Patterico's Pontifications

6/29/2023

Supreme Court Rules Against Race-Based Affirmative Action Policies

Filed under: General — JVW @ 10:02 am



[guest post by JVW]

In a decision that had generally been expected, but certainly was not a sure thing, the Supreme Court ruled that efforts by both Harvard and the University of North Carolina to use race as a determining factor in granting admissions were prohibited by the Equal Protections Clause of the Fourteenth Amendment. The decision split along the traditional ideological lines with the six Republican nominees in the majority and the three Democrat nominees in the minority. Associate Justice Ketanji Brown Jackson did not take part in the Harvard decision, recusing herself since she had previously served on the Harvard Board of Overseers.

One interesting aspect of this case is that it provided the public with a chance to peek under the hood of the Harvard admissions process. In the majority ruling, Chief Justice John Roberts described it as so:

At Harvard, each application for admission is initially screened by a “first reader,” who assigns a numerical score in each of six categories: academic, extracurricular, athletic, school support, personal, and overall. For the “overall” category — a composite of the five other ratings — a first reader can and does consider the applicant’s race. Harvard’s admissions subcommittees then review all applications from a particular geographic area. These regional subcommittees make recommendations to the full admissions committee, and they take an applicant’s race into account. When the 40-member full admissions committee begins its deliberations, it discusses the relative breakdown of applicants by race. The goal of the process, according to Harvard’s director of admissions, is ensuring there is no “dramatic drop-off” in minority admissions from the prior class. An applicant receiving a majority of the full committee’s votes is tentatively accepted for admission. At the end of this process, the racial composition of the tentative applicant pool is disclosed to the committee. The last stage of Harvard’s admissions process, called the “lop,” winnows the list of tentatively admitted students to arrive at the final class. Applicants that Harvard considers cutting at this stage are placed on the “lop list,” which contains only four pieces of information: legacy status, recruited athlete status, financial aid eligibility, and race. In the Harvard admissions process, “race is a determinative tip for” a significant percentage “of all admitted African American and Hispanic applicants.”

UNC has a similar screening process, with the applicant’s race being one of the earliest factors in the initial evaluation rather than as a secondary benefit used to supplement an otherwise qualified applicant’s case for admission.

The Chief Justice then outlines the long history of racial discrimination in the Reconstruction era and beyond, especially as to how it pertained to education. His narrative tells the story about ongoing attempts to end racial discrimination, and concludes strongly, echoing his famous dictum that “the way to stop discrimination on the basis of race is to stop discriminating on the basis of race”:

Eliminating racial discrimination means eliminating all of it. Accordingly, the Court has held that the Equal Protection Clause applies “without regard to any differences of race, of color, or of nationality” — it is “universal in [its] application.” For “[t]he guarantee of equal protection cannot mean one thing when applied to one individual and something else when applied to a person of another color.”

I removed the citations in the above paragraph, but the last quote is from the majority decision in the 1978 Supreme Court case Regents of University of California v. Bakke in which hard quotas for minority student admissions were outlawed. And the Chief Justice’s final conclusion gets straight to the heart of the matter in a clear and understandable way:

Because Harvard’s and UNC’s admissions programs lack sufficiently focused and measurable objectives warranting the use of race, unavoidably employ race in a negative manner, involve racial stereotyping, and lack meaningful end points, those admissions programs cannot be reconciled with the guarantees of the Equal Protection Clause. 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.

I don’t really have the time or inclination this morning to slog through the dissents from the left-wing justices, so if anyone wants to take on that task it would be a great addition to the comments section.

– JVW

3/12/2022

Constitutional Vanguard: A Follow-Up on Whether Ketanji Brown Jackson Should Recuse Herself from the Harvard Affirmative Action Case

Filed under: General — Patterico @ 11:57 am



This past week, I published an analysis of statute and precedent relating to the question of whether a Justice Ketanji Brown Jackson should be required to recuse herself from the Harvard affirmative action case. In the post, I concluded that recusal was unlikely, although the plaintiffs will likely win in any event.

