Students for Fair Admissions and the End of Racial Classification as We Know It (Re-Post)

[I'm reposting this because the linked article disappeared from SSRN's website soon after I posted it, until a copyright permission issue was resolved.]

My article, Students for Fair Admissions and the End of Racial Classification as We Know It, has been published in the new Cato Supreme Court Review. Here is the abstract:

The Supreme Court's decision in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College (SFFA) likely marks the beginning of the end of the overt use of race in university admissions. The Court's decision, however, has much broader implications.

Harvard University and the University of North Carolina (UNC) classified applicants based on racial and ethnic categories adopted by the federal government in the 1970s. SFFA concluded that these classifications were so arbitrary as to be unconstitutional. SFFA therefore offers a broad new avenue of attack for litigants challenging racial preferences and other race-based policies based on these ubiquitous classifications. Any entity that is sued for engaging in discriminatory preferences or for otherwise allocating goods or services by race will need to explain why the racial classifications they rely upon don't fail the arbitrariness test.

Part I of this article briefly reviews the history of the use of racial preferences by universities starting in the 1960s.

Part II of this article discusses how the SFFA case disrupted a cozy status quo, in which universities pretended to abide by the limitations the Court had imposed on the use of racial preferences and the Supreme Court pretended not to notice that universities were ignoring those limitations.

Part III of this article notes that, for the first time, a Supreme Court majority has concluded that the standard racial classifications used by universities and many other institutions are arbitrary and incoherent. This means that many other uses of racial classifications beyond university admissions are suddenly more vulnerable to legal challenge.

That is the subject of Part IV of this article. It discusses potential challenges to the use of race-based preferences in government contracting; to the mandatory use of racial classifications in biomedical research; and to the arbitrary standards the government uses to classify people as American Indians.

Comments

[Old Smokin' Egg]

If it's not too late to change it, there's a typo on page 151: in the first line, "overwhelming" should be "overwhelmingly".

[Dilan Esper]

IDK, I think there's going to be 20 years of litigation as to what extent colleges can use other sorts of preferences as proxies for race. And I doubt the results will be coherent.

[Dr. Ed 2]

Only 20?

[Randal]

Given the extent to which Thomas’s concurrence extolls the virtues of race-neutral alternatives, I think it’s going to be very difficult to challenge universities’ use of them. Kavanaugh’s too.

Even the majority opinion seems to endorse proxies in some places… although it rejects them in others, so you might be right about the incoherency part if we get some sort of noncommittal opinion on the matter in the future.

[Ben of Houston]

I have no problem with universities attempting to uplift the poor and the actually disadvantaged. That's the thing. Most of the proxies are measures of actual harm and negative circumstances. Each of these are far more important than skin tone.

[Brett Bellmore]

Some of the race neutral alternatives, the ones that aren't just holistic "We'll obscure how we do things so you can't prove we're discriminating!" bs, are pretty stupid on a policy level. Depending on what you think the purpose of education is, at least.

But if they're not racial discrimination, well, that's one battle won.

[Bob from Ohio]

"20 years of litigation"

Yes, just like the “Massive Resistance” to Brown. Forced busing and other remedial litigation reached well into the1970s.

Racists don't give up their racism easily.

[Frank Drackman]

When did Parkinsonian Joe change his mind about Forced Busing? Common-Law Harris busted his balls about it during that 2019 debate.

[Ed Grinberg]

What are you talking about?! Everyone knows Good Old Joe was right there, next to MLK, marching across that bridge in Selma, getting fire-hosed & beaten, etc., etc! Why, he talks about that all the time! (And nobody laughs!)

[Longtobefree]

So colleges can no longer OPENLY use race in admissions.

[Currentsitguy]

The curtailment of racial classifications in biomedical research concerns me. It’s common knowledge that certain races are more prone to certain disorders. Sickle Cell Anemia comes to mind.

It wouldn't make a whole lot of sense to launch SCA research on a bunch of Norwegians, for example.

