SCOTUS says no to affirmative action
The decision was 6-3, so all the Republican-appointed justices were with the majority and all the Democrat-appointed justices dissented. That’s a bit of a surprise; I thought there might be more defections from the Republican side.
The U.S. Supreme Court has dealt a blow to race-based affirmative action in college admissions and by implication elsewhere, putting to an end a narrow carve-out for higher education that had permitted colleges and universities to engage in otherwise unlawful conduct in the name of promoting diversity.
Part of the reasoning was as follows:
University programs must comply with strict scrutiny, they may never use race as a stereotype or negative, and—at some point—they must end. Respondents’ admissions systems—however well intentioned and implemented in good faith—fail each of these criteria. They must therefore be invalidated under the Equal Protection Clause of the Fourteenth Amendment…
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. We have never permitted admissions programs to work in that way, and we will not do so today.At the same time, as all parties agree, 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. See, e.g., 4 App. in No. 21–707, at 17251726, 1741; Tr. of Oral Arg. in No. 20–1199, at 10. But, despite the dissent’s assertion to the contrary, universities may not simply establish through application essays or other means the regime we hold unlawful today…[W]hat cannot be done directly cannot be done indirectly. The Constitution deals with substance, not shadows,” and the prohibition against racial discrimination is “levelled at the thing, not the name.” Cummings v. Missouri, 4 Wall. 277, 325 (1867). A benefit to a student who overcame racial discrimination, for example, must be tied to that student’s courage and determination. Or a benefit to a student whose heritage or culture motivated him or her to assume a leadership role or attain a particular goal must be tied to that student’s unique ability to contribute to the university. In other words, the student must be treated based on his or her experiences as an individual—not on the basis of race.
To me, it seems as though the justices have provided a way out of the dilemma for universities that wish to continue to discriminate – and students who will tailor essays to meet this description – while simultaneously warning those universities not to apply this easy way out. I can imagine a ton of lawsuits in which the courts are somehow required to fine-tune whether an admissions essay meets this standard or not.
I have always thought affirmative action is a bad solution to a knotty problem. And the much-vaunted goal of “diversity” – which began with “geographic diversity,” which was a way to limit the number of those pesky Jews being admitted – covers a multitude of sins. In recent years, it’s been used against Asians mostly.
Universities are now utterly controlled by the woke, and they’re not going to give up these policies easily. Also, the left will be using this in the 2024 election in much the same way they will continue to use the SCOTUS abortion ruling. That’s not to say this ruling should not have been issued. But most universities are now rotten to the leftist core, unfortunately, and the rot has been creeping in for over 50 years.
There’s also this post at Legal Insurrection by Mary Chastain, which rounds up many of the agitated responses on the left. For example, on MSNBC the pundit says that now there will only be three black students per law school class. How’s that for a lack of faith in the achievements of black people these days? I have much more faith than that; I went to an elite law school before affirmative action was a policy, and the percentage of black students in my class was a little over 5% (women were only about 7%, by the way), which was a lot more than 3.
Jonathan Turley has this to say:
…I expect that colleges and universities are already working on the circumvention of the decision. They can use essays to identify race, even encouraging students to share any struggles with discrimination…
— Jonathan Turley (@JonathanTurley) June 29, 2023
As I already said, that’s what I expect as well, despite the SCOTUS warning about it. Institutions determined to continue the policy will continue it covertly if the overt route is blocked.
ADDENDUM: Here’s what Glenn Reynolds has to say on the subject.
The Ivies and other top schools are already working to circumvent this ruling. Part of their scheme is to abolish the requirement to submit ACT and SAT scores.
I told the Creighton President, months ago, that Creighton needs to take advantage of this and recruit the students with the high test scores who get rejected by the Ivies.
So. What is the next step towards a solution? Even a resolution? Litigate and sue — again and again?
Litigate and sue — again and again?
Yes, in jurisdictions where the Federal circuit is more conservative. Sue, sue, and sue again until the f**ckers cry uncle, then sue them again because they still deserve it.
