Supreme Court affirmative action cases

[Mercury]

Oct 30, 2022 On Monday, the Supreme Court will hear oral arguments in two cases seeking to overturn decades-old precedents that have allowed colleges to factor race into admissions decisions in order to create diverse student bodies. Opponents of the practice say that any decision based on race is wrong. Angel Perez, CEO of the National Association for College Admission Counseling, joins John Yang to discuss.

https://www.youtube.com/watch?v=pryd_IT2ETg


Interesting question; I really don't know where I land on this. Every argument seems to have an equally compelling counter argument. Here's what I've boiled it down to:

Imagine two young people; one white, one black - with identical academic records. Both come from homes with similar income brackets. If the white kid loses out, and the black kid is admitted because he is black - arguably it addresses an inter-generational disadvantage, but the white kid is not a beneficiary of slavery. There are lots of poor white folks. Why should it be poor white folks who pay restitution by losing out in college admissions? Isn't that like me taking your stuff and giving it away to compensate someone I screwed over? That seems unfair, but on the other hand - relative to the unfairness suffered by black people for generations, it's a very minor injustice. Any thoughts?

[Ecurb]

It's a difficult question. It's reasonable for Universities to believe that a culturally diverse student body enhances the educational experience for both students and faculty. "Race" (of course) is a mere shorthand for cultural factors which might be reasonable for universities to consider, and an imperfect shorthand. The suburban black kid whose parents are physicians may be more culturally in tune with his white neighbors than with inner city black kids. However, race does suggest a cultural orientation, created, perhaps, by bigotry and the solidarity it engenders in its victims.

Obviously, college admissions standards are neither standardized nor absolutely measureable. Interviews, recommendations, and extra-ciricular activities are as imporant as grades and SAT scores. As they should be. Universities should be able to use intuition and judgement in deciding whom to admit. This being the case, affirmative action is one reasonable criterion, although it would be preferrable if the admissions officers would look at the individual, instead of seeing him as some racial stereotype.

P.S. I'm not sure if any Supreme Court decisions would affect private universities, or only state univerisities. Does anyone know?

[Mercury]

This is the guy bringing the cases to the Supreme Court - and so no, it's not just state universities. He's brought a case against Harvard in the past; and is now aiming to get a Supreme Court ruling against race based admissions policies for all universities.

Students for Fair Admissions v. President and Fellows of Harvard College.

https://en.wikipedia.org/wiki/Edward_Blum_(litigant)

[ernestm]

It's a difficult question. It's reasonable for Universities to believe that a culturally diverse student body enhances the educational experience for both students and faculty. "Race" (of course) is a mere shorthand for cultural factors which might be reasonable for universities to consider, and an imperfect shorthand. The suburban black kid whose parents are physicians may be more culturally in tune with his white neighbors than with inner city black kids. However, race does suggest a cultural orientation, created, perhaps, by bigotry and the solidarity it engenders in its victims.

Obviously, college admissions standards are neither standardized nor absolutely measureable. Interviews, recommendations, and extra-ciricular activities are as imporant as grades and SAT scores. As they should be. Universities should be able to use intuition and judgement in deciding whom to admit. This being the case, affirmative action is one reasonable criterion, although it would be preferrable if the admissions officers would look at the individual, instead of seeing him as some racial stereotype.

P.S. I'm not sure if any Supreme Court decisions would affect private universities, or only state univerisities. Does anyone know?

Well this is something else I find myself remarking on at least weekly.

The supreme court has a constitutional right to enforce limits on how law can restrict liberty ONLY in accordance with their interpretation of how the Founding Fathers would consider the case. It has nothing to do with what is absolutely right or wrong. It would be extremely difficult to find any example of a Founding Father saying anything at all to enforce affirmative action.

In such cases, which also includes rights to abortion, the constitution does provide an alternative method to change the law, and that is a constitutional amendment. If people want to change the law in ways to advance the greater good, they would need to put aside their petty differences and work together. The federal government has been particularly bad at doing that. The last time Congress passed a constitutional amendment was 1992, and that was to protect Congress's own salaries.

