Review of Oral Argument in Students for Fair Admission v. University of North Carolina

My Justice-by-Justice breakdown.

I've now had a chance to review the oral argument in the Students for Fair Admission v. University of North Carolina. I started to review the Harvard case, but didn't get a chance to finish it yet. My immediate impression to the UNC case: every Justice came to the argument with their minds made up. I don't think such predetermination was surprising. But I was struck at how settled the Chief Justice, as well as Justices Kavanaugh and Barrett were. I expected each of them to express some discomfort with what the Plaintiffs were asking for. But I sensed none. To be sure, Kavanaugh in particular had already figured out his limiting principles--more on that later. But the lawyers had very little room to sway the Court's swing votes. Since there was very little interchanges on the bench, this post will review the positions of each justice.

Chief Justice Roberts

I often pay careful attention to the Chief's questions for the conservative side. He often throws them a curveball, and signals some alternate saving construction he might adopt. But there was no middling from Roberts here. He came to play. Early on, Patrick Strawbridge (counsel for SFFA) raised a hypothetical about an Asian American student who discusses his heritage in application essay. There was some cross-talk with Justice Sotomayor and Justice Kagan, but the Chief Justice pushed through:

they also show a pretty --not very savvy applicant, right? Because the one thing his essay is going to show is that he's Asian American, and those are the people who are discriminated against.

The University vigorously contests this premise, but the Chief stated this point without any equivocation.

Roberts repeatedly faulted the Universities for failing to set an end date.

CHIEF JUSTICE ROBERTS: I don't see how --I don't see how you can say that the program will ever end. 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 because you say race matters to give us the necessary diversity.

I did a radio interview on Monday afternoon, and blurted out: "racial preferences today, racial preferences tomorrow, racial preferences forever." I didn't realize till afterwards that I unconsciously parodied George Wallace's inaugural address: "segregation today, segregation tomorrow, segregation forever."

Roberts also pushed the attorneys on whether the universities can pursue other race-neutral approaches--of course they can. Given Roberts's perspective on strict scrutiny, this line of questioning does not bode well for the respondents. Roberts also asked many questions about the race "check box." I can see one possible holding is that the universities are not allowed to consider the "check box."

Justice Thomas

Justice Thomas usually asks questions to help him draft a separate writing. Here, he asked several times if the advocates could provide a definition of "diversity." As anyone in academia can attest, the word means whatever you want it to mean--except for ideological diversity, which is not important.

JUSTICE THOMAS: Mr. Park, I've heard the word "diversity" quite a few times, and I don't have a clue what it means. It seems to mean everything for everyone.

Thomas repeated his charge from Grutter and Fisher that the arguments in favor of racial preferences mirror the arguments made by segregationists:

JUSTICE THOMAS: Well, I guess I don't put much stock in that because I've heard similar arguments in favor of segregation too.

Justice Thomas also asked at several points about the burden of proof in a Title VI case. The lawyer for the students even suggested that the caselaw is unclear about who bears the burden. No matter what the Court decides, the level of deference will be significantly ratcheted down, and the universities will bear the burden of proof.

Justice Alito

Justice Alito apparently reviewed David Bernstein's amicus brief, prepared by Cory Liu. He asked about the status of an Afghani student:

What --what similarity does a family background to the person from Afghanistan have with somebody whose family's background is in, let's say, Japan?

The North Carolina Solicitor General had no response. He could only repeat, on loop, that each student is considered as an individual based on a holistic analysis. Alito fired back, somewhat irritated:

JUSTICE ALITO: Well, then why do you have them check a box that I'm Asian? What do you learn from the mere checking of the box?

MR. PARK: So we think that it depends on the individual circumstances of that person, but I am telling -

JUSTICE ALITO: So you don't need the --you don't need the boxes at all?

Alito pursued a similar line of questioning about self-reporting. What if a person has a single black grandparent, great-grandparent, great-great-grandparent and so on. Alito also seemed to invoke the Elizabeth Warren example, where "family lore" tells of an Indian ancestor. (Alito did not ask about high cheekbones.) At some point, we are veering into the one-drop rule. Again, the lawyer for UNC could not reply, as none of these claims are verified. Everything is self-reported.

Justice Sotomayor

According to Joan Biskupic, Justice Sotomayor was able to flip the votes in Fisher I by circulating a vigorous dissent. (Ultimately, she published the "race matters" tractate in her Schuette dissent.) That strategy will no longer work. There are not five votes for her position. Instead, Sotomayor focused a lot of her attention on the district court record, and the nuts-and-bolts of writing a majority opinion. Justice Sotomayor, at several junctures, repeated that race was not a "determinative" factor.

But isn't that what this plan in UNC already does? Race is never the determinative factor. That was a finding by the district court.

If --if race is only one among many factors, how can you ever prove, given that the district court found against you, that it's ever a determinative factor?

And we're doing all this because race is one factor among many that is never solely determinative, correct?

I don't think the findings of two district court judges will control the Court's resolution of this case. And at one point, Sotomayor seemed confused about which case she was asking about:

MR. STRAWBRIDGE: Well, of course, there's an e-mail exchange in the record, some of which is sealed, but I think that the Court's familiar with its contents that -

JUSTICE SOTOMAYOR: That was one person and not the entire committee. 

MR. STRAWBRIDGE: It was a --it was a --I think it was a chat between three people -

JUSTICE SOTOMAYOR: Well -

JUSTICE JACKSON: Did that support each point -

MR. STRAWBRIDGE: --who were all admissions officers. 

JUSTICE SOTOMAYOR: --it's a 40-member committee. 

JUSTICE JACKSON: --as a result? 

JUSTICE SOTOMAYOR: Or is that the Harvard case? I'm sorry. It might be the Harvard case. 

Justice Sotomayor's colloquy with Solicitor General Prelogar on pp. 154-156 was fairly one-sided. I counted about then consecutive questions to which Prelogar simply responded "That's correct" or "I agree" or "Yes."

Justice Sotomayor suggested that there is still de jure segregation today:

-JUSTICE SOTOMAYOR: So, even if we have de jure discrimination now or segregation now, Congress can't look at that? Because we certainly have de jure segregation. Races are treated very differently in our society in terms of their access to opportunity.

A moment later, Justice Alito interjected:

JUSTICE ALITO: Are you aware of de jure segregation today?

Cam Norris, lawyer for SFFA in the Harvard case, said there was not.

Sotomayor interrupted, and sounded peeved.

JUSTICE SOTOMAYOR: It's not clear that there's segregation between there are large swaths of the country with residential segregation, there are large numbers of schools in our country that have people of just one race, there are school districts that have only kids of one race and not multiple races or not white people? De jure to me means places are segregated. The causes may be different, but places are segregated in our country.

I don't think that is what de jure means. She is describing de facto segregation.

Throughout the arguments, the Chief Justice seemed annoyed by how Justice Sotomayor was cutting off the lawyers, and not letting them answer questions. At page 48 of the UNC arguments, Sotomayor asked Patrick Strawbridge to explain how a model works. Strawbridge replied, "I think I disagree with that for a couple reasons." Sotomayor interrupted, and said "Well the district court." The Chief cut her off and spoke to Strawbridge, "Why don't you tell us what the reasons are." After Strawbridge finished, Roberts turned to the seriatim questioning and said, "You'll be able to return to Justice Sotomayor in just a moment." There were no questions from Roberts, Thomas, or Alito, so Sotomayor continued her colloquy.

After Seth Waxman's argument concluded, the Chief thanked him, and was about to begin the seriatim questioning. Sotomayor jumped in. Roberts pushed back, and began his round.

CHIEF JUSTICE ROBERTS: Thank you, counsel. 

JUSTICE SOTOMAYOR: Counsel -

CHIEF JUSTICE ROBERTS: We'll get to you in a moment. 

The pattern repeated itself throughout the day.

Justice Kagan

Justice Kagan is the most effective questioner on the Court. And she repeatedly pushed counsel for SFFA to draw a limiting principle: would they favor racial preferences if race-conscious policies yielded zero minority students. I think SFFA had to hold the line, and say no.

JUSTICE KAGAN: It really wouldn't matter if there was a precipitous decline in minority admissions, African American, Hispanic, one or the other, you know, if --I think there are some numbers in --in this case, but, you know, suppose that it just fell through the floor.

