Courthouse Steps Decision: SFFA v. Harvard

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Sam Fendler:  Hello everyone, and welcome to this Federalist Society virtual event. My name is Sam Fendler, and I'm an Assistant Director of Practice Groups with The Federalist Society. Today, we're excited to host a Courthouse Steps Decision webinar on Students for Fair Admissions v. Harvard. Our guest today is Curt Levey. Curt is president of the Committee for Justice. He is an attorney and an artificial intelligence scientist.

Curt's legal experience includes a clerkship on the Sixth Circuit before moving into public interest law and appellate work. Curt has Supreme Court experience, including the Gratz and Grutter cases. Curt is also a veteran of the Education Department's Office for Civil Rights and is a member of the Executive Committee of The Federalist Society's Civil Rights Practice Group.

If you'd like to learn more about Curt, his full bio can be viewed on our website, fedsoc.org. After Curt gives his opening remarks, we will turn to you, the audience, for questions. If you have a question, please enter it into the Q&A function at the bottom of your Zoom window, and we'll do our best to answer as many as we can. Finally, I'll note that, as always, all expressions of opinion today are those of our guest speaker and not The Federalist Society.

Curt, this one was a monstrous, 237-page opinion with a whole lot to work out, so we appreciate your efforts to comb through the substance of the opinion and for taking your time to be here today. And with that, I'll turn it over you.

Curt Levey:  Thanks, Sam. On a personal note, I have to say that yesterday's decision was very gratifying. Sam mentioned that I was involved in Grutter and Gratz. My colleagues and I at The Center for Individual Rights represented the plaintiffs in those two University of Michigan cases. And our goal was to end the use of race in admissions, but the Supreme Court ruled otherwise, and yesterday, that mistake was corrected.

Before I get into the details of the decision, let me begin with a few things that this decision did not say or do. It did not end all use of race in America. You can still use race, at very least, to remedy your own past discrimination, but Harvard and UNC never claimed that that's what they were doing.

What it did do is end the diversity rationale, the idea that the educational benefits of intellectual and experiential diversity justify racial preferences in university admissions. It did not end affirmative action in admissions. You can still have affirmative action based on, say, socioeconomic or educational disadvantage.

There has been lots of talk on the left since this decision about this setting back the poor black kid, but the truth is, it's the affluent black kid that may be hurt by this decision when schools have to go more by socioeconomic or educational disadvantage. I wish Roberts and the concurrences had pushed back more on that idea of hurting the poor black kid, but I guess they didn't want to explicitly endorse socioeconomic preferences.

Also, this decision certainly did not end all affirmative action. It remains to be seen what happens in K through 12, for example, where the diversity rationale was never recognized. There, the issue tends to be more, was there a racial intent behind an otherwise seemingly neutral design of the admissions program.

And, for now, this decision doesn't apply to employment or contracting or the newer issue of mandated corporate board diversity. All that will be left to lower courts and, eventually, the Supreme Court. It certainly doesn't apply to racial gerrymandering. Just a few weeks ago, Milligan said that was okay.

You know, some people have even talked since this decision about what effect will it have on reparations. I don't know if reparations will ever be law or what the courts would say, but I assume the defenders of reparations would say that it's facially race neutral, that it doesn't go to -- It's not based on color. It's based on formerly having ancestors who were slaves.

I also want to discuss the ramifications, but first, let me do a rundown of the majority opinion. It was 6-3—or technically 6-2 in the Harvard case because Jackson recused in that one—and it made up just a small fraction of the 200-plus pages. The Roberts opinion was about 40 pages.

It started out by dismissing the school's standing challenge. They had said that Students for Fair Admissions, the plaintiff, was not a genuine membership organization. That was pretty easily rejected. And then Roberts reviews many Supreme Court cases holding, to quote him, that eliminating racial discrimination means eliminating all of it, and the only exceptions, he says, outside of diversity are the remedial exception that I mentioned, and then avoiding imminent safety risks in prison; that is, basically a race riot.

He goes through the history of the diversity rationale. It started with Powell's opinion in Bakke. You had four justices, including the, at that time, fairly conservative Justice Stevens, who said Title VI forbids the use of race, and that's it. You had four justices, including Justice Marshall, who basically thought that just about any type of racial preferences to remedy societal discrimination were okay.

