The Volokh Conspiracy

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Affirmative Action

Supreme Court Takes Two Cases Challenging Racial Preferences in College Admissions

One involves racial preferences at Harvard, the other at the University of North Carolina at Chapel Hill.


This morning, the Supreme Court decided to hear two cases challenging racial preferences in university admissions: Students for Fair Admissions v. President & Fellows of Harvard and Students for Fair Admissions v. University of North Carolina. These will be the first Supreme Court cases involving affirmative action in higher education since Fisher v. University of Texas II (2016), a ruling I critiqued here.

Obviously, the Court's composition has gotten more conservative since then, which means the justices are likely to take a tougher line against racial preferences than in previous decisions. It is even possible that the Court will overrule Grutter v. Bollinger (2003), the decision in which the justices endorsed the "diversity" rationale for racial preferences in educational institutions (though it's also possible that the Court will subject such preferences to tighter scrutiny, without categorically forbidding them).

The Harvard case is also notable because it will be the first Supreme Court affirmative action case involving allegations that the school in question has specifically targeted Asian-Americans for discrimination. The plaintiffs in the case presented extensive evidence indicating that the university disfavors Asian applicants not only relative to some other racial minorities, but even as compared to whites. The issue of anti-Asian discrimination by various elite educational institutions has attracted increasing attention in recent years, and is far from limited to Harvard.

I have a forthcoming article about the Harvard case, which will be published on the NBC website later today or tomorrow. In that  piece, I address the issues raised in greater detail. I will link to it here when it is up.

NOTE: My wife, Alison Somin, has coauthored an amicus brief urging the Supreme Court to hear the Harvard case, and is also co-counsel for the plaintiffs in a case challenging anti-Asian discrimination at the Thomas Jefferson High School for Science and Technology, in Fairfax, Virginia.

UPDATE: My NBC News article has been posted, and is now available here.

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  1. It's somewhat hilarious that, if the Court rules that racial discrimination in admissions is unconstitutional at public institutions, they're going to be accused of racism.

    Now we just need them to resume taking 2nd amendment cases. Coming up on 22 years now, unless I missed one.

    1. resume taking 2nd amendment cases. Coming up on 22 years now, unless I missed one.

      ? What year do you think it is now?

    2. "Now we just need them to resume taking 2nd amendment cases. Coming up on 22 years now, unless I missed one."

      Heller (2008) and McDonald (2010) don't count?

      1. We are also awaiting a decision on New York State Rifle & Pistol Association, Inc., et al., Petitioners v. Kevin P. Bruen, in His Official Capacity as Superintendent of New York State Police, et al. regarding "may issue" CCW permit schemes that require an applicant to show that they are at higher risk of harm than the general public in order to be granted a CCW permit.

        (My guess is that NY is not going to be jubilant about the decision when it comes down - perhaps in the cliff hanger season ending of SCOTUS OT 2021.)

      2. Sorry, 12, not 22.

      1. Cornwall Spaceport demonstrates efforts in the development of safe technologies demonstrate efforts Head of Spaceport Cornwall on Industry Development to Fight Climate Change - Orbital Today. Their help will be significant in the British market. Showing the right example of using green innovations, they will define the rules for the entire space sector.

    3. They took the New York State one, mooted it. They also sent back to lower courts that stun gun case in such a way as to essentially declare them unconstitutional, and what about that one that was just argued last year about "shall" vs "may" issue.

    4. Now we just need them to resume taking 2nd amendment cases. Coming up on 22 years now, unless I missed one.

      Setting aside the fact that the Supreme Court has a second amendment case on its docket right now, I'd be fascinated to see the math you're using here.

    5. Brett did you forget about NYRPC-2?

      That's a big one, at least if you live in NY, CT, NJ, RI, DL, MA, MD, CA, HI.

      1. Guess I did. I was overly focused on them allowing the earlier case to be mooted, and ignoring the 9th circuit abuses.

        1. As for the 9th Circuit, I saw a funny blog post on them and a gun case over at Of Arms and the Law:

          9th Circuit panel ruling on covid shutdowns of gun stores
          McDougal v. County of Ventura is the case. The ruling itself is nice, but the real amusement is in Judge VanDyke's concurrence in the opinion (which, as he notes, he also wrote).

          "But I write separately to make two additional points. The first is simply to predict what happens next. I'm not a prophet, but since this panel just enforced the Second Amendment, and this is the Ninth Circuit, this ruling will almost certainly face an en banc challenge. This prediction follows from the fact that this is always what happens when a three-judge panel upholds the Second Amendment in this circuit." "Our circuit has ruled on dozens of Second Amendment cases, and without fail has ultimately blessed every gun regulation challenged, so we shouldn't expect anything less here."

          "My second point is related to the first. As I've recently explained, our circuit can uphold any and every gun regulation because our current Second Amendment framework is exceptionally malleable and essentially equates to rational basis review....

          "it occurred to me that I might demonstrate the latter while assisting my hard-working colleagues with the former. Those who know our court well know that all of our judges are very busy and that it's a lot of work for any judge to call a panel decision en banc. A judge or group of judges must first write a call memo, and then, if the en banc call is successful, the en banc majority must write a new opinion. Since our court's Second Amendment intermediate scrutiny standard can reach any result one desires, I figure there is no reason why I shouldn't write an alternative draft opinion that will apply our test in a way more to the liking of the majority of our court. That way I can demonstrate just how easy it is to reach any desired conclusion under our current framework, and the majority of our court can get a jump-start on calling this case en banc. Sort of a win-win for everyone."

          1. There have been two posts here about that.

        2. Guess I did. I was overly focused on them allowing the earlier case to be mooted, and ignoring the 9th circuit abuses.