That’s an excellent article by Glenn Reynolds.
Thanks…
Related:
Hans Mahncke is all over this meme…
https://twitter.com/HansMahncke/
“Perhaps Harvard should consult with their Professor of Honesty…”
https://twitter.com/master_skeptic/status/1674473256386961419
Mocking KBJ’s cri de coeur prose poem… (well at least we know where she stands on a topic other than “Woman”: Apparently destroying higher education—by promoting racism—is the way to end racism…which kinda’ makes sense in a KBJ kinda’ way, I guess…IOW Emotions and Hysteria uber alles, plus a little let’s destroy benchmarks and standards IOW to foster equality!)
https://twitter.com/BenZeisloft/status/1674437601107820545/photo/1
https://twitter.com/Heminator/status/1674453817855705088
https://twitter.com/HansMahncke/status/1674456792825208832
“This is not what the court said. Harvard is selectively quoting, aka lying…”
https://twitter.com/HansMahncke/status/1674466906097561618
“If Sanity ever makes a comeback…”
https://twitter.com/HansMahncke/status/1674464480900657165
well their lips are moving barry, so no surprise,
Finally we have a good decision from SCOTUS, after its egregious failure of addressing the “problematic” election of 2020, as well as the truly horrible decision made recently on immigration (8-1!), the latter highly pleasing to the odious Mayorkas. It is noteworthy that much of the commentary (not the hysterical nonsense from the left) revolves around the well-documented unfairness to Asian students, when white students from “flyover country” are, in fact, at the greatest disadvantage, regardless of their qualifications.
“ what is the next step towards a solution?”
Use the power of the purse. Starve them any way you can. If you or your children want to go to college minimize your payments. Go to Junior College and then transfer and go like hell to reduce the time you are there. Stay away from touchy-feely majors like psychology and sociology. Elect Republican legislators and governors like Ron DeSantis who will cut funding to state colleges for DEI programs.
Someplace, the colleges will have to have a “handbook” on their “holistic admissions” standards. If that handbook leads to disparate impact, which is its purpose so it will, we have Griggs to haul into the brawl.
“Trust us” was essentially the argument offered by the University of Michigan in Grutter, and one that was cheerfully accepted by the majority there. Not so much today.
But who trusts higher education anymore?
–Glen Reynolds
https://instapundit.substack.com/p/affirmative-actions-demise-and-higher
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Quite so. Reynolds sees this AA decision as a legal step, which is hardly the last word in that battle, but also as an indication of academia’s ongoing collapse of credibility.
Hang on to your hats. Higher education has nowhere to go but down. Prices up, product quality down, online competition up and demographically incoming classes have peaked.
I predict we’re going to hear some real screaming from the Democat-Academic Complex.
No bailouts!
All very well to recommend bringing more and more lawsuits against schools as they game the decision with extra-special essay evaluation; but lawsuits aren’t cheap or quick. It will take years for schools’ bad behavior to accumulate (and be visible) sufficiently to support a plaintiff’s case. Look at the plaintiffs in the case decided today: they kept losing and had to grind through one court after another for the best part of a decade.
Meanwhile the defendant schools have endowments aggregating, my guess, $100BN with a B. Harvard alone has about $50BN. That throws off maybe $5BN a year of interest. You can buy a lot of lawyers with that.
I’m not saying this wasn’t a great decision. It’s long overdue and it makes solid points. But now the hard work starts.
Everyone knows that reading, writing and arithmetic are racist and the elite universities should be allowed to admit black students that can’t do these things. If the elite university’s want to ruin their brand, I say go ahead. You can only reduce your standards so far and incompetence becomes obvious to everybody.
Professor Amy Wax…paging Professor Amy Wax.
I like the response from Kenny Xu, a local NC member of the board of Students for Fair Admissions:
He’s right about where the real problems are.
https://www.wral.com/story/u-s-supreme-court-strikes-down-affirmative-action-nationwide-in-lawsuit-involving-unc-chapel-hill/20816663/
My Vietnamese neighbor remains pessimistic about his daughters’ chances at elite institutions, despite this welcome ruling.
