SMU Law Review Symposium on Students for Fair Admissions

I was pleased to participate in an excellent symposium at the SMU Law Review on Students for Fair Admissions v. UNC. This journal made a strong effort to seek out diverse viewpoints. This is one of the more balanced symposium issues I've seen in years. Well done. Here is the roster of submissions:

The Post-Racial Deception of the Roberts Court - Cedric M. Powell

Roberts Rules of (Dis)Order: Doctrinal Doublespeak on Affirmative Action and Stare Decisis - Vinay Harpalani

Students for Fair Admissions Through the Lens of Interest-Convergence Theory: Reality, Perception, and Fear - Robert A. Garda Jr.

Data's Demise and the Rhetoric of SFFA - Shakira Pleasant

Students for Fair Admissions v. Universities for Division, Exclusion, and Inequity: The Petitions, the Arguments, and the Decision - Josh Blackman

Individual Dignity as the Foundation of an Inclusive Society - Cory R. Liu and Anthony Pericolo

Racial Classifications in Higher Education Admissions Before and After SFFA - David E. Bernstein

Race Preferences, Diversity, and Students for Fair Admissions: A New Day, a New Clarity - Maimon Schwarzschild and Gail Heriot

Reversing Grutter - Lackland H. Bloom Jr.

Here is the abstract of my article, Students for Fair Admissions v. Universities for Division, Exclusion, and Inequity: The Petitions, the Arguments, and the Decision:

Students for Fair Admissions v. Harvard will be studied by law students for generations, in much the same way that Bakke and Grutter were studied before. But there is much more to SFFA than the final decisions about Harvard University and the University of North Carolina will reveal. This Article, published for a symposium by the SMU Law Review, focuses on three stages of the litigation: the petitions, the oral arguments, and the decision. Part I recounts the complex procedural history, which began in federal courts in Massachusetts and North Carolina. The Harvard case reached the Supreme Court first, while the UNC case lingered in District Court. The Supreme Court called for the views of the Solicitor General. By doing so, the Court could punt the case to the following term, which allowed the UNC case to catch up, and Justice Breyer's replacement to be confirmed. Both cases would be argued on October 31, 2022.

Part II parses the questions asked by all nine Justices during oral argument. Chief Justice Roberts signaled up front that he would rule against the universities. Justice Thomas repeated his charge that arguments in favor of racial preferences mirror the arguments made by segregationists. Justice Alito worried about discrimination against Asian-American applicants. Justice Sotomayor focused on the detailed findings of the trial courts. Justice Kagan questioned whether SFFA would favor universities with few, or no racial minorities on campus. Justice Gorsuch looked to Title VI of the Civil Rights Act of 1964. Justice Kavanaugh suggested preferences could be reserved for the descendants of slaves. Justice Barrett inquired about the expiration date of Grutter. And Justice Jackson recounted how the Reconstruction Congress used racial preferences for the freedmen.
Finally, Part III breaks down four aspects of the Court's decision. SFFA eliminated the "educational benefits" rationale for affirmative action. Chief Justice Roberts continues to take inconsistent positions in similar cases during the same term. Justice Kavanaugh continues to follow the lead of Chief Justice Roberts in leading cases, including SFFA. And I defend Justice Jackson's likely-involvement in the Harvard case, notwithstanding her recusal.

Comments

[Brett Bellmore]

Man, that first paper sounds like a job application for a DEI office at Harvard.

[Sarcastr0]

Academic paper looks too liberal for Brett based on the title: News at 11.

[Brett Bellmore]

Technically based on the abstract. Which was just about dripping spittle.

"Students for Fair Admissions v. Harvard/UNC (SFFA) is a post-racial deception unmoored from precedent and societal reality. SFFA deceives the polity and signals an all out assault on anti-discrimination law. To preserve its institutional legitimacy, the Roberts Court promotes doctrinal and conceptual distortions—post-racial deceptions of cognizable injuries advanced through reverse discrimination claims of white plaintiffs; racial proxy claims of discrimination proffered by Asian-Americans; and the fairness rationale of the Court’s circular post-racial edict that “the way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” Chief Justice Roberts’s majority opinion discards the anti-subordination principle of the Fourteenth Amendment and replaces it with a post-racial anti-differentiation principle: “Eliminating racial discrimination means eliminating all of it.” Expanding the circularity of Chief Justice Roberts’s post-racialism even further, Justice Thomas’s concurrence offers an ostensibly originalist reinterpretation of the Fourteenth Amendment that erases the race-conscious history of the Reconstruction Amendments and reframes it as the codification of the Declaration of Independence. Rejecting this post-racial deception, Justices Sotomayor and Jackson, in dissent, foreground the anti-subordination principle as the essential doctrinal core of the Fourteenth Amendment and offer a rebuke of the Court’s facile post-racialism with a comprehensive discussion of systemic racism, structural inequality, and the present-day effects of past discrimination. The Court’s post-racial constitutionalism is a post-racial deception which must be discredited and rejected if we are to ever achieve the multi-racial democracy promised by the Second Founding."

