Two Supreme Court Cases

It's been 150 years since the Civil War and passage of the 14th and 15th Amendments,  and the Supreme Court is still trying to get it straightened out.

Fisher vs. University of Texas

Background: Fisher, a white woman, did not get admission to UT Austin,  which uses race as one factor of many when deciding about 15% of each freshman class. (85% are admitted based on solely on rank in their high school class.)  Her credentials were reasonable but not outstanding, and it is not clear she would have gained admission even under criteria that completely excluded race as a consideration. Nevertheless, Fisher claims that the use of race violated her right to equal protection under the law.

The SC made a bad mess of this in their prior work,  with confusing plurality decisions with overlapping concurrences and dissents.  The gist of it appears to be this:

a. Under Regents of the University of California vs. Bakke,  a university may not have a quota system.  However...

b. Under Grutter vs. Bollinger, race may be considered in a "narrowly tailored way" to further a compelling interest. The decision also classifies diversity as a compelling interest.  However....

c. Under Gratz vs. Bollinger, the narrowly tailored way cannot involve "predetermined point allocations".

Further complicating matters is a recent 6th Circuit decision (Coalition to Defend Affirmative Action v. Regents of the University of Michigan) that states may not ban state-owned universities from using racial preferences. Apparently the decision level matters.


Forecast: Elena Kagan is recused from this one, and the initial questions by Ginsburg, questioning whether Fisher even had standing, show that the three remaining liberal justices would prefer that this case not get decided right now.  The question is whether things will stay as they are or whether Grutter will get overturned/narrowed.  My prediction is that racial preferences will be continue to be permitted, but some kind of ugly multipart test will be imposed,  making things more complex rather than simpler.


My Take:  I have no real preference on the affirmative action issue itself, in my opinion traditional discrimination is no longer a major problem in university admissions, and reverse discrimination even less so.  Some people will be admitted and others rejected on some basis, and "diversity" has neither more nor less protection than "athletic ability" or "academic ability" - all constitute ways to discriminate one applicant from another, and all equally violate (or not) the text of the 14th amendment, which does not mention race.  If you're going subject diversity decisions to strict scrutiny in court, why not academic ability decisions as well? 

But as a university faculty making admission decisions, I want clarity on the law. That 6th Circuit decision in Michigan, banning bans on racial preferences, is poorly thought out.  As much as I'd like to do our smoke-filled room thing without higher level interference, insulating us from our employers' authority sets up all kinds of ambiguities.  Who's allowed to make the call on whether to use preferences?  Faculty committee?  Dean?  President?  Regents?  State Education Board? How high does it go? Not as high as the state constition or a ballot proposition, according to the 6th Circ.

The SC is also to blame. That distinction between Grutter and Gratz is very hard to parse.  When weighing many factors in a complex decision, the typical thing an educator does is make some kind of rubric, with columns for the different factors, and a rating of applicants on each factor.  Apparently the law is that I can give a guy an "Excellent" or a "Good" on diversity but if I translate that into a "9" or "8" it's a problem. What if I translate it mentally, without writing it down?  What if we don't have a rubric written down,  but imagine one when making a subjective decision?


The Supremes ought to straight up allow, or disallow, racial preferences, and quit trying to split the difference.  And if they allow them, quit dancing around trying to make the language race neutral, and just flat state once and for all which groups may be preferred.  


Shelby County vs. Holder


Background:  Most election law and procedure in the US is decided at the state level. Under the Voting Rights Act, in the Southern US, and a few patches elsewhere, any changes to law or procedure have to be pre-cleared with the US Department of Justice before they can take effect.  The geographical coverage of the law is fixed and not tied to any current behavior, good or bad, by the local authorities.

Shelby County argues that there ought to be some point at which they can get clean and get back the same level of autonomy that other states/counties enjoy,  and that they have in fact reached that point.


Forecast:  This one hasn't reached oral arguments yet. Kagan is on, so the liberal wing has all four of their votes.  Giving Shelby County what they want involves overruling Congress,  not just a state legislature or lower court, and children - even the justices themselves - have been taught from middle school on that the Voting Rights Act is one of our nation's major accomplishments.  I predict Shelby loses 4-5.


My Take:  This case is backwards. The lawsuit should have been filed by voters in (for example) Ohio, demanding that under equal protection the VRA should cover them as well. There is no reason that Ohio should be allowed to run racist elections just because they were on the right side 150 years ago.


Interestingly, election law is one of the very few areas in which Congress has understepped its authority, at least with respect to elections for senator or representative.  The Constitution gives them authority over federal elections, and they ought to use it to protect all voters rather than make it selective.


