Students for Fair Admissions v. Harvard: The "Asians Have Bad Personalities" Case
The issue in Students for Fair Admissions v. Harvard is whether Harvard could discriminate against Asian Americans and put a quota on how many were admitted as they had with Jews in the 1920’s. More generally, is it legal to discriminate by race, at least in discriminating in favor of blacks? There is a majority opinion, 3 concurrences, and 2 dissents in this 6-3 decision. I have skimmed them and present to you what I think are some good bits. Lots of people have been writing about this. If you want to skip to the most unique (I think the term is actually proper here) part of this Substack, go to the end, where I talk about what comes next in the legal world, with special reference to class-action suits against MIT.
The only important part is from the majority opinion by Chief Justice John Roberts.
Both programs lack sufficiently focused and measurable objectives warranting the use of race, 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. At the same time, as all parties agree, nothing in this opinion should be construed as prohibiting universities from considering an applicant’s discussion of how race affected his or her life, be it through discrimination, inspiration, or otherwise. See, e.g., 4 App. in No. 21–707, at 1725– 1726, 1741; Tr. of Oral Arg. in No. 20–1199, at 10. 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. (A dissenting opinion is generally not the best source of legal advice on how to comply with the majority opinion.) “[W]hat cannot be done directly cannot be done indirectly. The Constitution deals with substance, not shadows,” and the prohibition against racial discrimination is “levelled at the thing, not the name.” Cummings v. Missouri, 4 Wall. 277, 325 (1867). A benefit to a student who overcame racial discrimination, for example, must be tied to that student’s courage and determination. Or a benefit to a student whose heritage or culture motivated him or her to assume a leadership role or attain a particular goal must be tied to that student’s unique ability to contribute to the university. In other words, the student must be treated based on his or her experiences as an individual—not on the basis of race.
The majority opinion and the concurrences, boil down to: “College admissions can’t discriminate on the basis of race. Don't make dumb excuses.” The dissents boil down to: “If there are lots of Asians and not lots of Blacks good enough to get into Harvard, it must be because of some sort of racism that is so insidious we can’t even explain it, so Harvard should admit more blacks and fewer Asians to be fair.”
To be sure, Roberts wrote,
"Nothing in this opinion should be construed as prohibiting universities from considering an applicant’s discussion of how race affected his or her life, be it through discrimination, inspiration, or otherwise ,"
That’s not as big a loophole as people think, though. It just applies common sense. If a student narrowly escaped lynching by facing down the lynchers, a college can consider his courage in its admission decision. This might go so far as to give a slight edge to a black student who grew up in North Dakota and was the only black person within 100 miles of his high school. It can't be used for the sort of broad discrimination Harvard a engages in, especially the mass-production variant used by most universities, where they barely count the extracurriculars and essays and probably don't ever read the essays.
One of the golden sentences is:
A dissenting opinion is generally not the best source of legal advice on how to comply with the majority opinion.
The sentence is made for quoting. If you’re a lawyer, don't cite dissents in future cases, especially in cases that rely on this majority opinion, or the other side will quote Roberts back at you.
The Thomas concurrence is more interesting to read than the majority one, but it’s really just a supplement. It adds lots of good points that the majority opinion is too dignified, polite, or chicken to say, especially in regard to what a laughable opinion Grutter turned out to be:
Because the Court today applies genuine strict scrutiny to the race-conscious admissions policies employed at Harvard and the University of North Carolina (UNC) and finds that they fail that searching review, I join the majority opinion in full. I write separately to offer an originalist defense of the colorblind Constitution; to explain further the flaws of the Court’s Grutter jurisprudence; to clarify that all forms of discrimination based on race—including so-called affirmative action—are prohibited under the Constitution; and to emphasize the pernicious effects of all such discrimination. . . .
It is error for a court to defer to the views of an alleged discriminator while assessing claims of racial discrimination. . . . In employment discrimination lawsuits under Title VII of the Civil Rights Act, for example, courts require only a minimal prima facie showing by a complainant before shifting the burden onto the shoulders of the alleged discriminator employer. . . .
