Patterico's Pontifications

10/31/2022

Supreme Court Argument on Race-Based Admissions: A Question

Filed under: General — Patterico @ 7:36 am



The argument is taking place now, but as it progresses, one thought keeps occurring to me.

We criminal lawyers all know that it is illegal to strike a juror for race-based reasons. It is a rule that we understand and that we follow.

Why are college admissions different?

I have kept this question at the forefront of my mind throughout the argument so far, as I listen to the lefty justices incredulous at the idea that someone could be required to pick members of a body without taking race into account. And how can judges possibly be expected to analyze such decisions?

Guys, it’s not really that hard. Judges do it in criminal courts all the time. And, by the way, defense attorneys are often very similar to college admissions officials in their hostility towards Asians. But judges are given a clear set of rules to apply: if the defense attorney is striking someone because of their race or nationality (or many other reasons), in whole or in part, that is invidious discrimination and it is illegal. As it should be.

How is this any different?

More thoughts after I have had the chance to hear the whole argument.

43 Responses to “Supreme Court Argument on Race-Based Admissions: A Question”

  1. The lefties are going to go into paroxysms of ecstasy over Justice Jackson’s looooong hypothetical about comparing a legacy applicant to one who says “I would be the first in my family to attend this institution because of slavery” or something like that. Keeping my jury selection principle in mind seems to make the flaws in this argument plain. Sure: it’s a relevant consideration that “I would be the first in my family to attend here” as an inspirational story. Why is the race of the applicant important? (And it is, that should be illegal.)

    Patterico (4d51b2)

  2. Honestly, if things were based on economic status, there is still the issue of fairness…but the racial problem would be minimized.

    Except for Asians, apparently.

    How I dislike legacy based and racially based quotas.

    Simon Jester (c8876d)

  3. Patterico,

    Here is the argument your lefty would use. College admissions confer important economic advantages over time which have been denied minority groups. To achieve equity amongst minorities, we have to look past color blindness to achieve a racially fair society.

    Obviously, jury selection does not have this type of economic ramifications for society.

    Appalled (c8e8fd)

  4. The official justification for preferences is “diversity,” not that the preferences benefit minority groups. If that were the justification, then we would need to know why recent African immigrants get the preferences too. And if “diversity” is really so compelling, it follows, I think, that the rationale about apply to elementary and secondary schools, public employment, jury selection, etc. But the rationale doesn’t so apply (as of now).

    mikeybates (dd20f5)

  5. #4 — Diversity was the fig leaf to cover the economic argument. (As that kind of economic argument doesn’t usually pass muster in the courts) Which is the reason that lefties have no problem now discriminating against Asians.

    Appalled (03f53c)

  6. America’s be-robed bureaucrats -the incomparable, incompetent Dancing Alitos- who work for us, presumed to dictate how ‘We The People’ should live– yet can’t keep track of a set of papers???

    Where’s the leaker? No answers; no rulings. Suspend operations until the leaker is run to ground.

    Gallup poll finds trust in Supreme Court at historic low, down 20 points in two years

    WASHINGTON – Americans’ trust in the Supreme Court and its job approval ratings have significantly dropped in the last two years, reaching historic lows, a Gallup poll has found.

    https://www.usatoday.com/story/news/politics/2022/09/29/supreme-court-approval-trust-all-time-low-gallup-poll/8125842001/

    DCSCA (6a1c30)

  7. There are two arguments for AA:

    Original: That it is not reasonable to lift 300 years of slavery and other oppression without some effort to provide a leg up. Everyone else has had 300 years of advancement, often on the backs of blacks.

    New: Colleges and similar institutions need to provide a diverse community to further the remediation of racial injustice.

    The first begins to fail as generations of blacks come of age in the new era (O’Conner’s 25 years). The second fails as the necessity of quotas to achieve this diversity isn’t provable, and the practice of discrimination is itself contrary to the intended goal.

    Kevin M (a23ee4)

  8. Kevin, many years ago at one institution where I taught and did research, the university President was all excited to tell me the place had scored a giant grant to study diversity and its advantages in the classroom.