          Classic Brett Bellmore - so busy complaining that you missed them addressing your complaint.

    6. Good old Brett, where carefulness in positions is inversely related to confidence in same.

  2. It would be good to call it a racial discrimination case instead of using the term racial preference but good article.

    1. My Google search got me this definition of discrimination: "the unjust or prejudicial treatment of different categories of people or things, especially on the grounds of race, age, or sex."

      It's more than a bit of question begging to assume the first two adjectives is going on here.

      1. How about the second of the two adjectives?

          1. Fair enough, although referring to the case in terms of what's alleged is a pretty normal practice, and not question-begging.

            1. Haha, thought you had something there, didn't you? Hope you didn't plan on chicken tonight.

              1. "Haha, thought you had something there, didn't you?"

                Lol. So did you.

  3. It's helpful to understand some of the history behind college admissions.

    Way back in the prehistory, test scores (SATs for example) were the primary basis to determine if a person would get into a college- similar to how other countries have nationwide exams. However, too many Jewish people were getting into the selective (Ivy League) schools, so they went to a "holistic" model, that used test scores, but could also determine if you were the type of person who was a real "Harvard Man" (or Yale Man, or whatever). Of course, this allowed them to use factors like sports, or recommendations, or interviews, or any subjective factors they wanted to make sure preferences were given to people who were more like "them."

    Now, of course, we have an ever-increasing arms-race among the affluent and well-to-do when it comes to test scores (which can be raised to some extent with test prep and money) and holistic factors (such as sports, music, community service, travel abroad for causes, etc.). All of these holistic factors tend to advantage the "privileged" (as in the socio-economically privileged) who can afford the time and the money to give their kids these opportunities to the detriment of the those less well-off.

    After all, what looks better to a college? Taking the summer to help build houses in Costa Rica because you "care for the poor," or working at McDonald's because you are the poor?

    Allowing some race consciousness (aka, "diversity") is, at best, a poor proxy for what needs to be done- as others point out, often this doesn't help the people it needs to help, while adding advantages to people who don't need it. But Instead of engaging in the same tired arguments, it would be nice if people started to focus on the systemic issues that really are at play here.

    Also? These issues don't start at the college level. It's so frustrating to see people keep talking around what the real issues are. ..... not the VC is a place, any more, to discuss them.

    1. SAT prep isn't very good, according to studies. The ethnic group that does significantly better with SAT prep is Asian Americans because, unlike other ethnic groups, they tend to take SAT prep when they are already performing well. Other ethnic groups tend to take SAT prep because they are performing badly. In any case, the estimated boost to SAT scores after prep is <100 while Harvard apparently requires 250 more points for Asian Americans and whites. SAT scores are most closely correlated with intelligence and much less so with income, so if you want a measure that doesn't value income so much it would be better to stick with SAT scores and get rid of holistic admissions. If Harvard doesn't want to do that they could always use their existing mechanisms for figuring out how wealthy students are and rely on that instead of race, which further disadvantages recent Asian immigrants.

      1. gormadoc, do you suggest that recent Asian immigrants tend to be poor? If so, do you suppose that is true of the ones who send their children to Harvard? Do we know whether among Harvard applicants the Asian-descended applicants are more wealthy, or less wealthy, compared to other classes of applicants?

        1. Recent immigrants from most countries are poorer than natives here, particularly given the number of refugees from Asia over the last few decades. Holistic admission advantages the wealthy and Asians have to be much better, so I'd assume that they are more rich or score much better. AFAIK, no, but we also don't know the numbers who decide not to apply because they don't meet the elevated standard and who would generally be more poor.

          1. And that's even assuming that "holistic" admissions are honestly administered, rather than just being used as a way to obscure racial discrimination.

          2. " I'd assume that they are more rich or score much better. AFAIK, no, but "

            God bless the internet.

          3. I'm not sure what your point is here, but if you divide households into four groups, Asian-American, white non-Hispanic, Hispanic, and Black you find that Asians have by far the highest household income, more than double that of Blacks, whose income is only around 60% that of whites. Blacks are not all NBA stars and former Presidents.

            1. Talking about Asian immigrants makes that a bit different. While recent Indian and Japanese immigrants tend to be relatively well off, that doesn't apply to immigrants from other countries.

      2. There's some things that are questionable about what you stated, but I would simply note the following-

        A true test of aptitude should not be easy to "prep" for. The simple fact that people with time and money can gain ... is not a good thing. When people try and make arguments that seek to minimize the actual underlying problem, it always betrays a misunderstanding of what the issue is.

        Here, for example, it's pretty simple. Assuming that the increase is somewhat minimal (studies report differently, but it's less than what is promised), it is still substantial. Let's go with a 50 point difference in a score- if you're going from a 720 to a 770 in your math, you're suddenly opened up a lot of doors. If you're going from a 430 to a 520? Not so much.

        Which goes back to the original point- that people who can afford things, in time and money (whether it's SAT prep, or checking off the boxes for the holistic application) are overly advantaged by the admissions process.

        Now, if we really wanted to, we could truly devote our resources to making a nationwide entrance exam that measure aptitude and helped- something a lot of countries have. On the other hand, we already see that a lot of colleges are going away from even requiring SATs.

        Again, making this purely about race misses the issue. Yes, race is a part of the issue (as it always is in America), but what I think many people are missing is that prestigious schools have long used holistic admissions (and sometimes legacy admissions) to entrench the current structures- same as it has been since they were instituted to keep Jewish people out.

        1. "A true test of aptitude should not be easy to "prep" for."

          We say, "aptitude", but what's really meant is some combination of raw talent and diligence, and prepping demonstrates diligence. So it isn't really that bad if 'aptitude' tests are subject to prepping.

