R.I.P. affirmative action (at least for college admissions)

30 thoughts on “R.I.P. affirmative action (at least for college admissions)”

1. Well, I’m pleased at the latest turn in this conversation. Namely the recognition that the suit is by Asians, against whom the AA in use effectively discriminates.

   While I do believe Steve would end social engineering in any form, in every case & is also pretty basically an asshole, which I’m of course not down with, we’re at least in a kind of agreement that deserving Asians & Jews can be deserving Americans.

   I don’t want to have an argument with anyone about the merits of social engineering, though. I mean, most of us are for it, at least as an intentional use of tax policy. Achieving at least some societal goals thru tax exemptions is well-accepted even among people like I who generally disfavor tax exemptions. Also, direct govt supports for general education seems to be pretty uncontroversial.

   But, no, I’d like to emphasize what this new, proper framing tells us about another claim. That is, it went uncontested, I’ll now contest it.

   @Nukem said: “I have a hard time believing that this will affect university admissions in any way. Harvard will just find some other factor allowed under the law that can serve as a reasonable proxy for race.”

   Nope. “Other [subjective] factors as a proxy for race” is precisely what the plaintiffs are claiming is how Harvard is discriminating against them. If their existing AA process is struck down on this basis, Harvard will be unable to sidestep the ruling quite so easily.

2. Affirmative action only exists to assist people with a darker skin tone. It’s illogical, irrational, and long past it’s usefulness. The Chinese were slaves in this country far more recently than the blacks. Many Chinese immigrants come out of sweatshops where they are forced to earn their freedom. They later become contributing members of society. And then there’s the whole “build the railroads” thing when Chinese were shipped over by the thousands. Liberals don’t care about diversity of anything other than adding more blacks and browns. You can’t solve liberal guilt by helping Asians when they are outperforming whites. You can’t solve it by helping Jews when they own most of the wealth. If the blacks could take on some societal personal responsibility, liberals may have to actually get real degrees and real jobs instead of dedicating their lives to “social justice”.

   1. Jaysus Steve, I tend to give you credit for having something on the ball, like a Parscale or Scaramucci level of low cunning. Not *smart* smart, but way smarter than Trump. But this isn’t an argument, it’s just a pile of stereotypes fed through a wood chipper.
      My dad came out of the Army and went to college on the GI Bill. Black vets went looking for their GI Bill, they got fuck you instead. Tried to get a mortgage to buy a house – fuck you. Tried to get a car loan – OK, maybe but you’ll pay more interest because you got no college degree or house. To this day, they’ve got shittier public schools, a concerted effort to stop them from voting, and jags like you coming with this “societal personal responsibility” drivel and a side of fuck you. AA is a piss-poor baby step toward equality but even that is too much for you and your ilk. (You do have ilk, right?)

      1. Oh, boy, does he have ilk. SO many ilk. He’s got ilk coming out of his ears.

         1. “His ears if we’re lucky.” – Krusty

3. So Harvard won’t be able to block Asians any more? Sometimes you have to just ask yourself what is discrimination and what isn’t. Who exactly are you trying to serve.

   1. You have to ask yourself why they ever wanted fewer Asians to begin with. I guess I don’t understand the principles of education. If I were running a university, I’d want the cream of the intellectual crop irrespective of their skin tone, especially in research programs.

      Well, except maybe for a bunch of guys to play big-time sports.

4. All your points about what the evidence supports are unscientific. That’s bc “evidence of what” is not science’s purview. The decision to define life as beginning at conception or viability or whatever has to be made prior to science grinding on it.

   We could make the case that cell reproduction is life. That would exclude viruses, while at the same time substantiating @US’s claim of a continuum from conception. OTOH, it remains totally unclear at what point a fetus becomes a person (or a citizen). Science provides no answer to that. The plain truth is there’s a disconnect between legal reasoning & facts.

5. In 2003, the Supreme Court supposedly applied strict scrutiny to race-conscious admissions at the University of Michigan. They decided that the undergraduate system of assigning “points” based on various factors including race was unconstitutional. But the law school’s policy of treating race as one of many factors was narrowly tailored to serve the compelling government interest in educational diversity. But Sandra Day O’Connor’s opinion did say race-conscious admissions must be temporary and said they should no longer be needed 25 years in the future. It has now been 19 years since those decisions.