    But you already know the answer,” I told him.

    He looked puzzled. I tried again.

    What if you find out that a diverse classroom damages learning?”

    He looked shocked. “But it helps learning!”

    Then why did you take the grant money, since you already know the answer?”

    He still looked confused.

    That’s my world.

    Simon Jester (c8876d)

  9. “I would be the first in my family to attend this institution because of slavery” or something like that.

    I was the first in my lower-middle-class family to attend college, and frankly this left me a bit unprepared to do so. That I got into a excellent private college was purely on merit, and I wonder if I would have gotten into the same college today given the degree to which that college has imbibed of the Diversity Kool-Aid.

    Kevin M (152b55)

  10. Simon,

    I’ve watched this progression merely as an alumnus, but what I’ve seen at my alma mater was this:

    First a very needed program to bring women into STEM (the college is now roughly 50-50 instead of 98-2) as that process can be accomplished by making the school a magnet, as was done.

    Then about, gods, 15 years ago, the now-retiring college president (Klawe’s been there a long time) opined that it would be wonderful to do the same with racial minorities, but the problem was there was such a small pool of applicants with the requisite requirements (e.g. 1500+ SATs) and many of them wanted to be lawyers.

    But somehow she’s “succeeded” over the vociferous “private” objections of outed and now-departed faculty.

    Kevin M (1fb21b)

  11. The same standard should apply to hiring/firing decisions-employers should be free to do what they want.

    Rip Murdock (d2a2a8)

  12. @1 Absolutely right Pat.

    Chief Justice Robert has it right – (paraphrasing) the best way to stop discrimination, is to stop discrimination.

    whembly (b770f8)

  13. @3

    Patterico,

    Here is the argument your lefty would use. College admissions confer important economic advantages over time which have been denied minority groups. To achieve equity amongst minorities, we have to look past color blindness to achieve a racially fair society.

    Obviously, jury selection does not have this type of economic ramifications for society.

    Appalled (c8e8fd) — 10/31/2022 @ 8:29 am

    I find that extremely unpersuasive, because your “jury of peers” affects not only defendant’s future economic earnings, but also the defendant’s freedom.

    whembly (b770f8)

  14. The Public Has a Right to Know Who Leaked the Dobbs Draft

    Justice Samuel Alito stated last week that the leak of his draft opinion in Dobbs v. Jackson Women’s Health Organization endangered the justices’ lives: “It gave people a rational reason to think they could prevent that from happening by killing one of us.” A man who was found heavily armed outside the home of Justice Brett Kavanaugh two weeks before the court decided Dobbs has been charged with attempted murder.

    The leak constituted “a grave betrayal of trust,” Justice Alito added. So why hasn’t the perpetrator been identified and punished?

    One reason is that Chief Justice John Roberts assigned the Supreme Court Marshal’s Office to conduct the investigation. …….
    ……..
    The most likely suspects are court employees. ……

    ……..The least likely suspects would be the justices themselves, though it isn’t beyond the realm of possibilities that a justice might have implicitly encouraged a clerk to do the deed.

    Justice Alito and others concerned about the dangers of the breach should be calling for an outside investigator with the power to issue subpoenas, grant immunity and employ other traditional law-enforcement tactics that are both constitutional and ethical. Congress has the power to legislate such a special investigator. The Justice Department may also have the power to appoint a special investigator, despite the uncertainty over whether the leaking of an unpublished Supreme Court opinion constitutes a crime or merely a breach of rules and ethics. …….
    ……….
    One might argue—and some justices may believe—that it isn’t in the institutional interests of the court to expose the malefactor. …….
    ……….

    Rip Murdock (d2a2a8)

  15. @14. Alito is acting like an arsonist in the crowd observing a fire he started while chatting w/t fire brigade.

    Given the small circle involved and the time/resources expended ‘behind the robes’– the CJ likely knows it’s Alito, but can’t really nail another sitting justice w/o further wrecking the flimsy facade of “integrity” left around the now secular institution.

