Life Imitates the Volokh Conspiracy

A reader reminded me of this blog post Jan. 24, 2022: Will the Supreme Court Ask Harvard How it Justifies Treating "Asian Americans" as a Homogenous Category? I wrote: "I'm not quite sure what Harvard's lawyer would or could say if asked why, say, Filipino, Nepalese, and Mongolian applicants are placed in the same 'diversity' category… We will never know unless one of the Justices asks."

Oral argument this past Monday, per Justice Alito (though questioning UNC's lawyer, not Harvard's):

JUSTICE ALITO: "But what is the justification for lumping together students whose families came from China with someone—with students whose families came from Afghanistan? What do they have in common?"

MR. PARK: So I agree that that would be a strange rule. And that is not the rule that this Court has established. It would require —

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?

Comments

[jimc5499]

It all about the visuals. If somebody questions their "diversity" all they have to do is point. It is funny that if a "white" student from Asia or Africa check the appropriate box, it is immediately questioned and they are lumped in with Caucasians.

[Archibald Tuttle]

I'm surprised that none of the justices pushed on viewpoint diversity. Shouldn't racist and sexist viewpoints be represented in any on campus conversation?

[Kazinski]

I think it would be 9-0 against allowing state sponsored discrimination or preferences based on their viewpoint.

But of course you already knew you were being ridiculous.

[Nige]

Obviously their actual ethnic origins are important and relevant and interesting, but in terms of education, it's all about rich vs poor.

[Mr. Bumble]

So all Black applicants are poor and all Asian applicants are rich?

[Roger S]

The embarrassing answer is that Afghans and Chinese are both undesirable, for different reasons.

[Rev. Arthur L. Kirkland]

Prof. Bernstein will be voting with you on Election Day, Roger S, but he probably wishes you would be a bit more guarded with your comments at this blog.

[Rev. Arthur L. Kirkland]

My earlier comment no longer appears. If a link to the New York Times was the problem, here it is again, without the link:

You seem disaffected and cranky, professor.

Why?

Is it the longstanding record and predictable future of conservatives in the modern American culture war?

Is it awareness that most of your right-wing friends expect to watch you be sent directly to eternal damnation and hellfire after Jews have fulfilled their role in their fantasy version of end times?

It is concern about the effect of another Netanyahu election — and the role of Itamar ben-Gvir and similarly ugly lowlifes in Israel — on the American mainstream’s continuing willingness to provide (at great and varied cost) the military, political, and economic skirts behind which Israel operates? (Or worry that Russia might not be a reliable protector of Israel after Americans ditch the Saudis and the Israelis?)

Is it depression precipitated by conservative ideas’ failure at the marketplace of ideas?

The apparent collapse of legal right-wingery at the University of San Diego?

It is not too late to renounce the clingers and join the modern American liberal-libertarian mainstream, which might put you in a better frame of mind.

[Jerry B.]

A screed disguised as questions.

Have you stopped beating your wife, Rev? Please check the box that applies.

Y _
N _

[David Bernstein]

I think it's time to do what I've done and put Rev. on mute.

[phoqueue]

He's the only person I've ever muted here.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

I muted Queenie for a while, but unmuted both her and the Rev a while back. She's gotten much more varied, I've even learned a bit from her, and I like that reminder that I don't know everything 🙂 The Rev is just noise.

[Rev. Arthur L. Kirkland]

The Conspirators put me on mute.

Mainstream legal academia (at strong schools, especially) puts the Conspirators on mute.

No problems here that replacement is not already solving.

[BadLib]

He certainly was my first 'Mute User' -- however others have since fallen under me clicking that button.

I hope that the forum software enhancements eventually include an option to by default 'Collapse all responses below a muted response'.

(A simple '-' or '+' button by every comment to collapse or expand all responses and subresponses would also be nice of course.)

[David Nieporent]

You seem troll-like and anti-semitic, Kirkland. Why?

Is it because you think your many failures in life are the fault of Jews?

Is it because you're sad and alone and are desperate for attention?

Is it because your life is so meaningless that you have nothing better to do than repeat the same defamatory comments over and over and over and over again?