And then you had the swing vote, Powell, who said the one rationale that was okay was the diversity rationale; again, the educational benefits. When discussing Grutter, he puts a lot of emphasis on Grutter's statement that all preferences must be limited in time. Grutter said there was an expectation that references would no longer be necessary and 25 years, but Roberts points out that, 20 years later, there's no end in sight, and he points out the defendants can't even articulate when the end will come, other than hand-waving about basically to say when we've fulfilled our mission of educational benefits of diversity.

And, as he points out, that hand-waving is not subject to judicial review. Well, it can't be meaningfully judicially reviewed, I should say. He also points out that there's no meaningful connection between the means the schools imply and the educational benefits that they claim.

As he notes, everyone's lumped into six categories for assessing which groups are underrepresented, which completely ignores all the diversity within these categories. And he notes that, at oral argument, UNC's counsel couldn't even say which category Middle Easterners belong to.

You know, he points out that this whole game of six categories basically results in perniciously stereotyping these groups by assuming that they all think alike. He cites precedent that basically says you're not allowed to stereotype by race. He documents the fact that each of the racial categories, the percentage of each of them, remains virtually unchanged from year to year, which is a problem because many precedents clearly forbid racial balancing, racial proportionality.

Now, Rehnquist noted the same thing in his Grutter dissent. He pointed out that they just happened to admit, if 17 percent of the applicants are black and Hispanic, then 17 percent of those admitted are black and Hispanic. And he said that can't just be a coincidence, but O'Connor, who wrote the majority opinion in Grutter, chose to ignore that.

He points out that the main response to all these criticisms from the universities is just to say, "Trust us." And he basically says, "No, we can't trust you." And he has a good quote here. He says, "Universities may define their missions as they see fit. The Constitution defines ours." He also dismisses Defendant's claims that race is not a negative for any applicant. He politely says, "How stupid do you think we are? If it's a plus for some than it has to be a negative for others."

Then he rebuts the dissent. The dissents specifically say that the Fourteenth Amendment permits remedying societal discrimination but even the Powell opinion and many cases since then have said, no, that you can't use race to remedy amorphous societal discrimination.

You know, as an aside, I've had dozens of debates and countless conversations with supporters of race-based admissions, and they all indicate that, candidly, the real reason why they support preferences is remedying societal discrimination, but the Court has said you can't do that, and the vast majority of them don't believe that diversity rationale any more than most of us do. Lee Bollinger, the defendant in the Michigan cases, is on record as specifically saying just that, that we didn't really believe it, but that was our litigation strategy.

Roberts points out that the dissent would certainly not allow schools to -- that although the dissent talks about academic freedom, it would certainly not permit schools who happen to want to express their desire to discriminate against blacks or Hispanics.

So, as Robert says in the dissent's view, the Fourteenth Amendment tasks the courts with picking the right races to benefit. And at this point in time, at least, it's not Asians. And 100 years ago, when the schools used the diversity rationale to limit the number of Jews, had Jews sued, assumedly, the Court would have decided that they were not a race or ethnic group that should be benefited at that point in time.

So again, this is a good quote from Roberts. He says that that view of the dissent that the Court should be picking favorite races is "a remarkable view of the judicial role—remarkably wrong. It is a claim to power is so radical, so destructive, that it required a second founding to undo."

As an aside, I tuned in yesterday to Harvard Law School in the late afternoon, had a discussion of the decisions, a discussion between five or six Harvard professors. And Randall Kennedy, who's a long-term Harvard Law School professor—very liberal, but also capable of honesty, of calling out his own side, I should say—thought the dissents made a strategic mistake by painting the Roberts opinion in its most draconian terms. He said, "Why not spin it in the most moderate terms possible so that that becomes a reality?"

And he's got a point. It reminded me that the University of California at Davis lost the Bakke case. The Supreme Court ordered Bakke admitted, and yet the higher education community spun that into a big win, which grew into the diversity rationale not just being accepted by the Court, but sort of being accepted widely by society. You know, before the Bakke decision, the word diversity was rarely used in this context.

