Harvard/UNC lawsuit oral arguments today [Update 29-June-2023 Supreme Court rules that using race in admissions violates constitution]

Miscellaneous and Personal Stuff I Must Share
21

I tend to agree that the focus on the Harvard criteria and tying it to affirmative action as a general matter muddles things.

In a recent article I read that if the elite colleges did away with many of the admission preferences for children of alumni and donors and for athletes, they could probably get a better perception of “merit” entry while still promoting diversity. Don’t know how real that POV would be.

In another Court I would have expected them to separate the matters and do something narrow about Harvard (and by extension other Ivies/elites), but that ship has sailed.

22

If “the process” means “painting all Asian students with a broad brush as lacking good personality,” then yes, there is a problem.

23

That is not what they claim the process to be. They deny that part. It might be true, but it’s certainly not something that Harvard advertises as part of its admissions process. It’s the publicly acknowledged process I support.

I suspect they HAVE been

And yes, that is horrible.

24

The elevation of Ketanji Brown has led the court to separate the Harvard and UNC case. This was good for affirmative action supporters.

The UNC case is not really about anti-asian discrimination and getting conflated with what was going on at Harvard hurt them. That case is about racial preferences generally and how they affect asians (and whites) tangentially because they are not one of the preferred races; but that is very different than an institution that has had 20% asian students even as asian applications tripled without any reduction in the quality of applications and they justify this consistent admission ratio with low personal scores. The personal scores for asians kept dropping enough to keep the asian population at harvard at about the same level year after year. The asian population at harvard has risen every year since the start of litigation, presumably some of this is a result of harvard re-evaluating their process (in light of the allegations in the litigation) and identifying biases built into the process and some of this is probably a cynical attempt to support their arguments that they don’t discriminate against asians.

I think the UNC case provides the court an avenue to retain some elements of affirmative action in the UNC case if they really want to (I am not convinced they are) but the sort of stuff that Harvard does is probably going to be illegal going forward.

I don’t think affirmative action will survive after that oral argument but I think it had a chance to get a reprieve before Seth Waxman decided he would answer the questions he felt the justices should have asked rather than the questions they actually asked.

25

Nobody advertises that they are doing things like that.

26

For those interested you can hear Alito grilling the Harvard attorney in the video below (it is mostly audio of that back-and-forth):

27

I came across this post on Reddit about Harvard’s admissions for Asian Americans which reminded me of this thread.

28

Of course, each of us would be guessing, but I listened to both oral arguments last nightI’ll state it here and make my prediction first. Harvard wins by default because of a 4-4 equally divided Court (Kavanaugh, Barrett, Kagan, Sotomayor (Jackson recused). UNC gets a very narrow win 5-4 (same lineup plus Jackson) with an opinion written by Kavanaugh, already skittish from Dobbs, holding: 1) Grutter was wrong and possibly grievously wrong, 2) However, per Dobbs, this case does not involve the question of human life, 3) college administrators have spend millions of dollars in reliance on Grutter, 4) young college men and women have planned their academic futures, test taking and applying in reliance on Grutter, 5) for stare decisis reasons, we uphold Grutter. However, 1) Grutter also said that there was an internal kill switch (25 years), 2) although we recognize that the Court did not mean to put a literal countdown timer on it, the holding was clear that the Court “expects” these racial policies to have a shelf life, 3) the university has not taken that to heart and seems to want to continue these programs indefinitely, therefore 4) while upholding Grutter, we put teeth in the 25 year requirement, 5) for all equitable reasons, universities have until June, 2028 to wind down racially based admissions programs.

Thomas, Alito, Roberts, and Gorsuch dissent with smoke coming off of the paper. You heard it here first.

I was dumbfounded. Waxman has many years of experience and has argued before the Court many times. That was an embarrassing performance. You are taught in law school to directly answer the question posed to you and then follow up with an explanation. Alito’s question was straightforward: Look Asians are rated low on these personal characteristics. Mr. Waxman, you would agree that this is because either Asians as a group are just not very likeable, or there is some biases in the process?

Waxman looked like a rookie. That is a point that he should have had an answer to. You say something like, “Justice Alito, I realize that these figures give that initial impression and the impression is reasonable. It is concededly a point that seems to work against my client. However, the Court should not be left with that impression and we still win because X, Y, Z…”

Noting the thread and not wanting to debate too vigorously, but I will observe that Thomas had a rather insightful response to this. We have done a generally terrible job in our history when it comes to seeing some racial discrimination as “good” and others as “bad.” Imagine a case from 1915 which gave deference to a university because expert testimony showed that racial homogeny was a good thing and all that the university was trying to do was prepare students for what would be an all-white blue collar workforce? If Grutter was on the books then, that would be a reasonable and rational outcome.

Instead of using race in a way we believe is “good” why don’t we realize that we are always blinded by the times we live in on this issue and just quit doing it? And Thomas was almost certainly a beneficiary of affirmative action—or, was it his socioeconomic status? He has said before that not knowing this, but feeling that he is where he is because of race, has robbed him of personal dignity.

Another good point that was raised. It is difficult to see how the schools in good faith can say that they need a strict scrutiny pass when their own policies (legacy admissions and so forth) cause the very problem that they need a waiver for. It is also its own continuation of racial discrimination. Suppose my grandfather got into UNC, last in his class, and wouldn’t have made it had they considered black applicants. I now get a leg up over others solely because of the racial preference my grandfather received.

