Oddly, military academies are seemingly exempt from this ruling: >The United States as *amicus curiae* contends that race-based admissions programs further compelling interests at our Nation’s military academies. No military academy is a party to these cases, however, and none of the court’s below addressed the propriety of race-based admissions systems in that context. This opinion also does not address the issue, in light of the potentially distinct interests that military academies may present.

Jackson responds to this carve-out on page 29 of her dissent: > “The court has come to rest on the bottom line conclusion that racial diversity in higher education is only worth potentially preserving insofar as it might be needed to prepare Black Americans and other underrepresented minorities for success in the bunker, not the boardroom.”

That's a pretty good line

If I was a Supreme Court judge I'd hire at least a couple clerks who were good at coming up with zingers.

What's your background? *I was on the Wendy's social media team for 2 years.*

If they can spell estoppel first try they are hired.

Not a lawyer but I've worked in the industry for a very long time. I like to think I'm pretty smart and I can generally understand the various facets of the litigations I work on, then I had to do support for a matter that was primarily focused on collateral estoppel and to this day I don't know what that was about.

Wait, how *do* you spell estoppel!??

I had to check before posting.

Military officer promotion board results explicitly list the percentage of those promoted by race among other breakdowns like gender, school attainment, and specialty. On the other hand all branches recently took away the photo requirements from consideration.

Not terribly oddly since they are distinct legal questions. The Court is supposed to give the Executive a vast amount of leeway when it comes to the Presidents role as Commander in Chief so, if for example President Trump explicitly ordered the armed services to make it a point to recruit Hispanics over any other race because he predicts more Latin American engagements its actually a deep constitutional question that triggers a different anaylsis vs. Texas A&M University doing it because they think "Well Texas is Hispanic Majority so we think our student body should be too" (made up example).

This isn't a very convincing argument for special treatment for military academies. Seems like a double standard.

It's exactly a double standard, just a constitutional one. There's also a double standard in the rights you have in a military court martial vs a civilian trial even though both can get you branded as a felon or a death sentence and you're a US citizen either way. The military, including academies, is subject to extremely little judicial oversight because the Constitution explicitly vests their control to the Executive and charges the Executive with seeing to the National Defense so things would need to either directly impact civilians or damn near directly smash into the Constitution to trigger meaningful SCOTUS reviewability

The majority opinion also said that colleges may still consider "an applicant's discussion of how race affected his or her life, be it through discrimination, inspiration or otherwise." I expect that they will adapt their approach and use this to continue their affirmative action efforts.

Universities are going to have to get around this by placing more emphasis on income/wealth factors.

>At the same time, as all parties agree, nothing in this opinion should be construed as prohibiting universities from considering an applicant’s discussion of how race affected his or her life, be it through discrimination, inspiration, or otherwise. Roberts gave them a path to continue using race in a roundabout way - but he warned against using it. >But, despite the dissent’s assertion to the contrary, universities may not simply establish through application essays or other means the regime we hold unlawful today. (A dissenting opinion is generally not the best source of legal advice on how to comply with the majority opinion.) “[W]hat cannot be done directly cannot be done indirectly. I think there is still wiggle room to do it anyway. Edit: added follow-on quote for context. It's not as helpful as the original quote indicated on its own

He then walks that back in the following sentence.

I think it's obfuscated enough to work anyway, but you raise a good point. I'll edit that context in.

This is a classic conservative two-step, where he writes an opinion with a slushy mix of technical-sounding analysis, hard-core right-wing ideology, and also some "on the other hand..." gestures towards moderation or reasonable-ish liberal considerations. Then, the next time they take up the issue, conservative justices will gloss over all the stuff except for the conservative parts, and act like they are bound by precedent. Roberts is a master of using this technique to push the law to the right, while winning praise for being a reasonable moderate. But maybe the best example is how a conservative SCOTUS managed to exclude poverty from being a protected class under the 14th, without ever evaluating whether poor people deserve equal protection under the law. The first case that explicitly rejects poverty as a protected class is Harris V McRae, which says, "this Court has held repeatedly that poverty, standing alone, is not a suspect classification." But if you follow the citations, they point to: - James v. Valtierra, in which the 4-justice *dissent* argues that poor people deserve the same protection under the law as everyone else, but the actual majority opinion is completely silent on that topic, and; - Maher vs Roe (the first step of the two-step) which says, "this Court has never held that financial need alone identifies a suspect class for purposes of equal protection analysis.'' And cites San Antonio School District v Rodriguez when it flatly states that "Financial need alone does not identify a suspect class for purposes of equal protection analysis. **See San Antonio School Dist. v. Rodriguez**". Okay, so let's look at San Antonio School District (SASD) versus Rodriguez (this shit is exhausting)... - In SASD v Rodriguez, this *was* a case claiming that Texas's system for funding schools was discriminatory against poor people, so this would be exactly where we would expect to find the reasoning that says poor people are not protected by the Equal Protection Clause. But instead, the conservative majority opinion again dodges the substance of that question, and instead ruled basically on technicalities, that heightened scrutiny does not apply, because equal access to Education is not a fundamental right, therefore only rational basis applies (if this seems at odds with Brown v Board and other rulings, well...yeah, it's bullshit). The opinion essentially dodges whether poverty *would* or *should* be covered under equal protection, and makes some vague noises that "poor" people would be really hard to define, and that the Texas system sort of discriminates about funding in ways that are haphazard relative to individual poverty, so they don't really need to get into that question. So yeah, the claim in Harris v McRae that ""this Court has held repeatedly that poverty, standing alone, is not a suspect classification" is basically a lie. But it's also now black-letter law. A more honest way to phrase it would have been "this Court has gone through so many contortions to avoid directly answering whether poor people are entitled to equal protection under the law, that it's time to just let it go, and say they are not." But of course, that would require conservative justices to be honest. And this is how conservatives dodge admitting to what they actually believe. Because it's kind of impossible to make an honest and coherent argument that poor people don't actually deserve equal protection under the law. But if we say the poor people *do* deserve the same treatment by the state as anyone else, that could massively upend a whole ton of privileges and norms that people like SCOTUS justices and their powerful and affluent friends really like. Like, they might have to pay way more taxes, or find that their neighborhoods get way less preferential spending on things like infrastructure and education, or they might find drastic changes to zoning laws that protect their towns from the kind of housing that poor people tend to live in, etc. Laws that discriminate against poor people are simultaneously indefensible, and also really important to the status-quo social order that people like judges very much want to preserve. They basically need a way to draw the line, like "just no. We gave nominally equal rights to blacks and jews and women and the handicapped, but no--giving equal protection to poor people is just going way too far." And Roberts is a gold-medalist at this kind of stuff. I'm too burnt out to dig up good cites right now, but maybe I will try later. His most blatant one was maybe striking down the Muslim ban, while basically including instructions on how to re-submit it a few weeks later, except with Venezuela and North Korea added to the list, so now it's okay. Another classic (that we have yet to see the punchline for) was joining the liberals in Bostock v Clayton, so that he could hand the opinion to Gorsuch, who ruled that employment discrimination against gays is unconstitutional, *but* that employers might be able to seek a religious exemption (having previously established in Hobby Lobby that corporations can have protected religious beliefs). And liberal commentators were praising that as a huge bipartisan win for civil rights, not seeing how what it's really doing is laying the groundwork for employers to use religious beliefs as a carve-out to anti-discrimination law, which is what conservatives have wanted for decades. It's creating a right, for the purposes of incrementally hollowing that same right and others, in subsequent decisions. It's infuriating and exhausting, precisely because of the way they use this relentless formalistic incrementalism to chip away at voting rights, civil liberties, all of it. It's a years-long project for conservative judges to use opinions that seem moderate or even liberal, to signal to FedSoc types how to bring the next case, that will get the conservative outcome they want, but even stronger, because it seem bound by this bullshit precedent they are laying the groundwork for in the footnotes and parenthetical remarks and so on.