Now, Roberts' opinion ends with what some would see as a loophole when he says, again quoting, "Nothing in this opinion should be construed as prohibiting universities from considering an applicant's discussion of how race affected his or her life, be it through discrimination, inspiration or otherwise."

And conservatives criticized Roberts for this, for leaving that loophole, but you can't blame Roberts because the plaintiff, Students for Fair Admissions, said virtually exactly the same thing. Now, when I read their brief, I thought it went a bit too far to say that, but so be it.

But Roberts does add that, quoting, "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." "What cannot be done directly, cannot be done indirectly," Robert says. So that should at least somewhat reassure opponents of race-based admissions.

I guess the other thing in what was, I think, generally a very positive opinion, the other thing conservatives were unhappy with was a footnote where, because the military had argued that it's important for national security that we have a diverse military, and you can't have a diverse military without diverse universities, and national security is a compelling interest, and all that, so Roberts dropped a footnote to say that the Court doesn't reach the issue of military academies, which I think is fine. But again, some people were unhappy with that.

There were also dissents by -- I'm sorry -- concurrences by Thomas Gorsuch and Kavanaugh. I'm going to skip those in the interest of time and balance. I'm going to go straight to Sotomayor's dissent. Jackson also dissented, but like I say, in the interest of time, I'm going to talk about what Sotomayor had to say. Randall Kennedy, in that Harvard webinar I listened to yesterday, said he had never seen a dissent so striking in its call for resistance in describing Sotomayor's dissent.

So anyway, it starts off with the claim that—and again, I'll quote—"The Court long ago concluded that the Equal Protection guarantee can be enforced through race-conscious means in a society that is not and has never been colorblind." She says, "Ignoring race will not equalize a society that is racially unequal."

And that's a big theme throughout her very long dissent, which is just that, basically, to put it in blunt terms, it's still difficult to be black or Hispanic, and that has to be taken to account. And again, she claims for a vision of the Fourteenth Amendment, which is about equality—she uses the word "equality," but she really means equity—as compared to just equal opportunity.

So she points out that Congress enacted race-conscious laws—this is right after the Civil War—to fulfill the Fourteenth Amendment's promise of equality. The most famous example is, of course, the Freedmen's Bureau Act. I know some people, some conservatives, have claimed that's not really race conscious because it takes into account, again, formerly having been a slave rather than your skin color.

She notes that Congress, shortly after the Civil War, appropriated money to "destitute colored women and children" and "colored soldiers and sailors." She also says—and this, I'm not sure I quite get—that the Civil Rights Act of 1866 was race conscious because it said that all persons "shall have the same rights as those enjoyed by white citizens." Again, to me, that's just calling for equal treatment.

She's pointed out that underrepresented minority students are more likely to live in poverty and attend schools with fewer resources. Similarly, she says underrepresented minorities are less likely to have parents with a postsecondary education. And that's very likely true, although neither of my parents went to college, so it's certainly not exclusive to blacks and Hispanics.

But again, I don't know why schools are still free to recognize socioeconomic and educational disadvantage, including your parents not being well-educated, so I'm not sure why that wouldn't just address Sotomayor's concern there. She talks about the central role that education plays in breaking the cycle of racial inequality. That's also a big theme for her

But Thomas notes in his concurrence that there's really zero chance that this decision will reduce black and Hispanic college enrollment because, in the worst case, assuming schools don't counter this with race neutral alternatives, in the worst case, it'll just result in minorities going to slightly less prestigious schools. They're not going to not go to college. That's sometimes called the cascade effect.

She talks about the history of discrimination at Harvard and UNC, but again, the schools didn't claim that they were remedying that. She mentions KKK rallies at UNC and Harvard's ties to slavery. Unlike Gorsuch and Thomas, she doesn't mention Harvard's more recent discrimination, post-slavery, against Jews, a group that is injured by preferences arguably as much as Asians today.

She basically reads Brown v. Board and its progeny as standing for the general idea is that schools need to be integrated, and, of course, she sees yesterday's decision as meaning schools won't be integrated. She cites Marshall's opinion in Bakke, which, among other things, justified preferences based on remedying societal discrimination. But again, that only got four votes.

And it's interesting to note that, but for one vote either way, Bakke could have stood for basically absolutely unlimited use of race in admissions or could have stood for the idea that Title VI absolutely forbids the use of race in admissions, but Powell decided to be a swing vote.