[Rossami]

Nobody is saying that you can't use genetic traits in biomedical research. But doing that properly requires much better groupings of genetic traits than can be achieved using the racial and ethnic categories adopted by the federal government in the 1970s. The "official" classifications are essentially useless for biomedical research.

[Stephen Lathrop]

If compared to your "much better groupings of genetic traits," the official classifications better match the actual methods—including inference from skin tone, names, regional origins, etc., used in typical clinical practice to decide treatment choices—why won't the latter provide more useful guidance than the former, in cases where your more rigorous methods are found to be impractical, or too cumbersome, too time consuming, or too expensive, and thus go unused?

Do you suppose courts should have power to reform medical practice, even if the results are detrimental? What would make anyone suppose the courts have better capacity than doctors do to evaluate the relative practical outcomes of medical choices?

Note that I am not insisting that doctors cannot err, or that some of them will not make detrimental choices because of racial bias. I am instead asking what makes you suppose courts will not be similarly vulnerable, while knowing less about medicine?

[WuzYoungOnceToo]

What exactly makes you think that it's courts who will be establishing the details regarding evaluation/selection criteria regarding genetic traits? And Rossami referenced abandoning "racial and ethnic categories adopted by the federal government in the 1970s", not anything established via contemporary science.

[Tom for equal rights]

Rossami 3 weeks ago
Flag Comment Mute User
Nobody is saying that you can’t use genetic traits in biomedical research."

I think most everyone agrees with that philosophy. Unfortunately the drive for woke science / woke medicine has become very pronounced in academic circles.

[Brett Bellmore]

If they were replacing using race as a proxy for genetics with the actual genetics, that would be great.

But I don’t think that’s what they’re actually doing, in fields like organ transplantation. Because, I gather, the actual genetics don’t always dictate doing what’s best for the minorities.

Race, "Wokeness," and Kidney Transplant Shortages

[Sarcastr0]

The practical result of Powell’s compromise was that admissions
officers at selective universities continued to do what they had been
doing before Bakke, except without formal quotas. Admissions staff
first determined a goal for the percentage of African Americans and
other designated minorities they wished to admit. They then manipulated their admissions processes to achieve that goal.

This is offered in the paper as ipse dixit. Do you have a source for this?

over the previous decades the Supreme Court had
consistently and increasingly emphatically told universities that
they needed to use race in a narrowly tailored way, indeed only as a last resort. Nevertheless, like other universities, Harvard and UNC had acted as if they could do whatever they wanted so long as they didn’t use official quotas.
When there is a coming trend in the Supreme Court, the usual behavior is wait until the Court actually takes a case and rules on it to begin complying. SFFA was not a case asking for better enforcement of Grutter and Gratz, it asked for the law to be changed.

[Kazinski]

Read Roberts opinion in SFFA.

[Sarcastr0]

It says nothing about secret quotas. He says the programs are '=well intentioned and implemented in good faith.'

[Dilan Esper]

The best evidence of "secret quotas" is that the numbers didn't change year after year.

If you are just doing a "plus factor", you might see 8% Black enrollment one year, 15% the next, etc. But in many schools, the percentage never fluctuated. I don't actually think there's any doubt that the admissions offices were trying to get the same percentage year after year.

[Randal]

The percentage of applicants of various races doesn't change year over year either. If one was changing but not the other, then you might have a point.

[David Nieporent]

1) You completely made that up.
2) Even if it were true, it wouldn't explain the fact that Dilan cited.

[Randal]

1. No. Maybe the First Circuit made it up, but I doubt it.

The fact that Harvard’s racial shares of admitted applicants “varies relatively little in absolute terms for [those classes] is unsurprising and reflects the fact that the racial makeup of Harvard’s applicant pool also varies very little over this period.”

2. Do you not understand statistics? If the input is the same year over year and the output is also the same year over year, that tells you very little about the process that selects the output from the input. A completely random process would look that way, as would a purely test-score-based one, as would one using race-neutral alternatives, as would one using race as a plus-factor, as would one using racial quotas. If the input percentage doesn’t change year over year, and the process doesn’t change year over year, what exactly do you suppose would cause the wild fluctuations that Dilan thinks should be there?