Is that the reason you've invented this persecution complex where you pretend you were censored — and pretend you've presented proof of that censorship!?!

[Rev. Arthur L. Kirkland]

How do you type with your lips so firmly affixed to the Volokh Conspirators' asses?

Prof. Volokh, in particular, is grateful for your sycophancy, but even he must wince when you claim the censorship he admitted never happened.

Carry on, clingers. Until your replacement, which your betters eagerly await.

[bc15]

So, what was Mr. Park's answer?

[Randal]

He reiterated what I've been saying all along, including in comments to David's post from way back, that the checkboxes are far from the only thing that they look at regarding racial diversity. They're just one of many pieces of info.

The dialogue goes back and forth a bit, where they talk about for example how preferences for rural kids work in a similar way, but here's the most concise version of his answer to Alito:

We think that in the context of everything else that we know about an applicant, it can matter, not always, and it's not -- there's no automatic plus factor that's given, but it can matter what an applicant's racial background is.

[phoqueue]

If they're telling the truth, the masters of holistic review can glean everything they need from the rest of the application. But if they're doing racial balancing or employing racial stereotypes, the check boxes serve an administratively useful function.

[Randal]

I think that's true -- they don't really need the checkboxes. But it doesn't help them to concede that, at least not yet.

Logically, the checkboxes are useful -- they do provide additional information. And legally, there's no way in the world that the court is going to decide that diversity is a compelling interest, the 14th amendment and title VI both allow consideration of race, but the Constitutional line is no checkboxes. That's just not going to happen.

It's possible that the checkboxes complicate the strict scrutiny analysis, but if that's what the court says, it'll almost certainly result in a remand, and the universities can decide at that point to concede the checkboxes (which I think they would, if it means they can still use race as indicated in other ways).

[David Bernstein]

If it's not an automatic plus, how can "it matter" beyond what you'd get without box-checking, i.e., someone writing an essay about how their ethnic background affected their life? What does the box add? This is exactly what Alito asked, and he didn't get a good answer, for good reason. It's all double-talk that anyone, except Randal, can see through.

In fact, Randal's vehement insistence that falsities are true and vice versa, and the manner of his vehemence, makes me wonder if Loki13 is back under a new pseydonym.

[Randal]

I don’t know who Loki13 is, but I feel like I would like him!

Look, I’m just quoting the universities’ advocates. Really, you’re accusing them of lying to the court. And the reason it’s a silly accusation is that the universities agree with you! The checkboxes by themselves are bad. It’s a weird position to take, David. Self-defeating.

Anyway, see my reply to phoqueue as to tactically, why they aren’t (yet) conceding the checkboxes entirely.

[David Nieporent]

But of course there is an automatic plus factor that's given. The actual data — rather than the self-serving comments about their processes — prove that. That doesn't mean that it's the only thing that's looked at or that it's dispositive — those are just straw men.

(Indeed, my favorite argument by Harvard was that they can't just use socioeconomic diversity because it would lower the black percentage there. That's how much of a thumb on the scale the checkbox is.)

[Randal]

I mean, that’s obviously true, but the courts seem really interested in the process anyway, for whatever reason. They’re the ones asking about it. So, the universities are answering their questions. You might think the questions are irrelevant, but that’s hardly the universities’ fault.

[BadLib]

A bit off-topic, but...

Has it been proven that a diverse student body results in a better outcome for students than those that are not diverse or is that just a premise we are supposed to accept with skepticism? Is that any more or less proven than that a homogeneous student body results in a better outcome for students?

It's not unbelievable that a homogeneous student body will work together more effectively from their first day as there would be fewer cultural hurdles to overcome. As well such a student body may be less "on guard" and more willing to have honest and insightful discussions about many topics as the fear of inadvertently offending a particular group or the fear of being "cancelled" may be substantially reduced.

Therefore I assume that those accepting favorable treatment of otherwise less qualified applicants in order to achieve diversity would equally accept just the opposite if a university believing in homogeneity favored, for example, whites (or "Asians") when "holistically and individually" assessing each applicant.