JUSTICE KAVANAUGH: How are applicants from Middle Eastern countries classified from Jordan, Iraq, Iran, Egypt and the like?
MR. PARK: My understanding is that just like other situations where they might not fit within the particular boxes on the common application, that we rely on self-reporting and we would ask -- you know, they can volunteer their particular country of origin.
JUSTICE KAVANAUGH: But if they honestly check one of the boxes, which one are they supposed to check?
MR. PARK: I -- I do not -- do not know the answer to that question. What I can say is that if a person from a Middle Eastern country self-discloses their country of origin, it would be considered in the same way that we consider any box that matches, you know, one of the boxes that's available in the common application…
This was a really strange colloquy, because there is a right answer to Justice Kavanaugh's question. The classifications are directly imported from the Department of Education's Office of Civil Rights, which in turn uses the standard "Directive 15" classifications used throughout the federal government. And, as explained in my book Classified: Thr untold Story of Racial classification in America, according to Directive 15, individuals of Middle Eastern origin are officially "White." In fact, the Biden administration is currently considering creating a new MENA (Middle East and North African) classification because Arab American and Iranian groups have been lobbying to take these groups out of the white classification.
But in case there was any doubt, here is the Common App's race question. It's a bit opaque, but nevertheless Middle Eastern is treated as a subset of "White":
Regardless of your answer to the prior question [regarding Hispanic status], please indicate how you identify yourself. (You may select one or more)
American Indian or Alaska Native
Asian
Black or African American
Native Hawaiian or Other Pacific Islander
White
Which best describes your White background? (You may select one or more)
Europe Middle East
Other
Is it possible that Mr. Park, in preparing for the argument, never looked at the Common App? Or did he not simply not want to concede that Middle Easterners are treated as generically white because that tends to undermines the claim that UNC is looking for "diversity?"
This fall semester marks my eleventh year at the South Texas College of Law Houston. One way to mark the passage of times is through photographs. Here is an evolution of my headshots from 2010 to 2022.
Rap lyrics, which can have violent, crime-related themes, are routinely used as evidence against amateur rappers in court, executives said. The practice has also affected well-known acts such as Snoop Dogg, Mac, Boosie Badazz and the late Drakeo the Ruler.
Music executives argue that by treating rap lyrics as de facto confessions or pure autobiography, prosecutors misunderstand how art works. In many cases, the legal strategy plays—especially for jurors and judges unfamiliar with rap—on stereotypes of criminality among Black people, injecting implicit racial bias into proceedings, according to Erik Nielson, professor of liberal arts at the University of Richmond and co-author of "Rap On Trial: Race, Lyrics, and Guilt in America."
Mr. Nielson said he has counted roughly 500 instances of rap lyrics being used as evidence through 2017. But he says that's almost certainly an underestimate, since his data is based only on available information from the small percentage of cases that went to trial. Meanwhile, non-rap lyrics have been used as evidence only a handful of times, he said.
There is now pushback against the use of rap lyrics in this way. A coalition of firms in the music industry, civil rights organizations, and artists have signed a public letter objecting to the use of rap lyrics as evidence in criminal trials. The open letter has been published as an ad in The New York Times and Atlanta Journal-Consitution.
I much liked his latest item on the subject, in his Original Jurisdiction newsletter. It's hard to say anything really new on the subject, but Lat sets forth his position well, as he always does. He begins:
I'm a moderate, capable of seeing shades of gray in almost any issue. There are only a few issues about which I feel strongly. Free speech is one, as my regular readers know. Another is affirmative action, by which I mean racial preferences—i.e., giving a candidate a plus or a minus based on nothing more than their race….
During oral arguments in SFFA v. Harvard, Justice Kagan tried to broaden the case beyond higher education. She explained that many "institutions" need to rely on racial preferences to achieve their diversity goals. (Notice how the word "institution" presumptively refers to an organization that pursues progressive goals, for an entity that leans conservative is no longer behaving like an "institution.") During a colloquy with Cam Norris, Justice Kagan asked about judges who hire law clerks based, at least in part of race:
JUSTICE KAGAN: Do you think that if you're a law firm or if you're a judge, if you're a judge and you want to have a diverse set of clerks, do you think a judge can't think about that in making clerkship decisions?
Norris responded that judges can be aware of a prospective clerk's race, but cannot use race to distinguish between candidates.
MR. NORRIS: Absolutely can think about it. The Court's decision in Feeney says knowledge of race is not the violation. It is using it as a factor to distinguish -
But that wasn't what Kagan was asking about. Instead, Kagan was asking if a judge could hire a minority law clerk as a way to signal to the broader public that minority attorneys can succeed as federal law clerk.
JUSTICE KAGAN: I'm using --let's say a judge says I want a diverse set of clerks. That's --you know, I want clerks who would -you know, great on any number of criteria, but I also want a diverse set of clerks. So, over the years, people will look at that and they'll say: There are Asian Americans there, there are Hispanics there, there are African Americans there, as well as there are whites there. Can a judge not do that?
The key phrase is "people will look at that." That is, the public will perceive that the judge is hiring minority law clerks.
I'll come back to Norris's answer in a few moments, but I'll take a brief detour to an argument made by one of Justice Kagan's actual law clerks, Solicitor General Elizabeth Prelogar. During Prelogar's argument as amicus, she lamented the fact that very few women argue before the Supreme Court. She worried that the lack of female advocates could "cause people to wonder whether the path to leadership is open." That is, people will look at the Supreme Court oral argument calendar, and see women are not adequately represented. She offered this "common sense example." In other words, if there aren't women arguing before the Court, fewer women may strive to become Supreme Court advocates:
GENERAL PRELOGAR: And if I could, maybe I could just give a, I think, a common sense example of that that I would hope would resonate with this Court. The Court is going to hear from advocates in this sitting of the oral argument calendar, and two are women, even though women today are 50 percent or more of law school graduates. And I think it would be reasonable for a woman to look at that and wonder, is that a path that's open to me, to be a Supreme Court advocate? Are private clients willing to hire women to argue their Supreme Court cases? When there is that kind of gross disparity in representation, it can matter and it's common sense.
