June 23, 2016

The Supreme Court upholds the affirmative action program at the University of Texas.

SCOTUSblog reports.

MORE: This is a 4-3 decision, not a mere affirmance by an evenly divided Court. The odd number of Justices is due to Kagan's recusal. (She worked on the case when she was Solicitor General.)

According to SCOTUSblog, the opinion, written by Justice Kennedy, is "decidedly a compromise," because it requires UT to "continue to reassess its need for any kind of race-conscious affirmative action" and finds it "justified only by a robust record showing that other means of addressing diversity concerns have failed." SCOTUSblog detects "a pretty meaningful shift away here from the trajectory of Fisher I," which "faulted the lower court for giving too much deference to the judgments of the university." Kennedy wrote:
"Considerable deference is owed to a university in defining those intangible characteristics, like student body diversity, that are central to its identity and educational mission."
AND: As the Court put it:
"The Court’s affirmance of the University’s admissions policy today does not necessarily mean the University may rely on that same policy without refinement. It is the University’s ongoing obligation to engage in constant deliberation and continued reflection regarding its admission policies."
ALSO: Alito has a 50-page dissent that includes the line: "Something strange has happened since our prior deci­sion in this case." I don't think that's supposed to be a reference to the death of Antonin Scalia. In any event, if Scalia had lived — assuming he wouldn't have swayed Kennedy from his deference-to-educators approach — the decision would have been 4-4, affirming the Court below and leaving UT to its own devices.

PLUS: Those of you who are disappointed by this decision should consider that it advantages your side of the political argument. A decision going the other way would have made the issue of Supreme Court appointments much more conspicuous and given Hillary Clinton a great boost.

AND: This is the case where Justice Scalia — at oral argument, 3 months before his death — expressed objection to affirmative action in a notably clumsy way, saying maybe those who would, without affirmative action, be better off, because they'd be at "slower-track schools."

63 comments:

HoodlumDoodlum said...

4-3.

It's ok, though, since Kennedy says universities have to keep assessing their need for any kind of affirmative action programs, so just as soon as those programs are no longer necessary all the universities (which, remember, have extensive bureaucracies devoted to/given the need for their very existence by AA policies) will voluntarily drop them (and those decisions will be respected by the courts, of course).

Yeah.

Michael McClain said...

Racial discrimination is, thus, upheld.

Brando said...

Disappointing but not surprising. I get the feeling even the "conservatives" are just not ready to get rid of racial quotas, even as they gnash their teeth when such systems are too obvious. They likely believe the nonsense about how without these programs, blacks would be completely shut out of education and jobs.

And on top of it all, they're keeping up the mushy O'Connor-esque reasoning that "using race is okay, but we'll decide on a case-by-case basis, so no one has any real guidance to go by." A mess that ensures further litigation as no one can tell what sort of programs will pass muster. Such is the result of elitist guilt.

Meanwhile, how many decades have we tried this with pathetic results? How many more will it take?

tim in vermont said...

I wonder, is there a need for "race consciousness" when it comes to handing out assault weapons? What are the standards before that can be considered? It's like the lady who has already admitted she is a whore, and is just negotiating over the price.

PB said...

We'll never be free of the soft bigotry of low expectations. All the massive investment in K-12 hasn't fixed the problem after 50 years and now they insist that pre-K be universal and publicly funded, but it won't solve the problem.

The problem is: children born out of wedlock.

Brando said...

In other words, "we're going to be completely arbitrary and not even maintain the same analysis in future cases. Good luck, admissions departments! We expect to see you all back real soon, and who knows what we'll decide! As long as we feel like we're doing the right thing!"

Unknown said...

Disgustingly cowardly ruling by the supremes.

I expect all hiring managers are taking note, as they should, why pay the going rate for an inferior product.

coupe said...

I like how the Brits call it "positive discrimination."

They are wonderful with English language. No hidden weasel words.

...and if you are 1/32 Cherokee you can get into Harvard as a minority, just like Pocahontas did...

Ignorance is Bliss said...

Considerable deference is owed to a university in defining those intangible characteristics, like student body diversity, that are central to its identity and educational mission.

Actual deference to a university would include deference in the case where a university determined that uniformity was central to its identity and educational mission. Does anyone think a university would be given deference in that case*? If not, then this is not deference, it is simply government approved discrimination.

*The answer, of course, is yes, as long as the university was going for uniform blackness. See Howard University. Does anyone think a university aiming for uniform whiteness would be given similar deference?

John Tuffnell said...

"Considerable deference is owed to a university in defining those intangible characteristics, like student body diversity, that are central to its identity and educational mission."