          1. Also aptitude doesn't matter if you never learned to read. Some basic knowledge level of reading, writing, and arithmetic is a actual meritocracy qualification for college.

            1. What is supposedly being measured here is the likelihood you will actually profit from the effort to educate you; They are, at least nominally, looking for who will get the most out of the educational experience. To a good degree, preparation and effort put in are substitutable for actual talent, so long as you have enough of it to have a decent chance of comprehending the material.

              At one extreme you might have a genius slacker who will succeed with minimal effort, at the other a person of moderate intelligence and staggering determination, and they're educationally equivalent.

              1. When you get down to brass tacks, it's merely an IQ test of those who passed high school, which is itself a test of sorts.

                In more honest times, we admitted this, and further, the reasoning was to protect potential students from attempting something that they wouldn't likely succeed at, and also protecting the university from admitting unqualified applicants who would take the slots from those who would succeed. The idea was, to give spots to the children of the poor who had the wherewithal to advance.

                These days, don't forget that public universities are also now operating on a pyramid scheme. They admit marginal students and students likely to fail, but those 1-2 years of student loans are necessary for the university's fiscal solvency.

                1. You might want to have a broader read of the history of the use of intelligence tests.

                  1. You're thinking of the misuse.

                    1. Lol, that's part of the history of use, *misuse,* hence a lot of the distrust of them!

                  2. Said history on IQ tests doesn't change what the initial purpose was behind standardized testing for college admissions. That's a guilt by association tactic.

                    Initially, the implementers thought it would get *more* diversity in college admissions, not maintain the status quo or make for less diversity, because the tests would be taken by poor blacks, as much as poor whites, etc. etc.

                    1. The bad past uses of practices doesn't color their future use? Do you generally think that way? For example, do you think that about gun control laws, eminent domain, etc?

                    2. Sorry to use the genetic fallacy, but anything from Inside Higher Ed on affirmative action must be taken with a truckload of salt, especially when it's explicitly written as an opinion piece. I'll trust the history I've read elsewhere.

                      And I wasn't supporting standardized tests, I'm actually on the fence. I was merely explaining their history. Things have swung back and forth on them. At one time they were specifically anti-racist, before the results they want didn't materialize, then they became racist.

                    3. "I'll trust the history I've read elsewhere."

                      Well, not to commit the genetic fallacy either (that's not how that works, btw), I've certainly learned to take your assertions with a truckload of salt (Biden's still obviously retarded, right?).

                      And your history of testing is, at best, not that simple and, at worst, just wrong. You've been sold a bill of goods here. Not the first time it seems...

                2. According to my kids, who have gone through the SATs in the last few years, it is much less of a pure IQ test than the version I took back in 1987 or so. Math in particular seems to be involve a lot more mathematical achievement (e.g. knowing basic trigonometry) than when I took it.

                  1. Yes, I hear that they've been degrading it as an aptitude test, because they didn't like what it was telling them. And tests aren't allowed to reveal unpleasant truths.

              2. "To a good degree, preparation and effort put in are substitutable for actual talent, so long as you have enough of it to have a decent chance of comprehending the material. "

                Huh, that must be why grades are better predictors!

                1. Undoubtedly. But GPAs have to be adjusted according to the institution they're from, and the classes taken, while the SAT and ACT are already standardized.

                  1. Did you read the link?

                    "the effect of GPAs was consistent across schools, unlike ACT scores"

                    1. Did you read this part of the linked story:

                      "Student[s] with a GPA under 1.5 had a 20% chance of graduating college, up to 80% for those with a GPA of 3.75 or higher, [b] once student background and college characteristics were taken into account[/b]."

                      Once you adjust for individual background and college characteristics, that conclusion becomes meaningless.

                      Any fair-minded person would say that you need to look at test scores in tandem with GPA. High GPA and low test scores indicates a non-rigorous HS. Low GPA and high test scores indicates a slacker student, or cheating. High GPA and high test scores indicates high intelligence and high achievement, and the opposite indicates the opposite.

                      Personally, I would value class rank higher than GPA in non-rigorous HS graduates. That, together with extracurriculars (not necessarily scholastic) tells you about someone's drive.

          2. It's not so much 'we' as the test makers and use it who say that. For some reason they don't say 'diligence,' why do you suppose that's so?

      3. You forgot to mention the hereditary path of legacies whihc even today make up about 30% of Ivy admissions, although that to a large extent overlaps the well off category.

        1. Colleges like legacy admits because they're more likely to donate when their kids turn college age...

          1. Meritocracy!

      4. As someone who has worked in university admissions, no, SAT scores are correlated with wealth because wealthier families can afford SAT prep, tutors, and other factors that money has a measurable impact upon. There's an ongoing discussion among university admissions as to whether SAT/ACT scores should be dropped entirely. Many universities, public and private, are already making the scores optional or eliminating them entirely. Statistically, high school GPA is a better indicator of university success than SAT/ACT scores.

        At my prior institution, we went a step further and recalculated GPAs using only the base, common denominator type courses and not counting art, sports, or other courses that aren't normally offered at schools in less wealthy districts.

        Schools already know, generally, what your wealth bracket is by looking at your home address.

        1. SAT prep is nowhere near as good as anyone pretends. Expensive private prep, in particular, holds little advantage over any other. Tutors are the worst form of prep according to studies.

          1. SAT prep is basically a scam designed to separate wealthy people from their money. It's not entirely useless, in that the simple fact of being familiar with the test is helpful. But one can achieve that with a $20 book that has a bunch of sample exams.

