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Affirmative Action is Exactly the Same as it Was
But it's going to look very very different
On June 29, 2023, the Supreme Court of the United States ruled on a pair of dockets named “Students for Fair Admissions Inc” v “President and Fellows of Harvard College” and v “University of North Carolina et al.” These two dockets were lumped together, and deal with how affirmative action is used for race balancing in university acceptance procedures. Conservatives are celebrating the end of Affirmative Action, liberals are bemoaning the end of Affirmative Action, and everybody is wrong because nobody seems to have read the ruling.
Herein we will read the ruling, explain what’s going on in “For Dummies” fashion, and take a look at the likely mathematical impacts of it.
The upshot is this: Outside of some sidebar non-majority opinions there’s no substantive change in the law. They didn’t overturn anything, change anything, or add anything new. Harvard and UNC were pimp slapped for failing to follow the limitations on Affirmative Action which were already set in place in 2003 by the Grutter v. Bollinger ruling. As universities became more and more “woke” since 2003, their admission practices became increasingly racially discriminatory and strayed farther from the rules established in Grutter. Universities have not only been discriminating against whites in favor of underrepresented minorities, they’ve been discriminating even more so against minority Asians. The Supreme Court simply stepped in to remind everyone what the rules have been since 2003.
In short, the “Equal Protection Clause” of the United States Constitution is not an “Equal Outcome Clause,” and never has been.
Enrollment would look very different if these rule clarifications go into effect as intended, but the most likely result is simply that the universities start measuring things differently to maintain their preferred race mix to dodge the ruling entirely.
I encourage you to read the ruling in full here. The first four pages are a history of the Equal Protection Clause in the United States Constitution, which makes racial discrimination illegal. The provisions making racial discrimination illegal predate the rise of modern woke dogma, which explains the current culture war around the decision. Prior to the rise of woke dogma, individual racial prejudice was considered to be racist. After woke dogma, individual racial prejudice is viewed by some as an essential tool for racial equity, so failure to be prejudiced is racist. These diametrically opposite views of racism have been covered on HWFO before. The most important point to realize, as you parse other media sources regarding this ruling, is that each side thinks the other is racist because they’re utilizing different definitions of the word “racism.”
The Supreme Court did not get their “Wokeness Update,” so they are going by the more traditional definition of “racism,” which is baked into case law. Their enumeration of this begins towards the bottom of page four of the ruling:
“Strict scrutiny” is a tough thing to prove, and you can’t treat it casually. In Korematsu v U.S. for instance, the World War II Japanese internment camps case, the government would defend strict scrutiny by stating (1) that the internment camps further a compelling government interest, such as the elimination of spies during a war, and (2) that there’s no good way to eliminate all the spies other than the camps. Schools had to make a similar argument for race based admissions.
The fifth page of the ruling goes into the specific history of affirmative action in college admissions, terminating with Grutter v Bollinger in 2003.
That’s it. That’s the ruling. Grutter had three criteria:
No negative racial stereotyping
Some kind of horizon criteria
Any university can employ affirmative action practices as long as they adhere to those three Grutter criteria, and may still do so today. This ruling stated specifically that Harvard and UNC failed to meet any of the three criteria. The rest of the document simply outlines the ways UNC and Harvard failed.
On “Strict Scrutiny,” the Supreme Court stated that the respondents (Harvard and UNC) failed to explain why the government had an interest in biasing admissions towards certain minorities over whites and Asians, failed to show a connection between their policies and their goals, and couldn’t produce any metrics capable of explaining it for judicial review, as the doctrine of strict scrutiny requires.
On “no negative racial stereotyping,” the Supreme Court pointed directly at the racial admissions breakdowns of both schools to prove that they were in fact negatively racially stereotyping, specifically and most egregiously against Asians. Here’s a chart.
A “decile” in this table is a 10% band of applicants sorted by academic rating. The table shows the chances a student in any given decile will be accepted to Harvard. At every decile the odds of getting accepted clearly vary by race.
On “some kind of horizon criteria,” the court simply pointed to the facts on the ground that no meaningful end point has ever been coded into these policies by design. This brings us to the punchline:
“Yes you can consider race, but prior Supreme Court rulings never allowed you to consider it like you’re doing right now.” They said nothing new. They ruled based on Grutter v. Bollinger. They simply said the quiet part out loud - that universities have been increasingly ignoring Grutter v. Bollinger as the “woke” redefinition of racism has slowly absorbed the people working in the university admissions heirarchy. Before, individual racial prejudice was “racist behavior.” Now it’s “behavior that is essential for anti-racism.”
The woke redefine racism, and also stretch the college admission bounds set in Grutter v. Bollinger, because of their fixation on power and its redistribution. To the woke minded, each intersectional category is variously either privileged or marginalized in societal power. Further, societal power is a fixed quantity which must be warred over at the group level, and education is a tool to achieve that societal power. This explains the freak-out among the left yesterday and today. One of the tools they were using to shift power has been ostensibly taken away from them, and they’re scrambling for a backstop.
The rest of the ruling is worth reading, with various dissents and rebuttals to dissents. The language is colorful, but the ruling is straightforward. Thomas concurs with a 58 page long screed of facts and history. Sotomayor’s dissent also leans heavily on history, and presents a relatively comprehensive list of legitimate things that have plagued African Americans in particular in American history, but doesn’t mention Asians until the 35th page. She treats the evidence of Asian discrimination dismissively, and borders on gaslighting.