    DCSCA (147879)

  16. Charlie Savage, NYT liveblog:

    I don’t immediately understand Thomas’s rebuttal to the idea that diversity has the educational benefit of reducing groupthink…

    I would think that UC’s demand that new hires swear to uphold “Diversity” is the kind of thing that argues it increases groupthink. Demanding Conformity in the name of Diversity should be an obvious problem, but apparently the Left cannot see this (probably because it’s Conformity with What They Know is Right).

    Kevin M (f150c4)

  17. I agree with Artemis Ward. It’s becoming more common that universities are using other less problematic means to realize diversity. Some include swapping socioeconomic diversity for race. Others just emphasize aggressive outreach, while others simply automatically admit the top 10% of each high school class. You can get there through other means.

    But the rub is that once a group has a preference, they don’t want to give it up. It’s human nature, but it also leads to something pernicious that sometimes gets a backseat in the discussion: institutional mismatch. A student gets in somewhere where everyone else scores much higher on the standardized testing. The testing is imperfect but it does indicate a certain level of vocabulary, reasoning, and logic that is an advantage. A student could really excel in a different environment but AA gets them in a poorly-matched school.

    Still, a big problem with the overall political toxicity is that even well-reasoned arguments here will be spun as a right-wing court out of control. Look at Roe. Roe just sent the abortion question back to states, who could pivot and codify it if it was truly popular. Here, schools have other means to seek out diversity. Why not give them a shot at it? Toxicity and holding onto group preferences…..

    AJ_Liberty (5f05c3)

  18. Elite universities should live up to their name-they are for elite students.

    Rip Murdock (d2a2a8)

  19. A real profile in courage are the “dozens of major U.S. companies” who have filed an amicus brief with the Supreme Court urging it to keep in place affirmative action policies in college admissions. According to the link from NRO listed above, these companies worry that a curtailing of affirmative action will hamper their ability to recruit and hire a “diverse” workforce, which seems to be to be saying that they are fine with holding career fairs at Harvard and the University of North Carolina but don’t necessarily want to hold them at UTEP or Illinois State. But what this really strikes me as is an old-fashioned cover your a** move on their part. They probably are thinking that there’s a pretty fair chance this Court brings the curtain down on 50 years of affirmative action, but they want to show the crybullies that, by golly, they did their best to let them see otherwise. So craven and cowardly.

    JVW (667e84)

  20. The testing is imperfect but it does indicate a certain level of vocabulary, reasoning, and logic that is an advantage.

    And background knowledge.

    Institutional mismatch wouldn’t be so serious if a student could easily drop back to a less selective school that actually taught students.

    Sammy Finkelman (1d215a)

  21. Here is the argument your lefty would use. College admissions confer important economic advantages over time which have been denied minority groups. To achieve equity amongst minorities, we have to look past color blindness to achieve a racially fair society.

    Appalled (c8e8fd) — 10/31/2022 @ 8:29 am

    And that would be a fine argument if African-Americans and Hispanics were uniformly impoverished, while Whites and Asian-Americans were uniformly affluent. But obviously they aren’t. As Obama said, there’s no reason his daughters should be given a leg up. They’ve already had all the advantages they need.

    By targeting the economically disadvantaged without regard to race, we give a preference to the minority group members who need it, as well as the non-minority group members who need it, while withholding it from everyone who doesn’t. Maybe I’m missing something, but it seems pretty straightforward to me.

    lurker (cd7cd4)

  22. affirmative action was brought in so black people would stop birning down buildings because they had a job in the building. In 1967 a city a week was burned newark one week detroit the next week. Black soldiers set on the runway and refused to board the plane for riot in detroit. It will depend if the black community will tolerate losing affirmative without going to direct action. Black live matters shows the black communites muscle when they want to flex it. The supreme court should remember the court of last resort is not them but the street.

    asset (9ecc82)

  23. I doubt any rioters will take to the streets over Ivy League admission policies.

    norcal (a1f318)

  24. I doubt any rioters will take to the streets over Ivy League admission policies.

    And I doubt the validity of any rulings these be-robed bureaucrats make until they find and out the leaker. A closed, tiny group that can’t keep track of a simple file of papers lacks the presumption to dictate how 333 million citizens of a complex country should conduct their lives.