    2. Way back in the prehistory, test scores (SATs for example) were the primary basis to determine if a person would get into a college- similar to how other countries have nationwide exams. However, too many Jewish people were getting into the selective (Ivy League) schools, so they went to a "holistic" model, that used test scores, but could also determine if you were the type of person who was a real "Harvard Man" (or Yale Man, or whatever).

      This does not go far enough back in history. You ignore the times, more recent than we might think, when admission to elite institutions was only thinly meritocratic, if at all. In those days the schools did, more or less unashamedly, openly prefer upper-class WASP's. In many cases they did not want Jews at all, or had rigid quotas. Only post-WWII did they start to adopt more meritocratic admissions, at which point first Jews, then Asians, were admitted at much higher rates.

      There are many more Asians in the world than Jews, of course, and the disproportionate numbers of Asians became, bluntly, uncomfortable, so this whole "holistic" business began.

      It looks to me like thin cover for outright discrimination, and I think the case will go badly for Harvard, as it should.

      1. Nobody is saying Harvard can't establish quotas for foreign students, but what they should not be able to do is establish racial quotas for Americans.

        1. I didn't mean to refer to foreign students.

          There are about three times as many Asian Americans as there are Jews in the US.

        2. They can have preferences based on national origin but not race?

          1. If only national origin had been what OP was discussing, rather than citizenship.

            1. "Nobody is saying Harvard can't establish quotas for foreign students"

              1. Foreign as opposed to Americans (Americans who, as you well know, enjoy a plethora of national origins).

                Context, Queenie. It'll take you to a higher plane.

                1. Gotta get to at least one dimension before you can start attempting planes.

                2. What's the context that clears up that, smart guy? Quotas 'for' foreign' students is a big controversy.

                  1. What's the context that clears up that, smart guy?

                    I've pointed out the juxtaposition of "foreign" and "American" in OP's comment a number of times now. I really don't know what else to do for you unless you'd like to explain more clearly why you're confused.

                    Quotas 'for' foreign' students is a big controversy.

                    Lefties sobbing in their beer does not an EP violation make.

                    1. Lol, that 'a number' is exactly...two? A combination of five sentences!

                      Thanks, troll!

                  2. Lol, that 'a number' is exactly...two?

                    So two times is insufficient for you to get it, but some larger number would be? Tell me how many, and I'll cut and paste it as appropriate.

                    Thanks, troll!

                    OH, the irony.

                    1. Lol. As a troll, he won't/can't supply it.

                    2. Supply what?

          2. National origin in terms of discrimination law applies to the national origin of Americans, Italian, Mexican, Swedish etc.

            It doesn't mean at all that you can't toss all the resumes you get from Italian citizens living in Italy summarily, same with college admissions.

      2. Fair history, but you forgot WASPy exclusion of Catholics prior to WWII and their eventual acceptance into the mainstream.

        1. Yes. There was that too.

        2. We just built our own, Jesuit and Dominican, educational system which exists to this day.

    3. LOL = way back in pre-history. 🙂

    4. Good afternoon, loki. I agree with your description of the history and of the way the current "holistic" approach can be abused, both by applicants and by admissions folks. But what precisely are the "systemic issues that are really at play here" in your view?

      More specifically, what are the subset of those systemic issues that anyone can do anything useful about?

    5. Diversity isn't about helping mnorities or women. It is about benefitting everyone through diverse viewpoints and worldviews.

      Diversity about helping minorities and women is affirmative action.

      1. Should we give preferences to question-beggers?

    6. "After all, what looks better to a college? Taking the summer to help build houses in Costa Rica because you "care for the poor," or working at McDonald's because you are the poor?"

      That is the crux of the admissions problem. Colleges are willfully following this path. It is in part because these markers of privilege signal something powerfully important to schools, that there is a pocket to be emptied, and that it won't cost the school much effort to educate this kid.
      Pick the student who has the most to gain from education, and he will both cost more to educate (remediation, TA and professor's time, etc.) and bring less cash money to the institution.

      1. I cannot speak for Harvard, which is so bloated with cash that it doesn't really need tuition to pay its bills, but I can at least share my experience at smaller state and private schools. State schools in most states get state subsidies for in-state students so choosing deep pockets isn't anything they think about. Small, religious privates care more about tuition, but again, they are somewhat subsidized by their church communities (this varies).

        Where "deep pockets" comes into play is the international (unsubsidized) portion of the student body. For state schools, these students are charged full tuition and do not receive subsidies so that covers the pricing difference. UCLA, for example, has one fee structure for California residents (around $16K/yr last I checked) and another for out-of-state students (around $45K/yr).

        I'm sure there's at least one accredited university out there that pays close attention to wealth when making admissions decisions, the vast majority do not.

  4. I'm not sure why we treat public college seats as a more-or less fixed commodity. Just have a set of qualifications, and every who meets them gets a seat.

    1. Well, it's not fixed in the long run, but it's fixed in the short run. And we're mostly talking here about prestige institutions, where the limited supply is part of the allure; If Harvard adopted a chain model and increased the available seats to match the number of people who wanted to go to Harvard, it would cease being a prestige school, and perhaps fewer people would end up attending, since you can get the education in a lot of places.

      1. Sure, my comment related to public universities. Private universities can do what they wish. If they want to tune their admissions policies to reduce the number of Jews, Asians, whites, or whatever, it may be despicable, but it's they're right as private institutions. Although you are correct that we may want to reconsider such despicable institutions.

        1. After our discussion last week, I did some digging on the numbers, and you've convinced me on this one. Outcomes are not measurably lower in states that have this model.

          I don't mind some public 'magnet' universities with admissions requirements.

        2. I don't agree, TiP.

          So-called "private universities" are still quasi-public. Think of the privileges they enjoy - tax advantages, various loan programs for their students, etc. Remember also that a big part of their income is from government research grants.