[Dilan Esper]

Even if the number of applicants is the same (which I think Harvard massaged the numbers to argue-- the District Court factfinding in this case was VERY pro-Harvard and a different Court of Appeals might have reversed for clear error), the test scores should fluctuate from year to year. If you get the same percentage year after year, it is absolutely a quota.

[Randal]

Why should the test scores fluctuate from year to year? You're just making stuff up to fit your narrative. The evidence shows consistent applicant pools from year to year. The testing companies make year-over-year consistency a selling point of the tests. How else could they be used to calibrate over time? Variations in test scores year after year would be considered a design flaw.

You think Harvard massaged the numbers. You think the district court and circuit court were biased. Oh my god. Consider perhaps that you're the biased one here, making up facts and attributing bad faith and conspiracy theories to everyone else in order to hold on to your preconceived notions.

[Tom for equal rights]

Randal
Read the trial courts finding of fact in Grutter, then compare and contrast with with the CA6 de novo finding of fact. The CA6 findings of fact are a good example of making stuff up. Somewhat similar to the Harvard case.

[Ben of Houston]

Duplicate

[Ben of Houston]

In a sample size this large, nearly 2,000 students per year at Harvard alone, no you won't see a huge fluctuation. If the school is 8% black, that has a range of 150-169 students and looking identical. If you say +/-1% is the same, that gives you the range of 130-189, a 45% swing while staying between 7 and 9 %.

If you average over the entire Ivy League, the variation will be even lower.

So no, you wouldn't expect to see too much white noise in admission.

[Stephen Lathrop]

Nieporent, does that from Esper look like a factual assertion to you? If so, please explore methods to distinguish experience from ideology.

While you are at it, reflect again how your commitment to the ideology of meritocracy governs your opinion. You seem incapable to imagine what an admissions process absent meritocracy would look like, or to offer any argument to justify imposing meritocracy by legal fiat. Or, for that matter, to explain why a private institution like Harvard should not be at liberty to ignore meritocracy either selectively, or altogether, according to its institutional judgment.

[Brett Bellmore]

The argument for meritocracy is pretty simple: We have limited resources, they need to be deployed efficiently, and anything but meritocracy is inefficient.

You want the people who become doctors, plumbers, what have you, to be chosen on the basis that they're good at it. If you contract cancer, do you want to be treated by the guy who got into medical school because he was really good at medicine, or because of some arbitrary criteria unrelated to the practice of medicine?

Now, I'll agree that, in principle, to the extent that Harvard isn't a state actor, they really ought to be permitted to ignore merit, and treat people on any arbitrary basis they want. Not that they SHOULD ignore merit, that would be obnoxious and stupid, but that they should be permitted to do some really stupid and obnoxious things with their own resources.

Just like bakers and wedding photographers should be able to pick their customers arbitrarily, and landlords should be able to rent to whoever they want.

But, we're not in that country, are we? Why should Harvard get a pass on how other businesses are treated? If we as a society have rejected that vision of private sector liberty, why does Harvard get to enjoy it?

[Tom for equal rights]

Grutter is a prime example. The trial court's finding of fact was that the UofM law school had every year 19-20 african american admissions which the trial court found to be a obvious quota. See the trial courts opinion and Thomas footnote in his dissent.

CA6 then did a bogus de novo finding of fact taking the UofM pleadings as if they were factually true, and viola - found "diversity"

[Krayt]

I recall a few decades ago the state of Michigan requesting the admissions process details from U of M, who said no.

These are the same people who scream themselves purple of the importance of subpoening Trump's taxes so the elected legislators can study how the laws are being used, and if any changes are needed.

[Kazinski]

Well there was nothing secret about the quota’s.

But see the table showing admissions by race and the discussion about their process when after the initial screening the number of “minority” applicants did not reach the previous year.