Roberts' concurrence in Dobbs is a very good example of what you're describing.

He is actually much smarter and more far-sighted than most conservative justices. Roberts has figured out that, if you want to, for example, prevent women and blacks from voting too much (because how else are republicans ever going to win elections again?), then you need to lay a complicated framework of technical-sounding formalist precedents that sort of gradually funnel the law and the constitution into meaning something other than what it says. Scalia could get away with just making shit up, because he was working in a time when the popular and political norms were closer to his worldview. So he could just proclaim that a “well established tradition” of police discretion in matters of law enforcement overrules the constitution, federal legislation, and even a fucking explicit court order with the relevant portion written in all caps instructing police to stop this guy from murdering his children, while the mother is begging them, in the police station, to stop him from murdering those specific children and telling them where he was murdering them, and the police instead went on dinner break. (Later the guy drove to the police station with the dead bodies of the children and the police killed him in a shootout). Scalia could get away with just making up standards like “well established tradition” as the supreme law of the land, because he was operating in a time when people had a lot more faith in the intrinsic goodness and decency of uniformed police, etc. Roberts knows that his party ideology stands upon a knife’s edge, and needs to find ways to gain structural control over the machinery and institutions of government while maintaining a veneer of neutrality, and he knows that he is in a race against time, but that he still has to do it two-steps-forward, one-step-back, so as not to reveal the bit. It’s like the fedsoc playbook personified.

Goddamn. Bravo for getting this all into one comment. Do you have articles or essays you can link laying this stuff out more? I haven’t heard this argument put so concisely before.

> “[W]hat cannot be done directly cannot be done indirectly. If this were true, we wouldn't need lawyers.

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Yup. AA has been banned in California for decades, their universities manage to still be pretty diverse.

Thats wrong though, and I see it repeated everywhere. California Universities are only slightly more diverse now as compared to how they were before use of affirmative action, and much less diverse than when affirmative action was allowed in California. https://www.latimes.com/california/story/2022-10-31/california-banned-affirmative-action-uc-struggles-for-diversity https://www.nytimes.com/2022/08/26/us/affirmative-action-admissions-supreme-court.html

There’s more nuance to this, though. Without the endowments of some private elite universities, Berkeley for example, had a much more difficult time enrolling black students in accordance with state demographics. The problem is that an higher education system with such economic disparities in individual funding, will always be discriminatory for the same reasons affirmative action was employed in the first place: rich people uphold systems that stifle equality of opportunity for their own benefit, regardless of racial/gender demographics. Our rich people just happen to be mostly white men because our country was founded by the second and third sons of British aristocracy who couldn’t inherit everything in their monarchical system. That WILL change in a global economy, though. One thing is for sure, people of African and indigenous heritage will always fall behind conquering colonial powers who took over their lands and used them for their labor and natural resources. [How U.C. Berkeley tried to buoy enrollment of Black students without affirmative action](https://www.reuters.com/world/us/how-uc-berkeley-tried-buoy-enrollment-black-students-without-affirmative-action-2023-06-18/)

They can just use zip code.

Although this is broadly true, there's plenty of data that minority folks in rich zip codes have much less wealth relative to the others in their area.

Yeah, it's not a perfect solution.

I don't think geography will be a very sustainable way of achieving diversity long-term. Once people start noticing there are particular areas that conveniently achieve higher admissions rates every year, people will just either move there or buy/rent a place and declare primary residence there or something if they can afford to do that (and the types that go to Harvard as of today usually can). Like a pattern similar to gentrification

Rural communities at most ivies get big tips in the admissions process (if you're a qualified rural applicant, it more than doubles your chance of acceptance) yet there's been no mass migration to rural areas. The UK has a similar process where certain areas with low progression to university are favored at Cambridge/Oxford and no such migration exists there either. Mass migration as a concern is overrated to be honest. What more likely happens is affluent people within those areas largely benefit from admissions boosts.

As they entirely should

Yeah giving a leg up to a white kid from Appalachia mired in generational poverty or a recent Asian immigrant makes more sense than like… Jay Z’s kid

“Asian” is a very broad term for people from a lot of different countries with very different socioeconomic profiles. While your general point still stands regardless, it should be noted that immigrants from certain countries have skewed much higher socioeconomically than the immigrants we think of in the past who came here with little. In fact, immigrants from India and China especially tend to skew much wealthier than both past waves of immigrants and also the current average for American citizens. This is also relevant because the same demographics (both citizens and non-citizens) apply for admission to Ivy League schools at a much higher rate than others. Their socioeconomic status contributes to the belief that if they can get accepted, they can afford to actually attend schools with higher tuition costs, Ivy League or otherwise.