We exist in an era where we cannot look at national law and say what it 'should' think any more. The rights of the Supreme Court are very well defined, and have little to do with whatever you think it 'should' do.

[Ecurb]

Well this is something else I find myself remarking on at least weekly.

The supreme court has a constitutional right to enforce limits on how law can restrict liberty ONLY in accordance with their interpretation of how the Founding Fathers would consider the case. It has nothing to do with what is absolutely right or wrong. It would be extremely difficult to find any example of a Founding Father saying anything at all to enforce affirmative action.

In such cases, which also includes rights to abortion, the constitution does provide an alternative method to change the law, and that is a constitutional amendment. If people want to change the law in ways to advance the greater good, they would need to put aside their petty differences and work together. The federal government has been particularly bad at doing that. The last time Congress passed a constitutional amendment was 1992, and that was to protect Congress's own salaries.

We exist in an era where we cannot look at national law and say what it 'should' think any more. The rights of the Supreme Court are very well defined, and have little to do with whatever you think it 'should' do.

Huh? It would also be very difficult to find an example of the founding Fathers opposing affirmative action. The question is whether the State has the right to PREVENT universities, based on their own private policies, from considering an admission policy that includes affirmative actions. The question is about the limits of the State's right; it is important because the Supremes have repeatedly found it unconstitutional for States to legalize (for example) segregated bathrooms, segregated public schools, and businesses that refuse to serve people whose color they disapprove of. So there is precedent for the Supremes acting on the side of racial equality (which, of course, would not support affirmative action). So the question before the Justices is whether some forms of racial discrimination (like affirmative action) are "justified". The constitution has little to do with it.

In addition, there would be no need for a Constituional Ammendment to legalize abortion. States merely need to avoid passing laws making abortion illegal, which most states (including my own beloved Oregon) have done. Roe v. Wade decided that the "right to privacy" (a right not explicitly named in the Constitution, but perhaps implied by limits to the law) is violated by laws banning abortion. The decision was always problematic.

Clearly, based on Roe v. Wade and Brown v. Board of Education, etc. etc., the Supremes can interpret the Constitution however they wish. Justice is more important than some 18th century document. Also, "intentionlists" often dispute with "literalists". The former think the "intent " of the lawmakers (whether Constiutional or legislative) is important; the latter think only the written words and their interpretations should matter.

In England, the chancery courts involved no written laws (I know this only from reading "Bleak House"). Justice was the sole detrminant.

The question remains: is affirmative action "just"? Are reparations in general (affirmative action is a form of reparation) just? It's a difficult question, but one way to answer it is to wonder who is harmed by affirmative action? The white kid who doesn't get in to Harvard can go to Dartmouth, instead. Does that really constitute significant harm? Do the benefits (cultural and racial diversity at the University) outweigh the harms? This is not an issue which slave-owning founding fathers can decide for us. We must decide on our own.

In addition, it's reasonable for Harvard to admit an Inuit who grew up in a small arctic village and had no access to coaching or high-level teaching yet still scored 1200 on his SATs over a rich suburban kid who scored 1450. The Inuit is probably smarter and more likely to benefit from his Harvard education, given his disadvantages.

Fīat jūstitia ruat cælum. Let justice be done though the heavens fall.

[Mercury]

I'm drawn to the concept of colourblind meritocracy of the Martin Luther King variety: 'I dream of a world in which my children will be judged on the content of their character rather than the colour of their skin.' The modern politically correct culture says: 'No, we must judge people on the colour of their skin, only "positively."' How do you do that fairly, proportionately, in what contexts? When will this historic injustice be restored - and at who's expense? I do accept that there's historic injustice with inter-generational effects. But keep passing by the idea that society can only be fair moving forward. Maybe it's that the principle is right but the policy is wrong. Schrodingger's fairness - it's just and unjust at the same time!