[David Bernstein]

If the Supreme Court says, we will allow the use of race in this case, but we want to emphasize that race is only a permitted admissions factor if a university can persuade us that it has no other way to achieve racial diversity, and we mean it, and a university doesn't even try to document that it has considered but soundly rejected other means, it can and should expect to lose, as Harvard and UNC did. They wound up losing on broader grounds as well, but their failure to even consider alternative means of achieving diversity should have been enough. Maybe more important, the lack of such efforts is one of several factors that likely lost them the votes of Kavanaugh and Roberts, as in every previous case the most establishment conservative Justices flinched at prohibiting using racial classifications in admissions (and in contracting). Powell in Bakker, O'connor in Grutter, O'Connor and Kennedy in Croson and Adarand, and Kennedy in Fisher. But at some point, bad faith eliminates good will.

[Sarcastr0]

their failure to even consider alternative means of achieving diversity should have been enough.

First, you have moved from factual statements as I noted above into opinion.
Second, your opinion that these schools were out of compliance was not at all legally clear. While I agree with you as to the Court's clear momentum, that doesn't say much about the requirements of Grutter and Gratz.

the lack of such efforts is one of several factors that likely lost them the votes of Kavanaugh and Roberts
Here, I disagree. The Court was going to kill AA no matter what. It was moving that direction even before the current conservative court.

at some point, bad faith eliminates good will.
You did not establish bad faith, even taking your opinion that they should have done more to comply with the previous precedents. Roberts declaims bad faith. Your hostility to the policies doesn't mean they were done in bad faith.

[Kazinski]

Yep, they were done with the best of intentions, figuring they could ignore the law.

And you’re right the court was going to kill AA no matter what, 20 years ago the court said:
“We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.”

They didn’t say they would wait the entire 25 years until the clock ticked down to midnight. The fact that racial preferences were just as ingrained, with even less justification, and targeting another minority to achieve them, certainly indicates there was no need to see how much further colleges could go in 5 more years.

[David Bernstein]

Even if you think that Grutter was unclear on the need to consider and use all available race-neutral means to achieve diversity before resorting to racial classification, Fisher I and II were not.

[Randal]

a university doesn’t even try to document that it has considered but soundly rejected other means, it can and should expect to lose

True, but Harvard and UNC did give detailed analyses of why other means were inadequate. IIRC, only Gorsuch's concurrence really addressed this point, where he suggested Harvard could make up the difference by ending legacy preferences. (He didn't talk much about UNC because he was focused on the Title VI argument.)

[Brett Bellmore]

Inadequate by what standard, though? Failure to replicate the outcome of having a quota in place?

[Sarcastr0]

Yeah, Brett, that's what Harvard argued.

At least engage a bit with the discussion, don't just make up an argument (I'm sure you think 'that's what they really think') to strawman it down.

[Randal]

Inadequate by what standard, though? Failure to replicate the outcome of having a quota in place?

Obviously not. Inadequate in terms of the quality of students admitted as measured by the other characteristics the schools care about.

It’s again all basic statistics. If you can select the top we’ll say Somali students from all states, then you’ll be better able to optimize for the other things you care about. If instead you have to close your eyes and admit lots and lots of Minnesotans since Somalis are overrepresented there, you’ll have to dig deeper into the pool of Minnesotan candidates than is optimal (down to where the candidates are less qualified) and admit fewer candidates from other states (leaving those more-qualified candidates on the table).

That happens any time you’re forced to optimize one of your variables by proxying through other variables.

It also has the downside of leaving you with an admitted class where the students you’re trying to optimize for (Somalis in my example) will tend to overrepresent the proxy characteristic (Minnesota). Maybe the school would like to have more geographically diverse Somalis. This is a big problem with the canonical example of using socioeconomic status as a proxy for Black. That’ll get you a lot of disadvantaged Black students, rather than a mix of Black students from all kinds of backgrounds.

[Brett Bellmore]

"Obviously not. Inadequate in terms of the quality of students admitted as measured by the other characteristics the schools care about."

You're purposely being very vague with that "the other characteristics the schools care about." If they're the "other" characteristics, what's the primary characteristic here?

Race, obviously.

Essentially all you're saying here is that directly using race to effectuate a racial quota is more effective than achieving that quota using proxies for race.

[Randal]

Not trying to be vague, yes of course race is what the race-neutral alternatives are proxies for. It’s in the name.