This judicial skepticism is vital. History has repeatedly shown that purportedly benign discrimination may be pernicious, and discriminators may go to great lengths to hide and perpetuate their unlawful conduct. Take, for example, the university respondents here.
Thomas knows that universities are going to try to squirm out of complying with this decision. He's given plaintiffs a great quotable phrase here, useful for effect even though it's just in a concurrence:
This Court has only recognized one interest as compelling: the educational benefits of diversity embraced in Grutter. Yet, as the universities define the “diversity” that they practice, it encompasses social and aesthetic goals far afield from the education-based interest discussed in Grutter.
"Aesthetic" is hugely important. I really think most professors support affirmative action because it offends their sense of aesthetics to have a small percentage of black students or a large percentage of Asian students. They talk about systemic racism or compensation or educational value, but I don't think they even know their real motivations. They feel like if they don’t have lots of black students, they must be racist. They admit unqualified black students and give them low grades and that makes them feel even worse. So they admit even more unqualified black students to show they’re not grading them down because they’re racist. It’s a vicious cycle, and it’s all about the professors view of themselves, not about the black students, who are cannon fodder in the culture war.
The dissents too attempt to stretch the diversity rationale, suggesting that it supports broad remedial interests. See, e.g., post, at 23, 43, 67 (opinion of SOTOMAYOR, J.) (noting that UNC’s black admissions percentages “do not reflect the diversity of the State”; equating the diversity interest under the Court’s precedents with a goal of “integration in higher education” more broadly; and warning of “the dangerous consequences of an America where its leadership does not reflect the diversity of the People”); post, at 23 (opinion of JACKSON, J.) (explaining that diversity programs close wealth gaps). But language—particularly the language of controlling opinions of this Court—is not so elastic. See J. Pieper, Abuse of Language—Abuse of Power 23 (L. Krauth transl. 1992) (explaining that propaganda, “in contradiction to the nature of language, intends not to communicate but to manipulate” and becomes an “[i]nstrument of power” (emphasis deleted)). The Court refuses to engage in this lexicographic drift, seeing these arguments for what they are: a remedial rationale in disguise.
Well called. Racial discrimination is supposed to serve education, said Grutter, not to close wealth gaps or to make leaders representative or to integrate higher education.
Harvard and UNC now forthrightly state that they racially discriminate when it comes to admitting students, arguing that such discrimination is consistent with this Court’s precedents. And they, along with today’s dissenters, defend that discrimination as good.
Such a powerful use of italics!
Arguments for the benefits of race-based solutions have proved pernicious in segregationist circles. Segregated universities once argued that race-based discrimination was needed “to preserve harmony and peace and at the same time furnish equal education to both groups.” . . .
“Virginia has established segregation in certain fields as a part of her public policy to prevent violence and reduce resentment. The result, in the view of an overwhelming Virginia majority, has been to improve the relationship between the different races”)
Are you really against peace and harmony? Do you like violence and resentment? Don’t you want to improve race relations? If you opposed segregation in the 1950’s, the universities said you must be an awful person. And they’re the experts. What do Northerners know of the lived experience, the generational identity, of the Southerner?
if our history has taught us anything, it has taught us to beware of elites bearing racial theories. . . .
We cannot now blink reality to pretend, as the dissents urge, that affirmative action should be legally permissible merely because the experts assure us that it is “good” for black students. Though I do not doubt the sincerity of my dissenting colleagues’ beliefs, experts and elites have been wrong before . . .
Far from advancing the cause of improved race relations in our Nation, affirmative action highlights our racial differences with pernicious effect. In fact, recent history reveals a disturbing pattern: Affirmative action policies appear to have prolonged the asserted need for racial discrimination. Parties and amici in these cases report that, in the nearly 50 years since Bakke, 438 U. S. 265, racial progress on campuses adopting affirmative action admissions policies has stagnated, including making no meaningful progress toward a colorblind goal since Grutter. . . .