She cites Grutter's approval of limited use of race to achieve educational benefits, and that's certainly true that Grutter said that. She talks about academic freedom. Grutter and Powell's opinion also talk not just about Equal Protection and Title VI, but also about schools' academic freedom. Again, that academic freedom, I'm sure in her view, does not include the freedom to discriminate against blacks and Hispanics.

And she claims that Defendants are using race in Grutter's narrowly tailored way. I think the facts indicate otherwise. You just had drastic differences in acceptance rates for, say, Asians in a particular decile based on grades and test scores versus blacks and Hispanics in that same decile. So that really doesn't seem like using race as just one of many diversity factors.

She says, "By singling out race, this Court imposes a special burden on racial minorities." I would argue that a Constitution imposes a special burden for race; it's not the Court doing it. And she says that the 25-year-old limit was nothing but "aspirational statements."

You know, to be fair, people debated at the time whether it was dicta, but at least, interestingly, following it, schools almost all said, "Oh, yeah, of course. Twenty-five years from now, we're not going to need to use preferences." And then, of course, over the last 20 years since Grutter, they've backed off that

She cites Supreme Court cases approving the use of race for racial gerrymandering and prison security, but again, Roberts conceded the prison exception and racial gender gerrymandering. Well, we just saw that a few weeks ago in Milligan. And she says that the Court's understanding of the Constitution being colorblind is really just that it's colorblind when the court so chooses. I guess there's some truth to that if you look at the racial gerrymandering decisions.

She says does not majority has not even attempt to make the extraordinary showing required by stare decisis, even though they effectively overruled Grutter; they didn't do so explicitly, but they did effectively do it. And she points to schools having reliance interest in having built up this current admission system that is very based on race. Again, she's certainly right that they did not go through -- the majority does not go through any sort of stare decisis analysis.

She claims that race-neutral alternatives won't achieve enough diversity—well, won't achieve enough racial diversity. Again, I think the facts on the ground in states where race hasn't been able to be used in a long time, like Michigan, California, Texas—at least for a little while, Texas couldn't use it—race-neutral alternatives there indicate you can achieve racial diversity. But again, people can differ in good faith on that.

She says that Roberts' exception "for race and application essays is nothing but an attempt to put lipstick on a pig." She says, "Because the Court cannot escape the inevitable truth that race matters in students' lives, it announces a false promise to save face." You know, you can call it lipstick on a pig, but I think that, certainly, the Harvard professors that I listened to yesterday were very happy for that lipstick on a pig, and in other places in Sotomayor's dissent, she's happy for that exception.

I thought it was interesting that she went through and rebutted Thomas's concurrence where he discusses reasons why racial preferences really are a burden on minorities. She rejects the mismatch theory, the idea that, because you are sending blacks and Hispanics to schools that are somewhat better than they otherwise would have gone to, that they aren't going to do quite as well.

And Rick Sanders has documented this, showing that blacks and Hispanics, on average, have below-average grades and, in law school, have a lower bar passage rate. I guess one could debate why that's true, but certainly, it could be that they're admitted under a somewhat lower standard.

So, interestingly, Sotomayor points out, as one way of refuting the mismatch theory, that the three minority justices on the Court graduated from schools with preferences, and no one would doubt that they did not suffer from it; they're very successful.

She rejects Thomas's contention that racial preferences are stigmatizing. She rejects the idea that there's harm to Asian applicants. Again, I think that's a hard argument to make, but one of the things she says, interestingly, is one of the things that work against Asian applicants at Harvard is there's a personal rating where you're basically just giving an applicant individual characteristics some rating. I forget; one through four, one through five, something like that.

And, given that subjectivity is one way to sort of jigger the results, not surprisingly, Asian-Americans typically, will come out with the lowest personal ratings and blacks and Hispanics with the highest. And some people have pointed out that's sort of stereotyping Asians, the idea that Asians are somehow less interesting. I don't think it's that; I think it's just, as I say, a way to jigger the system.

But, in any case, she says that the personal rating is race neutral, so everything that the majority opinion says doesn't even apply here. If the argument is that the personal rating is hurting Asian applicants, well, there's nothing in yesterday's opinion that would forbid that since it's race neutral.

