Jan 26, 2022

Affirmative action goes to SCOTUS.

Affirmative action goes to SCOTUS.

This could be the end of the 44-year policy.

I’m Isaac Saul, and this is Tangle: an independent, ad-free, subscriber-supported politics newsletter that summarizes the best arguments from across the political spectrum on the news of the day — then “my take.”

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Today's read: 13 minutes.

We're explaining affirmative action and the latest court challenges that are now going to the Supreme Court. Plus, a reader question about the U.N. and Ukraine.

A protest in Boston's Copley Square on October 14, 2018 to support the lawsuit from Students for Fair Admissions against Harvard. Photo: Whosijohngalt / WikiCommons
A protest in Boston's Copley Square on October 14, 2018 to support the lawsuit from Students for Fair Admissions against Harvard. Photo: Whosijohngalt / WikiCommons

Correction.

In yesterday's newsletter, I wrote that NATO was the North American Treaty Organization. This, uh, was a very dumb error. And this time, I can't blame it on my editors, because I actually remember how it happened: I wanted to move the full spelling of NATO to a different place in the article, and when I did I accidentally copied and deleted (instead of pasting) "North Atlantic Treaty Organization." It was already 12 p.m. EST, so I was rushing to get the newsletter out, and just re-typed it in — but I guess my brain misfired on North and "A" and wrote North America.

Anyway, I know what NATO stands for. I swear.

This is the 52nd Tangle correction in its 131-week history, and the first correction since January 20th, when I called a turtle a mammal. I track corrections and place them at the top of the newsletter in an effort to maximize transparency with readers.


Reader feedback.

Quite a few readers responded to yesterday's newsletter to point out that there is another pathway for presidential elections to be decided that isn't by national popular vote: The National Popular Vote Interstate Compact. This is a good point. I have actually written about the compact in Tangle before, but it's worth reading about if you haven't seen it. The rough idea is that if enough states worth enough electoral college votes go the way of the popular vote, they can force the change without a constitutional amendment. And they present some good counter arguments to my points about why this is necessary.


Quick hits.

  1. House Speaker Nancy Pelosi (D-CA) announced that she would run for reelection. The 81-year-old did not indicate whether she would run for speaker again. (The announcement)
  2. Democrats are beginning to push the America COMPETES Act, a bill aimed at boosting U.S. high tech research and manufacturing. (The bill)
  3. Former President Trump's new social media network Truth Social is reaching out to internet influencers to "reserve their spots." (The idea)
  4. Federal prosecutors are examining the decision by Republican electors in some states won by President Biden in 2020 to send in signed statements purporting to affirm Donald Trump as the victor of the election. (The investigation)
  5. Sean Caddle, a longtime New Jersey Democratic political consultant, pleaded guilty to hiring two people to kill a former associate. (The confession)

Our 'Quick Hits' section is created in partnership with Ground News, a website and app that rates the bias of news coverage and news outlets.


Today's topic.

Affirmative action. On Monday, the Supreme Court agreed to hear two separate challenges to colleges who consider race during the admissions process (often called affirmative action). Both cases, one from North Carolina and the other from Harvard, allege that race-based admissions processes discriminate against Asian Americans.

The basics: When colleges are picking which students to admit, they will consider factors like community service, athletics, and — sometimes — race. It's unclear precisely how many schools consider race in their applications, but it's generally accepted that it's a small minority, perhaps just a few hundred of the 6,000 colleges in America and usually at more selective schools (most colleges don't disclose whether they consider race, or how often). The idea behind "race conscious" admissions, as it is sometimes called, is to address racial discrimination against Black students that has existed for decades.

Supporters of affirmative action say it levels the playing field and brings a more diverse group of students to campuses. Opponents say it is its own form of racial discrimination that has harmed some historically oppressed groups who tend to outperform academically.

Most states allow affirmative action, but nine have outlawed it, including California (1996), Washington (1998), Florida (1999), Michigan (2006), Nebraska (2008), Arizona (2010), New Hampshire (2012), Oklahoma (2012), and Idaho (2020).

