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The Supreme Court’s affirmative action in admissions decision

Brian Leiter

It is here.  As expected, the Court finds that the Harvard and North Carolina admissions practices violate the Equal Protection Clause of the 14th Amendment.  More in a bit.

UPDATE (9:20 am CST):   It appears the Court did not overrule Grutter and did not reject the view that "diversity" is a compelling state interest.  Justice Thomas's summary of the key points of the majority opinion is useful:

First, to satisfy strict scrutiny, universities must be able to establish an actual link between racial discrimination [i.e., considering an applicant's race in admissions] and educational benefits. Second, those engaged in racial discrimination do not deserve deference with respect to their reasons for discriminating. Third, attempts to remedy past governmental discrimination must be closely tailored to address that particular past governmental discrimination.

In other words, while "diversity" is a permissible consideration, it will be very difficult if not impossible to justify racial preferences on its basis.  Universities cannot just say, "We know it has benefits," they will actually have to show what they are precisely and that there was no other way to achieve those benefits.  "Strict scrutiny" is the most demanding form of judicial scrutiny of state action, and almost no state action survives this test.  (Please email me if I'm missing something.  I'm still reading!) (UPDATE:  Dan Epps, a constitutional law scholar at Wash U/St. Louis, says the decision means affirmative action is unconstitutional, since, as he rightly replies to me in comments, almost nothing can survive strict scrutiny.)

MORE:   From C.J. Roberts's majority opinion (I bolded part of it):

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 1725–
1726, 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.”Cummingsv.Missouri, 4 Wall. 277, 325  (1867). A benefit to a student who overcame racial discrimination, for example, must be tied tothat student’scourage 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 tothat 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.

I'm opening comments for those who have more time to parse the whole opinion.  I have to do something else for the next few hours, but will try to approve comments as they come in.  Thank you.

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31 responses to “The Supreme Court’s affirmative action in admissions decision”

  1. Alex Guerrero

    The SCOTUS Affirmative Action opinion is such a mess, particularly for schools and programs going forward.

    As you note, the majority says this: “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. …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.”

    But, why not?

    Because the majority immediately then says this: “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.”

    Why can't schools just require an additional essay: "Answer the question, in 300 words, “How has your race, culture, nationality, class, sexual orientation, gender, religion, affected your opportunities and experiences, and affected your courage, determination, and motivation?”

    This adds an extra step for applicants and admissions committees. And it will definitely continue to benefit those with extensive college application advising.

    But what does SCOTUS mean that this can't be done through application essays? They assert this, but it seems pretty easy to do what they want. And, as the dissent points out, schools are already required to take race into account holistically, as part of the full picture of an applicant, in exactly this basic way. And unless SCOTUS comes to require them to use explicit test score and GPA metrics, which they chose not to do here, it will be impossible to show that schools weren't just taking into account individualized differences in courage, determination, motivation, or whatever super soft factors schools are appropriately able to use.

    It's just going to be a mess of litigation and unpredictability.

    Reply
  2. Scott Altman

    A key question is whether a school can use these essays to pursue the diversity goals the court rejects as the basis for current affirmative action programs. For example, can a school ask about overcoming adversity in the hope that weighing this as a factor will lead to a more diverse class? Can it track its success and tweak its use of this factor? The court's language suggests it can: it must make sure that assessments are individualized — looking at whether a specific person overcame adversity. If this individuation means that the school is not discriminating, then perhaps strict scrutiny will not apply.

    Some people interpret the case differently, suggesting that schools may not use these essays for the purpose of increasing diversity.

    Reply
  3. Jason Brennan

    I'd like to use this as a chance to ask a question, if that's ok.

    How would any of this actually get enforced? For instance, suppose Harvard responds by creating new admissions rules based on personal characteristics, like resilience and ability to overcome adversity. Suppose it turns out–big surprise!–that "black" and "Latino" students tend to be assigned high scores while "Asian" students receive low scores. Imagine admissions rates by race stay basically the same. What, if anything, could be done about that?