[Jacob Grimes]

Oof.

I like how he criticizes the decision as unmoored from precedents (which consistently limit affirmative discrimination to correcting previous, specific policies of discrimination) and positively cites the dissents' claims about broadly defined and nebulous "structural" discrimination that presumably justify the opposite result.

[Brett Bellmore]

Well, I think that paper was over the top bad, but I do give the symposium organizers credit for actually carrying through on allowing all perspectives to be aired.

[Randal]

Sounds about right, from a descriptive perspective.

For example, saying that the dissent leans on structural racism is true.

Which is too bad, because Grutter had already answered that question. The liberals were basically trying to overrule Grutter the other way. With nobody actually defending Grutter, it was all too easy for the conservatives to end it.

[Brett Bellmore]

Roberts' "The way to stop discrimination on the basis of race is to stop discriminating on the basis of race." is close to winning in the judiciary, has been a runaway winner in the voting booth for a long time, but is further than ever from winning in universities and HR departments.

My concern is that since it HAS been losing in the universities that actually produce the lawyers who eventually become judges and then justices, there's a bit of a ticking legal time bomb here. In about 10 years it's going to be REALLY hard to find enough conservative jurists to fill openings when a Republican is President, and a decade after that it's going to be really, really hard to fill Supreme court slots.

I guess the upside of that is that they're just going to have to stop favoring the Ivy League...

[Randal]

Ha wrong. What's really going to happen is that we're going to take you at your word. Straight-up racism from structural and private sources is fine, and even federal policy and dollars can support disparate impact. So we'll do all the affirmative action that way, until structurally, privately, and impact-wise, whites are at an enormous disadvantage. And SFFA will prevent any federal policy or funds from being used to do anything about it.

I think it would've been better for you to let us have affirmative action, but we can do it your way.

[Brett Bellmore]

Disparate impact is any policy that doesn't result in the quota being met. Most of the time, simply not discriminating shows disparate impact. Most of the time, you have to actually discriminate to meet the quota. So, the moment you start raving about "disparate impact" I know you're going to be making excuses for discrimination to meet quotas.

So if I work hard to get my Asian-American son enriching experiences, and force him to do his homework, tutoring him where he has trouble, and YOU let your kid run with the gang, and they both take a college admissions test, you think you're entitled to rig the test so your kid makes it into college and mine doesn't.

Because you can't admit that it wasn't racism that made your kid fail, it was you.

That's what is really going on here, you know. I live in a majority black neighborhood, but it's a middle class neighborhood, nobody's running with the gangs, and my neighbor's kids are as likely to end up in the honors program at the charter school as my kid is, because they're pushing their kids to succeed. I know this because I've met my son's friends at school, and they're as likely to be black as white.

Meanwhile, over on the bad side of town, the kids are running with the gangs, the parents aren't forcing them to do their homework, and the kids mysteriously don't qualify for college. Strange, huh? And it's not my fault if the bad side of town is blacker on average than the good side of town, I didn't even live here until 2008. It's sure as hell not my son's fault. So why do you think you're entitled to take it out on my innocent son who does his homework?

[Randal]

I know you’re going to be making excuses for discrimination to meet quotas.

I said that’s what I’m doing. Which is just what white people have been doing all along, and are still doing. So, since we can’t fight fire with affirmative action, we’ll fight fire with fire.

The rest of your racist post is proof positive.

[Brett Bellmore]

The problem here is that you're not fighting fire, you're just an arsonist.

[Rev. Arthur L. Kirkland]

If Mr. Bellmore didn't like polemics and conspiracy theories, he wouldn't be at the Volokh Conspiracy.

