do have to care about the pipeline problem, embrace the fact that K-12 school quality matters, and read my ongoing education reform series. More phonics!
Matt and company make some strong points, not the least of which is that we’re really talking about a handful of elite schools. The overwhelming number of American colleges and universities are not selective, admitting pretty much any qualified applicant. The Harvards, Berkeleys, and UNCs of the world will just have to put in more effort to ensure that their student bodies are diverse—a goal they will almost certainly continue to pursue.
UPDATE: David French‘s column “Harvard Undermined Itself on Affirmative Action” is worth a read. Beyond the titular point about Harvard’s active discrimination against Asian applicants, he notes,
Where does this leave the law? The top-line answer is simple, but the consequences are complicated. The court struck down the use of race as a factor in college admissions, but it left in place a number of alternative admissions measures that can both increase diversity and address real injustice. First, as Justice Thomas explains, “Even today, nothing prevents the states from according an admissions preference to identified victims of discrimination.” In such a case, the preference is related to a specific injustice.
Justice Thomas provided additional examples of acceptable preferences: “If an applicant has less financial means (because of generational inheritance or otherwise), then surely a university may take that into account. If an applicant has medical struggles or a family member with medical concerns, a university may consider that too. What it cannot do is use the applicant’s skin color as a heuristic.”
Again, these are all individualized determinations, but those individualized determinations would still have systemic effects. As Justice Ketanji Brown Jackson eloquently argues in her dissent: “Gulf-sized race-based gaps exist with respect to the health, wealth and well-being of American citizens. They were created in the distant past, but have indisputably been passed down to the present day through the generations.” She is exactly right, but those gulf-sized gaps can be addressed with race-neutral policies targeted at wealth, income and in some circumstances health.
In other words, because of past injustice, race-neutral policies can have race-disproportionate outcomes without engaging in invidious discrimination against innocent applicants. To treat all economically disadvantaged kids the same, regardless of race, results in both systemic change — Black and Latino youth would benefit disproportionately — and individual fairness. Moreover, by preserving the ability to consider specific accounts of racial discrimination, schools retain the ability to provide advantages to people who’ve confronted concrete acts of racial injustice.
The idea that schools can attain real diversity without engaging in racial discrimination in admissions is no mere theory. There are, in fact, specific examples of state university systems that have managed to become more diverse without engaging in race-based affirmative action. As Justice Thomas notes in his concurrence, both California and Michigan prohibit race-based affirmative action in their public universities, yet state schools in both states have boasted of enrolling extraordinarily diverse classes of students.
The consequences of the Supreme Court’s Harvard decision will reverberate throughout American law. There is no longer any such thing as “good” racial discrimination. There can be redress for actual discriminatory acts, but the idea that race by itself can be utilized as a proxy for achieving social progress is now almost certainly wiped away. Programs designed specifically around the race of the participants are going to face renewed scrutiny.
I agree with all of that. The problem is that, if there’s such a thing as structural racism—and I think there is—then race-blind measures will explicitly not correct for it. Admitting more poor applicants will surely help Black applicants, even disproportionately. But that only corrects for the poverty, not for the other structural barriers to performing well in school and on standardized tests.
A price well worth paying. Focusing on Harvard and MIT is misleading. They don’t elevate anyone, they simply are in a position to select those with an already proven track record and the family and prep school knowledge, acumen and wealth to put together an admissions package that demonstrates that. A friend teaches at an elite kindergarten-through-high school prep school. When one of the students of color makes it into Harvard that helps to right a wrong in a small way, but that student had already been set up for success no matter what. On the other hand, if UC is reaching kids who don’t have those advantages and is lifting them up, that is worth so much more.
When my son was in high school two of his classmates made it into the Naval Academy. Both Black, and both from working class backgrounds attending a struggling high school (albeit in the IB program there). They are now serving as officers. The Naval Academy helped lift them up, or rather, gave them another couple of rungs as they lifted themselves up.
@MarkedMan: Indeed. And even the so-called Public Ivies—the Berkeleys, UNCs, UVAs, Michigan, and the like—which are incredibly selective, educate far more students than any of the Ivies. Part of the problem with the latter is that they have intentionally kept class sizes static despite a radical increase in the size of the population precisely to create scarcity.
