Jul 5, 2023

The Supreme Court's affirmative action ruling.

How will this change college admissions?

I’m Isaac Saul, and this is Tangle: an independent, nonpartisan, 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: 12 minutes.

We're going long on the Supreme Court's affirmative action ruling. Plus, an under the radar story from the border, a new YouTube video, and a chance to ask a question.

Not an advertisement: One of the most common questions I get in Tangle is "can you do more international news?" or "what about a Tangle for Country X?" While we focus primarily on politics in the United States, I am thrilled to announce a new partnership with DailyChatter, an international news organization built in the same ethos as Tangle. It's the most neutral, even-handed international round-up I've found, and one of the first reads for me every morning. You can try it for 2 weeks for free, and it's just $29.95 a year after that. 84% of all users who try DailyChatter for free stick around after their trial. Sign up here. So far, the feedback from Tangle readers has been great!

Want to watch?

We published a YouTube video on affirmative action before the actual newsletter came out. If you'd rather watch my breakdown of this ruling (and see some bloopers at the end, as we have in every video), you can go here: 

What we missed.

We've been off since Friday. Here are some quick hits we missed from Monday and Tuesday:

  1. The Supreme Court struck down President Biden's student loan forgiveness plan. The Biden administration said it was pursuing a new plan to wipe out some student loan debt. (The ruling
  2. The Supreme Court ruled that a web designer can deny wedding related services to a same-sex couple if the design conflicts with her religious beliefs. (The ruling
  3. Yevgeny Prigozhin, the head of the Wagner Group that led a brief uprising in Russia, resurfaced in Belarus and called his revolt a "march of justice." (The comments
  4. A mass shooting at an annual block party in Baltimore left two people dead and 28 injured. Separately, a mass shooting in Philadelphia killed at least five people and injured two others. (The shootings
  5. Jair Bolsonaro, the former president of Brazil, was barred from running for office for eight years after a court found he abused his power during last year's election. (The ruling)

Today's quick hits.

  1. Thousands of hotel workers in Los Angeles went on strike Saturday, demanding a $5 wage hike and improved healthcare and working conditions. (The strike
  2. The Israeli military withdrew from Jenin in the West Bank days after it deployed hundreds of soldiers and launched air strikes in a "counterterrorism operation.” (The violence
  3. In the wake of the Supreme Court's affirmative action ruling, black and Latino groups have filed a civil rights complaint against Harvard, arguing that its legacy admissions program favors white students. (The challenge
  4. The Secret Service says it found cocaine in the White House during a routine inspection of a storage facility used by staff and guests. (The discovery
  5. In response to a lawsuit filed by Missouri and Louisiana, a federal judge has limited the amount of contact the Biden administration can have with social media websites. (The ruling)

Today's topic.

Affirmative action. On Thursday, the Supreme Court determined in a 6-3 decision that considering race in university admissions is unconstitutional. The ruling will reshape how the nation's most elite universities attempt to diversify their campuses, and also has the potential to impact the make-up of the nation's workforce.

The history: In Brown v. Board of Education (1954), the Supreme Court struck down racial segregation in public schools, rejecting the idea that race be used to influence educational opportunities. In 1978, in Regents of the University of California v. Bakke, the court struck down a racial quota system in higher education that was created to diversify universities, but left the door open for race-conscious admissions for schools who wanted to pursue diverse student bodies. In 2003, the Supreme Court ruled in Grutter v. Bollinger that the University of Michigan Law School could consider race in its admissions process as an attempt to create a diverse student body. In that case, Justice Sandra Day O'Connor famously suggested that in 25 years, the use of such preferences may not be necessary, but that there was good reason to use them at the time.

Then, last year, two lawsuits related to admissions policies at the University of North Carolina and Harvard landed before the Supreme Court (we covered the oral arguments here). Both lawsuits were filed in 2014 by a group called Students for Fair Admissions (SFFA). The lawsuit filed against Harvard alleged the school was violating Title VI of the Civil Rights Act, which bars entities that receive federal funding from racial discrimination. The plaintiffs argued that Asian Americans are less likely to be admitted than similarly qualified white, Black or Hispanic applicants under current Harvard admissions policies.

