Mark Your Calendars: The Next Anti-Supreme Court Freak-Out Is Scheduled For June

In 1978’s Bakke decision, a fractured majority of the Supreme Court found that universities could consider race to build a diverse student body, agreeing that educational benefits could flow from diversity. At the same time, the opinion prohibited quotas, requiring universities to undertake a “holistic” review of each applicant in which race could be a factor. The Supreme Court affirmed this foggy principle in 2003’s Grutter v. Bollinger and again in 2016’s Fisher v. Texas. Schools, meanwhile, became adept at making sure that holistic approach resulted in the desired racial proportions.

Now the Supreme Court appears ready to rule that the race-conscious admissions programs at Harvard and the University of North Carolina are unlawful. Five hours of arguments and questioning in the two cases’ oral presentations before the justices made that abundantly clear, but it was already clear long before. The cases’ decisions won’t be handed down until June 2023 (unless that majority opinion gets leaked too), but the Left is already laying the groundwork for a Dobbs-like freak-out.

The clear media talking point memo apparently requires all stories to call such a decision ” a move that would overrule decades of precedents.” But this is deliberately disingenuous. From the beginning, the Supreme Court allowed colleges and diversities to use race in their admission procedures while acknowledging that it was a special exception to the equal protection requirement of the 14th Amendment that was necessitated by the unusual circumstances of slavery and Jim Crow. (It was, in fact, a perfect example of the Ethics Incompleteness Principle, where a valid rule did not work well in a unique situation, and thus s special, unique solution had to be crafted that does NOT serve as a precedent.) Justice Sandra Day O’Connor admitted as much in her opinion in Grutter v. Bollinger (2003), concluding that affirmative action in college admissions is justifiable, but not forever: “We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest [in student body diversity] approved today.”

It was a bad and confusing opinion: if the law and the Constitution is the same, why would it be acceptable to violate it then but not 25 years later? It is now 19 years later; 25 years was not a scientific estimate, but just wait: one of the arguments that will be aimed at the SCOTUS opinion in June will be that it’s “too soon.”

Here’s another quote from the Times, cleverly framing the issue:

“Such a decision would jeopardize affirmative action at colleges and universities around the nation, particularly elite institutions, decreasing the representation of Black and Latino students and bolstering the number of white and Asian ones.”

or, one could say, resulting in entering classes containing the most qualified students based on objective criteria, and ending unconstitutional racial discrimination that was focused on whites and Asians. That would be, in fact, accurate.

The conservative justices were clear in their skepticism regarding the specious justifications for rejecting students of some races in favor of those of others. “I’ve heard the word diversity quite a few times, and I don’t have a clue what it means,” Justice Clarence Thomas said. “It seems to mean everything for everyone.” Justice Samuel A. Alito Jr. was similarly puzzled by the term “underrepresented minority.”“What does that mean?” he asked, adding that college admissions are “a zero-sum game” in which granting advantages to one group necessarily disadvantages another.

Both terms, to be honest, were developed to justify racial and ethnic discrimination in the “right” direction, making college admissions a form of stealth reparations. I taught “diversity” for bar associations. Try as I might, I never could find any reliable data that demonstrated how diversity benefited students and organizations so clearly that it justified adverse discrimination. Diversity was good because affirmative action activists said so. Meanwhile, the same universities making the claim, like Harvard, have faculties with overwhelming ideological conformity, and see no reason why diversity in that realm is desirable.

The liberal, all-female wing of the Court could come up with nothing more persuasive than Justice Elena Kagan”s concern about “a precipitous decline in minority admissions” if the court were to rule against affirmative action in higher education. “These are the pipelines to leadership in our society,” she said of elite universities. OK. And if more deserving applicants are excluded from these “pipelines” based on racial discrimination, that’s a just result, in Kagan’s view?

