Good.
Much about this was predicted and predictable: the split, 6-3, in which the diversity trio (A wise Latina, the historic black woman, and a lesbian) took their required stand, and the decision’s spokesjustice, Roberts, who had signaled this result by famously saying, last time around this controversy, “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” However, many thought the opinion would ultimately provide wiggle room for colleges, and it does not. From the opinion, here, by Chief Justice Roberts, who reflected on Justice Sandra Day O’Connor’s observation in a previous affirmative action case that “25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today” (which signaled that the Court was allowing an exception to Constitutional requirements continue for a limited period):
Twenty years later, no end is in sight. “Harvard’s view about when [race-based admissions will end] doesn’t have a date on it.” Tr. of Oral Arg. in No. 20–1199, p. 85; Brief for Respondent in No. 20–1199, p. 52. Neither does UNC’s. 567 F. Supp. 3d, at 612. Yet both insist that the use of race in their admissions programs must continue.
But we have permitted race-based admissions only within the confines of narrow restrictions. 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….
It is true that our cases have recognized a “tradition of giving a degree of deference to a university’s academic decisions.” Grutter, 539 U. S., at 328. But we have been unmistakably clear that any deference must exist “within constitutionally prescribed limits,” ibid., and that “deference does not imply abandonment or abdication of judicial review,” Miller–El v. Cockrell, 537 U. S. 322, 340 (2003). Universities may define their missions as they see fit. The Constitution defines ours. Courts may not license separating students on the basis of race without an exceedingly persuasive justification that is measurable and concrete enough to permit judicial review.
I particularly want to applaud Roberts’ clear statement that the use of “diversity” by colleges to justify discrimination is undefined, pie-in-the-sky hooey, if not outright flim-flammery:
Unlike discerning whether a prisoner will be injured or whether an employee should receive backpay, the question whether a particular mix of minority students produces “engaged and productive citizens,” sufficiently “enhance[s] appreciation, respect, and empathy,” or effectively “train[s] future leaders” is standardless. 567 F. Supp. 3d, at 656; 980 F. 3d, at 173–174. The interests that respondents seek, though plainly worthy, are inescapably imponderable.
Later, the Chief chides Harvard et al. for the obvious phoniness and arbitrary nature of their categories:
For starters, the categories are themselves imprecise in many ways. Some of them are plainly overbroad: by grouping together all Asian students, for instance, respondents are apparently uninterested in whether South Asian or East Asian students are adequately represented, so long as there is enough of one to compensate for a lack of the other. Meanwhile other racial categories, such as “Hispanic,” are arbitrary or undefined [J. Passel, Pew Research Center, Who is Hispanic? (Sept. 15,2022) (referencing the “long history of changing labels [and] shifting categories . . .reflecting evolving cultural norms about what it means to be Hispanic or Latino in the U. S. today”)]. And still other categories are underinclusive.When asked at oral argument “how are applicants from Middle Eastern countries classified, [such as] Jordan, Iraq,Iran, [and] Egypt,” UNC’s counsel responded, “[I] do not know the answer to that question.” … Indeed, the use of these opaque racial categories undermines, instead of promotes, respondents’ goals. By focusing on under representation, respondents would apparently prefer a class with 15% of students from Mexico over a class with 10% of students from several Latin American countries, simply because the former contains more Hispanic students than the latter.
As Batman might say,
Harvard, UNC and the rest were not using science or reliable studies to justify their deliberate handicapping of certain students because of their race and ethnicity, just arrogant reliance on “social justice” cant, virtually fact free. They should all be ashamed of themselves, but they won’t be. They will, instead, condemn the Court’s majority as racist for having the insensitivity to point out what has been clear for decades, and to require such “technicalities” as following the Constitution when “being on the right side of history” should be sufficient.
The decision does not have the fractured incoherence of Bakke, the first affirmative action case, where the majority that came down on the side of the practice had widely varying opinions about why. Justices Thomas, Kavanaugh and Gorsuch wrote concurring opinions, but only for emphasis: Gorsuch begins, “…Today, the Court holds that the Equal Protection Clause of the Fourteenth Amendment does not tolerate this practice. I write to emphasize that Title VI of the Civil Rights Act of 1964 does not either.” Kavanaugh: “I join the Court’s opinion in full. I add this concurring opinion to further explain why the Court’s decision today is consistent with and follows from the Court’s equal protection precedents, including the Court’s precedents on race-based affirmative action in higher education…”
Pow! Wham!
In perhaps the most predictable dissents in SCOTUS history, touchy-feely Justice Sotomayor and historic Justice Jackson essentially parrot back the arguments made by the universities. The Wise Latina writes, “The Court is not interested in crafting a workable framework that promotes racial diversity on college campuses. Instead, it announces a requirement designed to ensure all race-conscious plans fail.” Bingo. And that’s because using race to discriminate is illegal and unconstitutional. Why is this hard? Jackson predicts disaster, writing that the decision “will delay the day that every American has an equal opportunity to thrive, regardless of race.”