          All this is, more or less, IMO. But I think it might reasonably be considered to impose certain restrictions. And that doesn't take into account the prominence of these institutions in the national landscape.

          Frankly, I think it would be better if they enjoyed less prominence, and the state schools were greatly strengthened. Look, the ivies have a combined undergraduate enrollment of about 63,000. There are a number of state campuses that are at half that figure, and the large state systems dwarf it.

          Discussions of US higher education focus entirely too much on the few elite schools.

          1. Tax advantages over what?

    2. My college has been consistently increasing admissions and suddenly we don't have enough seats for the students.

      1. So make more.

        1. They're trying that but it turns out that you eventually hit a point where adding more students (and more equipment, professors, TAs, admin) puts you at capacity in a building, so you need a new building. That disrupts current activities and doesn't scale well, since you have 5% more students but 200% more building (and substantial maintenance). If you just build a much bigger building to house everything it costs a lot up front and you still have all the costs from simply increasing scale and an unused building.

          1. These are issues that all institutions that provide services to a changing market have to deal with.

            I'm don't see how public higher ed supply is uniquely inelastic.

            1. It's generally resolved by using rental properties. Which there is no reason universities can't take advantage of except wanting purely branded buildings.

              1. For urban location universities, the areas can be quite built up in all directions and so adding space is time consuming and expensive. And the scaling-up generates some interesting numbers - the University of Washington recently announced plans to increase admissions by 8,000 students which will require 5,800 additional staff...

              2. Locally, the colleges have been expanding into a vacant mall. Seems to actually work out quite well.

              3. Because rented buildings that aren't located within walking distance of the school create additional costs like having to fund shuttle systems. Some schools will calve off their adult education schools and locate those in downtown areas near their customer base but regular students in degree programs are best served by having convenient access to the other services on campus which can be difficult if your campus is spread out over several square miles of randomly rented buildings.

                If you think renting buildings that are adjacent to campus is an obvious solution, consider the issues Disneyland had once the adjacent landowners realized the higher value of that land.

                Schools that are landlocked in this way tend to build up, which is more expensive in the short run provided they are confident the increase in demand isn't short-lived. With people having fewer children overall, there's a dramatic decline in demand for universities in general and a number of schools are finding their revenues are too small to pay for existing infrastructure. Privates are closing as a result.

            2. Easy enough to say that. UCLA has the largest student population and smallest campus size of any of the UC campuses (say the UCSF medical school and law schools). The campus is bounded by some of the most expensive real estate in LA. Campus expansion is difficult, expensive and slow at best

              1. There's also no open space close by. We've started cannibalizing what were dorms and facilities for students and making them get housing off campus. Worsens their experience, causes chaos for everyone else, but at least we're "doing something."

                1. Open another school. There's no need to keep expanding right there. If demand is that high, open a distant annex in another county or just add a new UC to the system.

    3. "every who meets them gets a seat"

      Ohio State [not my undergrad] used to be like that, first come first serve if you met the admission requirement.

      Then, they wanted to be a "research" university so they became "competitive". No evidence that the students are better educated.

      If their parents are paying taxes, every Buckeye ought to have a chance to be a Buckeye. Its a public university, not Harvard.

      1. Do you think there is a danger when there is an overproduction of elites in an oligarchy?

      2. The State school I attended had an open admissions policy at the time I went. They then tended to purge the incoming class rather severely. I believe in the 60's (a little before my time) many California Colleges had a similar policy.

        1. Michigan Tech was the same way when I went there in the 70's; They had an outrageous failure rate in the first couple of quarters, which were deliberately made tough to clear out the students who likely wouldn't hack it.

          The local fire marshal eventually took exception to starting out the year with the dorms at 200% occupancy, even though they got below 100% before 3rd quarter.

    4. You willing to pay for that?

      Public institution educations are subsidized, they're essentially a government benefits program. That's one reason why it's troubling if groups are significantly 'left out' of benefiting from them.

    5. There are a lot of fixed costs associated with education that don't scale easily, like buildings. Even if some classes remain online or in a hybrid model, a lot of STEM classes need labs, which won't work in online modalities. This limits the number of those classes that can be taught to the capacity of an exiting building and the number of general ed courses influenced by those limitations since you only need so many english professors to meet the needs of the limited STEM classes.

      A good example of this are the fully impacted CSU campuses in Southern California that are no longer able to admit new students into most majors due to high demand. CSUs admit students based on a fixed formula without considering race or other personal factors but they do limit based on geographic region.

  5. Grutter had a number of errors,
    first the trial court found the admission policy operated as a quota. The number of black students admitted every year remained the same (plus or minus 1 from the prior year - as I recall the range was 19-21 each and every years for 15+ years).

    CA6 took the findings of facts de nova, accepting the U of Mich, brief as true with zero cross examination, to demonstrate otherwise. The UofMich brief was "remarkably similiar to the holding/facts in bakke. lo and behold - the quota ensuring critical mass became constitutional.

    See Thomas dissent in Grutter.

  6. Assuming a desire to fix, "something," about college admissions, what do folks think is the proper standard to work toward? Free market? Footrace, and Devil take the hindmost? Meritocracy (measured how)? What?

    Can the Court decide cogently that race cannot be a factor if it has not first set forward what the right qualifcation(s) might be? Is it the Court's place to decide the right qualification(s)? Why?

    1. Can the Court decide cogently that race cannot be a factor if it has not first set forward what the right qualifcation(s) might be?

      Yes, of course it can. Why would it not be able to do that?