And she takes aim at Thomas's assertion that it's mostly elites that support preferences. I think that's largely true. If you look at the polls, it really depends how it's phrased. Typically, if you say, "Do you support affirmative action," you can get a little over 50 percent of Americans to say they do, but if you actually say, "Should minorities be judged under a different standard than whites," then you get large majorities saying no.

But, in any case, Sotomayor points out that minority students who are young, not elites, testified at trial in favor of preferences. And then she cites, I thought somewhat contradictory, all the elites who filed amicus brief supporting preferences. To me, that makes Thomas's point, which is that, at least among the elites, pretty much everyone is on Sotomayor's side.

And then she ends with strong language. I'll just quote it. She says, "Notwithstanding this Court's actions, however, society's progress towards equality cannot be permanently halted. Universities can and should continue to use all available tools to meet society's need for diversity and education.

"The opinion today will serve only to highlight the Court's own impotence in the face of an America whose cries for equality resound. The arc of the moral universe will bend towards racial justice, despite the Court's efforts today to impede its progress." And that's why Randall Kennedy called her dissent a call for resistance.

So, as for ramifications, I don't know what this all means for other areas of affirmative action, but let's take a brief look at what's ahead for admissions. Up until now, schools have resisted race-neutral alternatives and getting rid of legacy preferences, but I think that's going to change. Certainly, they will embrace race neutral alternatives. And maybe they'll get rid of legacy preferences.

The Biden administration has already directed the education department to look at legacy preferences. Now, they're not unlawful under Equal Protection, obviously, not unlawful under Title VI as far as intentional discrimination, but I guess you could make a disparate impact argument under Title VI. Maybe that's what the Education Department is going to do.

Now, schools—again, up until now—have argued against race-neutral alternatives. They've said, like Sotomayor does, that they don't work. Again, I think that's belied by experiences in California, Texas, Michigan. They've said, "We want to remain an elite institution," which basically means they don't want to relax standards for everybody.

You know, I'm not sure that's admirable, but it's probably honest. And then also honest is, I've heard a lot of Civil Rights folks say, at least privately, that they don't like race-neutral alternatives because it doesn't acknowledge the unique hardships of being a minority.

So, certainly, for those who like yesterday's decision, much work is going to be needed to prevent schools, one, from engaging in outright cheating and, two, ensure that race-neutral alternatives are not used for what Roberts called doing what cannot be done directly.

You know, regarding race-neutral alternatives, even conservatives are divided on where to draw the line. How much racial intent makes a race-neutral alternative unlawful? Is taking socioeconomic or educational disadvantage into account ever unlawful?

You know, what about Texas's top 10 percent plan, which is sort of a form of geographic diversity, or other forms of geographic diversity? You know, is that unlawful if you have race in mind? The plaintiffs in the Thomas Jefferson case, the K through 12 case, say that seeking geographic diversity is unlawful because, at least for the schools they're suing, it's racially motivated.

I guess all we can really say is that there's certainly be lots of litigation addressing these issues. And perhaps schools will just give up their focus on racial diversity and truly focus on intellectual and experiential diversity. That would be my wish, but I don't really expect that to happen. And I guess that's a good place to stop.

Sam Fendler:  Thank you very much, Curt, for giving us that overview of the opinion. I want to open the Q&A portion by asking you about the question and the holding. The question presented before the Court was whether the admission systems violate the Equal Protection Clause of the Fourteenth Amendment.

The majority and dissenting opinions differed pretty sharply about how they read the Equal Protection Clause of the Fourteenth Amendment. The majority said that it's colorblind, and the dissenters argued that, perhaps to bring it to fruition properly, it may even necessitate race consciousness in pursuit of racial equality. Can you discuss these competing theories of the Equal Protection Clause and the Fourteenth Amendment?

Curt Levey:  Well, I think if you take it at its word textually, it calls for equal protection, which is basically equal opportunity. It does not call for equality of results. Certainly, many people in the left have argued that it was motivated by a desire to help freed slaves. There's no doubt about that.

It was partially enacted to make sure that the Civil Rights Act of 1866 would be constitutional. And, again, the 1866 Act says that others shall have the same rights as white persons, which, to me, just calls for, again, equal opportunity.

