On the scarce places - Randall Kennedy in TLS:

“Affirmative action gives a boost to certain categories of applicant for scarce places at selective institutions. What constitutes a ‘boost’ will vary. It might mean advertising educational opportunities to isolated communities which, historically, have sent few students to elite institutions. It might mean using race as a tiebreaker, giving the nod to a candidate of colour over a white candidate who is similarly accomplished. It might mean selecting a candidate of colour over a white candidate who is considerably better qualified according to established criteria. The litigation involving Harvard revealed, for example, that applicants with the same academic index – a measure comprising test scores and grades – had strikingly different prospects of admission depending on race. Generally speaking, it took considerably better test scores and grades to win admission if you were white or Asian than if you were Black or Latino. This is the scenario that has caused the most controversy, in which an elite institution aids candidates of colour by putting not just a thumb on the scale but a whole fist, leading to situations in which it is clear that, typically, Black and Latino students are less strong academically when they arrive at college than their white and Asian peers.”

(…)

“Affirmative action is practised by only a small proportion of colleges and universities in the US: generally, those which attract many more applicants than they have available places. Most schools are happy to accept anyone who can meet minimal entrance requirements and pay tuition. The most prestigious private and public institutions, though, are crucibles of competition. In last year’s round at Harvard, there were more than sixty thousand applicants for undergraduate spots; fewer than two thousand were admitted. At the University of North Carolina, 43,500 applicants competed for 4200 places. A similarly intense winnowing takes place at Yale, Princeton and leading public institutions such as Berkeley and the University of Michigan.
One reason so much attention is focused on the admissions policies at these schools is that they exercise an outsized influence in American society, whether the field is journalism, popular culture, medicine, law, finance or government. All of the Supreme Court justices who decided the affirmative action cases went to colleges and law schools that practised affirmative action. All but one received their law degrees from either Yale or Harvard; the outlier, Amy Coney Barrett, attended law school at Notre Dame.”

(…)

“The diversity rationale was initially posited by the Harvard law school professor Archibald Cox. It was picked up in 1978 by the conservative Justice Lewis F. Powell in the Supreme Court’s first plenary encounter with affirmative action in Regents of the University of California v. Bakke. Powell, in a pivotal decision, embraced the diversity rationale while rejecting all other justifications for racial affirmative action. His opinion was ratified 25 years later in Grutter v. Bollinger, a case arising from admissions policies at the University of Michigan. Colleges and universities adopted the notion of ‘diversity’ enthusiastically in as much as it permitted them to continue with racial affirmative action, albeit at the cost of having to drop all reference to reparative justice, integration and other grounds that some considered more substantial than the need for diversity.”

(…)

“The diversity rationale had champions in high places, but it also had influential detractors. Some dismissed it as a pedagogical theory without solid foundation. Others believed that educational authorities were opportunistically pursuing the old reparationist agenda under cover of diversity. The late Lino Graglia, an ultra-conservative law professor, complained that throughout academia, Justice Powell’s opinion had been ‘taken as little more than an invitation to fraud’. Sanford Levinson, a progressive law professor, said that he had become increasingly dismayed by ‘the costs to intellectual honesty of the felt need to shoehorn one’s arguments into the language of “diversity”’.
In 2014, Students for Fair Admissions, a group created by Edward Blum, a conservative lawyer dedicated to eradicating positive racial discrimination, sued Harvard and the University of North Carolina, alleging that, in their zeal to increase their intake of Black and Latino students, the schools had discriminated against whites and Asians. Lower courts ruled in favour of the defendants. But when in 2021 the Supreme Court docketed the cases for further review, it was widely assumed that the justices would reverse the lower courts and invalidate affirmative action. In the past, with the aid of conservative justices, the court had, somewhat surprisingly, given the policy a reprieve. But this time affirmative action faced a reactionary court that had shown itself, as in its overruling of Roe v. Wade last year, willing to be aggressive in securing objectives long coveted on the right.”

(…)

“Roberts also criticised the Harvard and UNC admissions programmes for imprecision and arbitrariness in their definition of ‘race’ and classification of groups and individuals. This has always been a difficulty in the drawing up of laws pertaining to race in the US, but courts have often chosen to ignore the complexities and contradictions in the administration of racial distinctions, relying on common sense instead. Now, all of a sudden, Roberts is more exacting. Complaining that the racial categories used by Harvard and UNC are ‘opaque’, unclear, even capricious, he scolds the institutions for being inattentive to the differences between South Asian and East Asian students, for leaving the category ‘Hispanic’ undefined, and for offering virtually no guidance when it comes to classifying students from the Middle East.
A further problem, according to Roberts, is that for all the talk of the benefits of variety, the diversity rationale homogenises people. He scoffs at those who take the position, voiced by Harvard, that ‘a Black student can usually bring something that a white person cannot offer.’ That proposition, Roberts writes, is itself a ‘pernicious stereotype’.”