Tell that to the Asian students with excellent credentials who were rejected by the nation’s most prestigious educational institution because they weren’t black.
The majority, through the Chief Justice, takes a rare swipe at the by-the-numbers progressive dissents, writing in part,
Most troubling of all is what the dissent must make these omissions to defend: a judiciary that picks winners and losers based on the color of their skin. While the dissent would certainly not permit university programs that discriminated against black and Latino applicants, it is perfectly willing to let the programs here continue. In its view, this Court is supposed to tell state actors when they have picked the right races to benefit. Separate but equal is “inherently unequal,” said Brown. 347 U. S., at 495 (emphasis added). It depends, says the dissent….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.)”
Read the whole opinion; I’m going to read it again, carefully. But it should be a welcome one to every American who believes in fairness and the Constitution.
Ethics Alarms 
I just received, as a “member of the Harvard community,” Harvard’s response:
Dear Members of the Harvard Community,
Today, the Supreme Court delivered its decision in Students for Fair Admissions v. President and Fellows of Harvard College. The Court held that Harvard College’s admissions system does not comply with the principles of the equal protection clause embodied in Title VI of the Civil Rights Act. The Court also ruled that colleges and universities may consider in admissions decisions “an applicant’s discussion of how race affected his or her life, be it through discrimination, inspiration, or otherwise.” We will certainly comply with the Court’s decision.
We write today to reaffirm the fundamental principle that deep and transformative teaching, learning, and research depend upon a community comprising people of many backgrounds, perspectives, and lived experiences. That principle is as true and important today as it was yesterday. So too are the abiding values that have enabled us—and every great educational institution—to pursue the high calling of educating creative thinkers and bold leaders, of deepening human knowledge, and of promoting progress, justice, and human flourishing.
We affirm that:
Because the teaching, learning, research, and creativity that bring progress and change require debate and disagreement, diversity and difference are essential to academic excellence.
To prepare leaders for a complex world, Harvard must admit and educate a student body whose members reflect, and have lived, multiple facets of human experience. No part of what makes us who we are could ever be irrelevant.
Harvard must always be a place of opportunity, a place whose doors remain open to those to whom they had long been closed, a place where many will have the chance to live dreams their parents or grandparents could not have dreamed.
For almost a decade, Harvard has vigorously defended an admissions system that, as two federal courts ruled, fully complied with longstanding precedent. In the weeks and months ahead, drawing on the talent and expertise of our Harvard community, we will determine how to preserve, consistent with the Court’s new precedent, our essential values.
The heart of our extraordinary institution is its people. Harvard will continue to be a vibrant community whose members come from all walks of life, all over the world. To our students, faculty, staff, researchers, and alumni—past, present, and future—who call Harvard your home, please know that you are, and always will be, Harvard. Your remarkable contributions to our community and the world drive Harvard’s distinction. Nothing today has changed that.
Sincerely,
Lawrence S. Bacow
President, Harvard University
And here’s the response of Harvard’s president-elect: https://view.hu.harvard.edu/?qs=9d6af6fc0d922d5f54b4efde72fa40191d3248e37af4c0db0ce7215850e5f115be25361332fb4683e937a586d01d7a2cc69727bd1483e96709f5a50f0e04bc3a373c6b8e0338fd8deec0e8adda2c6202224e91e70fa5ba52
Jesus H. Christ. All she’s said is, “Don’t worry anyone. We’ll keep on admitting a quota of black and Hispanic kids, just has we have in the past. Screw the Chinks and their God-damned high SATs.”
As a procedural matter, doesn’t the SCOTUS opinion send the case back to the District Court to fashion a remedy for the plaintiffs and determine the damages due from the defendants? Isn’t there more to the case than just Harvard and UNC saying “Oh Gee. Our bad, I guess, kinds sorta. Okay, we’ll do something else instead. Trust us. We know better than you anyway.” Assholes.
This just sounds like they are working furiously to find a way around the ruling. I expect more lawsuits to come as universities try to avoid this ruling.
It’s also TELLING that Brown Jackson’s dissent really didn’t deal with discrimination of Asian Americans at all. She seems to view education as a public policy tool to help ameliorate past racial injustices and current “racial gaps.” In her world, whatever helps close “gaps” (regardless of why they exist) is good, even if there is collateral damage for well-qualified applicants. Who cares if Asian Americans are being discriminated against if affirmative actions fits with my social agenda?
Her opinion didn’t read like a Supreme Court decision to me. It felt more like an ideological diatribe against the majority’s decision.