But I think, ultimately, you have to look at what the Court has said in recent decades, and it's been pretty clear that Equal Protection forbids race-conscious decision-making with a few exceptions. And we've gone over those exceptions, and until yesterday, one of them was the educational benefits of broad-based diversity.

And you know what? I think if schools had just gone about using race as one of many factors to achieve intellectual and experiential diversity, I don't think we'd be debating this today. I think people would be okay with that. It's the fact that they use it as a cover for something that the Court has said many times is unconstitutional, which is racial balancing. You know, that's why it came to the decisions yesterday.

And so I don't think we should mourn the loss of one of the exceptions to the colorblind intent of the Fourteenth Amendment because it's an exception that, like I said, no one really believed in and the schools weren't complying with anyway. So now there's one less exception, and the other exceptions that Roberts mentioned, the remedial exception and the prison exception, I don't expect the Court to get rid of those anytime soon.

So perhaps Sotomayor is a little bit right when she says that the Court will choose when it thinks Fourteenth Amendment should be colorblind and when it doesn't, but I would argue that the remedial exception, at least, is not so much an exception as it is a remedy to the violation of the Fourteenth Amendment. So I've never really viewed that as, really, an exception. So I think we've moved closer to the idea that the Fourteenth Amendment really is colorblind, and I, at least, think that's a good thing.

Sam Fendler:  Curt, I want to ask you next about the strict scrutiny analysis. We know, of course, strict scrutiny requires a compelling government interest and narrow tailoring. Majority found that Harvard and UNC's admission systems failed on both accounts. The dissenters, of course, argued that the compelling interest was established, both on the merits and through using precedents.

They also found -- Certainly, Justice Sotomayor wrote about it. She said that narrow tailoring does not require perfect tailoring. Can you talk more about the strict scrutiny analyses provided by both camps?

Curt Levey:  Well, again, the first part of strict scrutiny is that there has to be compelling interest, and until yesterday, the educational benefits of broad-based diversity was a compelling interest. It's not anymore.

Narrow tailoring involves, in this case, using race as just one of many factors. Schools never complied with that. Not engaging in racial balancing, schools never complied with that. Having some endpoint such that racial preferences don't just become permanent, schools never complied with that. So even if you fault the Court for not doing a better stare decisis analysis, I think on Equal Protection, UNC and Harvard lose big time.

Sam Fendler:  This next question comes from our audience, and it touches on the future of the holistic use of race. Our attendee asks, "Is it fair to say that this decision enables universities to consider race only to the extent that the applicant willfully demonstrates it, and that it has influenced their experience and qualifications?" Or in other words, what do you make of the use of race going forward in essays in a holistic sense?

Curt Levey:  Well, certainly, that's what Roberts said, that it can't just be that you write in your essay that you're a particular race and, therefore, you've got a preference, that you have to demonstrate that, say, battling discrimination has helped you become more courageous or has otherwise shaped your life.

And also, the majority says that that opportunity has to be available to people of all races and ethnic groups. And if it really is limited to that, then we're probably getting pretty close to what Powell really had in mind when he said race being one of many diversity factors.

So, although the diversity rationale was implicitly overruled yesterday, we may wind up with a system that's pretty close to what Powell had in mind. And, like I said, I don't know that that's a terrible thing. If that had been what schools were doing all along, I don't think we'd be where we're at.

The problem, of course, is going to be cheating, where you're not really judging the essays of a white student, an Asian student, the same as you would judge the essay of a black or Hispanic student.

And certainly, following Prop 209, which only applied to the state schools in California the state schools had essays, or some of them at least had essays, where you describe your disadvantage. And certainly, they were accused of cheating, and I don't know enough to know to what degree they were cheating or not, but that that's going to be the concern, not so much that what Roberts said is a terrible thing, but just that schools will use it to cheat.

Sam Fendler:  Curt, I want to ask you about the question of the zero-sum nature of admissions. Concerning the processes themselves, a major part of the majority opinion asserts that college admissions are, in fact, zero sum. There's a finite amount of the pie. You let one person in; therefore, you cannot let the next person in.