[Ecurb]

I'm drawn to the concept of colourblind meritocracy of the Martin Luther King variety: 'I dream of a world in which my children will be judged on the content of their character rather than the colour of their skin.' The modern politically correct culture says: 'No, we must judge people on the colour of their skin, only "positively."' How do you do that fairly, proportionately, in what contexts? When will this historic injustice be restored - and at who's expense? I do accept that there's historic injustice with inter-generational effects. But keep passing by the idea that society can only be fair moving forward. Maybe it's that the principle is right but the policy is wrong. Schrodingger's fairness - it's just and unjust at the same time!

Color blindness is reasonable. But what constitutes a "meritocracy"? Think of my example of the Inuit kid. Is his 1200 SAT score more meritricious than the tutored and trained rich kids' 1400? Probably. He's probably just as smart or smarter than the rich kid, and probably more likely to benefit from an elite education. Also, the University that admits him is likely to benefit when he teaches fellow students and the professors about Inuit culure.

I'll grant that the modern obsession with "race" is overblown. Ideally, admission officers should look at individuals, not racial classes. Race (or gender) has supplanted the class conflicts that Marx used to discuss. In the U.S. this is exacerbated by racist Trump supporters whining about how unfair it all is. Poor little darlings! It must be horrid to be so privileged! I know! I've been there!

Fairness is an important consideration. However, so is the benefit of racial and cultural diversity to society and to the Universities that make decisions about whom to admit. The Supreme Court must properly take allof this into account.

[Mercury]

I'm drawn to the concept of colourblind meritocracy of the Martin Luther King variety: 'I dream of a world in which my children will be judged on the content of their character rather than the colour of their skin.' The modern politically correct culture says: 'No, we must judge people on the colour of their skin, only "positively."' How do you do that fairly, proportionately, in what contexts? When will this historic injustice be restored - and at who's expense? I do accept that there's historic injustice with inter-generational effects. But keep passing by the idea that society can only be fair moving forward. Maybe it's that the principle is right but the policy is wrong. Schrodingger's fairness - it's just and unjust at the same time!

Color blindness is reasonable. But what constitutes a "meritocracy"? Think of my example of the Inuit kid. Is his 1200 SAT score more meritricious than the tutored and trained rich kids' 1400? Probably. He's probably just as smart or smarter than the rich kid, and probably more likely to benefit from an elite education. Also, the University that admits him is likely to benefit when he teaches fellow students and the professors about Inuit culure.

I'll grant that the modern obsession with "race" is overblown. Ideally, admission officers should look at individuals, not racial classes. Race (or gender) has supplanted the class conflicts that Marx used to discuss. In the U.S. this is exacerbated by racist Trump supporters whining about how unfair it all is. Poor little darlings! It must be horrid to be so privileged! I know! I've been there!

Fairness is an important consideration. However, so is the benefit of racial and cultural diversity to society and to the Universities that make decisions about whom to admit. The Supreme Court must properly take allof this into account.

I think we see very much eye to eye on this; I'm in the UK but even here, I've sat still on the centre ground while the right and left have raced off to extremes. I cannot help thinking this guy; Blum - a neoconservative republic is part of that, and this is a deliberately divisive issue intended to divide people into those two camps. I don't want to feed into that, but it's a really interesting moral conundrum.

You ask a good question about what constitutes meritocracy; but I'm inclined to say the higher SAT score because that's the very purpose of the test. If we start contextualising the test - what's the purpose of the test?

Thing is the Inuit kid is not competing with Richy Rich - who's dad, Mr Richard Rich plays golf with the dean and pays young Richy's scholarship in full. That's not who gets displaced by affirmative action - and that's rather the point. Who pays this restitution? The poor. In a classic Marxian view, the poor white kid and poor black kid would both qualify for affirmative action on the basis of socio-economic class. Making race a politically correct metaphor for socio-economic class means poor whites pay, while Richy Rich carries on regardless. How is that justice?