@MarkedMan: The story goes, many years back, that MIT started tracking the correlation between grades and SAT scores. They discovered that women were, on average, doing the same as male students with SAT scores 10 points higher. Their decision was to add a fictive 10 points on every female applicant’s SAT score to equal out the comparison. No one (AFAIK) complained, because they had data to back up the rationale.
(I have no idea whether this is still going on. I do know that grades and SAT scores aren’t enough to get you into MIT at present. I suspect I was admitted because of my total blasé world-weariness during the interview, which must have come off as pure self-confidence. In fact, I was looking at the interviewer and thinking “wow, this person is speaking in ENGLISH to me!” (I was very, very out of it))
What exactly is the percentage? I know that there are a bunch of small, private liberal arts colleges and universities in Ohio that all have acceptance rates in the 25-30% range (Oberlin, Denison, Kenyon, Case Western etc.). Selective just means that they don’t accept everyone who applies, correct?
As a practical matter any institution could just switch to using economic data to create “diversity” and will almost get the same outcome. This doesn’t make the decision any more palatable, but let’s face it, they can still do “legacy” admissions which is even more offensive from a fairness perspective, but crucial to fundraising.
This isn’t actually true…affirmative action for rich white males continues unabated.
2 reactions to this:
1) “half a billion dollars!” over 25 years is $20k/year–or about 23¢ per student (at current enrollment). Not exactly a massive drain on their bank account.
2) If they have to work that hard (which they’re really not) to attract minority students, that sort of says that they’re not attractive to minority students. They might want to look at why.
Diversity is more than just skin color. There are so many more ways that admissions can bring in a diverse student body (which is a good thing) than just taking the easy way out and saying “admit more blacks”. Look at need, culture, social participation, generational longevity in the country, geographic location, etc. That’s going to get them a very diverse student body.
I find Sotomayor’s dissent interesting. It reads like maybe she’s given up on working quietly in the background and decided to publicly slap the Federalists upside the head. Next thing you know she may break solidarity on the acceptability of bribing justices.
@Mu Yixiao: The problem, as Yglesias points out, is that elite schools are very worried about the optics of having too few Black students compared to the target population (presumably, the state for state institutions and the country for private schools). They could use “Pell Grant recipient” or some other indicator of low income household but that may well just admit poor White and Asian students if they’re still using test scores and GPAs as high-value criteria.
@James Joyner:
That’s where you use “culture”, “social involvement”, and “geographic location”.
I went to a small campus in the University of Wisconsin system, and way back in 87, I had to include social activities and involvement as part of my application. I’m pretty sure it showed I was a white catholic.
An application that addresses the person, rather than just a couple numbers, is going to get them the diversity they want–and it’ll be actual diversity and not just “dark faces in the classroom”.
@grumpy realist:
MIT briefly stopped using SAT scores because of social pressure and then reversed course. They noted that SAT scores, while imperfect, are very good at identifying bright kids with poor backgrounds. I think the hand-wringing, while understandable, is misguided. In the end, universities will find different and probably better ways of helping disadvantaged students.
@Mu Yixiao: Might want to check your orders of magnitude there…
I don’t think many people will be sorry to see affirmative action go. That said, it was the sole remedy that America ever attempted for several centuries of racism and discrimination. I doubt there will be another attempt in my lifetime. Maybe I’m wrong. And I think it’s probably politically suicidal to suggest that America (i.e. white people) have done zilch. From doing nothing for freed slaves to doing nothing about redlining and segregated housing (aside from a few attempts at busing), there’s a pattern that’s here to stay.
@Mu Yixiao: When I lived in CT we had a friend that worked in the admissions office at Yale and we would discuss the way admissions worked in the real world. Even back then (2010 or so) she indicated they were lowering the importance of the sports/community service/well-rounded individual package. The wealthy would start with paid advisors as early as middle school so their child had a perfect package when it was time to apply. All of the accompanying comments and essays would reliably strike just the right tone of “authenticity”, “real life experience”, “overcoming adversity of some sort”, “humbleness with confidence” and “Life experience that helped developed maturity”. Basically, she felt that for many of the applicants it reflected on the parents and professional advisors more than it said anything about the students themselves.
@Modulo Myself:
Don’t be so sure. AA is typically seen as benefiting Black America but one of the clear winners has been white women. Additionally, less Black students doesn’t mean more spots for “high merit” applicants or even the average middle-class white kids whose parents are probably dancing with glee now. It means colleges are more free to pick who they want…. and who they want isn’t based on grades but cash. Rich kids will be the ones getting in regardless of “merit” or race, not Little Jimmy from Topeka who’s 3.8 and one extra circular “should have been enough”.