Would it --it just --you know, too bad?

MR. STRAWBRIDGE: Well, I don't think that it's going to fall through the floor if the university is actually committed to the broader diversity it wants because it didn't -

JUSTICE KAGAN: Right. I know you think that. And there's been --obviously, a lot of the litigation has been about that, how much will it decline and your expert and their expert. But the logic of your position suggests that that really doesn't matter.

Later, Kagan repeated the theme that racial diversity really does not matter for SFFA:

But putting that aside, I mean, I -I --I --I guess what I'm saying is your brief --and this is very explicit in your brief -is, like, it just doesn't matter if our institutions look like America.

Kagan also seemed ticked off by the notion that schools would have more latitude to use gender-conscious measures than race-conscious measures. (The former would be subject to intermediate scrutiny while the latter would be subject to strict scrutiny).

JUSTICE KAGAN: Yeah. I mean --I mean, you're right about the levels of scrutiny, but that would be peculiar, wouldn't it? Like white men get the thumb on the scale, but people who have been kicked in the teeth by our society for centuries do not?

MR. STRAWBRIDGE: Well, of course, our position is that white men could not get a thumb on the scale. That sounds like a racial classification. Men could perhaps.

JUSTICE KAGAN: Men could?

MR. STRAWBRIDGE: But not white men.

JUSTICE KAGAN: Oh. Uh-huh.

Go listen to the audio of Kagan saying "uh-huh." I'm confident there was an eye-roll.

Last term in West Virginia v. EPA, Justice Kagan suggested that the Court's conservatives are faux-textualists. Now, she is primed to write that the majority is a bunch of faux-originalists:

JUSTICE KAGAN: I would ask on a completely different question, but one notable thing about the argument here is that on both sides there's been very little discussion of what originalism suggests about this question. 

And I --so I just want to ask, what would a committed originalist think about the kind of race-consciousness that's at issue here? 

I thought Strawbridge handled this position well in light of modern doctrine: the Reconstruction-era statutes were designed as remedial measures. Still, I hope that Justice Thomas addresses these historical arguments head-on.

Justice Gorsuch

Justice Gorsuch focused at some length on Title VI, and asked whether Justice Stevens erred in Bakke. The Solicitor General countered that the word "discriminate" in Title VI is ambiguous. In response, Gorsuch raised the (pirate) flag of Bostock!

JUSTICE GORSUCH: But where --where did Justice Stevens err?

GENERAL PRELOGAR: In not recognizing that the term discrimination in this context is ambiguous. And I think that the legislative history therefore carries -

JUSTICE GORSUCH: We didn't find it -

GENERAL PRELOGAR: --forth in this context.

JUSTICE GORSUCH: --ambiguous in Bostock. Why should we find it ambiguous now?

GENERAL PRELOGAR: Well, I think that --I think that the statute doesn't define -

JUSTICE GORSUCH: Were we wrong in Bostock?

GENERAL PRELOGAR: No, I'm not suggesting that. But Justice Gorsuch, I know you asked me to put to the side that -

JUSTICE GORSUCH: I did.

GENERAL PRELOGAR: --the Court has already resolved this issue. I just would emphasize -

JUSTICE GORSUCH: All right. You can go back to that.

You get the government's position? The word "discriminate" in Title VII is ambiguous, but the word "discriminate" is not ambiguous in Title VI. Not the best argument, but what is the government going to do?

JUSTICE GORSUCH: On the text, though, do you have anything else? 

GENERAL PRELOGAR: I would point to the ambiguity in the term discrimination. 

JUSTICE GORSUCH: But it's not ambiguous in Title VII? 

GENERAL PRELOGAR: No, and we respect this Court's decision in Bostock. 

JUSTICE GORSUCH: It's just ambiguus in Title VI, the same word? 

GENERAL PRELOGAR: This Court has held that multiple times. 

The best Prelogar could is turn to statutory stare decisis.

Gorsuch referenced the "cottage industry" of coaches who help Asian American applicants de-Asianafy their resumes.

JUSTICE GORSUCH: Okay. What do we say to Asian Americans who there is a veritable cottage industry we're told by the briefs that they are encouraging Asian applicants to avoid and beat "Asian quotas"? That's how they perceive it. Is that an important consideration in

The Solicitor General was shocked, shocked, to find that there were allegations of bias against Asian-American students. Gorsuch also referenced Harvard's history of discrimination against Jewish applicants. Seth Waxman of course vigorously repudiated those policies, but insisted that history is not relevant to the present case.

Justice Kavanaugh

Justice Kavanaugh has a terrible habit. He often writes concurrences that purport to narrow a conservative majority opinion, but in the process he reaches out to decide difficult legal questions that were not briefed. For example, in Dobbs he decided that states could not restrict a women's right to travel to another state to obtain an abortion. And in Bruen, he lent his imprimatur to a law that requires a mental health check to obtain a carry license. Neither of these issues were presented, yet in an act of anti-modesty, Justice Kavanaugh thought best to decide them.

Kavanaugh's very first question in the UNC case signaled what limiting principle he will adopt--or more precisely, three limiting principles.

JUSTICE KAVANAUGH: So, if they're -if you prevail here, let's say, and a university develops three race-neutral alternatives to consider in the wake of a decision here and they choose the one that's going to lead to the highest number of African American students and they choose that race-neutral alternative for that reason, is that okay?

Kavanaugh didn't get a chance at that juncture to list his three alternatives, but I (like Kagan) rolled my eyes. I knew they would come soon enough.

Later, Kavanaugh teased out two race-neutral alternatives that are in the record: socioeconomic plans and top 10% plans.

JUSTICE KAVANAUGH: Your position will put a lot of pressure going forward, if it's accepted, on what qualifies as race-neutral in the first place. You said socioeconomic is race-neutral. Top 10 percent plan, race-neutral. Is --do you want to respond to that?

Of course, neither policy is actually race-neutral. Justice Sotomayor accurately called them "subterfuges":

JUSTICE SOTOMAYOR: So I don't actually see why all the race-based --because all of the alternatives, whether it's the 10 percent plan, whether it's socioeconomic, they're all subterfuges to reaching some sort of diversity in race. You're touting them as race-neutral, but none of them are race-neutral. You're doing them because you believe in racial diversity. I just don't understand why considering race as one factor but not the sole factor is any different than using any of those other metrics.

Strawbridge's answer to Kavanaugh wasn't very important. Kavanaugh was simply setting up the third option:

JUSTICE KAVANAUGH: Right. I'm just making sure what qualifies as race-neutral in the first place. What if a college says we're going to give a plus to descendents of slaves? Is that race-neutral or not?

Kavanaugh asked the same question of Cam Norris during the Harvard case:

JUSTICE KAVANAUGH: So today a benefit to descendents of slaves would not be race-based, correct? 

MR. NORRIS: I --I think that's incorrect, Justice Kavanaugh. 

From anti-modesty to anti-racism. Indeed, Kavanaugh's position veers very close to an argument for reparations to descendants of slaves. Rather than permitting preferences for all under-represented minorities, only a single class of students would stand to benefit. Not even Justice O'Connor would go for that balkanized approach to admissions. Kavanaugh's position would create internecine DEI strife on campuses nationwide. Hispanics, American Indians, and other groups would be left out. The technicolor intersectional pyramid would become a monochromatic obelisk, with only one racial beneficiary. Justice Scalia emphatically rejected this approach in Adarand Constructors v. Pena: "Individuals who have been wronged by unlawful racial discrimination should be made whole; but under our Constitution there can be no such thing as either a creditor or a debtor race."

Critically, unlike with Grutter, there would be no stopping point to Kavanaugh's position, as people could trace their lineage back to slaves in perpetuity.  Cam Norris made this point:

JUSTICE KAVANAUGH: You --you said -you said, I think, to Justice Gorsuch, and I'm sorry to interrupt his question, but you said to Justice Gorsuch, I think, that the benefit for former slaves was not race-based. If that's correct, then the benefit for descendents of former slaves is also not race-based. There -you can make other arguments if you want about that, but it does not seem to be race-based under what you said to Justice Gorsuch, correct? 

MR. NORRIS: Well, not correct. I think there's a difference between the former slaves themselves getting a benefit versus generations later. I think that's the classification on the basis of ancestry, which is still problematic under this Court's precedents. 