If I may modify Justice Kagan's hypothetical question, could the Supreme Court, when appointing attorneys to argue as amicus curiae, "think about" race and gender? Could the Circuit Justice who makes that appointment select a minority advocate so the "people will look at that decision," and think that minority lawyers can argue before the Supreme Court? This hypothetical is not so fanciful. In Martin v. Blessing (2013), Justice Alito observed that district court judges "ensure that the lawyers staffed on [class action] case[s] fairly reflect the class composition in terms of relevant race and gender metrics." This practice is extremely common.
To extend the analogy, how many of President Biden's judicial nominees were race conscious? I've lost count of how many "firsts" have been trumpeted in the press releases. The first nominee of X race in this District. The first nominee of Y sexual orientation in that District. And so on. Now I think the constraints on executive-branch appointments are quite different, but the rationales are similar: these appointments are made, at least in large part, to signal that paths to leadership are open to under-represented minorities.
Back to Cam Norris's answer to Justice Kagan.
MR. NORRIS: I mean, I think that's a --that's a --that is a admirable goal. I don't think a judge could implement that goal by putting a thumb on the scale against Asian applicants or giving a big preference to black and Hispanic applicants. I think you need to treat people equally based on race just as you're not going to hold my race against me in judging the quality of my arguments. I think race --racial diversity is important because it's a good metric to make sure our --our --our institutions are equally open. You can certainly be concerned about that. But the question is using racial classification, telling people that you didn't get the clerkship because of your race.
Now, would it be ethical for a judge to hire a minority law clerk to signal that the pathways to leadership are open to minorities? Or could a Justice appoint an attorney as amicus curiae to signal that pathways to leadership are open to minorities? Or could a judge require that minority attorneys serve as class counsel to signal that pathways to leadership are open to minorities? Notice I did not say that these decisions were made because of the benefits that derive from having diverse attorneys. Justice Kagan and General Prelogar's hypotheticals were expressly framed in terms of sending a signal to the public--something for "the people to look at." To be sure judges, like everyone else, can have mixed motives. They can act from a multitude of reasons. But I will not fight the hypothetical. What if a Judge announced that he will hire a diverse group of law clerks to show that minority law clerks can thrive at the highest levels of the profession. Just like Justice Kagan asked:
JUSTICE KAGAN: I'm using --let's say a judge says I want a diverse set of clerks. That's --you know, I want clerks who would -you know, great on any number of criteria, but I also want a diverse set of clerks. So, over the years, people will look at that and they'll say: There are Asian Americans there, there are Hispanics there, there are African Americans there, as well as there are whites there. Can a judge not do that?
The perceptive reader by now should see where I'm headed with this post: can a federal judge use his hiring of law clerks to promote some broader societal goal? Hello Judge Ho.
Steve Lubet wrote a column at The Hillsuggesting that Judge Ho's boycott was unethical.
Canon 2B provides that a judge must not "lend the prestige of the judicial office to advance the private interests of the judge." Ho has attempted to do just that, dangling the possibility of prestigious clerkships before future students who abjure Yale, and withholding it from those who disregard his admonition. The Code makes no exception for a presumably admirable personal mission, like combating cancel culture. Judicial ethics prohibit using the powers of office to enforce non-judicial ends.
Would Justice Kagan's hypothetical "advance the private interests of the judge"? Does the hypo pursue a non-judicial end? Is it within the judicial function to hire minority law clerks to signal that pathways are open to minority law students? You might reply, of course! Judges can use their official power to promote broad values like diversity, equity, and inclusion. A similar argument could be made about the freedom of speech and expression. Judge Ho's hiring policy seeks to promote free speech, while Justice Kagan's hypothetical promotes DEIdeology, as I call it. Now you might reply that Ho's policy includes, while Kagan's hypo excludes. Nonsense. Hiring, like university admission, is a zero sum game. Every applicant who is hired means another applicant is not hired. The power to include embraces the power to exclude.
If Lubet is correct that "Judicial ethics prohibit using the powers of office to enforce non-judicial ends," then many judges will need to revisit their clerk-hiring practice. And their requirement to appoint minority counsel. And so on. Fortunately for the judiciary, I do not agree with Lubet's reading of Canon 2B. I think the phrase "private interest" should be read as an interest private to the judge. That is, something that would personally advantage him. Actions that are designed to advance the "law, the legal system, and the administration of justice"--as Canon 4.A.1 frames it--should not be read to promote a judge's "private interests."
Lubet also raised another critique of Ho's policy:
Under Canon 3B(3), a judge must "exercise the power of appointment fairly and only on the basis of merit." This provision specifically applies to law clerks, and it is surely unfair to refuse to consider admittedly "great kids" in an effort to intimidate law school administrators. Hiring "on the basis of merit" should mean evaluating the abilities of individual applicants, unrelated to Ho's disapproval of law school deans or his desire to force changes in the school's operations.
This position doesn't work. Implicit in Ho's policy is a judgment: students who knowingly choose to go to Yale, in light of its failure to protect free speech, lack merit. They made a decision, and that decision reflects poorly on who they are, and how they would perform as a clerk. You may disagree with that judgment, but it is unquestionably on the "basis of merit." There is no ethical violation to see here.