Since the publication of that post, Ed Whelan wrote a piece that portrayed the recusal issue as simple and straightforward. Today’s newsletter responds to Whelan, addressing his arguments and analogies:

As a former Supreme Court clerk for Justice Scalia and an alum of both Harvard Univeristy and Harvard Law School, I’m quite sure Ed Whelan knows more than I do both about recusal standards, and about the governance of Harvard University. And yet, I’m not entirely convinced by his argument. I could see being persuaded that a Justice Jackson ought to recuse herself, due to the potential harm that her participation in the case could cause to the public perception of the judiciary’s independence. But I think there exist countervailing policy arguments— and my reading of the historical precedents suggests to me that her recusal is not likely, based on the facts as we currently understand them.

My previous analysis was available only to paid subscribers (although you can view it for free with a seven-day trial). Today’s piece is open to the public, so if you’re interested in the topic, you’ll be able to get at least a bare-bones analysis of the situation. If you’re interested in the full discussion of the precedents, subscribe here.

As I say in the piece, I have sent the link to Ed Whelan. He’s likely too busy to respond, but if he does (and gives me permission to repeat what he says) I will share that with you, both here and in the newsletter.

3/8/2022

Constitutional Vanguard: Should Ketanji Brown Jackson Recuse Herself from the Harvard Affirmative Action Case?

Filed under: General — Patterico @ 12:35 pm



Barring a shocking development, Ketanji Brown Jackson is going to be a Supreme Court justice. She has also been a member of the Board of Overseers at Harvard. Will she have to recuse herself from the upcoming case in which Asian plaintiffs challenge the university’s admissions practices as racially discriminatory? And do those plaintiffs have a good case? These are the topics discussed in my latest newsletter.

In the post, I try to dive beyond the Big Media practice of consulting experts with differing opinions, which sheds little light on the relevant law or historical practice. I also offer my own opinion on the issue.

Excerpt, from the portion discussing the merits of the case:

Asians are penalized, especially in the subjective personal ratings, where a racial analysis shows that “the actual ratings reveal a clear racial hierarchy—with African Americans receiving the highest personal ratings, followed by Hispanics, then whites, then Asian Americans coming in last.”

None of this is shocking, although it should be. Every parent who has ever sent a child to college knows in their bones that universities discriminate on the basis of race.

Add to these facts the longstanding hostility of Chief Justice Roberts to racial preferences. Conservatives have come to think of him as the Sultan of Squish, but he is still the same man who famously wrote these words: “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” I have no basis to believe he has changed his mind.

This is a post for paid subscribers, but you can access a preview at the link. I have enabled an option for a seven-day trial as well; let me know if that is working. Access it here. Subscribe or sign up for the free trial here.

1/27/2022

Will the Supreme Court Hear the Harvard Affirmative Action Case This Term?

Filed under: General — Patterico @ 8:29 am



And will Justice Breyer’s retirement, which is being officially announced today, affect the analysis? Consider:

  • Despite conventional wisdom, I believe there is still a chance the case could be heard this term. (Correct me if I am wrong about this, but don’t cite the conventional wisdom.)
  • Chief Justice Roberts is strongly against racial preferences.
  • Justice Breyer’s seat is about to be filled with an openly affirmative action pick. We don’t yet know who it will be, but we know it will be a black woman because Biden promised that to Jim Clyburn in return for an endorsement before the South Carolina primary.
  • Why would Chief Justice Roberts want a clear affirmative action pick sitting on this case? Even though Breyer would vote the same way, the optics — and the media focus on the inevitable dissent from the newly appointed affirmative action pick — might be something Roberts wants to avoid.

We’ll see. It’s a longshot, but if it happens, I’ll remind you of this post. If conventional wisdom is right, this post never happened.

10/22/2021

Constitutional Vanguard: The Hyper-Wokesters’ Support for Affirmative Action Is Rooted in Racism

Filed under: General — Patterico @ 1:22 pm



You’ve probably heard about the professor who said: “This idea of intellectual debate and rigor as the pinnacle of intellectualism comes from a world in which white men dominated.”

That’s the topic of my latest newsletter — this one for paid subscribers — which explores how deeply this racist attitude is embedded in academia. There are generous quotes to relevant pieces from John McWhorter, and some debunking of the idea that the SAT and other tests are inherently racist. But the real target is the mindset that things like linear thinking or being on time are “white” behaviors:

McWhorter quite properly describes this as a “racist screed” posing as antiracism, which must be resisted at all costs by parents. It is the attitude criticized in Stuart Buck’s book Acting White; namely, the absurd and racist proposition that logic, argumentation, reason, hard work, merit, punctuality, good grades, and other markers of success are somehow uniquely white attributes.

