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Supreme Court Conservatives to Universities: “When Is The End Point” Of Race-Based Affirmative Action?

Supreme Court Conservatives to Universities: “When Is The End Point” Of Race-Based Affirmative Action?

Supreme Court majority seems skeptical universities ever intend to stop considering race

In Grutter v. Bollinger, the Supreme Court approved consideration of race as one of many other factors in school admissions decisions. But, it cautioned, “We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.”

That was in 2003. This is the Court’s twentieth term since Grutter was decided.

During today’s oral argument in the cases of Students for Fair Admissions v. University of North Carolina and Students for Fair Admissions v. Harvard, Justice Kavanaugh, joined by Justices Barrett and (to a lesser extent) Gorsuch, hammered counsel about whether that 25-year mark is a hard deadline. Justices also asked how to measure the success of diversity efforts and how the Court should respond if “diversity” could not be achieved by race-neutral means at the end of 25 years. Justice Alito also seemed dissatisfied with responses to his questions about, how much diversity is enough, implying the hunt for a “diverse” student body was just a quota by another name.

Justice Kagan tried to flip the script on this, asking petitioner’s counsel, “Is there a limit below which you can use racial criteria?”

Justice Barrett asked Harvard’s counsel, Seth Waxman, whether the university’s admissions policies had changed appreciably in the last fifty years. No, Waxman replied. In that case, Barrett followed up, how should we think there’s an end point? “We’re getting closer,” Waxman insisted.

Near the end of oral argument, Kavanaugh asked U.S. Solicitor General Elizabeth Prelogar whether Grutter meant that racial balancing would be illegal 25 years after it was decided. “I don’t think that’s how the Court understood it,” Prelogar responded. “The Court expected the rate of change would let racial considerations end.”

Meanwhile, counsel for petitioner in the case against Harvard argued that the university never seriously looked for race-neutral alternatives until years after it was sued by Students for Fair Admissions.

Justices Thomas and Alito and Chief Justice Roberts seemed generally skeptical of allowing racial classifications. Thomas repeatedly asked for a clear explanation and evidence that “diversity” offers educational benefits; he was unconvinced by the responses from counsel for the universities.

The Chief Justice asked, doesn’t racial classification make the point that race matters? He does not seem to believe that squares with the concept of equal protection. Cameron Norris, petitioner’s counsel in the Harvard case, played into that concern in his rebuttal comment. Racial classifications cause resentment and are very harmful, he opined.

Justice Alito implied racial classifications were so broad as to be meaningless. He also suggested they were too easily caught up in subjective self-identifications. Although he didn’t go into detail about this, he implied it’s not kosher for the government to go back to racial classifications of the kind used in the Jim Crow era (as in, how much Negro blood is needed to classify someone as a Negro?).

Meanwhile, Justices Jackson (who participated in the case against UNC, although not the case against Harvard, on whose Board of Overseers she sits) and Sotomayor essentially tried to act as counsel for respondents, arguing the cases for the universities. For example, Jackson argued that “Race is never a stand-alone, but one of 40-some factors. [The school is] looking at the full person.” Sotomayor appeared to be constructing an argument that consideration of race is needed to remediate for UNC’s past racial discrimination.

Near the end of the second argument, Justice Kagan asked Prelogar, “Does Brown [v. Board of Education, which banned separate but equal segregation against black people] compel overruling Grutter?” That gave Prelogar the opportunity to argue, “No. There’s a world of difference between excluding blacks and university policies at issue here designed to bring all races together.” A ruling to the contrary would be “profoundly ahistorical,” in Prelogar’s view, in that it would trivialize the harm of state-sponsored segregation.

Kagan seemed to sense the wind from the majority, that it may overrule the Grutter opinion allowing (some) consideration of race in admissions, as a modest exception to Brown and to the Constitution’s Equal Protection Clause.

Here’s another possibility. Instead of overruling Grutter, the Court may reaffirm it, and clarify that 25 years is a hard and fast deadline. It could say, starting with admissions decisions for the class of 2032 (which will be admitted in the fall of 2028 – 25 years after Grutter), consideration and use of race will be absolutely verboten.

[To read about the brief Legal Insurrection Foundation filed in the case, click here.]

Updated 10/31/22 at 10:23 pm.


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2smartforlibs | October 31, 2022 at 6:09 pm

The data has never supported this as a good idea.

    It’s a good idea for Democrats. Affirmative action has always been a political tool to make minorities believe Democrats are doing something for them — when they aren’t.

