The Volokh Conspiracy

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SG Files Brief in Harvard Affirmative Action Case, Teeing The Case For Review This Term

Guns, Abortion, and Affirmative Action in a single year. Why not?


In June, the Supreme Court CVSG'd Students for Fair Admission v. Harvard. At the time, I observed that the Court punted the case to the SG. Prelogar could have held onto the brief until March 2022. At that point, it would likely been too late to grant in the current term. But the SG filed the brief today. Now, the briefing is complete, and the case can be granted for the current term.

On the merits, the SG said review is not warranted, and the Court should not overrule Gruter.

Petitioner also contends (Pet. 21-36) that the Court should grant review to overrule Grutter v. Bollinger, 539 U.S. 306 (2003), and the Court's other precedents authorizing consideration of race in university admis-sions. But petitioner cannot justify that extraordinary step. In the view of the United States, Grutter's inter-pretation of equal-protection principles is correct, and all traditional stare decisis factors—including the sub-stantial reliance interests of colleges and universities around the Nation—strongly support adhering to Grut-ter. In any event, this case would be a poor vehicle for reconsidering Grutter. 

Sounds familiar.

Will the Justices want to grant now? I mean, with guns and abortion on the docket, why not add affirmative action? And don't forget the emergency redistricting litigation that may trickle up before the midterms. This term will simply get more insane. If history is any guide, the Court relisted Dobbs umpteen times. A few relists would put this the Harvard case safely into next term.

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  1. Josh, no comments about Biden's Supreme Court commission? It looks like the results are drastically different from that which you predicted.

  2. "The Court expects that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today." Grutter v. Bollinger

    Maybe just re-list for 7 more years, then there won't be any reliance issues.

    1. “CVSG”s in plain English

      But CVSG cases may well be some of the most interesting cases of the Term! Why? Because these cases are sufficiently important that the Court has decided to Call for the Views of the Solicitor General.

  3. It is hard for me to take seriously all of these arguments against affirmative action at Harvard when they give so many preferences to students that happen to be mostly white. From a recent article on the topic:

    In reality, 43% of Harvard’s white students are either recruited athletes, legacy students, on the dean’s interest list (meaning their parents have donated to the school) or children of faculty and staff (students admitted based on these criteria are referred to as ‘ALDCs’, which stands for ‘athletes’, ‘legacies’, ‘dean’s interest list’ and ‘children’ of Harvard employees). The kicker? Roughly three-quarters of these applicants would have been rejected if it weren’t for having rich or Harvard-connected parents or being an athlete.

    Maybe these lawsuits should focus more on ending legacy and deans list preferences before they worry so much about affirmative action.

    1. The legacy preferences are terrible, and speak to Harvard's real motivations in the admissions process. But I think they actually make the racial stuff even worse.

      What Harvard is trying to do, in all respects, is craft a class of donors. While ordinary shlubs have to ace all the tests and the grades to get in, rich people, celebrities, wealthy foreign students, the children of minority professionals, and a bunch of people with the sorts of "talents" that rich people have all get in. And they have the audacity to justify this on the grounds of diversity and remedying past injustice.

    2. The operative phrase here is "happen to be". Harvard is glad to admit blacks on these basis, too, if they apply.

      That said, I'd be glad to see them switch to entirely merit based admissions.

      But I see no reason why they have to drop discrimination for athletes before they stop racially discriminating, stupid as the former is.

    3. Exactly what do politicians kids getting into school based on their connecting have to do with racial discrimination? Some suburb kid who studied his ass off to get that perfect GPA deserves to be discriminated against because a Kennedy got in on his connections. In what fucked up world does that make sense? Seriously why the fuck would a non-racist care that at least some other kid that shares their skin color got in. The issue is that the kid with the good GPA was denied a slot because of his skin color.

      Also unlike Racial discrimination, legacy based discrimination isn't illegal. There is nothing for someone to sue under.

      1. They'd sue on the argument that legacies are disproportionately white, obviously, and supposedly this is because they previously discriminated racially, so legacy admissions are just perpetuating the effects of prior discrimination.

        I think this proves too much, but it's a fairly obvious approach.

        1. I have often wondered why legacy preferences couldn't be challenged as flat out discrimination based on "ancestry." The analogy would be to grandfather clauses in the late 1800s.

    4. I can see the pros and cons of legacy preferences, but there's a real disconnect in these comments--and most debate--about their parity with racial preferences.

      In general, legacy admits have grades and test scores that are above average for all admits, and far, far superior to the affirmative action admissions pool. They simply take spaces away from other, white, wealthy, highly qualified applicants--albeit whose parents went to other elite colleges.

      Virtually every minority applicant with qualifications remotely approaching a Harvard legacy admit is already getting admitted, probably at multiple Ivy League schools.

      The big losers here are Asian-Americans, who often present qualifications equal or superior to legacy applicants but, through no fault or deficiency of their own, are passed over in favor of both legacy and far less qualified minority candidates.

  4. Grutter - bad case at so many levels

    Trial court/district court found clear evidence of a quota. CA6 took UM pleadings as the new findings of fact de novo - unsurprisingly, the quota morphed into constitutional critical mass.

  5. " If history is any guide, the Court relisted Dobbs umpteen times. A few relists would put this the Harvard case safely into the next term."

    This is exactly why term limits for SCOTUS are a terrible idea.

    1. I'm not understanding your argument here.

      But can I just say based on your quote from the OP: God, Blackman is such a hack. We don't need to guess whether the Court relisted Dobbs based on "history." We can just check the Supreme Court's docket.

      (Answer: yes.)

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