In the second case, the plaintiffs argued that the University of North Carolina was violating the 14th amendment's equal protection clause by considering race in its admissions process when such considerations are not necessary to create a diverse student body. That clause bars racial discrimination by government entities.

What just happened? In both cases, the plaintiffs prevailed.

Chief Justice John Roberts wrote an opinion for the majority, made up of the six Republican-appointed justices: Roberts, Brett Kavanaugh, Amy Coney Barrett, Clarence Thomas, Samuel Alito, and Neil Gorsuch. In his opinion, Roberts addressed the two cases simultaneously.

“Both programs lack sufficiently focused and measurable objectives warranting the use of race, unavoidably employ race in a negative manner, involve racial stereotyping, and lack meaningful end points," Roberts wrote for the majority. "We have never permitted admissions programs to work in that way, and we will not do so today.”

Instead, Roberts argued that the court has allowed race-based admissions to be used within narrow restrictions, and that Harvard and UNC's programs — which may have been "well intentioned" — do not comply with those restrictions. Both programs had goals that were held to be too vague for courts to measure, and the courts asked how they could determine when they had succeeded in sufficiently training future leaders or properly promoting the robust exchange of ideas. While both colleges claim race is never a negative factor, Roberts wrote that "college admissions are zero-sum. A benefit provided to some applicants but not to others necessarily advantages the former group at the expense of the latter."

Roberts also wrote that Harvard and UNC's programs lacked the "logical end point" that was once alluded to by O'Connor in the Grutter ruling. Both universities conceded in court that their programs did not have a sunset date, while UNC suggested that in the future it could weigh race to an even greater extent than it already had been.

In that regard, Roberts did write that colleges can still consider race if an applicant cites it to explain how race impacted their character or life experiences. Applicants must be judged based on their experiences as an individual, not on the basis of their race. 

The dissent: All three Democrat-appointed justices — Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson — dissented. Justice Jackson recused herself from the Harvard case, as she was a former member of the Board of Overseers at the school. In their arguments, the three liberal justices made the case that affirmative action is still a necessary system to help right the wrongs of centuries of racial discrimination at American schools, where nonwhites were long denied admission based solely on their race. Sotomayor, a Princeton and Yale graduate who has called herself the "perfect affirmative action baby," argued that society "is not, and has never been, colorblind."

The dissenting justices wrote that the decision upended decades of precedent and ignored the context with which the 14th Amendment was passed, arguing that the drafters understood it could be used for programs like affirmative action.

Along with leaving the door open for certain considerations of race like the one laid out by Roberts, the majority decision also allowed service academies like West Point or the U.S. Naval Academy to continue to use race-conscious admissions. The Biden administration had joined the case as a friend of the court and argued that military leaders believe it is important to have a diverse officer corps. In a footnote of the ruling, Roberts wrote that since the service academies did not join the case and have "distinct interests," the court did not weigh in on their admission processes.

Polling before and after the decision suggests Americans largely align with the Supreme Court's stance. About 52% of Americans approve of the court's ruling on restricting the use of race as a factor in college admissions, according to an ABC/Ipsos poll, while just 32% disagree and 16% say they don't know. Similarly, Pew has found that 50% of Americans disapprove of considering race in admissions at elite universities, while just 33% approve.

Today, we're going to write about the reaction to these rulings from the right and left, then my take.

What the right is saying.

  • Many on the right support the decision, arguing that the court has reinforced the idea race should never be used to discriminate.
  • Some suggest that colleges can move to economic-based affirmative action if they want more diverse campuses.
  • Others argue that the dissent in the opinion ignores the law and embraces the idea that two wrongs can make a right. 

The Wall Street Journal editorial board called it one of the court's finest hours.