I’m betting within an election cycle well start to see the repercussions of less women and minorities being admitted with the percentage slowly dropping per year. It won’t be much at first (optics and all) but schools are a business and no business does the right thing just because it can. The admission ratios will align with the classes that can pay, pricing out lower and middle America within a decade. AA was clumsy and inefficient but better then nothing; without it, we’ll revert back to the way it was, higher ed for the affluent and powerful to keep them affluent and powerful.
Half a billion dollars is $500 million. Divide that by 25 years and it is 20 million per year. So using your number of students it’s $230 per student. (Arent you supposed to be good at math? /s) That’s not inconsiderable but not awful. I think a lot of that probably goes into hiring more people to carefully read applications. I would also think that rather than prioritize the highest SAT you would do it by setting levels. An SAT of 760 probably isn’t really different than 800. Kind fo what the military does for promotions. I would also bet a lot of that $500 million was front loaded figuring out what works. States will probably need to front load a bit but maybe they can save by just copying states like CA and MI.
Wonder how this plays out in red states? How many will be willing to spend that extra money per student?
Steve
@KM:
It really is astonishing how few people realize this.
There is so much about college admissions I don’t know about. It is kind of a black box. Which is kind of the fundamental problem. There will always be charges of some kind of discrimination merely because there is so much subjectivity in the process.
And does there really need to be a process? Has there ever been a study that correlated admission performance with actual academic performance? Maybe a minimal criteria followed by random drawing would be cheaper and more effective.
So SCOTUS rules in the past two days that prejudice doesn’t exist, in the Affirmative Action case, but that it is ok to refuse service to someone because of prejudice, in the Wedding Website case.
Makes perfect sense coming from this fuqed up bench.
@Daryl: They’re really very different issues.
@James Joyner: ” They’re really very different issues.”
Really, they’re not. They both state that there are two classes of citizens in this country — rich, white, “Christians” for whom all the rights are to be deemed sacred, and those icky others, who real Americans are willing to tolerate if they don’t get too uppity.
Oh, wait — there’s a third class as well: Right-wing billionaires who can give the justices millions of dollars in gifts while they’re cases are on their way to the court.
@James Joyner: Legally they are different issues, but an awful lot of people aren’t going to have a sense of the legal nuances. These rulings will be conflated in people’s minds probably pretty close to what Daryl has suggested in his post, and more importantly, in the behaviors that will likely follow. My guess is that any small business owner with a less-than-charitable view of minorities/LGBTQ+ people, etc. will take these rulings as carte blanche to do as they wish. There are already plenty of small business owners out there who don’t understand how federal law applies to them, or what the impact of court decisions really is (see, for example, a lot of ADA accommodation issues that still crop up).
Somewhat related question:
Why has there never been a case where the ‘victim’ is claims that a less qualified white student was admitted ahead of them?
Honestly, all of this is feels like the current Court is engaged in a slow motion repeal of the 20th Century Post-1950’s Reconstruction – with Shelby we got evisceration of the Voting Rights Act, with Dobbs overturning of Roe v Wade, now the end of Affirmative Action.
The data from the Pew Survey rather suggest that purely from pragmatic politics,
@James Joyner:
Only in that one is about discriminating against gay people, and one is about discriminating against people of color.
They are both about preserving white, straight, privilege.
@Jen:
Yes – how long before we see a restaurant refusing service to a minority group, simply because they make the owner feel icky.
The one thing that you can do to raise your chances to get into MIT is Take. The. Bloody. Interview. MIT will cheerfully arrange for interviews with applicants using a volunteer army of alumni (I did it for several years). It doesn’t cost anything, they find an alumnus in your area (and probably now after COVID will do it via Zoom) and is the absolute best way for an applicant to put his/her best foot forward, especially if there are points to be explained. Those of us who interview are trained to write up multi-page reports on applicants and to really look to see if you are someone we think will survive the “getting a drink from a firehose” experience that an MIT education is.
On the other hand, if you don’t know why you want to go to MIT and have been pushed into applying so that your parents can brag about it (unfortunately a rationale I ended up suspecting of the applicant more than once), don’t interview, because our questions will make it ridiculously obvious that you don’t have a clue as to what you are doing.
