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Will SCOTUS Can College Affirmative Action?
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Will SCOTUS Can College Affirmative Action?

'I don’t detect much hunger among the conservative majority for some kind of middle-of-the-road resolution.'

Happy Wednesday! We joked recently about a rash of cheating scandals hitting niche sports. Just when we thought we were out of the woods: It seems cheating allegations have divided the professional cornhole community after revelations that players boil, sand, and hammer, or soak  their beanbags in vinegar in pursuit of a lighter, slicker toss.

“I think it’s funny that anyone believed it would be all friendships and rose petals forever in cornhole,” one aficionado commented. “Now the dirty underbelly is being exposed.”

Quick Hits: Today’s Top Stories

  • Saudi Arabia has reportedly shared intelligence with the United States that suggests Iran plans to attack targets in the kingdom and an Iraqi city where U.S. troops are based, putting U.S., Saudi, and neighboring states’ militaries on higher alert. Saudi officials said Iran planned the attacks to distract from internal protests sparked by the September death in police custody of Mahsa Amini, a 22-year-old woman detained for allegedly violating the country’s religious dress code.
  • Prosecutors allege the man who attacked Paul Pelosi in his home last week also planned to target “a local professor, several prominent state and federal politicians, and relatives of those state and federal politicians” and that he told police he planned to hold House Speaker Nancy Pelosi—whom he viewed as the “leader of the pack” of the Democratic Party—hostage and break her kneecaps if she “lied” to him. The attacker on Tuesday pled not guilty to state charges including attempted murder and is being held without bail ahead of trial. He also faces federal charges, including assault and attempted kidnapping. U.S. Capitol Police reportedly have surveillance video of the invasion of Pelosi’s home, but didn’t notice the break in among the department’s 1,800 monitoring cameras until an officer spotted police lights flashing in a video feed.
  • Outgoing Brazilian President Jair Bolsonaro did not concede in his first speech since losing a runoff election to Luiz Inácio Lula da Silva on Sunday, but he didn’t contest the election results either—and his chief of staff Ciro Nogueira said he was authorized to work with Lula’s transition team. Bolsonaro supporters have been protesting the results, and Brazil’s highway police said Tuesday demonstrators had blocked roads in 267 locations.
  • Pfizer announced Tuesday that, in a clinical trial, its vaccine for respiratory syncytial virus (RSV)—which kills 100 to 300 children in the United States each year and hospitalizes nearly 60,000—was 69 percent effective at preventing severe RSV cases in babies under six months old. The shot is delivered to women during pregnancy, ensuring newborns have antibodies upon birth. Pfizer will seek approval from the Food and Drug Administration and Centers for Disease Control and Prevention, and—if that approval is granted—the vaccine could be on the market as soon as next fall.
  • With about 84 percent of the vote counted Wednesday morning, Benjamin Netanyahu’s right-wing alliance appeared likely to win a narrow majority in Israel’s fifth election in less than four years, which saw the highest voter turnout in decades. Exit polls also showed the extreme right-wing Religious Zionism/Otzma Yehudit party—known for harsh stances against Israeli-Arabs—winning as many as 15 seats, which would give the once-fringe party a powerful role in a Netanyahu-led governing coalition.
  • Despite the Federal Reserve’s best efforts, the U.S. labor market remained tight last month, with the Bureau of Labor Statistics reporting Tuesday there were 10.7 million job openings in the United States at the end of September—up from 10.3 million one month earlier. The quits rate—the percentage of workers who quit their job during the month—held steady at 2.7 percent month-over-month, and the number of layoffs and discharges ticked down slightly from 1.5 million to 1.3 million.
  • The University of Florida’s trustees voted unanimously on Tuesday to select Sen. Ben Sasse of Nebraska as the school’s next president despite pushback from some students and faculty over his politics. The Republican senator previously ran a small Christian university in Nebraska and taught at the University of Texas at Austin. He’s expected to accept the job and resign from the Senate in December, subject to approval from the university’s board of governors. Under Nebraska law, the state’s governor will appoint a replacement for Sasse, and a special election will fill the seat in 2024.