The opinion "clears up a half-century of muddled Supreme Court rulings. In 1978 in Bakke, it opened the door to racial preferences in a plurality opinion by Justice Lewis Powell. When the issue inevitably came up again in Grutter v. Bollinger in 2003, the Court again fudged by declaring the narrow use of race kosher while adding that it should not be necessary in 25 years," the board said. "20 years later the two schools told the Court they could foresee no end to using race to achieve diversity on campus.

"The dissent by Justice Sonia Sotomayor goes further in suggesting that 'systemic inequities' may always require discrimination by race to counter discrimination by race," the board said. "But this view turns the plain meaning of the 14th Amendment on its head. It also leaves Justice Sotomayor in the odd position of arguing that, as the Chief puts it, the Court should tell 'state actors when they have picked the right races to benefit.' He adds that while the Court ruled in its landmark Brown v. Board of Education (1954) that separate but equal is 'inherently unequal,' Justice Sotomayor argues that 'it depends.'"

In The New York Post, Rikki Schlott said colleges should apply affirmative action based on need.

"You can pay for SAT prep. You can pay for someone to write a college application essay. You can pay a private school to fill a high-school transcript with AP courses," Schlott wrote. "The bottom line: money helps when it comes to college admissions." Colleges claim to solve this by implementing race-conscious admissions practices, but they're ignoring "a blatantly obvious alternative: wealth-based affirmative action." This is a solution "that would help diversify campuses socioeconomically and, by proxy, racially, considering America’s vast racial wealth disparities."

"More Harvard students are in the top 1% of family income than the bottom 50%," Schlott said. It's clear that Harvard's student body isn't remotely reflective of the country at large. Economic-based affirmative action is "a system that’s proven to work for students of all backgrounds... After California outlawed race-based affirmative action in 1996, UCLA Law School implemented a wealth-conscious admissions process. Analysis of their admissions data revealed that Hispanic students were twice as likely to be accepted and black students eleven times as likely as they otherwise would have been."

In National Review, Rich Lowry criticized the dissent from Justice Jackson.

Her opinion "hardly qualifies as a legal opinion" but instead reads "like a guest essay by anti-racist guru Ibram X. Kendi," Lowry said. "In making their case against racial preferences, the justices in the majority invoke the 14th Amendment and Title VI of the Civil Rights Act of 1964. If Jackson were being consistent, her sneering would extend to the Civil Rights Act, for it, too, favors colorblindness for all: 'No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.'"

"Jackson spends a lot of time recounting the country’s racial sins and then declares them inescapable today. Even if this simplistic account were true, she fails to establish why racially biased college admissions are legal or warranted," Lowry says. "In classic two-wrongs-make-a-right reasoning, she says that UNC’s admission process is fairer than it used to be when it excluded black people — as if past discrimination justifies current discrimination harming people who had nothing to do with the prior injustices."

What the left is saying.

  • Many on the left criticize the ruling, saying it upends decades of precedent and will harm black and minority students.
  • Some suggest the majority’s legal reasoning is embarrassing and ignores the clear original intent of the 14th Amendment.
  • Others argue that affirmative action was a broken policy, and that prior legal rulings ultimately doomed it. 

The New York Times said the court has "overturned decades of precedents" that upheld race-conscious admissions as consistent with the 14th Amendment.

"The result of Thursday’s decision means the end of a system that provided decades of opportunity for thousands of students who might otherwise have been turned away from some of the nation’s biggest colleges and universities," the board wrote. "The effects will be felt nationwide, and soon. In states that have already banned affirmative action in higher education, the percentage of Black students has dropped, in some cases dramatically." This is the second time in just over a year the court has overturned longstanding precedent, however imperfectly implemented, to end programs that had expanded "basic rights and freedoms to a large group of Americans who had suffered under a legal system that treated them as second-class citizens."

