Nov 3, 2022

Affirmative action at the Supreme court.

Are race-conscious admissions becoming discriminatory?

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: 14 minutes.

Today, we're covering the debate over affirmative action, and going long on the arguments for and against it. Plus, a reader question about yesterday's coverage on Paul Pelosi, and a major Justice Department sting.

Yes, you should vote.

Election day is just five days away. As part of 2022 midterm coverage, we'll be re-running my piece "Yes, you should vote" tomorrow. The piece will be slightly updated (and I'll continue updating it anytime we publish it) to address the current moment. I encourage you read it and share it widely.

Quick hits.

  1. The Federal Reserve approved its fourth consecutive 0.75% interest rate hike. It's the sixth overall hike this year. (The hike)
  2. The Parkland, Florida, shooter was sentenced to life in prison for the 2018 attack that killed 17 students. (The sentence)
  3. Russia says it will resume participation in an agreement that allows grain exports to leave Ukrainian ports, after it received written guarantees from Ukraine that the Black Sea would not be used for military operations. (The agreement)
  4. President Biden delivered a prime time speech warning Americans that democracy was under threat, and calling for voters to turn out to prevent Republican majorities in Congress. (The speech)
  5. The Ethiopian government and Tigray’s People's Liberation Front agreed to a truce in a two-year civil war that has killed hundreds of thousands of people and displaced over five million residents. (The truce)

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 heard oral arguments in two cases challenging the use of race-conscious admissions in colleges. During oral arguments, the conservative majority court appeared primed to strike down the use of race as a consideration in college admissions.

The cases: Both lawsuits now in front of the Supreme Court were filed in 2014 by a group called Students for Fair Admissions (SFFA). The first, filed against Harvard, says the school was violating Title VI of the Civil Rights Act, which bars entities that receive federal funding from racial discrimination. The plaintiffs argue 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 are arguing that the University of North Carolina violates the 14th amendment's equal protection clause, which bars racial discrimination by government entities, by considering race in its admissions process when such considerations are not necessary to create a diverse student body. Both universities prevailed in federal courts, but both cases were appealed to the Supreme Court.

The history: In Brown v. Board of Education (1954), the Supreme Court struck down racial segregation in public schools, rejecting the idea that race could 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, but left the door open for race-conscious admissions. 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 in her opinion that in 25 years, the use of such preferences may not be necessary.

The arguments: In SCOTUSblog, Amy Howe broke down the oral arguments, in which the conservative justices focused on criticisms of the precedent that has allowed race-conscious admissions, and pressed lawyers defending affirmative action to explain the educational benefits of diversity. The justices also prodded at how the universities determine when they have diverse student bodies, whether the colleges will consider race indefinitely (which O'Connor never endorsed), and pointed to alternative ways to ensure a diverse student body, like more robust financial aid to low-income and first generation immigrant students.

The universities have responded by arguing that there is no race-neutral way to ensure a diverse student body that is more effective than considering race as part of applications. Lawyers representing the schools, as well as the liberal justices, stressed that race is just one of many considerations when a student applies to college, and that lower courts had already determined neither school had been guilty of discrimination.

Justice Ketanji Brown Jackson, who recently sat on the board of Harvard admissions, recused herself from the Harvard case. However, in the UNC case, she suggested that forbidding race considerations could create Constitutional violations. Jackson suggested a hypothetical where one student's family had attended UNC for generations and another student, who was Black, had no legacy at UNC because Black students were once barred from attending at all. “The first applicant would be able to have his family background considered and valued by the institution as part of its consideration of whether or not to admit him,” she suggested, "while the second one wouldn't." That, Jackson said, could be its own violation of the equal protection clause.

The outcome: This case will be decided sometime next year. Questioning from the justices suggested they are likely to overturn Grutter and Bakke, effectively ending the use of race-conscious admissions. However, lawyers representing the universities urged the justices to send the cases back to the lower courts if they did not believe they were sufficiently reviewed, and Justice Gorsuch appeared open to the idea of ruling in the two cases without weighing in on any constitutional issues.

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

What the right is saying.

  • The right is opposed to race-conscious admissions, and argues that it is time to strike down the use of affirmative action.
  • Many criticize the practices of Harvard and UNC, arguing that they create discrimination against students of Asian descent.
  • Some say affirmative action was once necessary, but there are better ways to create diverse campuses now.