AA is like the tv talent shows. Extra credit for poc, lez,gay, trans, obese, birth defect and sad story..
Neo:
I have always thought affirmative action is a bad solution to a knotty problem.
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Nope – the Left never, never intends to solve problems – but to create and perpetuate them. Just like no gubmint bureaucracy ever solved the problem it was created to address.
Affirmative action was intended to create a new set of racial resentments to offset the success of postwar integration. They live by creating and exploiting division.
Brandon warned us that Republicans would put black people back in chains.
Now I expect he’ll say we’ve overruled the 13th Amendment.
Are there any conservatives anywhere who argue, or even believe, that because of this SC decision affirmative action in higher education is over?
I don’t understand why so many commenters have to explain that this isn’t the magic bullet which fixes everything.
These Supreme Court cases were brought by, or on behalf of, Asian students.
Why is that important? I highly recommend Jesse Merriam’s article, “The Affirmative Action Regime: How diversity derailed the Constitution,” in the current Claremont Review of Books. (https://claremontreviewofbooks.com/the-affirmative-action-regime/ but may currently be behind the paywall.) Two paragraphs from Merriam:
“[T]hough the Harvard oral argument focused on how Harvard is preferring whites over Asians, the Harvard data suggest that this preference is a negligible feature of how affirmative action at the college operates. If Harvard abandoned affirmative action altogether and admitted only the top academic decile of applicants, it would have almost no effect on the white population (white admissions would be reduced by about one percentage point). Affirmative action is now, at Harvard at least, a battle between two over-represented groups: Asians (who are over-represented because of their academic excellence) and blacks (who are over-represented because of their privileged status under affirmative action). None of this was evident, however, from the Harvard oral argument, which made it seem that Asians were vastly under-represented because of white students stealing their spots.
“Just like the Harvard argument, the UNC argument focused on how to manipulate the university’s admissions formula to generate the preferred racial composition. In one important way, the UNC argument revealed, even more than the Harvard case, the rot at the core of the diversity regime. This arose when U.S. Solicitor General Elizabeth Prelogar explicitly rejected any obligation of public institutions to consider granting admissions preferences for people from poorer backgrounds because, in the experience of the service academies, class- or income-based affirmative action ‘would actually increase the number of white men.’ No one probed whether the government acts race-neutrally if it rejects an admissions criterion explicitly, and apparently solely, because it would increase the number of white students.”
Similarly, the Asian vote was critical in November 2020’s defeat of the attempt to overturn California’s Proposition 209 (1996 constitutional amendment that had made affirmative action illegal in public hiring and in public-university admissions) and, thus, reinstitute affirmative action there.
Altogether, my impression is that these affirmative-action cases were brought and California’s 2020 Asian vote went the way it did simply because now their ox was being gored. So there’s nothing principled about their efforts. (Maybe I’m wrong about that question of principle, but I doubt it.)
Depends on what your definition of ‘narrow’ is:
https://legalinsurrection.com/2023/06/scotus-gave-universities-a-narrow-opening-and-harvard-just-announced-its-going-to-drive-an-affirmative-action-truck-right-through-it/
From Justice Thomas’s concurring opinion, citing Thomas Sowell (twice!).
https://www.realclearpolitics.com/articles/2023/06/29/clarence_thomas_put_aside_skin_color_focus_on_achievement_149427.html
Here’s Thomas Sowell in “Commentary” in 1989: “ ‘Affirmative Action’: A Worldwide Disaster”
https://www.commentary.org/articles/thomas-sowell-2/affirmative-action-a-worldwide-disaster/
Bob Wilson ABOVE: “ what is the next step towards a solution?”
“Use the power of the purse. Starve them any way you can. If you or your children want to go to college minimize your payments. Go to Junior College and then transfer….”
Or go REALLY ambitious and test out for a fully accredited Bachelors degree for $5,000+(if you really want some classroom seat time credit experience, too).