   The thing about the Harvard case is that under virtually any other circumstances Harvard would be nearly unanimously condemned as racist. Harvard scores applicants in different areas. Despite boasting higher test scores, better grades, and stronger extracurricular resumes than applicants of any other racial group, Asian American applicants consistently received lower rankings on personality traits like “likability,” “helpfulness,” “integrity,” and “courage.” Now do Asian applicants score lower in personality because Asians just have, on average, the worst personalities of any ethnic group? Or are those lower personality scores simply the way Harvard has chosen to implement its soft cap on Asian students?

   The Supreme Court would not have taken those cases if there wasn’t a majority ready to give the 1964 Civil Rights Act its plain meaning. Admissions offices could still take actual hardships faced/overcome by an applicant into account. But they won’t be able to just use race as a proxy.

   What I am wondering is where this might go next. It’s probably the retired employment attorney in me, but if the 1964 Civil Rights Act is enforced as written in university hiring, universities are going to end up paying a lot of money in settlements and verdicts to cis-gendered white males denied teaching/tenure tracked positions. Recent Supreme Court decisions have found, to much consternation among conservatives, that the 1964 Civil Rights Act also protects discrimination on the basis of sexual orientation or transgender status. Imagine for a moment all those statements by University diversity offices promising to hire more diverse faculty. They may well be considered proof of illegal discrimination going forward (or retroactively in cases where the statute of limitations haven’t run.

6. “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”

   Is an easy thing to say when you’re not in the group being discriminated against. After all, I’m a white male and have never been discriminated against, so how big a problem could discrimination be?

   I agree that Affirmative Action is dead on arrival time with this Court, but spare me old, white males telling us how simple discrimination is to solve. They haven’t seen it a day in their lives.

   1. Again, you are confusing moral or sociological arguments with legal ones. In principle I agree with you completely, but the law supports Justice Roberts. The law does not ban discrimination only against Black people and Latinos. It bans discrimination, period. That means that it can’t be used to discriminate against Whites and Asians.

      Affirmative Action was and still is a good thing for many reasons and in many circumstances, but it has no legal foundation.

      I think the way to replace Affirmative Action is to change it rather than to abolish it – by allowing different treatment based on hardship status rather than race, which has always been completely acceptable. That would generally support diversity goals while remaining color-blind and satisfying the legal requirements.

      1. My understanding is that when “Affirmative Action” was first proposed it did not involve racial preferences. Rather, it was about seeking to enlarge the pool of applicants to include more minorities. In the case of employment, a business that previously only placed job ads in the NY Times might also start placing them in the Amsterdam News (a weekly Black-owned newspaper). That’s right kids, people used to look for work in newspaper ads. Ask your grandparents what a newspaper was.

         If a college or university wants to take into account the disadvantages faced by an individual applicant, there is nothing in either the 14th Amendment or the 1964 Civil Rights Act that would prevent that. For instance, an applicant that grew up in poverty, with a single mother, in an inner-city neighborhood with lots of crime while still being on the honor roll might deserve admission more than a middle-class applicant with higher grades. But they need to asses that applicant as an individual, not as a member of a group. Well other than a member of the group of children of alumni. Of course, if they feel that preferences for legacies perpetuates white privilege, they are free to end them. But they can’t just decide that because an applicant is Black or Hispanic that they must have overcome diversity.

         I was talking with my sister last week about how I thought the Supreme Court was likely to ban race conscious admissions. She agreed it should be done, but said she wouldn’t mind if they stuck around another decade. That’s because her daughters are Hispanic (or as I jokingly call them “Irexicans”). My brother-in-law is the child of Mexican immigrants, but both he and my sister are engineers that do very well financially. My nieces attend excellent schools. They will be able to take SAT prep classes. Do they deserve extra consideration because of their ethnicity when they apply to colleges?

