Implications of Supreme Court Arguments (Opinion) | Tech US News

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You probably know that last week the Supreme Court heard oral arguments in twin cases brought by Students for Fair Admissions challenging the use of racial preferences at Harvard University and the University of North Carolina at Chapel Hill. What is not clear is whether the five hours spent on both cases – two hours longer than planned – was anything other than political theatre. The consensus of those who followed the oral argument is that the judges in court have most likely already made up their minds.

Taking race into account in college admissions is just one of the things being tested in these cases.

If race-based preferences are put to the test, it certainly opens the door to questioning other admissions preferences as well. While I am not aware that Students for Fair Admissions has ever filed a lawsuit challenging legacy, athletic, or donor preferences, which may indicate that it thinks they are fair, those preferences will inevitably come under scrutiny as well.

During oral arguments, Justice Neil Gorsuch asked what would happen if sports and donor preferences disappeared, concluding that “we’d just have a crappy squash team and not an art museum. So what?” So what, really. Are we ready to give up our climbing walls and lazy rivers too?

Legacy preferences have come under attack before, most recently in a report released a few weeks ago by James Murphy, senior policy analyst at Education Reform Now. We will revert to the old settings.

What else is being judged? Judicial deference to institutions that determine what their student bodies look like. In past cases involving college admissions and race, previous Supreme Courts have left it up to the institutions. It is unclear whether the current court will follow stare decisis, precedents set over the past 45 years dating back to Bakke, the first case involving college admissions and race.

This means that the court itself also judges. After the overturning of Roe v. Wade and 50 years of what several justices described during confirmation hearings as “settled law,” the Court is in danger of revealing itself as more impartial arbitrators calling balls and strikes, to use a metaphor by Chief Justice John Roberts in 2012, but ideological politicians who happen to wear robes.

It has been suggested that the head of the current court is not Roberts, but Justice Clarence Thomas. After the decision overturning Roe, Thomas suggested he would be willing to overturn previous court precedents on issues ranging from same-sex marriage to privacy in consensual sex. To no one’s surprise, he argued that Loving v. Virginia, a case barring states from banning interracial marriage, should be overturned.

Thomas has been a consistent opponent of racial preferences, and to be fair to him, this issue is personal to him in a way that it isn’t for most other justices (with the exception of Justice Sonia Sotomayor, who proudly acknowledged herself as an affirmative action beneficiary and Justice Ketanji Brown Jackson ), or most of us. He wants (and has a right) to believe that he earned his success on his own merits, not because of his race. He certainly understands all too well the stigma attached to successful African Americans that their success is a product of affirmative action. This is misguided and unfair, especially since none of us can claim that our success is something we have earned without any help.

Another admissions practice that is being tested is holistic admissions. During the oral arguments, two statements caught my attention. The Washington Post reported that Patrick Strawbridge, an attorney for Students for Fair Admissions, argued that considering race alone in admissions decisions is unconstitutional. In another exchange, Roberts told Harvard lawyers that they needed to determine whether granting “credit” based “solely” on skin color was based on a stereotype.

I found both comments odd. They certainly don’t believe that students are admitted to Harvard based on race alone (please avoid the “don’t call me Shirley” answer). I think they suggest that holistic admissions, especially when combined with ├╝ber-selectivity, provides cover for institutions to admit classes for which they want to achieve institutional priorities, including racial diversity, without any way of criticizing a particular admissions decision. They believe or suspect that race is not one of many factors in admissions decisions, but rather the deciding factor, or at least outweighs other factors.

The irony, of course, is that Harvard’s amici curiae brief already outlined a holistic process in the Bakka case, where race was just one of many factors that Justice Lewis Powell cited as exemplary in his majority opinion. Some on the current court are skeptical of that approach, with Justice Samuel Alito asking during oral arguments, “Did Harvard sell Justice Powell a box office?”

As its title suggests, “Ethical College Admissions” is less concerned with the legal and political implications of preferences than with ethical considerations (it acknowledges that there may be considerable overlap). One of the guiding principles of ethics is “Treat like cases alike”. Returning to probate preferences in light of current Supreme Court racial preference cases, do these two types of preferences represent similar cases? If we abolish one, do we have to abolish the other?

I would argue that they are not like examples. Legacy preferences and racial preferences present different kinds of ethical issues. But I have to conclude that legacy preferences are less justifiable than racial preferences.

Inherited settings serve as a means of preserving privileges. The argument for heritage preferences is that a college or university is a kind of family and that loyalty to family is a good thing. (Another argument I can’t judge is that the group of older applicants is stronger than the group as a whole.) I’m not opposed to loyalty as a value, but should it outweigh other values? Should an applicant be given priority because of who his parents are rather than who he is? This turns college admission into membership in a private club passed down from generation to generation. I have described the acceptance of inheritance several times, later quoted to you The New York Times editorship, as a transfer of property.

Even if you accept the family metaphor, it begs the question of what best serves or strengthens any given family. I have been fortunate to work in a school with a tremendous sense of community that is almost family, but I have always believed that a family is best served by expanding the family by bringing in new blood. A family that is too loyal becomes isolated and inbred, like 19th-century European royalty, and inbreeding inevitably results in genetic mutations that weaken and threaten the family.

The weakest argument for legacy preferences has to do with alumni philanthropy, the idea that alumni will support a college or university only if their children have a preference for admission. The experience of places like Johns Hopkins University, which have abandoned senior preferences, suggests that a decline in alumni support is not inevitable. But even if it is, is giving to alumni in the hope of receiving a quid pro quo really philanthropic or a subtle form of bribery? This is exactly the argument that Rick Singer and his clients used to justify their criminal conduct.

Racial preferences are different in that the goal is noble and laudable, to correct past discrimination and increase access to elite education. The ethical question is whether the end justifies the means. Does it matter how we achieve the goal of greater equality and access?

I think so, although I don’t claim to have the answer to how to achieve it. The Bakka case involved a medical school at the University of California, Davis, which set aside a certain number of seats for applicants of color, and the Supreme Court found racial quotas unacceptable. Critics of racial preferences argue that the practices today are similar, only wrapped in calls for inclusiveness and diversity.

Ethics is about ideals, the admissions process, and a society where, to quote Martin Luther King Jr., candidates are “not judged by the color of their skin but by the content of their character,” ideals. But is 2022 just aspirational? Ethics must also be practical, and the practical aspect is that American society still deals with race as an issue. I wish race was not required, but we are still dealing with 300 years of racial injustice, and forcing colleges to abandon all race consideration is not a viable solution to this larger issue.

At the same time, I do not like the idea that racial preferences must always be present, any more than I accept the idea that American forces must remain in Afghanistan for 75 to 100 years. In the Grutter case, Justice Sandra Day O’Connor spoke of racial preferences remaining for another 25 years. We are five years away from that timeline, and it is not clear whether another five years is enough. But we may not have another five years.

Regardless of what the Supreme Court decides about Harvard and UNC Chapel Hill, our profession needs to think about an exit strategy for preferences of all kinds.

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