The Volokh Conspiracy
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My New Washington Examiner Article on the Supreme Court's Ruling on Racial Preferences in College Admissions
The article assesses strengths and weaknesses of the Court's decision, and what it will take to implement Chief Justice Roberts' admonition that "[e]liminating racial discrimination means eliminating all of it."
The Washington Examiner just published my article on the Supreme Court's recent ruling against racial preferences in admissions at Harvard and the University of North Carolina. Here is an excerpt:
The Supreme Court's ruling against racial preferences in college admissions not only upends the controversial policy but redirects the wider debate about what constitutes a "colorblind society" and how to achieve it. But much remains to be done to heed Chief Justice John Roberts's admonition that "eliminating racial discrimination means eliminating all of it."
The decision, centered on affirmative action policies at Harvard University and the University of North Carolina, severely restricts, even if it doesn't completely ban, the use of racial preferences for purposes of realizing possible educational benefits of "diversity…."
Roberts's majority opinion effectively outlined many of the flaws in diversity preferences, including nebulous goals, reliance on crude racial classifications and stereotypes, and the unconstitutional use of race as a "negative" to disadvantage Asian American applicants, among others. Justice Neil Gorsuch's concurrence correctly pointed out that the cases could have been resolved more easily by relying on the plain text of Title VI of the Civil Rights Act of 1964. Despite some flaws in the majority's reasoning, the decision is an important step forward. But much remains to be done to heed Roberts's admonition that "eliminating racial discrimination means eliminating all of it." Realizing the ideal of colorblind government will require steps that will be difficult for many on the Right as well as the Left.
I wrote about what it will take to fully implement color-blindness in government policy in greater detail here.
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Ultimately, we need the lower judiciary to be vigilant.
“we need the lower judiciary to be vigilant”
Then we are screwed. Half of them are leftists who are appalled by the “far right” supreme court.
Its like guns after McDonald. Years of judicial massive resistance.
Fair’s Fair, how about White Wide Receivers, get a 5 yard head start on the DB, or Black Field Goal Kickers/Punters get to kick 10 yards closer?? and might be tricky, but how about a 9 foot rim for the Vertically challenged??
Basketball is easy.
Instead of a fixed number of players, just allow each team a total 30 feet of players.
Five six-footers, or six five-footers, one one seven foot giant balanced by a five-footer and three six-footers, etc.
However the coaches want to do it, rounding fractional inches down, of course.
That would work if they modified the game rules to instead of a fixed amount of players each team is allow to field a certain linear feet of players.
You could, for instance just send in a few very tall players, or you could take the disruptive approach and send in a dozen or a dozen and a half dwarves and attempt to mob the other side off the court.
It would make short work of the other side.
I’d watch that kind of basketball!!
That would be fun to watch.
Senescent Joe was born 50 years too soon, now he could plagiarize Navin Johnson’s life story and get into Harvard instead of U of Delaware…
“It was never easy for me. I was born a poor black child. I remember the days, sittin’ on the porch with my family, singin’ and dancin’ down in Mississippi…”
Frank
So…
We will eliminate racial preferences when it comes to police work, courts, and jails? Awesome! I mean he did say “all”.
So…
To make up for past injustices, our only tool left is reparations?
Wait a second, to get something like car insurance, it can really depend on your neighborhood. So all Harvard has to do is pick from neighborhoods that are ‘disadvantaged’.
Problem solved!
Transgenders belong in concentration camps.
Artie Ray was banned.
This guy is welcomed.
Carry on, clingers.
Transgenders belong in concentration camps.
Hello troll.
I think what he means, is that since there’s really no such thing as “Trans-Gender” its much like saying “Mermaids/Witches should be in Concentration Camps”, now the idea of Men who want to pretend they’re women, Women pretending they’re men, being sent there is of course, horrid.
Frank
The other thing is that the middle will not hold forever, there will be a point at which it ceases to hold and things get ugly.
What *IS* the appropriate response to: “We’re here, We’re Queer, We’re coming for your children.”
What IS the appropriate response???
From the article:
“In 1860s America, the correlation between race and victimization by severe oppression was close to 100% — close enough to pass even very strict judicial scrutiny. That, obviously, is not true of today’s vastly more diverse black population. It is even less true of Latinos and other groups.”
This argument does work that the majoirty SFFA opinion does not. The holding has nothing to do with whether or not pernicious systemic oppression persists, or at what level, or directed at which particular racial sub-groups. The opinion effectively says no amount of oppression would save academic affirmative action because neither its goals nor its outcomes can be measured, except for demographic breakdowns–which the opinion says is per se unavailable as a metric.
The Court maybe *should* have left room for this inquiry, but I don’t think it did. And while Prof. Somin says Blacks in America “obviously” suffer less oppression than in the 1860s, the salient question is whether they currently suffer “enough” to merit a remedy.
Is not the solution, for those who wish to continue academic affirmative action to come up with defined measurable goals and associated objective measurements other than racial demographics ?
In reality the problem is that the current goals are plainly racist and the struggle is to come up with ways of camouflaging this. Which will fly with liberal judges but have less chance with conservative ones. The plan to rely on vagueness will work fine until a judge actually asks for specifics.