And even if race is used as what was described as a tip, or a plus, it could come down to all other things being equal, with the zero-sum nature of college admissions being what they are, that somebody was denied for their race while another was accepted for their race. For the dissenters, they said that, in fact, these admissions processes are not zero sum. Can you talk about the nature of admissions, what you think it is, and what you made of the two sides' discussion on the matter?

Curt Levey:  Well, it's certainly a zero sum for the individual applicants because you have a relatively fixed class size. And I know that the schools argued that, since it's just a little tip, they're not really discriminating, but turn it around.

Suppose we were talking about schools that said, "You know what? If it comes down to a black versus a white student, we're going to give the white student a little tip. It's really just a little tip. We're not discriminating," would anybody say that that is not a violation of Equal Protection and Title VI? So I think that's a disingenuous argument.

Another sort of related disingenuous argument that I hear all the time is the idea that, "Well, all the students who are admitted are qualified, so there's no discrimination going on here." But again, turn it around. You know, if the school was saying, "Look, yeah, we discriminate in favor of white and Asian people a little bit, but it's not like they're not qualified. Everyone we admit is qualified," would anyone buy that argument? No. So, again, I think those arguments are disingenuous.

Sam Fendler:  There was some pretty sharp language that was exchanged throughout this opinion. What's your take on that? Do you think that there's anything noteworthy here? Do you think this is just a charged topic and it's sort of a nothing burger, or does the sharp language require some additional analysis?

Curt Levey:  Well, there was sharp language, and I expected nothing less from Jackson and Sotomayor. It certainly, like I say, is a very charged topic. What's interesting is that Roberts may have responded to that sharp language the next day—that is, today—because, in his opinion in the student debt cases, he ends with saying that recent dissents have sort of questioned whether the majority's exceeding its proper judicial role, and that he just hopes that the public doesn't take that to heart, because that would be very bad for our democracy if the public did that.

Well, Roberts certainly said that today in a very polite way, but he's obviously concerned that the dissents in recent cases have been going a little bit too far. And I read that as a concern that the dissents are feeding into the attacks we see from Democrats and their allies against the legitimacy of the Court.

So my guess is, without those outside attacks, Roberts would not be so worried about what the public thinks of the dissents in the affirmative action cases or the student debt cases or any of the other recent cases.

Sam Fendler:  I want to ask you next about Justice Jackson's dissent. It's been making the rounds in the news. Some are criticizing it, some are saying it's incredible, but in either case, I think it made pretty generous use of both social science and general history to invoke some pretty potent political language.

I want to read you one section and hear your thoughts on it. This is the second to last footnote, Number 105. The justice writes, "My goal here has been to highlight the interests at stake and to show the holistic admissions programs that factor in race are warranted, just, and universally beneficial. All told, the Court's myopic misunderstanding of what the Constitution permits will impede what experts and evidence tell us is required as a matter of social science to solve for pernicious race-based inequities." What's your takeaway?

Curt Levey:  Well, part of that is very similar—or a lot of it is very similar—to what Sotomayor said. They both made the argument that race-based admissions is good for everyone, and if you buy the diversity rationale that there were great educational benefits to diversity, then that could be true.

And I think one reason that the diversity rationale became the preferred rationale is because what it really says is, "Look, we're not doing this for black and Hispanic kids. We're doing this for everyone. So we're doing it mostly for the white kids, for the educational benefits." And, to me, that's mostly what the dissent was saying.

And again, if you buy the diversity rationale, I guess there's some truth to that, that everyone benefits, but try telling that to the white and Asian students that are convinced that they were rejected because of their skin color.

Even though it's 20 years ago, I remember both Barbara Grutter in the law school case and Jennifer Gratz in the undergraduate case took it very personally; they really felt like, "Somehow, the University of Michigan values me less because I'm white." You know, I don't think they would agree that this is for their benefit.

And I should also point out that I think another reason the diversity rationale wound up being popular is because it allows schools to be woke while still admitting mostly affluent students who have good educational backgrounds and don't require a lot of financial aid because, again, if it's the educational benefits of diversity, affluent black and Hispanic kids can satisfy that just fine.

Whereas a more remedying societal discrimination or other rationales would require admitting that poor black kid that the left likes to talk about, and that poor black kid who grew up in the inner city probably, sadly, doesn't have the tools to do well at top schools and certainly will need a lot of financial aid. So I think that's another cynical reason why the diversity rationale came to be the preferred rationale not just of the Court, but of society.