Yes, Asians simply don’t count. Affirmative Action is evidently a victimless crime, er, policy. Ironically, I suspect advocates for affirmative action know damn well the people who are pushed out of a spot at Harvard or Chapel Hill so a less qualified applicant can have the spot will be just fine attending a slightly lesser school because they are more than smart enough to get into Harvard or UNC and will flourish anywhere. Applicable rationalization (if they even see it): “No harm, no foul.”
I focused on this statement…
Jackson predicts disaster, writing that the decision “will delay the day that every American has an equal opportunity to thrive, regardless of race.”
Wow.
So a SCOTUS decision that gives every American (student) an equal opportunity to thrive (on a college campus of his/her choice), regardless of race is somehow seen as delaying the day that every American has an equal opportunity to thrive, regardless of race.
That’s some pretty tangled thinking right there. The weed that is “preferential treatment based on melanin” runs pretty deep.
Hers is a really poor dissent, arguably even worse than Sotomayor’s. I suspect that Kagan went with the cool kids but deep down knows that the majority was right on the law, so she just “joined” in the mandatory screams from the Left.
I had to reread that part several times myself. Each time, my reaction was “wait, what?”
Reading their opinions, Kagan and Sotomayor believe strongly that blacks and hispanics cannot compete with whites and Asians on a level playing field. They believe that blacks and hispanics are not intellectually capable of competing and need these racial quotas. This used to be called racism, but now is called anti-racism much like how we now call fascism anti-fascism.
Harvard seems to be hinting that they plan to practice “malicious compliance” with the SCOTUS decision, but continuing to practice racial discrimination under a variety of pseudonyms.
Absolutely. The they know better crowd will be relentless in coming up with all sorts of bogus stuff to continue discriminating against qualified applicants in favor of black and Hispanic applicants. These cases will be working their way through the courts for at least a decade. People are going to have to sue for damages and dig into the massive endowments these outfits have amassed before the they know better crowd is finally brought to heel. They are recalcitrant and overbearing and above reproach. Modern day Puritans. Only trustees concerned about the viability of these schools will get these administrators to behave.
Oh, I hope so. That will give the Court the opportunity to smack them down again… and again.
They should learn the lesson of New York State’s malicious (non) compliance with their most recent gun rights decision. But alas, the Left emotes, it doesn’t reason.
The court won’t be able to. This ruling was inevitable and the reason the schools have eliminated the usage of the SAT, ACT, LSAT, and MCAT for admissions. Without standardized test scores, how can you prove that you weren’t admitted just because of your race? What is the admissions criteria now? No one will know. Admissions will become arbitrary. Anything goes in such a situation and there is no way to prove anything. Again, the Supreme Court is irrelevant and the law is irrelevant.
This is similar to ‘prosecutorial discretion’ that allows the prosecution for ‘brandishing a weapon’ of someone being chased by a crowd of people while not prosecuting those people for beating the person. Anything goes and the law is irrelevant.
Michael, I really doubt the faculties (and even administrations) at the really good schools will accept the quality of student you’d get if you admitted classes without any criteria whatsoever. I think the schools are amenable to letting in a certain percentage of students who are below par so long as, say, the other seventy percent are really bright. I think if the colleges keep their of color percentages the same, they’ll continue to suppress Asian admissions and they’ll have some ‘splainin’ to do in the continuation of this case when it’s remanded and in future cases yet to be filed.
Oh, they will have criteria. They will still let in the children of the rich and powerful no matter their merit (as they already do). They will then let in the right mix of ‘diversity’. The leftist elites have decided that merit is the biggest obstacle to diversity (think about how racist that is), so they are getting rid of it. Making all the public schools terrible is just one step, make it so no one learns anything unless they go to high-priced private schools. Then eliminate the ACT/SAT so well performing poor white and Asian children can’t compete. Then eliminate LSAT and MCAT tests to keep ‘undesirables’ out of law and medical school. Then, make medical school pass/fail so residencies can’t be chosen by merit. All these steps have already been accomplished. It is done.
Where is the last 40 years have faculty at the top school stood up for the meritocracy? The graduate schools have adapted by changing the way research is done. When I went to grad school, you were encouraged to learn as much about as much as you could. You should learn how to do every single thing your research group did, even if it didn’t apply to your project. You were encouraged to learn what other research groups in the department did. Now, the students are no longer capable of this. They are taught one small aspect of the research project and nothing more. It is really frustrating going to meetings and talking to today’s graduate students, they definitely don’t think for themselves.
Remember, I was told (by a college president) that over half of the students at Duke don’t meet Duke’s minimum admission criteria. This was 25 year ago. Imagine what it is like now. You really don’t understand how poorly prepared college students are today. When I was in college, trigonometry was a remedial course and the credits didn’t count towards graduation. Today, Algebra I credits count towards graduation.