    Reply
  4. Bill Kennedy IV

    Nothing really substantial to say on my part but I always thought the focus on affirmative action at tier-1 schools was overdone. Most people (and I include Asians I knew in high school with 4.0 GPAs) can't get into those schools anyway so I always thought opponents of affirmative action should focus on middle-tier schools like Ohio State, Notre Dame, etc. The rest of the population has to go somewhere. I will say from personal experience that a WOC who argued with me over this issue was later convicted of faking a hate crime on campus. I have a friend who did benefit as an undergrad from affirmative action but she barely graduated which shows, as many have observed, that a lot of people getting in based on affirmative action are underprepared for college and (if they get that far) law school. I'm not saying non-beneficiaries are always college-ready either, but it is something to consider.

    Reply
  5. Rodrigo Zeidan

    This decision is even worse when we consider that the scientific evidence shows that affirmative action works as intended. For instance, our recent work summarizes the evidence of a system where ALL federal universities must have racial and income-based quotas for admissions. Most of the downsides that critics point out never materialize. It is available (ungated) here: https://arxiv.org/pdf/2304.13936.pdf. Full reference is: "Zeidan, R., de Almeida, S. L., Bó, I., & Lewis, N. (2023). Racial and income‐based affirmative action in higher education admissions: Lessons from the Brazilian experience. Journal of Economic Surveys"

    Reply
  6. Andrew Putman

    It might not be Harvard, but it seems pretty weird to regard Notre Dame (11.9% admissions rate for c/o 2027, ) as a "middle-tier" school where the "rest of the population" can go. Maybe back in the 1950's when it was filled with the kids of blue-collar Irish immigrants, but those days are long past.

    Reply
  7. Job candidate

    Are there any implications for affirmative action in hiring?

    Reply
  8. Puzzled

    I read your paper. It seems rather inapposite. Your paper seems to show that affirmative action is good for the benefitted students. I don't think Roberts's opinion ever called that into question. Rather, the difficulty he mentions is in measuring whether increased diversity is such an important component of academic excellence that affirmative action is a policy narrowly tailored to a compelling state interest.

    I don't know of any good evidence that diversity achieved through affirmative action improves the quality of universities and (correct me if I've missed something), your paper does not show that. It's rather orthogonal to the issues in Roberts's opinion.

    Reply
  9. Anonymous Lawyer

    This behavior is precisely what Harvard was doing to trigger this lawsuit. It assigned Asian students low personality scores, and as a result admitted vastly fewer Asian students. The answer to your question is that a federal district court will enjoin Harvard from using the methods it does to discriminate against Asian students, and if Harvard acts inconsistently with the injunction the University or its officers will be subject to contempt orders.

    Reply
  10. Anonymous Lawyer

    I think you are misreading the opinion. The additional essay you propose is exactly what the court said would be okay.

    What the court is saying is that the university may not, consistent with the Fourteenth Amendment, use the essay question as a smokescreen. It may use the essay question to ascertain relevant life experiences, but not to effectively reinstate a regime that systematically discounts Asian applicants.

    Imagine four applications with students whose grades are otherwise identical: Student A says "I am a latino from a poor neighborhood in the Heights and have been discriminated against, but the resilience I've gained from that experience will help me contribute to Harvard's community." Student B says, "I am a latino whose father is a wealthy industry leader in my south American homeland, and I have been educated in private boarding schools in the U.S. my whole life. I want to go to Harvard because it's prestigious." Student C says, "I grew up poor. My Korean, first-generation immigrant parents taught me the value of education, which is why I want to be admitted into Harvard." Student D says, "My Korean immigrant parents are rich. Nevertheless, I have had to overcome racial discrimination that has make me more resilient and compassionate to people that haven't grown up rich."

    If the school admits students A and B but not C D, that would be evidence that the essays are being illegally used to "establish . . . the regime" that Harvard already has in place: discount Asian applicants in favor of Black or latino applicants. Class isn't a good explanation, because A and C are both low-class. Overcoming discrimination isn't a good explanation, because A and D have both suffered it. By stipulation, grades and test scores aren't a good explanation, either. So it could raise an inference of racial discrimination. That's what the court says essays can't be used for.

    On the other hand, the Court says, school wouldn't have a problem admitting A and D because it values resilience from overcoming discrimination. It wouldn't have a problem admitting B and D if it valued rich students who may become donors. In an alternate scenario where C and D don't submit extra essays, the School wouldn't have a problem admitting A and B if it valued resilience and rich donors, notwithstanding that this would result in fewer Asian admitted students.