      1. One issue with using race is that race is a very imperfect proxy for need. I suspect if we look at who benefits from affirmative action it would to a large extent be the children of well to do parents, doctors lawyers an such, who may have different color skin than their classmates but likely had similar life experiences.

        I've often wondered about the relative scale of "privilege" across various groups. Comparing, for example, the children of a black former President to a white kid from a trailer park in Appalachia to a European appearing Hispanic from a wealthy family in Argentina.

    2. Step one. Stop being racist. Stop discriminating on Race. Stop using Race to prioritize or de-prioritize students.

      You want to prioritize students from lower income? Fine. Use INCOME. You want to be meritocratic? SAT & ACT were implemented expressly for that.

      The court is not deciding the right qualifications. They are simply deciding Racism Is Wrong. I hope you will understand that difference.

      1. If I give money to the United Negro College Fund am I being 'racist?'

        What if I gave money to it in 1950?

        Seems to me not obvious that all racial preferences are racist.

        1. Seems to me that you must be trying to incorporate an element of "do I approve of it?" into your definition of "racism". That seems problematic, as any racist would pretty much automatically approve of their own racism, so it subjectively clears you regardless of details.

          Can we have an objective definition of racism? One that doesn't incorporate a preference for some race right up front?

          1. No no, you answer my questions first.

            1. Yes, you are a racist -- and your self-defined "benevolent" motivations do not hide the white supremacy of your actions as you have constantly treat black people as not your equal, but as less than you.

              1. 1. So you think that if I gave money to the UNCF in *1950* when many, if not most, blacks faced huge discrimination, I'm being racist? Wow.

                1. Do you really think that whenever you act to help someone you treat them as less than you?

                1. 1) You do not answer racism with racism -- you do not solve racism with more racism.

                  2) When I act, no -- I treat people like my equals -- because they are. YOU, on the other hand drip with condensation. My wife nor any other of my black family members needs you has a savior -- they already have one and He is sufficient.

                  Race does not exist -- it is pseudo-scientific garbage.

                  1. So, the UNCF in 1950 was racist? Thanks!

                    You never help people? When you do I guess you're treating them as less than equal? When people helped Rosa Parks were they treating her as less than equal?

                    It's a dumb meme you've learned from right wing media. Just reject it, and you won't be dumb in that area anymore. It's not your fault, it's theirs.

      2. " Step one. Stop being racist. "

        Another call for abolition of the vote-suppressing, White nationalist-coddling Republican Party.

        Thank you!

    3. Colleges can set their own criteria, but there are several they are forbidden to use: national origin, religion, sex (unless it's women only), except for a limited carve out for affirmative action.

      But what Harvard has done here is discriminate against Asian Americans in order to be able to continue it's affirmitive action without squeezing out too many white applicants.

    4. Mainly merit. If you want to help the disadvantaged (however that is defined, either economically or by quality of one' local school), then you can adjust for that, so long as it is not racial.

      Race is not a good proxy for disadvantage, and as time goes by, it is becoming less and less so. Barack Obama's daughters have parents who, between them, went to four Ivy League schools, were financially in the top 1% even before their father went into politics, and they were sent to the one of the most exclusive private schools in the nation. The notion that they should be given an advantage because of the color of their skin is an abomination.

      1. But they'll be given it anyway, because they make the stats look better than somebody who'd flunk.

        1. Obviously, the better one does academically, the more chance you have in getting into a top school. That's true if you are white, black, brown or purple.

      2. It's not supposed to be a welfare type program for the recipients, it's supposed to increase representation of groups for the good of all on campus.

        1. That is the second theory advance for affirmative action, when the first theory, compensating blacks for centuries of oppression, began to look less convincing. Notice the other posters here did not challenge me as you did.

          And if you are looking for "representation of groups for the good of all on campus," race is an ever worse proxy. Diversity of experience, or nationality (NOT national origin), or socioeconomic status, would be much more beneficial for the campus as a whole. When I was in college, I gained a lot from interacting with foreign students, who gave a different perspective on things than the American born and raised.

      3. Race is not a good proxy for disadvantage, and as time goes by, it is becoming less and less so.

        BL, in this nation, Blackness remains a superb proxy for disadvantage. To the extent that has improved, passage of time has not been the cause of the improvement. Your cherry-picked, atypical examples do you no credit.

        Here is a thought experiment. Assuming you are White, you have a button you can push, which will instantly transform your economic circumstances to those of a Black person. Whatever wealth percentile you enjoy among Whites, pushing the button will get you that same wealth percentile as measured among Blacks.

        Actually, it was silly of me to write that, given how stupid you would have to be to push the button.

        1. What is silly is your use of percentiles and your apparent belief that blackness equates with being impoverished. There is a large black upper class, and an even larger black middle class, neither of which deserve affirmative action. It's true that there are a disproportionate number of black lower class, and as I said, I would agree with affirmative action targeted at economic or school quality to help the disadvantage.

          I grew up in a mostly middle class town, and the local public school was considered very good. It had an excellent honors track, many of those students ended up going to good and even Ivy league colleges.
          I recall that in the year behind mine, there was one black student who had done well in the honors track. He came from an in tact family (father and mother), decidedly middle class. His black skin was worth 250 SAT points. That's a simple fact. And in my view, there was no reason for that -- he had the same advantages and disadvantages as many other kids in his grade.

        2. I should also note that you have assume that all affirmative action involves being black, whereas there are many other categories used by various universities that have even less justification for their use than that one.

          1. Like what?




      4. " Race is not a good proxy for disadvantage, "

        You don't think being Black in today's America is a disadvantage, you half-educated, bigoted, worthless loser?

        No wonder better Americans have stomped your ugly, obsolete, right-wing preferences into irrelevance in the culture war.