I was always more impressed with applicants who may not have been over-the-top on paper, but who make the absolute best of what opportunities they had around them.
AA is a complex issue. I just got back from seeing my primary care doctor, a woman. Within my lifetime, medical and law schools went from 95% male students to 49% male. Was the old ratio some cosmically determined right way that got undermined by AA? The University of Alabama now has nearly 20% AfricanAmerican students; does anyone think that zero percent was based on some idea of justice?
The ethnic composition of the US is changing; more Texans are Latino rather than White. UT Austin is 35% White and 25% Latino; is this because of some special merit of White people or the result of political clout?
@wr: @Daryl: This ruling prohibits discrimination on the basis of race. The other prohibits forcing people to engage in expression with which they disagree.
@James Joyner:
Both rulings make discrimination allowable.
@Daryl: They just don’t do that. Racial discrimination is prohibited by both the 14th Amendment and multiple federal laws. The Court rules, correctly I think, that discrimination against Asians in order to admit more Blacks violates that concept.
As a matter of policy, it’s problematic because we have decades of experience that tells us that, absent putting the thumb on the scales, fewer Black and Hispanic students will be admitted—indeed, even apply to—elite universities. But the Court has been moving steadily in this direction since 1978.
@Daryl:
“Only in that one is about discriminating against gay people”
Well, this year it does. With this court, it is an open question how they will rule when a person wants to refuse services based on race.
All I wonder when I read these posts is why it’s white people saying “diversity is about more than skin color” when the question is “should we let KKKlannnngs into X” and their preferred answer is “fw8k no.”
@Daryl: While I hesitate to predict future hypothetical cases, there’s just no evidence that we’re moving in that direction. While I think the Republican justices have taken it too far, the allowances have all been in cases where it could plausibly be argued that they he accommodation required affirmative expression.
A bakery can’t refuse to sell cakes to gay people. A baker can, however, refuse to do custom work to celebrate a same-sex marriage. Unless you’re in a one-baker town, that’s really not all that big an imposition.
@James Joyner:
Not really. The ruling explicitly allows military academies to continue to use affirmative action, acknowledging their interest in doing so. The ruling does not bother to explain or elucidate why the military academies’ diversity interests are more compelling than those of the general public.
I think the ruling also allows schools not taking federal to continue using affirmative action (someone please correct me if I’m wrong), and permits all schools to consider race holistically via, for instance, student essays (which sadly, may see college admissions offices now bombarded with racial sob stories, which is gross but apparently an unintended consequence conservatives prefer by their dedication to gutting precedent and inability to leave well-enough alone).
So for those who believe affirmative action is “racial discrimination,” by that standard this ruling permits military academies to discriminate racially, permits schools not receiving federal funding to discriminate racially, and permits schools to discriminate racially using college essays not quotas.
Which all highlights the aribtrary nature and poorly-conceived, poorly-written incoherence of the majority decision. Something we are now seeing at regular intervals with the Roberts Court, but fortunately not all the time.
@James Joyner:
The 14th Amendment was ratified just after the Civil War…the idea that it prohibits discrimination, in the real world, is simply ridiculous.
@DK: As noted in the OP, I haven’t read the full ruling. But, yes, Title VII doesn’t apply to private institutions who don’t receive federal aid. But almost all colleges take Pell Grants, federally subsidized student loan money, federal research grants, etc. We’re essentially talking about a handful of niche schools.
I suspect the academy exception is just the long-standing deference to the needs of the military. All manner of Constitutional rights have been waived or severely limited for those in uniform and SCOTUS tends to go along.
UPDATE: A quick search reveals it was simply a footnote saying that, because the academies were not involved in the suit, the ruling doesn’t apply because there may be unique issues to sort out.
f@Lounsbury: No dog in AA in Ed fights at all–white and had the means to go where I wanted back when even private college was affordable to someone who was working. I just want to note in passing that
may well be part of the problem the left is facing at the moment because Evangelicals don’t break rank on political issues like this. Even when I didn’t agree with my brothers and sisters on their politics privately, publicly I had their backs. Every. Time.
@James Joyner:
More than a few Asian-Americans would like conservatives to stop pretending to care about them as a cover to push anti-blackness:
@James Joyner: “This ruling prohibits discrimination on the basis of race.”
Oh, yeah. That’s what it does.
Just like Dred Scott prohibited the financial losses of property owners.