[ernestm]

Well this is something else I find myself remarking on at least weekly.

The supreme court has a constitutional right to enforce limits on how law can restrict liberty ONLY in accordance with their interpretation of how the Founding Fathers would consider the case. It has nothing to do with what is absolutely right or wrong. It would be extremely difficult to find any example of a Founding Father saying anything at all to enforce affirmative action.

In such cases, which also includes rights to abortion, the constitution does provide an alternative method to change the law, and that is a constitutional amendment. If people want to change the law in ways to advance the greater good, they would need to put aside their petty differences and work together. The federal government has been particularly bad at doing that. The last time Congress passed a constitutional amendment was 1992, and that was to protect Congress's own salaries.

We exist in an era where we cannot look at national law and say what it 'should' think any more. The rights of the Supreme Court are very well defined, and have little to do with whatever you think it 'should' do.

Huh? It would also be very difficult to find an example of the founding Fathers opposing affirmative action. The question is whether the State has the right to PREVENT universities, based on their own private policies, from considering an admission policy that includes affirmative actions. The question is about the limits of the State's right; it is important because the Supremes have repeatedly found it unconstitutional for States to legalize (for example) segregated bathrooms, segregated public schools, and businesses that refuse to serve people whose color they disapprove of. So there is precedent for the Supremes acting on the side of racial equality (which, of course, would not support affirmative action). So the question before the Justices is whether some forms of racial discrimination (like affirmative action) are "justified". The constitution has little to do with it.

In addition, there would be no need for a Constituional Ammendment to legalize abortion. States merely need to avoid passing laws making abortion illegal, which most states (including my own beloved Oregon) have done. Roe v. Wade decided that the "right to privacy" (a right not explicitly named in the Constitution, but perhaps implied by limits to the law) is violated by laws banning abortion. The decision was always problematic.

Clearly, based on Roe v. Wade and Brown v. Board of Education, etc. etc., the Supremes can interpret the Constitution however they wish. Justice is more important than some 18th century document. Also, "intentionlists" often dispute with "literalists". The former think the "intent " of the lawmakers (whether Constiutional or legislative) is important; the latter think only the written words and their interpretations should matter.

In England, the chancery courts involved no written laws (I know this only from reading "Bleak House"). Justice was the sole detrminant.

The question remains: is affirmative action "just"? Are reparations in general (affirmative action is a form of reparation) just? It's a difficult question, but one way to answer it is to wonder who is harmed by affirmative action? The white kid who doesn't get in to Harvard can go to Dartmouth, instead. Does that really constitute significant harm? Do the benefits (cultural and racial diversity at the University) outweigh the harms? This is not an issue which slave-owning founding fathers can decide for us. We must decide on our own.

In addition, it's reasonable for Harvard to admit an Inuit who grew up in a small arctic village and had no access to coaching or high-level teaching yet still scored 1200 on his SATs over a rich suburban kid who scored 1450. The Inuit is probably smarter and more likely to benefit from his Harvard education, given his disadvantages.

Fīat jūstitia ruat cælum. Let justice be done though the heavens fall.

I dont know what cuntry you live in, but in the I live in, the authority of the supreme court is constitutionally defined as the right to interpret the founding fathers in how to remove obstructions to constitutional rights. Thats what the constitution says. Its not allowed to decide what it thinks its right by some arbitrary standard of morality as you are insisting is true. It has not right to decide that. All it can do is interpret the founding fathers intent. The supreme court is not your santa claus to smile benignly on your opinion when you think it should. It has no interest in your opinion at all.

[Ecurb]

I dont know what cuntry you live in, but in the I live in, the authority of the supreme court is constitutionally defined as the right to interpret the founding fathers in how to remove obstructions to constitutional rights. Thats what the constitution says. Its not allowed to decide what it thinks its right by some arbitrary standard of morality as you are insisting is true. It has not right to decide that. All it can do is interpret the founding fathers intent. The supreme court is not your santa claus to smile benignly on your opinion when you think it should. It has no interest in your opinion at all.