The challenges: Both lawsuits are being brought by Students for Fair Admissions (SFFA), a Virginia group that argues race should not be a part of admissions. In the case against Harvard, the group is arguing that Asian-American students are significantly less likely to be admitted than similarly qualified white, Black and Hispanic applicants. It also found that Asian students received lower scores on a subjective "personal" rating designed by Harvard's admissions to measure likability and kindness. SFFA has also asked the court to evaluate whether Harvard's admissions policies violate Title XI, which bans racial discrimination by entities receiving federal funding.

Harvard has defended its practices by saying it evaluates race in “in a flexible and non-mechanical way," and indeed its admissions processes have repeatedly passed constitutional muster.

In the University of North Carolina case, SFFA argued that the state's top public university is violating Title VI and the Constitution by considering race at all. They argue UNC is a public university and is covered by the 14th Amendment guarantee of equal protection. A federal district court rejected SFFA's arguments, so it took them to the Supreme Court. UNC has said it implements other programs to increase diversity, like recruiting low-income and first-generation college students, but no alternative would create a student body “about as diverse and academically qualified as its holistic, race-conscious admissions process.”

The history: In 1978's Regents of the University of California v. Bakke, the Supreme Court banned numerical race quotas for universities but said race could be one of several factors in admissions. In 2003, the Supreme Court's landmark Grutter v. Bollinger ruling said that the University of Michigan could consider race as part of its efforts to assemble a diverse student body in its graduate program. Similar rulings in 2013 and 2016 upheld those rulings for undergraduate programs. In 2019 a federal judge also upheld Harvard's admissions practices, saying they were not perfect but passed constitutional muster, and that the school was justified in “compelling interest in diversity" on college campuses. An appeals court upheld that ruling.

Below, we'll take a look at some arguments from the right and left, then my take.


What the right is saying.

  • The right says the policy is dated and discriminatory on its own.
  • They urge SCOTUS to end affirmative action, saying minorities like Asian Americans are being harmed.
  • They say the policy actually hurts the students it is supposed to help.

Helen Raleigh said many Asian Americans, including her, have "high hopes" the court will finally eliminate racial preference in the college admission process.

"But on this critical issue, Democrats have chosen to embrace critical race theory (CRT), a neo-Marxist ideology that attributes all disparities in any group outcome to systemic racism," she wrote. "Adherents of CRT claim that they must dismantle the 'racist' meritocracy-based education system to achieve equity in education outcomes. In the last two years, Democrats have pushed for education 'reforms' such as the elimination of the merit-based admissions to elite high schools, phasing out gifted and talented programs, dumbing down math education and dropping SAT and ACT scores from the college admission process. Most recently, the Biden administration called on the Supreme Court to deny challenge to Harvard's anti-Asian race-based admissions policy.

"Democrats have targeted the institutions where Asian students have thrived the most," Raleigh wrote. "Democrats argue that Asian students are 'over-represented' in elite schools and should be excluded to make room for 'oppressed people of color.' San Francisco school board commissioner Alison Collins even accused Asian-Americans of using 'white supremacist thinking to assimilate and get ahead.' ... Asian Americans have endured a long history of bigotry and racial discrimination in the United States, and have been part of the civil rights movement to help the United States become more just and fair for Americans of all races. The AAPI community's overall high level of educational attainment and economic success is a testament to our nation's progress in racial equality.”

In The Wall Street Journal, Jason Reilly pointed to a study showing Black students at Duke were dropping out of challenging majors at a higher rate than white students.

"The Duke findings are important because they demonstrate that racial preferences in college admissions are not only legally dubious but also counterproductive," Reilly said. "Students who would likely thrive at less selective institutions are struggling at elite schools, where they are admitted for aesthetic purposes. After the University of California system ended its race-conscious admissions policies in the 1990s, black students were steered into schools that better matched their academic preparation, and black graduation rates rose.

