Paul L. Caron

Wednesday, July 5, 2023

More Legal Education Reaction To The Supreme Court's Affirmative Action Decisions

Following up on last Friday's post, Legal Education's Reaction To The Supreme Court's Affirmative Action Decisions:  

New York Times Op-Ed:  With End of Affirmative Action, a Push for a New Tool: Adversity Scores, by Stephanie Saul:

For the head of admissions at a medical school, Dr. Mark Henderson is pretty blunt when sizing up the profession.

“Mostly rich kids get to go to medical school,” he said.

In his role at the medical school at the University of California, Davis, Dr. Henderson has tried to change that, developing an unorthodox tool to evaluate applicants: the socioeconomic disadvantage scale, or S.E.D.

The scale rates every applicant from zero to 99, taking into account their life circumstances, such as family income and parental education. Admissions decisions are based on that score, combined with the usual portfolio of grades, test scores, recommendations, essays and interviews.

The disadvantage scale has helped turn U.C. Davis into one of the most diverse medical schools in the country — notable in a state that voted in 1996 to ban affirmative action.

With the Supreme Court’s ruling last week against race-conscious admissions, the medical school offers a glimpse of how selective schools across the country might overhaul their admissions policies, as they look for alternative ways to achieve diversity without running afoul of the new law.

Word has gotten out about the U.C. Davis scale. Dr. Henderson said that about 20 schools had recently requested more information. And there are other socioeconomic measurements, including Landscape, released in 2019 from the College Board, the nonprofit that administers the SATs. That tool allows undergraduate admissions offices to assess the socioeconomic backgrounds of individual students.

But skeptics question whether such rankings — or any kind of socioeconomic affirmative action — will be enough to replace race-conscious affirmative action. And schools that use adversity scales may also find themselves wandering into legal quagmires, with conservative groups promising to fight programs that are simply stand-ins for race.

Last week, President Biden called adversity scores a “new standard” for achieving diversity.

Paul Horwitz (Alabama), The Times Fails at History and Irony at the Same Time:

Anyone who writes about affirmative action ought to know about Bakke. I offer no view on the ultimate survivability of the policy discussed in today's story. But any soi-disant great newspaper whose lead headline could be rephrased as "UC-Davis Medical School Confident About its Admissions Scheme," and which does not so much as mention Bakke, clearly needs to work on its sense of history, irony, and basic quality. 

Jeannie Suk Gersen (Harvard), After Affirmative Action Ends:

What if schools move, as many surely will, to obey by adopting race-neutral measures—for example, deëmphasizing test scores, or boosting applicants from poorly funded high schools—that are designed to produce racial diversity, trying to create some semblance of what they achieved when using affirmative action? Would those moves be lawful? This will almost certainly be the next big question about admissions, as lawsuits will likely be filed claiming that race-neutral policies devised with diversity outcomes in mind are racially discriminatory. ...

What is most likely is that a conservative imperative to narrow the efficacy of discrimination complaints will unite with a liberal imperative to protect underrepresented racial minorities against the complaints of overrepresented ones, resulting in a resoundingly bipartisan judicial rejection of such discrimination claims. But it’s conceivable that the conservative Court, after ending affirmative action, may be open to making it easier for plaintiffs to prevail on complaints about race-neutral efforts to seek racial diversity. ... If so, this development may, ironically, also have the knock-on effect of easing the path for discrimination plaintiffs more generally—an outcome that civil-rights advocates have sought for decades.

One of the liberal judges on the Fourth Circuit panel [in the case of Thomas Jefferson High School for Science and Technology], Toby J. Heytens, was a law clerk for Justice Ginsburg during Grutter v. Bollinger (2003), the case that the Court is now poised to overrule. In his concurrence on the T.J. case, Judge Heytens pointed out that the school’s admissions policy “bears more than a passing resemblance” to the race-neutral system that Justice Alito approvingly proposed for U.T. in his dissent in Fisher: guaranteeing admission to the top ten per cent of each high school’s graduating class combined with a race-blind holistic review of all other applicants. As Heytens aptly remarked, “Having spent decades telling school officials they must consider race-neutral methods for ensuring a diverse student body before turning to race-conscious ones, it would be quite the judicial bait-and-switch to say such race-neutral efforts are also presumptively unconstitutional.” In this new world, there is yet another judicial bait and switch to watch, wherein liberal judges, almost by necessity, find it extremely easy to rationalize and brush past evidence of possible discrimination against Asian Americans in just the way that conservative judges have often done with discrimination against Black people. 