    Reply
  11. Kenneth Pike

    I hope it is not too immodest to note that I publicly predicted, in a Quillette piece 18 months ago, that the Roberts Court was unlikely to straightforwardly hold that affirmative action violates Equal Protection. I suggested that the SFFA cases would instead turn on whether UNC and Harvard had violated the diversity rationale laid out in the chain of precedent through Grutter. It appears I was correct.

    With respect to Professor Epps (and SCOTUSblog, which is currently running the headline "Supreme Court strikes down affirmative action programs in college admissions"), the claim that affirmative action is "now unconstitutional" seems dubious. If affirmative action is unconstitutional today, then it was already unconstitutional under Grutter, on which Roberts' opinion extensively relies. Rather, UNC and Harvard simply failed to meet the established threshold, possibly because they were trying to circumvent it while maintaining a veneer of plausible deniability.

    Whether "affirmative action" is now unconstitutional appears to depend on whether one regards affirmative action as necessarily a matter of reparative racial justice, or inclusive of programs aimed to reap the perceived academic benefits of assembling a diverse student body. Many people are skeptical of "diversity," and some of those would prefer reparative admissions programs. But SCOTUS has repeatedly rejected the reparative rationale as unconstitutional. It appears to do so again today, at least as dicta in footnote 8 (which observes that UNC and Harvard both disclaimed the reparative rationale as motivation for their admissions process, presumably because they could see the weight of precedent was against them there).

    Today's opinion might raise the difficulty level for universities that have been pursuing an effectively reparative social agenda under a pretext of "diversity" admissions, but I'm not sure the Court really even accomplishes that, Roberts' warning on personal essays notwithstanding. The above question regarding enforcement is extremely apt. One piece of evidence in the case against Harvard, that counsel worked to conceal from the public, was a joke sent from a federal college admissions regulator to the Harvard dean of admissions, who essentially laughed along. The joke negatively stereotyped Asian applicant personalities. If that's the kind of evidence that turns up in discovery, then maybe it's fair to say that the admissions program has a genuinely actionable discrimination problem, no matter how a university might want to characterize it as a beneficent one. Admissions officers who don't generate that kind of record seem likely to be in a much stronger position.

    So today's decision represents a(nother) loss for the reparations crowd, but only by affirming what the Court has already held: that race-based admissions are unconstitutional, and recruiting a diverse student body is not. Maybe now we can add that courts should entertain evidence of schools doing one while claiming it's the other? In practice, I expect very little to change, which is what one should expect from a decision affirming long-established precedent. We may see some further acceleration away from reliance on standardized testing, and admissions demographics may shift a little, but probably not to the extent seen in California after Prop 209 (simply because California is more demographically diverse than most of the nation). But most colleges and universities are already competing tooth and nail for a gradually dwindling applicant pool; these cases have only ever really been relevant to borderline applicants at elite institutions.

    The problem, rather, is that the status quo was already a mess of uncertainty (and litigation), so maintaining the status quo is perhaps not the success the majority might imagine it to be.

    Reply
  12. Brian Leiter

    Anonymous Lawyer, above, has already provided one answer: injunctions and contempt of court. But if schools design new procedures to produce racial diversity, plaintiffs will have to challenge those procedures in court. Violations of constitutional and/or civil rights entitle plaintiffs to monetary damages and often attorney fees. So that is the financial disincentive universities face if they do not comply with the decision. But as with unlawful discrimination in hiring, one can expect there will be non-compliance (or arguable non-compliance), as litigation is costly and it takes time for the courts to pass on these issues. Recall that Brown v. Board of Education ruled that segregated schools were unconstitutional in 1954, but it wasn't until the federal Department of Education conditioned federal monies on desegregation that widespread changes resulted more than a dozen years later. (To be clear, I am not equating Brown with today's decision [I think the "color-blind" reading of the Constitution is not really plausible], I am just using it to illustrate that what the court says the law is is one thing, and what it takes, and how long it takes, for behavior to fall in line with the court's ruling is quite another.)