"Why now? Nothing has changed in either case — not public opinion, not the underlying facts, not even the behavior of the two schools targeted in the court’s decision, which were both following the guidelines the Supreme Court set out in a previous ruling on affirmative action in 2003," the board said. "Only one thing has changed: the court’s membership." The majority opinion "takes a long time to make a simple — and simplistic — point: There is no real difference between the centuries of racial discrimination against Black people and targeted race-conscious efforts to help Black people. Both are equally bad, in this view."

In The Nation, Elie Mystal said "mediocre whites" can now rest easier.

"The 14th Amendment was, of course, written explicitly to revoke the racism practiced by whites against Blacks through their slaver’s Constitution, but Roberts doesn’t care about all that," Mystal said. "His opinion attempts to capture the 14th Amendment and redeploy it to justify a white version of 'color blindness' that just so happens to lock in a status quo that benefits whites." Affirmative action wasn't made vulnerable just by Republican lawyers and activists, but the "soft bigotry of parents" whose commitment to integration and equality "turns cold" the moment their children fail to get into their first choice of college or university.

The legal arguments here "are embarrassing." The fact-finding district court determined "that the universities do not intentionally discriminate against AAPI [all Americans of Asian, Asian American or Pacific Islander ancestry] students—and, more specifically, that there is no evidence that affirmative action is hurting them. (I have written that I think Harvard does discriminate against AAPI applicants, but that discrimination has nothing to do with affirmative action.) ... In California, which ended its affirmative action policies over 25 years ago, the studies show that, without affirmative action, Black enrollment plummets, Latino enrollment plummets, AAPI enrollment goes up a little bit, and whites flood the remaining opportunities."

In The New Yorker, Jay Caspian Kang criticized affirmative action and the way Asian Americans have been left out of the conversation.

"The evidence the plaintiffs had amassed that Harvard, in particular, discriminated against Asian applicants through a bizarre and unacceptable 'personal rating' system is overwhelming," he wrote. In 1978, the court determined that race could be considered to produce a diverse student body, but not as a form of reparations to reduce the harms of slavery and injustice. Affirmative action "was doomed from that moment forward because it had been stripped of its moral force."

It's one thing to argue "that slavery, lynchings, Jim Crow laws, mass incarceration, and centuries of theft demand an educational system that factors in the effects of those atrocities." If a black student descended from slaves who grew up in poverty got "a bump on his application" when compared with a rich private school kid from the suburbs, "so be it," Kang wrote. "But that is not, in fact, how affirmative action usually plays out at élite schools. Most reporting on the subject—including my own, as well as a story in the Harvard Crimson—shows that descendants of slaves are relatively underrepresented among Black students at Harvard, compared with students from upwardly mobile Black immigrant families. It is easy and perhaps virtuous to defend the reparative version of affirmative action; it is harder to defend the system as it has actually been used."

My take.

Reminder: "My take" is a section where I give myself space to share my own personal opinion. If you have feedback, criticism, or compliments, don't unsubscribe. Write in by replying to this email, or leave a comment.

  • Affirmative action's promise has been much different from its outcome.
  • While it was a just idea, the problems we're seeing now were always going to happen eventually.
  • Pursuing diversity (of all kinds) on campus is a smart goal, and colleges can do it without affirmative action.

I've long been torn on affirmative action, because the concept of it makes perfect sense while the execution of it seems perpetually broken. 

As I wrote when we covered oral arguments in this case, I think these three things are all true: 1) Affirmative action was necessary and totally justified when it was implemented. 2) The trap of affirmative action was always obvious, and the problems presented in this case are unavoidable when you allow race to be a primary consideration. 3) The existence or non-existence of affirmative action is not going to solve the biggest problems facing our country’s secondary education system.