“Be happy what you’ve got, pay no attention to the mathematics showing clear discrimination, we’re discriminating against you for your own good.” Or, more charitably, for the good of everyone within Kimberlie Crenshaw’s theoretical intersectional matrix of oppression.
In theory, this ruling changes nothing. In practice, it shoots down a system of admissions processes and procedures developed over the past two decades to privilege some races over others, which college admission boards are very likely to hate because they are very likely to have deeply adopted the woke moral edict that not being racially prejudiced is racist.
Let’s break down the ‘academic decile’ chart above and pick it apart. If Harvard were to keep their current spread of applicant acceptance by academic decile and implement the Supreme Court’s wishes, the changes in admission by decile would look like this:
41.5% less African Americans in the top decile will be accepted while 1.9% more Asians will be accepted. 18% less African Americans in the middle decile will be accepted while 2.5% more Asians will be accepted. The acceptance rate for whites in the middle deciles will go up slightly, while the acceptance rate for whites at the top decile will actually go down as more slots go to the Asians.
We can’t speculate on how this would impact the total acceptance rates for minorities in the university without knowing exactly how many at each decile come from each pool. There’s not enough information. But we do know acceptance rates for Asians will go up noticeably, whites up slightly, Hispanics down some, and African Americans down noticeably.
Harvard’s admissions page doesn’t even list how many white people are accepted, but it says the class of 2026 has 27.9% Asians, 15.2% African Americans, and 12.6% Hispanics. If that’s the case, Asians are already significantly overrepresented as compared to the US population, but African Americans are also already slightly overrepresented. The two under-represented groups are Hispanics by 7% and Whites by a whopping 31%, based on US population. Why are the Asians already so overrepresented? Because Asians are killing it in school.
Asians, Jews, and Prognostication
The Asian community’s response to this ongoing systemic discrimination against them has been to simply try harder at the right things. As the efforts of all other groups plateaued in the early 2000s and the fell off, Asians continued to build better and stronger cases for their own academic merit.
This is probably cultural. The dragon lady moms and first generation immigrant families value education above all else, they’re driving their kids like mad to do well in school to get the ticket to a better life than they had when they got off the boat, and the kids are responding to the dragon ladies with higher scores. The tropes permeate the media, Hollywood, and comedy for a reason.
“Why You No Doctor!”
While it’s possible that some part of this might be related to the ever controversial idea of racial differences in IQ, public school teachers will tell you that the academic pressure and support Asian families give their kids on net, especially the first generation immigrants, is incomparably high compared to almost any other racial demographic save perhaps the Jews. And those same Jews are important in this discussion.
This idea of structuring admissions by race ironically traces its roots back to Harvard in the 1920s, and was used specifically to keep Jews out. Famous Harvard dean Abbott Lawrence Lowell opened the school to public education graduates in the early 20th century and the number of Jews at Harvard jumped from 6% to 22%. This jump was dominated by Jewish immigrants without wealth or clout, which didn’t serve Harvard’s true hidden purpose of providing a dating and networking opportunity to American pseudo-royalty. To preserve this function, he tried to implement a 15% Jew cap so the rich white legacy folks wouldn’t bail, got flayed for it, and eventually settled on a different sneakier way to reduce the Jewish population at Harvard - letters and interviews which could bypass direct measurements of merit. His scheme reduced Jewish enrollment to 10%.
Universities are probably going to use this same procedure all over again to enforce the new racial quotas. The new template to get into Harvard is going to look less like a high SAT score and more like an entrance essay that says this:
I am a black trans Jew. Preventing me from attending Harvard would make you a transphobic racist anti-Semite. I also demand a scholarship. Thank you for your time.
Or perhaps a ten page version of that along with an interview confirming that each applicant isn’t pulling a 1980s movie trick we don’t talk about anymore in polite company.
This “essay and interview to get in” approach will be the best way to bury the racial discrimination without the universities having to dump their tax exempt status, while preserving the woke moral imperative to correct for racial disparities in the past with racial discrimination in the present. The applicants will evolve new ways to game the new system just like they’re gaming the current one.
I expect many public universities, such as the University of Georgia, to remain relatively unchanged in their admission demographics. I expect universities in more Asian areas of the country, like Southern Cal, to end up majority Asian. I expect Harvard to throw lots of money at interviewers to ensure “the right kind of people” get into Harvard, in such a way that their de facto racial quotas remain similar to what they are today.
I’m curious what happens to Morehouse and Clark Atlanta, in my back yard. Historically black colleges remain almost entirely black for several reasons - partly because folks who aren’t black don’t often apply, but partly because they proudly include race as a selection criteria. And for what it’s worth, my experience with Morehouse graduates has been quite impressive. Will we be making memes in ten years about Asians dominating the attendance of Grambling? I don’t know. They may have to learn to high step to join the band.
Publications like Vox are correct in that this Supreme Court ruling hurts Affirmative Action as it was being practiced at the university level. But the ruling merely self corrects the system towards what it was supposed to be in 2003 and before. The question will be how much of it sticks, how much of it will get nerfed by university disobedience or alternate selection measures, and how far the universities themselves will fall in their own academic rigor while attempting to prioritize the moral principles of wokeness over merit. I think it’s likely that this entire thing will merely exacerbate the destruction of the modern American university as an institution itself, which was already going on, and is probably better for everybody on net.