In The New York Times, Renu Mukherjee, a first generation immigrant, argued that there are better ways for universities to foster diversity.

"The story of how my family arrived and found its way in America is a unique one that exemplifies diversity," Mukherjee wrote. "But based on revelations from Students for Fair Admissions’ challenge to Harvard and the University of North Carolina’s race-conscious admissions policies, cases that have oral arguments before the Supreme Court on Monday, it seems neither of these schools would agree with me. They, along with many other elite universities in the U.S., seem to have decided that because Asian American enrollment at their schools exceeds the Asian American share of the population, stories like mine don’t count as 'diverse.' Instead, the stories of 'underrepresented' racial minorities tend to count more as the diversity in which universities have a compelling interest, the rationale for racial preferences today.

"Racial preferences in college admissions are wrong, and not just because they make it more difficult for certain racial groups over others to gain admission," Mukherjee said. "Race-conscious admissions programs are wrong also because they promote the view that certain types of diversity matter more than others, that certain stories are more worth telling than others. This is obviously misguided. On a university campus, true diversity should encompass all aspects of a student’s personhood that could contribute to the educational environment, like whether the student is a spelling bee champion, grew up in a single-parent household, or worked in a New York pizza parlor. Indeed, this is what Justice Lewis Powell had in mind when he established the diversity rationale behind race-conscious admissions in 1978’s Regents of the University of California v. Bakke."

In The Federalist, Margot Cleveland said there is "no equal protection" if universities can rate skin color in admissions.

"In making admissions decisions, both Harvard and the University of North Carolina consider the race of applicants, with the schools advantaging American Indian, Hispanic, and black applicants to the disadvantage of Asian American students," Cleveland wrote. "The lawsuits proceeded to trial with the SFFA taking a two-prong approach, arguing both that Grutter was wrongly decided and should be overturned, and that the universities violated Grutter by giving race an 'undue' influence on admissions decisions by making race a 'minus' for Asian Americans and by adopting 'impermissible racial stereotypes' about Asian Americans, such as that they are 'timid, quiet, shy, passive, withdrawn, one-dimensional, hard workers, perpetual foreigners, and model minorities.’"

"The universities’ argument will likely fail… for several reasons," Cleveland said. "First, the laws providing for 'race-conscious' assistance were few and far between, and as the SFFA stresses, 'colorblind statutes from the era are more prevalent.' Second, the adoption of laws to benefit former slaves provides no guidance on whether the 14th Amendment’s equal protection clause allows states to make race-conscious decisions for reasons other than to 'remedy past state-sponsored discrimination.' And third, as SFFA writes, 'none of the postbellum statutes are controlling because, for decades, this country largely disregarded the Fourteenth Amendment’s text. But that ‘text,’ not ‘post-ratification … laws that are inconsistent’ with it, ‘controls.’ ... as Chief Justice John Roberts said so simply, 'The way to stop discrimination on the basis of race, is to stop discriminating on the basis of race.'"

In The Dispatch, David French argued that racial discrimination is not the path to racial justice.

"As Richard Kahlenberg argued last week in The Atlantic, universities are keeping a 'dirty secret.' Racial preferences 'provide cover for an admissions system that mostly benefits the wealthy.' In other words, the universities preserve a longstanding status quo that privileges those individuals—legacy admittees and children of donors, for example—who preserve the university’s wealth and power while using race preferences as a blunt instrument to render universities 'diverse' along racial lines only," French said. "Here’s how the system works. Elite universities attempt to accomplish multiple goals at the same time. They want to maintain the community and financial benefits of legacy admissions and donor favoritism.

"They also want to maintain the high class GPA and SAT scores that are the foundations of college rankings," he wrote. "And they want their incoming classes to 'look like America.' The result—especially in elite academic circles—is extraordinarily pernicious... Harvard’s method was deeply disturbing. It systematically down-ranked Asian-American applicants’ 'personal rating.' At Harvard, the personal rating refers to highly subjective qualities like ‘integrity,’ ‘courage,’ ‘kindness,’ and ‘empathy.’ Here’s where the story gets worse: Although these personal qualities have nothing to do with race, Asian Americans receive by far the worst scores," French said. "Nor are those scores an innocent coincidence. The district court found 'a statistically significant and negative relationship between Asian American identity and the personal rating assigned by Harvard admissions officers.'"