For a model to adapt, see http://www.bain4weeks.org. Then do a deeper dive to learn how people adapted the model and to which institutions, see the Forums at http://www.degreeinfo.com
I’ve always been jaded over affirmative action. That’s because I know how it works in the real world. Basically a poor disadvantage black person gets an opportunity and a poor disadvantaged white person loses one.(Or a disadvantaged Asian these days.) I mean does anybody think that the well connected rich white student is being kept out of Harvard? (Who would be the people to lose their spot if things were even mildly fair. It’s never that way.)
Michelle Obama — Black people can’t survive without Affirmative Action. She sometimes questioned if people assumed she had only been accepted because of affirmative action policies. https://www.politico.com/news/2023/06/29/michelle-obama-affirmative-action-00104211
In other words, the student must be treated based on his or her experiences as an individual—not on the basis of race.
Lovely for the authors of personal stories, but what’s missing? All words regarding the learning and comprehension and application of the subject matter of the classrooms, that’s what.
Those who prefer that their brain operations be performed by the writer of the most eloquent admission sob story are welcome to the results, but all these discussions are avoiding the subject of learning the compiled results of centuries of studies and analyses and application of knowledge that used to be the main purpose for the existence of ‘universities’.
Apparently they’re now all mere country clubs where Junior is admitted purely for access to the Network of the Annointed.
Geographic diversity was intended to limit the enrollment of Jews from the large cities of the East, but arguably, recruiting and admitting qualified students from Oklahoma or the Dakotas may have helped elite universities to become or to appear to become national, rather than regional institutions. Starting in the 60s and 70s, the requirement of geographical diversity was reduced, on the theory that there was as much or more diversity between Scarsdale and the Bronx as there was between suburban schools in different regions of the country. That changed again in recent decades. Elite colleges still want Black students, whether from Scarsdale or from Brooklyn, but the move now seems to be towards global diversity and taking in rich students from all over the world. I suppose applicants with the right sport or gender identity can get around that, but the elite colleges have moved from regional to national to global institutions.
How much will this ruling really change though? Colleges will do what they want to do. Harvard has that much money and power. The value of eite higher education as education has declined, both in material and non-material terms, but the connections and networks elite universities provide access to are worth more than ever.
Abraxas: ”Colleges will do what they want to do. The value of elite higher education as education has declined, both in material and non-material terms, but the connections and networks elite universities provide access to are worth more than ever.”
To keep the Ruling Class(TM) unified, those connections are like hoard of Gold.
A) 2012: the Obamacare Decision, a John Roberts production, is an abject surrender to big govt.
B) 2023: Affirmative Action, also a John Roberts production shoots many silver bullets into a hideous creation of liberal bigotry.
As they said in the signature line for the 1970s TV show (proof that life was better in the 70s) TO TELL THE TRUTH:
Will the real John Roberts stand up?
Personally speaking, I think the argument that in order to eliminate racism you NEED to implement MORE of it is an unusually elegant one…if essentially incoherent, non-sensical and torturously twisted, backwards and unethical—I mean one really has to TRY REALLY HARD to be so convoluted…but then one probably should make allowances for people who for some reason have no idea how to define “woman” (to be sure, that inability, or refusal(?), may just be the latest prerequisite for gaining a spot on SCOTUS….).
And KBJ’s eloquent plea FOR institutionalized and LEGALIZED—CONSTITUTIONAL!—racism is a need so necessary and so obvious, so therapeutic and so cleansing, that anyone who doesn’t agree with it is…a RACIST!…and —why not go the whole hog?—a WHITE-SUPREMACIST!
Well, they should just hop on the [HATE ‘n REPARATIONS] train!!
https://www.youtube.com/watch?v=I_bB-kjGAhc
File under: RR (Remedial Racism)….
“…back in chains…”
Demagoguery at its finest.
Actually, you want to put people back in chains? Simply(!) encourage them to feel like they’re perennial victims and have NO responsibility for their decisions or their lives or the lives of others; make ’em feel that OTHERS—preferably SOCIETY as a whole—are responsible for their misfortunes, for their problems, for their failures….