But no, still not quotas.

The whole quotas-or-not turned out to be a pretty stupid distraction, but just to give it a good college try haha, here's my go at justifying the distinction:

Obviously Harvard has diversity targets of some kind. So how is a target different from a quota? A target is vague, soft and bidirectional. Vague means it’s a range, or maybe even a qualitative statement like “well-represented.” Soft means it interacts with other targets and goals that it may be in tension with, like test scores, so there’s tradeoffs to make… this is the “holistic” part. And bidirectional means that it’s neither a minimum nor a maximum, rather just a sweet spot.

Quotas are specific, hard minimums.

[Brett Bellmore]

The difference between a target and a quota is that you don't insist on meeting the target, that's all. If you always adjust things to hit the target?

Then it's a quota.

These schools make a point of always hitting the target, which means that they actually do have quotas.

But this is a bit of a diversion, because it's neither the quota nor the target that's the actual violation, it's the step where you treat people differently depending on their race.

You could have a hard floor, a hard ceiling, or a "target" you just try to meet, the issue is what you're doing to meet it.

[Dr. Ed 2]

"SFFA concluded that these classifications were so arbitrary as to be unconstitutional. SFFA therefore offers a broad new avenue of attack for litigants challenging racial preferences and other race-based policies based on these ubiquitous classification"

Hmmm, would this extend to racial discrimination law?

Massachusetts is the second most Catholic state in the country, with a large population of Irish Catholics who have (legitimate) historical grievances with both Protestants and those of WASP ancestry. And they discriminate against them in a variety of ways.

Are you saying that there will now be opening for litigation here?

[Ben of Houston]

Oh. In what way are non-Catholics discriminated against in Massachusetts?

[Rev. Arthur L. Kirkland]

They don't get the special privileges currently provided to people who claim to be relying on superstition.

[Frank Drackman]

Only Jerry Sandusky would consider the risk of getting buggered by a Priest "Special Privileges"

Frank

[Randal]

All based on a lie. Sad.

[Kazinski]

What is the lie?

[Randal]

Harvard University and the University of North Carolina (UNC) classified applicants based on racial and ethnic categories adopted by the federal government in the 1970s.

It's true that they classified the applicants that way for federal reporting purposes as required by the same federal law that created the categories... obviously. But they used finer-grained categories for admissions purposes.

[David Nieporent]

No, they did not, no matter how many times you say it. Since they did not collect the data, they could not use it.

[Randal]

Students can and do volunteer additional data beyond the federal categories that exist on the Common Application for reporting purposes. Admissions officers also have other sources of data like alumni interviews and other applicant interactions. Finally, they are able to (and do) cross-check their results with more detailed surveys of their admitted classes.

This is all spelled out in the briefs, lower court opinions, and arguments. You, David, and SCOTUS just decided to sweep it under the rug in order to maintain your narrative aka lie.

SCOTUS has shown a disturbing willingness to simply ignore the facts of cases lately. This one, and then also Kennedy and 303 Creative come to mind. Just, make up a fictional case and then decide it, seems to be the new normal.

[David Nieporent]

Students can and do volunteer additional data beyond the federal categories that exist on the Common Application for reporting purposes. Admissions officers also have other sources of data like alumni interviews and other applicant interactions.

So what and so what? If the admissions department doesn't track the information systematically for all applicants, it has no way to use it to build a diverse class. And the fact that they don't ask about it or track it systematically is proof that they don't care about it.

Finally, they are able to (and do) cross-check their results with more detailed surveys of their admitted classes.

Even if they actually do that, that's only after the fact. By definition information acquired only after a decision is made cannot enter into the decision making process.

[Randal]

So what and so what? If the admissions department doesn’t track the information systematically for all applicants, it has no way to use it to build a diverse class. And the fact that they don’t ask about it or track it systematically is proof that they don’t care about it.

Man where are your logic faculties today? Can you really think of no other possible reasons for why the Common Application might rather not systematically ask applicants for a detailed racial accounting?