David Lat (Original Jurisdiction), Technicalities

I have three quick thoughts. First, if I’m the general counsel of a university, I’d tell my client to immediately avail itself of the option now offered on the widely used “Common App” to hide an applicant’s race from admissions officers. That would seem to be a floor at least in terms of attempted compliance with the ruling.

Second, I think the best argument against the Harvard and UNC programs is actually made in Justice Gorsuch’s concurrence (and conservative lawyer Jonathan Mitchell’s amicus brief, as well as Justice John Paul Stevens’s opinion in Regents of the University of California v. Bakke): reject the claim that the Fourteenth Amendment and Title VI require the same analysis, since the two provisions have completely different language and history, and reject affirmative action based on the plain language of Title VI, which prohibits “discrimination” “on the ground of race” in any program receiving federal funding. This much cleaner approach completely obviates the need to argue over whether the Fourteenth Amendment was “colorblind,” which reasonable minds can disagree upon. I do not think reasonable minds can disagree upon the fact that under affirmative action, some students—especially Asian-American students—are being “discriminat[ed]” against “on the ground of race.”

Third, I think the best argument in defense of affirmative action would be to overrule the Bakke/Grutter holding that justifies affirmative action based on “diversity,” then endorse a remedial or reparations-based theory instead—which can be defended based on the text, history, and tradition of the Fourteenth Amendment. Yes, it’s debatable, but it’s a closer debate—as you can see from comparing Justice Thomas’s concurrence, an originalist defense of the majority’s position, with Justice Sotomayor’s dissent. But it would produce a different form of affirmative action, discarding the superficial, “visual diversity” approach I have decried and replacing it with one that gives benefits only to applicants who are descended from either enslaved persons in the United States or Native Americans.

Josh Blackman (South Texas), Say Farewell To The "Diversity Benefits" Rationale For Affirmative Action:

For nearly five decades, affirmative action was sustained on the opinion of Justice Louis Powell. The key vote in Bakke thought that a diverse student body could improve learning on campus. Ultimately, Grutter adopted Justice Powell's rationale, and held that universities have a compelling interest to pursue the educational benefits that flow from a diverse student body. That simple premise spawned an entire institution around "diversity." Universities were forced to frame every decision they took in terms of using "diversity" as a way to help students learn. Of course, the real justification for affirmation action could be found in Justice Marshall's Bakke opinion. He grounded racial preferences for black students (and not other races) in the centuries of oppression, slavery, segregation, and discrimination. Indeed, the "educational benefits" approach tokenized minority students as curiosities for white students to learn from. Advocates for affirmative action had to grit their teeth to stay in the good graces of old white folk like Justices Powell and O'Connor.

Fast forward to Students for Fair Admissions. The majority opinion did not formally reverse Grutter—though I agree with Justice Thomas that the precedent is all but overruled. Still, the "educational benefits" rationale seems to have been nullified. ...

After SFFA, are there any actual educational benefits that flow from diversity, which could be considered an articulable compelling interest? I don't think so. ...

Going forward, can we drop the "educational benefits" charade? No one ever actually believed that racial preferences were justified by those purported benefits. But if not "educational benefits," then what compelling interest would suffice? The more I read the Chief's opinion, the more I conclude that no interest would suffice. Instead, admissions officers will have to go beyond trying to satisfy strict scrutiny. They will focus on this paragraph, and this paragraph alone, to consider race indirectly through the only means allowed:

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. 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 (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.

In any event, we can finally say farewell to the "educational benefits" rationale. You will not be missed.

Eric Segall (Georgia State), The Year of "To be Continued" at the Supreme Court:

One important aspect of the Court's cases this term that so far has gone mostly unnoticed, however, is how much uncertainty these opinions have created and how much discretion lower court judges will have in the future to decide important cases based on the judges' values and politics--not text, history, or precedent. That result is especially unnerving given that just last term the Court said in Bruen that text and history, not concerns for consequences, are the lodestar of constitutional interpretation. Well, this term the lodestars of text and history gave way to a dark black hole of unclear precedent based on the justices' policy preferences.

