The Supreme Court on Affirmative Action: Reactions

So the Supreme Court has handed down a decision rejecting race-conscious admissions policies for universities. See if you can guess which of the following headlines was from Fox News, and which was from NPR:

“Supreme Court rejects affirmative action in ruling on universities using race in admissions decisions”

“Supreme Court guts affirmative action, effectively ending race-conscious admissions”

The President’s Reaction

Joe Biden wasted no time trying to undermine the Court’s legitimacy. A reporter asked if it was a “rogue court” (the definition of “rogue” presumably being “disagreeing with woke leftists”). He responded that it was “not a normal court” (“normal” presumably meaning “leftist”).

“Today, I am directing the Department of Education to analyze what practices help build more inclusive and diverse student bodies … We cannot let this decision be the last word. The court can render a decision, it cannot change what America stands for”, said the President, hinting at his intention to circumvent the decision. To his credit, however, he rejected suggestions of packing the Supreme Court.

“I think that some of the court are beginning to realize their legitimacy is being questioned,” he told MSNBC. (https://www.youtube.com/watch?v=CmekpMxhFmg) He went on to claim that the court was out of touch with American values; the fawning woke reporter agrees.

But of course, it is Biden and the woke media who are out of touch. Three quarters of Americans, including most Democrats, are against affirmative action. (https://news.gallup.com/opinion/polling-matters/317006/affirmative-action-public-opinion.aspx) Even California, the bluest state you can find, banned affirmative action decades ago. They had to do it via a ballot initiative (prop 209), since the political elites wouldn’t do it.

The Congressional Black Caucus, similarly, claimed that the decision cast doubt on the Court’s legitimacy. (https://www.msn.com/en-us/news/politics/black-caucus-says-supreme-court-has-thrown-into-question-its-own-legitimacy-with-affirmative-action-ruling/ar-AA1ddEPR) It seems that the left has adopted the Trumpian theory of legitimacy: The outcome is legitimate if and only if our side wins.

They went on to say that they can’t let extremists turn back the clock on progress. But of course, they’re the extremists who are trying to turn back progress. Only the most extreme voices on the left (wokists) and right (white supremacists) want to keep admitting and hiring people based on skin color.

The legitimate outcome is not to keep letting the small minority of loud extremists determine the direction of the country by lying about the content of the law.

Attacks on Clarence Thomas

Predictably, some people are attacking Clarence Thomas for (a) having once benefitted from affirmative action, and yet (b) now voting to discontinue it. You see how bad he is?

I believe the legal and moral theory here is this: An impartial judge should always vote to uphold any policy that personally benefits himself. That’s clearly what justice demands.

The Academy

Many news stories are naively announcing the end of racial preferences in higher education. I have news for you: The Academy has no intention whatsoever of following the law in good faith.

Within hours, American universities started releasing defiant, woke responses to the Supreme Court decision:

“The ruling will not change our values or efforts to become a more diverse university community. … UM’s experiences demonstrate … that it is much more difficult to achieve racial diversity in the student body using only race-neutral methods than by including race in the admissions process in a narrowly-tailored manner. … In the face of these challenges, we persist.” (https://publicaffairs.vpcomm.umich.edu/key-issues/affirmative-action/)

“As we prepare to comply with the law, our commitment to our values is unwavering. Diversity is a positive force across every dimension of Columbia, and we can and must find a durable and meaningful path to preserve it.” (https://news.columbia.edu/news/columbia-issues-statement-affirmative-action-cases)

“While we review today’s ruling by the U.S. Supreme Court, Indiana University reaffirms our commitment to fostering a learning environment that is enriched by students, faculty and staff with a broad range of backgrounds…” (https://bloomingtonian.com/2023/06/30/indiana-university-statements-on-scotus-ruling-regarding-affirmative-action/)

“CU Boulder will continue to … aggressively recruit students from minoritized backgrounds.” (https://www.colorado.edu/today/2023/06/29/supreme-court-decision-affirmative-action-statement-chancellor-distefano)

Translation: “Fear not, comrades! One way or another, we will circumvent the Supreme Court’s decision.”

Of course they weren’t going to outright say, “We plan to violate the law.” But they came about as close to it as they could. Anyone who has worked in a university for a few years knows that universities have no interest in following laws that conflict with woke ideology. The first quote above alludes to the strategy of deliberately devising proxies for race so that you can pretend not to be doing race-conscious admissions. They complain that this isn’t as good as using race directly, but they plan to persist despite the difficulty.

We’ve been blatantly violating the Civil Rights Act for decades, and no one cares. (https://fakenous.substack.com/p/outlaw-universities) So why won’t we continue breaking the law?

How to break the law

How are we going to do it?

First, let’s review how we did it last time. The Supreme Court in the Bakke case said that universities could not use racial preferences for the purpose of making up for past discrimination (the “two wrongs make a right” theory). However, they could still take race into account for purposes of achieving the educational benefits of a diverse student body. Whereupon all the universities immediately declared, “Oh yeah, that’s what we’re doing, that diversity thing.” And then continued doing exactly the same policies, with exactly the same purpose: making up for past discrimination.