And why would they do a follow-up survey if they didn’t actually care in the first place?

The answers to these questions are obvious and in the record.

[Stephen Lathrop]

By definition information acquired only after a decision is made cannot enter into the decision making process.

Nope. Information about the effects of processes used last time can guide practices during the next iteration. And doing it that way is exactly what an institution which cared about the results would do.

[Randal]

Obviously.

[John F. Carr]

"This paper has been removed from SSRN at the request of the author, SSRN, or the rights holder."

[Sarcastr0]

:-O

[Rossami]

Above says the article "will be published ... on Monday." I suspect that the error message is a default for any non-distributable entry but hopefully Prof Bernstein will confirm.

[Sarcastr0]

I read through a copy earlier this morning, and quoted from it above.
But I have no idea how ssrn works.

[Rev. Arthur L. Kirkland]

The Volokh Conspiracy: Official Legal Blog of White Male Grievance and Old-Timey Bigoted Butthurt.

[Idihax]

Blacks, women, homosexuals and all other "special" groups never wanted equality. They want special privileges, because they know they emotionally and intellectually can't hack it without those privileges.

[Rev. Arthur L. Kirkland]

They want special privileges, because they know they emotionally and intellectually can’t hack it without those privileges.

Is that why conservatives push for special privileges for bigots willing to claim their disgusting, obsolete bigotry derives from superstition?

[Krayt]

For decades and decades and centuries, these groups just pleaded tolerance, just stop using laws to hurt us, throw us into jail, enslave us.

And now the shoe is on the other foot, just a little bit, and now rights are a concern.

[Brett Bellmore]

So, history is supposed to just be an endless cycle of trading evil deeds back and forth? You can never stop, because somebody always has a grudge they want to discharge, and that's enough to justify continuing committing wrongs?

And it doesn't even matter if the people who benefit, and the people who get designated to be the fall guys, are actually descended from the original participants. It's enough that they sort of look the same, so don't expect it to matter if your own family history is innocent, or if the special treatment is received by a recent immigrant.

Do you even start to comprehend how monstrous the reasoning you're using here really is, or its implications if the majority ever started to embrace it? You think once the majority decide that collective guilt and debt assigned purely on the basis of appearance, not even family history, makes any sense, you think they'll be self-hating enough to decide to be on the losing side of that deal?

[Randal]

Brett, you're the one emotionally invested in pretending that everything is zero sum so that somehow you're personally injured every time a drag show happens without everyone involved getting arrested.

[Idihax]

Not to mention that it’s a stupid strategy. When push comes to shove, no one is more capable of resourcefulness and ruthlessness in pursuit of their goals than the white man.

Modern white men in the West may be largely tolerant of other people, but if they feel their lives and collective existence are threatened, they’ll create something that will eclipse anything we’ve seen before in horrors.

[hobie]

Brett, us US white folk have three centuries to atone for. And we've only gone through about 40 years so far (and it's been a pretty shitty 40 years of atonement. The last two years being particularly backward). Be a man. Suck it up.

I expect the Germans to atone for at least a century. And so far they've been doing a fine job of it without complaint. But you've been bitching every step of the way

[Absaroka]

"I expect the Germans to atone for at least a century."

I profoundly disagree.

My father joined up right after Pearl Harbor and spent the war shooting at, and being shot at by Germans.

What does a German born after 1945[1] owe me (or my late father)? Absolutely nothing. Kids don't inherit their father's sins, otherwise Bernie Madoff's grandkids would be in prison. Svetlana Stalin has nothing to atone for.

To do otherwise is to live in a perpetual Hatfield/McCoy dystopia.

[1]more like after 1925 or so ... they never had a chance to prevent Hitler.

[hobie]

I agree. Nearly every German alive is an innocent. But what Germany did has caused a national debt owed by the German people to the Jews and others…in perpetuity, in my opinion.

Same with us. We ain’t even close to doing right by all the black people in our nation. And if you think this AA decision levels the playing field, you’re delusional

And my father fought the Germans too and he also hated ni**ers. So I need to make up for his shit too. It's the least I can do while alive

[Absaroka]

"But what Germany did has caused a national debt owed by the German people to the Jews and others…in perpetuity, in my opinion."