[Bob from Ohio]

"based on the title"

Care to retract, sarcasto?

[Sarcastr0]

What? No.

Do you think Brett had read it when he authored his OP?

Silly man.

[Brett Bellmore]

Of course I had, you twit. It's just a short abstract, and I wanted to see if the piece could possibly be as bad as the title.

It managed to be worse.

[Sarcastr0]

'That first paper sounds like a job application for a DEI office at Harvard'
This does not sound like you had glanced at the abstract, it sounds like you'd glanced at the title.

I wasn't there, I can't be certain, but it seems a lot like you had a hot take and then dug in after.

[Brett Bellmore]

Do you have any substantive point here beyond doubting that I bothered to read one run on paragraph at the other end of the link?

[Brett Bellmore]

I will admit I only got nine pages into the full essay. It's as spittle soaked as the abstract, and I have my limits.

[Rev. Arthur L. Kirkland]

Nine papers, eleven authors, at least six Federalist Societeers.

Nine papers, three Volokh Conspirators.

"one of the more balanced symposium issues"

Carry on, clingers.

[Frank Drackman]

I knew you were gonna say that

[Brett Bellmore]

So I've dealt with "The Post-Racial Deception of the Roberts Court"; On to "The Post-Racial Deception of the Roberts Court"

"
Abstract

In this Article, I argue that Chief Justice John Roberts engaged in doublespeak in his SFFA v. Harvard/UNC majority opinion. He essentially overruled Grutter v. Bollinger (2003) but did not admit doing so, and even structured the SFFA opinion as if he was following Grutter’s precedent. My Article considers why Chief Justice Roberts engaged in this “stealth overruling” of Grutter and exposes his doctrinal sleight of hand in doing so. I first consider how Chief Justice Roberts may have been concerned about the Court’s legitimacy in the wake of its ruling in Dobbs v. Jackson Women’s Health Organization (2022)—where it explicitly overruled Roe v. Wade (1973) and Planned Parenthood of Southeastern Pennsylvania v. Casey (1992)—and how that might have influenced his approach to SFFA. Subsequently, I show how throughout the SFFA majority opinion, Chief Justice Roberts either misrepresented Grutter or exploited ambiguities and inconsistencies in Grutter’s doctrine to serve his agenda. I examine the SFFA majority’s treatment of various issues related to the constitutionality of race-conscious admissions policies. These include the compelling interest in diversity, deference to universities on defining their educational missions, the incidental burden of race-conscious policies on certain groups, the use of racial categories, “logical” and arbitrary endpoints for race-conscious admissions, the so-called essay loophole, and the possible military exception. The conclusion considers the consequences of SFFA’s stealth overruling of Grutter: the controversies it could lead to, and its potential impact on the Court’s legitimacy—another matter laden with ironic twists."

A fair cop about Roberts' slight of hand, and the way he lets his concern for legitimacy warp his jurisprudence.

[Brett Bellmore]

Next up: “Students for Fair Admissions Through the Lens of Interest-Convergence Theory: Reality, Perception, and Fear”

"
Abstract

In two cases, Students for Fair Admissions, Inc. v. President & Fellows of Harvard College and Students for Fair Admissions, Inc. v. University of North Carolina (SFFA), the Supreme Court held that Harvard and UNC violated the Equal Protection Clause of the Fourteenth Amendment and Title VI of the Civil Rights Act in their use of race in their admissions process. This Article examines the SFFA decision through the lens of interest-convergence theory.

This Article is novel in three respects. It is the first article to explain the SFFA decision in-depth. The opaqueness of the decision has led to significant confusion between commentators, scholars, and universities about the impact of the decision. I conclude that the SFFA decision overturned prior precedent and ended affirmative action in higher education, no matter how carefully crafted the race-conscious admission plan. I also conclude that universities will not be able to ignore the decision, or use race-neutral alternatives, to maintain a critical mass of minority students.

Second, this Article is the first to explain the SFFA outcome using interest-convergence theory. I break down the separate interests of Black,[1] Hispanic,[2] White,[3] and Asian-Americans.[4] I find that Black and Hispanic interests remain served by race-conscious admission policies, but that shifting racial demographics and political power dynamics changed the decades-long White interest in supporting affirmative action. I further find that Asian-Americans have an interest in maintaining affirmative action, but that the SFFA outcome aligned with White interests because it permitted universities to continue “negative action” against Asian-Americans in favor of White students.