I know Judge Ho has received much criticism. Truly, the boycott has not advanced Judge Ho's private interests--if anything, it has harmed him! It is always easier for a judge to keep his mouth shut. But Judge Ho should be commended for saying the quiet part out loud. How many federal judges hire law clerks to signal that pathways to leadership are open? How many federal judges hire law clerks to virtue signal that they have diverse chambers--especially when they've been accused of being insensitive to minorities? Slogging through the five hours of the oral arguments has reinforced how right Chief Justice Roberts was (for once): "it is a sordid thing, this divvying us up by race." Better to be done with it now, and not in 25 years.
An article by Duke law professor Darrell A.H. Miller and Wesleyan history professor Jennifer Tucker argues that gun control laws should vary based on the dangerousness of the firearm. They claim that danger is easy to assess by using the Theoretical Lethality Index (TLI), a metric developed in the early 1960s by military history analyst Trevor Dupuy. In this post, I explain why the TLI is useless as a guideline for the risks posed by different types of firearms in a nonmilitary context.
On the other hand, if TLI is valid in the civilian context, then the TLIs of modern firearms are not much different from those of a good rifle from the early 20th century. Thus, the level of gun control necessary from modern arms would not appear to be greater than the level of gun control in the early 20th century.
This post proceeds as follows:
Part I of the post briefly summarizes the Miller and Tucker article for the U.C. Davis Law Review.
Part II describes how gun control enthusiast Saul Cornell misused a blog post by Miller to fabricate preposterous claims about the lethality of AR rifles.
Part III examines the Theoretical Lethality Index in depth and explains why its military-oriented metrics do not provide useful information in a nonmilitary context about the relative dangerousness of different types of firearms.
Part IV calculates TLIs for the common modern firearms mentioned by Miller and Tucker: the 9mm handgun, and the semiautomatic AR rifle. ("AR" means "ArmaLite Rifle." The rifle was invented by ArmaLite in the 1950s.)
Part V addresses Miller and Tucker's claim that the American Founders were unfamiliar with dramatic technological changes in firearms — a claim that is refuted by Dupuy's data.
I. The Miller and Tucker article
Last Spring, the Giffords Law Center (a legal organization dedicated to gun control) and the U.C. Davis Law School held a symposium for gun control advocates. Among the articles published was one by Miller and Tucker. Common Use, Lineage, and Lethality, 55 U.C. Davis L. Rev. 2495 (2022). They argued that more lethal guns should be regulated more strictly than relatively less lethal guns. This post does not criticize or endorse that argument. According to Miller and Tucker, the relative dangers of different firearms are easy to quantify by using the Theoretical Lethality Index created by Trevor Dupuy. The Miller and Tucker article included a copy of a TLI table from one of Dupuy's books. Below is the same table, from the 1980 edition of Dupuy's book The Evolution of Weapons and Warfare. (My page cites, below, are to the Da Capo Press reprint of the 1984 edition.)
Dupuy created the TLI "as part of a study for the US Army: Historical Trends Related to Weapons Lethality (McLean, VA: 1966)." Trevor N. Dupuy, Understanding War: History and Theory of Combat 289 (1987). Although Dupuy is deceased, his website contains a bibliography of his prolific writing. According to the website, that "study, performed for the US Army, analyzes the relationship between weapons and military doctrine from the 4th Century BC to the end of the Korean War. The study focuses on revolutionary advances in the lethality of weapons and the impact of this increased lethality on battle losses and battle outcome. The process of introduction and assimilation of these new weapons is described." The Historical Trends report was revised and improved into Dupuy's 1980 book The Evolution of Weapons and Warfare.
The TLI number for "18th century flintlock" (the most common firearm type when the Second Amendment was ratified in 1791) is 43. The TLI for the standard American service rifle in the early 20th century, the 1903 bolt action Springfield rifle, is 495. Thus, the TLI of the standard American service firearm as of 1910 was about 11 times greater than the TLI of a standard service firearm in 1791.
These figures are relatively small compared to the massive lethality of a World War I machine gun (e.g., the Maxim gun), with a TLI of 3,463. All the more so for a World War II machine gun (e.g., the .50 caliber M2), with a TLI of 4,973. The TLI of a WWII machine gun is 115 times that of a flintlock. The TLI of a WWI machine gun is 80 times that of a flintlock.
Miller and Tucker did not attempt to calculate the TLI of any modern firearms. In a footnote, they wrote, "Situating the modern AR-15 (a successor to the German StG 44, the first 'assault rifle,' that was used in World War 2) anywhere near the Maxim machine gun makes it exponentially more lethal than the flintlock musket of the Founder's era."
This is true. The exponent to get from 43 to 3,463 is about 2.1651. Prudently, Miller and Tucker did not claim that an AR-15 actually should be "situated" near a WWI machine gun. Nor did Miller and Tucker make any other claim about the TLI of an AR semiautomatic or of any arm not listed in the TLI table above.
As will be detailed in Part IV, to the limited extent that TLI can be estimated for arms that Dupuy did not study, the TLI of an AR semiautomatic rifle is not even close to a Maxim gun. Instead, AR is a not very far above that of the 1903 Springfield rifle.
Miller wrote a blog post for the Duke Center for Firearms Law summarizing his article for the Giffords symposium, and other articles in the symposium. The post included a copy of the TLI table above.
Thinking about police departments in your area, do you think spending on policing should be increased, kept about the same or decreased?
The answers: 17% supported decreasing funding, 48% supported keeping it about the same, and 34% supported increasing it. As I noted about a related but different survey earlier this year, of course, this doesn't tell us what police should be doing—or, more importantly, how they should be doing it. But it does bear a bit on the "defund the police" controversy, even if "defund" is viewed merely as reducing funding, or decreasing "spending on policing" to route the savings to other programs.
Thanks to Prof. Glenn Reynolds (Instapundit) for the pointer.
The Supreme Court now has before it three issues of profound importance for the future of Internet speech.
First up: How broad is the immunity, set forth in Section 230 of the Communications Decency Act, that protects Internet platforms against liability claims arising from content posted by third parties?
