Harvard Loses Affirmative Action Case

Oh, and the religious accommodations case landed too.

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In a contentious decision, the Supreme Court shuts down affirmative action in universities… or does it? How impactful, really, is the decision in Students for Fair Admissions v. Harvard? It’s complicated. After weeks (months? Years?) of anxious anticipation, Sarah and David dig into this term’s blockbuster decision:

-Is this a big deal?

-They justices can’t agree about the universe of facts

-Harvard’s response

-The arbitrariness of check boxes

-A different kind of affirmative action

-Justice Thomas’ concurrence (and legacy)

-Justice Sotomayor’s dissent

-…paved with good intentions.

-Wonder Bread Alito

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Comments (162)
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  1. Keith Schooley

    Two questions came to mind as I listened to the pod....
    1) Sarah discussed at length that "Asian" as a category is overbroad, contrasting (especially) people of Chinese and Iraqi ancestry. I have always been under the impression that "Asian" as commonly used is simply a euphemism for the now-considered-offensive "Oriental"--designating not people from Asia as a whole but people from Southeast Asia. Do people of Iraqi, Indian, central Russian, or Siberian ancestry self-identify as "Asian"? I have no doubt that "Asian" as a category, even if defined as Southeast Asian, is still overbroad, but the ambiguity clearly indicates the subjectivity and meaninglessness of these categories.
    2) The whole discussion of how to address past discrimination seemed to ignore the fact that, post-Grutter (as I understand it, and I'm not a lawyer and may well be mistaken), correcting for past discrimination is *not* any longer the rationale for affirmative action in higher education, but rather a concern for "diversity." I think the reason the conversation keeps lapsing back into correcting for past discrimination is that everyone knows that "diversity" is a fig leaf concealing something else. The most charitable "something else" imaginable is a genuine desire to address past and lingering discrimination. Certainly selecting for a bunch of rich kids with connections, most of whom have very similar political and social views, but who happen to look like a Benneton ad (to use images from both David and Sarah), is no noble goal. But it is hard to see how an elite education is ever going to be less than... elite. It appears that everyone wants to give a leg up to the disadvantaged, as long as it doesn't interfere with their own children's and family's prospects. It's hard to see what the answer is in the immediate present, but the long term answer cannot be an endless privileging of one group against another--that's what got us into this mess in the first place. So at some point, it's going to have to be Chief Justice Roberts's answer, "The way to stop discrimination on the basis of race is to stop discriminating on the basis of race."

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    Tault

    I think this was a correctly decided but, I must say, Adam Serwer in The Atlantic seems to have found a hole in Thomas’ originalist analysis:

    https://www.theatlantic.com/ideas/archive/2023/07/freedmen-race-neutral-supreme-court-affirmative-action-clarence-thomas/674641/

    Specifically concerning the assertion that “freedmen” and “blacks”, while heavily overlapping populations during Reconstruction, were not one and the same. I just re-listened to this ep and you both seem to make similar points that, on their face, all seem well-reasoned. Yet the historical record would seem to refute Thomas’ originalist interpretation (and, thereby, the ban implicit within 14A on such race-based programs) of “freedmen”. Would love to hear y’all grapple with this.

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  3. Pohl

    Good podcast; I should listen more often. “Fleeting . . . the years slip by.”

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  4. SZ

    I thought that the hosts went too easy on the dissents. (Maybe they will dive in with more detail on a subsequent episode?) I thought both were unmoored from the facts of the cases before them, and barely even attempted to defend AA on legal grounds (i.e., narrowly tailored to the compelling govt interest of diversity). Instead, they came across as political screeds. The 5th Column w/ Damon Root had a nice discussion of this point. Moynihan even made the remark, cautiously, that the dissents felt very "emotional." I agree, and felt same way about the dissent in Bruen (by Breyer, so not a gender thing!). The dissenting justices clearly care about the social consequences of these decisions, but that's not your job as a judge (Kevin Williamson has a good article making this argument about KBJ's dissent.) To be fair, there was some argument about an alternative interpretation of the 14th amendment being remedial and so not purely colorblind--but that really wasn't the thrust of either dissent, was it? (Also, what about that Civil Rights Act???)

    It recalls the quote: "“If the facts are against you, argue the law. If the law is against you, argue the facts. If the law and the facts are against you, pound the table and yell like hell." Many people find pounding the table about historical oppression/discrimination and modern racial inequality (as well as gun violence) to be convincing, and unfortunately, that appears to be how the case is being framed by a lot of the media. It's just that it is not relevant to the legal questions presented.