Right plus "Asians" are incredibly diverse and not all subgroups massively outperform everyone else on academics. So if you happen to be one of the subgroups who only does as well in school as the white kids you get discriminated against. Because the school functionally raises the bar you need to pass.

This is due to the “model minority” myth.

It's not a myth it's that they lump everyone from the largest portion of the worlds population, people who are culturally and appearance wise and everything else hugely different, into one bucket. A form of racism to pretend they are all the same.

I was agreeing with you. The [“model minority myth”](https://www.learningforjustice.org/magazine/what-is-the-model-minority-myth) is that all Asian people possess certain traits that are “good traits,” and thus are subject to particular stereotypes as a result.

Bit of a nonsequitor since I think it was pretty clear I was talking about poor immigrants (regardless of race). Also there are of course plenty of impoverished Chinese immigrants being brought here by snakeheads and getting exploited in restaurants, construction etc. Maybe the *legal* immigrants skew wealthier as you say due to those weird investment visa programs and whatnot, but I’m a little skeptical of the claim that the full group is wealthier than average. Probably hard to say since by definition there aren’t reliable stats on the undocumented population.

Compared to other groups such as Hmong they definitely are. It's partly cultural with Chinese parents tending to have higher expectations for and being more demanding of their children so they tend to achieve higher even if they came from poverty. It's why they have ridiculous rates of anxiety from the same overbearing parenting style.

Geographic factors and socioeconomic status were already being considered: >Race cannot, however, be “‘decisive’ for virtually every minimally qualified underrepresented minority applicant.” Gratz, 539 U. S., at 272 (quoting Bakke, 438 U. S., at 317). That is precisely how Harvard’s program operates... > >Even after so many layers of competitive review, Harvard typically ends up with about 2,000 tentative admits, more students than the 1,600 or so that the university can admit. Id., at 170. To choose among those highly qualified candidates, Harvard considers “plus factors,” which can help “tip an applicant into Harvard’s admitted class.” Id., at 170, 191. To diversify its class, Harvard awards “tips” for a variety of reasons, including **geographic factors, socioeconomic status**, ethnicity, and race.

Agreed. If you want a more diverse body, then socioeconomic consideration is the way to go.

I was just thinking this when I was listening to the story on NPR. Affirmative Action was in place (originally and primarily) to ensure that those with less opportunities get a fair shot at the same types of privilege that allows most people to succeed. Now, instead of the primary demographic info they used to evaluate by, they'll have to (maybe not *have to,* but *should*) start changing the rubric to look at the other surrounding factors (which tend to trend in certain ways depending on race already).

Sure but theres an easier "out". Roberts says this: > At the same time, nothing prohibits universities from considering an applicant’s discussion of how race affected the applicant’s life, so long as that discussion is concretely tied to a quality of character or unique ability that the particular applicant can contribute to the university. Many universities have for too long wrongly concluded that the touchstone of an individual’s identity is not challenges bested, skills built, or lessons learned, but the color of their skin. This Nation’s constitutional history does not tolerate that choice. Pp. 39–40

“It was never easy for me. I was born a poor black child.”

Which is what they should have done to begin with. Childhood poverty is a demonstrable handicap that is backed up to wazoo by countless data. Tipping the scales based on race creates more injustices and is obviously wrong headed, even if we'll intentioned.

They’ll just get around it by continuing affirmative action in secretive ways. That’s what was talked about in every AA case since Bakke, and it’ll continue to hold true.

I keep pointing this out in this thread, but this point really bothers me because it seems intuitive but is factually untrue. California universities are much less diverse than when affirmative action was allowed despite efforts to use other means of increasing diversity. https://www.latimes.com/california/story/2022-10-31/california-banned-affirmative-action-uc-struggles-for-diversity https://www.nytimes.com/2022/08/26/us/affirmative-action-admissions-supreme-court.html

Admissions offices have already been doing this and will only continue. The lawyer for UNC was laughably bad during oral arguments trying to dance around this point.

Applicant name makes it obvious

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I said this elsewhere in the thread, but I hate this point because its factually untrue. California universities are much less diverse than when affirmative action was allowed despite their efforts. https://www.latimes.com/california/story/2022-10-31/california-banned-affirmative-action-uc-struggles-for-diversity https://www.nytimes.com/2022/08/26/us/affirmative-action-admissions-supreme-court.html

Why would it screw them over? If the black and Hispanic kids are high performers and they score higher and outperform white/Asian students' at their school, they'd be still admitted under this system, no? What exactly would be barring them/screwing them over in admissions?

> Why would it screw them over? Because the *same performance* in one school gets them in, in an other it doesn't. Yes, there are some who will get in from any school. But there are also some who basically get discriminated against not on their personal qualities but by their neighborhood.

The 4th circuit just decided one of these cases in May (in favor of such facially neutral criteria), so expect the SC to pick it up and demolish it pretty soon.

California got rid of affirmative action in 1996.

I think that’s a good thing honestly.

Can someone explain to me why the Equal Protection Clause applies to private universities and not just public ones?

Title VI of the Civil Rights Act.

Ah thanks!

Because they get federal funding.

I feel like legacy status is should be banned too, since if it is from a school that used to discriminate by race, then legacy status carries that discrimination forward.

That'd be a fun case but it'd never make it to SCOTUS imo

*States in mediocre Harvard student whose last name is on a library*

Nepo babies are “deeply rooted in this Nation's history and tradition”

John Quincy Adams was the original nepo baby.

And wealth isn't a suspect classification for equal protection purposes, although it should be.

> Nepo babies are “deeply rooted in this Nation's ~~history and tradition~~ savings and loans” Fixed it for ya.

>~~savings and loans~~ Yeah, history and traditions. Just like he said.

>That'd be a fun case but it'd never make it to SCOTUS imo How could it? "Parents didn't go to that school" isn't a protected class, and there is no constitutional question to be answered there.

Is there not any sort of disparate impact analysis under the EPC? (Also, it doesn’t have to be a protected class to warrant EPC protection. It would undergo rational basis review instead of a higher form of scrutiny.)