What, then, would be the endpoint of these affirmative action policies? Not racial harmony, integration, or equality under the law. Rather, these policies appear to be leading to a world in which everyone is defined by their skin color, demanding ever-increasing entitlements and preferences on that basis. . . .
Universities’ racial policies suggest that racial identity “alone constitutes the being of the race or the man.” J. Barzun, Race: A Study in Modern Superstition 114 (1937). That is the same naked racism upon which segregation itself was built . . . .
Racialism simply cannot be undone by different or more racialism.
Thomas is making the point that 1940’s segregationists and the 2020’s liberals are really very similar: they think race is important, and the people in power should be allowed to make a person’s race more important than anything else.
Alas, then Thomas makes an about-face. He actually endorses the pretexts that the University of California uses to reduce the number of Asian college students!
Universities prohibited from engaging in racial discrimination by state law continue to enroll racially diverse classes by race-neutral means. For example, the University of California purportedly recently admitted its “most diverse undergraduate class ever,” despite California’s ban on racial preferences ...
I doubt anyone on the Supreme Court would allow a company to get away with recruiting only a certain number of students from each high school, even if a black school had many more qualified applicants, so as to get the desired racial mix. But that is the California plan: stop using objective test scores and use inflated grades so that the university starts admitting more students from bad high schools and fewer from good ones.
Gorsuch concurrence.
Today, the Court holds that the Equal Protection Clause of the Fourteenth Amendment does not tolerate this practice. I write to emphasize that Title VI of the Civil Rights Act of 1964 does not either.
Technical and perhaps useful, but do we want to read through it? He has a good footnote, though:
Cavanaugh concurrence.
I add this concurring opinion to further explain why the Court’s decision today is consistent with and follows from the Court’s equal protection precedents. . . .
Constitutional law is the least consistent, least intelligent, and most political kind of law. That’s why students like to publish it in law reviews: you don’t need to be very good at law to do con law. Since it has so little legitimacy, it has to try harder for the pretence of legitimacy by using sophistry to reconcile its shifting views and sloppy writing. So let’s skip over Cavanaugh’s rationalizations too.
JUSTICE SOTOMAYOR, JUSTICE KAGAN, and JUSTICE JACKSON disagree with the Court’s decision. I respect their views.
This part of Cavanaugh’s concurrence did catch my eye. It’s dishonest flattery. I can’t believe he really respects their views. If he does, he should be ashamed of himself. You can’t respect their views and those of the majority at the same time. This is not a case where there are good arguments on both sides. There are simple arguments on both sides, and you have to choose which you favor, law or power.
Sotomayor dissent.
Black people were the targeted beneficiaries of the Bureau’s programs, especially when it came to investments in education in the wake of the Civil War.
That's because it’s the *Freedmen's* Bureau. Not a lot of whites were freedmen.
Howard University was designed to provide “special opportunities for a higher education to the newly enfranchised of the south,” but it was available to all Black people, “whatever may have been their previous condition.”
True. Maybe it was open to white people too. In any case, it would have been impractical to ask to see an applicant's certificate of slavehood before you allowed hi in, since such certificates didn't exist.
Section 2 established criminal penalties for subjecting racial minorities to “different punishment . . . by reason of . . . color or race, than is prescribed for the punishment of white persons.” Ibid. In other words, the Act was not colorblind.
This is just stupid. Section 2 said that it was a crime to punish racial minorities differently from white persons. That makes it "not colorblind"? I'm honestly puzzled by how Sotomayor could write this.1 We do get a clue from what comes next:
By using white citizens as a benchmark, the law classified by race and took account of the privileges enjoyed only by white people. As he did with the Freedmen’s Bureau Act, President Johnson vetoed the Civil Rights Act in part because he viewed it as providing Black citizens with special treatment. See Messages and Papers 408, 413 (the Act is designed “to afford discriminating protection to colored persons,” and its “distinction of race and color . . . operate[s] in favor of the colored and against the white race”).