         One problem that neither eliminating racial preferences nor taking economic disadvantage into account will fix is the racial/ethnic disparity in educational preparation. Georgetown University Law Center fired an adjunct professor recently for expressing “angst” over the fact that her African-American students seemed to be getting lower grades than their white counterparts. She was discussing it with a colleague after a Zoom class, not realizing their conversation would be at the end of the recorded class. Her goal was to find away to help those students. But the school, not wanting to admit that many (if not most) African-American students were less prepared than their white counterparts fired her for her “racism.” I say “if not most” because while there are certainly African-American students who are just as prepared to do well at Georgetown as white students, there aren’t enough of them for all of the elite law schools to meet their diversity goals. This results in a student well prepared to compete with students at a Top 20 school finding themselves accepted to a Top 5 school. This mismatch has ripple effects down through the elite schools into the very good schools etc.

         An elite school might accept a student from an inner city school that overcame hardship to be on the honor roll. But having taught in an inner city high school, I can tell you that the curriculum was much less rigorous than the ones found in suburban schools. Here is an anecdote that I think goes along way towards illustrating this. I was teaching a lesson about the Constitutional Convention. I asked if anyone knew why Thomas Jefferson, author of the Declaration of Independence, wasn’t at the convention. No one knew in my 1st period class (so much for doing the reading) so I gave the answer. He was serving as Ambassador to France. A student asked me what an ambassador was so I asked the class but no one knew (or was willing to answer). I asked each of the three additional classes to which I taught that lesson: What is an ambassador? Not a single student was willing or able to answer, not even in my honors class. Some of those kids would go on to graduate with near perfect GPAs. But I doubt there are many kids graduating with honors from schools in Scarsdale or Greenwich that can’t define ambassador. We need to do a better job of preparing these kids to succeed at elite schools and eventually in elite careers. But we will never be able to do that unless and until people can discuss the disparities without being labeled a racist.

   2. A “white male” crying about “white males” telling them what to do? What a joke. Just go into a corner and cry all you want. No one cares.

      1. You miss the point.

         1. It is not about whether affirmative action is good or bad. (Good, in my opinion) It is about whether it is legal and/or Constitutional. (Probably not either, in my opinion.)

         2. Also, the suit is not about white guys at all. It’s about discrimination against Asians.

         White guys don’t have the “boards” to get into Harvard in the first place.

         Kidding

         Sort of.

         1. I read an opinion piece about the Harvard and UNC cases and it contained an interesting statistic. Over the last 30 years, the percentage of college age Asians in the U.S. population has doubled. But the percentage of Asian students admitted to elite universities has remained exactly the same. How is that possible if those universities haven’t set a limit on the percentage of Asian students they are willing to have in their student bodies? I started as a Freshman at the Bronx High School of Science in 1982. Admission to Bronx Science and certain other “elite” high schools is based entirely on a single entrance exam. When I was a student there, 40% of the students were Asian. Google tells me that Asians currently make up 63.5% of Bronx Science students. People might not like a single exam being all that is considered, but at least it’s objective. The percentage of Asians admitted seems to follow the increase in their percentage of the population a lot more fairly than the percentage admitted to elite universities.

            There have been many calls over the years to change the admission standards because Hispanics and African Americans are underrepresented. A few years ago, Stuyvesant H.S., the school that requires the highest score for admission (But Bronx Science is still way better!) had only 8 African-Americans in an entering class of more than 700. Mayor Di Blasio tried to change how students were admitted but under NY State law, admission must be based exclusively on the test. The Dept of Education set up Saturday classes to help middle school students prepare for the exam. They tried to exclude Asian students from these classes even if they met family income requirements. “The program’s not for you,” one mother was told. But they were sued and lost thanks to the Equal Protection Clause. It is so much simpler and easier to have separate admission standards for “favored” minorities than it is to honestly talk about why Black and Brown kids can’t score as well as Asians on the test, much less correct the disparities.

            Fortunately, in my opinion, Mayor Adams has said the specialized high schools should be left alone. He seems to want to make things better rather than sweeping the problems under the rug by getting rid of the test that reveals them.

7. Well said. IIRC, there have been studies done that show that diversity in background, gender, age, etc. within a group often lead to better outcomes then more homogenized groups. So for example we should want more female representation on the board of directors for a company not just for social justice, but for better results.

   I have a hard time believing that this will affect university admissions in any way. Harvard will just find some other factor allowed under the law that can serve as a reasonable proxy for race.

   1. “Better results” falls into the same category as “social justice.” It may be morally right. It may be good for society. It may be good for the institutions.