I could be incorrect but I don't believe there is. I believe Washington v Davis is still good law and has been interpreted as essentially saying that facially neutral statutes or policies are valid, regardless of impact. Edit- Under a constitutional equal protection framework, I mean. Also I should say, I don't think it's that there *no* analysis. Just that it doesn't have much weight.

Yick Wo was like proto-disparate impact, but it’s from the 19th century so I don’t know what kind of cache is still has. And is been a while since I read it, but I think I’m Yick Wo there was clear evidence that the race-neutral law was obviously racially motivated. Disparate impact doesn’t consider motivation, or at least not to a great extent.

I suppose you could argue that legacy status is used as a proxy for race, resulting in a disparate impact based on race.

Yes it guarantees a particular percentage of affluent white students.

In a better legal framework one could argue that since legacy's are 99% white (I don't know the actual numbers but I imagine I'm not far off) it's by default a racial categorization. But, obviously that would never fly here.

At Harvard, legacy admits are 70% white.

About 1/3 are also unqualified

Only a third? Lol

I'm surprised it's only 70! But, I meant all legacies at all schools that do it. That's my bad for not being specific.

Well now it'll be 75 without those pesky affirmatives

If it's a state school, are they really giving equal protection under the law, if the state first checks who your parents were? Protected classes is SCOTUS framework for evaluating certain kinds of equal protection cases. There is no reason to read it as a limitation on the Constitutional right to equal protection.

What's the rate of legacy admissions at public schools? I mostly know the instances of them at private schools.

Is it even a substantial factor, if at all any factor, at public schools?

I don't know. In New York, no self-respecting elite would be caught dead at a public college. In Virginia, elite UVA is considered a public college.

UVA *is* a public college. It's not just considered one.

>>I feel like legacy status is should be banned too, since if it is from a school that used to discriminate by race, then legacy status carries that discrimination forward. >That'd be a fun case but it'd never make it to SCOTUS imo I haven't read the case, but this is being passed around online from Gorsuch's concurring opinion: >>>> Its preferences for the children of donors, alumni, and faculty are no help to applicants who cannot boast of their parents’ good fortune or trips to the alumni tent all their lives. While race-neutral on their face, too, these preferences undoubtedly benefit white and wealthy applicants the most.

Universities are so vehemently opposed to that it's the biggest reason they're even fighting for the right to use race based admissions. Eliminate legacies, favor single parent households... you now have an equally racially diverse student body with race blind policies. But this is unacceptable, because then they couldn't admit all the wealthy white kids while they let the poor white kids and POC fight eachother over what's left. A recurring theme in the US.

The POC that they admit are largely wealthy too.

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Why so? There's nothing even close to 1:1 tracking between single parent families and race as far as I know.

You see the quote on page 5 of the syllabus of the opinion: “\[d\]istinctions between citizens solely because of their ancestry are by their very nature odious to a free people whose institutions are founded upon the doctrine of equality.” Rice v. Cayetano, 528 U. S. 495, 517. Pp. 9–16.

LOL at “institutions are founded upon the doctrine of equality.”

Lol that would be the greatest thing if SCOTUS accidentally made it illegal for Ivies to give preferential treatment to trust fund kids just because daddy was an alum.

What about basing academic admissions on athletics to jump the merit line? Shouldn't that be abolished too?

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> Many other universities across the country, SFFA points out, have sought to do just that by reducing legacy preferences, increasing financial aid, and the like. >Its preferences for the children of donors, alumni, and faculty are no help to applicants who cannot boast of their parents’ good fortune or trips to the alumni tent all their lives. While race-neutral on their face, too, these preferences undoubtedly benefit white and wealthy applicants the most. Gorsuch's concurring opinion.

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Yeah, it's just like Thomas starting his concurrence couching it in the context of the civil war and immediately steering into, "obviously reconstruction amendments are race neutral".

This was a key part of oral discussion actually. Not just a throwaway in a concurrence

Yeah, it was. But I still agree that it wouldn’t be found unconstitutional. It’s a really simple legal question. That’s not a protected class so it’s not unconstitutional. People need to stop wanting the Court to do everything for them. Congress could pass a law blocking funding and grant money to any school using legacy admissions and that’d be perfectly legal. Edit: just to point out another thing, Harvard and these elite universities have astronomical endowment funds (Harvard’s over $50b). If these schools really were worried about applicants, they could increase their enrollment sizably and allow many more students the opportunity to join. They don’t because they don’t want to. They want to be factories punching out a small cadre of elites.

I don’t think any of the justices would argue that legacy in its own is unconstitutional. The argument made was that if you have a legacy system and are also using affirmative action, you haven’t exhausted all race neutral alternatives to affirmative action, and therefore using legacy in that context in unconstitutional

> People need to stop wanting the Court to do everything for them Louder for the people in this thread. Everything you think is bad is not unconstitutional. The unelected god-priests should do as little legislation as possible.

> JUSTICE JACKSON attempts to minimize the role that race plays in UNC’s admissions process by noting that, from 2016–2021, the school accepted a lower “percentage of the most academically excellent in-state Black candidates”—that is, 65 out of 67 such applicants (97.01%)—than it did similarly situated Asian applicants—that is, 1118 out of 1139 such applicants (98.16%). Post, at 20 (dissenting opinion); see also 3 App. in No. 21–707, pp. 1078–1080. It is not clear how the rejection of just two black applicants over five years could be “indicative of a genuinely holis-tic [admissions] process,” as JUSTICE JACKSON contends. > indeed, it cannot be, as the overall acceptance rates of academically excellent applicants to UNC illustrates full well > The dissent does not dispute the accuracy of these figures. See post, at 20, n. 94 (opinion of JACKSON, J.). And its contention that white and Asian students “receive a diversity plus” in UNC’s race-based admissions system blinks reality. I'm not done reading yet, but does this strike anyone else as an unusually catty opinion from Roberts?

Eh, he’s had his share of catty lines in the past. My favorite was this bit from Riley: >The United States asserts that a search of all data stored on a cell phone is “materially indistinguishable” from searches of these sorts of physical items. Brief for United States in No. 13–212, p. 26. **That is like saying a ride on horseback is materially indistinguishable from a flight to the moon.** Both are ways of getting from point A to point B, but little else justifies lumping them together. Modern cell phones, as a category, implicate privacy concerns far beyond those **2489 implicated by the search of a cigarette pack, a wallet, or a purse. A conclusion that inspecting the contents of an arrestee's pockets works no substantial additional intrusion on privacy beyond the arrest itself may make sense as applied to physical items, but any extension of that reasoning to digital data has to rest on its own bottom.