Is any college in the United States taking that approach? Not to my knowledge. But this gerrymandered alternative would ensure that universities could continue to use racial preferences for most African-American applicants indefinitely. Is it legal? Patrick Strawbridge replied that the "slavery" bonus would just be a "pure proxy for race." I agree. I hope this position does not make it into a concurrence. Justice Kavanaugh needs to stop making up arguments that none of the parties presented in landmark constitutional law decisions. No one benefits from it.

Justice Barrett

Justice Barrett seemed more settled than I expected. Her questions were thoughtful, but all seemed to lean towards SFFA. For example, she clarified that the Petitioners did not object to applicants discussing their race in an "experiential" personal statement. (Justice Sotomayor and Jackson seemed to suggest that SFFA was even opposed to considering race in the personal statement.)

Still, SFFA's position does put a lot of weight on the essay:

JUSTICE BARRETT: I guess --I mean, I guess what I'm concerned about is if it puts a lot of pressure on the essay writing and the holistic review process. You could have viewpoint discrimination issues, I would think, depending on how admissions officers treat essays. You could have free exercise claims, not by religious mission --religiously affiliated universities who want to give bumps to, say, you know, LDS students, but, you know, if you have Harvard say --saying, well, we want this many Jews, but we also want this many Christians, you know, and --and, you know, this many Muslims in a classroom.

Strawbridge responded that Grutter did not identify campus diversity as a compelling interest. Rather, the interest was limited to the educational benefits from diversity in the classroom.

Critically, Barrett repeated the admonitions from Grutter that racial preferences were "dangerous." (And I take it, ACB uses reading glasses--her "readers"):

JUSTICE BARRETT: This Court's precedents, I mean, Grutter also says --sorry, let me put my readers on here --you know, using racial classifications are so potentially dangerous, however compelling their goals, they can be employed no more broadly. Going down a little bit further, all governmental use of race must have a logical end point, reasonable durational limits, sunset provisions, and race-conscious admissions policies. And I gather, you know, Justice Alito's saying, when does it end? When is your sunset? When will you know? Because Grutter very clearly says this is so dangerous. Grutter doesn't say this is great, we embrace this. Grutter says this is dangerous and it has to have an end point. And I hear you telling Justice Alito there is no end point.

The lawyer for North Carolina bobbed and weaved about the end point. Barrett interrupted a few times:

JUSTICE BARRETT: But, if I could just interrupt for one second, how do you know when you're done? You know, Justice Alito said, if you have exact correlations to the member --to the number --the percentage in the population of a particular group, and you said you're not done then. So when would the race-conscious -when would you have the end point? I appreciate that you're undertaking all those efforts, but when is the end point?

Barrett asked about what the state would say in 2040--when Barrett will likely still be on the bench, probably seated in the first row:

What if it continues to be difficult in another 25 years? I take it that you, because you've repeatedly said that the 25 years is aspirational and you told Justice Kavanaugh it wasn't a holding, that you don't think that University of North Carolina has to stop in 25 years, at that 2028 mark. So what are you saying when you're up here in 2040? Are you still defending it like this is just indefinite, it's going to keep going on?

Justice Jackson

The newest member of the Court came prepared with two distinct lines of questions. First, she raised a novel argument concerning standing. The University asserts that SFFA is not a traditional member group, or at least it didn't have any actual members when the litigation began. Thus, the government argues, there is no associational standing. But Jackson argued that the Plaintiffs cannot show an injury in fact. Why? Because, according to the district court, there was no finding that Asian American students were harmed by the admissions policy. She repeated this point at least five times in very similar terms: that a person's race did not automatically lead to their admission, and race was not determinative.

No one's automatically getting in because race is being used.

And even if you check the box, I'm an African American, I'm a Latino, and all the other things, I live in this place, et cetera, et cetera, even if you check that box, in North Carolina's system, do you get a point automatically for having checked that box?

And is anybody who did check the box, are they automatically entered or admitted into the university as a result?

Minorities don't automatically get a boost under this system, so it's hard to know whether anyone's being disadvantaged from the mere fact that a minority could get a boost in this environment, right?

But when you have a situation like this in which you're talking about a holistic review, other people are getting pluses in the system, no one is automatically getting a plus in the system, I wonder if the urge to end it -and what is the end it? 

A lot has been written on how much Justice Jackson talks. I think more relevant is how often she repeats herself, and makes the same points over and over again.

Strawbridge responded that an injury was found in Grutter, even though race was used in a holistic fashion. I get Justice Jackson's argument, but it seems undermined by Grutter.

JUSTICE JACKSON: --can you help me?

MR. STRAWBRIDGE: I'm sorry.

JUSTICE JACKSON: Yes, please.

MR. STRAWBRIDGE: Even --even --even Grutter establishes that a holistic admissions process doesn't make the injury go away.

JUSTICE JACKSON: But you've said Grutter needs to be overruled. So we can't --I don't think we can use that decision as the basis for standing.

The plaintiffs do not want to overrule the standing analysis from Grutter. I don't think this standing argument will go anywhere.

Justice Jackson's second line of questioning was much more powerful. If the plaintiffs prevail here, universities would be able to consider applicants on the basis of everything but race. Jackson suggested that the university could fairly consider certain points in a white student's application, but could not consider related points in a black student's application. This disparate treatment, Jackson said, could violate the Equal Protection Clause:

And so what I'm worried about is that the rule that you're advocating, that in the context of a holistic review process, a university can take into account and value all of the other background and personal characteristics of other applicants, but they can't value race, what I'm worried about is that that seems to me to have the potential of causing more of an equal protection problem than it's actually solving.

Justice Jackson raised two hypotheticals, the second of which dovetailed with Justice Kavanaugh's proposal to give preferences to descendants of slaves

The first applicant says: I'm from North Carolina. My family has been in this area for generations, since before the Civil War, and I would like you to know that I will be the fifth generation to graduate from the University of North Carolina. I now have that opportunity to do that, and given my family background, it's important to me that I get to attend this university. I want to honor my family's legacy by going to this school. The second applicant says, I'm from North Carolina, my family has been in this area for generations, since before the Civil War, but they were slaves and never had a chance to attend this venerable institution. As an African American, I now have that opportunity, and given my family --family background, it's important to me to attend this university. I want to honor my family legacy by going to this school. Now, as I understand your no-race-conscious admissions rule, these two applicants would have a dramatically different opportunity to tell their family stories and to have them count. The first applicant would be able to have his family background considered and valued by the institution as part of its consideration of whether or not to admit him, while the second one wouldn't be able to because his story is in many ways bound up with his race and with the race of his ancestors. So I want to know, based on how your rule would likely play out in scenarios like that, why excluding consideration of race in a situation in which the person is not saying that his race is something that has impacted him in a negative way, he just wants to have it honored, just like the other person had their personal background family story honored, why is telling him no not an equal protection violation?

My immediate reaction to this position was Schuette. In that case, the plaintiffs argued that the ballot referendum violated the so-called political process doctrine. People could advocate that universities make all sorts of changes to the admissions process through normal electoral channels. But it would take a state constitutional amendment to remove the prohibition on racial preferences. Of course, the plaintiffs in Schuette lost. Justice Jackson's argument harkens to that sort of disparate treatment. I'm not sure Equal Protection is the precise frame. Accordingly, Strawbridge replied that universities would have to review the applications in a race-neutral fashion, so there would not be a violation of the Fourteenth Amendment.

MR. STRAWBRIDGE: Well, for purposes of the hypothetical, I am assuming that the only significant factor in that story happens to be the fact of the race of the applicant and that the race was previously barred from attending UNC. Obviously, nothing stops UNC from honoring those who have overcome slavery or recognizing its --its --its past contribution to racial segregation.

But the question is, does --is that a basis to make decisions about admission of students who are born in 2003? And I don't think that it necessarily is. I don't think that the Equal Protection Clause suggests that it is.

This response also effectively replies to Justice Kavanaugh's proposal.

***

I will have more to say after I have some time to review the Harvard case. I apologize in advance for typos. I did not have as much time as I would have liked to carefully proof the post.

Comments

[Noscitur a sociis]

I did not have as much time as I would have liked to carefully proof the post.

Why not?

[Jett's Pop]

I guess he didn't care about not making obvious errors:

"You get the government's position? The word 'discriminate' in Title VII is not ambiguous, but the word 'discriminate' is not ambiguous in Title VI."

