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PaperclipPerfector  10mo ago (text post)   34929 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".

Will colleges drop federal funding to be able to continue affirmative action?

They can, and I expect some will.

To quote Roberts' footnote 2,

Title VI provides that “[n]o person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” 42 U. S. C. §2000d. “We have explained that discrimination that violates the Equal Protection Clause of the Fourteenth Amendment committed by an institution that accepts federal funds also constitutes a violation of Title VI.” Gratz v. Bollinger, 539 U. S. 244, 276, n. 23 (2003). Although JUSTICE GORSUCH questions that proposition, no party asks us to reconsider it. We accordingly evaluate Harvard’s admissions program under the standards of the Equal Protection Clause itself.

So while the constitution is brought into play, the relevant statute is still Title VI. This only applies to "any program or activity receiving Federal financial assistance."

Any college, then should be able to circumvent this by refusing federal funding. Indeed, some colleges already do this (though this is more for Title IX than Title VI). This includes scholarships and loans.

Harvard in particular has a perfect score, per Forbes, on financial health. With a 50 billion dollar endowment, if we assume a yearly return of even only 2%, they can continue perpetually into the future spending a billion a year. They don't need money, and could easily drop federal funding. University of North Carolina is a public university, but a state one, so I'm not as acquainted with how that could work, but I expect they too could drop federal funding if they really wished to do so.

So the elite schools, at least, could easily openly maintain affirmative action in this way. This becomes much less true of colleges which are in harsher financial constraints, or rely more heavily on tuition—dropping federal funding could cause them to be outcompeted by other schools which can use the funding to offer more aid, resulting in a downward spiral of increasingly dire financial distress.

Whether many colleges will drop federal funding, then, will depend on several factors. Ideological factors, of course—how strongly are they committed to this. Image—how prominent do they want affirmative action to be associated with them. Finances, obviously. How easily they can achieve their objectives otherwise, through more nebulous and less explicit means—Roberts spoke against doing so, but colleges will undoubtedly try, and we have yet to see how such attempts will go.

So I think ultimately this case will fail at one of the main goals, stopping affirmative action at elite colleges. But at the same time, it might reduce the amount of subsidies going to students (maybe—I haven't actually acquainted myself with how federal student loans and scholarships are funded and allocated), which is a good thing (except that it will disproportionately harm those who need the aid more). And it does establish that affirmative action is no longer just the thing schools do, which may make it less acceptable in public opinion, even if it continues on at the highest levels.

Edit: I realized I forgot about federal research grants. That's a big deal as well.

My understanding of the ruling is that Title VI applies only to institutions who receive federal funds, but that the Equal Protections argument is separate and affects any government institution under the Constitution, including Universities for the several States.

Ah, you're probably right.

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