Affirmative Action on the Ropes

The facade of the U.S. Supreme Court. (Photo by Liu Jie / Xinhua via Getty Images)

When the Supreme Court weighed in on the use of affirmative action at University of Michigan Law School back in 2003, it narrowly held that the practice could continue “to further a compelling interest in obtaining the educational benefits that flow from a diverse student body.” But writing for the 5-4 majority, Justice Sandra Day O’Connor seemed to put an expiration date on the ruling: “We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.”

She may have been off by five years.

Affirmative action was back before a very different Supreme Court on Monday, as justices—all but Clarence Thomas new to the body since the aforementioned Grutter v. Bollinger was decided—heard oral arguments in two cases brought by Students for Fair Admissions (SFFA): one against the president and fellows of Harvard College, one against the University of North Carolina (UNC). At issue? Whether using race as a factor in admissions violates Title VI of the Civil Rights Act and—in UNC’s case—the 14th Amendment’s equal protection clause. 

A majority of the court seemed inclined to believe it does—and that it’s time all schools move to race-neutral alternatives. “I don’t see how you can say that the program will ever end,” Chief Justice John Roberts said in a testy exchange with Ryan Park, North Carolina’s solicitor general tasked with defending his state’s university. “Your position is that race matters because it’s necessary for diversity, which is necessary for the sort of education you want. It’s not going to stop mattering at some particular point. You’re always going to have to look at race.” When asked, Park was unable to provide specific criteria that would render race-conscious measures unnecessary.

SFFA—a nonprofit group seeking to end what it considers “unfair, unnecessary, and unconstitutional” racial classifications and preferences in college admissions—first filed its lawsuits in 2014 on behalf of Asian applicants it alleged were being systematically and intentionally discriminated against in the admissions process. 

Grutter assumed that race would only be a plus. But race is a minus for Asians, a group that continues to face immense racial discrimination in this country,” Cameron Norris—one of SFFA’s attorneys—argued Monday. “What Harvard is doing to Asians, like what it was doing to Jews in the 1920s, is shameful, but it’s a predictable result of letting universities use race in highly subjective processes.”

Elite institutions of higher education like Harvard and UNC tend to describe their admissions processes as “holistic,” meaning they look at a number of factors—not just grade point averages and standardized test scores—when deciding whether to accept an applicant. “What the Harvard admissions committee is attempting to do,” school lawyer Seth Waxman said Monday, “is to bring together a class of 1600 matriculants who—in the judgment of the admissions committee and the faculty that oversees it—are best able to learn from and teach each other as an organic whole.”

One of those factors is race—and the schools are arguing they should be allowed to keep it that way. “A blanket ban on race-conscious admissions would cause racial diversity to plummet at many of our nation’s leading educational institutions,” Solicitor General Elizabeth Prelogar told the justices. “And because college is the training ground for America’s future leaders, the negative consequences would have reverberations throughout just about every important institution in America.”

By SFFA’s own calculations, swapping Harvard’s current admissions process to a race-neutral approach would, in the immediate term, shrink the school’s black population from approximately 14 percent to 10 percent—but real-world data appear to be mixed. Nine states—Arizona, California, Florida, Idaho, Michigan, Nebraska, New Hampshire, Oklahoma, and Washington—have already banned affirmative action from being used in admissions at public universities, and two of those public universities—of Michigan and of California—filed amicus briefs indicating they’ve struggled to maintain the number of black students to which they’d become accustomed. Michigan, for example, claimed black undergraduate enrollment has plunged from 7.03 percent in 2006 to 3.92 percent in 2021, even as the total percentage of college-aged African Americans in Michigan increased from 16 to 19 percent.

But a brief from Oklahoma’s attorney general—which attorneys general from 12 other conservative states joined—argued the University of Oklahoma “remains just as diverse today (if not more so) than it was when Oklahoma banned affirmative action in 2012.” A decade-old report from The Century Foundation—a self-described progressive think tank that pursues “economic, racial, gender, and disability equity in education”—found that Hispanic and black enrollment at public universities generally bounced back after experiencing short-term drops upon affirmative action being prohibited.