[santamonica811]

"...Justice Thomas usually asks questions to help him draft a separate writing. Here, he asked several times if the advocates could provide a definition of "diversity." As anyone in academia can attest, the word means whatever you want it to mean–except for ideological diversity, which is not important.

JUSTICE THOMAS: Mr. Park, I've heard the word "diversity" quite a few times, and I don't have a clue what it means. It seems to mean everything for everyone...."

I guess it would have been tacky for Park to respond,
"Excellent question, Justice Thomas. You benefited greatly from diversity considerations in your academic career. You were put on this court due in part to the color of your skin. What does diversity mean to YOU?"

{Yeah, I agree...not a winning argument, nor one likely to win you any friends on the court, in future cases that you're arguing in front of SCOTUS.}

[Noscitur a sociis]

To my knowledge, SG Park isn’t an odious and embittered bigot like you, so I would imagine the idea of making a racist insult didn’t cross his mind.

[Armchair Lawyer]

So....you think the only reason Thomas got his job and education was because of his skin color?

Oh boy.

[apedad]

". . . you think the only reason. . . . "

Not the "only" reason and s-m even wrote, "in part."

[Frank Drackman]

Honest mistake, he was thinking of how Barry America got everyone of his job(s)

[bernard11]

Do you think he didn't benefit from AA, and that he would have been appointed to the court based on his accomplishments if he were white?

That's a joke.

[Frank Drackman]

Sounds like you'd benefit for "AA", the Ass-hololics Annonymous variety

[Armchair Lawyer]

Wow...

OK, point 1: Thomas is a driven, smart, individual that has succeeded despite clear racial discrimination in his past. I have no doubt he would've been appointed to the court if he was "white".

Point 2: This is going to be hard for you to hear Bernard, but I want you to think about it carefully, and think about what actually said, and what it implies.

I know you think of yourself as not a racist. But what you said was very racist. It's a sort of insidious paternalistic racism that is part of "Affirmative Action." What you're in essence saying is that black people "need" a hand up in order to succeed, and they are only successful because they "got" that hand up.

It's insidious, because no matter the accomplishments of the African American, people will always insinuate they only got where they are because of affirmative action and the color of their skin, and not their own merits. Nothing they do, no matter how successful, is seen as them simply being stellar individuals. It's always in the background that they were graciously "given" this opportunity by "white people" and that is why they succeeded. And without that help, they wouldn't have any success. It's demeaning, paternalistic, and essentially impossible to disprove. They can literally never be seen as succeeding on their own merits.

[SheilaP]

[BravoCharlieDelta]

We see when they open their mouths which ones were appointed because of skill and talent and which were appointed to tick some dumb Lefty boxes.

[Currentsitguy]

That still does not address the question of when does it end?

[Drewski]

"I think more relevant is how often she repeats herself, and makes the same points over and over again."

There's something particularly sublime about criticizing someone for repetitiveness twice in the same sentence. If I thought it were on purpose I'd call it clever (but still pretty immature - it reminds me of schoolchildren throwing shade around, trying to find some line of attack that will stick).

[bernard11]

Excellent point.

[SoSoCoCoMoFo]

"De jure to me means places are segregated."

I would say that's even more embarrassing than Alito's recent "you can't shout 'fire' in a crowded theater" mistake.

Supreme Court justices are supposed to be the tip of the top of the US legal profession. Oh, dear.

[Frank Drackman]

always thought it was "you can't shout Theater in a crowded Fire", never made sense. Thanks for clearing that up.

[BadLib]

I've always disliked the "you can't shout 'fire' in a crowded theater" meme. However, in spite of its inaccuracy (being quite different from the actual quote: "falsely shouting fire in a theater and causing a panic" IIRC), I think everyone of average or higher intelligence and education gets the intended point in context due to extensive usage of the "shorthand" version for decades. I seriously doubt there are many readers (and I don't mean reading glasses) of the shorthand version who don't understand the intended meaning.

However, 'de jure' and 'de facto' mean quite different things. I do, however, understand that people sometimes get two phrases flipped in their head and will consistently misuse one, even multiple times in succession, when they actually know exactly what both phrases mean and would never do that in written communication and probably not an hour later or an hour earlier. (Perhaps it's like calling out the name of your mistress when engaging in carnal activities with your wife -- you later regret it and really didn't mean to use the wrong name at the time).

[Armchair Lawyer]

Roberts view here, that affirmative action is used to discriminate against Asian Americans (and Asians) is really the most robust argument against affirmative action.

It's very hard to morally defend...that in response for past discrimination against one racial group (African Americans), it is required that the colleges discriminate against an entirely different racial group (Asian Americans) that was also historically discriminated against.

With this type of logic, there's no real equality. There is just picking racial "winners" and "losers" by those in political power. You can justify any racial discrimination by arguing it's affirmative action to favor a different racial group. And as such, it's fatally flawed.

[Sarcastr0]

There are plenty of fine arguments against affirmative action.

Affirmative Action as ''response to past discrimination' is shared by some, but it's not the main argument, nor is it permissible under current precedent.

You will need to address the diversity rationale if you want to actually make an argument.

Though it looks like the cake is baked, and arguments don't actually matter in any kind of practical sense at this point.

[Armchair Lawyer]

Ah yes... you get to engage in racial discrimination as long as you're promoting "diversity"...but you get to define what type of diversity you're looking for.

That's a flawed argument that just asks to be abused by racists.

[Sarcastr0]

Ahh yes, the 'all these white folks that run universities are race traitors' argument.

No, that's not a very good argument.

'All discrimination is infinitely bad and can never be permitted' is going to prove way too much.

[BravoCharlieDelta]

"‘All discrimination is infinitely bad and can never be permitted’"

That's what you people seemingly like to argue in cases involving gays and transes.

[Sarcastr0]

No, we just don't find making you angry and horny at the same time much of a cost.

[BravoCharlieDelta]

I love how you try to insult me by insinuating I'm homosexual or trans.

What is it about homosexuality or transgenderism that you find so vile, filthy, and disgusting that you use them as a way to insult others?

[Sarcastr0]

You got it - my main issue with your posts is how gay and trans they are.

Incredible reading comprehension.

[BravoCharlieDelta]

making you angry and horny at the same time

What were you insinuating there?

[Sarcastr0]

That your insane hate-on for gay people comes from a pretty complicated place emotionally.

[Joe_dallas]

Sacastro - go back and read the trial court findings of fact in the Grutter case. As noted by the trial court, "diversity " was a de facto quota.

Diversity for all practical purposes is a quota system, just using nicer words to hide the intentional discrimination.

[Don Nico]

Not really Joe. It is more like the old saying about pornography, you know it when you see it.

Let me be specific. You walk into a large government lab and look around almost all the scientists are white. Management says: that is the national pool we can draw from we did not do any thing wrong.
So look look around again, this time at the technicians, who are all hired from the local pool, but that group looks far different to the mix that you saw earlier that day on subway. You know that there is something wrong with management's hiring practices and that needs to be fixed.
This is not a hypothetical; it is an actual occurance.

[BravoCharlieDelta]

"You know that there is something wrong with management’s hiring practices and that needs to be fixed."

Management must also be responsible for the characteristics and qualifications of the people who apply too!

Genius!

[Joe_dallas]

Don - I was referring specifically to the Grutter case (though my mistake for not pointing it out). That being said, the "diversity" rationale has become the operative word to describe the de facto quota's

[Sarcastr0]

I continue to call on you to do more work on this 'de facto quota' argument you bring up.

Currently, admissions is done qualitatively (after presumably some threshold triage).
You're saying it's effectively equivalent to a quantitative metric.

I think that's pretty unlikely, and would like to see how you bridge the gap from qualitative to quantitative.

[Joe_dallas]

read the district court opinion in Grutter

It spells it out

[Sarcastr0]

That case deals with having a point system including a racial set-aside.

That is NOT what Harvard is doing.

You keep taking refuge in this 2003 case that Harvard's policies are already taking into account.

[Joe_dallas]

Sarcastro - changing the color of the lipstick doesnt change the pig

All harvard has done is a few cosmetic changes. You should be observant enough to recognize the deception

[Sarcastr0]

All harvard has done is a few cosmetic changes. You should be observant enough to recognize the deception

Well, I'm not that observant. Walk me through it?