        1. I have one undergraduate degree and two graudate degrees, including from two Ivy League schools. I am more educated than you will ever be. Go in the corner, such on your thumb, and come back when you grow up.

    5. I'm not particularly exercised about admissions standards, I just want equal justice under law.

      Every private college or university that practices discrimination on the basis of race (which includes but is not limited to considering race in admissions decisions) should be treated by the government the same way that Bob Jones University was treated because it discriminated on the basis of race.

      Which is to say, such discrimination by a private college or university should result in total ineligibility for any federal funds (everything from research grants to students eligibility for federally-guaranteed student loans), plus the revocation of any 501(c)(3) tax-exempt status.

      Harvard accordingly would be perfectly free to set any admissions criteria it likes; it would just have to get off the public teat and pay taxes if it wanted to discriminate against Asians.

      Of course, any discrimination on the basis of race by a public college or university is unconstitutional simpliciter, whether we're talking admissions or student group funding or segregated dorms or anything else. So UNC Chapel Hill would be ordered to cut it out entirely, just as it was previously ordered to do in 1955.

    6. Can the Court decide cogently that race cannot be a factor if it has not first set forward what the right qualifcation(s) might be? Is it the Court's place to decide the right qualification(s)? Why?

      I assume this is deliberate obfuscation. Can IBM hire based on race? No. Why? Because Congress outlawed that. Do the courts need to decide what the "right" qualifications for an IBM employee are? No. They just need to apply the rule that race isn't one of the legitimate qualifications.

      Same with education. To the extent we're talking about public schools, it's a constitutional issue, whereas if we're talking about private institutions, it's a statutory one, but the point is the same: the court doesn't need to decide what the right qualifications are to decide that race can't be one.

  7. So when non-hispanic whites are a minority, can they also get a preference, that is, if preferences stick around?

    1. Some people are more "protected" than others...

    2. It's about under-representation in the college bodies.

  8. From admission officer's chat logs in the UNC cert petition:

    “I just opened a brown girl who’s an 810 [SAT].”
    • “If its brown and above a 1300 [SAT] put them in for [the] merit/Excel [scholarship].”
    • “Still yes, give these brown babies a shot at these merit $$.”
    • “I am reading an Am. Ind.”
    • “[W]ith these [URM] kids, I’m trying to at least give them the chance to compete even if the [extracurriculars] and essays are just average.”
    • “I don’t think I can admit or defer this brown
    • “perfect 2400 SAT All 5 on AP one B in 11th”
    “Heck no. Asian.”
    “Of course. Still impressive.”
    • “I just read a blk girl who is an MC and Park

    1. If that's real, they killed any chance of pretending race want a larger consideration than merit in admissions. Then again, it's been one of those open secrets that everyone knows but didn't say for legal reasons.

    2. Discovery must have been a bitch on that one.

    3. I remember antitrust training at a big corporation. The training was not about how to obey the law; we little worker bees had very little influence on the company's anticompetitive policies. The training was about not making the company's lawyer look bad in court when the opposition got its hands on our email. We were taught not to use words like "destroy," for example. Evidently the UNC admissions staff did not have the benefit of that sort of training.

      1. It is always amazing to me what people put in emails (and other electronic communications) that comes back to haunt them later. I have seen so much stuff in 25 years of practice that you would say, "what were they thinking."

        We once did a seizure in a trademark counterfeiting case. Among other things was a fax from one of the defendants's sources for the counterfeits. She had been complaining about the slowness in getting product, and he (the supplier) faxed back, "It's been hard to get product, because some of the sources are caught by the Special Police, and they sing the whole story, and are shut down."

        You could not make this up.

  9. “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” John Roberts

    Let's see if he was serious.

    1. Indeed. I'm tired of hearing this "long game" stuff, especially when public opinion is behind him on a case, since the institutional legacy and legitimacy of the Court always seems his primary motivation.

      1. More a matter of him being behind public opinion, at this point. When even California outlaws, and keeps outlawed by popular vote, racial preferences, you'd have to say that the Court is far behind the curve of public opinion on this one.

        But it's not the public's opinions they care about, now, is it?

        1. Okay, that's a fair response. He appears to care about the elite DC cocktail party opinion group think conventional wisdom, etc.

          But standing behind a 67% support for merit based admissions to college is hardly brave.

          1. Eh, that depends on how the numbers look on the death threats.

            1. Conspiracy Theory Brett strikes again!

              No judges are basing decisions on "death threats."

              1. "No judges are basing decisions on "death threats."

                Maybe, maybe not. But I suspect a lot of them are basing decisions on whether or not they piss off Michele Dauber.

              2. On the margin they may be. They'd have to be pretty foolish to admit to doing so.

      2. Whenever someone says "we're going to allow something for a limited time", I'd really like them to define what criteria they would use to determine its time to end it.

    2. Roberts has pretty consistently voted against affirmative action, right? It was Kennedy and Ginsburg that held off on it last time.

      1. Good point. Let's see what Kavanaugh, Kennedy's replacement, does then.

  10. Affirmative action, at least after its initial inception, was mostly shielded from public scrutiny in that we were told it was not a quota and merely a "hand up" or a "tie breaker" to make it seem more easy to swallow what was straight up racist discrimination. Now the left has just put its cards down with "equity" and thinks the solution to our ills is just straight up discrimination on basis of race without any other qualifiers. People of color ought to get jobs and places in universities because.....they are a person of color. That is it. Well as long as that person is not Asian....

    1. Fucking racists.

    2. "People of color ought to get jobs and places in universities because.....they are a person of color."

      One thing you can always bet on is most of those who really don't like affirmative action either don't know or won't state what the stated rationales are for it in higher ed today. It's that groups are *underrepresented,* and their better inclusion makes for a better education for everyone there.