But more generally, even if it wasn’t that blatant, there is nothing unconstitutional about giving preferences to legacies, or oboe players, or rowing team members. But, if in doing so, you create a racial imbalance, as Gorsuch pointed out, it seems unfair that you are asking for a race based exception for a problem of your own creation.

I think Harvard had a stronger case. It is a private school and does not come under the 14th Amendment, but only through statute that may bar its federal funding. I thought they had an excellent argument that the statute allowed for some sort of affirmative action because it was passed when these programs abounded and the original public understanding would have permitted this admission process. Waxman said nothing about this and allowed himself to get pissed off.

The math says it doesn’t make any difference. The schools won below. With a full Court, a 4th vote is a loser and a 6th vote is one extra. As it is now, 4-4 is a win for Harvard without Jackson, the same as 5-4 with Jackson.

29

As I re-read this, I might have convinced myself. As much as I have disagreed with the unfairness of Grutter, imagine a young black kid who is starting his senior year of undergrad and has planned for years to apply to law school for Fall, 2023 (or 2024). He has done his homework and recognizes his limitations. He will get a GPA and LSAT score that would not allow him to be admitted were he not an underrepresented minority. But like anyone, he takes life as it comes to him. So he sees that he likely would get admitted based upon his scores and his race.

He didn’t create the current dilemma, but should his plans be mothballed because the Court takes away something he reasonably relied upon? The more I think of it, the more I support my hypothetical Kavanaugh opinion. The people who are close and have relied on Grutter get the benefit. Those years removed have time to adjust.

30

Harvard does not accept people with scores that “would not allow them to be admitted” because they are a member of an underrepresented minority. It selects among the people fully qualified to be admitted based on criteria like that.

I’m going to guess that about 60% of candidates to Harvard are fully qualified to be admitted. They have room for what? Less than 5%? They need a way to select among those 60%. That’s what they are arguing about.

31

Speaking of mundane and pointless things to share… My father applied to Princeton, and got a letter that pretty clearly said, “sorry, we’ve already hit our quota for Jews”.

And I think Harvard probably IS artificially limiting the number of East Asians they accept. But I think they are doing it outside the race-aware admissions practices that are under discussion. “We judged your personality lacking” is not (in theory) race-aware. Cynically, I expect they will continue to discriminate against east Asians however the suit comes out. And I think it will be sad if they lose the ability to increase racial diversity and continue to limit the number of Asian kids they take.

32

And this is the problem with the Harvard process (and that of many other specialized schools). It is not only giving a bump to URM it seems to be penalizing Asians.

33

How does the admissions committee evaluate courage, character, and integrity without meeting the applicants? Is it based on their writing and other parts of the application package, or something else?

If that is the case, and their scores are truly meant to be race-neutral, then identifying information should be removed before the application is given to those committee members. Conduct the courage, character, and integrity evaluation like a double-blind clinical trial. There can’t be any question of bias if the judges don’t know who they’re evaluating.

That may not be entirely workable in practice, I realize. It’s possible that an applicant’s essay may be about the challenges they faced as an Asian or other minority, but I think it would be an interesting approach to try.

34

I am not familiar with the particular program used by Harvard but going from the stats in the Bakke and Grutter cases (and my own personal experience in applying for law schools) it showed a clear biases with URMs getting admitted with massively lower scores. Now perhaps I phrased it wrong and that these lower scores did not make them otherwise ineligible for admission, but the stats bore out the fact that URMs would get admitted with scores that a non-URM would have been auto-rejected.

The schools used the “holistic review” argument and Rehnquist in dissent called it a sham. The numbers just don’t bear out the idea that race is one of 40 factors and gives a little nudge to a URM. The schools on one hand try to argue that race isn’t a determinative factor in any admission, yet also argue that without the program, that URM enrollment would plummet. Thus, it seems that race is very much a determinative factor in many admissions.

35

What is “urm”?

Also, if you have 60,000 qualified people to choose among to select 3000 new students (making up the numbers, but the relative values aren’t totally off-base) every little nudge makes a big difference.

I bet the athletes have lower scores, too. I bet the tuba players have lower scores. A lot of students are accepted for something other than scores.

36

Just to inject some information into the thread, according to Harvard they had 61,221 applicants for 1984 positions.

puzzlegal’s estimate was very close.

37

I had a different take on it. Obviously Kavanaugh and Barrett focused on the sunset idea and might be inclined to support extending Grutter for a few more years based on UNC’s presentation and how they have used race based affirmative action less and less over the years but that was the UNC case and the idea of overrulling Grutter. Kavanaugh and Barrett did not seem any more comfortable with the personal score issue as anyone else including Waxman. This is why I felt it was good for affirmative action that they separated the two cases, it allows room to address Grutter out of the context of the Harvard case.

I think it would be very difficult to continue to permit racial discrimination in violation of constitutional rights because it would be a hardship to one group of students while perpetuating racial discriminating against another. But there was a pretty overt appeal to the court to avoid overturning another line of precedent so closely on the heels of Roe. To some extent, affirmative action might benefit from the loss in Roe.

38

URM = Under-represented Minority = non-asian, non-jewish minority

But the constitution does not prohibit discrimination based on tuba playing or athletic ability.

39

That’s not surprising. Harvard is, arguably, the second-finest university in the whole of Cambridge, Massachusetts.

40

I don’t see how people can discuss a political topic like this without those discussions being political.