At the end of the affirmative action cases in which the six conservatives declared the admissions policies at Harvard and UNC illegal, Chief Justice Roberts said the following:

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. But ... universities may not simply establish through application essays or other means the regime we hold unlawful today.... W]hat cannot be done directly cannot be done indirectly.... 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. 

So university admissions committees may look at and consider how race affected a specific person's life but are not allowed to take race into account generally. Leaving aside that nothing in the text or history of the 14th Amendment could possibly suggest such a bizarre dichotomy, there will undoubtedly be endless litigation over what the above-quoted paragraph means.

Additionally, the Court's reference to universities not being allowed to do indirectly what they are prohibited from doing directly suggests that facially race-neutral policies designed to increase diversity, such as Top-10% programs, may now be unconstitutional. In short, the debates over affirmative action in the courts are far from over, and much more work needs to be done to actually implement the Court's anti-historical, non-textual embrace of color-blindness as a strong constitutional principle.

Richard M. Re (Virginia), Did Justice Jackson Actually Recuse from Students for Fair Admissions v. Harvard?:

The Supreme Court’s decision in Students for Fair Admissions v. Harvard will be remembered as a major decision striking at affirmative action in higher education, but the case’s footnotes tell an additional story—about the hollowness of the justices’ recusal practices.

Justice Ketanji Brown Jackson recused from the Harvard case because of her past service on that university’s Board of Overseers. Yet the first page of her dissenting opinion is prominently captioned with the Harvard dispute’s full name and case number. Citations to the Harvard case also appear at the top of every subsequent page of Jackson’s opinion.

Chief Justice John Roberts’s opinion for the Court tells a similar story. Like Jackson, Roberts leads off with a caption identifying the Harvard case. And Roberts includes several footnotes and passages that spar with Jackson, reciting her arguments and offering counterpoints. So anyone who read drafts of the Harvard decision had to encounter Jackson’s criticisms.

These facts make it hard to deny that Jackson participated in the consideration of the Harvard case. Again, Jackson read a draft of the majority opinion in that case. She wrote an opinion criticizing the core reasoning of the majority’s draft. And the final version of the opinion for the Court in the case expressly responds to her objections. ...

[T]he problem here is not just with Justice Jackson but also with the rest of the Court. The majority justices in particular should have arranged their work so as to maximize Justice Jackson’s valuable participation without jeopardizing or undermining her recusal. Their collective failure to do so has turned recusal into a farce.

The Harvard case could be viewed as the latest example of how the justices circumvent or dilute their ethical obligations. Nobody is supposed to be a judge in her own case, yet the justices are usually left to make their own decisions about recusal. The predictable result is that the justices judge themselves leniently, leading critics to cry foul.

And so recusal practices at the Supreme Court are almost entirely hollow. The Harvard case is just another illustration of their formality and general ineffectiveness.

Josh Blackman (South Texas), In Defense of KBJ's Harvard "Recusal":

On the lower courts, recusal means a judge has no contact with a case. Zero. She does not even see draft opinions that are being circulated. But on the Supreme Court, the practice apparently is different. The question turns on what "consideration or decision" means. Does that mean a Justice is hermetically sealed from a case? Or are the rules looser in a big case? I know it is en vogue to attack the Justices as ethically challenged, but here we have a clear case where a Justice said she would recuse, all nine Justices agreed she "took no part in the consideration or decision of the case," yet she obviously had at least some involvement.

Richard Re expresses a similar skepticism:  "These facts make it hard to deny that Jackson participated in the consideration of the Harvard case. " ... Richard goes one step further, and suggests that the Court had some sort of obligation to restructure the case so that Justice Jackson could fully participate, without any ruses:  "The majority justices in particular should have arranged their work so as to maximize Justice Jackson's valuable participation without jeopardizing or undermining her recusal. Their collective failure to do so has turned recusal into a farce."

Here, I'll defend Justice Jackson—or more precisely, the principle that the Supreme Court needs to follow different recusal rules than the lower courts. ... With regard to Justice Jackson, the Supreme Court's internal ethics protocols worked exactly [as] they were designed.