The reasons for #1 should be obvious. American universities spent centuries prohibiting nonwhites from attending. This isn't ancient history; most senior citizens in America today were alive in an era when black people, Asians, Hispanics, and other nonwhites were prohibited from going to many colleges or prohibited from attending school with whites. Obviously, if you do this for a few centuries, simply undoing that policy is not going to level the playing field. Most of us now know the famous Lyndon Johnson quote:

''You do not take a person who, for years, has been hobbled by chains and liberate him, bring him up to the starting line of a race and then say, 'You are free to compete with all the others,' and still justly believe that you have been completely fair. Thus it is not enough just to open the gates of opportunity. All our citizens must have the ability to walk through those gates.''

At the same time, it has been 20 years since Sandra Day O'Connor wrote about the need to sunset affirmative action. Her vision then was prescient: As the goals of affirmative action have been achieved — diversifying college campuses and the workforce, closing the racial wealth gap, and creating more equal opportunities — it would begin to disadvantage students of lower socioeconomic status who were not minorities. Or, in the case of Harvard, it would begin to disadvantage certain minorities who were over-achieving academically.

The examples that came out in this case also exposed other problems. For instance, when you solely emphasize race, you may end up opening doors for wealthy black immigrants while boxing out actual American descendants of slavery or oppression, the exact population the program was designed to benefit.

I think it’s clear that colleges have an interest in diversifying their campuses to more closely reflect the world their students will be graduating into. But to me, that diversity should not rest primarily on race. 

When considering ways to balance the scales, in today's America, elite universities would be wiser to make economic and wealth diversity among its student body their primary considerations (as Rikki Schlott argued under "What the right is saying"). And as Kang laid out (under “What the left is saying”), it’s also become clear that affirmative action is mostly benefiting rich kids, not struggling descendants of slavery and Jim Crow. Not only is it no longer achieving its stated purpose, but the disadvantages for Asian Americans are now too big to ignore, and the court has plenty of legal ground to stand on in ruling that affirmative action is unconstitutional.

While racial inequality persists, a policy of affirmative action based on socioeconomic status would organically offer more opportunities to students of color, but also prevent the obvious and inverted dynamic we have now: Wealthy students who can afford SAT tutors and paid services to get into these schools have a gigantic advantage over those who can't.

Secondary to these considerations could be things like immigration status, language use, political diversity, and race (as in the context Roberts offered). At the same time, these elite universities should consider abandoning practices like legacy admissions, which — as Justice Jackson has argued — are effectively race-based admissions for whites. After all, if you are prioritizing the parents and grandparents of applicants who went to a school in an era when nonwhites weren't even allowed in, then you are de facto discriminating based on race — which is exactly what some students are now arguing

These changes, to me, would be the better way to create superior learning environments on college campuses.

I also think it's important to remember that this is not a ruling that will impact many or even most students. As Noah Smith has put it, "far too much of our discourse about education focuses on a handful of tiny elite private universities" in the northeast. Just 6% of college students attend a university with an acceptance rate of 25% or less. This ruling is not going to impact the vast majority of students of color, who absolutely need (and deserve) more education opportunities  but are not likely to get them from these elite schools. There simply aren't enough seats in those classrooms.

So while I think ending affirmative action as it exists is pretty defensible, the legal arguments here are more difficult to parse. As The New York Times editorial board explained in its piece, the initial Supreme Court ruling on affirmative action focused on the right for colleges to pursue diverse campuses rather than a form of reparations to solve for slavery and Jim Crow. It was a compromise ruling that set up all these future challenges and, ultimately, led to affirmative action's demise. I do believe the drafters of the 14th Amendment understood that policies like affirmative action — racial discrimination "for good" — were going to be implemented. Indeed, some were still living when affirmative action was introduced, and we have no indication it upset their sensibilities in achieving the amendment’s goal. 

Any way you slice it, the key now is finding a way to make this a positive for the country as a whole. Elite universities have an obvious interest in diversifying their campuses; classroom discussions on race will be much richer and more informative if they aren’t held in a room full of white people, just as discussions about politics are more enriching when the room isn’t full of folks with only one viewpoint.