Second: To what extent does the 1st Amendment protect the content-moderation decisions made by those platforms?
And finally: To what extent may individual States impose controls over the content and conduct of Internet sites managed by out-of-State actors?
These are Big Questions for Internet law, and I'll have a great deal more to say about them over the next several weeks and months; consider this an introduction.
Regarding Section 230, as co-blogger Stewart Baker has already noted, the Court has agreed to review the 9th Circuit's decision inGonzalez v. Google. The case arises out of the 2015 ISIS-directed murder of Nohemi Gonzalez in Paris, France. The plaintiffs seek to hold YouTube (owned by Google) secondarily liable, under the Anti-Terrorism Act (ATA)(18 U.S.C. § 2333), for damages for the murder:
"Youtube has become an essential and integral part of ISIS's program of terrorism. ISIS uses YouTube to recruit members, plan terrorist attacks, issue terrorist threats, instill fear, and intimidate civilian populations… Google's use of computer algorithms to match and suggest content to users based upon their viewing history [amounts to] recommending ISIS videos to users and enabling users to locate other videos and accounts related to ISIS, and by doing so, Google materially assists ISIS in spreading its message."
The 9th Circuit dismissed plaintiffs' claims, relying (correctly, in my view) on the immunity set forth in Section 230 (42 U.S.C. §230(c)(1)) - the "trillion dollar sentence, as I called it, or, in law prof Jeff Kossoff's words in his excellent book of the same name, "The Twenty-Six Words that Created the Internet":
No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.
The impact of this immunity on the growth of Internet communications platforms cannot be overstated; it is hard to imagine what the entire social media ecosystem would look like if platforms could be held liable for hosted third-party content. But the Section 230 immunity has become very controversial - to put it mildly - over the last decade; many commentators and lawmakers, from the political left, right, and center, have proposed substantially narrowing, or even eliminating, the immunity, blaming it for everything from the proliferation of hate speech and fake news to the supposed suppression of political commentary from the right wing.
By now, Stewart Baker suggests, "everyone hates Silicon Valley and its entitled content moderators [and] its content suppression practices." Gonzalez, he continues, signals that "Big Tech's chickens are coming home to roost, … the beginning of the end of the house of cards that aggressive lawyering and good press have built for the platforms on the back of section 230."
Maybe. I happen to be one of those people who do not "hate Big Tech's content moderation practices" - but I'll save my thoughts on that for a future analysis of the Gonzalez case. Read More
You heard it on the Cyberlaw Podcast first, as we did a mashup of the week's top stories: Nate Jones commenting on Elon Musk's expected troubles running Twitter at a profit and Jordan Schneider noting the U.S. government's creeping, halting moves to constrain TikTok's sway in the U.S. market. Since Twitter has never made a lot of money, even before it was carrying loads of new debt, and since pushing TikTok out of the U.S. market is going to be an option on the table for years, why doesn't Elon Musk position Twitter to take its place? (Breaking news: Apparently the podcast has a direct line to Elon Musk's mind; he is reported to be entertaining the idea of reviving Vine to compete with TikTok.)
It's another big week for China news, as Nate and Jordan cover the administration's difficulties in finding a way to thwart China's rise in quantum computing and artificial intelligence (AI). Jordan has a good post about the tech decoupling bombshell. But the most intriguing discussion concerns China's remarkably limited options for striking back at the Biden Administration for its harsh sanctions.
Meanwhile, under the heading, When It Rains, It Pours, Elon Musk's Tesla faces a criminal investigation over its self-driving claims. Nate and I are skeptical that the probe will lead to charges, as Tesla's message about Full Self-Driving has been a mix of manic hype and depressive lawyerly caution.
Jamil Jaffer introduces us to the Guacamaya "hacktivist" group whose data dumps have embarrassed governments all over Latin America – most recently with reports of Mexican military arms sales to narco-terrorists. On the hard question – hacktivists or government agents? – Jamil and I lean ever so slightly toward hacktivists.
Nate covers the remarkable indictment of two Chinese spies for recruiting a U.S. law enforcement officer in an effort to get inside information about the prosecution of a Chinese company believed to be Huawei. We pull plenty of great color from the indictment, and Nate notes the awkward spot that the defense team now finds itself in, since the point of the espionage seems to have been, er, trial preparation.
To balance the scales a bit, Nate also covers suggestions that Google's former CEO Eric Schmidt, who headed an AI advisory committee, had a conflict of interest because he also invested in AI startups. There's no suggestion of illegality, though, and it is not clear how the government will get cutting edge advice on AI if it does not get it from investors and industry experts like Schmidt.
France has fined Clearview AI the maximum possible fine for not defending a General Data Protection Regulation (GDPR) case – unsurprisingly, because Clearview AI does no business in France.
You can subscribe to The Cyberlaw Podcast using iTunes, Google Play, Spotify, Pocket Casts, or our RSS feed. As always, The Cyberlaw Podcast is open to feedback. Be sure to engage with @stewartbaker on Twitter. Send your questions, comments, and suggestions for topics or interviewees to CyberlawPodcast@steptoe.com. Remember: If your suggested guest appears on the show, we will send you a highly coveted Cyberlaw Podcast mug!
The views expressed in this podcast are those of the speakers and do not reflect the opinions of their institutions, clients, friends, families, or pets
As many found out by yesterday, my dear friend and beloved IP scholar Dmitry Karshtedt has left us. Dmitry died at his DC apartment over the weekend. His accomplishments and accolades are many, from having recently obtained tenure at GW to being one of few law professors with a PhD in chemistry to regularly publishing important work in top-notch law journals. As he delightfully summarized here himself during his graduate school days, his interests also spanned many subjects and pursuits outside of the law, including chess, ping-pong, literature, and music.