    Putting unqualified people into a situation they can’t deal with (or couldn’t deal with if everything wasn’t dumbed down to accommodate them), because of their race, is not a benefit. And, the result of less than competent doctors, lawyers, scientists, etc. being thrust on the public is a detriment to the entire country.

Ah! Somebody remembers that affirmative action was once presented to the Supreme Court (and us) as a permissible form of discrimination that might be useful to remedy past discrimination, always on a temporary basis.

Democrats can’t stop discriminating based on race. It’s in their DNA.

Since Grutter we now have 23&Me as well as “Identifying” as different than what 23&Me says.

My 23&Me says I’m not 100%
Do I get to choose which?
Do I have to be certified?
Why can’t I identify as what I want?
Can drugs or surgery change my classification?
Can wearing different clothes change my classification?
Does someone have to wear a dress for a Women’s only scholarship?

Sotomayor, Kagan, and Jackson, are rabid racists.

“In that case, Barrett followed up, how should we think there’s an end point? “We’re getting closer,” Waxman insisted.”

Just a few more years of buybacks and red flag raids, and we’ll be there.
Woops, sorry… wrong issue.

Maybe it’s just me, but the desperate attempt to justify systemic racism in college admissions feels so…antebellum. Race is such a stupid idea in the first place – these people are setting the stage for eternal racism.

Remediation to redress an individual harm experienced by a particular person is fine. That’s no longer the case. Consider the following examples of two minority applicants:

Person A is the child of a HS dropout, raised by a single parent who attended a low performing public school with few extracurricular opportunities.

Person B is the child of a college educated, married middle to upper middle-class family who were able to place their child into the best public school in the area with extensive extracurricular. They could hire tutors and pay for SAT prep courses.

Person C is the child of married college educated parents who both have graduate degrees and are themselves graduates of to 15 schools. They have a high dual income sufficient to pay for the best private schooling including preschool. Teal prep courses, tutors, summer internships all sorts of extracurricular.

If A, B and C have comparable SAT scores and GPA who gets the seat if that’s the last one available? All are minorities. We know the answer; person C because their parents have someone in their orbit with influence.

This example shows that ‘diversity’ isn’t the goal. Instead it’s a way to reward allies,.cronies and legacies who happen to be minorities. The CT should have asked for the financial data for those admitted and a correlation of this families education level.

Fifty or sixty years ago Affirmative Action may have been necessary to establish a pathway and pipeline for minority applicants so that their progeny wouldn’t need the thumb on the scale. We are two generations removed. Instead now we keep the thumb on the scale for applicants who had every opportunity the other applicants had.

Why continue to directly discriminate against Asians and some whites to directly discriminate for other minorities when many of those who benefit are not disadvantaged?

Sotomayor appeared to be constructing an argument that consideration of race is needed to remediate for UNC’s past racial discrimination.

Can someone explain how the beneficiaries of today’s “remedial” discrimination were harmed by the “bad” discrimination of 40-50 years ago? How does discriminating for them remedy the harm done back then to other people?

    Whoopee Peabody in reply to Milhouse. | October 31, 2022 at 7:57 pm

    If affirmative action is legal and necessary to give an extra advantage to people whose ancestors were discriminated against, it must apply to everything across the board, not just to college admissions or hiring.

    It would not be right to just help out people who are fortunate enough to go to college, you need to help everybody. You would need to have different prices for food, rent, clothing. Minorities should always get in front of the line wherever they go, pay less taxes, receive a higher amount for welfare and foodstamps, be at the top of the list for organ transplants—-everything.

    alaskabob in reply to Milhouse. | October 31, 2022 at 8:22 pm

    By being held back decades ago, all of the benefits of better jobs and earnings that the family would have had over the years are gone. If great grand dad had been accepted to Harvard … all of the rest of the family would be there and not needing to apply.

    If it hadn’t been for slavery or the conquest of South America, all of the present descendants of those who are now living in America would have remained princes or princesses of the Zulu, Inca, Aztec or Mayan civilizations.

    In the discussion of AA between Marshall and Brandeis , Brandeis asked how long for AA to remain… “decades?”… Marshall said “centuries”. We have a SCOTUS justice whose initial mandatory selection criteria was “Black”.

      Whoopee Peabody in reply to alaskabob. | October 31, 2022 at 9:47 pm

      “If it hadn’t been for slavery or the conquest of South America, all of the present descendants of those who are now living in America would have remained princes or princesses of the Zulu, Inca, Aztec or Mayan civilizations.”