If the goal was actually non racist then it would not be hard to express it clearly and establish clear metrics that are not racial.
So it’s easy enough to say that the objective is to admit students with similar potential, and SAT scores don’t tell the whole story. And you can measure that by showing that students from a lower socioeconomic groups perform in final college exams better than people from higher socio economic groups with the same SAT score. This is not a hard metric to construct and it allows you to show that socioeconomic background is worth x points on your SAT score.
“So it’s easy enough to say that the objective is to admit students with similar potential, and SAT scores don’t tell the whole story. And you can measure that by showing that students from a lower socioeconomic groups perform in final college exams better than people from higher socio economic groups with the same SAT score. This is not a hard metric to construct and it allows you to show that socioeconomic background is worth x points on your SAT score.”
In theory, yes. But it is unlikely to be the case.
Ok, Ilya.
Two weeks ago (and even in Thomas’s concurrence), “race-neutral alternatives” like socioeconomic status were conservatives’ preferred substitute for affirmative action. Now, it’s a “surreptitious subterfuge” that must be snuffed out.
Are you moving the goalposts? Seems like the new conservative rule is some sort of warped disparate-impact theory where any admissions policy that’s statistically adverse to whites is automatically suspect.
Such as looking to socioeconomics.
Are you fucking serious?
Somin is a libertarian, not a conservative. So I don’t think looking at his writings will tell you much about any ” new conservative rule”.
A libertarian would have no problem allowing Harvard to admit whoever it wanted.
So no, he can call himself whatever, but he’s toeing the conservative line.
‘toeing the conservative line”
Points for using the correct spelling of “toeing”.
We don’t want him however.
Not so long as you fairies get to impose mandatory cake baking.
Get Coach Sandusky pretending he’s on the admissions committee.
Bush and Texas already dealt with this in the 1990s. If you voted for Bush twice then you should support going by high schools knowing full well high schools in Texas are largely segregated. So screw over Texans from the suburbs to win the votes of Latinos and Blacks and rural whites.
Yes, I wonder what Ilya thinks of Bush’s “subterfuge.”
Sigh.
What makes it a subterfuge is that they’re going to say that they’re doing on the basis of this, that, or the other thing, while continuing to actually do it on the basis of race.
That’s why they’re going “holistic”. “Holistic” is bureaucrat speak for “not actually documenting what we’re doing”.
If they were genuinely going to do it on the basis of economic disadvantage, or whatever, they could safely document all the decision making steps. They only have to obfuscate things because they’re going to continue admitting on the basis of race, and just SAY they’re doing something else.
Did you honestly not pick up on that?
This is the exact argument that the left makes about institutional and systemic racism.
Welcome to the party! Now you understand.
Yeah, what I understand is that the left spins stories about hidden institutional and systematic racism to justify openly imposing institutional and systematic racism. They ARE the evil they claim to be fighting!
I only wish Bush Republicans didn’t spend $5 trillion to slaughter innocent Muslims…seems like that money would have been better spent on DEI or literally anything else. Btw, Bush Republicans clearly believe MMT is fine so long as they pretend they think it’s crazy. Had we spent $1 trillion on reparations on 1/2021 instead of the “stimulus” we would be better off than we are today.
Tips on racism from birthers are always a treat . . . and a staple at the white, male, racial slur-tossing Volokh Conspiracy.
Holy shit! I just wondered which metro was bigger—St Louis or KC and so I found a chart with every American major metro population and % growth by year. In the Midwest all of the population growth seems to stop in 69/70 and so I couldn’t think of what major event happened at that time that stopped population growth in in the Midwest metros and NE metros…care to guess??
So… what’s your point? Should we both do it or neither do it?
If neither, then you need to help us eliminate disparate impacts that work against minorities.
Systemic racism is not hidden. It is not intentional at all. There are numbers and robust causality all over the place.
I give you it’s a bad name for what’s going on, given what the word racism conjures up. Systematic inequity or something would be better.
But just because you really don’t want to believe doesn’t mean it’s hidden.
Describe something “systematic” about the “systematic racism” you perceive.
I think you are substituting the concept of system for the concept of invisible hands.
As Smith explained, the invisible hand is not a system, it’s the absence of a system. And in the absence of any system it turns out that butchers, bakers and candlestick makers out for their own interests happen also to serve ours.
Likewise the fact that slaves when freed are likely to join the lower socioeconomic economic ranks and people in lower socioeconomic ranks are likely, or at least likelier than average, to beget children who are also in lower socioeconomic ranks does not constitute a “system.”
At most you have probabilities which applied to large aggregates generate statistics, which might resemble the statistics that you might imagine a systematically racist hand might produce.
But there is no hand any more.
There is a difference between relying on socioeconomic status because you are interested in socioeconomic status and relying on socioeconomic status as a proxy for race. See Personnel Administrator v. Feeney.
What if you’re interested in socioeconomic status because of the racial inequities within socioeconomic status?
Ilya’s analogy is wrong — for him to be right, we would have to have Black motorists being denied driver’s licenses outright.
He’s saying that cops aren’t being *fair* to them — well professors aren’t *fair* to White males, either. And that’s what he’s missing.