I live in the U.S., and that's why I know you are wrong. The Supremes are charged with interpreting a variety of laws -- not as to whether they are "constitutional", but as to whether they are just and fair, and what they actually mean. I remember one case where some Southern state had a mandatory sentencing law which required a 25 year prison sentence for anyone using a firearm during the commission of a drug related felony. The felons serving this sentence appealed, and the case went to the Supremes. The facts of the case were: the convicted felons had traded firearms for drugs. Does this constitute "using a firearm during the commission of a drug related felony"? Scalia said no. That might have been the literalist interpretation of the law, but it was not the intent of the legislature. "Suppose," he wrote (paraphrased from memory, "Someone had scratched his head with a pistol while driving to purchase drugs. Is that the "use" intended by the legislaure?"

In addition, the Supreme Court generally pays attention to legal precedent, as well as to what is actually written in the Constitution. Here's the Encyclopedia Britannica description of the duties of the Court: https://www.britannica.com/topic/Suprem ... -and-power

[Ecurb]

I think we see very much eye to eye on this; I'm in the UK but even here, I've sat still on the centre ground while the right and left have raced off to extremes. I cannot help thinking this guy; Blum - a neoconservative republic is part of that, and this is a deliberately divisive issue intended to divide people into those two camps. I don't want to feed into that, but it's a really interesting moral conundrum.

You ask a good question about what constitutes meritocracy; but I'm inclined to say the higher SAT score because that's the very purpose of the test. If we start contextualising the test - what's the purpose of the test?

Thing is the Inuit kid is not competing with Richy Rich - who's dad, Mr Richard Rich plays golf with the dean and pays young Richy's scholarship in full. That's not who gets displaced by affirmative action - and that's rather the point. Who pays this restitution? The poor. In a classic Marxian view, the poor white kid and poor black kid would both qualify for affirmative action on the basis of socio-economic class. Making race a politically correct metaphor for socio-economic class means poor whites pay, while Richy Rich carries on regardless. How is that justice?

No system is perfect. SAT scores are not a perfect measure of academic potential. Neither are grades. Cultural diversity is important to the educational value of the University, and is also important to its academic and scholarly purposes. We don't want scholars who all think alike, however much the scholars running their departments may find such students (and Professors) to their liking.

The white kid who had to (horrors!) go to Dartmouth because he didn't get into Harvard is probably going to do OK. It's no great tragedy. Meanwhile, Harvard has benefited by offering a culturally diverse experience to its students, and perhaps some innovative ways of thinking to its faculty. Let's remember, education is only half of the purpose of a University; reasearch and scholarship is the other half.

[Mercury]

I think we see very much eye to eye on this; I'm in the UK but even here, I've sat still on the centre ground while the right and left have raced off to extremes. I cannot help thinking this guy; Blum - a neoconservative republic is part of that, and this is a deliberately divisive issue intended to divide people into those two camps. I don't want to feed into that, but it's a really interesting moral conundrum.

You ask a good question about what constitutes meritocracy; but I'm inclined to say the higher SAT score because that's the very purpose of the test. If we start contextualising the test - what's the purpose of the test?

Thing is the Inuit kid is not competing with Richy Rich - who's dad, Mr Richard Rich plays golf with the dean and pays young Richy's scholarship in full. That's not who gets displaced by affirmative action - and that's rather the point. Who pays this restitution? The poor. In a classic Marxian view, the poor white kid and poor black kid would both qualify for affirmative action on the basis of socio-economic class. Making race a politically correct metaphor for socio-economic class means poor whites pay, while Richy Rich carries on regardless. How is that justice?

No system is perfect.

Ha, you can say that again. Not even 'equal protection of the laws' - which you'd think would be unambiguous. Turns out it's really complicated.

SAT scores are not a perfect measure of academic potential. Neither are grades.