    Reply
  13. Larry Franz

    It's clear why the 14th Amendment's equal protection clause was enacted, i.e. to protect black Americans from discrimination. But the notion of "equal protection" is vague. When a college admits someone based on their athletic prowess, are applicants with no athletic skills being equally protected? How about the children of alumni or university staff? Are applicants whose parents never went to college or don't work at the university in question equally protected?

    I was trying to answer this question for myself and the internet led me to the Civil Rights Act of 1964. It famously prohibits discrimination on the basis of race, color, religion, sex or national origin. That seems to be a clearer (not necessarily clear) rule to follow than the 14th Amendment.

    This is what Gorsuch says in his concurring opinion (p. 109): "… a clear rule emerges. Title VI prohibits a recipient of federal funds from intentionally treating one person worse than another similarly situated person because of his race, color, or national origin. It does not matter if the recipient can point to 'some other . . . factor' that contributed to its decision to disfavor that individual… It does not matter if the recipient discriminates in order to advance some further benign 'intention' or 'motivation'" (p. 109).

    And yet, the decision makes an exception for military academies, so the officer corps won't be so white: "in light of the potentially distinct interests that military academies may represent" (p. 30). So much for right-wing consistency.

    Reply
  14. Daniel Greco

    In response to Jason Brennan's question, perhaps we can expect that conservatives will become newly fond of the disparate impact doctrine?

    Reply
  15. Anonymous Lawyer

    Equal protection requires that similarly situated persons be treated similarly, absent a particularly compelling interest a policy is narrowly tailored to meet. A good athlete is not similarly situated to a bad athlete when it comes to admission into a university athletic program. But an Asian applicant to a university is similarly situated to a Black applicant to a university because (1) skin color as such is irrelevant to academic merit or the other things that make for a better university, and (2) skin color as such is not a helpful proxy for things that may be relevant to university admissions. For point (2), see pages 24-26 of the majority opinion (pages 34 – 36 of the .pdf pagination). For a full treatment, see D. Bernstein, Classified: The Untold Story of Racial Classification in America (2022).

    The Civil Rights Act makes explicit the "similarly situated" test that is implicit in the concept of equal protection.

    As to your final comment, the Court didn't make an exception for military academies. It left open the question for military academies, because no military academy was part of the case. If skin color as such is good for the nation's officer corps, AA at the academies may be upheld. If it isn't, it won't be. There's no inconsistency at all.

    Reply
  16. Ludovic Marsillach

    Anonymous Lawyer's analysis is persuasive, at least theoretically. A cursory scan of Yale, Harvard, Georgetown, and Notre Dame college, law, and masters programs suggests a not necessarily surprising pattern of students of Hispanic heritage (specifically from the US's only actual remaining colony not located in the Pacific) whose often distinct surnames are linked to historically haute bourgeois families from the territory in question. This multigenerational haute bourgeois Hispanic (geographically specific) surname pattern, in the context of Ivy League admissions, 'begs the question': assuming the aforesaid were good to very good, but not remarkable, students, did their "ethnicity" facilitate (pretextually) their admission, thereby in effect masking over statistical conditions that otherwise or when taken globally would belie actual determining conditions of great socioeconomic privilege?

    If the above scenario obtains, does it not suggest something like the concertation of elite institutional access to and by certain plutocratic groups, whose economic (adaptively neoliberal) retention and ongoing consolidation of historico-colonial (foundationally slavocratic) privileges are laundered by a cosmetically 'progressive' and non-elite legerdemain?

    To be sure, not that this is the only or principal use of affirmative action, rather the surmise is that within its overarching architecture, concerted pockets or envelopes of elite/plutocratic interest promotion are being statistically and politico-economically concealed and camouflaged into ostensibly opposite purposes and hence outcomes.

    Reply
  17. Alex Guerrero

    Anonymous Lawyer, but that is exactly my point.

    It is also why I think the suggestion that this is "the death of affirmative action in higher education" framing in much of the press seems completely wrong. Grutter wasn't overturned, schools can still use a holistic approach, the majority rejected the SFFA suggestion that schools be required to use "race neutral" means such as using only test scores and grades, or just admitting the top X% of high school students based on high school grades. And it will be easy for students to just explain in their essays how race and their experiences relating to race have affected their motivation, determination, courage, etc.