      But it is not a legal argument.

      1. There’s no legal argument to ban abortion, either. Tell me how the Conservatives on the Court feel about that.

         1. Actually, there are legal arguments for making abortion illegal. Basically the thrust of the argument is that if you define a fetus as person for 14th Amendment purposes, the Equal Protection Clause would require that you either prohibit killing unborn children or make it legal to kill people already born. Just to be clear, I don’t agree with that argument and I don’t know any judicial conservatives that do. But some people have made that argument.

            1. There is no evidentiary basis to make that argument. It seems the U.S Supreme Court, at least when it comes to Constitutional rulings, unlike say here in Canada, doesn’t actually care about facts and evidence.

            2. There is no evidentiary basis to refute it, either. In fact, declaring life to begin at conception is no less scientific that to declare it to begin at viability. It is certainly less arbitrary. Abortion is not an issue that can be settled by evidence in either direction. A society has to decide what is right for its continued existence and make policy based on that. I believe that women will get abortions whether they are legal or not. Given that, society needs to assure that (1) they can get them safely, and without facing jail time; (2) all women have approximately equal access to them; (3) that society is not burdened with the problems caused by unwanted children. If certain states ban abortions, only prosperous women can get them in those states, which is a violation of clauses 2 and 3. (And is bad for society, unless you actually prefer that poor women out-breed the prosperous and educated for some reason, and continually bring unwanted children into their poverty.)

            3. I think you are wrong about there not being an evidentiary basis for that argument. The evidence is that a fetus is a human being. The argument is that human beings are persons under the law. I don’t think it is a strong argument, but that doesn’t mean it couldn’t be made. But that argument is not even going to be heard in the Supreme Court, much less prevail. If the Supreme Court does end up overturning Roe and Casey, I think that will be the last abortion case they hear, at least until the Court has a liberal majority again.

            4. But here’s the thing: if you define a fetus as a human, why can’t it’s mother sue for child support prior to birth? Why doesn’t it have other rights we assign to the rest of Americans? That argument falls down on its face when abortion is the only issue that gets that theoretical application.

            5. I disagree that there is a continuum of life from conception to a zygote to a fetus to a human. I think there are clearly material changes during that process. I don’t dispute that the number of weeks chosen for ‘viability’ was arbitrarily chosen by the Supreme Court in Roe v. Wade but it’s not only the U.S Supreme Court that uses that as the basis for deciding ‘when life effectively beings.’

               The Canadian Supreme Court post our Charter of Rights and Freedoms has issued some extremely bizarre and stupid rulings, in my opinion, but it tends to look at actual real world evidence far more than the U.S Supreme Court, which actually seems to take its stupid abstract legal philosophies seriously (at least in helping the Justice find the ruling that fits with their personal opinion.)

               This Canadian thing may be to do with Section 1 of the Charter which says that Charter rights can be limited by law so long as those limits can be shown to be reasonable in a free and democratic society.

               For instance, when our Supreme Court legalized gay marriage, the judgement including a thorough review of all of the negative alleged harms presented to the court against gay marriage, and as best as the justices could determine, knocked down every one of them using real world evidence and other logical arguments.

               As far as I’m concerned, if you are going to claim that a fetus at any stage is a human, as those who are anti abortion frequently do, I would point out that determining death is also not necessarily clear, and since humans spend the vast majority of their time dead, that waking life is zero amount of time, essentially a rounding error.

         2. Michael stated the position. Given the a priori assumption that life begins at conception, there are good legal arguments to protect the rights of those citizens.

            That hinges on a matter outside the scope of judicial expertise or review (the specific beginning of a human life), but any such assumption is arbitrary, so that definition (that life is a continuum beginning at conception) is no worse than any other.

            This comes from a man who is 100% pro-choice. I completely support abortion rights, and I was completely satisfied living in a country where Roe vs Wade was the established standard, but I’d be more comfortable with the situation if Congress would establish a consistent standard and make it the law of the land rather than allowing places like Alabama and Mississippi to dream up some draconian, religion-based rules to pander to the evangelical base. (Or worse yet, to allow Texas to declare a bounty on abortion providers and enablers.)