David B. Owens (University of Washington), It’s Not As Bad As You Think, Maybe:

Over the course of 237 pages, the Supreme Court’s recent decision forbidding the use of race in school admissions (the Harvard-UNC Cases) is already inspiring significant discussion, including debates about college admissions, history, and precedent. ...

Other scholars will undoubtedly write about the impacts of this case on constitutional law, about affirmative action more generally, etc. I am not a race scholar. I am a civil rights attorney. As a result, perhaps, my responses to the decision offer a perspective that might not be the focus of other commentary and may not make the highlight reels.

I offer five quick points.  In the end, while I had many fears about the scope of this decision beyond the question of affirmative action, the decision is more narrow than it may feel at first blush. The Harvard-UNC Cases are not as significant, for example, as Dobbs last term or other cases under the Roberts Court (like Citizens United, in my view) that have dramatically changed our society. 

Eugene Volokh (UCLA), A Lawyer Who Litigated Grutter Comments on the Court's College Admission Racial Preferences Cases:

I've known Michael Rosman at the Center for Individual Rights for almost 30 years; he has litigated many important cases, including with regard to racial preferences, and was one of the lawyers in Grutter v. Bollinger. I'm therefore delighted to pass along his short reactions to Students for Fair Admission v. Harvard and Students for Fair Admission v. UNC, focused on the Court's opinion and the concurrences.

Ilya Somin (George Mason), The Case for Abolishing Legacy Preferences in College Admissions:

The Supreme Court's recent ruling against racial preferences in higher education admissions has heightened longstanding controversy over "legacy" preferences that benefit children of alumni. Figures as varied as President Biden and GOP Senator and presidential candidate Tim Scott have called for their abolition.

Today, Lawyers for Civil Rights, together with several other groups, filed a complaint against Harvard with the Department of Education Office of Civil Rights, arguing that OCR should force Harvard to stop the practice because it disproportionately benefits white applicants at the expense of other groups, and thereby violates Title VI of the Civil Rights Act of 1964 (which forbids racial discrimination in education programs receiving federal funds). On Twitter, prominent left-wing Democratic Rep. Alexandra Ocasio-Cortez opined that "[i]f SCOTUS was serious about their ludicrous 'colorblindness' claims, they would have abolished legacy admissions, aka affirmative action for the privileged."

I am skeptical that LCR's complaint will prevail, unless they can prove that Harvard's legacy preferences were adopted or maintained for the purpose of benefiting whites (or keeping out non-whites). Title VI (and other current federal laws) do not ban legacy preferences as such. And courts are unlikely to invalidate them merely because they disproportionately help white applicants relative to those from other groups. As for AOC, the issue of legacy preferences was not before the Supreme Court in the cases it heard, and there was nothing the justices could have done to abolish that policy.

That said, legacy preferences are indeed a kind of "affirmative action for the privileged," just as AOC says. And they are unjust for much the same reasons as racial and ethnic preferences are. In both cases, some applicants are rewarded and others punished for arbitrary circumstances of ancestry that they have no control over, and that have no connection to academic or other skills that might make them better students or better members of the university community. The fact that your parents were black, white, or Latino says nothing about how good an applicant you are. And the same goes for the fact that mommy or daddy went to Harvard (or didn't). ...

 A number of elite schools, such as Johns Hopkins, MIT, and my undergrad alma mater Amherst College, have recently abolished legacy preferences with few if any ill effects. ...

[L}egacy preferences probably aren't illegal under current law. But nothing prevents us from getting rid of them. State governments would do well to ban them at their public universities. And private schools would do well to voluntarily follow the example of Amherst, Johns Hopkins, and MIT.

Gerard Magliocca (Indiana-McKinney), The Constitutionality of Legacy Preferences:

In the wake of the Court's affirmative action decision, a federal lawsuit was filed on Friday challenging Harvard's legacy admissions preferences. There's a good chance that Harvard (and other schools) will abandon legacy preferences after gnashing their teeth, but suppose they don't. What should happen to the legal challenges?

One relevant case is Kotch v. Board of River Pilots. ... Plaintiffs challenging [legacy preferences] will probably not be able to show that there is intentional racial discrimination in that aspect of admissions programs. But what using a familial tie? Universities can argue that there is a rational basis for legacy preferences--alumni donations. But is rational basis review the correct standard? In 1947, the idea of heightened scrutiny was in its infancy. Maybe Kotch would come out the same way now under heightened review—it depends on how the courts would view pilotage today—though I think that's doubtful. And I don't think legacy preferences would survive heightened scrutiny. Perhaps Kotch will get renewed attention in the upcoming litigation.