    It will also be nearly impossible to prove violations, both because it would require combing through hundreds of personal essays, and because no student will write the "I am a Latino whose father is a wealthy industry leader in my South American homeland, and I have been educated in private boarding schools in the U.S. my whole life. I want to go to Harvard because it's prestigious" essay. A tiny bit of coaching and admissions committees will be inundated with plenty of accounts of how race has required a very particular individual to become resilient, more motivated, determined, courageous, etc.

    So, this looks to me to be a strategically savvy CJ Roberts "death in name only" soft end of affirmative action approach. Practically speaking, it will mean a lot more work for admissions committees, and more advantages to those who can afford admissions advice and coaching, but I doubt it moves the needle much at all in terms of affecting the %s of various minority groups admitted to Ivy League schools. Maybe it will affect the year-to-year consistency along racial lines, as that seems to be a potential red flag. But that will just mean 14% one year and 11% the next and 16% the next and 13% the next. And as Daniel Greco suggested, I expect we will now see the anti-affirmative action crusaders become super into disparate impact analyses. But those will be impossible in this context, in which there are a million factors going into an extensive holistic evaluation.

    Reply
  18. Bill Edmundson

    Matt Breunig's analysis cuts to the quick (as usual), and quickly: https://www.peoplespolicyproject.org/2023/06/29/race-conscious-admissions-are-on-stronger-footing-than-ever/

    Reply
  19. Paul Weithman

    I have found the comments very instructive, so I'm grateful to everyone who has taken the time to contribute to this thread. I do have what is probably a stupid question about cases like that in Anonymous Lawyer's response to Alex Guerrero (comment(10) above), though perhaps contributors other than Anonymous Lawyer can answer it.

    Anonymous Lawyer wrote:

    "If the school admits students A and B but not C D, that would be evidence that the essays are being illegally used to "establish . . . the regime" that Harvard already has in place: discount Asian applicants in favor of Black or latino applicants. .. So it could raise an inference of racial discrimination. That's what the court says essays can't be used for."

    For an applicant successfully to sue on grounds of racial discrimination in such a case, wouldn't s/he have to gain access to the admissions essays written by successful applicants? Is that the sort of thing that plaintiffs in discrimination suits can get? It's hard to believe that they get the admissions records of specific students like A and B, but perhaps they can. More generally, what can plaintiffs force college admissions office to turn over if they want to prove discrimination?

    Reply
  20. Fritz Allhoff

    Isn't the other practical issue here that *Grutter* said affirmative action should be unnecessary in 25 years (2003 + 25 = 2028). And so that "holding" (is it dicta?) already puts a time limit on how far any of this can go on for, as CJ Roberts says. Affirmative action wasn't meant to go on indefinitely, but was meant to sunset in due course.

    Second, the majority opinion makes a big deal out of Harvard and UNC not being able to *measure* the depths of the problem, or, therefore, even be able to map out what "success" would look like. So that then becomes a tailoring issue that fails strict scrutiny since we haven't clearly articulated the problem or solution.

    The dissents make clear that minorities face many challenges still. No doubt. But I really don't read them as having strong responses to either the strict scrutiny analysis–which, obviously, is already a hard one to carry–or the "time out" response.

    Per Alex's comments, yeah, a lot of this might just show up, in a different form, on personal statements. Or Jason's point that those mission statements might become "pretextual" (my word, not his) to track race. But I probably disagree with Alex that this is hard to implement–to the contrary, I think it's easier just to strike race as a criterion than to try to figure out what it means (as a "diversity bonus").

    All that said, I went to law school at UM within 10 years of *Grutter*, and the effect of that holding on diversity was readily apparent.

    Reply
  21. Kenny Easwaran

    That's interesting that the exception Roberts notes basically says that "diversity statements" are fine, as long as they're the sort of thing that everyone could conceivably write, and could demonstrate individual merit, rather than a smokescreen to just ask about the person's own race.

