Download Edited Version Of SFFA v. Harvard From Barnett/Blackman Supplement

I finished editing the entirety of Students for Fair Admissions v. Harvard. You can download it here: https://reason.com/wp-content/uploads/2023/06/Students-for-Fair-Admission.pdf.

It took me about ten hours to edit the entire 237-page decision. (I would have finished sooner, but I was stuck in United Airlines purgatory for much of the day.) The edited version is 57 pages. I realize this cut is probably far too long for a single-class session.

I need to give some serious thought to how to cover affirmative action. For starters, I think I would reduce the coverage of Grutter and Gratz. Fisher I and II probably fall out as well. In one class, I could reasonably cover the Chief Justice's majority opinion and Justice Sotomayor's dissent. Justice Gorsuch focuses at some length on the statutory issue, which is not really germane to a ConLaw class, so I would probably skip it. And Justice Kavanaugh's concurrence repeats the 25-year theme over and over and over and over again. I would skip that as well. Justice Thomas's concurrence--especially the originalist defense of the color-blind Constitution--would make more sense in the chapter on the Reconstruction Amendments, after Plessy. I know that Justice Jackson's dissent will win plaudits from progressives, but there is very little actual law in it. Her entire dissent may be suited for a seminar on race in the law, but only a short excerpt would be needed for a 1L class.

I will have much more to say about this case. And I'm way behind. I have lots of thoughts on Mallory. And I didn't even get to read Groff or Counterman yet. Stay tuned.

Comments

[Dr. Ed 2]

What I'm seeing is a second incarnation of George Wallace from Massachusetts politicians. See, for example, https://commonwealthmagazine.org/courts/supreme-court-strikes-down-use-of-race-in-admissions/

They aren't going to change anything anytime soon...

[Frank Drackman]

For someone who can't tell XX from XY Kagrungie Jackson Browne sure whines like a little (redacted), and just think, somewhere (probably in one of the "Reverend" Sandusky's hinterlands) is an Asian Surgeon/PIlot/Scientist who lost his Hahvud seat to KJB and had to make do at MIT or NYU or shudders, even an SEC School (you know, those low brow Diploma Mills like Vanderbilt)
now return you to Kinder/Gentler Frank

[Dr. Ed 2]

To understand Browne you have to go back to the late 19th Century and the debate between Booker T Washington and WEB DuBois — Browne, like much of American academia of the 21st Century, is textbook DuBois.

I’m way oversimplifying here, but DuBois believed in a 10% elite — that 10% of the Black population should have Ivy League educations (as he did) and that they should both speak for and govern the other 90%. Hence DuBois saw “equality” as being for the education and social respect of his top 10% (in reality, less than 1%) and not the Black population as a whole.

The easiest way to understand DuBois is in the terms of circa-1950 labor unions and the concept of union officials being an elite considered equal to top management, and the union (not management) getting to speak for labor. Hence the guy running the drill press on the third shift only had a voice through his union, not independently — with the union intervening on his behalf to protect him from racism. (DuBois sought to use the heavy hand of big government to do this — and DuBois was also a socialist, arguably a Marxist.)

Compare this to Booker T Washington, who (unlike DuBois) was born a slave and who hadn’t gone to Harvard. Booker T was more free market, he sought to educate all the Blacks in the then-new “Scientific Agriculture & Mechanics” (A&M) to the point where the White racists couldn’t afford to be racists anymore.

If your crops are failing, your horse is lame, your cows are dry and you are terrified that your wife is going to die in childbirth — and the Black man down the road knows how to prevent all of this (or knows other Black men who do), you’re gonna want to be his friend. Hence conceding that the freedmen would have the worst farmland and instead of fighting over that, helping them make it more productive than the better soils the White farmers had.

There is a lot more, including Critical Race Theory and the concept of collectivism versus individualism, but the debate in higher education today largely comes down to people like me who advocate dealing with the sad fact that the average Black male high school graduate has the reading and writing ability of the average 7th grade White girl, and those who would ignore this and admit the Black male to college by fiat, demand he graduate by fiat, and then be hired & promoted by fiat.

Kengii Browne is perfectly understandable to anyone who has sat through hours of graduate seminars on this topic — she’s textbook DuBois (and Thomas is textbook Booker T…).

And as to medical school, never forget what happened Black kid who got Allan Baake's seat in med school -- California *revoked* his medical license...

[gVOR08]

That Sotomayor made Thai dissent is interesting. Next thing you know she may come out against Federalist Justices having billionaire sugar daddy handlers.

[Tom for equal rights]

Summary of Sotomayors dissent

Banning discrimination she likes is unconstitutional . Has she read 14A?

Sotomayor &; 303 dissent – She can not seem to grasp the distinction between prohibiting discrimination/refusing service based on class vs refusing service based on actions. Very distinct difference.

[Rev. Arthur L. Kirkland]

That is also the summary of every conservative decision providing special privilege and/or carving out safe spaces for (certain) superstitious bigots.

Enjoy your last gasps, clingers. Revel in the current Supreme Court's flattery of white grievance, ignorance, superstition, old-timey bigotry, and billionaires bearing gifts.

Then, try not to whine so much when the modern American mainstream, victor in the culture war, enlarges the Court, reverses these decisions, and enforces ethical standards on morally casual justices.

[Frank Drackman]

"Reverend" Sandusky "LOSING!!!!!!!!!!!!!!!!!!"