Ethically, affirmative action has got to go. As a law school administrator in the 70s, I supported affirmative action, helped administer it, and along with everyone else, saw its throbbing injustices and flaws. I also was a victim of the policy. I was a finalist for an Assistant US Attorney position in the District of Columbia, and told directly that I was ultimately rejected because only black and female attorneys were being hired. I understood; I accepted it. I was, as always, confident that I would be successful and happy with an alternative course, but that decision still completely changed my life, and only because of my skin color. The Constitution forbade that then, and it forbids it now. The problem the Supreme Court made for itself is that removing a benefit will always be regarded as cruel, precipitous and unjust. O’Connor’s “we’ll allow this just for a while until all is well” was both naive and guaranteed to eventually reach this point. Twenty-five years or a hundred: the reaction of those losing the benefit will be the same.

The freak-out is already ramping up. Here is Scientific American, of all publications:

A contemporary argument against affirmative action is that society has now reached a post-racism state in which racial differences in achievement can be attributed to personal failures: some people don’t have the innate ability to succeed, or they just need to try harder. In the context of persistent educational inequality among socially-defined races, these arguments invoke “scientific” racism, or centuries-old myths such as that people with darker skin are biologically less intelligent, which has no actual scientific basis. In addition to the fact that humans do not have biological races, this argument also discounts the myriad ways in which slavery, colonialism, genocide and racial and ethnic discrimination have led to well-documented and persistent economic and social consequences for nonwhite people. As scientists, we need to improve the public’s understanding of systemic racism as an unjust social, political and legal power structure, as well as that there are no innate “deficiencies” in nonwhite people. Clearly, we will need more than 25 years to achieve such a goal.

That accurately states what the script for the freak-out will be: requiring non-white, non-Asian students of color to compete with whites and Asian-Americans using objective standards of skill, achievement and merit is “white supremacy.”

7 thoughts on “Mark Your Calendars: The Next Anti-Supreme Court Freak-Out Is Scheduled For June

  1. I’ve suddenly come to realize that elites such as Ivy League and highly selective college and university administrators and lefty judges simply do not believe society needs high performers to do demanding tasks. They think good enough is good enough to be a brain surgeon or an electrical engineer, or a Judge! They’re undermining their entire worldview. They say Harvard generates the best and most elite graduates, but they are perfectly content to admit and graduate mediocre students. In other words, Harvard simply is not highly selective and doesn’t care a whit. Maybe they’re arrogant enough to believe four years at Harvard turns even mediocre students into high performers. But in any event, they can’t continue to say they are highly selective when they simply aren’t. They’ve ruined their brand, but we’re all supposed to ignore the man behind the curtain and look at the shiny object over there. All is well. Remain calm.

  2. “In 1978’s Bakke decision, a fractured majority of the Supreme Court found that universities could consider race to build a diverse student body, agreeing that educational benefits could flow from diversity.”

    Just to expand on this – They said this while explicitly rejecting quotas as a method of reparations for slavery. The decision threaded a needle: They wanted to do reparations, but had to find some kind of device that allowed them to do reparations without saying that they were doing reparations, and that device was the assertion that there was an interest in “diversity” as a benefit to education, and so reparations in the form of affirmative action could continue so long as a set of vague metrics could still provide a fig leaf for them.

    This begs all kinds of questions… Robert asked what “diversity” meant in this context, Barrett asked at what point diversity was achieved, Kavanaugh asked about other benefits to education, like giving preference to the children of donors, or athletes (squash players, in particular). These are actually interesting questions, if a little bit of theatre – the justices are probably asking questions they already know the answer to… But they’re the kind of questions that people should grapple with if they’re going to try to talk about the issue.

  3. If the Court reverses its stance on affirmative action for schools will Historically Black Colleges be forced to admit non-back students, as I think they should be? Will affirmative action in hiring and promoting be removed from the workplace, as I think it should be?
    If according to Scientific America, there are no biological races, will those questions be removed from the census and all government inquiries, as i think they should be?

  4. On the subject of “Diversity” in universities: When I was in college I had an experience that turned out to be a formative one on the subject of the actual, tangible benefits of diversity.