We bonded over the similarities in our cultural backgrounds that only a handful of us share(d) in our field, but also over how much we enjoyed talking about so many different topics. On average, we spoke every few days, though not always in agreement. While recent years tore at us in terms of ideological disputes, I never doubted his loyalty as a friend and I suspect he never doubted mine.
Dmitry could go from intensely debating legal and other subjects to socializing and celebrating life with unmatched laughter and enthusiasm. Together with our other friends, we got to partake in meals, dances, concerts, birthday events, and much more. We last messaged a couple of days before his death, and last spoke on the phone in September. Due to the pandemic, I had not seen him in person for several years, and it is hard to believe that I never will again.
A person of infinite patience, Dmitry didn't just read and comment on papers for so many of us: he would go over (many!) drafts in a single day if necessary and would discuss a single sentence or word for ages until it was just so. He never made people feel stupid for asking even basic questions, and he genuinely didn't care at what rank school anyone worked (as well as whether an individual was in academia at all) or what he could get in return for helping someone.
Since finding out on Sunday night, I remain in shock over his passing and keep wanting to message him while having to remind myself that I can't. My heart especially breaks for his parents and brothers, whom he all loved so much and with whom he was pursuing many facets of the American dream.
While his official cause of death has not been determined, Dmitry's loss has inevitably sparked (overdue) conversations about mental health in our profession. These conversations will hopefully continue more openly in the days and years to come, because each one of us is irreplaceable. Dmitry certainly is to me.
"Specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance." An ''emanation'' refers to a ray of light. During a lunar eclipse, the ''umbra'' refers to the darkest part of the shadow formed when the Earth orbits between the sun and the moon. The ''penumbra'' refers to the lighter part of the shadow, where some of the ''emanations'' from the sun are visible.
I've now had a chance to review the oral argument in the Students for Fair Admission v. University of North Carolina. I started to review the Harvard case, but didn't get a chance to finish it yet. My immediate impression to the UNC case: every Justice came to the argument with their minds made up. I don't think such predetermination was surprising. But I was struck at how settled the Chief Justice, as well as Justices Kavanaugh and Barrett were. I expected each of them to express some discomfort with what the Plaintiffs were asking for. But I sensed none. To be sure, Kavanaugh in particular had already figured out his limiting principles--more on that later. But the lawyers had very little room to sway the Court's swing votes. Since there was very little interchanges on the bench, this post will review the positions of each justice.
The conservative majority on the Court is highly likely to rule against the two schools' use of racial preferences in admissions. But there are several different ways it could do so, which have different implications for future cases.
Earlier today, the Supreme Court heard oral arguments in cases challenging Harvard's and the University of North Carolina's use of racial preferences in admissions. The plaintiffs contend that Harvard and UNC's admissions policies violate Title VI of the Civil Rights Act of 1964, and that UNC - as a state institution - is also in violation of the Equal Protection Clause of the Fourteenth Amendment (which restricts discrimination by the government, but not that by private parties). Harvard and UNC argue that their policies promote educationally valuable "diversity," a purpose for which previous Supreme Court rulings Grutter v. Bollinger(2003) and Fisher v. University of Texas II (2016) allow at least some use of racial preferences.
In this post, I go over the major options before the justices. The conservative majority on the Court is highly likely to rule against Harvard and UNC. But there are a number of different ways it could do so, which have divergent implications for future cases. In my view, the best option is for the Court to simply rule that "diversity" is not a "compelling state interest" justifying the use of racial discrimination by government under the Fourteenth Amendment, and that such discrimination also violates Title VI. But that's far from the only option available to the justices.
The simplest way for the Court to decide these cases would be to reaffirm Grutter and Fisher II and uphold lower court rulings concluding that Harvard's and UNC's policies are legal. I'm not going to spend much time on this possibility, because it is highly unlikely to happen. It obviously goes against the inclinations of the conservative majority on the Court. And if that majority did want to maintain the status quo, they probably would not have decided to hear these cases in the first place. Not surprisingly, today's oral arguments revealed that all six conservative justices are highly skeptical of the universities' position.
The other relatively simple option is more likely. The Court could hold that educational diversity is not a legitimate justification for the use of racial preferences. One can make a plausible case that the text and original meaning of the Fourteenth Amendment permits the use of racial preferences for purposes of compensatory justice - offsetting a long history of discrimination against minority groups, particularly African-Americans. But there is no such historical or textual rationale for "diversity" preferences. That's especially the case when the racial categories are used to decide which groups get preferences and which do not are sweeping and arbitrary, often amounting to little more than crude racial and ethnic stereotyping. As my co-blogger David Bernstein points out in an amicus brief he filed in the case:
HarvardandUNCcannotjustify groupingpeoplewhosenationaloriginsrepresent roughly 60% of the world's population together as "Asian," despite vast differences within this category in appearance,language,andculture.Norcanthey explain why white Europeans from Spain, people of indigenousMexicandescent,peopleofAfro-Cuban descent, and South and Central Americans who may be any combination of European, African, and indigenous by descent are grouped together as "Hispanic."
The "white" category is equally crude and arbitrary, lumping together such diverse groups as Arabs, Italians, and Russians. I cover some other flaws of the diversity rationale here and here. Among other things, if taken seriously, it creates a nearly limitless rationale for discrimination in favor of a vast array of different groups. And if educational diversity is an important enough interest to justify racial discrimination, why not a wide variety of other government interests? For example, why can't the state's interest in promoting public safety and reducing crime justify the use of racial profiling by law enforcement? These interests seem at least as worthy as diversity.
The arbitrary nature of the categories used by the schools came up in today's oral argument. For example, Justice Alito asked why a student from Afghanistan should be lumped in the "Asian" category along with Chinese and Japanese applicants, and whether such dubious choices make the classifications used by universities "arbitrary and, therefore, unconstitutional." Ironically, as David Bernstein notes, Afghan applicants are usually classified as "white," rather than Asian. But grouping them with Italians and Germans seems no less arbitrary than conflating them with Chinese and Japanese.