    Reply
  22. Anonymous Lawyer

    To reply to a few comments:

    To Alex Guerrero:
    I now think we are on a closer ground than I thought we were. I misinterpreted your initial comment to say that the Court’s opinion was internally inconsistent (“you can use essays but you can’t use essays”), but it seems you meant that it’s merely a practically toothless warning because it would be so easy to work around (“you can use essays to consider race-influenced experiences, but you better not use them to consider race as such!”). I agree in large part with your latter point, sorry for any added confusion or misreading on my part.
    I guess the question will be whether universities will try as hard as possible to continue to discriminate on the basis of race as such rather than look for creative ways to account for things race is supposed to be a proxy for: class, overcoming personal animus or adversity, generational wealth, etc. I hope that universities take the latter tack seriously instead of the current, clunky race categories. Certainly those are better ways to achieve real “diversity” to the extent that makes for a better student body. Schools could also end legacy admissions or niche athletics recruiting, but I suspect many won’t do so because money matters most.

    To Paul Weithman:
    The plaintiffs in these cases were advocacy groups for Asian college applicants who were rejected from the schools. It takes a long time to pur together a case where you have a reasonable basis to allege violations pre-discovery. So it would certainly be harder to sue under these theories. But if the admissions data doesn’t change at all and the only new university policy is the essays, that may indicate impermissible evasion of the ruling. Here, discovery revealed some really egregious stuff: a Harvard admissions dean writing a fake rejection letters that mocked asian applicants, damning emails from UNC employees, etc. Violations at private universities may be easier to find by using public records requests on emails from admissions staff. But the cases would certainly be hard to bring. The question is how close to the line the universities will be willing to walk or risk an expensive and embarrassing lawsuit.

    To Fritz Allhoff:

    In my view, the Grutter 25-year line was dicta. I think it’s more of a rhetorical move than anything else. But it’s certainly embarrassing that the universities seem not to have read the tea leaves on this to prepare different admissions strategies in advance, in light of the court’s rightward shift.

    Reply
  23. LFC

    Without having yet read every word of all the SCOTUS opinions, I'd like to make a point or two that I'm not sure have been made yet.

    The Roberts opinion makes clear that one of the impermissible (in the majority's view) aspects of the Harvard and UNC admissions schemes is that they engage in racial "stereotyping" — they assume, in effect, that all Black students or Hispanic students likely have certain views or perspectives or opinions by virtue of their race.

    So in that context, Roberts's caution "don't use application essays to reinstate the invalidated admissions programs" probably means (though he doesn't say this explicitly): (1) do *not* ask all applicants a question about how their race has affected their life; rather, let the applicant discuss that in the personal essay if he/she chooses to do so; (2) do not simply take at face value a general assertion that "my being Black [or Hispanic] meant that I had to overcome adversity" — rather, only give credence to *specific* examples; (3) in considering (2), do not automatically give a race-based discussion of overcoming adversity more weight than a non-race-based essay about overcoming adversity.

    Even a cursory look at the majority opinion makes clear that what upset them (in part) was the evidence that Harvard was admitting almost the same percentage of minority students year after year over a recent ten-year period or so. (They reproduced a chart taken, I think, from SFFA's brief.) So one way of telling if Harvard and UNC are complying with the decision will be if those percentages start to vary within a wider band. If they don't, the plaintiffs will be back in court claiming non-compliance.

    If Harvard were to eliminate legacy and "development" preferences (i.e. for children of likely or established large donors), esp. the legacy pref., it would give itself more flexibility to comply with the decision. But esp. since it's unlikely to do that, it will have to start paying considerably more attention to non-racial factors that promote diversity, e.g., more actively seeking out more low-income applicants and more applicants from rural areas and small towns.

    The letter and the spirit of the Roberts opinion, despite its relative brevity, are fairly clear: universities cannot give determinative "tips" to candidates because of their race. If they want to keep the goal of a racially and otherwise diverse class, they're going to have to achieve that goal by other means.

    If Harvard makes a genuine effort to comply with the decision rather than trying to come up with clever ways to circumvent it, the result could be, as Richard Kahlenberg suggested on the NewsHour, a class that is more socio-economically diverse than the current Harvard classes, and that increased socio-economic diversity will likely translate, if not immediately then within a few years, into a class that is also quite racially diverse, even if the racial percentages vary more from year to year than under the invalidated program. If Harvard and other universities' administrators and admissions offices focus more of their attention on socio-economic diversity than they have up to now, that will be a beneficial result of the Court's decision.

    Reply
  24. atina knowles

    Indeed, if one considers Rutgers' and NYU's philosophy programs, Harvard University ought to be classified as "middle-tier" school.