I've seen no real engagement from you on how what they are doing *now* is the same as a quota. How is it only cosmetic? How is the deception evident?

[Joe_dallas]

only a change in methodology to achieve remarkably similar results

[Sarcastr0]

You cannot prove means by looking at ends alone.

Under Grutter, quotas are an impermissible methodology. Not results; methodology.

You don't get to waive your hands at the methodology - the main issue in this case - and declare you've decided it is the same as quotas without showing any work.

It's elementary that there can be multiple methods to get to a result. Your point seems to rely on this *not* being true. Sometimes it isn't true! But again, for that to be the case you need to show your work.

[Joe_dallas]

Sarcastr0 5 hours ago
Flag Comment Mute User
"Under Grutter, quotas are an impermissible methodology. Not results; methodology."

Except Uof Mich was using a quota and had been using a quota system for numerous years. See the district court finding of facts.

CA6 pulled the de novo stunt (along with other stunts - with assignments). The De novo stunt ignored the reality and took Uof Mich pleadings as gospel, and discovered critical mass.

What is surprising is that you are unable to recognize that modifications to the methodology designed to achieve the same / similar results are some how not a defacto quota.

Same pig - just different lipstick

[Sarcastr0]

Holy fuck now we're back in 2003 yet again! This is insane.

[Brett Bellmore]

Sarcastro, maybe you should check out a dictionary before declaring that a quota isn't the result?

[Noscitur a sociis]

That case deals with having a point system including a racial set-aside.

That’s Gratz. Grutter involved the same use of an individualized consideration of race as a plus factor that Harvard does (and specifically cited Harvard’s system with approval).

[Joe_dallas]

Noscitur a sociis 1 day ago
Flag Comment Mute User
"That case deals with having a point system including a racial set-aside.

That’s Gratz. Grutter involved the same use of an individualized consideration of race as a plus factor that Harvard does (and specifically cited Harvard’s system with approval)."

Both you and Sarcastro continue to ignore or simply fail to grasp what is happening in reality.

UofMich in 1990's /2000's
Harvard
UNC
are all using variations of a ranking system to achieve the "critical mass" / de facto quota.

[Life of Brian]

As noted by the trial court, “diversity ” was a de facto quota.

That to me was one of the most amusing parts of the oral argument: listening to respondents tap-dancing around the various forms of the question "how do you know when you've reached diversity?" and coming up with an endless stream of euphemisms for the word "quota." There's really no other intellectually honest answer (other than "we'll never really know" which has a bad look all its own).

[Sarcastr0]

I think the confusion you're facing is the idea that diversity and inclusion efforts can be a best practice, rather than some threshold goal.

[BravoCharlieDelta]

If you develop best practices to produce particular outcomes, who doesn't also develop assessments to see if those outcomes were achieved?

You're making a nonsense argument.

[Sarcastr0]

?
Best practices are not something you plan to end because some threshold outcome is achieved.

And they don't generally come from metrics-based program management, but rather from more lessons learned experiences.

[BravoCharlieDelta]

How do they measure the success of their practices?

I can see you've never been anywhere near the behind-the-scenes of an academic institution.

[Sarcastr0]

Well, that's another thing you're wrong about.

Along with your dire ignorance about policy and procedure.

[BravoCharlieDelta]

So you’ve been in or near university administration and saw with your eyes that they implement policies without any way to determine if those policies made a difference?

What university where you at? NW Clown U?

note: had to add that compass point in there to add additional prestige

[Sarcastr0]

"saw with your eyes" is quite a new goalpost.

I can have some understanding what schools do and try to do in admissions without being an admissions officer.

[TwelveInchPianist]

Calling something a "best practice" is just a circular argument you use when you can't actually justify the practice.

"Why are we doing this?"
"Because it's a best practice."

[Sarcastr0]

OK, chief.

[BravoCharlieDelta]

"How do we know this worked?"

"Because it's a best practice."

Sincerely,
Dean Sarcastr0

[Life of Brian]

I think the confusion you’re facing is the idea that diversity and inclusion efforts can be a best practice, rather than some threshold goal.

Well, at least you're honest that you think DEI should never go away (respondents couldn't be quite so brazen given Grutter's 25ish-year fuse).

Even so, that skirts around the core of the questioning in the oral argument (which makes me think you didn't listen to/read it): how do you measure whether your "best practice" is working or not?

[Sarcastr0]

Yes, I do think seeking diversity is an end to itself. And putting a metric on it is not a good fit for how it works (versus how the right is sure it works).

In my own stuff, I'm dealing with folks well later than educational admissions, but I like to look at educational background, educational discipline (don't just have plant folks in the room when you study plants!), home state, and yes, race and gender.

I do like race as a proxy, and I think it's myopic to forbid it, but for all my arguing with folks around here's bad arguments, I don't think it's existential or anything.

[CommentMonkey]

If you're using race as a proxy, what is it a proxy for? I don't understand how you can use race as a proxy without indulging racial stereotypes. Even if you stick to "positive" racial stereotypes, by implication, you're assuming other races lack the positive trait in question.

It seems to me you're always better off expressly asking for proof of the positive trait in question (e.g., "tell me about a time you overcame adversity" or "tell me about a time you adapted to being treated like an outsider") than relying on racial stereotypes or presumptions. It seems to me that, properly applied, this approach will generate a diverse pool of students/employees. But then, I don't work in hiring or admissions, so perhaps I'm wrong.

[Sarcastr0]

Good question! Note that I don't do hiring, I do grants.

It's a whole bunch of nontraditional background stuff. Class, career path, perspective, network, 'extracurriculars' as a prof.

To talk a bit more about network, there is a benefit there well beyond the gains from a group dynamic of diverse perspectives. There is a strong network effect wherein if you get just one person from a nontraditional cohort (again, class, race, school, gender, state), they will activate their network and grow your talent pool you can hire from.

I mean, everyone that does selection criteria can have their own take, but I myself don't find personal statements very enlightening. I will say that in general, you don't see that much in application requirements above the academia admissions level.

Finally, this is after they've reached a threshold beyond which I cannot predict how they will perform. You can weed out those unprepared pretty quick between resume and interview. After that, the resume-based criteria become less useful.

[Currentsitguy]

One assumes if you have a practice that is divergent from a totally neutral approach that there is some sort of tangible and quantifiable goal, and for that to be the case there have to be measurable and articulate benchmarks and goals.

It seems to be there are all sorts of "diversity" that would be desirable. Diversity of background, of viewpoint or ideology, of economic class, of geography...

Diversity of appearance strikes me as the most shallow, arbitrary and stereotypical of classifications. It exactly parallels the sort of thing that was fought against in the Civil Rights Era, "Oh you're Black so you must be X. Great! We can tick that box off on our demographics survey."

If anything, it pigeonholes students into the exact sort of rigid roles and expectations they are purportedly trying to combat.

[Sarcastr0]

One assumes if you have a practice that is divergent from a totally neutral approach that there is some sort of tangible and quantifiable goal

I'm not sure that's right. At least as to the quantifiable part. Brown didn't cite a particular quantifiable issue with segregation, but rather qualitative stuff.

This is my own biases coming to the fore, but I don't like the current trend towards quantitative studies in social science; I think it misses a lot in making the square peg of human nature fit into the reductive round hole of metrics.

[Currentsitguy]

That sort of approach reminds me of the lyrics sung by Lee Marvin in Paint Your Wagon:

"Where am I goin'?
I don't know
Where am I headin'?
I ain't certain
All I know
Is I am on my way"

[Sarcastr0]

On the contrary, I think pegging everything to a threshold metric of success is a horrible idea.

That leads to the kind of myopic bean-counting beurocracy that made for the worst of 1960s policymaking.

Some thresholds? Good. All thresholds? Bad.

[Currentsitguy]

So if there is no, as you call it "threshold metric" how do we know if the current policies fulfil the Least Restrictive Means test?

First it remains to be determined if something superficial such as racial diversity is a compelling interest in and of itself, and secondly is a back door quota system, if such an interest even exists, a violation of Equal Protection?

[Sarcastr0]

how do we know if the current policies fulfil the Least Restrictive Means test?

I like this pointed line of questioning! Maybe I'm just tired of being called racist.