Nothing is a perfect measure of anything; so that's a moot point. All measurement is only approximate. The test is standardised - such that, whatever it measures it measures the same thing. Intelligence divided by willingness to apply onesself - perhaps.

Cultural diversity is important to the educational value of the University, and is also important to its academic and scholarly purposes. We don't want scholars who all think alike, however much the scholars running their departments may find such students (and Professors) to their liking.

So tests are not important in direct relation to the importance of cultural diversity? I'm sorry, no - I disagree. What do you mean by cultural diversity anyway? I don't often compare myself to Boris Johnson - but you may know who he is. He is white, male and British - as am I; but I have a lot less in common with Boris Johnson than I have in common with black kids I went to school with in a deprived area in the north of England. His race is my race, but his culture is not my culture. The point being, I suppose, there are many more facts to cultural diversity than skin colour. Kwasi Kwarteng is more like Boris Johnson than I am!

The white kid who had to (horrors!) go to Dartmouth because he didn't get into Harvard is probably going to do OK. It's no great tragedy. Meanwhile, Harvard has benefited by offering a culturally diverse experience to its students, and perhaps some innovative ways of thinking to its faculty. Let's remember, education is only half of the purpose of a University; reasearch and scholarship is the other half.

I'll relate a short parable from my own country, related to this issue.

There's a rapper named Stormzy - black guy, quite successful apparently, used his money to create scholarships for black kids to go to Cambridge. Great! Giving back to his community. Promoting the value of education. What a guy! A few years later, a former working class white kid, who became Sir Bryan Thwaites, sought to give back to his community in a similar fashion. What do you think happened?

I come back to the idea that race is not a valid metaphor for socio-economic class; that we should be helping disadvantaged people with talent regardless of skin colour.

[Ecurb]

I'll relate a short parable from my own country, related to this issue.

There's a rapper named Stormzy - black guy, quite successful apparently, used his money to create scholarships for black kids to go to Cambridge. Great! Giving back to his community. Promoting the value of education. What a guy! A few years later, a former working class white kid, who became Sir Bryan Thwaites, sought to give back to his community in a similar fashion. What do you think happened?

I come back to the idea that race is not a valid metaphor for socio-economic class; that we should be helping disadvantaged people with talent regardless of skin colour.

I find this (as an American, whose tack record on racism is well known) a bit whiney. There's a difference between establishing scholarships for disadvantaged minoritites and for advantaged majorities. The former is reasonable, the latter despicable. Anyone who can't see the distinction between the ruling class and the class of the ruled should look more closely. My nephew graduated from Cambridge, by the way, as a member of the advantaged classes.

[Mercury]

I'll relate a short parable from my own country, related to this issue.

There's a rapper named Stormzy - black guy, quite successful apparently, used his money to create scholarships for black kids to go to Cambridge. Great! Giving back to his community. Promoting the value of education. What a guy! A few years later, a former working class white kid, who became Sir Bryan Thwaites, sought to give back to his community in a similar fashion. What do you think happened?

I come back to the idea that race is not a valid metaphor for socio-economic class; that we should be helping disadvantaged people with talent regardless of skin colour.

I find this (as an American, whose tack record on racism is well known) a bit whiney. There's a difference between establishing scholarships for disadvantaged minoritites and for advantaged majorities. The former is reasonable, the latter despicable. Anyone who can't see the distinction between the ruling class and the class of the ruled should look more closely. My nephew graduated from Cambridge, by the way, as a member of the advantaged classes.

I see that you've made up your mind, and while it seems to me you've done so by simply ignoring many of the moral questions this issue raises, I thank you for sharing your perspective.

[LuckyR]

No doubt that those who have benefitted generationally are all too quick to declare that past racism is deplorable and the best solution is to base current decisions on "objective" criteria of "merit" in a colorblind way. The unspoken reality though is that the "objective" criteria skew heavily to the advantaged which happen to break nicely along racial lines due to left over advantages from numerous past generations of racial discrimination. Thus perpetuating racism through a colorblind technique.