    Reply
  25. David Wallace

    Most of the focus here is, understandably, on undergraduate admissions. But I would have thought the consequences will be most visible to faculty (at least those at R1s) at the graduate level. Whenever I have done graduate admissions in the US, overall cohort diversity on race/gender lines has always been a major part of the process. When I explored the legality of this, the answer has fairly consistently been that it’s okay because the Supreme Court regards it as ok to use race (and sex) as selection filters insofar as the goal is overall diversity. This ruling seems to remove that justification; certainly I expect that to have nontrivial implications in how Pitt does graduate admissions.

    Reply
  26. V. Alan White

    So individual declarations of the effects of racism that one has had to overcome are legitimate constitutionally as part of admission statements, but no recognitions of past pervasive racist effects that track into the present are legitimate on societal scales. That is to effectively declare that racism only legally exists at micro and not macro-levels. Who with any understanding of the history and culture of the US could think that is rational?

    Reply
  27. Michael Clune

    I have a question about money. I don't hear much about the financial impacts. How much will the plaintiffs in these cases be awarded? If–as seems not unlikely to a non-lawyer like myself–this decision will result in further lawsuits as some of these ambiguities are clarified–what kind of financial impact will this have on universities? My own university–with an endowment in the $3 billion as opposed to $30 billion range–may well have to take the financial risks into account in crafting policies.

    Reply
  28. Mohan Matthen

    It seems that this decision is not as extreme as some are reporting, and as some feared it would be. It prohibits Universities from giving preference to all people of a disadvantaged race simply because they are members of that race. But it permits giving preference to an individual of a disadvantaged race if s/he can show that she has, as an individual, been harmed by discrimination but has overcome the obstacles places in her/his way. That seems fair enough; it doesn't imply an injunction to be race-blind; it just draws a line around how you can use race, and the line is not demonstrably unfair.
    The only problem is that the decision doesn't oblige schools to take individual-harm-from-discrimination into account. David Wallace in comment 25 writes that the decision will have "non-trivial implications in how Pitt does graduate admissions." This might mean that Pitt will now move to purely grade- and writing sample based criteria. Or that it will become more contextual and individual-regarding in its use of race. As far as I can see, there is no onus against the former. Or am I wrong?

    Reply
  29. LFC

    I'd have to double-check this, but I don't think the plaintiffs were asking for monetary damages, nor do I think (again, I'd have to double-check) that they will be awarded attorneys' fees. (I'm not sure on the latter point.)

    But there could be financial implications for universities that don't have deep pockets (i.e., large endowments and/or large budgets for legal advice and litigation). First, re-tooling and revising their admissions programs to comply with the decision will cost something in time, person-hours, and, presumably, money. Second, they may ask in-house or outside counsel for advice on how to comply, and if it's outside legal advice, that will cost something. Third, if they should get involved in litigation about their admissions programs in the wake of this decision, that will definitely cost something.

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  30. Justin Fisher

    One plausible justification for affirmative action is that it helps to counteract past and present systemic racism, and I suspect that many fans of affirmative action are (secretly) at least as moved by this concern as they are by the (until recently) official rationale involving the value of diversity. Much of this systemic racism becomes apparent through scientific studies, but may not be immediately apparent to each affected student. E.g., a student who has spent their life in poorly funded schools may not be in a good position to compare their circumstance to more advantaged competitors, nor to explain how this unfortunate circumstance is a product of racism (especially if they live in a backwards state that studiously avoids teaching students about our nation's history of racism). Before this ruling, affirmative action programs could serve the purpose of helping to right some of these wrongs. I'm not sure how well a new system that requires each student to be able to articulate relevant issues in an essay will do at this. But it strikes me as deeply suspect to condition remediation of these harms upon each harmed child being able to explain how they've been harmed and why they're personally worthy of remediation. So even if some commenters here are right that this ruling serves only to change the way in which race-conscious admissions will be done in the future, I think many of us should worry that this is still a change for the worse.

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  31. Justin Brown

    Indeed. If an essay-based strategy is widely adopted or adopted by many of the most selective schools, we will just see the expensive college admissions consultant organizations coaching the most well off BIPOC applicants and probably a good number of white applicants on how to best craft such essays. Those from underfunded schools and without the resources to hire consultants will continue to be left in the dust.

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