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Why SFFA v Harvard Matters
The lives of DEI bureaucrats have just gotten a lot harder
The Supreme Court has just invalidated the admissions programs of Harvard and UNC. I have a Tweet thread going through the majority decision and each of the concurrences and dissents. The bottom line is that this was about as good of a decision as I thought we could’ve hoped for. The majority was scathing. It not only invalidated the admissions programs under review, but it eviscerated the “diversity” rationale accepted by earlier decisions. Since it was already established law that remedying past discrimination that is general rather specific can’t be a justification for affirmative action in college admissions, for all practical purposes SFFA has removed the only possible way that schools could directly consider race.
People have talked about the “loophole” that was left in by the Court, which said that you can still write an essay about how your race has influenced your life or made you the person that you are. This isn’t really a loophole though. There’s no way that the Court can say you can never mention race in any context, because as long as there are essays the topic may come up. Although I fully expect universities to try to get around this decision when they can, I’m still optimistic about the effects it is going to have on institutions.
Roberts foresaw the potential for shenanigans here, and so he explicitly warned universities on this point.
But, despite the dissent’s assertion to the contrary, universities may not simply establish through application essays or other means the regime we hold unlawful today. (A dissenting opinion is generally not the best source of legal advice on how to comply with the majority opinion.) “[W]hat cannot be done directly cannot be done indirectly. The Constitution deals with substance, not shadows,” and the prohibition against racial discrimination is “levelled at the thing, not the name.”
For bureaucracies, there are major differences between seeking a goal directly and having to do so indirectly. This is why the university systems of California and Michigan argue that they have never recovered from their own affirmative action bans.
College administrators and admissions staff have certain preferences, but they need to worry about lawsuits, bad publicity, their funding being cut off, etc. As Megan McArdle points out, it’s going to be very difficult to recreate previous race-based systems without a paper trail that will get you sued. (UPDATE: See here for a demonstration of this point) I expect an immediate shift in the demographics of top universities. Indeed, Sotomayor’s dissent worries that they will begin to mechanically rely on grades and test scores in order to avoid lawsuits.
Moreover, institutional cultures and missions change in response to incentives. A university that wants to consider race but has to hide it may see its own preferences shift over time. Imagine a mob takes over an event with the dean and demands more black students and faculty. Before, schools could just directly give them what they wanted. Now, they either have an excuse not to listen to them, or will have to expend money, time, and effort in order to placate unruly students. There will be less of an incentive to get them riled up or let them push administrators around in the first place. Internal whistleblowers and faculty opposed to DEI have been given a new weapon in their institutional struggles. As the liberals on the Court point out, simply having fewer affirmative action admits will change the cultures of universities. They see this as a bad thing because it will decrease diversity, but it’s a desirable outcome if you care about free speech and having fewer leftist agitators around.
It’s always been possible that universities have gone so insane that they’ll just remove all standards in order to get their desired numbers of black students. But the reason they haven’t gone to a lottery system already is there are real costs to taking such a path. What happens if the average IQ of Harvard drops by 10 points? Less talented students will end up earning less money, and be less likely to become major benefactors to the university. Employers start realizing that Ivy League students aren’t as smart as they used to be, and become less likely to recruit them. It’s difficult to think of many institutions that have maintained a high status while letting people in essentially at random.
There’s no law of nature that says top universities must play a central role in national life. Many advanced countries have nothing like our extremely stratified system of higher education, where a few of the most prestigious institutions select our elites.
In the end, I expect that top schools are going to be given the choice of either engaging in less racial discrimination, or maintaining their diversity numbers while harming their own reputations by lowering standards for everybody.
As I’ve written before, this case isn’t just about universities. One of the more interesting things about the decision is that we now know that Gorsuch has a fundamentalist reading of the Civil Rights Act. In his concurrence, he argued that under Title VI, you basically can’t use race under any circumstances. This is consistent with his opinion in Bostock, which expanded “trans rights” based on the idea that tolerating any behavior in one sex but not the other, like wearing a dress, was against the law. His view is that Title VI, which applies to programs and institutions that receive federal funding, and Title VII, which addresses employment, both impose the exact same standard of non-discrimination that is virtually absolute. Thus, there is no way one can imagine Gorsuch not being in favor of invalidating things like racial set asides in contracting and soft quotas in hiring.
There were always two ways to understand the Bostock decision. First was the possibility that Gorsuch is simply soft and will give in to what the left wants. The other has been that he takes textualism very, very seriously and will read all civil rights statutes plainly. Whether or not you agree that textualism supports the majority decision in Bostock, and I think the Alito dissent made a good argument that it didn’t, SFFA gives us insights into what Gorsuch’s motivations were when he seemed to accept gender theory. It’s pretty funny that he appears shocked that the liberal justices who joined him to expand LGBT rights in the previous case didn’t join him in ruling to get rid of affirmative action, although I suspect there’s no way he’s really that naive.
Before SFFA, Thomas and Alito were the only two justices who I thought were always certain to rule the right way on civil rights cases. Gorsuch has shown that he belongs in the same category. That means we only need two of three from Kavanaugh, Roberts, and Barrett in future cases, and I’ve seen little reason to distrust any of the conservative justices in this area. Roberts in particular has been moderate in decisions on abortion and Obamacare, but he has always voted the right way in affirmative action cases, and in a plurality opinion having to do with school busing the Chief Justice famously wrote that “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” This appears to be a long-standing commitment of his.
Soon, my book on wokeness as law (pre-order now) is going to explain to conservatives exactly what legal doctrines to attack. I’m glad to see that Vox has noticed the influence my work has had on the conservative movement already. Lawyers, legislators, and, if the GOP wins in 2024, executive branch officials, will before long be given the blueprint for how to move forward. The results of SFFA show that they’ll be making their arguments before a very sympathetic Court.
One final note here. I got a sense of déjà vu while reading SFFA. The arguments on each side sound not too different from what we saw in Fisher (2016), Gratz (2003), Grutter (2003), or even, for that matter, to a certain extent Bakke (1978). I wasn’t the only one to feel this way. As Sotomayor’s dissent notes, “There is no better evidence that the Court is overruling the Court’s precedents than those precedents themselves. ‘Every one of the arguments made by the majority can be found in the dissenting opinions filed in [the] cases’ the majority now overrules.”
Conservatives always say the Constitution is color blind, reverse discrimination is still discrimination, and universities are hiding what they’re doing. Liberals always take everything universities say at face value, praise diversity, and accuse the other side of being blind to historical injustices. The only real difference this time is that the composition of the Court has changed. Trump first replaced Scalia with Gorsuch, then moved the Court to the right by having Kavanaugh take the seat of Kennedy, and finally topped off his administration by appointing Amy Coney Barrett upon the death of Ginsburg.
Trump supporters like crediting him for all of this, but really, any Republican president would’ve done the same thing. If Mitch McConnell hadn’t taken the historically unprecedented step of blocking the Merrick Garland nomination, and if Ginsburg had simply lived a few more months, Trump would’ve probably only appointed one Supreme Court justice instead of three, and there would be a 5-4 liberal majority right now. Affirmative action would’ve been safe for another generation, if not longer.
While Trump appointed three Supreme Court justices over four years, Obama only got to appoint two over eight. Conservatives have been really lucky. The extent to which the Roberts Court can continue to shape the future of the country will depend on the continuing ability of Republicans to win elections. But also who dies at the right time.
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