            1. I’m not sure how scientific facts or evidence can be outside the scope of Constitutional law.

               Any country whose Constitution solely exists in some rarified abstract legal philosophies has to be asking for trouble.

               The Roe Vs Wade definition of life beginning at viability seems to be the most rational from the perspective of both the rights of the woman and the rights of the fetus.

            2. There is scientific evidence of when a fetus is viable (given a good hospital in the USA, given good pre-natal health – because viability varies by culture and technology), but that’s not the issue. The issue is that there is no scientific basis to defend the choice of viability as the standard in the first place. It was simply chosen arbitrarily, after-the-fact, as a pretext for the position that people wanted to take. Indeed, viability is not even an intrinsic property of the fetus, since it is contingent on nutrition, technology, etc.

               On the other hand, there is absolutely no question that biological life begins at conception and forms a smooth continuum therefrom, making that position actually on much more solid ground than viability.

               Again, I remind you that I support a woman’s right to abortion completely, for the reasons I have stated:

               A society has to decide what is right for its continued and optimal existence and make policy based on that. I believe that women will feel that they need and will get abortions whether they are legal or not. Given that, society needs to assure that (1) they can get them safely, and without facing jail time; (2) all women have approximately equal access to them; (3) that society is not burdened with the problems caused by unwanted children. If certain states ban abortions, only prosperous women can get them in those states, which is a violation of clauses 2 and 3 and is bad for society.

               And, by the way, I am completely comfortable with viability as a legal standard, even though it is arbitrary. Every Colonel Travis has to draw the line in the sand somewhere. That’s as good a place as any to place the line.

               —-

               Sidebar: Forget the fancy arguments. Those states which will not allow exceptions for rape or incest are just nuckin’ futs.

            3. “That hinges on a matter outside the scope of judicial expertise or review”

               Interesting factoid. Justice Blackmun, the author of the majority opinion in Roe v Wade, had served as general counsel to the Mayo Clinic before becoming a Justice. One of the criticisms of the Roe v Wade opinion was that there was almost no discussion of law in it. Rather there was a long and detailed discussion of medicine. Justice Blackmun clearly felt it wasn’t outside the scope of his personal expertise.

            4. That’s kind of amusing. Being the general counsel for the Mayo Clinic, he felt himself qualified to rule on when human life begins. Just as I, as a consultant to Shell, am able to determine where to drill for oil! I believe that can be proved using the distributive property.

            5. I don’t think Roe is a decision about when human LIFE begins. Rather, it is a discussion of when human RIGHTS begin. Or more accurately it is a discussion of when a state’s interest in protecting an unborn child’s right to life becomes greater than a pregnant woman’s liberty interest in deciding whether or not to terminate that pregnancy. I understand why fetal viability was set as the point at which that interest in protecting life becomes greater than the liberty interest. Few if any people would argue that a woman 9 months into her pregnancy should be allowed to terminate the pregnancy in a way that would injure or kill the unborn child. Working back from there you reach a point where a child can “theoretically” survive outside the womb. The thing is that absent a medical need, theoretically viable fetuses may not be “evicted” from a woman’s womb because that would present a serious risk of harm to that fetus. I am sure I am not the first to think of this, but the viability standard is analogous to the legal concepts of laches or even adverse possession. Invoking laches is an equitable defense that defeats a claim because the plaintiff exhibited a lack of due diligence and activity in making a claim. A woman who fails to terminate a pregnancy early in that pregnancy loses the right to terminate it late. Adverse posession is a doctrine where if a person lives openly and notoriously in a home or on property belonging to someone else and the rightful owner fails to take action to vindicate their right for a period of time set by statute, title to that property can be transferred to the person living there. So in this analogy, the fetus could be said to have acquired not title to it’s mother’s womb, but more of a lease lasting until it is born. In reality therefore, viability is something of an arbitrary line. That seemed to be what Chief Justice Roberts was trying to get at during oral argument in the Dobbs case. He seemed to be looking for a way to both uphold the Texas law which drew the line at 15 weeks, while also upholding a woman’s right to terminate a pregnancy earlier than that line. That is why some observers are predicting a 5 – 1 – 3 decision in Dobbs where the vote is 6 – 3 to uphold the TX law but only 5 – 4 to overturn Roe and Casey completely.

Comments are closed.