During oral argument, a number of the conservative justices seemed very open to overruling Grutter completely. But it's not clear whether this position commands a majority.
The Court might instead prefer to rule against Harvard and UNC without barring the diversity rationale for preferences completely. In this scenario, it would continue to hold that diversity is a "compelling state interest" capable of justifying the use of racial classifications in admissions. But the majority would also rule that the crude categories used by Harvard and UNC aren't enough to pass the other requirement the "strict scrutiny" test the Court has long imposed on racial preferences: such policies must also be "narrowly tailored" to the achievement of the compelling interest that justifies them.
In Grutter and Fisher II, the Court claimed to apply strict scrutiny, but actually gave university officials great deference in determining what kind of diversity would create educational benefits, and what kinds of racial preferences were needed to achieve it. In the Harvard and UNC cases, the Court could take a much less forgiving approach, and require universities to clearly specify what benefits of diversity they are seeking, and provide strong evidence that racially preferences really do achieve those benefits in a way that cannot be matched by race-neutral policies.
For fans of stare decisis, this approach would have the virtue of avoiding the need to overrule any prior Supreme Court precedents. The Court would tighten up the strict scrutiny already required by Grutter and Fisher II, but would leave much of the holdings of those two decisions untouched.
In today's oral arguments, several conservative justices asked how long diversity preferences should last, how we can measure the claimed educational benefits of diversity, and whether admissions policies could be more precisely tailored to the achievement of those benefits. Those questions might indicate an interest in tightening up judicial review of diversity preferences, without banning them completely.
If the Court adopts the tightened strict scrutiny approach, it would likely lead to extensive future litigation, as universities try to restructure their racial preference policies to conform to the new, tighter rules (or at least pretend to do so). It would also still leave in place the anomaly under which diversity qualifies as a compelling enough interest to justify racial preferences, but many other comparably worthy government interests do not.
In addition to deciding whether to ban the diversity rationale or merely subject its use to tighter scrutiny, the Court will also need to determine whether it wants to rule against the universities based on Title VI alone, or also (in the case of UNC) under the Equal Protection Clause. The text of Title VI seems to categorically ban all racial and ethnic preferences in education programs receiving federal funding (as do the vast majority of universities, including Harvard):
No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.
Notice there is no exception here for racial and ethnic preferences adopted for purposes of promoting diversity, or indeed for any other reason. If the justices base their decision on Title VI alone, they could easily strike down both the Harvard and UNC programs, and spare themselves the much more complex task of analyzing the meaning of the Fourteenth Amendment.
But the Court has long interpreted Title VI to allow racial preferences in education, in situations where its interpretation of the 14th Amendment would permit them. And the justices have a strong presumption against reversing their own statutory precedents - much stronger than that against reversing constitutional decisions. That makes a decision based on Title VI alone, less likely. But the justices could decide that earlier decisions' misinterpretation of Title VI is so egregious that it warrants reversal. Few if any major statutory precedents so obviously go against the clear meaning of the text.
During oral argument in the UNC case, Justice Neil Gorsuch seemed very interested in the possibility of issuing a ruling based on Title VI. He noted that "Justice Stevens made a powerful argument in Bakke [the 1978 case where the Court first addressed the use of racial preferences for diversity purposes] that whatever the Fourteenth Amendment permits or does not permit, Title VI's language is plain and clear….. and Title VI does not permit discrimination on the basis of race." Whether any of the other justices choose to pursue this option remains to be seen.
Should the Court rule against Harvard and UNC based solely on Title VI, without reaching the constitutional issue, Congress would (at least for now) be free to amend Title VI to allow diversity-based preferences. But any such legislation would be hard to pass, given the extreme unpopularity of racial preferences in higher education, which are opposed by over 70% of the public, including large majorities of both Democrats (62%) and Republicans (87%), blacks (59%), whites (79%), Hispanics (68%), and other groups.
The extreme unpopularity of racial preferences might incline wavering justices towards a broad ruling against them. To the extent that Chief Justice John Roberts and others might be concerned about the Court's diminished popularity, a strong ruling against Harvard and UNC could actually give the institution a boost. At the very least, public opinion on this issue suggests there is no reputational downside to ruling for the plaintiffs.
I should, however, emphasize that the unpopularity of racial preferences does not by itself tell us much about whether they are good policy, much less whether they violate the law. As the author of a book on political ignorance, I'm well aware that majority public opinion is often badly wrong. Thus, the fact that most of the public happens to agree with me on this issue certainly doesn't prove that my view is right.
Some commentators, most notably Yale Law School Prof. Justin Driver, have suggested that the Court could - at least temporarily - save affirmative action by relying on Justice Sandra Day O'Connor's statement in her majority opinion in Grutter, that "[w]e expect that 25 years from now, the use of racial preferences will no longer be necessary." There are still six years left until the expiration of this seeming deadline. But I am highly skeptical of the idea that the Court will or should use this statement to temporarily preserve racial preferences. Among other things, the 25 year standard is, at most, a maximum, not a minimum. It doesn't guarantee that racial preferences will remain legal until 2028; it merely suggests that they should no longer be after that point.
O'Connor's 25 year rule was often mentioned in today's arguments. But I see no indication that any of the conservative justices are inclined to conclude that racial preferences should be preserved for another six years on that basis.
Finally, the justices will have to consider the questions raised by Harvard's apparent policy of specially disfavoring Asian-American applicants, even relative to whites. Several justices raised this issue in the Harvard oral argument, including Alito, Gorsuch, and Chief Justice Roberts.