What the left is saying.

  • The left argues that the court should not overturn decades of precedent.
  • Many say race-conscious admissions is still the best way to create diverse campuses.
  • Others argue that the court is going to strike down affirmative action, regardless of how bad the arguments are.

The Washington Post editorial board said the Supreme Court should "follow precedent" on race-conscious admissions.

“Those challenging race-conscious admissions in this case do not argue that colleges and universities receive no benefits from building diverse student bodies. Rather, they claim that universities such as Harvard ‘award mammoth racial preferences to African Americans and Hispanics,’ while discriminating against Asian Americans, resulting in ‘anti-Asian stereotyping, race-obsessed campuses, declines in ideological diversity, and more.’ They also charge that universities could achieve sufficient diversity by giving more of an admissions ‘tip’ to students of low socioeconomic status. The universities — and two lower courts — disagreed with the challengers’ assertions...Underlying the arguments is a disagreement about the intent of the 14th Amendment’s guarantee of equal protection under the law.

“The challengers contend that the amendment requires the government and related entities adhere to strict racial neutrality. But the universities have the better argument, pointing out that those who wrote the 14th Amendment rejected language that would support such an absolutist reading. ‘Both state and federal authorities at the time enacted race-conscious measures to promote African Americans’ equal participation in society,’ they wrote. The amendment exists to enable Congress and other institutions to combat racial disparities — not as a directive to ignore them... The court has said that the circumstances under which race-conscious policies may proceed should be extremely narrow. But that is the most important point: The court has already spoken.”

In Slate, Dahlia Lithwick and Mark Joseph Stern said the court has no reason to end affirmative action, but they probably will anyway.

“The history of affirmative action at the Supreme Court is not particularly complicated. In 1978’s Bakke decision, a majority found that universities could consider race to build a diverse student body, identifying educational benefits that flow from diversity,” they wrote. “At the same time, a majority prohibited quotas and other rigid metrics that reduced applicants to their race, requiring universities to undertake a holistic review of each applicant. The Supreme Court affirmed this principle in 2003’s Grutter v. Bollinger and again in 2016’s Fisher v. Texas... So, in theory, the justices should’ve been debating the meaning of the Constitution. Instead, the conservative justices continually reverted to free-floating policy discussions about how affirmative action makes them feel. (Hint: They feel bad.)

“Justice Samuel Alito took a wholly gratuitous potshot at Sen. Elizabeth Warren, asking whether someone counts as a racial minority if their ‘family lore’ claims American Indian heritage,” they said. “Justice Clarence Thomas asserted that affirmative action is indistinguishable from Jim Crow and argued that ‘diversity’ itself is an empty, meaningless concept. “I don’t have a clue what it means,” Thomas said. When North Carolina Solicitor General Ryan Park explained that students benefit from having classmates with different backgrounds and viewpoints, offering peer-reviewed research on the topic, the justice retorted: ‘I don’t put much stock in that because I’ve heard similar arguments in favor of segregation, too’—as though Southern states had once defended Jim Crow as necessary to expose students to the lived experiences of their classmates.”

In The Los Angeles Times, Sally Chen, a Harvard graduate, said affirmative action helped her — even as an Asian American.

"I am the daughter of working-class Chinese immigrants who speak very little English. I was born at Chinese Hospital and grew up in Lower Nob Hill in San Francisco. My parents worked at restaurants for low wages, and our family of six barely scraped by," she said. "We lived in a cramped one-bedroom apartment among urban professionals and underserved communities. Before I was even a teenager, I advocated and translated for my family. In my household, my siblings and I are the first generation to graduate from college. In my personal statement for my college application to Harvard, I wrote about how these experiences shaped my passion to do work that would help others with similar struggles.

"At a student activism meeting in 2017, a friend shared how to file requests under the Family Educational Rights and Privacy Act to see my admissions file," Chen wrote. "My admissions readers saw value and authenticity in my perspective: 'Categorized as low-income and with Taiwanese-speaking parents, she relates to the plight of the outsiders in Ralph Ellison and William Faulkner.'  Though my test scores were far from perfect, they believed that I had the potential to make a ‘contribution to college life’ that would be ‘truly unusual.’ I benefited from an admissions process that took race and the effects of racism into consideration. My story can’t be conveyed in a race-blind way and during the Harvard trial my admissions file was used as an exhibit to illustrate this."