What could be more insulting than this ridiculous mindset? What could be more obviously discriminatory?

Link to the piece is here.

Subscribe here.

4/22/2014

Breaking Reports: Supreme Court Upholds Michigan Ban on Affirmative Action

Filed under: General — Patterico @ 7:24 am



It’s little more than one-line breaking reports right now:

Supreme Court upholds Michigan’s ban on affirmative action in college admissions.

I’m about to leave for work, but here’s your thread to discuss the case as the details are fleshed out.

UPDATE: Opinion here (.pdf).

UPDATE x2: If an opinion makes hash of the law; if it refuses to overrule clearly bad precedents; if it seeks to harmonize irreconcilable positions with high-minded and impossible-to-understand verbiage . . . then it was written by Justice Kennedy.

I concur, as does Justice Thomas in this case, with Justice Scalia.

8/18/2012

Obama Supports Affirmative Action in Court

Filed under: General — Patterico @ 1:42 pm



Don’t look at what people say. Look at what they do:

On Monday, the Obama administration, along with most of the higher-education and business establishment, weighed in with amicus briefs in support of racial preferences at the University of Texas at Austin. Given Barack Obama’s mixed messages on affirmative action in the past—he has said his own daughters do not deserve a leg up in admissions and that he understands the resentment toward preferences by whites who do not feel particularly privileged—there was a modest hope that he would break with longstanding Democratic Party orthodoxy to promote a better kind of affirmative action that looks at gaping economic inequalities in our country rather than just counting skin color. He blinked, however, and filed a brief that is unlikely to do anything to change the minds of Supreme Court justices and may do real damage to the president’s own re-election chances.

The administration’s brief with the Supreme Court argues that even though the University of Texas at Austin was able to achieve substantial racial and ethnic diversity without using race—by giving a preference to low-income students and automatically admitting students in the top 10 percent of their high school—Texas was right to restore racial preferences in the freshman class beginning in 2005 so that the university would better reflect the state’s demographic breakdown.

Blah blah blah in favor of centrism — and then, when the rubber hits the road, give us leftism.

Four more years of this?!

4/24/2009

Jerry Brown: Proposition 209, Which Outlaws Affirmative Action, Is Unconstitutional

Filed under: Constitutional Law,General,Race — Patterico @ 10:01 pm



I often read conservatives claiming that Jerry Brown is a surprisingly solid choice as California’s Attorney General. I’m not so sure. He may be OK on some issues, but he has increasingly used his office to advance ridiculous legal postures that carry the whiff of expedience and political correctness. First there was his daft move to have Prop. 8 declared unconstitutional. Now Gov. Moonbeam is claiming that Proposition 209 — the proposition that outlaws affirmative action — is unconstitutional:

Brown’s brief, written by Solicitor General Manuel Medeiros, noted that the U.S. Supreme Court has set strict constitutional standards for judging race-conscious programs: They must be based on a history of discrimination against a group and must be designed to promote a legitimate goal, such as diversity in school enrollment, that cannot be met in other ways.

But Prop. 209 goes further and prohibits programs that the U.S. Constitution allows, without justification, Medeiros said.

So now these programs are constitutionally mandated??

“It closes a door to race- and gender-conscious programs that the 14th Amendment leaves open,” Medeiros said. The amendment requires states to provide equal protection under the law to all citizens.

“Ironically, by effectively disadvantaging racial minorities and women in the political process, without an evident compelling governmental reason for doing so, (Prop. 209) seems to accomplish the very evil it purported to eliminate … racial and gender discrimination,” Medeiros said.

So by refusing to use government to advantage particular racial or gender groups, Proposition 209 disadvantages those groups?

Brown’s office did not expressly ask the court to overturn Prop. 209. But if the justices followed the attorney general’s opinion, they would strike the measure down or narrow it to reflect federal standards, which would eliminate its independent effect.

Same difference.

Clearly, this is all done with Brown’s run for the Governor’s office in mind. Meaning he is twisting the law in liberal directions for political gain.

Now what could be wrong with that?