(…)

“The majority opinion contains two wrinkles. First, in a footnote, it puts aside the question of racial affirmative action at military academies ‘in light of the potentially distinct interests’ that these institutions may have. These ‘distinct interests’ might include the belief that it is imperative – for the sake of morale and legitimacy, and therefore as a matter of military preparedness – to ensure the presence of racial minorities in an officer corps overseeing ranks that are substantially filled with racial minority service-members. The court did not approve of racial affirmative action in the military; rather, it chose not to confront the issue.
Second, at the end of his opinion, Roberts assures admissions officers that ‘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.’ He seems to be saying that it is permissible for applicants to discuss race and for institutions to consider whatever the applicants say, so long as the aim is strictly limited to assessing a particular candidate’s personal qualities and not the fulfilment of some broader institutional mission having to do with race relations. Wary that defenders of affirmative action might look for loopholes, Roberts warns sternly that ‘universities may not simply establish through application essays or other means the regime we hold unlawful today.’”

(…)

“This view ought to be rejected in favour of a position that recognises the difference between friendly and unfriendly racial discrimination. To echo Justice John Paul Stevens, who in a case in 1995 pointed out the difference between a ‘No Trespassing’ sign and a welcome mat, there is certainly a moral distinction – and there should be a legal distinction – between a sign that says ‘Blacks get out!’ and one that says ‘Blacks most welcome!’ Both are racially selective. Both invoke racial classifications. But while the former signals a wish to exclude, the latter encourages inclusion. The legal system surely ought to distinguish between these states of consciousness and their corollary social conduct. Roberts’s unwillingness to do so is ominous. The threat, as we look forward, is that his simplistic, symmetrical, formalist, sociologically unnuanced conception of ‘discrimination’ will be deployed to undo any effort aimed at helping Blacks or any other racial group, on the grounds that doing so is an illicit discrimination against anyone outside the group.”

(…)

“The ‘class, not race’ position is mistaken. First, the laudable aim of improving educational opportunities for students from poor families is by no means precluded by a continuing effort to address the distinct problems wrought by racial wrongs, historical and contemporary. There are compelling reasons to give poor whites a boost in the competition for elite educational resources. But variations on those same reasons also support the continuation of sensibly designed racial affirmative action. Second, ‘class, not race’ advocates assert that socioeconomic affirmative action will produce an acceptable amount of racial diversity. Whether or not one agrees will depend on the criteria used to assess socioeconomic class and on what degree of racial minority presence is considered ‘acceptable’. It is virtually beyond dispute, however, that a selection scheme focused wholly on class, leaving race out of consideration, will diminish the number of Black and Latino students attaining admission to elite institutions. Poor whites constitute a large reservoir of competitors who will often be better prepared and have better credentials than their Black peers, including Blacks on higher rungs of the socioeconomic ladder.”

(…)

“The struggle over racial affirmative action has involved two related but discrete questions which are often conflated. The first is whether affirmative action is permissible. The Supreme Court has determined that as a matter of federal constitutional law it is not. That is a question that should have been answered differently. Instead of imposing a uniform, centralising standard from on high, the court should have displayed judicial restraint, and permitted institutions to make up their own minds whether or not to engage in positive racial discrimination. The court should remove invidious racial discrimination from regular democratic politics. If a decision or policy or law is propelled by an aim to exclude or otherwise injure a group because of its racial identity, the court should declare that action unconstitutional, and hence outside the boundaries of regular political dispute. However, with respect to positive discrimination which adversely affects groups only collaterally, the court ought to be more deferential to democratic politics, more tolerant of local experimentation, and more willing to permit a variety of answers to the question as to whether, as a matter of policy, racial affirmative action should be practised.”

(…)
“Students who are behind need to be aware of their situation if they are to catch up. Affirmative action double-talk is demoralising and has led to cynicism. Many Black students respond angrily when it is assumed they have benefited from affirmative action. They know that the existence of the policy implies a need for assistance, and although they appreciate the help they also resent the inferences that observers draw.”

(…)

“There are good reasons why some progressives tolerated racial affirmative action without feeling much enthusiasm for it, or are even quietly pleased that it has ended, hopeful that something better, more equitable and far-reaching can be put in its place. More disturbing than the loss of affirmative action itself are the circumstances that led to its demise. That it was met with such a fierce and sustained backlash despite its relatively modest scope is an ominous portent. Racial hierarchy in the US remains a huge problem.’

Read the article here.

This is a very nuanced and insightful article, with some reasonable and laudable recommendations.

There is a difference between the sign “Blacks most welcome” and “Blacks get out.”

Even though I would not very much like to enter an institute, even a synagogue, with the sign “Jews most welcome.” My hesitance might explain some of the problems of affirmative action. One will feel the need to explain that standards were not lowered even though you happen to te belong to the group that is most welcome.

That class instead of race is not the solution, fair enough, after all, racial hierarchy is still ailing the US, as Kennedy is saying, and not only the US.

The question not being asked is: what kind of hierarchy do we find permissible?

The idea that we can do without any sense of hierarchy is not very popular, and for good reasons.

As a footnote, the army might be the best way for upward social mobility. The fact that the Supreme Court allowed the US army to practice affirmative action is telling. It’s needed there. Or better, many believe that elsewhere it’s less needed.

(Affirmative action is a medicine with too many side effects, but as the author is saying: no medicine is not the solution either.)

The army as the most progressive, liberal institute. Kill first, discriminate later.