As interesting as those data are, the question before the court this term is not whether race-based processes are righteous, but whether they are legal. And because slots at these schools are limited, there’s a compelling case to be made that its zero-sum nature of admissions is racially discriminatory. “One of the problems with Grutter is that it suggests that this is somehow costless,” Patrick Strawbridge, SFFA’s other lawyer, told the court. In his latest edition of Original Jurisdictions, legal commentator David Lat—an Asian man who attended Harvard and Yale—laid out why that’s not the case:

1. There are a limited number of spots in the Harvard and UNC classes.

2. Giving an underrepresented minority (“URM”) candidate a “plus” because of their race is functionally the same as giving a non-URM candidate a “minus.”

3. Even acknowledging that a plethora of factors are considered under “holistic” admissions, the racial “plus” or “minus” will be dispositive in some number of cases—i.e., a candidate who wouldn’t have been admitted but for their race will get accepted, and a candidate who would have been admitted but for their race will get rejected.

4. The rejected candidate has been discriminated against “on the ground of race,” within the meaning of Title VI. And if the university is a state school like UNC, the rejected candidate has been denied the “equal protection of the laws,” too.

Harvard’s treatment of Asian applicants in this regard is particularly distasteful. In order to achieve its desired racial balance, SFFA alleged after analyzing tens of thousands of student records, Harvard’s admissions office systematically downgraded Asian applicants’ “personality score,” consistently rating them lower on traits like “courage,” “kindness,” “likability,” and being “widely respected.”

Waxman was adamant that “personality score” was not used as the basis for any admissions decisions and had “no effect” on applicant outcomes. “Then why do you do it?” Justice Samuel Alito asked. “If it doesn’t matter, why do you do it?”

That question—and Waxman’s inability to provide an answer beyond “triage”—was representative of a theme that came up a lot on Monday. Conservative justices devoted a significant amount of time in Monday’s oral arguments—which lasted an exceptionally long five hours—to what they saw as an inherent tension in the schools’ reasoning: that an applicant’s race is practically never a deciding factor for admissions officers because the process considers so many different factors, but those same admissions officers wouldn’t be able to put together a diverse class if they weren’t allowed to consider an applicant’s race. 

“What is the justification for lumping together students whose families came from China with students whose families came from Afghanistan?” Justice Samuel Alito asked Park, the lawyer for UNC. “What do they have in common?”

“I agree that that would be a strange rule,” Park replied.

“Well, then why do you have them check a box that [says], ‘I’m Asian’?” Alito asked. “What do you learn from the mere checking of the box?”

Requiring schools to remove such checkboxes is a potential outcome of these cases, but aspiring students would still have plenty of opportunities to incorporate race into their applications if they so choose. Asked by Justice Roberts if he’d have any objection to schools taking into consideration an application essay about the student confronting racial discrimination, Norris—one of SFFA’s lawyers—said “absolutely not.” This, Lat writes, would “prevent underrepresented-minority candidates who have not suffered significant racial discrimination from ‘free riding’ on the experiences of those who have.”

The Supreme Court could theoretically side with Harvard and UNC, or rule for SFFA in a way that leaves Grutter partially or entirely intact. But it’s unlikely. “I was surprised at how solid the justices seemed to be in their opposition to racial preferences,” Lat told The Dispatch, adding that Monday’s session reminded him of oral arguments in the Dobbs case last year. “I don’t detect much hunger among the conservative majority for some kind of middle-of-the-road resolution.”

“I would be surprised if affirmative action survives.”

Worth Your Time

  • A cute quirk shared by voters in the United States and the United Kingdom—and doubtless plenty of other places—is the desire for contradictory outcomes. “In a recent poll by Ipsos for The Economist, British voters agreed by a large margin that economic growth does more good than harm,” Janan Ganesh writes in the Financial Times. “They just opposed almost every single thing that might bring it about, that’s all. Immigration, housebuilding, spending on science as opposed to pensions: all got a ‘no.’ And these questions weren’t sly or obscurely framed. Respondents were confronted with the trade-offs in explicit fashion: strictly limit immigration even if it harms growth, was one proposition.” Ganesh argues that, given these vagaries, too quickly blaming German leaders for relying on Russian energy or Republican lawmakers and candidates for embracing election denialism absolves and ignores the voters demanding the bad policy supply. “Much of the governing class is unserious,” he writes. “But what is anyone meant to do for an electorate that both obstructs growth and resents its absence? What about the governed class?”
  • We linked to a ProPublica/Vanity Fair investigation on Monday that examined Wuhan Institute of Virology documents and concluded the lab had safety problems in late 2019 which required attention from high-level Chinese officials, lending support to the theory that SARS-CoV-2 originally leaked from a lab. It very well might have—we may never know with 100 percent certainty—but we wanted to make sure you’re aware of the other side of the debate and criticism the investigation has faced. Mandarin speakers have argued that mistranslations of the documents cited in the article exaggerate the safety problems and make it sound like they occurred closer to the outbreak of COVID-19 than they did, while many virologists and evolutionary biologists are convinced a jump from animals is far more likely than a lab leak and have questioned the investigation’s scientific analysis. “ProPublica appeared to place its reputation at stake with an article that elevates a partisan view of a public health crisis over the work of experienced scientists,” Michael Hiltzik argued in the Los Angeles Times. “That’s not what one has come to expect from the organization.”