This is the obvious benefit of diversity. Colleges and universities can still achieve this by seeking out a diverse student body through non-racial means like affirmative action based on socioeconomic status, and they should.

There’s no way around affirmative action’s inherent issues, and with it now being effectively ended, there is a new opportunity to improve our college campuses. Schools shouldn’t simply stop considering race as a response to this ruling, they should expand their idea of what makes a campus diverse. And our most elite schools should do some soul-searching on their overwhelmingly rich and legacy-based student bodies. 

Your questions, answered.

We're skipping today's reader question to give our main topic some extra room to breathe. Want to have a question answered in the newsletter? You can reply to this email (it goes straight to my inbox) or fill out this form.

Under the radar.

Nearly two months since Title 42 ended, the number of migrants crossing into the U.S. has sharply declined and remains relatively low. The pandemic-era health order allowed the government to quickly expel migrants, and its end left many immigration experts predicting chaos at the border. Instead, illegal crossings are down to about 3,360 per day. In March, they were 7,100 per day, a historic high. Determining factors and causes of increases and decreases in migration is far from an exact science, but a few theories exist: Migrants might be in "wait and see" mode, trying to understand the new policies. New opportunities to immigrate legally might be reducing illegal immigration. And increased enforcement in Mexico and Guatemala could also be helping, or some combination of the three. Still, officials warn they don't expect the lull to last. The New York Times has the story


  • 47%. The percentage of black adults in the U.S. who approve of selective colleges considering race and ethnicity in admissions decisions.
  • 29%. The percentage of black adults in the U.S. who disapprove of selective colleges considering race and ethnicity in admissions decisions.
  • 37%. The percentage of Asian adults in the U.S. who approve of selective colleges considering race and ethnicity in admissions decisions.
  • 52%. The percentage of Asian adults in the U.S. who disapprove of selective colleges considering race and ethnicity in admissions decisions.
  • 29%. The percentage of white adults in the U.S. who approve of selective colleges considering race and ethnicity in admissions decisions.
  • 57%. The percentage of white adults in the U.S. who disapprove of selective colleges considering race and ethnicity in admissions decisions.
  • 16%. The percentage of all adults who are unsure.

The extras.

  • One year ago today we wrote about Congress passing the Respect for Marriage Act.
  • The most clicked link in our last newsletter was the ad in our free edition for Morning Brew.
  • Poll results: When asked what they thought about Lauren Boebert's attempt to impeach Joe Biden, 85% of Tangle readers said that Boebert was wrong to bring articles of impeachment, and Biden's actions do not warrant impeachment. 11% said his actions do warrant impeachment, but Boebert was wrong to bring articles of impeachment. 2% said Biden deserves impeachment, and Bobert was right to bring articles. 1% said Biden does not deserve impeachment, but Boebert was right to bring articles of impeachment.
  • Nothing to do with politics: The Fourth of July Key Lime Pie Eating Contest.
  • Take the poll. What do you think of the Supreme Court's decision to end affirmative action? Let us know!

Have a nice day.

Sea otter populations on North America's West Coast have rebounded, and that is good news for a zero-cost method to address climate change. For years, otters have been hunted to near-extinction in pursuit of their warm and soft fur. However, according to the Monterey Bay Aquarium, there are now over 100,000 otters on the Pacific Coast again. That's good news for kelp and seagrass, which have been decimated by sea urchins, which in turn have thrived in the absence of the otters who love to hunt and eat them. A healthy kelp forest can absorb enough carbon to cancel "the equivalent of canceling the emissions from 5 million automobiles," according to Bob Bailey, president of the Elakha Alliance. "Otter reintroduction has all these cascading effects we are learning in real time. We hadn’t anticipated this before,” added University of California, Santa Cruz Professor Tom Tinker. Reasons to Be Cheerful has the story.

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Isaac Saul
I'm a politics reporter who grew up in Bucks County, PA — one of the most politically divided counties in America. I'm trying to fix the way we consume political news.