That's supposed to explain the previous sentences. But it doesn't. Probably she got the idea that laws mandating colorblindness aren’t colorblind from President Andrew Johnson, as quoted, but it isn't a good idea to base legal reasoning on the words of a disgraced President who didn't even know how to read till his wife taught him. Anyway, the 14th Amendment was ratified in 1868, two years after Johnson wrote this, precisely to answer people like him who said that under the Constitution, states were perfectly free to discriminate by race, whether slavery existed or not.
“Like all great historical transformations,” emancipation was a movement, “not a single event” owed to any single individual, institution, or political party. E. Foner, The Second Founding 21, 51–54 (2019) (The Second Founding).
Eric Foner’s father and uncle were both Communist Party members and he is known for his own radicalism. Emancipation was not a single event, but at least two—the Emancipation Proclamation and the 13th Amendment (recall that not all territory was covered by the Emancipation Proclamation, e.g., Kentucky and Delaware). Both events were owing completely to the Republican Party, over opposition by the Democratic Party. The Emancipation Proclamation was issued by President Lincoln, a Republican. A Democratic Representative proposed a resolution that the act was unconstitutional. All 45 Democrats voted for it; all 90 Republicans voted against it. The vote on whether to pass the 13th Amendment abolishing slavery was also on party lines. In the Senate, all 30 Republicans voted yes, but just 8 of 14 Democrats. In the House, all 86 Republicans voted yes, but just 15 of 65 Democrats. In both cases, these were just the Northern Democrats— the Southern Democrats weren’t voting, and they would all have voted against it. Emancipation was completely owing to the Republican Party.
Put simply, society remains “inherently unequal.” Brown, 347 U. S., at 495. Racial inequality runs deep to this very day. That is particularly true in education, the “‘most vital civic institution for the preservation of a democratic system of government.’”
Harvard, like other Ivy League universities in our country, “stood beside church and state as the third pillar of a civilization built on bondage.” C. Wilder, Ebony & Ivy: Race, Slavery, and the Troubled History of America’s Universities 11 (2013). . . .
By contrast, an average of three Black students enrolled at Harvard each year during the five decades between 1890 and 1940. . . .
I wonder how many Norwegian-Americans enrolled between 1890 and 1940? As many as three per year? I doubt it. Three per year sounds pretty good to me.
The historical discussion of racial integration at the Ivy League “is necessarily male-centric,” given the historical exclusion of women of color from these institutions.
Weird. Harvard excluded all women, not just women of color. Harvard was the boys’ school. Girls went to Radcliffe, a few blocks away.
Harvard has reported that “far too many black students at Harvard experience feelings of isolation and marginalization,” 3 id., at 1308, and that “student survey data show[ed] that only half of Harvard undergraduates believe that the housing system fosters exchanges between students of different backgrounds.”
Evidence for Thomas’s point that racial preferences have hurt rather than helped. Remember, Justice Sotomayor this status quo of “isolation and marginalization” is what you’re supporting here.
Court does not even attempt to make the extraordinary showing required by stare decisis. The Court simply moves the goalposts, upsetting settled expectations and throwing admissions programs nationwide into turmoil.
Not at all. Racial discrimination has been illegal for quite some time; it’s just that colleges break the law routinely and just don’t get sued. It was the same with the old segregation. Plessy v. Ferguson required equal facilities for blacks and whites (“separate but equal” was the law), but blacks didn’t sue, early on, when that was routinely violated. They did start to sue in the 1940’s, and segregation was in big trouble as a result even before Brown. But courts would have laughed at segregationists who in 1950 said, “Well, we haven’t had equal spending on schools for black children for fifty years now and it’s really upsetting for you to object all of a sudden.”
Enough of baloney. Most of Sotomayor’s opinion is just whining about the court breaking with precedent, or pretence that Harvard really isn’t using race at all even though it also is essential that it use race.
Jackson dissent.
Gulf-sized race-based gaps exist with respect to the health, wealth, and well-being of American citizens. They were created in the distant past, but have indisputably been passed down to the present day through the generations. Every moment these gaps persist is a moment in which this great country falls short of actualizing one of its foundational principles—the “self-evident” truth that all of us are created equal.