My take.

Reminder: "My take" is a section where I give myself space to share my own personal opinion. It is meant to be one perspective amid many others. If you have feedback, criticism, or compliments, you can reply to this email and write in. If you're a paying subscriber, you can also leave a comment.

  • I'd prefer race wasn't a significant consideration in college admissions.
  • That doesn't mean I think prohibiting it is the right call, or legally justified.
  • Nothing in this case is going to fix or destroy our broken university system.

Obviously, this is not a simple issue. On the one hand, the need for affirmative action should not be hard to comprehend. When you completely box out non-whites from educational opportunities for hundreds of years, you can't simply say, "ok, you're allowed in now," and call that fair. Lyndon Johnson's famous quote encapsulates the absurdity of this mentality:

''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.''

The original need for race-conscious admissions was obvious: To reverse centuries of injustice, it would be helpful if there were a tool that allowed colleges to at least consider race. This was doubly true when college administrators began to recognize the benefits of diverse campuses not just for minorities, but for white students as well.

On the other hand, in the last couple of decades, affirmative action has become extremely complicated and convoluted and, at times, has been a form of negative prejudice in and of itself. The Harvard case is a tremendous example of how this manifests. Asian-Americans, on paper, should be admitted at higher rates than whites. Average measurable factors like GPA and test scores among Asians are stronger than white applicants. Yet Harvard's admission process has been able to stymie that obvious outcome — in fact, they have been motivated to stymie it — through the use of personal ratings that systematically devalue Asian applicants.

The trap of race-conscious admissions was always obvious, too. As affirmative action policies achieved their goal, and the country became more equal, with wealth and educational disparities closing, Black or other minority students would have a leg up on white counterparts who were equally disadvantaged from birth. So, too, would the children of beneficiaries of those policies 60 years ago more so than students currently at a lower economic station. This is why O’Connor predicted (or, more aptly, hoped) that one day it wouldn’t be necessary.

In my own life, I've seen the multitudinous applications of diversity and how they differ. For instance, my high school was very economically diverse — but not very racially diverse. My wife's high school was very racially diverse, but not very economically diverse. Her high school class is, on average, much wealthier and more liberal — and a lot less white than mine. My high school class is, on average, less wealthy, much more politically diverse, and much more white. In my view, there would be a huge benefit to having a campus with a mix of our childhood friends, and a huge downside to having any campus that mirrored either of our high schools entirely.

The hardest thing about race-conscious admissions, though, is that it is trying to solve a problem it can't.

Simply put: Colleges, especially elite schools, are refusing to expand their student bodies while the pool of applicants keeps growing. Economist Noah Smith recently noted that Stanford accepted 16% of applicants when he was accepted. Now they take just 4%. Using race-conscious admissions policies is supposed to ensure that an ever-smaller, more elite group of students is ever-more diverse and representative of the country. The inevitable result, as colleges get more competitive, is that more students are going to be boxed out because of their race, rather than given a leg up.

To put it differently: When Harvard is getting applicant pools like this...

... the likely outcome, if it wants to keep a racially representative student body, is that race will suddenly become a major part of determining whether a student gets in or not. The solution isn't just to get rid of race-conscious admissions, which I do think colleges should consider, but it's to dramatically expand the pool of students we're letting into colleges.

In my perfect world, colleges would focus primarily on wealth and income status, with secondary considerations for things like immigration status, language use, or (my own biases) even political diversity to fill out college campuses. Race would still play a small role, but would be superseded by many of these other considerations. Some analyses have shown that simply solving for economic disparities would also at least approach solving for racial diversity (which is paradoxically the reason for race-conscious admissions and proof we may not need them). Things like "legacy" would be thrown out the window entirely.

Unfortunately, that perfect world is nowhere near happening. College is essentially a racket, and the most elite schools now need to admit legacy students (keep the donors coming) and churn out student bodies that are sufficiently diverse based on what race students check off in their applications, but also rich enough to cough up tuition fees. All the while, race is an increasingly arbitrary measurement as the definitions of “Hispanic” and “Asian” are drawn on fabricated lines and more and more mixed race students join the fray.