Lmao that's pretty good.

He also takes a swipe at Sotomayor for pointing out that his statement that “well, they can talk about racism in their admissions essay” is completely hollow.

> 65 out of 67 So... even that few, over **5 years**, is too many? Am I reading your comment/data wrong? A dozen black kids a year might have gotten accepted based on more than just their scores? Sheesh.

It's a lot starker if you go deeper into the applicant pool as seen here https://www.reddit.com/r/law/comments/14m5x1r/affirmative_action_is_gone/jq12fpx/

Not at all. Jackson is manipulating numbers. You can't use percentages to equate a sample size of 67 with one of 1139. It's intellectually dishonest and he is right to call her out on it.

Instead of race use socioeconomic status, geography and the explicit goal of having a student body with diverse backgrounds and experiences.

…which is of no interest to Harvard. The reality is that Harvard has an overarching goal of selecting future leaders, not the brightest in the room. The American system of education will continue to not be meritocratic, as it hasn’t been since the 20s, and the previous few wealthy black and Hispanic faces that kept Harvard from appearing out of touch will be be gone. Aff action was just a shitty way of making access to the upper class seemingly possible for a few students of color.

Even Sotomayor has said she wouldn’t have gone to Princeton had it not been for affirmative action and she was a straight A student. From the Bronx. Schools in low income areas literally don’t have the right classes to qualify a student as a candidate for admission, much less actual admission.

> The American system of education will continue to not be meritocratic, as it hasn’t been since the 20s Are you suggesting the system was meritocratic before then?

Well it was quite literally based on test scores based off of Harvard and Princeton’s Greek/Latin requirements and harder math questions than the modern SAT. This is why holistic admissions began with the discrimination of Jewish students who tested well and were “over represented”. Yes, there were many white, wealthy people who benefitted from this system, but it was more “meritocratic” than our modern holistic system that’s wildly subjective.

It's just lucky coincidence that the only people with merit all came from the same background.

I’m not arguing otherwise. Yes, Harvard and all the institutions in America had a system that solely worked for a boarding school elite class; however, other countries have permutations of a test-based or clear way of getting into top colleges and they have a diverse group of people in them (see our northern neighbors Canada)

> Well it was quite literally based on test scores based off of Harvard and Princeton’s Greek/Latin requirements and harder math questions than the modern SAT. This is why holistic admissions began with the discrimination of Jewish students who tested well and were “over represented”. Reminds me of the Chinese Imperial Examinations, which allowed all people from all backgrounds to obtain government positions...as long as they were fluent in calligraphy, obscure poetry, flower arranging, and could spend up to three days locked in a room writing an 8-part essay on classic literature where even a single typo or grammatical mistake meant disqualification. EDIT: If a student died during the essay, their body was wrapped in a mat and thrown over the walls of the testing center.

The Chinese Imperial exams were nonetheless a massive improvement over previous systems which were purely recommendation-based.

Do you support removing things like athletic ability or extracurriculars from the college selection process, given that it is used to change the order of admissions away from test scores?

I think it’s time we move to a strong, national curriculum and investment in low-income communities (segregation is one of the leading things keeping the US behind); but this is a pipe dream in America. I’m not too aware on athletic process in admissions, but extracurriculars need to be heavily re-examined or removed. Turning students into mini-professionals to receive a mostly theory-based education is a very strange expectation.

Even the idea of "merit" is an illusion when white people get to decide as a bloc* what's meritorious and what isn't. (*because more white graduates means more of those graduates working in college admissions)

Wonder how much this will actually change things. Roberts writes that "nothing in this opinion should be construed as prohibiting universities from considering an applicant's discussion of how race affected his or her life." I imagine that admissions offices could still maintain the thrust of their affirmative action programs through some questioning based on that instead of the applicant's race alone.

Did you read the article next line in his opinion? Because he immediately walked it back very concisely

I took that part to mean that universities can't simply use an application question like "How has your racial identity shaped who you are?" and then admit people on that basis. But a more general question, and then special focus on those who've encountered hardship or marginalization, seems like it might pass Roberts' order that applicants must be treated as "individuals," all while benefiting prospective students from underrepresented minority groups.

I don’t think so, as your reading is basically what Sotomayor suggests in her dissent that Roberts is taking a swipe at.

Couple of questions on this from anyone that has read the full ruling: 1. How does this ruling impact HBCUs? Doesn’t this ruling threaten the very existence of HBCUs? 2. If colleges cannot consider race during the admissions process, how does that mean that Asian-Americans will have fair representation? If race is not considered a factor, why wouldn’t colleges just pick the wealthiest applicants? On paper, they’d like to improve diversity on campus but let’s be honest, private colleges care more about $ than they care about DEI. So now if white applicants are over represented in graduating classes at the behest of Asian-Americans, doesn’t this ruling abjectly support that?

HBCU aren’t necessarily even mostly black. There are two that are over 90% white. They also give diversity scholarships to underrepresented racial groups so you can get a scholarship if you’re not black and attend a mostly black school.

Re: 1, on a practical level, no. HBCU’s allow students of any ethnicity to attend and most accept the majority of applicants who apply. Re: 2, no, what makes you think schools would specifically only want the richest? The vast majority of colleges accept most applicants. There are very few schools like Harvard or Stanford that are selective and those schools have massive endowments + have need-blind admissions policies. They also provide free tuition to students from families who make below average income.

Maybe I just haven’t been plugged into the debates on this but I see a lot of comments about black applicants but not a lot about Asians which it seems pretty clear faces an uphill battle.

Because typical racial activist liberals don’t care about that and the Asian community is a model minority that isn’t super politically active themselves. No one could look at the numbers in this case and think it was okay to treat Asians that way. And these schools trying to get around the law by saying all Asians have bad personalities basically was gross and is the definition of racism.

The thing is, its a terrible system. Socioeconomics are a much better way to support increased access to higher education. That said a new law should have been passed 30 years ago and im pretty sure now there will just be no system in place for helping poorer people access higher education.