@James Joyner: I think the reasoning why it’s okay for military academies to “racially discriminate” in comparison to other schools deserves more explanation than a footnote. Something Sotomayor argues in her dissent.
Would it were that the court conservatives actually had the courage of their convictions to actually outlaw racial discrimination in college admissions: you could disagree but at least respect their clarity and consistency.
Given the arbitrary and sometimes-unexplained exceptions and ends-around in this decision, it indicates at least some of the court conservatives know deep down that affirmative action is not racial discrimination and could not come up with an intellectually-coherent, intellectually-consistent case otherwise.
‘Affirmative action is racist unconstitutional discrimation that has been a disaster for our country, so here are all the exceptions and backdoors we’re allowing to accommodate it’ is not a convincing argument. If you gon’ do the thing, do it. Otherwise, leave it be. Because I think inadvertently, the Supreme Court may have just made college applications more race-focused than ever.
So I pray applying students will resist the urge to turn college essays and recommendations etc. into orgies of real and imagined racial trauma, as commissioned by naïve Federalist Society hack jurists. Ugh.
@Just nutha ignint cracker: The evolution of change on Abortion shown in opinion polls following abolition of Roe vs Wade indicate your perception here of unfailing solidarity is overdone. Evangelicals also being a minority sub-set of the conservatives.
(abortion becoming a subject that now seems to invert the political mechanics )
The problem is a certain set of the Left prefers glorious and morally correct failure as the pure and correct position more important – a long-standing habit.
Such poll numbers rather say that the wrong battlefield and wrong tactics have been pursued, so it would be quite prudent to not simply declare that Hill must be taken and send new waves but to work around.
In any case a pivot is wise rather than Lefties writing screeds about white racism etc. as not a path to success given the Pew numbers.
(meanwhile it rather seems the monomaniacal Evagelicals are rather replicating the errors of the activist intello LEft and driving Republicans into abortion maxim guns with similar preference for glorious morally – ideologically correct gestures)
@grumpy realist:
Your comment brings up an interesting point that I was making to guys I worked with about their kids futures even back in the 80s*. The best reason not to go to college is because you don’t know what you intend to do there. It was true when college cost virtually nothing–even more so now that it costs what a house (in a marginal neighborhood) does.
It’s too bad that we’ve decided as a society to relegate most all of the people who don’t have a desire/the aptitude to pursue higher education to poverty despite the fact that they provide necessary goods and services to us, but we’ve been a human chattel society for our entire history. We probably should not be sending children out on tens of thousands of dollar voyages of self-discovery of the type I engaged in (and paid for in full out of my wages at summer/school year employment) based on some quaint notion that people with college degrees out earn those without one–provided they actually get employment in the fields of their training or adjacent ones.
*I got asked questions about college a lot while I was warehousing, being, usually, the only guy they knew who had completed college.
@Lounsbury: Meh. Polling on affirmative action is much more mixed and less dramatic than polling on abortion. There’s no part of the Democratic coalition for whom opposition to affirmative action is important enough that they will jump ship to the forced-birth Trump party over it.
The same cannot be said about Republicans and abortion, where the conservative position on it and so many other issues is very clearly alienating wide swaths of moderate Republican women and educated whites.
@Lounsbury: So your position is that the majority should concede to the minority a tactical rationale. Got it. Another “reaching out to the
bigotsmoderates” argument. Still, got no dog in this fight. Go in peace (and serve The Lord).@Just nutha ignint cracker: no that is not in the least my position, although perhaps if you are very bad at maths you can turn a majority percentage into a minority position through magical thinking.
@DK: with razor thin congressional margins in votes and a policy that is not broadly popular, you are not passing any legislation to change this decision. Ergo as I wrote, change of battlefield advised.
Or of course one can merely assert glorious correctness so as to achieve wonderfully morally pure gestures. Élan avant tout.
The abortion numbers are précisely the illustration of a battlefield favorable to Democrats and in the invwrse a Republican sub minority desirous of glorious moral gesture over electoral battlefield success
“the Democrats should redefine their focus as Uni affirmative action is not very popular and even roughly a third of Democrats and black Americans don’t support.”
Suppose instead of calling it affirmative action we had called it temporary racial preferences for black people over white people to try to make up for 100s of years of racism and bad behaviors towards black people by white people? This was always going to end at some point since white people are in the majority and while they tolerated abuse of blacks for 100s of years they weren’t going to tolerate having things reversed for very long. It’s also true that some/many black people resented the idea they only succeeded due to AA.