    DCSCA (e3588c)

  25. I doubt any rioters will take to the streets over Ivy League admission policies.

    No need to at the moment since the quota system -which confers massive benefits on specific racial groups- is still in operation.

    mikeybates (11adb8)

  26. @25 I meant even if racial quotas are outlawed.

    norcal (a1f318)

  27. …these companies worry that a curtailing of affirmative action will hamper their ability to recruit and hire a “diverse” workforce…

    Closer: These companies engage in affirmative action themselves and worry that they could become liable if this type of discrimination is ruled out, particularly in the private-sector Harvard case. They ALL do business with the federal government, which makes them subject to many of the same rules.

    Kevin M (9a5ec4)

  28. The supreme court should remember the court of last resort is not them but the street.

    That’s what the Trumpies thought, but it turns out that the last resort is long prison sentences.

    Kevin M (6aa1da)

  29. Shocking ABQ Journal endorsement of the Republican gubernatorial candidate:

    New Mexico is at a crossroads.

    Violent crime is harming, traumatizing and quite literally killing too many New Mexicans. Property crime, paired with the national economic downturn and pandemic closures, continues to hurt residents and business owners financially. Not enough of the record billion-dollar revenues from oil and gas has been invested in lasting infrastructure that will improve lives for decades to come. And four years into her administration, our governor’s promised “education moonshot” has yet to launch as our children, especially our minority and low-income children, fall further and further behind.

    We simply cannot afford four more years of the same.

    And so in this gubernatorial campaign the Journal is endorsing Mark Ronchetti, a Republican political neophyte with zero management experience, rather than Democratic incumbent Michelle Lujan Grisham, who has — along with progressive lawmakers — aggressively increased the state’s spending with little accountability. (Libertarian Karen Bedonie has little name recognition, little funding and is not a viable candidate.)

    We could not do this if Ronchetti agreed with or even waffled over whether the 2020 election was stolen; unlike most Republicans in the 2022 general election, he answered a straight up “no” when asked if he believed former President Trump’s Big Lie.

    After a LONG list of issues where Lujan Grisham has failed (read the whole thing) the ABQ Journal Editorial Board says this:

    If these had occurred during her first term, this endorsement might look very different. But they didn’t. And so we ask: Are we better off than we were four years ago? Do we want four more years of the same?

    We are not and do not. The Journal endorses Republican Mark Ronchetti for governor.

    Kevin M (6c0ece)

  30. New Mexico is at a crossroads.

    Four Corners.

    =mike-drop=

    DCSCA (aebdf9)

  31. affirmative action was brought in so black people would stop birning down buildings because they had a job in the building.

    No, it wasn’t. Affirmative action was implemented by Kennedy and originally meant to require color-blind hiring practices; it had nothing to do with the riots of the late 60s (most of which were fomented by the lily-white SDS and Weather Underground commies, anyway). It didn’t take on the preference or “quota” aspects until the Nixon administration revised hiring practices for the federal government and its contractors. Even then, the goal was “percentage of disadvantaged workers has to match the percentages in the local community,” and was done on the presumption that competent minorities were being overlooked in the hiring process, not “discriminate against white people when looking at applicants,” which is what affirmative action morphed in to around 20-25 years ago.

    Factory Working Orphan (bce27d)

  32. We are not and do not. The Journal endorses Republican Mark Ronchetti for governor.

    Kevin M (6c0ece) — 10/31/2022 @ 5:08 pm

    I seriously have no idea why Mark Ronchetti is running for governor. When I lived in NM, he was just a goofy weatherman at KRQE, and I thought Kristen Van Dyke was better than him in that regard, too.