2/2/2009

L.A. Times Reports on UCLA Student Who Is Both Illegal and an Affirmative Action Beneficiary

Filed under: Dog Trainer,Immigration,Political Correctness — Patterico @ 7:26 am



The L.A. Times has a front-page story titled For an illegal immigrant, getting into UCLA was the easy part. It’s a perfect storm: P.C. attitudes on illegal immigration, combined with affirmative action.

She’s an illegal immigrant, so she isn’t eligible for most forms of state and federal financial aid. The University of California system, by policy, does not require applicants to disclose their citizenship status: Officials say their goal is to find the best students, not to enforce immigration law.

I wonder if they ask students to disclose whether they are California residents, to determine whether they are eligible for in-state tuition.

But the political correctness doesn’t end with her illegal immigrant status. She’s also, of course, a beneficiary (or perhaps a victim) of the lowered admission standards prompted by our old friend affirmative action:

The 18-year-old De La Cruz graduated barely in the top 20% of her San Pedro High class and is competing against students with much higher GPAs and test scores.

. . . .

UCLA officials acknowledge that some freshmen are admitted for reasons other than their grades and test scores, that some students come from dramatically different backgrounds than many of their peers but show academic promise.

. . . .

She never thought she’d get into UCLA, especially after San Diego State rejected her in February.

The average UCLA freshman boasted a 4.22 GPA in 10th and 11th grades, according to the most recent data posted by the school, and De La Cruz had a 3.365 at San Pedro High when she applied. She got a 21 out of a possible 36 on the ACT college admissions exam, ranking her in the 48th percentile in California. She scored 380 out of a possible 800 on an SAT subject test, putting her in the third percentile nationwide.

But on March 8, De La Cruz opened an e-mail from UCLA, and a congratulatory banner popped up. She screamed and asked a friend to look.

The article is mostly an article about how difficult her life is. She got a B- average for her first quarter, including a C+ in a Life Science class that other students describe to her as an “easy A.” I wish her good luck, but from the article, it sounds like she might not make it.

I bet the reporter could have reached an expert or two to opine on how this girl’s life may be ruined by her being put in a situation where she is having trouble competing academically. I bet the reporter could have found someone with a qualified daughter with high grades and test scores who didn’t get in to UCLA — who is a citizen.

But then, reporters usually go trolling for experts only when they have something they want to say themselves, but need to say it through another person. And somehow I doubt this reporter is trying to make a point about accepting unqualified students who aren’t even citizens.

Let’s hope this isn’t yet another life ruined by politically correct attitudes.

7/27/2008

John McCain on Affirmative Action (Updated)

Filed under: 2008 Election — DRJ @ 2:24 pm



[Guest post by DRJ]

ABC reports that, in an interview on “This Week With George Stephanopoulos,” John McCain “reversed himself on affirmative action” when he expressed support for a referendum that would end race and gender-based affirmative action in Arizona. ABC noted that McCain has long opposed quotas but points to McCain’s 1998 statements that ending affirmative action would be “divisive” as evidence that he has reversed his position.

Meanwhile, the AP described McCain’s position on affirmative action in a different way:

“Presidential challenger John McCain said Sunday that he supports a proposed ballot initiative in his home state that would prohibit affirmative action policies from state and local governments. A decade ago, he called a similar effort “divisive.”

Over the years, McCain has consistently voiced his opposition to hiring quotas based on race. He has supported affirmative action in limited cases. For example, he voted to maintain a program that encourages the awarding of 10 percent of spending on highway construction to women and minorities.”

I think it’s fair to question McCain about whether he’s changed his position, and it’s equally fair for McCain to point out that he supported targeted programs and that a lot can happen in 10 years. After all, in 2003, even the Supreme Court set what sounds like a 25-year deadline on the need for affirmative action.

UPDATE 7/27/2008 @ 2:35 PM PST – CNN’s Political Ticker has a swift response from Obama and Al Sharpton:

“Obama told attendees to the Unity conference that he was “disappointed… that John McCain flipped and changed his position. I think in the past he had been opposed to these kinds of… initiatives as divisive. And I think he’s right.”

Civil rights leader Al Sharpton, a prominent Obama supporter, issued a statement accusing McCain of having made “a stunning reversal on his respectable record on affirmative action.”

— DRJ

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