Of course, this is a legal battle, not a hypothetical of how I think colleges should be run. In that regard, it seems to me the universities should have the upper hand. They have decades of precedent on their side, and — from an "originalist" perspective — the obvious historical context that the 14th amendment was race-conscious. It’s quite jarring to see the conservative justices who claim to be originalists ignore this historical fact. The very aim of the drafters was to address inequalities affecting Black Americans, and I find it hard to believe opening more doors onto college campuses wouldn't qualify in their eyes.

The complicating factor, obviously, is that doesn't mean race can exclude certain people from college campuses. When it functions as a barrier and a determinative factor, it should be illegal — meaning policies like the one at Harvard may not pass muster. As Justice Jackson's hypothetical made clear, I also don't think we're far enough removed from systematic racial oppression to outlaw race-conscious admissions entirely. If something like legacy status still plays a role in admissions, then race is playing a de facto role in admissions, whether we like it or not. It’s that simple.

I wish schools would consider race less, I definitely wish schools would consider legacies a whole lot less, and I think there are more rewarding elements of diversity for college campuses to consider; but I also don't think they should be prohibited from considering race at all. Even by the conservatives justices’ regularly-cited Sandra Day O’Connor quote, we’re still a few years away from her rather arbitrary 25- year timeline (which arrives in 2028).

Whatever the outcome, I feel confident saying this much: This case isn’t going to fix or destroy elite universities. Their exorbitant costs, unchecked nepotism and absurdly small class sizes will do that on their own, regardless of whether admissions boards are considering race or not.

Your questions, answered.

Q: In your entire analysis there is not one mention of the horrific call to violence perpetrated by Senate Majority Leader Schumer. I mean really, where is your research? He basically called for an all out attack on the Supreme Court if they dared to touch Roe v Wade. I’m a first time subscriber to your newsletter and remain underwhelmed by your “balanced” reviews.

— Kevin from Machipongo, Virginia

Tangle: Yesterday's issue was about the attack on Paul Pelosi. Of course, it was about dangerous political rhetoric, too, and I thought it was more pertinent to cite the rhetoric from Nancy Pelosi herself as exemplary of aggressive language from the left than involve Chuck Schumer. When we covered the threats to Kavanaugh's life, we included arguments about Schumer's rhetoric.

For whatever it's worth, newsletters like yesterday's inevitably get dozens of replies that involve some version of "I can't believe you didn't cite this..." or "How could you not mention that..." Obviously, space in Tangle is finite, which means there is always going to be valuable context and interesting opinions left out. A better framework should be: What do you think I should have removed in order to make space for this argument or context you think wasn't properly included?

Then you get to enter my world!

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Under the radar.

The Department of Justice says it has taken down a catalytic converter theft ring that generated hundreds of millions of dollars. If you're a car owner, you have probably heard warnings about your catalytic converter being stolen. Catalytic converters are a valuable part of a car's exhaust system, easy to steal, and rife with valuable metals like palladium and rhodium. They have been going missing in droves across the country. Now, 21 defendants are being charged in an operation that led to arrests in California, Oklahoma, Wyoming, Minnesota, New Jersey, New York, Nevada, North Carolina and Virginia. The Los Angeles Times has the story.


  • 63-36. The percentage of all Americans who say they would support-oppose the Supreme Court banning colleges and universities from considering race in college admissions.
  • 47-53. The percentage of Black Americans who say they would support-oppose the Supreme Court banning colleges and universities from considering race in college admissions.
  • Five. The number of days until election day.
  • 30,555,755. The number of early votes cast, as of midnight last night.
  • 19%. The percentage of Americans who say the economy is headed in the right direction, according to a new Wall Street Journal poll.
  • 26. The shift, in percentage points, of suburban white women from Democrats to Republicans since August, according to the poll.

Have a nice day.

William Goode, a 97-year-old World War II veteran, is getting treated to a tour of his favorite activities thanks to the YouTube creator Isaiah Garza. Last month, Garza went viral after he took Goode on a trip to Disneyland as a surprise. When the positive attention rolled in for the trip, Garza decided to run it back, this time taking Goode on a trip to see the Rams — and get a visit from his favorite player, Cooper Kupp. The relationship between Goode and Garza has been winning over the hearts of the internet. You can watch the video here.

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