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PaperclipPerfector  10mo ago (text post)   34962 thread views

Culture War Roundup for the week of June 26, 2023

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affirmative action is officially unconstitutional.

The majority opinion by Chief Justice John Roberts, which all five of his fellow conservative justices joined in, said that both Harvard’s and UNC’s affirmative action programs “unavoidably employ race in a negative manner, involve racial stereotyping, and lack meaningful end points.”

“We have never permitted admissions programs to work in that way, and we will not do so today,” Roberts wrote.

The majority said that the universities’ policies violated the equal protection clause of the Constitution’s 14th Amendment.

the decision leaves open the ability for universities to consider how an applicant's race affected their life "concretely tied to a quality of character or unique ability that the particular applicant can contribute to the university".

universities [can still] consider how an applicant's race affected their life "concretely tied to a quality of character or unique ability that the particular applicant can contribute to the university"

Quality of character: The resilience borne of having grown up in the oppressive anti-Black racial landscape of the United States

Unique ability: The ability to navigate hostile white environments as a Black person in a racialized body.

Don’t think for one second the judges didn’t know what they were doing. They’re not morons, they managed to allow states to ban abortion with minimal loopholes. This ruling is deliberately designed to allow everything to continue.

The problem is that Roberts is practically a progressive on this issue, while Coney-Barrett has personal circumstances that obviously make hardline opposition to affirmative action less likely. Thomas, Gorsuch, Alito and Kavanaugh are only four alone, even if they had wanted to say something else.

Edit:

In a footnote to the majority opinion in the case, Roberts indicated that the decision does not apply to the United States military academies.

So the military even received an explicit carve-out. Wow.

What is ACB personal circumstances? Only thing I can think of is Notre Dame’s 85% Catholic quota. But I assume you can get around that since it’s not a race but a choice to be Catholic and anyone is allowed to be Catholic.

Two adopted black children.

Barrett has several adopted children, IIRC two of which are from Haiti and would presumably benefit from affirmative action.

Catholics that conservative don’t send their kids to Ivy leagues, they send them to either community college and then a commuter school or to small catholic liberal arts schools. Her kids don’t need affirmative action at either- in one case because the admissions requirements are to be able to spell your own name and in the other because they don’t use it anyways.

For graduate studies sure, but the children of scotus justices can expect to get in to a high prestige grad school anyways.

They're SCOTUS justice kids, they don't need AA. IF anything the optimal move if she wanted her kids to prosper would be banning uni AA while preserving it in corporations, so that they end up some of the only Black ivy grads coming out.

Quality of character: The resilience borne of having grown up in the oppressive anti-Black racial landscape of the United States

It's easy to see how this will be used as a loophole, but I think what they're going for is the almost certainly true idea that it requires far less innate talent to be a straight-A/high SAT asian student from Palo Alto than it does to be a straight-A/high SAT black student from Detroit, and if you're solving for something like, "admit the student where our treatment effect will be the largest" then you'd prefer that black student over that asian student.

the almost certainly true idea that it requires far less innate talent to be a straight-A/high SAT asian student from Palo Alto than it does to be a straight-A/high SAT black student from Detroit,

This doesn't seem obvious, unless you are having innate talent do the heavy lifting. What do you mean by innate talent, and is there any evidence for your claim?

Asking anyone who might be willing to answer - what's the cynical take on why the military got a carve-out here? Honestly, I'm confused by this exemption and I'm having trouble imagining what prompted it. A cursory look at the "military officer affirmative action" pro and con discourse doesn't show me any novel or compelling arguments I'm not seeing already in the "affirmative action in higher education" discourse.

Maybe military academies will argue that they have other purposes besides mere education and some sort of racial discrimination might be helpful, like if they want more Arabic-speaking officers or if they need more officers comfortable with Russian or Chinese culture, or if they want say a Samoan officer able to lead Samoan troops on a mission in American Samoa, they might want to consider race in some sense.

I suspect that the Congressional nomination process for service academy applicants complicates the role of race in admission and that is a separate issue from traditional college acceptance processes.

Don’t congressmen usually nominate anyone impressive who meets the other requirements?

Right, but this is about what to do with the exceptions not the usual. What I am basically saying is that if an Asian-American from California gets rejected and an African-American from Georgia gets in, the system for how it happened is different for Harvard than it is for West Point and trying to come up with a one-size fits all for both situations is a more difficult than just trying to fix the non-military schools.

The military already measures the hell out of everything, so they dodged some of the main arguments. There's also a bunch of historical baggage about segregated units, cannon fodder, and avoiding an officer caste.

Sotomayor's dissent actually goes much further into this. In the main opinion, the majority really just says "no military academies are party to this, we're not binding them."

The footnote says:

The United States as amicus curiae contends that race-based admissions programs further compelling interests at our Nation’s military academies. No military academy is a party to these cases, however, and none of the courts below addressed the propriety of race-based admissions systems in that context. This opinion also does not address the issue, in light of the potentially distinct interests that military academies may present.

No cynical take is needed. The Court spent pages and pages on whether the interests served by affirmative action at regular universities are substantial enough to survive strict scrutiny. The interests of military academies might well be different and hence might survive strict scrutiny,and the issue was technically not before the Court, so it makes sense to leave that question for another day.

This was very helpful, thank you!

YW

It’s probably just because the military receives an explicit carve out to everything.

Does the exemption only apply to the four service academies, or does it also apply to Texas A&M and the citadel?

Just the academies, as far as I can tell.

It may just be that there's other relevant legislation applying to the military academies.

I don't know whether my take is accurate, but if I had to guess I'd say that unlike Harvard, the military does actually struggle to find qualified recruits - and if they didn't have the flexibility to lower standards, it would have an impact on military preparedness and national security.

West Point/Annapolis/etc are hard to get into, at least as measured by acceptance rates. They're not that far off from other elite American universities.

they managed to allow states to ban abortion with minimal loopholes

I'm confused by this statement. Wasn't, "states can decide what to do on abortion" the entire explicit point of Dobbs?

Yes, but I’m saying that SCOTUS didn’t go halfway or waver or preserve a bit of Roe or something, they tore it down and handed it to the states with no limitations. This is because most conservative SCOTUS judges are religious Catholics or otherwise conservative Christians. On AA, they left in these loopholes because at least some of them are probably not, in fact, staunchly opposed to the practice.

I think it's simpler than that. The conservatives on the court actually have principles, the most important of which is "don't legislate from the bench".

Dismantling Roe made sense because Roe was an illegal imposition by a previous court on the legislatures of the states. With the AA decision, the court is doing the least necessary to preserve Constitutionality while not overly involving themselves in the workings of universities. (Note: I think they didn't do nearly enough here, and that universities will continue to racially discriminate against whites and Asians with impunity).

Despite what people believe, the conservative court is not just a party-flipped version of the liberal courts of the last 90 years. It's decisions are based on interpreting the law, not making it.

universities [can still] consider how an applicant's race affected their life "concretely tied to a quality of character or unique ability that the particular applicant can contribute to the university"

Yeah, this just sounds like an explicit invitation to make the "enriched by diversity" argument. Which my suspicious self has always assumed was chosen precisely to avoid the 25 year time limit SCOTUS previously gave on the need for AA.

Might as well have circled the goat path.

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