Make ’em angry. Make ’em desperate. Make ’em hateful. Make ’em feel that THEY deserve to get whatever they want WITHOUT having to work for it. Make ’em internalize that they WILL never have to—should never have to—get back up when they fall down.
Especially make ’em despise the Law!
Do all that, Joe…and you’ve created SLAVES for life!!
(Slaves who, BTW Joe, are so shackled—self-shackled(?)—that they WILL VOTE FOR precisely those who are keeping them shackled; encouraging them to stay in chains!! to stay slaves…)
Teach ’em well, Joe!
(Should be, KEEP ON teaching ’em well…)
Michelle Obama — Black people can’t survive without Affirmative Action.
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That’s not quite what she said. The quotations out of her mouth that they did provide in that article are a compendium of humbug, to be sure.
==
The smart money says that without preference schemes, Craig and Michelle Robinson would have attended one or another of Illinois’ five public research universities, perhaps earning a baccalaureate degree and some sort of post-baccalaureate credential. She might or might not have gone to law school. Had she been admitted to the bar, she’d have cadged a position in an ordinary firm and might still be working at it. Or she might have left the profession after a few years and gone into some other line of work, like real estate sales. She wouldn’t have had the odd institutional patronage positions she had for 17 years, which, in re the latter part of that period, look suspiciously like conduits to launder bribes. (Craig Robinson’s work has operational measures of competence and doesn’t require fancy schools, so one might wager he’d have done much the same with his life). A different life, to be sure. Less lush, more honest.
lets not pretend, this is exactly what grievance monger in chief, meant,
Clarence Thomas Reading His Epic Takedown Of KBJ’s Affirmative Action Dissent Left Her “Visibly Angry”
https://legalinsurrection.com/2023/06/clarence-thomas-reading-his-epic-takedown-of-kbjs-dissent-left-her-visibly-angry/
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I’m not a lawyer, much less one who follows Supreme Court rulings, but lordy, this reads like Thomas gave Ketanji Brown Jackson a public spanking.
Well-deserved. KBJ”s dissent seemed crazy for a serious legal opinion.
_______________________________
…Justice Ketanji Brown Jackson (KBJ), whose dissent read like a furious letter to the college newspaper or chants at a rally. Or a seminar on CRT. She talked about “lived experience” and the majority’s “let them eat cake” attitude. And the left loved it..
Whatever else affirmative action has given us, we are full-up with prominent minority ‘types using their elite credentials to forward the DEI agenda.
You gotta dance with thems what brung you.
The Supreme Court doesn’t like to overturn major Congressional legislation. Like overturning election results, it’s perceived as going in the face of what the country has decided. The Court doesn’t have as much trouble overturning state legislation, municipal ordinances, or the practices of non-governmental entities.
“…Justice Ketanji Brown Jackson (KBJ), whose dissent read like a furious letter to the college newspaper.”
What a great line.
But her rhetoric, and Sotomayor’s, really bring home the fact that the progressive legal establishment has no real knowledge of or interest in the system of government specified in the constitution. Law is just a set of more or less arbitrary rules to be manipulated toward their purposes.
Admission: I haven’t read their entire opinions, so it’s at least technically possible that the excerpts I’ve seen are unrepresentative.
“Affirmative Action” should have been based on economics and not race.
@ TJ on June 29, 2023 at 8:46 pm said:
Here’s Thomas Sowell in “Commentary” in 1989: “ ‘Affirmative Action’: A Worldwide Disaster”
I just finished reading that essay (it’s very long), and Sowell successfully (IMO) rebuts every one of the dissenters’ “arguments” – if his evidence and analysis had been considered by prior courts, we would have been set on the correct path to lifting up minority students 40 years ago.
Pay particular attention the the later sections where he explains WHY the activists agitating for “social justice” are actually sabotaging every possible way to actually achieve what they claim are their objectives.