Anyhow, while there needs to be a goal, not all ends connected to a means require a threshold. And I don't believe you need a threshold to ensure narrow tailoring.

it remains to be determined if something superficial such as racial diversity is a compelling interest in and of itself
True; that was always resting on some tilting ground in Bakke. My only objection before that inevitably falls before the current SCOTUS is that I'm not sure you should examine the issue of race as a factor in isolation.

I don't buy the quota thing at all, if Harvard is doing what they say they're doing.

[Don Nico]

without those quantitative measures how do you satisfy the OMB requests for proofs in the logic model that describes your grants program?
Those quests for metrics are not just from the '60s. They have been alive in federal programs up to the present.

[Sarcastr0]

without those quantitative measures how do you satisfy the OMB requests for proofs in the logic model that describes your grants program?

Logic models can have threshold metrics or optimization metrics that have no threshold.

Though in general fundamental research is judged by technical excellence on the front end, not results on the back-end.

[tkamenick]

Except they literally kept talking about their quantitative metric at the end of the process. Even if they're not "secretly" doing points, what they're doing is being measured at the back end and if it's not giving them the outcomes they want (particularly sufficient amounts of particular racial backgrounds) they change their up-front system. That's what they said they are doing, and that's what the progressive justices said they wanted. They care a LOT about the outcome.

[Sarcastr0]

what they’re doing is being measured at the back end and if it’s not giving them the outcomes they want (particularly sufficient amounts of particular racial backgrounds) they change their up-front system

'Sufficient' doing a lot of work here. Again, something can be good practice without setting a quantitative threshold on it. And I don't think you've established that threshold exists.

[Krayt]

Yes, your best practices idea is a good one.

However, people don't get bent out of shape with lack of (sufficient) diversity because, shit, the organization is at suboptimal efficiency at something.

They get bent out of shape for lack of diversity-nee-euphemism for lack-of-affirmative action.

[Brett Bellmore]

Sarcastro, a "quota" is literally having a numerical end result you won't deviate from. And the schools have admitted to having that, they just won't use the word "quota".

But, "X is illegal, sure, but I'm using a synonym instead, so I'm OK." is not a viable legal defense.

[Sarcastr0]

Harvard has admitted to having an numerical end result it won't deviate from?

That's different from their admissions page.

[Don Nico]

Following up, let me describe what affirmative action without quotas might be in the case that I described.
Deep Blue San Francisco Bay governments building and suporting strong technical training programs in the areas community colleges and even high school. Doing so would diversify the technician workforce with no subterfuge in sight.
What is done? extremely little.

[Sarcastr0]

You won't fine me arguing admissions policies are a panacea. They are a yes/and thing.

[Don Nico]

And that has what to do with my comment?

What I described, and what SF does not do, would bring many more URMs into the workplace than any quota system.

[Sarcastr0]

You treat it as an either/or.

I think it's a both/and.

[Don Nico]

Again you willfully misunderstand the comment so that you can bridge to your message.

[Sarcastr0]

Not willfully misunderstanding anything.

Are you arguing that SF not doing this policy means they're not sincere in their affirmative action efforts?

[Don Nico]

I am not treating it as either or.
I did not say that SF is insincere. Stop putting words into peoples mouths. You do that all the time as an MO.
I did say DF Bay counties are woefully ineffective by a very large factor in an area with dreadful under representation of URMs
You are so intent on making your defense of race based hiring that you can't see the forest for your one little tree.

[Sarcastr0]

The question I asked is exactly *not* putting words in your mouth, but trying to figure out what you're trying to say after you told me I was not understanding you.

Don't be an ass.

And I still don't see how saying that this policy you're advocating could be in addition to affirmative action is 'willfully misunderstand the comment.'

[Sarcastr0]

I am aware, Joe. But schools don't use that points-based style of admissions anymore, so your argument is a strawman.

"Diversity for all practical purposes is a quota system" needs a lot more work. Once it's not a numbers game, calling it a numbers game seems weird.

I know you and Brett and a few others think that schools are *secretly* still using the points method, but that is something you need to establish.

[tkamenick]

Also, you're ignoring that "best practices" is not the (supposedly) compelling government goal. It's diversity, but they refuse to acknowledge that's an outcome-based goal.

And for the record, "best practices" is to stop treating people differently based on the color of their skin and the historical range of their ancestors.

[Sarcastr0]

I think I've been a bit sloppy with outcome versus threshold.

Admissions officers are seeking an outcome, but it's a tricky and comparative one; being more diverse than the counterfactual if they didn't pay attention to race at all.

I don't think that is the same as 'we have this percentage and then we're diverse.' I don't think that's allowed, I don't think it should be allowed, and I don't think that's what's happening.

[tkamenick]

Diversity has some overall general benefits - and downsides - but it never should have been categorized a "compelling" government interest. It's extremely far down the list of historic government practices and not even on the list of harms to protect people against.

[Sarcastr0]

I mean, I disagree as to it's importance.

I also think there are plenty of legit government interests that are not protecting against harm.

[Squirrelloid]

I'm sorry, the 'diversity rationale' is nonsense. Race is among the *least important* measures of diversity, even moreso if we're using the government's badly cordoned racial lines.

Beliefs, lived experiences, and modes of thought are real metrics of diversity.

[Sarcastr0]

Race is among the *least important* measures of diversity, even moreso if we’re using the government’s badly cordoned racial lines.

What makes you say that? Because I'd argue that race is pretty strongly correlated with certain lived experiences. See my point elsewhere about race-as-proxy.

[Squirrelloid]

Will there be some correlates, probably. (I'm not sure those correlates are durable over time. The inner city experience of Italians and Irish in the early 20th century probably better tracks with the black inner city experience today than with the Italian-american experience today or the average Black experience at the turn of the 20th century).

But there will be a lot of non-correlates too. African vs. African-American lived experiences will be very different. And Obama's children have a very different lived-experience than the black high school students I work with. (Heck, the students I've worked with don't all have the same lived experience.) And that's before we even get to beliefs and modes of thought. (For the most facile example, I've had black students who were muslim, christian, and non-religious. One of them had a minister as a parent. Those aren't just different beliefs, they involve very different lived experience too).

I'm also aware of a white student who had been adopted by black parents. Not my stories to tell, but let's just say that they have a very distinctive lived experience.

Or, as is at issue in this case, how uniform do you think the asian experience is? Would you care to lay odds on how similar a Hmong-american individual's experience growing up in Wisconsin is to a japanese-american individual's experience in San Francisco to a chinese-american individual's experience in NYC?

Race is a terrible proxy, especially when 'race' is the government reporting form.

[Sarcastr0]

You've given some anecdotes, but I'm not making a broad argument amenable to counterexample.

Race *alone* is indeed a bad proxy for nontraditional cohorts, I agree. But I also think race alongside other stuff can help make people who should stand out, stand out.

I would note that federally funded research tends to be a very white and male discipline at the moment anyhow.

[Squirrelloid]

And I disagree. I'm not convinced weighing race would add anything to evaluating life experiences that isn't better handled by an essay.

I'm not sure what federally funded research has to do with college admissions - that's a very different kind of application where merit of the proposed study is more important than the merit of the investigator. But I'm also not sure your statement is accurate anymore, either. (NIH's data suggest success rate of applications by race of PI has converged in recent years, for example).

[Sarcastr0]

Essays are kinda random in what they highlight.

And of course change the selection criteria to how well you can write an essay.

I don't much like essays, at least for my purposes.

[Rossami]

Why would you possibly ask for a proxy when you can directly ask for the thing you care about? If diversity-of-lived-experiences is the educational goal, ask that directly.

[Sarcastr0]

Why don't schools just ask for an essay that talks about people's extracurriculars, rather than looking at a list of them?

[Rossami]

When my son was filling out his college applications (a couple of years ago now), he did in fact have to write a paragraph about his extracurriculars. Not one of his applications asked for a mere list of them.

[Sarcastr0]

Schools don't *only* ask for essays, is my point.

[Don Nico]

Echoing Rosami:
Schools do ask for essays all the time.

[SheilaP]

“Of course, neither policy is actually race-neutral. Justice Sotomayor accurately called them “subterfuges”:”

This is the stupidest argument, so there are zero poor white people? Only minorities are poor?