    I was a Computer Science major, and one of the extracurricular activities that I participated in was called the Programming Team, which is something I’m sure NONE of you have ever heard of before reading about it right now–so I guess I’ll have to explain what it is first.

    Programming Team is an intellectual and strategic contest between schools. The idea is that small teams of programmers (3-4 people) from different schools are given a list of about 6-10 problems to solve of varying difficulty. The problems could be anything: computing the answer to a complex mathematical question, generating a list of data that meets some criteria, solving some classical problem like a maze, converting input data from one form into another, . . . anything really.

    Teams would race against the clock (and each other) to write programs that solve each of those problems and submit them to the judges for review. The judges would not read the code itself but would simply evaluate whether the program generated the correct answer or not for all of the judges’ test input data.

    A successful program would be scored on the amount of time that elapsed between the beginning of the contest and the time the program was submitted to the judges and deemed successful. A shorter time span is better than a longer time span.

    A failed program would be sent back to the team with a VERY minimal reason why it failed (did not compile, did not complete in the allotted time, no output generated, output in the wrong format, etc.). Failed attempts are penalized by adding time (IIRC it was five minutes) to the final elapsed time for that program, but the penalty only applies once the program is deemed successful. If you never actually solve that problem, the failed attempts don’t count against you.

    The final score is determined by which team successfully solved the most problems in the allotted time. In the extremely-common case where multiple teams solved the same number, then the elapsed times for each successful program are added up, and the team with the lowest total time is the winner.

    At the beginning of the contest the teams would see the list of problems for the first time and start collectively evaluating all of them, deciding which ones where the quickest/easiest to solve and which ones would be more time-consuming. The team would then divide up the work and assign which problems would be worked on, by whom, and in what order. Since the team has only one computer to share between teammates, managing the use of that key resource is important. To work on multiple problems in parallel, most of the work would get done on pen-and-paper first.

    The strategy would come mostly in the decisions about which program(s) to work on first and generally in what order. Think of it this way: If you have Program A that will take 10 minutes to complete and Program B that will take an hour, then you definitely want to complete A before B because your total score would be one hour and twenty minutes versus two hours and ten minutes for B before A. (Remember, the time score for each program is from the beginning of the contest, so holding back a short program until the end just increases its elapsed time unnecessarily.)

    Now then, with that out of the way….

    We were all Computer Science students and were mostly taking the same classes taught by the same professors, so we’d often approach a given problem with a similar idea on how to solve it. This meant we could do a fairly good job of evaluating how much time each would take and we could readily check each other’s work if something was going wrong.

    Then, in my third year, a new freshman named Troy joined the team.

    I absolutely LOVED working with him. Why? Because, more often than not, he and I could look at the same problem and think up two completely different–and valid–ways of solving it. In fact, he often saw potential solutions that I wouldn’t have thought of in a million years. Once we’d both pitched our ideas, it became a quick discussion and evaluation of which of our two proposed algorithms would be better to use in the context of the contest, we’d make a decision, and get coding.

    Most of the time, we’d collectively have one general idea of how to solve a problem, but with Troy and I on the same team, we often had TWO to choose from. I definitely learned things from working with him (particularly on the occasions where his idea was BETTER than mine) and I’d like to think that he learned similarly from working with me.

    This is diversity — REAL diversity — in action. The different perspectives and ways of thinking through a problem made our team stronger, of that there is no doubt. Although I was pretty damn good at this . . . sport? . . . at the time, it was both humbling and refreshing to be reminded once in a while that I don’t know everything and that there are solutions to problems out there that I wouldn’t have thought of on my own.

    Of course, Troy was a while guy from rural PA, just like me.

    But he THOUGHT differently, and that was key.

    This is Diversity. This is how and why it can actually work and how and why it can actually be a Good Thing™ in the university.

    But it has NOTHING to do with race. It has EVERYTHING to do with ideas.


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