CA and MI have already lead the way. If admissions become more class/income based it will act much like AA anyway and be more acceptable, for a while.
Steve
@DK: IANAL, and I wouldn’t even claim I have a solid layman’s understanding of the law, but there are certain subjects I’ve been following for decades which the court has clearly failed to understand before ruling on them.
As I’ve written here, the most egregious recent decision was that putting an “algorithm” between a corporation and the harm their technology may cause prevents a plaintiff from even having a day in court to decide if there is harm. And the way “algorithm” was used in the decision was so wrong it made me cringe. Worse yet, reading between the lines it is obvious they thought they were cleverly dodging a bullet rather than making a mess of things.
I wouldn’t be surprise if, 50 or 75 years from now, the Roberts Court will mostly be remembered for the poor reasoning behind its most important decisions.
It should be clear that affirmative action outside of race continues to be absolutely the norm at highly selective universities. My Yale admissions friend remarked that someone from Wyoming or Montana got extra points because they wanted students from every state. It seems to me that this ruling could be used to challenge that, since surely giving extra points to a Montanan will certainly bump one New Englander off the list.
A school could get the same outcomes by different methods.
Whether it is targeting students from majority-minority schools (the white kid in that situation is a great new voice to add to the student body, as are the minority students, so you’re not looking at the candidates race), or putting in essay questions that are basically “how has discrimination affected you?”, you could weasel your way around ever asking about a candidate’s race while skewing to a diverse and diverse-friendly student body. (If the white candidate explains that their family wealth literally came from buying and selling slaves in the 1800s, and they struggle with the legacy — a totally reasonable answer! See, it’s not asking about race at all!)
Bucket the SAT scores (above a cutoff number, you get a check that you’re qualified on standardized tests, no comparison of numbers after that)
It remains to be seen how schools will respond to this ruling, but if they give up on trying to create a diverse student body then that’s a deliberate choice.
@Lounsbury:
Democrats are not pushing affirmative action legislation over other their other legislative priorities, so I don’t know what you’re talking about — and not just because your prose is tedious, tortured, and trying way too hard.
And, again, where’s the evidence that your opinion on this subject more “gloriously correct” than others’? Your comparison with Republican abortion politics remains facile, because no electorally impactful cohort of voters is as passionate about affirmative action as about abortion. Even the Asian-American demographic the right trots out to burnish its position actually poll as more supportive of affirmative action than not. Unlike abortion, affirmative action alone is hardly changing votes. So I doubt Democrats — who actually do internal polling on this kind of stuff — will be taking advisement from you.
P.S. Using the word “morally” as a pejorative is a rather bizarre fetish with some here, but among the normies having morals is still considered a good thing. If conservatives still had morals, they’d still be in control of the White House and their vaunted Red Wave 2022 would not have imploded in their faces.
I am fine with the Court expending all their energy and time relating the civil/social rights wars of 50 years ago. That way they can’t cause real damage.
Little of this is going to make a real impact. HCBUs will continue to graduate the majority of Blacks with degrees, and now, they can squeeze out the white kids who were their for diversity sake (many getting “minority” scholarships) to graduate even more of our kids.
The “elite university” experience has long not been about the education and is really about networking. Networking that was impossible before social media and the internet. So, from the standpoint of being necessary to achieve a 1% tier of employment, going to an Ivy league (or any ) university is less relevant than ever. Its borderline irrelevant. At one point it was worth the social isolation and indignity to go to these schools and uplift the Community) Not any more.
Frankly, it wasn’t a large amount black students trying to attend these schools anyway. But, of course, anytime a black person gets something…it obviously was at the expense of a more-deserving white person. As Ive said before, most white people–left to their own devices will not choose to engage with black people economically or socially. AA was a ham-fisted forcing function. Let the fundamentalist court have their performative victory. It’s irrelevant to the times, the state of education, or the way upward mobility works.
Eff ’em
FWIW,
These schools could simply draw green lines around economically distressed zip codes across the country and award preference points to graduates from high schools in those zip codes.
There are a 1000 roads to Rome here…no one should be stopped simply because of a ruling about process. The court even acknowledged the value of the outcome of diversity.