[Reallynotbob]

I think Justice Kennedy's points in Fisher II about non-racial metrics are interesting counterpoints to Roberts' decision in SFFA. Roberts' decision here, as in Shelby County, seems premised on the a priori conclusion that racial discrimination has been adequately remedied in general--regardless of what Congress (Shelby) or educational institutions (SFFA) might say about it. For Roberts, it seems he believes the historical advantages of the privileged class have been evened out such that all members of society have an even shot at success. What's more, he appears to believe that it is the exclusive province of the courts to determine remedies for any vestigial racial inequality. That seems to me to be the way to reconcile his view on SFFA with the Alabama gerrymandering case, Allen v. Milligan. Roberts assumes racial inequality occurs only on a case by case basis, which can be evaluated using the court fact-finding system. He leaves little room for policymakers to address more systemic aspects of racial inequality; those are ipso facto unConstitutional because his version of the 14th Amendment only permits color-blind policy remedies even if the harm to be addressed is color-ized.

Here's an excerpt of Kennedy's concurrence in Fisher II questioning whether colorblind approaches can fix racial disparity meaningfully. Kennedy assumes the "goal of educational diversity" is Constitutional; Roberts is saying it's not--at least not with respect to race (or gender?). To teach affirmative action usefully, I think one has to wrestle with the Kennedy concerns--especially since he was no affirmative action hawk. Roberts says he's opening the door to holistic candidate consideration, which meets Kennedy halfway, but Roberts also makes clear that he will view college admissions policies dimly if their racial mix data does NOT change in coming years. Kennedy:

"Even if, as a matter of raw numbers, minority enrollment would increase under such a regime, petitioner would be hard-pressed to find convincing support for the proposition that college admissions would be improved if they were a function of class rank alone. That approach would sacrifice all other aspects of diversity in pursuit of enrolling a higher number of minority students. A system that selected every student through class rank alone would exclude the star athlete or musician whose grades suffered because of daily practices and training. It would exclude a talented young biologist who struggled to maintain above-average grades in humanities classes. And it would exclude a student whose freshman-year grades were poor because of a family crisis but who got herself back on track in her last three years of school, only to find herself just outside of the top decile of her class.

These are but examples of the general problem. Class rank is a single metric, and like any single metric, it will capture certain types of people and miss others. This does not imply that students admitted through holistic review are necessarily more capable or more desirable than those admitted through the Top Ten Percent Plan. It merely reflects the fact that privileging one characteristic above all others does not lead to a diverse student body. Indeed, to compel universities to admit students based on class rank alone is in deep tension with the goal of educational diversity as this Court’s cases have defined it."

[The Margrave of Azilia]

How has educational diversity worked out in practice? Are top universities hotbeds of bold, fearless debates on the most vital issues?

It might be a good idea to look at the problem at the source - the precollege educational program. Is every student getting a chance at a thorough, rigorous education, the kind of education Asian parents tell their kids they need if they want to even remotely hope to get into Harvard?

[Dr. Ed 2]

See above re Booker T Washington v. WEB DuBois.

Which is more important -- one Black kid graduating from Harvard and knowing Latin & Greek, or a couple hundred graduating from the Tuskeegee Institute and knowing how to run a (profitable) dairy farm?

You have to realize that Browne & Sotomayer would say the one kid going to Harvard...

[Magister]

Trolley problem, Dr Ed 2 edition.

[Krychek_2]

For an alternative viewpoint:

https://freethoughtblogs.com/pharyngula/2023/06/30/rerouting-around-the-damage/

Here are a couple of money quotes:

"Our constitutional history is built on a document written by wealthy slaveholders, in a country that has long discriminated against people based on the color of their skin. Those Supreme Court wankers may not understand that history, but universities are full of people who do, and are going to be working hard to defy the court and continue to promote diversity."

And:

"I don’t see much of it here in the Midwest, but it was infuriatingly common in East coast schools. It was egregious at the Temple medical school. One year I had two students working in my lab at Temple, and both were applying to the med school. One was a rather lackadaisical student who was full of confidence that they would get in — they didn’t have to worry about grades (and it showed) because they had a grandparent and two parents who were Temple med grads, and they were white. The other was a passionate, hard-working young person with near perfect grades who wanted to get a degree and open a clinic in their black, North Philadelphia neighborhood.

"Guess which one waltzed into med school, and which one was repeatedly denied? It drove me crazy. I was writing these glowing recommendation letters, but they didn’t help at all. The students were all fully aware of how the deck was stacked, too. The white students counted on it, the black students had to work twice as hard to overcome it."

[The Margrave of Azilia]

"going to be working hard to defy the court and continue to promote diversity"

Massively resisting the court, if you will.

"I don’t see much of it here in the Midwest, but it was infuriatingly common in East coast schools."

I see glimmers of a compromise - ban racial discrimination in the Midwest, while allowing compensatory racial discrimination in the East.

[jmh530]

I read this over, but I'm still a bit confused on something. I get that Title VI of the Civil Rights Act applies to both UNC and Harvard. And I get that the equal protection clause of the 14th amendment applies to UNC. But how does it apply to Harvard? Or alternately, if there were a university that didn't accept any Federal or state funds, why would it apply?

[David Nieporent]

The EPC/14th does not apply to Harvard. But Title VI and the EPC are interpreted to mean the same thing, so as shorthand the court wrote the confusing thing it did, explaining it only in a footnote.

So, a private university that accepted no funding would not be bound by it. But that's almost impossible to achieve. Even students getting federal student loans triggers coverage.

[jmh530]

Ah, thanks. Do you know what footnote?

[David Nieporent]

It's FN 2, found on page 6 of the slip opinion.

[jmh530]

Thanks!