As a child I was homeless, lived on food stamps and hand outs, hand me down clothes that were never the right size, and when a Marine came to our door on Christmas and gave me a doll, because my mom checked the “girl” box, I was crushed. I went to the exact same schools at the minority children, I was 1 of 3 white kids in jr high. But on an application to a university I am still white, a “plus” for socioeconomic status would give someone like me a leg up. It’s not subterfuge, there are millions of poverty stricken white kids that deserve the same chance at university as minorities. I am told that Hillbilly Elegy makes it quite clear that there is very real poverty in whites as well.

[apedad]

Different problems can have different solutions.

[Don Nico]

you did not really answer her complaint

[Life of Brian]

This is the stupidest argument, so there are zero poor white people? Only minorities are poor?

I think the point is not that there are zero, but that poor whites are a smaller percentage of their population than poor minorities. That means such a bonus scheme will disproportionately fall to minorities.

The 10% scheme is a bit more interesting -- I take it that's not race-neutral because (right now) high schools can sculpt the top 10% of their classes through non-race-neutral means, so colleges with 10% plans are basically just outsourcing the race-conscious conduct. That's probably the next round of litigation if the court flips these cases and colleges increasingly adopt 10% plans as the next easiest fallback, though in practice grade-based boots seem like they could be a lot more difficult to police.

[Frank Drackman]

Yes, only minorities are poor, Sleepy Joe said so, in his "Poor Kids are just as bright as White kids" quote, probably one of his few quotes he didn't steal from somebody equally as stupid.
Don't disagree, or you're a supporter of Illegal (at Bushwood) Alien Nudists who (allegedly) assaulted Mr. Nancy Pelosi.

[EscherEnigma]

It accurately reflects the legislative history and intent of such laws and policies.

Texas's 10% rule was made to help minorities get in. And as disparate impact analysis has shown, it does hurt Asian and white would-be students.

That you find this history insulting is irrelevant.

[steve sturm]

Question: how would a hypothetical alternative (such as honoring descendants of slaves) match up against a disparate impact analysis, as the alternative admissions policy would result in a 'desired' racial balance and was (likely) very much intended to achieve that very result?

[Don Nico]

I wonder that question when I go to my health care provider. It puts picture of the physicians on the wall of each department. The distribution is invariably at least 60% women. Looks like disparate impact to me.
So it could be that a new male MD might have a case to make.

[Frank Drackman]

Even worse in OB/GYN, back in the 80's most split tails wouldn't trust an XX to examine their snatchage, now it's the opposite.

[Gasman]

In a zero-sum world, a helping hand for one means a lesser opportunity for another.
The descendant of a slave may then take the seat of the descendant of a slaveholder, who by corruption of blood is sentenced to disadvantage as a result.

While the constitution mentions that corruption of blood is forbidden in the case of treason, by being moot on corruption in any other circumstance, maybe it is permissible in all other cases. And since conviction of treason is vanishingly rare, corruption of blood for unlimited generations is to be the ongoing law of the land.

[Frank Drackman]

Every justification for Affirmative Action sounds like a Yogi Berra quote.

[Joe_dallas]

Not surprisingly, Sotomayer continues her pro-discrimination arguments from Shuttee

[BravoCharlieDelta]

We absolutely know that PBJ will follow suit with her "anti-racist" (aka pro-discrimination) training.

[Ed Grinberg]

"Racism is awful! Well, except if it benefits me. Then it's A-OK!"

[Kleppe]

"I don't think that is what de jure means. She is describing de facto segregation."

Shocking that the justice who can't even pronounce the word correctly also doesn't understand its meaning. How many times did she say "du jour"? Incredibly cringe-inducing.

[BravoCharlieDelta]

Are you surprised that some affirmative action hire is also a moron?

[Ed Grinberg]

Hey, wait until there're Affirmative-Action brain surgeons...

[Don Nico]

Did you mean Ben Carson? He was actually highly competent.

[Frank Drackman]

should be "is"

[Don Nico]

He is not practicing medicine anymore. Hence, "was"
But I take your point.

[Bored Lawyer]

"How many times did she say “du jour”? "

Maybe she was thinking about what that day's soup would be in the SCOTUS cafeteria?

[bernard11]

Responding to Jackson’s hypothetical about two UNC applicants, Strawbridge says.

MR. STRAWBRIDGE: Well, for purposes of the hypothetical, I am assuming that the only significant factor in that story happens to be the fact of the race of the applicant and that the race was previously barred from attending UNC. Obviously, nothing stops UNC from honoring those who have overcome slavery or recognizing its –its –its past contribution to racial segregation.

But the question is, does –is that a basis to make decisions about admission of students who are born in 2003? And I don’t think that it necessarily is. I don’t think that the Equal Protection Clause suggests that it is.

That’s a terrible answer, which completely misses the point.

What Jackson is saying is that if you consider the first – white – applicant’s family background relevant, as schools do, and ignore that of the second, then you in fact are making race a factor in admissions decisions.

There will be applicants in each group, and those in the first group will be white.

[Jimmy the Dane]

"overcome slavery...."

Outlawed 150 years ago and was only legal in half the states to begin with....

Could the left even try to be any more disingenuous? I mean they usually just lie, and here they would be better off coming up with just about anything else, true or untrue.

[Mr. Bumble]

Wonder how the application of Barak Obama would be treatred?
The son of a White woman from Kansas a Black father from Kenya and the stepson of an Asian man from Indonesia.

[Frank Drackman]

Actually Slavery was legal in all of the 13 original states at one point, just didn't work as well in New Hampshire/New York, didn't really require 3,000 Slaves to tap some Maple Trees, and alot easier to shuffle off to freedom from Buffalo than Charleston...

[Don Nico]

But, bernard, Jackson begs the question.
The school could perfectly consider the black students comment which happens to be highly correlated with race. , just it could consider SheilaP's background that she wants to the first in her family to be admitted to the Ivy League.

[bernard11]

Don,

I'm not sure how she's begging the question.

I do agree that admissions policies that take socio-economic background and the like into account are a good idea, as, by the way, much improved technical and vocational training.

Still, I think she has a good point that the whole legacy/big donor preference is very much, in effect, a preference for white applicants. So too are preferences for athletes in some sports. Not many inner-city schools have lacrosse teams.

[Squirrelloid]

I would completely support forbidding schools the ability to consider legacies and sports accomplishment for admissions, too. (Assuming they are state run or receive federal funding).

[Don Nico]

She does so by asserting that a question about family history is a question about race. Oh, in her mind it is, because she is assuming the point that she wants to make.

[bernard11]

But she is not talking about a question. She is talking about the applicants' essays and self-descriptions.

I think it's fair to assume that someone whose ancestors were slaves in NC until the Civil War is black, just as it's fair to assume that someone who will be the fifth generation in his family to attend is white. UNC had no black students until the 1950's.

In any case, her central point - that all the legacy preferences and whatnot disadvantage black applicants, is pretty damn strong.

[Don Nico]

Sure, the family history can reveal one's race. But her came is that the black student may not use that history because it reveals his/her race. But the white student can even though –as you say – the history also reveals his/her race.
Her point is not strong; it is wrong.
As for how much impact the legacy claim has; that is very questionable especially if the kid's family is not a big time donor. And even then it can be problematic.
As I started out saying, she is asserting the point that she is trying to prove. That is begging the question.

When I read scholarship applications, I've been much more impressed by the kid who is trying to be the first rather than the 5th.

[Sarcastr0]

I'm not sure that I agree that legacy admissions are not still pretty white:

https://www.washingtonpost.com/politics/2022/02/15/legacy-colleges-universities-black-brown/

[Jimmy the Dane]

I don't think any of the pro-racism arguments were very compelling and just made the advocates of such look like all they cared about was victim ideology.

[tkamenick]

"Justice Sotomayor suggested that there is still de jure segregation today"

She said discrimination or segregation, and this case is LITERALLY ABOUT de jure racial discrimination. Tone deaf.

[Gasman]

She has perhaps made the point that beneficiaries of affirmative action might not be as qualified. She is using de jure in a way that de facto, by context, seems to be her intent.

Or as tkamenick notes, maybe she means that the descrimination/segregation arrises de jure, from prior legal decisions.

[Jimmy the Dane]

Want a good read? Do an internet search for the doctor who took Bakke's med school seat back in the 1970's.