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    Saied

    I am an engineer and know little about negative return on investment degrees (see Bryan Caplan “The Case Against Education”). So I will focus on what I know. If you have not learned enough math and science to enter an engineering program in all likelihood, you will fail. You won’t have the fundamentals to get started and not having the fundamentals, you will struggle to keep up. If by some accident you manage to graduate, you will struggle to do good engineering. What it takes to be a good engineer is more or less the same as what it takes to succeed in school. Math, science, creativity, problem solving and dogged determination. The laws of physics don’t care (or know) about the color of your skin, the country of your ancestors, your tribe, size of your parents bank account, or a 100 other things that lawyers talk about. All that matters is what is between your two ears and how fast you can train and evolve it.

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  6. BenP

    Regarding how universities with an interest in racial diversity adjust their admissions policies going forward... it seems like the great majority won't have to. If elite universities indeed end up admitting fewer Black and Latino and Native American candidates than they used to, doesn't this imply more of these candidates end up going to other universities? I'm guessing that most students who apply to Harvard and would have gotten in before this decision but now don't will be getting enthusiastic offers from other universities the next tier below.

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    Rick Henderson

    I hope Sarah and her colleagues do some intrepid reporting of their own on the 303 Creative decision, as it seems that indeed the same-sex couple who were rejected by 303 never actually existed. Alliance for Defending Freedom is saying they don’t vet their clients to make sure they’re telling the truth … . WHAT? How did this lawsuit get a trial initially, let alone review by an appellate court and SCOTUS? What in the wild, wild world of sports is going on here?

    https://www.cnn.com/2023/06/30/politics/colorado-web-designer-court-filings/index.html

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      WilliamJ

      Yeah, someone did. The lawsuit was preemptive, based on Colorado's policies, not based on a complaint, real or otherwise. The plaintiffs referenced a request lodged in the Contact form on their website, but didn't rely on it as part of their suit. The contact, which it seems they believed was genuine, may not have been. Sounded like it wasn't material to the case in any regards, but a fair question, of course.

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        Rick Henderson

        Thanks. It’s puzzling because you think courts are asked to settle a dispute involving a party claiming the need to redress an actual injury rather than a contrived (but easily imagined) one. Then again, I’m not a lawyer.

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          WilliamJ

          It did seem odd - maybe Sarah can address when preemptive suits are considered permissible...

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    Ben Connelly

    The reason Nigerian immigrants are always used is that they are the single highest-earning immigrant population by national origin. Higher than Japanese immigrants, Indian immigrants, Swiss immigrants, English immigrants, German immigrants, Chinese immigrants, etc.

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  9. Bobby D

    It seems that the message here is that efforts to have a diverse student body should not be so block-headed as what Harvard and UNC employed. I’m fine with that.

    That said, I do think it’s time to move away from the notion that tests are an accurate measure of merit. I’d favor a holistic approach.

    That said, I don’t feel sorry for the Asians. I park between two Chinese guys in my condo parking garage. One drives a Bugatti and the other drives a Mercedes G Wagon. Trust me. The East Asians are doing fine in this country.

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    1. Cadmium111

      The notion that tests are currently used as an accurate measure of merit by themselves is a straw man. Except in a tiny number of cases (e.g. NYC magnet schools) universities use essays, recommendation letters, interviews, and GPAs in addition to tests in their holistic admissions process. Be specific - where do you see an over reliance on tests?

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    WBrisky

    A couple of thoughts about the Harvard case:
    1. I have trouble with programs designed to remedy discrimination against person A by person B, with a program designed to help person C by hurting person D simply because A and C are of one race and B and D are another. If we are all Americans, we should all have the same rights and obligations unaffected by race.
    2. It does make sense to me that a person raised in a decent neighborhood with little crime or drugs, parents who care and teach hard work and the importance of education, and decent schools would have a leg up over those raised in a different sort of neighborhood, and that the latter might deserve a boost whether or not there was discrimination of any kind involved. David talks about inherited wealth, but it seems to me the inheritance is more cultural than it is financial. But it is real.
    3. As a remedy which acts as a boost but not a detriment, may I suggest the following. The college has a separate program where it accepts top students from the least well-performing high schools and gives them a year or 18 months of remedial training at the college, outside their neighborhoods, in decent, crime free conditions designed to help this group to the point they can compete on objective criteria against the next younger age cohort. Those receiving this additional training who have the basic intelligence and, with this extra training, the ability to compete on the same objective criteria, get in. If after a year or 18 months any who have not caught up, will likely not be able to do so in four years of college and will always be behind. They would be helped to attend a less academically demanding school competing against people of similar ability.
    This is race neutral, focuses on remedying the factors which actually hold back some students, and will likely boost minority enrollment with students who can compete rather than tokens.

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