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I think the academia has been preparing for this for years, moving from "objective metrics with AA bias on top" (like SAT scores, but the passing score is different for different races) to "plausible deniable 'holistic' judgements" - where one can't really prove any bias at all. Yes, if you measure by any objective merit criteria, the bias is apparent, but you see, we're not using these criteria, we are using "holistic view", which does not explicitly name race as a factor, good luck proving in court we're using it heavily. They'll just start being more careful about that and develop a newspeak that ensures discrimination is called something else. If academia is consistently good at anything it is at producing impenetrable jargon.
This is why I think the pre-Bakke quota system some universities had was actually the best, as it was far more transparent. Set aside some minimum percentage of place for black students (and possibly also Natives) and Asian students, for instance, at least know they are competing on an even-playing field for the 95%, or whatever, of places left, and thus there is less scope for sour grapes. As you say all this ruling seems to achieve is to make things even more obscure and impenetrable.
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This is where the fun starts, but does not end. This is an anti-discrimination ruling. In broad strokes, anti-discrimination is an area where America has been building up jurisprudence for decades cracking down on any behaviours that might indirectly behave like discrimination.
The Ivy's will certainly try that kind of indirect discrimination, but lawyers from around the land will be looking for lucrative test cases, and they'll be doing it in an environment where the top court in the land has just told the world that anti-discrimination law cuts both ways.
If Harvard tomorrow decides to condition entry on basketball skills, they can. Their mistake in this case was failing to apply their own purported standards equally to different groups, in the sense that they discriminated against Asians who in every sense passed the university’s threshold for acceptance and so could only have been nakedly discriminated against because of their race. If Harvard abolishes objective admissions criteria entirely and admits purely based on ‘personality fit’ and ‘unique perspectives’, they can admit people in whatever proportions they wish and there’s nothing anyone will be able to do about it. The only reason a group could complain is if they were highly underrepresented (eg. Asians are 5% of the population, but made up only 1% of admissions). But Asians have always been and still will be overrepresented at elite colleges, so this approach won’t work.
So, for example, in 2022 the proportion of black freshmen at Harvard was about 16%. Say that next year, Harvard moves to purely subjective criteria for admissions and this rises to 20%, while the percentage of Asians rises by 1% and the percentage of whites falls by 5%. What can anti affirmative-action campaigners do? Absolutely nothing, because Harvard can simply claim the criteria have changed and they now prioritize recruiting people based upon their ‘personal resilience’ or something as evaluated by AdCom.
The best historical parallel is the post civil war amendments, 13-15. Virtually everything 14 and 15 were designed to accomplish should have been accomplished by 13.
Read historically 13, 14 and 15 read as:
Free the slaves.
No, like, really, free them, they're people now, citizens and everything.
No, fucking really, you have to let them vote too.
Then the Democrats made alliance between inner city Irish immigrants and Southern lost causers, the government lost interest in enforcement, and until the 50s the whole thing sat in abeyance.
It will take several more major court decisions, and a government interested in enforcement, before this decision will actually mean AA permanently ends. But it's an important first step.
We won't have the second, and we probably won't have the first -- next time there's a decision the court will have changed and it will go the other way. As usual the decision is "heads the left wins forever, tails the left holds the line now and wins forever later".
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yeah . holistic admissions is just a way to smuggle in affirmative action
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Doesn't this ruling mean that White/Asian applicants have a pretty good shot at suing and winning a discrimination lawsuit against a University implementing such a system?
A University needs to get the message to dozens of employees in the applications office but somehow not have any emails/text messages that could come up in discovery.
Yes. The ruling specifically calls out "indirect" ways of re-implementing the same system. They can try it, but my guess is most of their lawyers will be advising against it because they will auto-lose if anyone sues.
Their lawyers are fully on board, ideologically. And Harvard has already released a statement pretty clearly indicating they're going to use Robert's talisman to get around the ruling.
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The problem is that with ‘holistic’ admissions decisions the plaintiffs would be unable to prove that they were discriminated against. They can’t point to admissions statistics and say “that 15% of freshmen are black and only 25% are asian shows I’m being discriminated against” because Harvard can just say that a) Asians are still overrepresented compared to their share of the population and b) that holistic admissions is based on intangibles, not grades, so SAT scores, GPA etc don’t by themselves prove anything.
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I covered some of it here: https://www.themotte.org/post/550/culture-war-roundup-for-the-week/114107?context=8#context but if you're lazy, you could make it easier - "Diversity and inclusion is our strength!" is pretty much enough to signal what policy is expected, but I am not sure it'd be easy to win a lawsuit claiming "diversity" is an inherently racist criteria. Of course, there could be one or two employees in the admissions office who would not understand that "admitting diverse applicants" means "admit less whites and Asians" - but these could be identified and targeted at the next round of right-sizing, until everybody knows how the system works.
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The case has to GET to discovery. Which means the complainant must demonstrate a reasonable likelyhood to succeed on the merits, which means among other things that they have to show that but for the alleged discrimination they would have been admitted. And they have to do that before discovery. When the complainant is of the wrong color (white or yellow), the courts will interpret these requirements VERY strictly and the cases won't go anywhere.
No, to get to discovery the plaintiff just has to allege sufficient specific facts to constitute a violation of law assuming they're proven to be true. You might be mixing the standard up with the one for a preliminary injunction, which requires (1) a showing of irreparable harm should the status quo not be maintained, and (2) a showing that the requesting party is likely to succeed on the merits.
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If I were the university, I'd be most worried about whistleblower complaints leading to embarrassing discovery reveals. That new admissions hire with sterling SJ credentials, who talks the lingo fluently? How sure are you that she/they aren't a plant from some right-wing org looking for a big payday? What about the handful of white men still working in those roles, can they be trusted? Progressive ideology plus institutional inertia will definitely incline schools towards noncompliance with the new regime, but Ivies sitting on multibillion endowments are a big fat target, and a single lawsuit can change the tune of the board of trustees in a hurry, even if their school wasn't in the crosshairs this time.
Admissions staff are largely former students who are too lazy to enter the real world but also aren’t good enough to become faculty / do a PhD. They are perfectly selected to conform to the admissions bis of their predecessors.
There will continue to be bias, but I think the difference now is that there is actual clarity in the law and monetary consequences for the losers. Any kind of wink-nod policies are going to have to survive potential whistleblowers and legal discovery.
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I don't think this is the case after today. Any lawsuit like this would get national attention and won't get quietly swept under the table. I know progressive judges can go off the rails sometimes, but it's still considered a mark against you if your rulings get overturned by a higher court.
Only if the higher court is good people. If it's bad people, like Trump appointees, you're a member in good standing of #Resistance.
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