Third, this Article is the first to explain how the perceptions of White Americans about policies that benefit minorities overrides the significant benefits they receive from diverse educational environments. I conclude that the longstanding and concrete benefits that White students receive from a critical mass of minority students on campus has become less important than the perceived threat of such admission policies to the current societal hierarchy. I conclude that interest-convergence theory explains why the Supreme Court overturned decades of precedent and university admission practices: it served the perceived interests of White Americans.

[1] I use the commonly followed practice of capitalizing the term Black. See Angela Onwuachi-Willig, Comment, Roberts’s Revisions: A Narratological Reading of the Affirmative Action Cases, 137 Harv. L. Rev. 192, 195 n.20 (2023) (explaining history and reasons for using the term “Black”).

[2] I use the term Hispanic, instead of Latinx, because the Supreme Court used that racial category in the SFFA decision and UNC and Harvard use that racial category in their admissions policies. Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll. (SFFA), 600 U.S. 181, 216 (2023). Latinx is a narrower term that refers to a person with origins from anywhere in Latin America. William Alexander, Ask the OEDI: Hispanic, Latino, Latina, Latinx—Which is Best?, Duke Univ. Sch. Med. (Sept. 8, 2022), https://medschool.duke.edu/blog/ask-oedi-hispanic-latino-latina-latinx-which-best [https://perma.cc/WY4B-6UXR].

[3] I will capitalize White because putting it in lowercase affirms that Whiteness is the norm when other racial categories are capitalized. Kristen Mack and John Palfrey, Capitalizing Black and White: Grammatical Justice and Equity, MacArthur Found. (Aug. 26, 2020), https://www.macfound.org/press/perspectives/capitalizing-black-and-white-grammaticaljustice-and-equity [https://perma.cc/V9E2-ANWT].

[4] I use the term Asian-American because the Supreme Court used the racial category in the SFFA decision and UNC and Harvard use the racial category in their admissions policies. See SFFA, 600 U.S. at 216."

It does correctly identify that this decision really leaves no legal future for racial preferences. And then treats the rejection of racial discrimination as a product of racism and false consciousness… The footnotes concerning capitalizing racial/ethnic groups and asking forgiveness for not using “Latinx” are almost half the abstract, which kind of says it all about the perspective.

[Brett Bellmore]

"Data’s Demise and the Rhetoric of SFFA"

"Abstract

The Supreme Court’s holding that Harvard College’s and the University of North Carolina’s (UNC) “admissions systems” are invalid under the Equal Protection Clause of the Fourteenth Amendment and Title VI of the Civil Rights Act of 1964 was an anticipated result. The Court’s 2016 decision in Fisher v. University of Texas at Austin (Fisher II), left some speculation that race-conscious admissions could eventually be struck down by the Court; however, Fisher II also offered some guidance for future litigants to address challenges. Colleges and universities needed to use data to “scrutinize the fairness of their admissions programs” to satisfy the burden strict scrutiny and narrow tailoring impose.

Despite previously touting the importance of data, the current Justices of the Supreme Court disregarded the data presented by both Harvard and UNC. Furthermore, the Court ignored stare decisis by discounting the diversity rationale enshrined by Justice Powell in Regents of the University of California v. Bakke. Since the Supreme Court’s decision on June 29, 2023, scholars and parties to the case have opined about the decision’s impact. Several writings focus on the majority opinion written by Chief Justice John Roberts. Others highlight the dissents written by Justices Sonia Sotomayor and Ketanji Brown-Jackson, but few focus on the concurring opinions.

This Article focuses on stare decisis and the data presented by Harvard and UNC in the case. It also posits that rhetoric has been used to falsely frame inclusion practices as racial preferences. As such, this Article explores the origins of rhetoric to evaluate Justice Thomas’s colorblind perspective of the United States Constitution, and more specifically, the Fourteenth Amendment. Finally, this Article conducts a deeper examination of the approach highlighted by Justice Thomas in his concurring opinion."

Kinda misunderstands what the data was supposed to be data concerning... It wasn't supposed to be data demonstrating that you'd failed to meet the quota!

[Brett Bellmore]

The rest? Well, any VC reader should be familiar with the authors, I doubt these papers were out of character.