Is considerable deference is owed to a state legislature in choosing and defining those intangible characteristics that are central to its state university's identity and educational mission if that state legislature says that student body diversity is not central to the university's mission, or is this only one-way deference?

n.n said...
This comment has been removed by the author.
Sebastian said...

"It is the University’s ongoing obligation to engage in constant deliberation and continued reflection regarding its admission policies." Hahaha.

By the way, superfluous question I know, where does the the Constitution, or relevant federal law, say that anyone or any court owes universities considerable deference?

buwaya puti said...

The result is what we see - soft admissions lead to unqualified students crowding the "easy" courses destroying departments in the social sciences and worst of all the liberal arts.
And the new made up "studies" departments to further absorb these unqualified students. And then their useless or pernicious required classes are inflicted on everyone, in order to justify their faculty headcount.

Alex said...

Fucking racial quotas are fucking quotas, no matter how you try to package them up. They're evil and need to be struck down immediately across the nation.

PB said...

50 years of affirmative action and it hasn't solved the problem it was intended to solve so we have to keep on with it? All they have is a hammer and everything looks like a nail.

Talk about being stuck on stupid.

n.n said...

The only diversity that should concern people is individual. The continuing and even progressive affirmation of class diversity (i.e. race, sex, color) is a setback for civilized society. Even sex is only relevant in the context of evolutionary fitness, and naturally occurring physiological differences.

hawkeyedjb said...

None of this means much, really. Universities have shown themselves to be quite good at using racial quotas even where they are explicitly illegal. It's what the administrators and much of the student body want, so it's what they will have.

It's just not worth fighting any more over whether it's "legal." Words like "diversity" and "affirmative action" are the euphemisms; racial quotas are the reality.

Laslo Spatula said...

Girl with the Pony Tail on the Treadmill:

I hate myself for even thinking this.

(pony-tail swish, pony-tail swish)

The new woman in the office, she is clueless. She doesn't even know how to work a spreadsheet.

(pony-tail swish, pony-tail swish)

Her work is always riddled with errors.

(pony-tail swish, pony-tail swish)

So now I do my work, and then I have to re-do hers.

(pony-tail swish, pony-tail swish)

I can't figure out why they hired her. Sure, she's got a college degree in some Social Sciences thing, but she understands nothing about what we do.

(pony-tail swish, pony-tail swish)

I shouldn't even be thinking this.

(pony-tail swish, pony-tail swish)

She is black.

(pony-tail swish, pony-tail swish)

(pony-tail swish, pony-tail swish)

That can't be the only reason they hired her.

(pony-tail swish, pony-tail swish)

I shouldn't even be thinking such things.

(pony-tail swish, pony-tail swish)

If I were to say anything I'm sure I'd be called a racist.

(pony-tail swish, pony-tail swish)

I don't have a problem with her being black. It's just that she's incompetent.

(pony-tail swish, pony-tail swish)

And now she EXPECTS me to fix her work. That is not my job.

(pony-tail swish, pony-tail swish)

But I gotta do it, anyway. Or I'm racist.

(pony-tail swish, pony-tail swish)

I hate having to think like this.

(pony-tail swish, pony-tail swish)

If I'm lucky she'll get promoted. Then she will be someone else's problem.

(pony-tail swish, pony-tail swish)

Then SHE'D be able to get an Audi.

(pony-tail swish, pony-tail swish)

This sucks.

(pony-tail swish, pony-tail swish)

I am Laslo.

coupe said...

I often wonder if minority students have the most student loan debt.

Maybe this is an economics issue. The minorities get into college, the sons of Abraham get to print the money.

It's a win-win.

cubanbob said...

John Tuffnell said...
"Considerable deference is owed to a university in defining those intangible characteristics, like student body diversity, that are central to its identity and educational mission."

Is considerable deference is owed to a state legislature in choosing and defining those intangible characteristics that are central to its state university's identity and educational mission if that state legislature says that student body diversity is not central to the university's mission, or is this only one-way deference?

6/23/16, 9:47 AM"

Spot on. This will be back before the court when the State Legislature decides the school is a creation of and belongs to the State and the State has the ultimate decision power over these policies and not the University's administrators.

mockturtle said...

That sucks! What could promote racism more than tagging minorities as 'affirmative action' products? Minorities who truly deserve admission, jobs, promotions, etc. are wrongfully presumed to be tokens of preferential treatment. Racism at its most devious.

Fernandinande said...

Racist is as racist upholds.

Curious George said...