The court ought to state that the geographical coverage violates equal protection both for uncovered and covered voters, and order the DoJ to decide whether to apply preclearance to everyone or no one.  Given recent irregularities,  "everyone" is the right choice.

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OK if Shelby loses 5-4


Who'se the swinger?  I'd say Roberts is just as likely as Kennedy.  Especially after how the right reacted to his ACA "treason".


I personally agree that having states run federal elections on their own terms makes no sense.  Heck, having any political appointee manage any election system makes no sense.  Federal elections should be run by career professionals with unimpeachable nonpartisan credentials.  Similar to the standards of the Armed Services.


It would be great if the SCOTUS slapped down the case and as a remedy made all 50 states follow the preclearance requirement.  We need fewer Ken Cuccinellis and Jon Husteds.



Roberts and Kennedy are the likely swingers.  Kennedy tends to show deference to authority,  and after PPACA it appears that Roberts likes to come up with conservative sounding justifications to leave liberal policies in place.


Another outside possibility is Thomas, in the past when it came to things like cross-burning he's been known to go off his usual ideology,  and the VRA might fall into that category.


However, I think there is little chance our preferred solution will be the result,  since neither side in the case is asking for it.  At best it might be mentioned as a possibility in one of the opinions.

I dunno

Bird Dog's picture

With Kagan recused, that's one less liberal justice to judge people by the color of their skin. I don't think Holder's going to win either.

"Transparency and the rule of law will be the touchstones of this presidency."

--Barack Obama, January 2009

Okay then


what about the inconvenient data that shows minority applicants with slightly inferior transcripts perform just as well once in college as white students with better grades?  Grades and test scores aren't some magically neutral predictor of intelligence or even future academic ability.  If you want to do the MLK pivot (as GW Bush tried in the Michigan case) with any intellectual honesty, you have to take a hard look at the serious flaws in the system that's producing these applicants.


The discriminatory funding of school boards by local property taxes would be a good place to start.  Add some decent Head Start and SCHIP funding, and maybe in 20 years or so the disparities will disappear.

Corph, the problem is


we've got to make admission decisions now,  not 20 years from now.   One thing I don't think is reasonable to believe is that people who have been through 12 years of inferior grade school can suddenly perform just as well if now suddenly given a fair chance as college freshmen.  Of course people can rebound to some extent, but preparation does matter,  if it doesn't, why do we care about it? 


So, do we want to admit applicants based on:


(a)  predictions (admittedly not very accurate) of their actual chance of success,  taking into account a modest ability to recover from a poor K-12 education, or


(b)  estimates (also not very accurate) of what their chances of success would have been if things had been more fair in their previous 12 years.


My personal opinion is (c).  A much better predictor of success is actually making it through your first year at a given institution. We ought to worry less about efficiency and graduation rates,  and let in anyone that statistically has a fighting chance at making it.   At a typical state flagship that would mean dropping the minimum SAT score by (say) 100-200 points and treating any HS rank in the top third as equally acceptable.   Accept that you'll deal with twice as many freshman,  and that maybe 50-60% of them will wash out after the first year, and have to transfer someplace else.  The cost is 15-20% more seats needed for the same number of graduates,  the benefit is that many more people get their shot.


At "second tier" institutions,  my plan would mean letting in pretty much anyone with a HS diploma and test scores that show they can read and write,  and again accepting a high washout rate.  Flunking out is a bit traumatic but I don't see it as worse than not having had a chance in the first place.



Your Plan eeyn Would Make for a Fairer, More Just Society...But



...even more importantly than the actual benefits to the current crop of prospective enrollees, is the fact that for a generation at least going forward, this generation would  know that it was treated fairly and this  would add a tremendous resiliency to the society...such an important factor that people tend to overlook in wanting to be a bean counter on costs.


Society being Fair, Egalitarian and being seen as having been fair is a priceless commodity and as a glue for difficult times.




There are many unseen but real and manifest benefits to eeyn's proposal.


Best Wishes, Traveller



If you show me some data,

Bird Dog's picture

heck, I might even look at it. I haven't said that test scores and HS GPA are magically neutral predictors, but they are reasonable predictors of future performance. And there is a serious issue with college graduation rates.

"Transparency and the rule of law will be the touchstones of this presidency."

--Barack Obama, January 2009

Eeyn, it's not too late to add 'open thread' :)


Ok, well now it is.


In the medical community, death is known as Chuck Norris Syndrome.