You are probably right. I guess I’ve lost sight of how terrible the faculties have become in the fifty years since I graduated. Maybe they are perfectly willing to take in and “teach” substandard students. They probably were themselves. I withdraw my comment. If Duke’s been in the toilet for twenty five years, it’s long been game over.
After reading those two parts, it sounds to me like Harvard clearly thinks they’re right, the Supreme Court is wrong, and they’re going to try to find some way around the ruling and continue to achieve the same thing but come at it from a different angle. Someone should pay really close attention to what Harvard does over the next few years regarding admissions.
Note: technically, the vote in the Harvard case is 6-2, with Justice Ketanji Brown Jackson recusing herself as she promised to do during her confirmation hearing, but since it was subsumed in the over-all decision, the recusal was meaningless.
From the Daily Mail, here’s the head of the executive branch commenting on the heads of the judicial branch:
‘This is not a normal court,’ Biden said of the conservative-heavy bench that made the decision.
‘I know today’s court decision is a severe disappointment to so many people, including me, but we cannot let the decision be a permanent setback,’ he said in remarks in the Roosevelt Room of the White House.
‘Many people wrongly believe affirmative action allows unqualified students to be admitted ahead of qualified students. This is not how college admissions work,’ he said.
The president encouraged universities to still consider the ‘hardships’ students had to overcome in order to apply to college and proposed that schools ‘take into account the adversity a student has overcome.’
‘Discrimination still exists in America. Today’s decision does not change that. It’s a simple fact. If a student has overcome — had to overcome adversity on the path to education, the college should recognize and value that,’ he said.
He said collages ‘should not abandon their commitment to ensure stay tuned bodies of divert backgrounds and experience that reflect all of America.’
He blasted higher education for remaining a purview of the privileged.
‘Today, for too many schools, the only people that benefit are the wealthy and well connected. The odds have been tacked against working people for much too long. We need a higher education system that works for everyone, from Appalachia to Atlanta and far beyond,’ he said.
I was tempted to write a post about this, but decided that it’s not worth it. Biden hasn’t read the decision, and neither has the hack who wrote that speech. Nothing anywhere in any of the opinions reference “unqualified” applicants being admitted. The issue is whether individuals with lesser qualifications are being admitted solely because of their race: they are, it’s illegal, and that’s that. Biden’s an asshole to represent the ruling as he did.
Not that affirmative action hasn’t resulted in unqualified applicants being admitted. As I’ve related here before, when I was a quasi-assistant dean at Georgetown Law Center, we argued frequently over a remedial program, a mandatory one, for affirmative action IL’s who had to be taught college level (high school level, really) writing.
As someone quoted in the comments recently (and this is from memory, my memory): In no more than fifty years or so we’ve gone from high schools teaching Greek and Latin to colleges teaching remedial English.
I think you said it all in observing Biden’s an asshole. Worthy of a post, frankly.
Both Harvard’s response and Sotomayor’s dissent reveal a very disturbing view of the Equal Protection Clause and how affirmative action fits into it. AA was previously allowed under the EP clause as a temporary measure, but the references by liberals to “well-established precedent” show that they intend for it to be permanent. In this view, society is permanently and inherently racist, and equal protection under the law means that the government must decide, based on each individual’s race, what they are supposed to achieve in life, then help or hinder them until that is achieved.
Of course CA Governor Newsom criticized the Supreme Court decision:
https://www.gov.ca.gov/2023/06/29/scotus-affirmative-action/
Interesting comment since using racial discrimination for university admissions in California has been illegal ever since voters said so in 1996. And according to the Wiki page, that has actually increased minority admissions: https://en.wikipedia.org/wiki/1996_California_Proposition_209
He’s despicable. The “precedent” was one incomprehensible mixed decision at the beginning of the affirmative action push (Bakke) and another that said, well, this is unconstitutional but there will be no need for it in 25 years,” which was naive as well as legal gibberish.
When did lefties become so enamored of precedent. I thought they were for change? It’s analogous to how all of a sudden, they’re enthusiastic fans of the CIA, the FBI, the DOJ, the IRS and all these other governmental terrorist organizations they used to despise.
This is good:
“ (A dissenting opinion is generally not the best source of legal advice on how to comply with the majority opinion.)”
I still like this one better (from the Wisconsin Supreme Court):
A dissent is what the law is not.
-Jut
I would be interested in knowing how many black or Hispanic kids from the hood were admitted or were most of them from upper income families that promoted getting an education over sports and eschewed ghetto culture.
If all the prospects come from low income urban or rural settings exactly how much diversity can exist? It seems to me that every student except siblings come from diverse backgrounds unless those people making decisions are stereotyping all prospects.
Why not just get rid of the Civil Right Act so that universities can continue affirmative action?