"The plaintiffs in the cases against Harvard and UNC are hoping that the Supreme Court will finally stop kicking the can on racial preferences, which is essentially what it’s been doing since the 1978 Bakke decision, when the court banned numerical quotas but said that race could be one of several factors considered in college admissions," he added. "Nevertheless, it has become a major factor even while school admissions officers pretend otherwise, and they will continue down this road until the court decides that the Constitution and the Civil Rights Act of 1964 mean what they say: that discrimination on the basis of race is illegal."

In City Journal, Joel Zinberg said the court has a chance to end institutional bias at universities.

"The time for a change in direction is long overdue. Both Justice Sandra Day O’Connor, writing for the majority in Grutter, and Justice Ruth Bader Ginsburg, writing in concurrence, respectively expressed a hope that affirmative action could end within 25 years or a generation," Zinberg wrote. "Grutter was decided 19 years ago. Since then, conscious, institutional bias against minorities has been largely eliminated, and most institutions are committed, perhaps excessively so, to eliminating even unconscious bias."State-sponsored discrimination against any group in the name of diversity has become a less compelling interest than it was in the time of Grutter," he added. "We should reassert the precepts of the Equal Protection Clause to shield all races and ethnicities from unfairness. As Chief Justice Roberts wrote in 2007 in reviewing a Seattle school system affirmative-action plan, 'The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.'"


What the left is saying.

  • The left says affirmative action is still needed and supported, even by Asian American students.
  • They argue that states which banned affirmative action have seen strong negative outcomes.
  • They say there is too much Supreme Court precedent to reverse previous rulings.

In UNC's independent student newspaper The Daily Tar Heel, Nicholas Li-wen Hatcher said we shouldn't be squabbling over affirmative action.

"The new faux-progressive core of SFFA’s messaging is that the group is working to end racial discrimination against Asian American applicants," Hatcher wrote. "This narrative is filled with holes. Many Asian Americans benefit directly from affirmative action, especially those who came to the United States as refugees. Additionally, a 2020 study by AAPI Data found that a clear majority of Asian Americans support affirmative action policies. And if SFFA wanted to create more seats for white and Asian students, it would be fighting to expand class sizes instead of quibbling over a few of the seats currently available.

“But despite these holes, the admissions debate remains intensely personal, and it's easy to get caught up in the rhetoric of ‘fairness.’ Anyone who has ever been rejected from a college has a stake in the game," Hatcher said. “However, the real problem is that we have to play this ridiculous game in the first place. We must remember that affirmative action is the bare minimum. It doesn’t even begin to address why we have to fight over access to elite institutions or how to actually support students of color after enrollment... [U.S. District Judge Loretta] Biggs, a double-HBCU graduate herself, notes in her opinion that, 'Nearly seventy years after the first black students were admitted to UNC, the minority students at the University still report being confronted with racial epithets, as well as feeling isolated, ostracized, stereotyped and viewed as tokens in a number of University spaces.'"

In Slate, Mark Joseph Stern said the "nearly guaranteed outcome" will be a ban on affirmative action, reversing 44 years of precedent.

"For as long as GOP lawyers have sought to eradicate affirmative action through federal courts, opponents of the policy have pushed for bans through the democratic process, as well," Stern wrote. "Nine states have banned the practice by legislation, ballot initiative, or executive action; these moves resulted in a staggering decline in the share of underrepresented racial minorities enrolled in higher education... But the dream of a nationwide prohibition has floundered—until now. Not because Republicans won enough votes in Congress or persuaded enough states to enact a ban, but because they installed enough conservative judges to make this dream a reality by judicial diktat.

“This same story has played out time and again over the last few years. The GOP has outsourced large chunks of its agenda to the courts,” Stern wrote. “Republicans couldn’t hobble public sector unions in blue and purple states, so they asked SCOTUS to do it. Republicans couldn’t convince Congress to create a nationwide right to concealed carry, so they asked SCOTUS to do it. Republicans couldn’t force states to legalize discrimination against LGBTQ people, so they asked SCOTUS to do it. Republicans couldn’t secure legislative repeal of campaign finance restrictions, so they asked SCOTUS to do it. Republicans couldn’t stop the president from issuing vaccine policies, so they asked SCOTUS to do it. Republicans couldn’t compel states to fund religious education, so they asked SCOTUS to do it. Republicans couldn’t pass a bill to eviscerate the Voting Rights Act, so they asked SCOTUS to do it. The list goes on; it will only grow longer. And these days, SCOTUS almost always says yes."

