SCOTUS “gave universities a narrow opening, and Harvard just announced it’s going to drive an affirmative action truck right through it”
Today’s decision was a major achievement, don’t get me wrong. But the battle is just getting started to enforce this victory for equal protection.
I haven’t had as much time as I would have liked to write about the Supreme Court opinion in the Harvard/UNC cases because I’ve been doing media interviews.
Well, it’s extraordinarily important. It has established or reestablished something we strayed from in judicial decisions, a very clear statement that an individual is to be judged as an individual, not based on race. And that’s something that a lot of universities particularly have gotten away from….
I think it may have a big impact, particularly on Asian students because particularly in the Harvard case, they are the ones who were the focus of the discrimination more than anybody else. And if the percentage of Asians in the school is not acceptable to the school administrators, that’s just too bad. The Constitution guarantees each of those people to be treated as an individual, not as a proxy for an ethnic group or a racial group.
Justice Thomas’ epic concurrance, in which he destroyed the dissents (particularly from KBJ) is worth a post in itself.
But there is one really important point that came near the end of the majority opinion that is a narrow path to consider applicant’s experience on race (as opposed to their race itself)(emphasis added):
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. See, e.g., 4 App. in No. 21–707, at 17251726, 1741; Tr. of Oral Arg. in No. 20–1199, at 10. 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. The Constitution deals with substance, not shadows,” and the prohibition against racial discrimination is “levelled at the thing, not the name.” Cummings v. Missouri, 4 Wall. 277, 325 (1867). A benefit to a student who overcame racial discrimination, for example, must be tied to that student’s courage and determination. Or a benefit to a student whose heritage or culture motivated him or her to assume a leadership role or attain a particular goal must be tied to that student’s unique ability to contribute to the university. In other words, the student must be treated based on his or her experiences as an individual—not on the basis of race.
That bold language has been seized upon by Harvard in a mass email shortly after the decision to smuggly suggest that there will be no change of course, rather, Harvard will expoit the perceived permission to consider an applicants experience with race to drive an affirmative action truck through that tiny opening:
— William A. Jacobson (@wajacobson) June 29, 2023
Harvard’s President-Elect came out forcefully that Harvard would stick to its “values” while obeying the court ruling (wink, wink).
Apparently this is happening elsewhere, colleges are trying to snatch victory from the jaws of defeat by claiming that they can use experience with race as a substitute for race, and thereby achieve the same racial preferences.
Of course, the following sentences (underlined above) contradict schools’ ability to do that, but that will have to be litigated and proven that they are using essays and so on as a ruse. In the meantime, the smug universities will do whatever they please, and then litigage the cases to death.
Harvard incoming president, whose selection was exemplar of bureaucratization of higher-ed (as dean, she was known for DEI initiatives), hasn’t read the part where Roberts says “universities may not simply establish through application essays… the regime we hold unlawful today.” https://t.co/pP2FVkGpwL
— Ilya Shapiro (@ishapiro) June 29, 2023
In 4 or 6 or 8 years they may win or not, but they don’t care. They are so deeply invested in racial preferences, they will not let it go and are happy to use their massive endowments to fight this, just like they did the cases just decided.
Today’s decision was a major achievement, don’t get me wrong. But the battle is just getting started to enforce this victory for equal protection.DONATE
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