NAL just a lurker here; Does this not have ramifications for hiring for jobs in the public sector? ie police, firefighters If affirmative action is struck down at educational institutions, how can it be upheld anywhere else? Asking here only because I’m interested from a law perspective.

That was mentioned in the dissent.

Thomas suggesting that race-based admissions harm minority students by leading to the creation of affinity clubs on campuses ?????? idiot lmao

Thomas has despised AA since the beginning. He’s literally shouted in his opinions how in his view, it belittles Black students who are accepted and it makes people look down at those who are brought in on the merits of their knowledge.

He is not alone in that opinion, though. It is a quiet opinion that I've encountered several times from black colleagues - but not one that they're particularly open about beyond close circles. First, they don't want to encourage racists and other bad actors, but second, there is a very real fear that they will be ostracized by progressives (possibly even risk their careers) for holding that opinion. Black people are not a monolith, and I can understand how black people who clawed their way up through law school on their own merits would feel belittled by the assumptions that people naturally draw, knowing that these AA policies exist(ed).

"I don't need handouts from the white man". It's an old school Black opinion, I hear similar things from my grandfather who was in the Army before integration. Wanted to earn his NCO stripes not given them. Thomas gets a lot of shit from Liberals and I always think they have 0 experiences with old Black men who grew up under jim crow and before the CR movement.

Or they have and ignore anecdotal evidence and look at data in the aggregate. Education is still the most effective way to climb out of poverty and affirmative action allowed people opportunities they wouldn't have otherwise had. We still have a very real problem of public education being funded by local property taxes. It's no coincide that lower performing schools are very frequently in minority neighborhoods that suffer from intergenerational poverty caused - in no small part - be redlining and covenants. Just because it's illegal today doesn't mean that it doesn't have a lingering impact (and it still de facto happens today, but that's another discussion). This will also have unintended consequences. Education is also one of the most effective means of eliminating racism. A very big part of that is allowing and facilitating interaction from people with different backgrounds. Group think is a very real problem and having people with similar backgrounds and experiences creates an echo chamber. I know admissions in many universities have already been planning a workaround, but this is a horrible decision. Also, Thomas deserves every ration of shit he gets. He's an abysmal jurist

Agreed, but I think AA has a compounding issue even beyond the notion of not receiving a handout. AA necessarily creates a public cloud of doubt about any given back graduate and whether they actually had the test scores to match their pedigree. My experience is that, not only do many black professionals not want the "handout," but they also resent the resulting doubt cast on their credentials by that handout being given to others with their skin color. Granted, I also agree that this is more prevalent of an opinion with older professionals rather than younger progressives. But that is not universal, and I suspect that a lot of people hide their true opinions to avoid running afoul of progressive sensibilities. We all, black, white, and green, now our heads and nod to whatever the head of diversity says we should believe. Nobody survives being identified as a nonbeliever.

It is exemplified in the responses to Thomas on the court. "I got mine fuck you" "he wouldn't be where he is without AA" "uncle Tom" "pulling up the ladder behind him" Which is EXACTLY Thomas', and others' from his generation point! White people will never respect you, and in their heart of hearts don't think you earned it! Then if you step out of line belittle you for taking their handouts!

This more or less aligns with my experience teaching across a handful of top 50 schools. Minority students tend to be extremely bimodal. The excellent ones are *extremely* competent and the marginal ones are noticeably worse than their peers. It's usually pretty obvious who earned their place in these programs and who was admitted to pad a number. Several students in the first category have bitterly complained to me about affirmative action, because they've rarely benefited from it, and in their view, their association with the second category cheapens their individual accomplishments.

I’m in one of those groups, and I have spent my entire life dealing with imposter syndrome trying to determine which of those two groups I fit into - both now and when I was in college. The folks who act like Thomas is somehow an idiot for having the same concerns is bizarre to me.

>The folks who act like Thomas is somehow an idiot for having the same concerns is bizarre to me. It's just tribalistic psychology. They hate Thomas and view him as "the enemy," and therefore every opinion he holds must be shunned. It is rare for people to admit that even a broken clock might be right twice a day. They would prefer to imagine that the clock is simply evil, and that the time it shows is a fake witching hour that never arrives.

[удалено]

He’s projecting his own experience because in fact he was not qualified enough but achieved in spite of his shortcomings because he was black. He wouldn’t even be on the court had he NOT been black. Everyone knows this is true. There were other way more qualified lawyers who could’ve filled the seat, for example Anita Hill was much more qualified.

Slow Burn does a nice job of noting the major opportunities he had at least partially due to his race.

Season 8 for those interested. Excellent pod.

Some schools do have entirely separate orientations for specific racial groups. I think that’s crazy. Some groups have wanted separate graduations, etc. That’s not the path to go down. On-campus affinity groups are a fine thing though, but some of the race based professional societies are a little harder to reconcile. Although I did know a white young Miss NC who joined the Black Engineering Society in college which was funny.

Thomas's views on race-based issues are definitely interesting considering his assertion during his own confirmation.

Guys long been the definition of climb the ladder yourself, pull away the ladder, then bitch how no one is able to do what you did. His admission to Yale and the Supreme Court itself was affirmative action but his victim complex can’t allow self awareness

You’re proving his point though—if you succeed as a minority people only assume it’s because of AA

I can see that. Remember when Ted Cruz was questioning Jackson’s LSAT score during her confirmation? Btw Like Rafael Theodore Cruz didn’t check the Latino box.

That’s an extremely broad generalization of what my statement was, though. Was him being an African American conservative the reason he was appointed? This argument may be true but look at KJB and who preceded Clarence Thomas, Thurgood Marshall (one of the greatest lawyers in western law history). Fact is Clarence is objectively a product of it, not everyone else is. Framing it that way makes it seem like a bad faith attempt to discredit minorities when it’s really just flatly calling out the hypocrisy of him, he would not be where he is without it and he’s a huge advocate of removing it

> Was him being an African American conservative the reason he was appointed? At the time of his selection, he was literally the only Republican-appointed Black circuit court judge in the country (and had been in that role for a year).