Sam Fendler:  You spoke a lot about the value that one may place on the concepts of diversity, and Justice Sotomayor actually closed out her dissent by noting that diversity is now a fundamental American value. I think this line in particular, but probably the totality of the almost 240 pages, puts on a good example of the differences between the doctrines of living constitutionalism and originalism. What did you think about the display of either of those two modes of interpretation? Do you have any thoughts on it?

Curt Levey:  Well, I would direct people to Gorsuch's concurrence where he talks a lot about Title VI, which applies to both Harvard and UNC. Equal Protection only really applies to UNC, a state school. In any case, we can make debates about the original intention of Equal Protection, but it's much harder to argue with the words of Title VI, which really does seem to outlaw all racial discrimination.

And, like I said, four of the justices in Bakke thought the same thing. They didn't even reach Equal Protection. And Gorsuch, in his concurrence, actually talks about the Bostock opinion. I know a lot of conservatives were not happy with that opinion, but he says that under -- Title VI is part of the 1964 Civil Rights Act. He says that, under a neighboring part of the '64 Civil Rights Act, Title VII, we said that almost identical language to that used in Title VI meant no discrimination.

And so I think a textualist would have to say that, in a sense, these cases are an easy issue, regardless of what the original intent of the Fourteenth Amendment was.

Sam Fendler:  You touched on this a little bit, Curt, and I want to note that we are planning to have a more in-depth conversation about the future of college admissions in the coming weeks, but there's disagreement about the workability of this opinion for college admissions offices. What's your take, just a broad take, on the future of admissions processes and how college admissions officers are going to be able to use this opinion?

Curt Levey:  Well, I should point out that, while you know some of the language that Roberts uses about application essays, but then you can't use that to accomplish what you otherwise couldn't accomplish, I wouldn't say unworkable. I mean, certainly there's room for judgment there, but in any case, I think yesterday's decision is way more workable that what we had before.

Before, we had the vague rationale about educational benefits of broad-based diversity and, yeah, they can continue for a while, but you have to have some endpoint in mind. That was really unworkable and difficult to enforce. So if you're looking for clear guidelines, they certainly are clearer after yesterday's decision.

Sam Fendler:  Justice Sotomayor called the majority's opinion destructive, and Justice Jackson called it a tragedy. Do you think these are fitting adjectives?

Curt Levey:  I assume they think that because they think that this will result in a drastic drop in minority enrollment, which is what they're concerned about. Again, like most progressives, they're not concerned with the educational benefits of broad-based diversity; they're concerned with racial diversity.

And I guess I would say to them, A, look at the experiences in Texas, Michigan, California, and several other states that outlawed preferences, and you might see, for a year or two, some drop in minority enrollment, but schools will find a way, through race-neutral alternatives, maybe a little bit of cheating, to ensure that minority enrollment does not drop; and B, I would say hold your breath. I think that you'll be very surprised a few years from now when all of America is seeing the same results as, again, Michigan, Texas, and California have.

Sam Fendler:  Well, Curt, our time is quickly coming to a close; we have about a minute left, and I'm wondering if you have any final thoughts for our audience.

Curt Levey:  I don't know about final thoughts, but I guess yesterday's decision, as you maybe alluded to, is really just the beginning of the end of race-based admissions. There's so many questions to be answered, both in how schools react to it and in future litigation, that anything I or anybody else says about it is just speculation.

But Justice Sotomayor is right that America has come to embrace diversity. I don't think it's come to embrace racial discrimination to achieve diversity, but it has embraced diversity, and so I would be very surprised, at the end of the day, if higher education is any less racially diverse than it is now.

Sam Fendler:  Excellent. Well, Curt, on behalf of The Federalist Society, I want to thank you for the benefit of your time and your expertise today. I know it was a large effort to get through that opinion, and we greatly appreciate it.

I want to thank our audience as well for joining us. We greatly appreciate your participation always. Please check out our website, fedsoc.org, or follow us on all major social media platforms @fedsoc to stay up to date with announcements and upcoming webinars. Thank you all once more for tuning in, and we are adjourned.

 

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