In The New Republic, Matt Ford wrote that SFFA's claims haven't held up under scrutiny from the courts.

"The lower courts rejected those arguments against both Harvard and UNC after extensive fact-finding, a point that both schools stressed in their responses to the petitions. 'As the district court’s exhaustive and rigorous 155-page opinion shows, there can be no serious question that the university’s admissions process complies with this Court’s precedents,' UNC told the justices. 'Perhaps for this reason, SFFA devotes very little of its petition to the actual facts of this case. Instead, SFFA attacks this Court’s settled precedents that the university has meticulously followed,'" Ford said.

"A sweeping ban by the Supreme Court could have negative consequences for Black and Hispanic applicants," Ford said. "A 2020 study on the effects of California’s Proposition 209, which banned race-conscious admissions programs in state universities after voters approved it in 1996, found that the change led to worse outcomes for Black and Hispanic high school graduates in the state in virtually every metric. Admission rates and postgraduation earnings declined for both groups, without significant gains by white or Asian students."


My take.

The most obvious thing to say is that this is not a simple issue. For the purposes of "my take" I'm going to focus a bit more on the outcomes and ethics of affirmative action, rather than the legal tension around Title VI or the purported violations of the 14th Amendment discussed above, but suffice it to say there are strong arguments on both sides.

What is certain to me is that affirmative action was necessary. It turns out that when you enslave, discriminate, and oppress a racial group for centuries, it has a negative impact on their educational attainments. And given that most colleges have a sordid history of discrimination against Black students and other minorities, instituting policies that opened the gates to those students was a rational policy that really doesn't come close to making amends for the harm that was done over time — if you stop to think about it for more than three minutes.

The question now is whether it's time to end it or phase it out. This was, it should be noted, always the goal from the judicial perspective. Justices Ruth Bader Ginsburg and Sandra Day O'Connor hoped that 25 years from the 2003 Grutter decision we could end affirmative action — it's now been 19. I think there is a strong case to be made that institutional bias at universities has been seriously diminished since then, but I don't know precisely how you'd measure whether it's hit a point where ending affirmative action would be a net positive for society.

In some ways, though, we're already seeing affirmative action be phased out. Past rulings haven't thrown out affirmative action, but they have allowed the courts to limit it in various ways — and they've given states permission to choose whether they want to use it or not. So on top of nine states banning the practice outright, the vast majority of schools don't even consider race in admissions at all. There is a perfectly reasonable way to look at this and think the issue is already moving in an organic direction that opponents want it to, and maybe this whole thing is being blown way out of proportion.

I'm also sympathetic to the simple logic that if you want to ban racial discrimination you should stop discriminating based on race. Inherent in this argument is the tension between equity and equality, which is a push and pull we are witnessing in today's discussions and debates about race all the time.

One other important thing to consider here is that these schools — particularly North Carolina — aren't just considering racial diversity. What they've demonstrated in previous court cases is they are genuinely seeking out diversity across things like class, race, extracurriculars and first-generation students. I think this is a great policy because I think when students go to college they should be surrounded not just by the kinds of kids who can pay for an SAT tutor or grew up in a "Yale family" but by students with seriously different backgrounds who can compete with them academically. And it works in the other direction, too: White students or wealthy students benefit from sharing classrooms with people who come from different ethnic or economic backgrounds.

Harvard's policies, meanwhile, may not be succeeding in the same way. One suggestion SFFA made in its filings was for Harvard to eliminate its preference for white and wealthy students (i.e. family of alumni and donors) and instead institute a preference for socioeconomic diversity. This would give the school greater racial diversity and class diversity without relying on race-based admissions — which seems to me a far superior alternative.