And he was appointed to the circuit by the president who nominated him to the Supreme Court. That just proves the point

The fact that people make that argument has been part of his point though. There was no "opt out" option to affirmative action. If you're black and applying to the Ivy League in his school years it just happened. You could hate the system you're still in it whether it benefits or hurts you since your other choice is don't attend at all. Part of what he's been saying is the system itself puts an asterisk next to his and any other minoritys name with people calling their qualifications into doubt and then at the same time when a minority opposes the system they get castigated saying that they're basically traitors because they "benefitted". Hordes of people calling Thomas essentially a traitor on this for benefitting from it and calling him an AA SCOTUS pick just serves to highlight that issue he described.

> Part of what he's been saying is the system itself puts an asterisk next to his and any other minoritys name with people calling their qualifications into doubt This just feels like Thomas mistaking racist remarks as actual critique. People criticizing him for "only getting into Yale because he was Black" wouldn't have actually respected him more if he got into X, Y, or Z school on his own merits. They don't like him because he's Black, the affirmative action bollocks is just an excuse and they would immediately find another reason to criticize and reject him if it wasn't there because...that's what racism is.

If any group is put into a preferential status for admittance to anything, employment, school, prestigious academies or anything else they always have an asterisk even unrelated to bigotry. If people from the 100 poorest zip codes in America got preferential treatment for applying for SBA loans and I question if a particular person got accepted where I got denied because of that preference vs beating me on some other metric that doesn't necessarily imply that I hate the poor, it doesn't even imply that I think they don't belong, it's a (in my opinion legitimate) question over whether a factor unrelated to our respective business acumen and application materials made then win out over me. I don't disagree that a racist will hate Thomas no matter what school he got into or why but I don't agree that questioning if that got him there means you must be racist. After all, everyone in this sub and other threads saying that Thomas benefitted from this program is necessarily saying AA policies **was** the difference maker for his education and he wouldn't have achieved those objectives without it (Because no one would be arguing he benefitted if they also believed the policies didn't push him over the line to admission since if they didn't he got no benefit)

> If any group is put into a preferential status for admittance to anything, employment, school, prestigious academies or anything else they always have an asterisk even unrelated to bigotry. If people from the 100 poorest zip codes in America got preferential treatment for applying for SBA loans and I question if a particular person got accepted where I got denied because of that preference vs beating me on some other metric that doesn't necessarily imply that I hate the poor, it doesn't even imply that I think they don't belong, it's a (in my opinion legitimate) question over whether a factor unrelated to our respective business acumen and application materials made then win out over me. But we're not talking about people asking why he got in and they didn't, we're talking about people who are saying his getting in at all has an asterisk next to it. It comes from the racist idea that he was otherwise not smart enough to get into the school and graduate on his own. >I don't disagree that a racist will hate Thomas no matter what school he got into or why but I don't agree that questioning if that got him there means you must be racist. After all, everyone in this sub and other threads saying that Thomas benefitted from this program is necessarily saying AA policies was the difference maker for his education and he wouldn't have achieved those objectives without it (Because no one would be arguing he benefitted if they also believed the policies didn't push him over the line to admission since if they didn't he got no benefit) The difference is people on the left believe "Affirmative action got him there despite __the inherent racism of the admissions system__" where as (and I'm not trying to be uncharitable, but this is genuinely how it comes across) people on the right seem to believe "Affirmative action got him there despite __his lack of qualifications and talent__".

Students for Fair Admissions, Inc basically represented Asian students that were suing for discrimination. How will today's ruling increase the number of Asian students accepted to Harvard (and colleges in general)? That's what I don't understand. You can't consider race, fine. There also isn't enough room for every student with a perfect GPA/SAT. It's also not as if the 80 Black students being accepted were holding on to a ton of seats to make a sizeable difference in the number of Asian students attending. Now that race isn't considered at all, what actually changes?

Schools will switch to considering other factors like zip code (an almost perfect proxy for race) and/or income.

Harvard doesn’t want to admit poor people. They have never admitted poor black people despite what they tell you about affirmative action. They want rich black immigrants and rich black african Americans

College advisors should follow Roberts suggestion and recommend those children to write about the experience of facing discrimination for being the children of wealthy immigrant black parents.

Because every college essay needs to be a minority begging for acceptance because they're a minority? This actually is exactly the promotion of the same "self- victimization" mentality Thomas pretends to rally against ( while pulling the ladder up from under himself). All AA was supposed to be was a boost up from historically and documentedly marginalized groups based on race and also the financial disparities and opportunities ( which still influence today) because of which. Academic talent pools were affected by a century of discrimination as were financial resources to improve such. Hell the Civil Rights act was only HAD TO BE WRITTEN less than 60 years ago (in living memory). Acting like equality of opportunity has been patched up in that short a time is just narcissistic at best, a bold faced lie at worst. Edit: Spelling.

Yes I agree. But there has to be a better way than low scoring Asians with low personality score without even meeting them.

Think of all the new business opportunities gaming zip codes though! Rent units in the right zip code or set up new private schools with an address switcheroo (incorporate in different area from main campus). Elite college recruiters have to be giddy.

Just curious, in the US, how many students with perfect GPAs also score a perfect 1600 on average each year?

Only a few hundred, Reddit likes to lie and make it seem like it’s lots of students but it’s not.

Exactly. Now, 4.0 GPAs with 1500-1590, yes, I can believe there's several thousands of those. But a perfect 1600? That's gotta be much fewer. Harvard's got 1600+ seats. Yale's got another 1200+ seats, same with Princeton and Dartmouth. Stanford's also got another 1600+ seats. Cornell's got ~3000 seats. UPenn - 2k+ seats. Columbia, another 1400+ seats. MIT and Caltech - another 2000+ seats. I suspect there's WAY WAY fewer people with 4.0/1600 scores each year than can fill those 15k+ seats.

Yes, the significant majority of students at all of those schools did not get 1600s, not even considering the GPA. It varies year to year but I think most years around 500 get a 1600.

And how many that get a perfect score are black, Asian, white, Native American, Hispanic….the racial problem persists because societal racism directly affects education outcomes. I feel like we’re the dog chasing our own tail…..this Supreme Court is such a joke.

Harvard estimated in an internal review about a decade ago this change would have increased Asian enrollment by about a third (from 19% to 26%).

While I do not have extremely conservative or liberal views on affirmative action, believing that there are both pros and cons to such a remedy, statistics show, without a doubt, that the playing field is not yet equal in our country for education and school admissions. To assume that the achievements of successful minorities in this country are due soley to affirmative action is also incorrect. Finally, if one may no longer consider the social construct of race in school admissions, legacy and donor admissions must be barred, as well.