Awesome! Unqualified minorities will still have the ability to flunk out at record levels.

Brando said...

How does this advance a conservative argument? If Scalia was there, the right would still lose because apparently even Reagan appointees keep deciding that affirmative action must never end. And who twice saved Obamacare? Bush's pick for Chief Justice (and I don't recall a lot of conservatives warning about him when he was nominated).

What's the point? Whether Clinton or Trump picks them, they're going to disappoint conservatives.

Fernandinande said...

4-3 decision

At least* only 43% of the government lawyers were wrong, which is less than the more typical 44% wrongness from 5-4 decisions.

*"at least" = they're wrong according to the majority.

Obviously in this case the majority are actually wrong, so 57% of the government lawyers were wrong.

mccullough said...

Court upholds discrimination against Asian Americans again.

Chuck said...

Justice Scalia didn't express his question in a "notably clumsy way."

Justice Scalia questioned an important issue that had previously been raised in the briefs.

Then, the press and the liberal critics of Scalia twisted the justice's questioning in a notably dishonest way.

And finally Donald Trump, being a dimwitted consumer of such news broadcasting, waded into the dispute in a "notably clumsy way."

http://www.powerlineblog.com/archives/2015/12/trump-piles-on-scalia-supports-racial-preferences.php

Chuck said...

Don't worry, everybody; we are heading into the last 12 years of affirmative action in higher education:

http://moritzlaw.osu.edu/students/groups/oslj/files/2012/04/67.1.goldstein.pdf

mikee said...

Using skin color as a determinant, or an "enhancement" or "additional consideration" or whatever euphemism is used to say "race matters" in college applications will, in a generation or less, be looked upon as bigoted and racist as any other Jim Crow era law based on race.

The state should be blind to anything, to everything, except the behavior of its citizens, if it is to function fairly. Otherwise the only two questions under discussion in politics are who wins and who loses in the government-mandated selection process for distribution of taxpayer funds.

Owen said...

Chuck: agree, Scalia did not speak clumsily. Since I believe in "nil nisi bonum" I wish this "update" had not been offered to us. Scalia isn't here to defend or explain. But my real point here is not how he characterized things, but the "mismatch" problem to which he referred. Has anybody here NOT read "Mismatch: How Affirmative Action Hurts Students It's Intended to Help, and Why Universities Won't Admit It" by Richard Sander and Stuart Taylor, Jr.?

Show of hands: who hasn't read it? OK, go off and do so. I'll wait.

Absolutely key to the discussion.

HoodlumDoodlum said...

Ann Althouse said... Those of you who are disappointed by this decision should consider that it advantages your side of the political argument. A decision going the other way would have made the issue of Supreme Court appointments much more conspicuous and given Hillary Clinton a great boost.

Good point, Professor--sure the Court might get the "law of the land" incorrect, but in this instance their bad decision might help Donald Trump get elected. Since Trump has a non-zero chance of appointing someone better than Clinton would appoint, that should be good...although no one should feel confident that Trump would appoint a "good" Justice in any case.

Gee, I feel so much better; thanks!

Owen said...

PS: Laslo. You nailed it. As usual.

Owen said...

I think that more and more people are wise to the AA game. It can only be played with data that people agree to provide. Check the box on the application. Increasingly some will spoof the system. Like Fauxcahontas who is 3% Cherokee, swearsies. And Rachel Dolezal (sp?) who identifies as black. And who are we to disagree?

tim maguire said...

This is the case where Justice Scalia — at oral argument, 3 months before his death — expressed objection to affirmative action in a notably clumsy way, saying maybe those who would, without affirmative action, be better off, because they'd be at "slower-track schools."

It may have been clumsy, but it's an important point that gets too little consideration--at least some minority students are harmed by affirmative action because they wind up over their heads in schools and programs they are not prepared for. They fail where they might have thrived in a less demanding environment.

Michael said...

This is just step one. Step two is already in the works at universities across the land that are demanding the elimination of grades or the issuance of better grades or no grades at all. At least in the hard courses. Because what else can we conclude from the lower graduation rates of certain minorities and their disproportionately weak performance in a system governed by old white people? Exactly. If you are to eliminate racism you had better get on the program of graduating proportionate numbers of certain minorities and doing so with honors proportionate to their representation. Forget the King's English. Forget foreign language requirements. Forget science and math. All evil systems created to keep certain minorities down.

Gahrie said...

Meanwhile, how many decades have we tried this with pathetic results? How many more will it take?

I want to know when White men can expect the government and other institutions to discriminate in their favor to make up for all the years of deliberate discrimination against them?

mockturtle said...