William Jacobson (Cornell), By All Means, Eliminate Legacy And Donor Admissions Preferences Because They Are Corrupting, Regardless of Racial Impact:

My position since long before the recent SCOTUS Affirmative Action decision: “I am against legacy admissions preferences regardless of whether they have a racial impact on admissions, because they contribute to a cronyism that shifts the focus from the individual’s merits to the school’s interest in developing alumni fundraising.”

William Jacobson (Cornell), Karma: Harvard Legacy/Donor Admissions Practices Are Racist According To Civil Rights Complaint Just Filed:

The colleges and universities that have been the most aggressive and belligerent in defending illegal race-based affirmative action are finding their most cherished and lucrative admissions practices challenged: Legacy and Donor preferences.

Richard Lempert (Michigan), Overturning Affirmative Action Was a Power Play:

The Supreme Court used a distorted, incoherent argument to end race-conscious admissions.

Forty-five years ago, when Justice Lewis F. Powell Jr. wrote the controlling opinion in University of California Regents v. Bakke, which upheld a limited use of racial preferences in college admissions, he cited Harvard University’s admissions procedures as a model of what the United States Constitution allows. Harvard’s system seems to have changed little over the years. North Carolina’s system is similar. Now, although the court did not explicitly overrule Bakke, the Harvard approach is constitutionally impermissible, a result of the court having set standards that it today deems impossible to meet.

What changed? Nothing but the composition of the court. The Students for Fair Admissions cases are the first affirmative-action cases where the justices’ votes broke strictly along party lines. Every justice appointed by a Republican president voted against the universities, and every Justice appointed by a Democratic president voting in their favor. It is hard not to think that the justices were voting their political preferences, and the result is a precedent-overturning opinion that cannot withstand strict, or even not-so-strict, scrutiny.

Chief Justice John G. Roberts Jr., writing for the majority, distorts history and assumes facts. Bowing to originalism, Roberts argues that the 14th Amendment was intended from the start to be race neutral, and he found a few quotations that support this view. But he barely confronts Justice Sonia M. Sotomayor’s more-accurate history. She points out that the Freedmen’s Bureau Act of 1865 (and extended in 1866) and the Civil Rights Act of 1866 took race into account to advantage Black people, that each was vetoed by President Andrew Johnson because they gave Blacks advantages denied to whites, and that each was then passed over Johnson’s veto. The U.S. Congress that passed these laws also advanced the 14th Amendment, and it has been argued that one reason for the amendment was to ensure that the Civil Rights Act would pass constitutional muster.

Chronicle of Higher Education Op-Ed:  How the Supreme Court Ruling Will Change Admissions, by Jon Boeckenstedt (Oregon State University):

I’ve often wondered about the premise of the plaintiffs’ arguments in cases like the one just decided: that “qualified for admission” is simply a function of high-school GPA and test scores, or that the job of the admissions officer is just to skim the “most qualified” off the top of the applicant pool based on strict objective criteria, like in many other countries with nationalized high-school curricula. The reality, of course, is that admission has never operated this way. Shame on us for a) not making that point more vocally, and b) not explaining it more clearly.

But if we pull that premise out from underneath the argument (and backing away from standardized tests helps in this), suddenly the need to look deeper into the application becomes essential, given almost 40,000 high schools with what often seems like 40,000 different academic approaches and 40,000 different grading systems. The people who started the “you can’t compare the GPA at my kid’s school to the GPA at those people’s school” might find their aphorism comes back to bite them on the backside.

The colleges that went test optional during the pandemic seem to have discovered something, according to the data. Not requiring the SAT or ACT appears to have increased diversity. But time will tell whether this trend continues, or whether the Massachusetts Institute of Technology’s foray back into required testing leads others to do so. (There’s also the possibility that test-optional schools will follow the University of California system and eliminate consideration of tests altogether.) ...

The law, and the decisions just released, are nuanced and complex, and scholars will be debating them for years — probably decades — to come. But admissions officers should remember that no one can legislate their perspectives, opinions, lived experiences, or the compassion and concern they bring to work every day.

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