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Notes -
affirmative action is officially unconstitutional.
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".
Roberts' poison pill of allowing race to be discussed in personal essays and then allowing universities to take that into account mostly nullified this decision. As others have noted, this tactic has been used by universities in several states like California in previous years.
I would say this is a small and positive step, mostly for normative reasons, but in practical terms it's a whimper rather than a bang.
Obviously universities will look to get around this, but I don't see a "poison pill" here:
Roberts: "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."
Doesn't this leave universities open to lawsuits if they attempt to racially balance? The 14th amendment has a strict scrutiny standard.
It probably bar them from explicitly instituting a policy that mentions race. But it won't ban something like "if you come from a community that previously experienced hardship and bigotry, and is under-represented in higher education, you get +100 points", while the determination of the "community" is such that nobody white or Asian would ever qualify.
Not necessarily. The Court took pains to explicitly disallow the use of racial stereotyping. I take this to mean they can't assign points for being the same race as other people who experienced hardship and bigotry, but they could assign points if you, personally, experienced hardship and bigotry.
Well, we can see from their reactions that Harvard et al. interpreted it exactly as "you can assign points for being the same race as other people who experienced hardship and bigotry, if you write an essay about it". Just mention "systemic racism", and it's done. So at least until they are successfully sued for it - again, they'd try to keep on doing the same thing.
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If you're black, you can write "As a black person in America I of course experienced hardship and bigotry on account of my race", and this will count favorably towards your admissions decision (no attempt will be made to check if it's even plausible). If you write "As a Chinese person in America I of course experienced hardship and bigotry on account of my race" this will not count favorably, and the Court is fine with this.
I know these institutions seem like hiveminds, but there has to be some level of actual coordination to pull off affirmative action as it has been practiced. If Universities attempt an end run around the ruling, then the whole admissions process will be open to discovery and one email or whistleblower will blow the whole thing up. I know Middlebury and Harvard PR teams have put out statements to this effect, but I think cooler heads will prevail. University endowments are a big fat target for lawsuits and alumni donors won't appreciate it being ransacked for progressive brownie points. Universities won't be able to operate in the shadows knowing that they will need to meet a strict scrutiny standard for their admissions process.
They will not actually be subject to that strict scrutiny. They will present the talisman Roberts handed them and the courts will accept it.
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The fact that universities have gone considerably far beyond what they were previously allowed to do indicates that there is a substantial degree of coordination going on.
That's correct, there was a lot of coordination. Today's decision had the following text from UNC admissions officers:
"[P]erfect 2400 SAT All 5 on AP one B in 11th [grade].”
“Brown?!”
“Heck no. Asian.”
“Of course. Still impressive.”
Do anyone think this will be allowed going forward?
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I wonder... What's the authentication process for a college application? There's one study design used for employment markets that tries to reveal discrimination by sending in two fake applications, which are substantively identical but have different superficial racial (or gender, depending on the goal) identifiers to them. Would it be possible to run studies of a similar design for college apps? I don't see the ethics of that being any worse than doing that for job applications.
Even if so, it seems a student that's actually harmed would have a hard time proving the discrimination affected them in particular.
Such studies are unethical when they come to the wrong conclusion, as Peter Boghossian could tell you.
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