Forget the King's English. Forget foreign language requirements. Forget science and math. All evil systems created to keep certain minorities down.

Exactly! No more courses about dead white men or their accomplishments. After all, a Masters Degree in African-American Literature will get you into a nice cushy job somewhere.

Larry J said...

Meanwhile, at Texas A&M, Diversity Increases Without Affirmative Action.

In the minds of many Texans, the Lone Star State’s two flagship universities are polar opposites: The University of Texas at Austin is perceived as diverse, urban and liberal. Texas A&M University is viewed as white, rural and conservative.

On the surface, the two universities’ admissions policies reflect that view. UT-Austin proudly practices affirmative action to bolster its minority student ranks and has spent years defending the policy in federal court. A&M eschews giving minority applicants any kind of advantage. If you get into A&M, its administrators say, you are doing it solely on your merits.

But a surprising shift has occurred at A&M over the last decade. Despite its reluctance to formally consider the race of its applicants, the university has worked hard to convince black and Hispanic students to apply and enroll. Since 2003, when the U.S. Supreme Court reaffirmed the legality of affirmative action in college admissions, A&M has continued not using it, yet the share of black and Hispanic students has more than doubled at its College Station campus — from 10.8 percent to 23.1 percent.


The article indicates that the percentage of black and Hispanic students at UT Austin is just slightly higher at 23.4 percent.

bagoh20 said...

American universities being some of the least diverse and tolerant places in the country didn't get that way by respecting diversity, but by rampant discrimination. Race is a game they play, while their business is intolerance.

buwaya said...

"Those of you who are disappointed by this decision should consider that it advantages your side of the political argument."

No it doesn't, really. As Instapundit like to say, culture us upstream of politics. Every little bit of this that comes down is just a meter reading of the state of things in the culture, and that is in a state of terminal decline. This wont help the University of California for instance, as they are hell-bent on degrading themselves into inutility.
The law is more a symptom, a consequence, than a cause of anything.

SukieTawdry said...

This is an era of great mediocrity. I can't help but wonder if it's largely due to our having to bow before the great god Diversity.

mockturtle said...

When I attended the University of Washington, fully a quarter of the students enrolled were Asians. Not one was there because of Affirmative Action.

buwaya said...

"Race is a game they play, while their business is intolerance."

Their business is collecting fees via government backed student loans. Most of higher education is a scam. The residents of the system have developed a peculiar culture in large part because they have become so useless in a practical sense.

Unknown said...

This is what you get when you cheer on a Senate that refuses to proceed with Supreme Court nominations.

campy said...

A decision going the other way would have made the issue of Supreme Court appointments much more conspicuous and given Hillary Clinton a great boost.

Because everyone agrees Hillary! will appoint stupendously well-qualified judges.

Sebastian said...

"Increasingly some will spoof the system." Depends on what the meaning of spoof is. Since gender identity is now a matter of subjective judgment, why not racial or ethnic identity? Fauxahontas was ahead of the curve. If enough people play the game, pretty soon we will have affirmative action for everyone. Except Chinese kids and their families; we need their $$.

Brando said...

Republicans put Warren, Brennan, Blackmun, Stevens, Souter, O'Connor (she of the "government sponsored racism is only okay sometimes"), Roberts (he of the "ACA must stand, period" reasoning) and Kennedy (who is picking up where O'Connor left off). Sure, they put a lot of reliable conservatives on the court during that period too, but did the Dems ever nominate anyone they regretted to that degree? Even Byron White didn't disappoint them that much.

And does anyone have reason to believe Trump will figure out how to avoid the mistakes his predecessors made? For that matter, can anyone figure out how anyone could avoid those mistakes?

Brando said...

""Increasingly some will spoof the system." Depends on what the meaning of spoof is. Since gender identity is now a matter of subjective judgment, why not racial or ethnic identity? Fauxahontas was ahead of the curve. If enough people play the game, pretty soon we will have affirmative action for everyone. Except Chinese kids and their families; we need their $$."

I sort of welcome that, which is why I was a bit conflicted about that weirdo Dolezal. After all, if ethnicity becomes fluid for official purposes (i.e., government purposes) then it no longer has meaning, and government cannot meaningfully reward or punish you because of your race. So, bring that on!

I look forward to an "I'm Spartacus!" moment when everyone applying to college claims to be African American, and there's no real way to prove them wrong as it's all based on self-identification.

Titus said...

I love Kennedy-he is like a bisexual-never know which way he is going to go.

The rest of them are all so predictable.

tits and have a super day!

Fred Drinkwater said...