Presented Without Comment

Also Presented Without Comment

Toeing the Company Line

  • With Election Night now just six days away, this week’s Dispatch Live (🔒) featured Sarah, Steve, Andrew, Audrey, Price, and Chris Stirewalt breaking down the latest news from key races across the country. Members can catch a replay—either with video or audio only—by clicking here.
  • In Tuesday’s first Boiling Frogs (🔒), Nick traces the tired pattern of partisan actors playing defense for their team, most recently on display after the attack on Paul Pelosi. “America is never more hopeless than in the hours after a lunatic goes postal,” he writes. “The first wave of hopelessness hits when you learn the details, the second when left and right come out of their corners throwing roundhouses in hopes of making those details as damning or innocuous for their side as circumstances require.”
  • And in Tuesday’s second Boiling Frogs (🔒), Nick provides a midterms vibe check: The red tsunami might be back on. What does that mean for right-wing election truthers? “To mount an effective ‘Stop the Steal 2.0’ campaign, Trump needs multiple narrow Republican losses in key races, ideally by candidates who were expected to win,” Nick argues. “And as we’ve seen from the polling above, that’s just not a likely outcome to the midterms anymore.”
  • Since Nick had already tackled the partisan reactions to the Pelosi attack, David’s latest French Press (🔒) focuses on why vice is so often a celebrated quality in today’s politics. All it takes is believing your enemy will destroy America—and that you’re losing—for cruelty to win, David argues. Defeating cruelty requires changing the catastrophic thinking that motivates it.
  • While America debates who’s to blame for rising political violence, members of Congress are shelling out for extra security as the Capitol Police struggle to keep up with ballooning numbers of threats in recent years. Check out Haley’s latest Uphill for more.
  • Here’s something fun: About 80 percent of Democrats and Republicans think the other party poses a threat that, unless stopped, will destroy America as we know it, per a recent NBC News survey. This week’s Sweep (🔒) dives into the polling, as well as the 2024 congressional map outlook, who’s riding whose coattails in states with senate and gubernatorial elections, and openings for ticket-splitting. Plus: how power in the right-wing media landscape has shifted.
  • The Remnant returns to normalcy today as Chris Stirewalt joins Jonah for some of the rankest punditry ever recorded. How big will the coming red wave be? How will Dobbs influence the results? And what does the attack on Paul Pelosi reveal about our political climate?
  • On the site today, Audrey reports on the increasingly political nature of American school board elections, James Matthew Wilson writes about a Michigan ballot proposal that “would enshrine a vague and potentially limitless right to abortion in the state constitution,” and Jonah ponders why Vladimir Putin, despite his open hostility toward and contempt for the liberal West, continues to cloak his nationalist project in the liberal language of democracy, the rule of law, and rejection of racism.

Let Us Know

If you support affirmative action: Do you believe race-conscious policies should continue in perpetuity? Or do you foresee a time when they will eventually be unnecessary?

If you don’t support affirmative action: Do you accept the premise of Justice Roberts’ question, that specific stories of students confronting or overcoming racial discrimination would be worth consideration by admissions officers?

Declan Garvey is the executive editor at the Dispatch and is based in Washington, D.C. Prior to joining the company in 2019, he worked in public affairs at Hamilton Place Strategies and market research at Echelon Insights. When Declan is not assigning and editing pieces, he is probably watching a Cubs game, listening to podcasts on 3x speed, or trying a new recipe with his wife.

Esther Eaton is a former deputy editor of The Morning Dispatch.