On Friday, June 30, 2023, we held an hour-long discussion of the Supreme Court decision in the Harvard and UNC cases, and what that ruling meant for affirmative action and other racial preferences moving forward.
The event was hosted by Kemberlee, with me and Ameer Benno, Esq. at the panelists. Ameers is Director of Litigation for the Equal Protection Project.
We touched on a lot more than the ruling. We talked about what it meant for the corporate world, and how it would impact the work that EPP does.
The full video is embedded at the bottom of the page. Here are some short excerpts from the event, selected by each of us (with time stamp where it appears in the video):
2:59: “Thanks everybody for coming here on pretty short notice. We picked this time not knowing when the decision would come down, and I think it was pretty good timing. I’m not going to say a lot other than this reminded me, waiting yesterday for this decision, of when we were all doing that for the Obamacare decision back in 2012. Although this time we had a better result than we did back then.”13:59: “I wish I could see the people here because I’d asked for like a show of hands. How many of you ever took a critical race theory course in college or law school? Because if you did, then you’ve pretty much read the dissent of Justice Ketanji Brown [Jackson], less so Sonya Sotomayor. So the dissents were really, you know, ‘how dare you, there’s still racism, there’s still disparities that we can’t just pretend that this has all gone away.’ And they were really talking about something that wasn’t the issue in the case. They were talking about more of a political, sociological [issue].”18:53: “And these are all things that are consistent with what the majority said. So what I think this was, in many ways, it was a repudiation of the diversity, equity, and inclusion industry, philosophy, the so-called ‘anti-racism’ philosophy. It really was a rejection of critical race theory as having any constitutional relevance…. The Supreme Court has unequivocally repudiated the core philosophy that dominates the campuses and increasingly corporations. What that means going forward, I think, is to be seen.”36:32: “While I have no doubt some people will say, well, that was just higher education, this was such a forceful majority opinion. I don’t think that’s going to fly. I think that this will have an impact on judges down the line and on administrative agencies down the line. You know, certainly we’re going to use this.38:56: “Going forward I think it’s going to make it harder, because you’re going to find a lot of evasive context. We’ve already seen this in many of the actions we’ve brought where they use euphemisms [such as] ‘historically underrepresented minority’ and ‘first generation’. Presumably they’ve looked at the numbers and first generation college students are less white than third generation. So they, they’re going to start to use euphemisms. So it’s going to be harder. They’re not going to be as bold as they’ve been so far. So I think it’s not going to change a lot of the problems, but they will be pushed underground a little bit more. They will, take place more behind closed doors…. I think it’s going to make our job harder.”
9:39: “Why did Chief Justice Roberts and the majority find that there was no compelling interest? Well, ‘diversity’ writ large is just too ambiguous. How do you measure whether there has been educational benefit in this case? …. Without knowing whether we’ve succeeded or whether we can, [without] some metric in place [to] quantify whether we’re doing a good job or not, it’s just too ambiguous.”10:39-11:30: “Here, race has been used as a negative. Because college admissions is by definition, a zero sum game. For every person who gets in, that means that there’s somebody who did not get in. And so if you’re giving a racial preference to somebody because of their skin color, that means somebody who did not have that skin color was disadvantaged.”11:30: Affirmative action” collectiviz[es] people and assumes that students who share a race all have a shared experiences or shared viewpoints on life, and a global worldview that is all identical …. That is nothing more than crude racial stereotyping. Those [minorities] who … have achieved success are going to be viewed as if they only got to those levels because they were the beneficiaries of affirmative action, which of, of course, is the very evil that affirmative action was supposedly designed to eliminate.”35:51: The Supreme Court was “really clear [that] the 14th Amendment allows no racial benefit or preference … and that it is going to be viewed consistently with Title Six [of the Civil Rights Act of 1964], which prohibits discrimination. And there’s no real principled reason why they wouldn’t apply the same analysis to Title VII [of the Civil Rights Act of 1964], which applies to the employment sphere. And so, giving racial preferences in hiring or in promotions, there’s just not going to be any tolerance by the courts … for that kind of activity.”40:23: “Some schools … are talking about … giv[ing] advantages to ‘underrepresented minorities.’ To me, that category is flawed for the same reasons the court found that the check boxes on the common app are flawed – they’re just so overly broad that they’re completely meaningless. What is an underrepresented minority? It seems pretty obvious that that’s just code for engaging in racial preferences that are forbidden.”
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