Larry J
Some of us are old enough to remember the original definition of Affirmative Action,according to Humphrey and other advocates.
It was precisely what TAMU is doing now. Active outreach and encouragement to targeted groups, but no quotas.
That's how it was sold in Congress and to us. Only a few cranks claimed it might devolve into something else...

SukieTawdry said...

It may have been clumsy, but it's an important point that gets too little consideration--at least some minority students are harmed by affirmative action because they wind up over their heads in schools and programs they are not prepared for. They fail where they might have thrived in a less demanding environment.

Yes, and they are trying to address that on campus. But the focus seems to be on expanding remediation and lowering objective standards.

Owen said...

Sukie Tawdry said: "...Yes, and they are trying to address that [lack of preparation] on campus. But the focus seems to be on expanding remediation and lowering objective standards."

By the time kids get to university, the catching-up/remediation can be a huge problem. Every new arrival has to adapt and worry but for these kids it is like being thrown into the lake with an anchor, while the tutor sits in the boat and says incomprehensible things, under time and budget pressure to "remediate." A lot of pain and suffering and I don't know the success rate. Universities probably aren't keen to publicize the fact of remediation programs, let alone what the attrition looks like.

So, much easier just to lower the standard and look the other way as the kids drop out of engineering and math, where they're getting crushed, and instead do that Ethnic Studies major.

All shall have prizes, and it only costs $50 large a year.

Unknown said...

coupe said...
I often wonder if minority students have the most student loan debt.

Maybe this is an economics issue. The minorities get into college, the sons of Abraham get to print the money.

It's a win-win.

6/23/16, 9:57 AM

Do you ever say anything that doesn't suck?

eddie willers said...

Using skin color as a determinant, or an "enhancement" or "additional consideration" or whatever euphemism is used to say "race matters" in college applications will, in a generation or less, be looked upon as bigoted and racist as any other Jim Crow era law based on race

That's what they said two generations ago.

Murph said...

Read the Alito dissent. He destroys the majority opinion.

J. Farmer said...

"Diversity is a strength" is the giant myth at the heart of all of this. You know what is a strength? Homogeneity. Read Edward Canfield's The Moral Basis of a Backward Society.

richardsson said...

Well, it's sad. Kennedy was a reliable defender of the 14th Amendment but he has finally been worn down by the battle. He stood by the 14th Amendment when Sandra Day went off dancing with Lewis Powell in her dreams. Her opinions on these matters were nothing but an incentive to lie and cheat. Why bother trying to save an institution like higher education when both its leaders and beneficiaries are so bent on destroying it? I think many of us who were once part higher education are cutting our ties and turning our backs and averting our eyes from what has become and ugly, smoking wreck.

cubanbob said...

Why the fetish of diversity? Really, Congress and the State Legislatures should stop this fraud. If the average SAT score of a University is 1250 then admitting students with an SAT score of 900 isn't going to help that student and it doesn't bring whatever value diversity is supposed to bring to the others.

J. Farmer said...

@cubanbob:

"Why the fetish of diversity?"

Because it's our strength! Just keep repeating that mantra no matter how much you disbelieve or how much empirical evidence flies in the face of it. That is all irrelevant. Your job is to mindlessly parrot and affirm it. The second you don't, we'll know immediately what an evil, hateful, racist, xenophobic, cisgenderist, bigoted person you are. And then you're open to being professionally and personally shamed, shunned, and harassed.

Now let's all say it together once more with feeling. America....Is....Doomed.

mockturtle said...

@J.Farmer

And then you're open to being professionally and personally shamed, shunned, and harassed.

And, in the near future, put into 're-education camps', like in the Cultural Revolution in China.

J. Farmer said...

@mockturtle:

"And, in the near future, put into 're-education camps', like in the Cultural Revolution in China."

I hate to quarrel with someone agreeing with me, but I think this is a little over-the-top. Yes there is a lot that can be done to you personally and professionally but not much can be done to you legally.

mockturtle said...

Not over the top at all, Farmer. There are many LEOs and other public workers who have been required to attend classes on 'cultural sensitivity' in order to keep their jobs.

J. Farmer said...

@mockturtle:

"There are many LEOs and other public workers who have been required to attend classes on 'cultural sensitivity' in order to keep their jobs."

Right. But that's not the same thing as being prosecuted criminally or being forced to do something. I already conceded that people can be affected financially. Hell, poor cuckold Donald Sterling had to sell his NBA team because his mistress secretly recorded him having unpopular ideas and feelings. Of course he made a huge profit on the sell, but you get my point nonetheless.