Jackson is saying that the 14th amendment mandates equal incomes for blacks, whites, South Asians, East Asians, and hispanics. South Asians may be richers, but their advantages were “created in the distant past, but have indisputably been passed down to the present day through the generations”. One generation, maybe.
Students for Fair Admissions (SFFA) has maintained, both subtly and overtly, that it is unfair for a college’s admissions process to consider race as one factor in a holistic review of its applicants.
This contention blinks both history and reality in ways too numerous to count. But the response is simple: Our country has never been colorblind. Given the lengthy history of state-sponsored race-based preferences in America, to say that anyone is now victimized if a college considers whether that legacy of discrimination has unequally advantaged its applicants fails to acknowledge the welldocumented “intergenerational transmission of inequality” that still plagues our citizenry.
Jackson believes in power, not law. “You whites used to have power, and now we have it, and we’re going to do to you what you did to us. Power is what makes people rich and educated, and now we’re going to make our people rich and educated, not yours. It’s only fair to take turns.”
Black men are twice as likely to die from prostate cancer as White men and have lower 5-year cancer survival rates. Uterine cancer has spiked in recent years among all women—but has spiked highest for Black women, who die of uterine cancer at nearly twice the rate of “any other racial or ethnic group.” Black mothers are up to four times more likely than White mothers to die as a result of childbirth. And COVID killed Black Americans at higher rates than White Americans.
What resentment! What bitterness against whites!
Even prostate cancer has to be blamed on the white man.
Meanwhile—tying health and wealth together—while she lays dying, the typical Black American “pay[s] more for medical care and incur[s] more medical debt.”
All of Jackson’ facts are unreliable, and this is one of the silliest. Do we really believe that Black Americans pay more for medical care than whites? Jackson has just been saying how poor and unprovided for Black Americans are, and suddenly we find that they are paying more for medical care than those rich whites and Asians.
Notice how many footnotes she has. I think some high-school teacher told her once to always backup her arguments: that if you say something crazy but put a footnote to somewhere on the Internet, that makes it true; just don’t use Wikipedia.
A reader of today’s majority opinion could be forgiven for misunderstanding how UNC’s program really works, or for missing that, under UNC’s holistic review process, a White student could receive a diversity plus while a Black student might not.
Ha ha ha! And in theory, under her holistic hiring process, Justice Jackson might hire Eric Rasmusen as one of her clerks. I guess this is why Thomas stressed “judicial skepticism”.
Beyond campus, the diversity that UNC pursues for the betterment of its students and society is not a trendy slogan. It saves lives. For marginalized communities in North Carolina, it is critically important that UNC and other area institutions produce highly educated professionals of color. Research shows that Black physicians are more likely to accurately assess Black patients’ pain tolerance and treat them accordingly (including, for example, prescribing them appropriate amounts of pain medication). For high-risk Black newborns, having a Black physician more than doubles the likelihood that the baby will live, and not die.
This is the “blood libel” section much commented on. Jackson accuses white doctors of caring so little for black babies that they double the death rate, negligence far in excess of what would be required to prove them all guilty of medical malpractice, malpractice so bad they should lose their licenses. Research shows that! Note, too, how she says the way to help black mothers is to give them doctors with grades and test scores were so low none of them would have gotten in except for being black. (None? Am I exaggerating? I bet not— I dare UNC to reveal their admissions data. There are black medical school applicants plenty good enough to get into UNC— but those students end up at Johns Hopkins and Harvard, not UNC.)
With let-them-eat-cake obliviousness, today, the majority pulls the ripcord and announces “colorblindness for all” by legal fiat.
Jackson doesn’t believe justice should be blind; she thinks it needs to tip the scale, because otherwise the evidence wouldn’t give the outcome she wants.
Simply put, the race-blind admissions stance the Court mandates from this day forward is unmoored from critical real-life circumstances.
She keeps saying this about real-life circumstances. What she means is, neutral rules don’t come out with the results she wants. She thinks you always need a judge to add subjectivity so as to get the right result. I would not want her as a referee in a sports match.
What Happens Next?