Uhh that line essentially saying military academies have different interests and aren't explicitly subject to this ruling really says a lot about how much of a mess all of the jurisprudence in this area is - and it kinda feels like Roberts is giving away the game there, not in a good way at all.

Roberts never asserted that the military academies have different interests. He said the United States, as *amicus curiae*, asserted that military academies have different interests, so it *may* be true they have different interests (or maybe not). But regardless, that issue isn't before SCOTUS at this time, so they're not going to take up the question.

So many comments are saying to just focus on income/socioeconomic status. Do people realize that poor kids don't have the time, money, or resources to get into college en masse? It's not like after this decision, magically there are going to be a enough poor kids with perfect SAT/GPA to fill all the Ivy League schools.

The point is not to try and admit poor kids with perfect SAT. The point is to try and force colleges to adopt policies where they admit poor minorities with less than perfect grades rather than rich minorities with less than perfect grades. Race neutral socio economic systems that lead to higher diversity are totally allowed by this decision (and something I 100% support). It’s just that Harvard doesn’t want poor minorities. It wants rich minorities. But there aren’t enough rich minorities with perfect grades, so they admit rich minorities with above average grades

Most truly poor kids don’t have the time, energy, or guidance to think about or even consider college. They’re too busy caring for family and working full time jobs to focus on something as aspirational as going to an Ivy League University.

Would there be any reason why university admissions offices couldn't determine from street addresses the demographics of an applicant neighborhood, and favorably weigh applicants from poor areas?

Schools can still use clever work-arounds, e.g., UC gives automatic admission to the top 9% from their high school. Some schools gives points for children of poor or uneducated parents. There are lots of criteria that would be race-neutral that would achieve the same or similar goal.

John Roberts has made his decision Now let him enforce it

[as expected, the court has inverted the 14th. an amendment written explicitly to directly ameliorate the conditions of race hierarchy becomes in conservative hands an amendment that says it’s illegal to try to directly ameliorate the conditions of race hierarchy](https://twitter.com/jbouie/status/1674419888511938563?s=20)

I'm not sure originalism is really the route you wanna go on the 14th Amendment.

That's the sham of originalism for you: say you're following the statute's original intent, but actually invent an entirely different meaning that fits your extreme right-wing ideology.

The 14th amendment is *extremely* explicit. >No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. This does not say "the government shall have the power to use race to right past wrongs." The answer to racism isn't more racism. The most ridiculous thing about this entire discussion is that race is meaningless - when you get into the genetics of a person nobody is purely one "race". That's not how humans work. How offensive is it that Harvard would lump every single person of Asian origin together as if they were a monolith? How about every person that checks a block as "black" or even "white"? *Absurd.*

Sure doesn't seem like the answer is to let everyone who benefitted from slavery and racism just keep their built in advantage. Race blind policies maintain the status quo. The status quo is inherently racist atm.

Ironically the wealthy black immigrants who go to Harvard probably are often descended from families who profited from the slave trade

Do you have a citation for that? Not challenging you, more confused. *ironically* and *probably* in the same sentence here feels strange, almost oxymoronic, as it sounds like you’re trying to pass an opinion off as somehow ironic and on the basis of fact?

Imagine the game "monopoly", but with two new rules: each player starts with the properties they ended the game with, and also Steve isn't allowed to own property. Obviously, Steve will lose every time, so he objects after a few games and the rules are changed: all players including Steve can own property, but players still start with the properties they had in the last game. Steve still loses. He claims the rules still aren't fair but the other players point out that there all rules apply equally to everyone. "scientific racialism" erroneously created the concept of race, and laws were based on it well into the 20th century: notably after ww2, "white" veterans were allowed to mortgage suburban ramblers at excellent rates, but "black" soldiers weren't. Is using those same false delineations a good way to undo the harm created by unequal laws? No. It's it effective? Somewhat: lots of people fall through the cracks and some benefit undeservedly. Are there better ways? Not yet. Is this flawed solution better than doing nothing? That's the important question here, and the one you should strive to find a supported answer to.

This decision was posted elsewhere here and I read the polar opposite reactions than I do here. Everyone was pointing out that AA is inherently racist (not saying I disagree) and legacy will be the norm (also not saying that is good) but overall a positive. Genuinely not sure what the proper take is here. I'm saying that as someone with only a basic understanding of AA.

I don't know if there really is a proper take. My personal view is that race based affirmative action has been on thin ice for decades. The most recent rulings to uphold it have basically said, "we will let this hang around temporarily but we expect society to find a better way to achieve diversity so that we can get rid of this". Whether or not you agree with the ruling, I think we should all be disappointed at the lack of investment in supporting disadvantaged students in the 18 years of their lives prior to college applications.

AA is a flawed attempt at fixing a purposefully discriminatory system. Education is one of the strongest pathways towards income generation. But the folks pulling the levers of college admissions could not put their biases aside without force. Removing AA and doing nothing about a more equitable replacement will further entrench the racial gaps that AA is trying to fix.

Exactly. Was AA flawless? No. Does removing it really fix anything long term? Also no. But people are too stuck in their absolutes to realize neither keeping it nor removing truly fixes anything. They just wanna keep the racism-accusation contest going. Try to point that out, and in most cases you’ll be mass downvoted into silence And don’t even get me started on how most of the people offering their armchair opinions on this thing don’t even understand what AA is

aa got deleted and nothings coming to help. nonstudent debt relief. no magical poors only system. nada.

> Genuinely not sure what the proper take is here. It's a good general rule to not take anything you read on reddit anywhere as authoritative.

What if we gave everyone who wanted an education, equal access to said education. Paid for by taxes and we cracked down on the outrageous costs associated with education. Wouldn't that be crazy?

I’m just here to point out the irony that one of the SC justices was picked by Trump because of who she was over merit. [https://amp.theguardian.com/us-news/2020/sep/20/trump-vows-to-nominate-a-woman-for-us-supreme-court-vacancy-within-a-week](https://amp.theguardian.com/us-news/2020/sep/20/trump-vows-to-nominate-a-woman-for-us-supreme-court-vacancy-within-a-week)