If the Court rules that racial preferences are categorically forbidden, then that ruling will dispose of Harvard's anti-Asian policies, as well. But if some diversity-based preferences are held to be legal, then the Court might have to adopt some sort of rule for dealing with situations where an institution deliberately tries to reduce the presence of some minority group in the student body, for fear that otherwise there would be too many of them. In my view, the justices would do well to make clear that, even if some diversity-promoting preferences are permissible, they cannot justify targeted anti-Asian discrimination, any more than it would justify targeting blacks, Jews, or any other specific minority group.
Even if the Court categorically bans diversity-based racial preferences, universities might still try to pursue them surreptitiously, for example by using facially neutral admissions criteria that correlate with race. Such practices may well result in future litigation. But rulings against Harvard and UNC could nonetheless curb racial preferences, even if they don't completely eliminate them. Surreptitious preferences that must remain hidden, lest they attract lawsuits, are at least harder to implement and maintain than open ones. It's hard to keep a secret in a large bureaucracy, like the admissions offices of major universities.
Overall, it seems highly likely that the Court will rule against Harvard and UNC in the cases argued today. But there are multiple different approaches the justices can take in the reasoning of their decisions.
From Freeman v. Giuliani, decided today by Chief Judge Beryl Howell (D.D.C.); the court concluded that the facts as alleged by plaintiffs would, if proved, suffice to authorize liability—naturally, there's still question whether plaintiffs will introduce enough evidence to defeat an eventual motion for summary judgment, and whether they will eventually persuade a jury (or whether the case will settle in light of that possibility):
After the polls closed across the country on November 3, 2020—the first Presidential election in U.S. history to be conducted in the midst of a deadly global pandemic—the results in some states were immediately called, with either former Vice President Biden or then-President Trump declared the obvious winner. In other states, including Georgia, the margins of victory were substantially closer, and voters and candidates went to bed that night not knowing who had won. As days passed, local and state election officials diligently conducted the counting of absentee ballots and manual recounts, but the void of clear results became filled with increasingly outlandish paranoia from those claiming the election was being "stolen."
Defendant Rudolph Giuliani—a current media personality and former politician once dubbed "America's mayor"—propagated and pushed that false narrative. Caught in the crossfire of Giuliani's campaign to undermine the legitimacy of the 2020 election were plaintiffs Ruby Freeman and Wandrea ArShaye ("Shaye") Moss (collectively, "plaintiffs"). Freeman was a temporary election worker with the Fulton County Registration and Elections Department in Fulton County, Georgia during the 2020 general election, while Moss worked on Fulton County's absentee ballot operation. After Giuliani made a litany of statements and accusations against plaintiffs concerning their activities as election workers, Freeman and Moss initiated the instant lawsuit in December 2021, against Giuliani, and others, for[, among other things,] defamation ….
A federal judge suggested that plaintiffs can sue as John Does only to the extent that identifying them would also identify nonparties who want to remain anonymous (such as the students who accused the plaintiffs of sexual misconduct).
From Doe v. MIT, decided today by Judge Richard G. Stearns (D. Mass.):
On May 13, 2016, Doe was expelled from the Massachusetts Institute of Technology (MIT) following a Title IX proceeding involving accusations made against him by his ex-girlfriend, Jane Doe, of nonconsensual contact and forced sexual intercourse, and sexual harassment. On December 16, 2021, Doe sued MIT in this court for breach of contract, promissory estoppel, and denial of basic due process. According to Doe's Complaint, MIT's Title IX investigation had been compromised by a "[r]adical feminist anti-male bias on the MIT campus [that] guided the investigation report's conclusions …. MIT presumed the female complainant's story to be true (which it wasn't), and presumed John Doe not to be truthful (which wasn't the case) in order to avoid being found responsible."
Doe moved to proceed under a pseudonym on the same day. This court denied his motion, finding that his generalized expression of fear of future harm if self-identified as an alleged perpetrator of sexual assault, was too speculative to outweigh the court's historical concern for transparency and constitutional presumption favoring public access to judicial records….
[On appeal,] the First Circuit responded with an innovative four-part test to be used to determine those situations in which a party in a federal civil case might permissibly proceed under a pseudonym. The First Circuit vacated this court's order and remanded Doe's case for consideration under the new test….
For over a century, the American Association of University Professors has urged universities to recognize a robust freedom for professors to speak in public "as citizens" without fear of retaliation from their university employers even when such expression is controversial with either external or internal constituencies. That right is now widely recognized by American universities and incorporated into governing documents and policy statements. So-called "extramural speech" has become a particular area of controversy in recent years, however, as the political opinions of professors become more visible in the age of the Internet and social media.
For the past several decades, the U.S. Supreme Court has also recognized a limited First Amendment right for government employees to speak about matters of public concern. Starting with the case of a high school teacher Marvin Pickering, who wrote a letter to the editor of a local newspaper disagreeing with the school board about the merits of a bond referendum, the Court has held that in some situations government employees have a legitimate First Amendment interest in speaking as a citizen, but even in those circumstances the government's particular interest in maintaining an efficiently functioning workplace might allow the government as an employer to override an employee's First Amendment interests. Determining when the government's interest outweighs the employee's interest has become known as Pickering balancing, which is highly contextualized depending on the nature of the employee's job and workplace.
I have a new paper on how courts should understand the government's interests when conducting a Pickering balancing in the context of state universities and the extramural speech of professors. The Pickering framework is useful not only for understanding free speech rights in state universities but also for applying traditional protections for extramural speech in private universities. But as the courts have applied Pickering, there is a particular risk of a heckler's veto when it comes to government employee speech. Courts have repeatedly held that speech that generates a hostile reaction from coworkers or members of the public can be a legitimate reason for terminating a government employee. There might be circumstances in which such a concern is justified, but that certainly cannot be the standard when evaluating a university's interest in suppressing a professor's speech.