What will happen next? This case really isn’t such a big deal. It reiterates that you’re not supposed to discriminate by race, merely closing the Grutter loophole that if discrimination improves the educational experience it’s OK, when nobody really believes that discrimination improves the educational experience. Colleges have long been evading the law and illegally discriminating, and they will continue to do so. It maybe be more costly now, though, because they can’t use race as obviously as Harvard did. The South resisted desegregation with the Massive Resistance movement of the 1950’s. The universities have been doing the same, but much more successfully because hardly anybody sues, in part because everyone knows the judges are liberals, which worked to the detriment of the old racists but to the advantage of the modern racialists.
What I do wonder, right now, is whether there will be a hurricane of class-action lawsuits against Harvard and North Carolina, the losers in this particular case. Usually, the problem is to prove racial discrimination. If illegal conduct has been proved already, follow-up lawsuits are easy and profitable. In anti-monopoly suits, for example, if the government prosecutes a company for shady practices and wins, the loss to the company isn’t really the fines it has to pay to the government. Rather, its the follow-up suits by all the customers, who in that kind of case are entitled to triple the damage they suffered from the illegally-caused high prices. The government did the heavy lifting of generating all the evidence of liability; all the remains is the delicious task of deciding exactly how many million dollars in damages the customers suffered.
Here, I’m not sure what the technical legal position is; I don’t know this area of law well enough. The Supreme Court has said that the law says universities can’t discriminate. I don’t know whether it said
The judgments of the Court of Appeals for the First Circuit and of the District Court for the Middle District of North Carolina are reversed.
But what does that mean?
Let’s go back to the procedural history:
Trial in the Harvard case lasted 15 days and included testimony from 30 witnesses, after which the Court concluded that Harvard’s admissions program comported with our precedents on the use of race in college admissions. See 397 F. Supp. 3d, at 132, 183. The First Circuit affirmed that determination. See 980 F. 3d, at 204. Similarly, in the UNC case, the District Court concluded after an eight-day trial that UNC’s admissions program was permissible under the Equal Protection Clause. 567 F. Supp. 3d, at 588, 666. We granted certiorari in the Harvard case and certiorari before judgment in the UNC case. 595 U. S. ___ (2022).
Okay. So what has been reversed? For Harvard, it’s “Harvard’s admissions program comported with our precedents on the use of race in college admissions.” For UNC, it’s “that UNC’s admissions program was permissible under the Equal Protection Clause.” So Harvard didn’t comport, and UNC wasn’t permissible. But what comes next? These are lawsuits, after all, and the Supreme Court is saying that the lower courts misinterpreted the law, which presumably means the trials have to be redone, or, more likely, the cases have to go back to the District Courts and have the judges apply the law correctly and see if the result comes out differently. And there’s the question of attorney’s fees too— do the plaintiff get their fees paid, at least their fees for the appellate portion of the cases? The Supreme Court spends 237 pages without saying what exactly they’re telling everybody to do now.
So maybe now is the time for the class-action suits, maybe later.
What Happens to the Amici Universities Who Have Admitted Unlawful Behavior, e.g., MIT?
As I said, the hard part in a discrimination lawsuit is proving that someone discriminated against you on the basis of race, rather than just on other motives. Harvard and UNC are in big trouble now. How about other universities? I am an MIT alum (PhD ‘84) and interested in what it’s doing— I am a Director of MFSA, the MIT Free Speech Alliance. MIT submitted an amicus brief on Harvard’s side (I’m Yale ‘80 too, but Yale isn’t an amicus of Harvard). In that brief, MIT makes some pretty damning admissions:
In selecting the students who will be offered admission, MIT does not use any quotas or targets, and does not engage in racial or ethnic balancing. Instead, MIT considers all aspects of each candidate’s background, including racial and ethnic factors (on a nondeterminative basis) among many other factors both qualitative and quantitative. . . .
MIT and Stanford, like Respondents, continue to observe that holistic, race-conscious admissions processes remain essential to achieve the benefits of student body diversity, particularly in STEM programs—and no race-neutral alternative currently provides a workable means of achieving this critical objective. . . .