      Maybe it does this, maybe not, but you can almost always count on opponents of AA either being ignorant or misleading about it.

      1. "One thing you can always bet on is most of those who really don't like affirmative action either don't know or won't state what the stated rationales are for it in higher ed today. It's that groups are *underrepresented,* and their better inclusion makes for a better education for everyone there."

        Actually, you can bet that most of those who really don't like affirmative action are well aware of what the pretext for it is: The only excuse the Court would allow, since the previous excuse had been declared to have a sell by date swiftly approaching.

        1. Isn't it interesting that the power of diversity scales exactly with population numbers? You'd think that the diversity justification would recommend affirmative action to admit Aleuts and Appalachian hard scrabble farmers, and Finns, and all those other groups with experiences maximally unlike majority experience. Maximizing the diverse educational experience at minimum cost to merit based admissions.

          But, no, the optimal numbers for educational diversity just happen to track population numbers, and can be satisfied regardless of any cultural baggage, it's the melanin content and shape of your eye that tell admissions how much you'll contribute to the educational experience.

          And, have you ever thought how squicky it is, if you think about it, that blacks are being admitted to colleges based on how they'll benefit the whites?

        2. That's ridiculous. The 'sell by' date surely hadn't passed by *1979.* That's when reparations based rationales were prohibited! It was the under-representation 'excuse' that you're thinking of from Grutter/Gratz.

          Good old Brett, where carefulness is inversely correlated with confidence!

      2. In many places women are now overrepresented and men underrepresented and it is growing -- there is NO movement to fix this supposed imbalance.

        Do you think that there should be?

        1. America is transitioning into a matriarchy, as a consequence of the intersection between democracy and the slight excess of women vs men in the population.

          We pretend it's a patriarchy because this serves the cause of advancing the matriarchy.

          1. It transitioned already, if you look at where your tax dollars go and how much women pay into the system compared to men.

            1. No, it's ongoing, there's room for things to get worse for men.

              1. From what I understand things are going pretty well for a guy named Chad....

          2. That's ridiculous. A matriarchy in a society that has never had a woman President even though they've always made up half or more of the population.

            Yeah, Brett!

            1. Women tend to prefer strong male leaders, which explains why we still have strong male leaders and probably will always have them.

              1. "Women tend to prefer strong male leaders"

                What an awesome own goal for the idea there is not a patriarchy!

                1. Women getting what they want is patriarchy? That doesn't make any sense.

            2. "A matriarchy in a society that has never had a woman President even though they've always made up half or more of the population."

              Who are you to question the will of the matriarchy?

        2. Iirc there is movement here, affirmative action to recruit, for example, more male nurses.

          Yes, I think there should be.

          1. You have found ONE example (and that one was frankly to feminize men.)

            There are more women than men in college (and while obviously a still a minority) there a growing amount of professions, individual businesses and organizations where women outnumber men.

            Since equity is a buzzword right now, you'd expect that there would more of a movement to ensure gender balance like everything else, yet -- you will admit, most don't give a damn when the imbalance favors women.

            You demand that all of these places take the same steps to ensure "representation?" You want a society where differences are all that matter -- where everybody is reduced to biology?

            Tribe/gender uber alles????

            That would make an healthy society?

  11. Boy, look at all the comments here vs., say the Clean Water Act thread! Nothing seems to get a lot of the white guy individualists here really worked up more than...perceived threats* to people like them!

    *to include insults, see CRT threads

    1. Maybe the CWA isn't as controversial?

      1. Maybe the every expanding federal regulation of water sources isn't as controversial as some state higher education admissions practices to individualist libertarians? Ok...

        1. Well, it is a libertarian-leaning blog, and libertarians are individualists, and further, this is a topic everybody can readily identify with rather than the more communal issues with the CWA. If we were all farmers, with runoff that was regulated as wetlands, you'd likely get the same fervor.

          1. Uh, if you're worried about government restrictions on liberty the CWA certainly touches on more of that than some state higher education admissions policies.

            It's obvious what's driving this...

            1. Certainly the CWA touches on more. So do sugar tariffs. What you're complaining about, though, is diverse costs and concentrated benefits. And CWA problems are way more diverse, thus, it, like sugar tariffs, will always get less attention.

              You keep trying to make this a white people bad thing for caring about a topic that more directly affects their children and grand-childen, and why is that?

              1. Personally, I'm concerned about it directly affecting my mixed race half Asian son.

                1. Lol, Brett refutes my charge of tribalism thus (kicks himself in the butt!).

              2. We're talking about a practice of some states for only the more prestigious higher ed admissions (and only a fraction of them!!!!).

                On the other hand, the CWA restricts far more people *even if you only look at people like developers or farmers!*

                If you're interested in 'protecting people that look like me and my kids' then of course this makes sense. But if you're interested in 'government power,' well, not so much.

    2. More racism from QA -- NOT surprising!

          1. Lol, you've proved it!

    3. Do you go on other forums and say stuff like, "gees nothing like a good police brutality article to get all you black separatists up in arms...!"

      1. No, of course, I'm just picking on white separatists like yourself Jimmy! You're always the victim!

        1. So is picking on people cool or is it bullying? Which one? Or "does it depend" based upon who you are trying to beat up? Certain people are OK while others are off limits?

  12. Always great to see the level of debate on racial issues at a tellingly White, remarkably male, right-wing blog that attracts an ardent following of old-timey bigots.

    This is why every dean of a Volokh Conspiracy blogger (except at ASSLaw) regrets the hiring decision that associated this blog with the dean's school.

    I hope better law schools learn from this experience.

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