[Frank Drackman]

Got a name for the guy? Every time I search for "Who got Doctor Bakke's Spot" I get a million "Dr. Who" links,
Poor Bakke, was also rejected for being "Too old" at the then ancient age of 34, being a Marine Vietnam Vet probably didn't help either in the U Cal system.

[Ruqt]

Diversity? Does diversity in admissions correspond in any way to diversity in individual classes, activities, dorms? It seems that students can choose dorms and clubs by color - at least certain students can. Some majors are certainly weighted by race whether ethnic studies or math. Schools apparently cannot force diversity on students selecting courses, choosing segregated dorms, forming Native American cultural clubs. I would have like to hear Justice Thomas' question about diversity explored at the class / club / dorm level.

[Publius_2020]

While I agree that Justice Kavanaugh very eagerly put up some extraneous guardrails in his Dobbs concurrence, I think the examples given here are different because narrow tailoring is explicitly an issue in 14th Amendment cases (including this one). Thus, you should expect discussion of what would be accomplished by alternative means, like 10% and economic status (both employed in Texas and California).

[Brett Bellmore]

"I didn't realize till afterwards that I unconsciously parodied George Wallace's inaugural address: "segregation today, segregation tomorrow, segregation forever.""

I am finding this extremely difficult to credit...

[Gasman]

It's the dirty little secret of the left and progressives, that the cure for racism is... more racism.

[ReaderY]

Question. Could descendents of Russian serfs, or Ottoman slaves, get a preference allocated to descendents of slaves? What about Jews (land of Egypt and all that).

It’s quite likely most people descended from slaves, probably everyone if we could go back far enough.

[Ben_]

Of course they only mean slavery in America. Every other society in world history gets a pass. America must always be judged by an unfair double standard. (Not because the people doing it are anti-American though. Never, ever, ever say that.)

[Krayt]

America did industrialize slave gathering. In olden times, your city-state lost the war, you became slave class, sucks to be you.

Of course it takes two to tango and Europe provided the market.

And western philosophy developed an idea it was wrong to own your fellow man. That's where inferiority memes rose up to compensate and keep the industrialization moving

[bernard11]

Question: Isn't "descendent" an adjective?

I am descendent from my grandparents. I am a descendant of my grandparents.

[Krayt]

You know who's one testicle never descended, don't you?

[Jacob Grimes]

I'm surprised no one is bringing up Kagan's "it just doesn't matter if our institutions look like America" and "I thought that part of what it meant to be an American and to believe in American pluralism is that actually our institutions, you know, are reflective of who we are as -- as a people in all our variety."
If merit admissions don't produce a racial cross-section of America, so be it. That's an issue for the legislature to solve, not SCOTUS. Kagan's supposed to be the intellectual one, and she says stuff like this?

[Rossami]

Seems to be a typo in the middle.
"I counted about then consecutive questions"
about three? ten? thirty?

[CFred]

“the benefit for former slaves was not race-based. If that’s correct, then the benefit for descendents of former slaves is also not race-based” Depends on how they define “slave”. I’m the descendant of prisoners and indentured servants sent to Georgia. Before that I can trace ancestors back to land-tied serfs in England and Scotland. A good argument could be made that I’m a “descendent of former slaves”

[vrkboston]

Exactly the point I was about to make. I realize that snark is not a good mode of Supreme Court advocacy, but Kavanaugh's question deserves the response "Depends on how far back you go. Ancient Egypt? Serfdom? If so, then not race-based but it covers virtually all of humanity."

[EscherEnigma]

If you can trace your personal ancestry back 5000 years to ancient Egypt, then you belong to a family that has enough money to not care about AA regardless.

AA doesn't impact people with money. It's only about the people without it.

[Rossami]

Yeah, because every family has equal assets to all resources. "Poor cousins" are only in fiction, right?

In fact, every family has one or maybe two folks who are really into genealogy and map out the family's history as far and wide as they can. Everyone on the tree gets the benefit of that weird aunt's obsession regardless of who does or doesn't have money.

More to the point, AA does impact people with money. That's the big problem. It gives an unneeded leg up to the child of a black millionaire while locking out the child of a poor asian. If AA benefits were handed out on the basis of economic need, it wouldn't be affirmative action.

[EscherEnigma]

You know what? You’re right.

Instead of suggesting that any such family must be rich (because face it, without having a family that’s consistently rich and powerful, you just don’t get to trace your line back that much), I should have just said “no such family exists”.

Because no such family does exist. The longest is 2500 years going back to Confucius.

So, uh, sorry for falsely suggesting that any family that can trace their ancestry for 5000 years must be rich, I should have just laughed at the ridiculous hypothetical outright.

Edited: noticed the poster changed, so it wasn't *your* stupid hypothetical, just *a* stupid hypothetical.

[Brett Bellmore]

Benefit on the basis of of one's ancestry; Wouldn't that run afoul of the nobility clause?

[EscherEnigma]

Nah. If you start down that road then Legacy Admissions are an obvious problem, and none of the activists going after AA want to touch that.

[Brett Bellmore]

I'm fine with getting rid of them.

[Frank Drackman]

My med school class had 1 token Black guy, dude showed up late (when he showed up at all, first time I heard the term "CPT"(Google that @#$%), left early, did pretty well on the rotation written exams, of course he'd taken them the year before which is how he got put back into my class. Did manage to grad-jew-ma-cate, is a successful plastic surgeon in Beverly Hills.

[Gasman]

My med school class had 4 blacks of 106, which is about representative of my state.
Three of the blacks had graduate degrees upon matriculating, two with biochemistry, one with anatomy, and one had been a teaching assistant in anatomy for the medical school's anatomy class. All three flunked out in the first semester. The one with a masters in anatomy and had ostensibly been teaching that course could not actually pass that course; likewise for the two with biochem masters who failed biochem.
Fourth student had the good fortune to have had an honor code allegation, and no one in administration wanted to touch that, so though having failed two classes that fall semester, was kept on board. He basically took no more than a half load of classes from then on, and graduated in his eighth year out of four.

[Frank Drackman]

What do you call the guy who graduates last in his class after 8 years? I was down there myself, class rankings are highly overrated, lucky for me the Gas Biz wasn't as competitive in the mid 90's, was seen as a dead end, all the "Smart" kids were going into FP, Suckers.

[EscherEnigma]

I don't know how these lawyers do it.

If a SCOTUS justice asked me to explain why SCOTUS didn't put a sunset provision on the SCOTUS's previous decisions on affirmative action, I'd laugh and say that's their fuck-up, not mine.

The simple fact is, every AA policy in place today solely exists because of the SCOTUS. From "holistic review" to Texas's 10% rule, these are all efforts to comply with what the SCOTUS has said is an acceptable motive and an acceptable path to that motive. That the SCOTUS changes it's mind every couple of years is the SCOTUS's fault, not anyone else's.

The fact that anyone is treating this like a serious question of law, rather then a brainstorming session for the SCOTUS to decide what the AA policies of the next five-to-ten years will look like, shows that they're all much better then I am at not laughing at clowns.

[LGDaub]

"Throughout the arguments, the Chief Justice seemed annoyed by how Justice Sotomayor was cutting off the lawyers, and not letting them answer questions. ...
The pattern repeated itself throughout the day."

This is the old Senate saying: "If you have the votes, call for a vote. If you don’t have the votes, keep talking."

[ragebot]

I am still having an issue with what is a legit government interest. Not much doubt in my mind something like national defense qualifies. Back in the day creating well placed lighthouses to keep ships from hitting reef was claimed to be one since it saved money. Things like that make sense to me.

For many years public education was thought to provide a public benefit worth the cost but now there is a significant movement to move to home schooling or private schools which often provide kids with better, or at least more useful (reading, writing, math) skill than many public school educated kids wind up with.

To some extent it has reached the point where too many special interest groups are claiming their special interest is a legit government interest. Maybe even more important is what priority the varied government interests should be ordered in. Not to mention the cost of what implementing specific government interests will entail.

[Brett Bellmore]

I think one can argue about what qualifies as a legit government interest, but that the government (And it's agents.) can never have a legitimate interest in violating any provision of the Constitution.

Which is why I find "But there's a good reason! (Compelling interest)" jurisprudence so offensive. But understandable, since the judges ARE selected by the people whose decisions they're judging.