A total prohibition on the consideration of race as part of the admissions process would be a dramatic upheaval of academic freedom in this country—nullifying MIT and Stanford’s right to make basic academic judgments that are entitled to constitutional protection. . . .
Rather, Amici account for race as “one factor among many” in the assessment of individuals and development of an incoming class from among an over-abundance of qualified candidates. . . .
As MIT and Stanford’s peer universities have noted, facially race-neutral approaches to admissions at their institutions do not currently provide a “workable means” for higher educational institutions to attain the “benefits of diversity” that they seek. . . .
Although socio-economic factors are considered in the holistic admissions process and help to foster diversity among certain important dimensions, they would not achieve the compelling interest Amici have in achieving a racially diverse student body, including in STEM disciplines. . . .
MIT and Stanford employ admissions processes that identify a set of highly qualified and capable applicants, admitting a subset of this group after conducting a holistic evaluation of each individual applicant, with the goal of creating a class that will best support their educational aims. As part of this evaluation, MIT and Stanford consider race, along with many other factors. Were university Amici constrained from doing so, they would be severely impaired in their ability to identify the most promising candidates available, and enroll a diverse student body. . . .
The gradual nature of these incremental improvements underscores the need to continue implementing race-conscious, holistic admissions programs. Achieving university Amici’s educational missions in these vitally important fields of study—including with respect to Amici’s recognized compelling interest in enrolling a diverse student cohort and in educating a diverse cadre of future leaders in STEM fields—is simply impossible without some consideration of race as part of the admissions process.
There you are— admission in court, in a carefully considered submission, that MIT discriminates on the basis of race, in a way that the Supreme Court just said is illegal. Go back to the essential paragraph:
Both programs lack sufficiently focused and measurable objectives warranting the use of race, 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. . . . A benefit to a student who overcame racial discrimination, for example, must be tied to that student’s courage and determination. . . . In other words, the student must be treated based on his or her experiences as an individual—not on the basis of race.
MIT said it used race as a factor. Not the student’s courage and determination. Not his or her experiences as an individual. MIT did not say directly that it used “Asian” or “White” as a factor, but if “Black” is a positive, “Asian” is unavoidably a negative. And the court said that “diversity”, even if it were essential to a good science education, for which we only have MIT’s implausible claim, isn’t a legal excuse for racial discrimination. As Thomas pointed out, the segregationists in the 1950’s also said racial discrimination was necessary for a good education, and the courts didn’t just accept their claims that evidence was unnecessary because the colleges were experts and academic freedom required the courts to let the colleges decide.
So let the class-action suits begin. A suit against MIT will require MIT to publicly disclose how it’s deciding to admit students, something it has kept as the darkest of secrets, and something many of us have been curious about. 2
If you liked this post, you might like How the Ellsberg Paradox and Unknown Unkowns Apply to the Supreme Court's Stay Grant in NetChoice v. Paxton (TechLords v. Texas) or Hunter Biden Federal Prosecutor Questions, and Some Others
Though see Jeffrey Rosen’s 2009, “The Case Against Sotomayor,” in The New Republic, which worried that she didn’t have the brains to help liberals on the Supreme Court except via her vote. To be sure, standing up for racial discrimination is a hard assignment, one someone smart would have avoided. Notice which liberal justice dissented but didn’t write an opinion.
Technical legal question: Civil suits have statutes of limitations, maybe 3 years typically. When would these start to run? Would application of equitable tolling result in the statute starting to run from the day of the Supreme Court decision? Or from the day you’re called up by a lawyer telling you you were discriminated against? (Wikipedia: “Equitable tolling is a common principle of law stating that a statute of limitations shall not bar a claim in cases where the plaintiff, despite use of due diligence, could not or did not discover the injury until after the expiration of the limitations period.”)
Excellent analysis. A miniscule quibble is that you refer to Thomas' "dissent." It is a concurrence, as you note elsewhere. Your analysis and the concurring opinions are all enjoyable reads.