Considering cases such as the University of Florida's conflict of interest policy, the Ilya Shapiro controversy at Georgetown University Law Center, the Amy Wax saga at the University of Pennsylvania Law School, and the attack on a moral philosopher at SUNY-Fredonia, the paper argues that in the particular context of state university professors there are very few legitimate reasons for university employers to retaliate against an employee for speaking in public about a matter of public concern. Courts, and university employers, should be especially sensitive to the risk of empowering the mob to cancel a professor who offends their sensibilities and should regard extramural speech as relevant to a professor's employment status in only a narrow set of circumstances. An appropriate assessment of the nature of the university's function and of a faculty member's workplace should lead courts to conclude that the university's side of the Pickering scale is often empty and that sanctions for First Amendment-protected speech cannot be justified. The same calculus should hold true at private universities operating under their own academic freedom policies.
I did not time my book on racial classifications to coincide with litigation over affirmative action. Indeed, the book is not about affirmative action, and much of the book has nothing directly to do with it.
Of course, though, it turns out that you can't talk about the post-World War II history of government racial classification without affirmative action coming up, because that's both where it's more controversial and where almost all the cases addressing individual claims to minority status arise. And it turns out the racial (and ethnic, given that "Hispanic" is officially an ethnicity, not a race) classifications used by universities in the affirmative action context were never intended to be used for "diversity" purposes, and don't really fit the diversity rationale dictated by the Supreme Court as the only valid reason to use race in admissions. (I have no idea what Harvard would say if asked why, say, the five hundredth Mexican American in its freshman class would be deemed to officially add diversity to its class, such that it keeps track of such numbers and officially touts them when promoting its diversity, but the first Hmong, Afghan, Laplander, Mongolian, Turkman, Icelander, or Bobover Hasid would not; I doubt it would be anything terribly coherent.)
In any event, the book happened to come out in July, and I also filed an amicus brief with the Court in the Spring (authored by attorney Cory Liu) explaining why, based on the research in my book, the classifications Harvard and UNC use are wildly arbitrary--really, over-inclusive (white Spanish immigrants get a benefit for being "Hispanic"), under-inclusive (members of the groups noted above are officially "White" or "Asian American" and at best get no benefit for adding diversity) and ultimately irrational (why are Pakistanis and Filipinos, who have nothing in common beyond what any two random groups of human may have in the same Asian-American "diversity" category?)
This argument is quite different than the usual debate over "reverse discrimination" and "inclusion." I suppose the fact that it adds something new to an old and somewhat predictable debate explains why it is has received significantly more attention that I had any reason to expect.
The U.S. Supreme Court will consider on Monday whether racial preferences in college admissions are illegal. David Bernstein argues they're irrational.
The argument at the high court is that Harvard and the University of North Carolina unlawfully discriminate against Asian-Americans to hold down their numbers and ensure a diverse student body. But what does it mean to say "Asians" are overrepresented on campus? Presumably elite colleges don't have hordes of applications from America's roughly 27,000 Mongolians. "Imagine you are a child of Hmong refugees," says Mr. Bernstein, a professor at George Mason University's Antonin Scalia Law School, referring to an ethnic group from Southwest China and Southeast Asia. You might hope the admissions officers see you as contributing to diversity. "They say, 'Oh, no, no, you're Asian.' But this Asian thing is purely a statistical construct"….
As for Harvard and UNC, the Supreme Court said in Bakke that the only legal rationale for racial preferences in admissions is to ensure campus diversity. Yet clumsy Directive 15 terms are all over the current parties' briefs. Schools use those labels in reporting data to the Education Department, Mr. Bernstein says, which might be why admissions offices follow them off a logical cliff.
"When has anyone ever sat down, including Harvard and UNC, and explained why these specific classifications, made for other purposes, are coextensive with diversity?" Mr. Bernstein asks. "One of the claims against affirmative action used for diversity purposes is that it's a stereotype, that all X are the same." No one actually thinks "that Indians have anything in common with Filipinos, other than this arbitrary geographic classification."
David E. Bernstein, a University Professor at George Mason University's Antonin Scalia Law School also supports SFFA. He calls into question Harvard's racial categories, deeming them "arbitrary and irrational."
"Harvard cannot explain why roughly 60% of the world's population should be grouped together as 'Asian" despite vast differences in appearance, language, and culture," he added.
Chief Justice John G. Roberts Jr., who has been skeptical of race-conscious government actions in education and other contexts, wrote in a 2006 redistricting case, "It is a sordid business, this divvying us up by race."
A provocative brief filed on the side of challengers to affirmative action focuses on some of the details of the "divvying." The brief raises questions about the racial and ethnic classifications used in American education…. Harvard and UNC classify students based on five racial categories: (1) Asian; (2) Native Hawaiian or Pacific Islander; (3) Hispanic; (4) White; (5) African American; and (6) Native American, says Bernstein's brief.
The categories are not unique to those schools, as they match the classifications used by the U.S. Department of Education, though the federal government has also offered "two or more races" in Census forms and other surveys for years now. Bernstein says these classifications stem from a 1970s effort by the federal Office of Management and Budget to standardize race and ethnicity data collected across the federal government.
"The racial and ethnic categories that Harvard, UNC, and universities across the country use in their admissions policies were created by executive-branch bureaucrats who specifically warned that they were not scientific or anthropological in nature and should not be used to determine eligibility for benefits in race-conscious policies," Bernstein's brief says. "The categories are imprecise, over- and underinclusive, and are not narrowly tailored to achieve educationally beneficial diversity."
There have also been other news stories and op-eds that have highlighted the arguments the book and the brief, but I won't tax readers' patience by citing them.
The remaining question is whether any of the Justices will express interest in the classifications at oral argument today and ultimately in their opinions, or whether the debate continue on its previous trajectory, accepting the classifications as a given and only discussing whether diversity is a compelling government interest and what universities must do to satisfy that compelling interest.