Ultimately, I think there is enough clear Supreme Court precedent here, given that we are just six years short of the justices’ self-imposed 25-year timeline for the policy, that banning affirmative action should be perceived as a vast overreach by the conservative majority. I also think that just because certain policies like Harvard's are failing or clearly producing discriminatory outcomes against Asian Americans doesn't mean the practice should be banned outright — it means Harvard should reform its admissions process (even if it takes a court dictating that it do so).

The other option is to leave it up to us. Nine states have banned the practice and opponents can take it to the people just as those states did. Given that only a small slice of schools are even considering race in their admissions, that those schools have a strong motivation to create diverse campuses, plus the negative outcomes we've seen in states where affirmative action was ended, and the fact that many of these colleges have demonstrated in court they're following the law, I'd hope to see SCOTUS let this one ride for at least another few years or a decade. But I suspect that outcome is unlikely.

Have thoughts about "my take?" You can reply to this email and write in or leave a comment if you're a subscriber.


Your questions, answered.

Q: Why have I/we not read or heard anything about the United Nations being involved in the Ukraine crisis? I would think that the situation in the Ukraine is the number one thing the United Nations was created to prevent, yet on the surface it seems there is no United Nations involvement.

— Mike, Hereford, Arizona

Tangle: Mostly because the U.N. doesn't have a standing Army. NATO doesn't either, but it has a command structure that is composed of all member states and their military personnel. A lot of the movement that you've heard about recently has been related to how that command structure and those alliances work — and the way they are attempting to snap into place to defend Ukraine.

That being said, you'll be hearing about the U.N. soon. Biden is reportedly planning a public showdown with Russian counterparts at the next United Nations Security Council meeting, where some dramatic public confrontations have taken place historically. But — and this is another reason you haven't heard much — Russia has veto power on the Security Council. So there really is very little the U.S. could do via the U.N. to compel them into any action.

Want to ask a question? You can reply to this email and write in (it goes straight to my inbox) or fill out this form.


A story that matters.

U.S. manufacturers and other companies that use semiconductors say they are down to less than five days of inventory for key chips, according to the Commerce Department. In 2019, companies were maintaining 40 days of inventory for key chips. The shortage has left Commerce Secretary Gina Raimondo urging Congress to approve $52 billion to boost domestic chip production. These chips are used in everything from automobiles to hospital equipment and refrigerators. A shortage could upend a variety of U.S. industries. WSJ has the story.


Numbers.

  • 73%. The percentage of Americans who say colleges and universities should not consider race or ethnicity when making admissions decisions.
  • 38%. The percentage of Black respondents who said race or ethnicity should be a major or minor factor in admissions.
  • 42%. The percentage of Asian respondents who said race or ethnicity should be a major or minor factor in admissions.
  • 71%. The percentage of Black and Latino students at Harvard who come from high-income backgrounds, according to a researcher from The Century Foundation.
  • 109. The number of public colleges (out of 577 surveyed) in the U.S. that self-reported considering race as part of admissions, as of 2015.

A confession.

Tangle had an amazing year in 2021, and in 2022 we're looking to build on it. But I'll be honest: Like most news organizations (and newsletters), growth at Tangle has slowed over the last few months. The market is saturated, a lot of people tune out when it's not an election year, and continuing to grow now requires paying to acquire new customers and advertise in other places.

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Thank you,
Isaac & the Tangle team


Have a nice day.

Less than a week after announcing a policy to supply free masks to the public, high quality N95 masks are starting to arrive at pharmacies and grocery stores. The White House's effort to distribute the masks has unfolded with surprising speed, and more than 400 million N95 masks are starting to be distributed to the public. "Every person is allowed up to 3 free masks pending availability," the Department of Health and Human Services states. Stores like Kroger, Meijer, and popular pharmacies like CVS will be distributing the masks. The government often gets blasted for being inefficient and ineffective in this newsletter, so it’s only fair to call out some good news when they execute something well. NPR has the story.


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