We never cared about diversity. (https://fakenous.substack.com/p/who-cares-about-diversity) What we heard when Justice Powell wrote about diversity was, “If we say that we’re aiming at diversity, then we can keep doing what we want.”

This time around, Chief Justice Roberts, with childlike naivete, has handed the universities the tool we will use to circumvent the Court’s intention:

“At the same time, nothing prohibits universities from considering an applicant’s discussion of how race affected the applicant’s life, so long as that discussion is concretely tied to a quality of character or unique ability that the particular applicant can contribute to the university.”

(Students for Fair Admissions v. President and Fellows of Harvard College, 8)

New university admissions requirement: Please write a statement explaining how race affected your life, and tie it to a quality of character or unique ability that you can contribute to the university.

We’re going to need to hire some new DEI administrators to judge these statements. The evaluation flowchart:

Roberts thought of this: “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. (A dissenting opinion is generally not the best source of legal advice on how to comply with the majority opinion.)” (39)

John Roberts may be well-versed in the law. But he really doesn’t understand how universities work if he thinks his words are going to stop us from admitting people based on their race. He seems to think that universities care about complying with the majority opinion. We don’t care about that. All we care about is promoting our ideology by any means possible. The typical wokist reading of the above will be: “Oh, so now when we discriminate based on race, we have to say we’re doing it because of the qualities of the specific individual? Got it.”

When will it end?

There are going to have to be a lot more lawsuits. Universities are going to keep breaking the law until either (a) an administrator actually loses his own money, not the university’s money, for breaking the law, or (b) some university comes close to bankruptcy from lawsuits. Neither of these is likely to happen any time soon.

We might need an actual criminal statute under which administrators could be prosecuted. That’s really the only thing they understand.

Legal Questions

What about precedent?

Joe Biden complained about the court disregarding precedent — presumably alluding to the Bakke case and the later Grutter v. Bollinger case, both of which upheld certain kinds of affirmative action.

This is a pretty lame complaint, though. As Roberts noted, the court in the Grutter case specifically said that they expected that racial preferences would no longer be justified in 25 years. That was 20 years ago. So it is in fact entirely consistent with that earlier decision for the Court, today, to say that racial preferences are no longer justified.

The Equal Protection Clause

The rejection of affirmative action is based on the Equal Protection Clause of the 14th Amendment. Here is the clause:

nor shall any State … deny to any person within its jurisdiction the equal protection of the laws.

That’s it. So now you can obviously see why it would be illegal for Harvard University to give preferences to black students.

No, you don’t see it yet? Let me explain. Harvard University is clearly a State, right? And clearly being admitted to college counts as being protected by the laws. (But only if you satisfied the non-race-based admission criteria.) So Harvard’s failure to admit white and Asian students who were otherwise qualified counts as a state denying equal protection of the laws.

At least, that’s how I assume the reasoning must go. Seems legit.

[Note: Do not rely on the above as an account of the legal reasoning. I don’t have time to read through the 237 pages of opinions in this case.]

The Civil Rights Act

Here is a more prima facie convincing legal argument: Affirmative action violates the Civil Rights Act of 1964, which says:

“No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.”

(Title VI, 42 U.S.C. §2000d)

Q1: Does Harvard receive federal funding?

A: And how. On their website, they brag about getting half a billion dollars in federal funding in one year. (https://news.harvard.edu/gazette/story/2020/03/harvard-attracts-federal-funding-supports-economy/)

Q2: Does affirmative action cause some people to be excluded from or denied the benefits of Harvard University?

A: Obviously yes. There are limited slots. For every person who gets in because of AA, one person fails to get in because of AA. (It doesn’t matter if we don’t know specifically who that is.)

Q3: And does it do this on the ground of race or color?

A: Yes. As documented in the Harvard and UNC lawsuits, race makes a huge difference. An Asian student who fails to get in can often easily predict that they would have gotten in if their application was otherwise the same except it said “black” under “race”.

This seems pretty straightforward. Notice that the text of the Civil Rights Act does not make any distinction between black and white, or any other races. E.g., it doesn’t say, “No person shall, on the ground of being black, be excluded from participation …” So there’s no basis for claiming that the law treats black and white differently. So if you agree that selectively preferring white over black students would violate the Civil Rights Act (and if that doesn’t, I don’t know what the hell would), then obviously selectively preferring black over white and Asian students does so as well.

Conclusion

I don’t know what Joe Biden’s standard of legitimacy is. But if it has something to do with upholding the plain meaning of the written law, then the last 40 years of jurisprudence on affirmative action has lacked legitimacy, and only now are we returning to legitimacy.

I remain confused as to why Roberts focuses on the 14th Amendment (which seems irrelevant) rather than the more decisive Civil Rights Act. Gorsuch’s excellent concurring opinion remedies the omission: https://www.supremecourt.gov/opinions/22pdf/20-1199_hgdj.pdf

This doesn’t answer whether affirmative action is morally good or bad. We’ll have to leave that for another time.