Thoughts on Today’s Decision

Scott and Steve have already commented on today’s historic Supreme Court decision, finding that both Harvard and the University of North Carolina have engaged in illegal race discrimination through their affirmative action policies. I will add a few observations, which perhaps will be supplemented when I have had time to read all of the opinions.

* The Grutter decision has always been an anomaly. It expressed considerable distaste for affirmative action in university admissions, and applied the strict scrutiny standard to the policies of the University of Michigan that were there at issue. But the Grutter opinion was never persuasive. It has always been clear to an objective reader of that decision that, if properly applied, strict scrutiny should have doomed the University of Michigan’s race discrimination.

* Chief Justice Roberts’ majority decision did not explicitly overrule Grutter. Rather, it applied the criteria that were stated in that opinion to the present case, and held that both Harvard’s and UNC’s practices of race discrimination failed the Grutter test. This is because 1) there was no clearly demonstrated connection between the discrimination at issue and the purported compelling interest of the university (“diversity”); 2) the discrimination at issue inevitably harmed some ethnic groups, as it benefited others; and 3) there was no end in sight at either UNC or Harvard, contrary to Grutter‘s injunction that affirmative action could be tolerated only temporarily, i.e., for 25 years or so.

* That should have been the result in Grutter, too. Justice Thomas writes:

The Court’s opinion rightly makes clear that Grutter is, for all intents and purposes, overruled.

I think that is correct.

* If you are wondering why the Court examined both UNC (a public institution) and Harvard (a private institution that receives government funding) under the 14th Amendment, rather than, in Harvard’s case, Title VI of the Civil Rights Act of 1964, the answer is found in Footnote 2:

“We have explained that discrimination that violates the Equal Protection Clause of the 14th Amendment committed by an institution that accepts federal funds also constitutes a violation of Title VI.” [Citation omitted.] Although Justice Gorsuch questions that proposition, no party asks us to reconsider it. We accordingly evaluate Harvard’s admissions program under the standards of the Equal Protection Clause itself.

* How much practical difference will today’s decision make? On the surface, howls of outrage from the Left (e.g., Justice Jackson’s dissent) seem overblown. The majority emphasizes that most, or many, colleges already are not using race as a factor in admissions, including top schools like Cal Tech. So why is it such a big deal to Harvard and UNC?

* Moreover, these institutions have no intention of abandoning their discriminatory practices. Thus, Harvard has already announced that it will no longer require the SAT or any other standardized test. This is extraordinary: Harvard would rather give up its status as an elite institution than stop engaging in race discrimination. See, too, the statement that the heads of all of Harvard’s various schools released within hours after the decision:

We affirm that:

Because the teaching, learning, research, and creativity that bring progress and change require debate and disagreement, diversity and difference are essential to academic excellence.

Left unsaid, but implied, is that racial diversity and difference are “essential” and as such will be a fundamental goal of the university.

To prepare leaders for a complex world, Harvard must admit and educate a student body whose members reflect, and have lived, multiple facets of human experience. No part of what makes us who we are could ever be irrelevant.

They mean skin color.

Harvard must always be a place of opportunity, a place whose doors remain open to those to whom they had long been closed, a place where many will have the chance to live dreams their parents or grandparents could not have dreamed.

Harvard refuses to acknowledge what the Court’s opinion points out: if you open doors to one group via race discrimination, you necessarily close doors to another group.

* Will it be easy for universities to evade today’s decision? Some, including Justice Jackson, view this statement in the majority opinion as a giant loophole. Harvard quoted it in its press release:

The Court also ruled that colleges and universities may consider in admissions decisions “an applicant’s discussion of how race affected his or her life, be it through discrimination, inspiration, or otherwise.”

Of course universities will use this dodge, and others, to continue discriminating. Part of their effort will involve minimizing objective data about applicants–SAT scores–so that their decisions are more wholly subjective and thus less vulnerable to legal challenge. But today’s decision will always pose a threat. As Chief Justice Roberts wrote:

[D]espite the dissent’s assertion to the contrary, universities may not simply establish through application essays or other means the regime we hold unlawful today. … “What cannot be done directly cannot be done indirectly.”

Universities that circumvent today’s decision will always have to worry about lawsuits by disappointed applicants, who will not want for lawyers to represent them.

* Perhaps the most important aspect of today’s decision is that it plainly labels affirmative action as bad. Affirmative action has always been disliked by most Americans, but a top priority of elites. Today’s decision is, in important ways, a populist one. The Court explicitly rejected the universities’ plea that such matters as admissions decisions should be left to “experts,” who can best judge whether race discrimination is, or is not, a good idea. I think it is the exposure of affirmative action as something bad, not something noble, that most inflames the Left, whatever the practical consequences of the decision may be.

* Finally, as anticipated, Justice Thomas delivered a brilliant historical broadside in his concurring opinion. He stands foursquare for the proposition that the Constitution is colorblind. The majority doesn’t quite get there, but you will find Thomas’ concurrence inspiring reading.

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