And presumably France owes Germany a perpetual debt for the depredations of Napoleon? Italy owes France a debt for what Caesar did? Germans owe Italy for sacking Rome? Sweden for the wars of Gustavus Adolphus? The Angles and Saxons owe the Celts? The Norwegians and Danes owe lots of people for all the Viking rape and pillage? All in perpetuity???

As the computer nerds say, this doesn't scale.

[The Margrave of Azilia]

Time to send a bill to the Mongolians.

[Brett Bellmore]

"Nearly every German alive is an innocent. But what Germany did has caused a national debt owed by the German people to the Jews and others…in perpetuity, in my opinion."

Too bad this mystical Germany can't pay diddly squat without extracting it from all those actual Germans.

[Frank Drackman]

Remember when the top Pro Rapper was a White dude and the top Pro Golfer was a Black Dude (Tiger can call himself "Cablinasian" all he wants, we all know what he looks like)
So why not a quota for Afro-Amurican punters/place kickers in the NFL? Even if they're not the best, it'd be fun to watch, sort of like that "Bo Knows Hockey" commercial
https://www.youtube.com/watch?v=VaSdlW1W9yU

Frank

[Frank Drackman]

and lets not forget one of the guys who got in instead of Bakke (who literally had to take his case to the Surpreme Court)
"The admission to medical school of Patrick Chavis, one of the black doctors admitted under the medical school's affirmative action program instead of Bakke, was widely praised by many notable parties, including Ted Kennedy, the New York Times, and the Nation. As an actual medical doctor, Chavis's many actions of incompetence and negligence were broad and widespread. The large number of patients that he harmed, the amount of pain and suffering that he caused, the video recordings of his many major mistakes, the huge number of malpractice lawsuits against him, and the eventual loss of his medical license, were all reported by the media. Chavis was widely cited by both the supporters, and the opponents, of affirmative action, as a real world example of why they held their respective beliefs.[114][115][116][117][118][119][12"

[WuzYoungOnceToo]

"In 1996, Senator Edward M. Kennedy called him [Chavis} a ''perfect example'' of how affirmative action worked."

It turns out that Kennedy was right after all.

[Nameless But Highly Opinionated]

Unpopular opinion:

This case was wrongly decided, as there is a right to equal protection, not equal benefit.

The inability of a state to deny some full protection of the laws has never meant it cannot hand out benefits as it sees fit, whether monetary grants through private bills, selective scholarships/admissions, heterosexual marriage, or any other thing of value bestowed on an individual or group.

[Randal]

Maybe, but if you count "protection" as a "thing of value," then you undermine your own argument.

Which you're doing in the case of marriage. Outside of perhaps the tax laws, marriage is a protection. Protection against bearing witness, protection against unscrupulous heirs, protection against potential rivals, protection against debt collectors and landlords, etc. In general, protection of the monogamous relationship.

[Brett Bellmore]

So, what you're saying is that the government couldn't, say, tax every while person, but no black person? But it could levy a tax on everybody, and just refund it to black people?

[Bruce Hayden]

I would argue that you are the one who is wrong. Maybe you are right that that was the original intent of Equal Protection, but not anymore. It seems to have merged a bit into Due Process, where the process has to equal regardless of race, etc.

And after Marbury v Madison, it’s a little late to say that SCOTUS is wrong here. They declared themselves the final determinants of what the law means 220 years ago, and aren’t budging.

[Nameless But Highly Opinionated]

It was original. If equal protection covered voting, for instance, the 15th and 19th amendments would have been superfluous.

Maybe you should actually read Marbury. And then consider context, and how the nation viewed it. It was only in the mid to late 20th century that the constitution and SCOTUS' opinions came to be seen as synonymous -even on that court. The first opinion in which they make such claims is Cooper v. Aaron.

Originalist-Thayerianism was the near-universally accepted mode of interpretation well into the late 19th-century, the nation being the supreme interpreter. This is how it is supposed to be, and we should start acting like it.