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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.
There is going to be a lot of legal scrutiny for any institution that tries to implement the old system by other means. How does a University actually implement this policy without incriminating texts/emails? A University can't have emails to their admissions officers that "being from a black community is hardship wink" or they'll be violating the Civil Rights of other applicants.
I've read an article a couple of years ago (unfortunately, link long lost) about how they did it in California (where explicit racial discrimination is banned). They hire a set of "evaluators", which evaluate the candidates and rank them by their acceptability (I don't remember the exact details of ranking mechanism, but it's largely irrelevant here). They have the training program, which never explicitly mentions race of anything like that. The most they get is the standard "we value diversity, inclusion and treating everybody in the most inclusive and welcoming manner" spiel. And they have a set of supervisors, which oversee the training. The training is done as a set of fake (or maybe real, from past years?) student profiles, which the candidate evaluator has to evaluate, and then the supervisor reviews it and tells the candidate where they may be wrong, if they are. The author of the article was one of the candidates. The supervisors, again, never explicitly mention the race or any prohibited criteria, but if the candidate evaluates certain profiles not in the "correct" way, the supervisor suggests they may want to reconsider - maybe they didn't take all the necessary factors into account, or overlooked something? They may remind them to re-read the policies, etc. That is repeated, until the candidate "gets it" - and starts producing the results that satisfy the supervisors - or the candidate "doesn't get it" even after a set of repeated suggestions, and then it turns out their services are not required at the present time. The author of the article was one of the latter.
If you see similarities to some other, currently popular, area of research - it is probably not coincidental. But it's hardly possible to prove that any racially discriminatory criteria were used. Of course, somebody has to train the supervisors, but it's California we're talking about, Berkeley could supply thousands of such supervisors which wouldn't need a word of discoverable explanations to produce the correct results.
Mechanical Turk + Gradient Descent
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