The ruling is performative with baby teeth
@Gustopher:
They’ll find new and creative ways to have their cake and eat it too: keep the federal money, keep the legacy kids and their donor parents, and keep the branding benefits and practical benefits of diversity and admitting more students of color.
@MarkedMan: Residents of, say, Connecticut are not a protected class. We have more than a half century of the Court applying strict scrutiny to the use of race as a category, particularly by government agencies.
The Court quite specifically continued to at least pay lip service to the value of diversity. They just ruled that giving extra points solely for checking the ‘Black’ box on the form isn’t permitted.
@Jim Brown 32:
The notion that there is a more-deserving or more-qualified candidate is meritocracy horseshit that deserves to die.
You cannot line up all of the applicants in terms of excellence and just go down the list, pick the first N, and conclude that candidate N+1 is actually worse than candidate N.
First, the measurement errors are huge. Measured another day, N and N+1 would be switched.
Second, N+1 is likely to do just as well at the school than N, even with perfect measurement.
There are more qualified people than slots, and a “fairer” approach would be to find the people qualified, and then randomly select from them. You still end up with boundary conditions, as the cut-offs to be included in that group are going to be arbitrary.
But, if Americans could combine their love of meritocracy with an acknowledgment that the meritocracy has huge error bars, I think it would lead to better outcomes, and chip away at the mindset that poor people are poor because they deserve it.
@Lounsbury: I was talking exclusively about Democrats in my comment about breaking with your constituency (which should have been obvious, but…). My apologies for magically (and innumerately for that matter) thinking that 1/3 was less than half of that cohort. I bow to your superior knowledge of maths as a PE maven.
@Gustopher:
Sure, but you can’t be sure that you can get foundation donations from parents whose children are selected randomly–especially pre-selection donations.
@Jim Brown 32:
Your eloquence reminded me of something I had read long ago. Took awhile to find it so I have to post it. As great description of how bigots work as can be found. From the Tea Party days.
https://www.theatlantic.com/national/archive/2010/07/the-naacp-is-right/59793/
I think it’s worth, first, considering the record of American racism, and then the record of the Tea Party and its allies. Racism tends to attract attention when it’s flagrant and filled with invective. But like all bigotry, the most potent component of racism is frame-flipping–positioning the bigot as the actual victim. So the gay do not simply want to marry, they want to convert our children into sin. The Jews do not merely want to be left in peace, they actually are plotting world take-over. And the blacks are not actually victims of American power, but beneficiaries of the war against hard-working whites. This is a respectable, more sensible, bigotry, one that does not seek to name-call, preferring instead change the subject and strawman. Thus segregation wasn’t necessary to keep the niggers in line, it was necessary to protect the honor of white women.
The part I bolded is what this is really all about. Period.
@KM:
At least in colleges I doubt this is true.
At least in Portugal, with a purely algorithmic/mathematical process of admission in college (without that silly things Americans do, like interviews, recommendation letters, ponderation of extra-curricular activities, etc.) women are the majority in most areas (namely Law or Medicine) and are already some voices suggesting quotas for men (usinf points like “male patients can fell uneasy with female urologists”). I doubt USA being much different.
@James Joyner:
***Except for some schools. And all schools can still give extra points to those who put racial sob story elsewhere I the application. Which is somehow a better way to get to colorblindness and diversity because…?
I mean…what is the ruling trying to accomplish, really? It’s so conflicting and arbitrary. Why bother, except to give a politicized performance for conservatives, but maybe that is that what the court is sometimes for. I can’t imagine the further erosion to the court’s reputation is worth it.
@steve:
My apologies for being late to respond to this.
Yep. I dropped a few zeros. Absolutely mea culpa.
But that just enhances my second point: If a university system has to spend millions of dollars a year to attract minority applicants… They really need to take a look in the mirror and figure out why minority students aren’t interested in attending their university.
Universities should be race agnostic in their offerings. A degree in engineering, literature, chemistry, music, or economics shoudn’t care about the race of the person interested in pursuing it. The disciplines are race agnostic. So… what about the university makes them less desirable to minorities?
When I see institutions spending lots of money on “outreach to minorities”, I see institutions saying “No. We’re not racist! Honest! We’ll pay you to agree with us and make us look non-racist!”
Remember The 14th Amendment does not apply to white people.
Schuette v. Coalition to Defend Affirmative Action
@Daryl:
14th Amendment also abolishes the debt ceiling.