      Or eaten by cannibals. Or sacrificed.

    puhiawa in reply to Milhouse. | October 31, 2022 at 9:18 pm

    Time travel. Liberals live in a world of fantasy, one they themselves have constructed.

      Whoopee Peabody in reply to puhiawa. | October 31, 2022 at 9:49 pm

      If there was time travel I’d go back and edit my typos since there’s no edit function on this board.

Here’s another possibility: The court could overrule Grutter on the grounds that race should never have been allowed in admissions decisions.

Roberts is unlikely to go for this but it’s still a strong contender.

The left: ‘We’re ending racism by discriminating on the basis of race!!!!’

There is a not so nuanced difference between affirmative action and affirmative discrimination under DIE doctrine.

If Ketanji can’t identify what a women is – kinda stands to reason Alito may not know what an AA is.

25 years of violation of the equal protection clause has been legislated from the bench. ? What protections in the Bill of Rights can be suspended for an arbitrary hiatus? Surely the Second Amendment. Why not the First and Fifth? I think a 100 year hiatus of the freedom to assemble sounds about right. A mere 10 for the 14 Amendment will stop anchor babies. DHS surely can make the argument that search warrants are unnecessary so long as white supremacists roam the land…or under the CRT whites are allowed to be on the continent much less live in the confines of the USA.

    henrybowman in reply to puhiawa. | October 31, 2022 at 9:47 pm

    “What protections in the Bill of Rights can be suspended for an arbitrary hiatus? Surely the Second Amendment.”


    Back in 2015, Alan Gura won Wrenn et al v. DC, a case invalidating DC’s “good cause” requirement for a carry license due to unconstitutionality. The legal effect of this ruling was to immediately invalidate the requirement that people wishing to carry in DC needed a license.

    “Whoa,” said the Big Club, “this will not do.” So they got a judge to issue a ruling saying that the unconstitutional requirement could remain in force until DC could articulate some new and nominally legal policy that would re-establish the previous tyranny.

    Got that? Nothing says rule-of-law like “the unconstitutional deprivation of rights will continue until the government can get its shit together.”

Anonymous Bosh | October 31, 2022 at 10:59 pm

If “diversity” is so great, shouldn’t the HBCUs be pursuing it vigorously?

When do the hundreds of millions of victims of Affirmative Action discrimination get reparations?

Knowing from her confirmation to Jackson race always will be a factor in a case

    Whoopee Peabody in reply to Skip. | November 1, 2022 at 7:58 am

    If it wasn’t for her race, she wouldn’t be on the Supreme Court. Duh!

    Suburban Farm Guy in reply to Skip. | November 1, 2022 at 9:08 am

    If there were enough burglars on the Supreme Court they would rule that burglary is not a crime. Slight exaggeration, perhaps, but wouldn’t AA judges be inclined to rule in favor of AA?

    What an awful mess

Whoopee Peabody | November 1, 2022 at 10:28 am

“What is the end” is a rhetorical question. The answer, of course is, there is no end.

Diversity is a concocted idea, an artificial mental construct, because, if something exists it exists in some amount, and if it exists in some amount it can be measured. So how is it measured and how much do we have?

BierceAmbrose | November 1, 2022 at 2:43 pm

How do you remediate a problem without creating a mechanism that in practice makes things worse? This is the perennial problem: you can never do just one thing. Everything you try has multiple impacts, not just the one you want.

We seem to be demonstrating at the national, federal law level, that lots of things to remediate a situation, don’t so much help, while having real, sustained, and bothersome side-effects. Womens’ right to choose! Ok, yr also killing babies, depending on what counts as a babie. You’ve created an industry, and political client groups. And changes the social position of sex, away from something consequential. It’s not a new conundrum. See Brave New World, and Logan’s Run to start.

I can hope that something similar to recent cases will happen with “civil asset forfeiture” and loosening of drug charge thresholds. The canonical example of this gone sideways is the attempted seizure of Seattle Transit Authority Ferries, because someone found a whacky-weed seed in a crack in the deck railing. There was enough visibility and push-back — many of the mid-senior apparatchiks and above commute daily from moated island enclaves in the sound — that the authoritah dropped this.

One wonders what would have happened had not the juiced-in been inconvenienced. Oh, wait, we see that all the time. “Policing for profit” and “occupation policing” are two terms, used before the enclaved, mostly-white perennially indignant turned the issue into a weekend activist LAARPing event for themselves.

Imagine an employer promoting a policy that a person’s race was one of 40 factors it used when determining to treat that person differently (lower pay) than similarly situated colleagues. The notion that discrimination is okay if done along with making other decisions is hard to take seriously.