    Factory Working Orphan (bce27d)

  33. That’s what the Trumpies thought, but it turns out that the last resort is long prison sentences.

    Depends who you are, though, and why you are rioting. One lesson of 2020 is that these sort of rioters have little to fear.

    Affirmative action was implemented by Kennedy and originally meant to require color-blind hiring practices

    Quotas, affirmative action, etc., were part of the Kennedy/LBJ liberalism that assumes that any disparities between blacks and whites are caused by racism. The late 60s rioters shared that belief. And as we saw a couple years ago not too much has changed. Except, of course, that now in addition to the rioters much of elite culture apparently also shares that belief.

    mikeybates (8134d3)

  34. Quotas, affirmative action, etc., were part of the Kennedy/LBJ liberalism that assumes that any disparities between blacks and whites are caused by racism.

    Back then, in a lot of cases it was, and not just in the South. That was why Kennedy required federal hiring practices to be color-blind to begin with.

    Seriously, read the executive order that Kennedy signed, number 10925. Quotas don’t even enter into consideration; “equal opportunity” is discussed in the context of its plain meaning, instead of the funhouse version that it increasingly became from about the mid-1970s-onward. It was simply about eliminating discrimination in hiring practices.

    Affirmative action isn’t about eliminating discrimination anymore, and certainly hasn’t been so in academia in years, although they’ve been a lot more blatant about it since BLM activated and “DEI” initiatives became de facto hiring practices.

    Factory Working Orphan (bce27d)

  35. @28 That hasn’t stopped the trumpsters they are in full combat gear with assault rifles intimidating voters at ballot boxes when they are not running for office. get real politik!

    asset (2bad74)

  36. Trumpsters had the misfortune of rioting in a black city with black jury pool. They have had better luck with white juries in other states. Trump better hope he gets prosecuted in floriduh and not DC or NYC!

    asset (2bad74)

  37. The Texas Bar has started a diversity, equity and inclusion committee. It seems a bit behind the times but very PC.

    DRJ (b0685b)

  38. I see writers promoting JUSTICE and EQUITY instead of DIVERSITY. These are the new catchwords to convince people it is a fair process, but IMO the goal is protecting the institution, not the individual. Our system is about protecting individuals, not institutions.

    DRJ (b0685b)

  39. Within the last seventy years or so, academia gained great power as the gatekeepers of employment and promotions. At the same time, tremendous burdens were placed on employers to be “non-discriminatory”.

    Chickens. Roost. With great power comes great responsibility. The makeup of the campus will be the makeup of the workplace. Academic freedom is all good and fine but let the colleges and universities be subject to the same rules that employers are.

    Or just stop living on taxpayer money. That works too.

    nk (7d9380)

  40. I seriously have no idea why Mark Ronchetti is running for governor

    Neither does the ABQ Journal, but they endorsed him anyway, on the premise that anyone could do better. Lujan Grisham will win anyway because most New Mexicans want to believe it’s someone else’s fault.

    Kevin M (eeb9e9)

  41. Patterico, I think you are making an apt comparison, but perhaps for a different reason than you intend. As I’m sure you can imagine and have probably witnessed in numerous instances, the existence of a race neutral policy regarding jury selection does not mean that racial biases never influence jury selection. So too, aspiring to admit people to college on purely race-neutral, merit-based grounds does not necessarily result in a student population that reflects the demographics of the pool of qualified applicants.

    It is important to dig into that number, the demographics of different groups of people within the pool of qualified people, and then compare that to what the demographics are in the resulting institutions, to assess whether we have a truly race neutral selection, or if biases are creeping in somehow. This level of analysis was part of the justification for affirmative action policies in the 90s.

    Tom (89f750)

  42. Tom, what does this imply to you? That we need some little bit of countervailing racial consciousness in jury selection? How would you make that work?

    Kevin M (eeb9e9)

  43. @Kevin, I’d be speculating way out of my lane to guess at solutions. I’m just offering that simply aspiring to be race-neutral is frequently not enough to obtain that result in practice.

    Tom (d33103)


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