Back To Basics

 In other words, the student must be treated based on his or her experiences as an individual—not on the basis of race.

Many universities have for too long done just the opposite. And in doing so, they have concluded, wrongly, that the touchstone of an individual’s identity is not challenges bested, skills built, or lessons   learned but the color of their skin. Our constitutional history does not tolerate that choice.

John Roberts, Chief Justice, writing the opinion for the Court, Students for Fair Admissions, Inc. v. President and Fellows of Harvard College  (2023)

One would think - based on the pundits, the professional opinion influencers and others - that this decision, and the resulting orders of the Court, are a departure by ideologues bent on depriving people of something because...well, they are ideologues. And, okay, that's a point of view.

The majority opinion was very Roberts-esque (commentary by partisan opinion writers notwithstanding) - state the facts, then the question, then the resolution. It is fair to write that ideological shading is possible in every case. The case presents as follows:

*The process used by Harvard and University of North Carolina employs race as a factor in making admissions decisions, which benefits some races to the disadvantage of others;

*Federal law and the Constitution forbid discrimination based on race;

*To overcome the strong presumption of invalidity, any such process must "serve a compelling governmental interest," and be "narrowly tailored" to address only that compelling interest (called Strict Scrutiny);

*None of the interests advanced in pleadings by either educational establishment are well defined, measurable or clear enough to state a compelling governmental interest. Nor are they narrowly tailored. See, Opinion of the Court, Roberts, CJ, Part A, beginning on page 22.

This is a classic structure taught to first year law students, one that CJ Roberts has predominantly used when he writes a published opinion. There is nothing Earth shattering, or pioneering, or especially departs from mainstream legal analysis. The details matter, of course. That's where differences - reasonable people disagreeing is how the CJ put it - are found.

The problem to some, reading Justice Thomas's concurrence and Justice Jackson's dissent (and then half a dozen or so mostly breathless commentaries in the media) is the outcome - that Harvard's and UNC's (and many others') admissions criteria are unlawful. Justice Thomas is pointed in both his own opinion and in his assessment of the faults of the dissents. Justice Jackson, who writes well and expresses her points clearly, comes at the case quite differently than Justice Thomas. It is a worthy exercise, to read both in full and try to understand what the justices are conveying. One need not be a lawyer to decide which one is more persuasive, and why.

Outside commentators (including the one you are reading) offer zero insights in a neutral manner. Most find their own predispositions either reinforced, or dashed by this opinion, depending on who they work for or what their media personae dictates. Suffice to say that most - if not all - can easily be avoided.

I'll finish with an observation. In April 1986, following the guidance of  a "Getting Into Law School" guide, I called the admissions office at Syracuse University. "Is my admissions package complete?" I asked. "Yes," the woman on the phone said. "You'll be offered admission. We reserve a few seats late in the process for those candidates we think have unique personal histories."

My personal history - married, early thirties, a Colorado police officer for seven years, children. Okay undergrad grades, above average LSAT.

I was, in the lexicon of 21st Century academia, a diversity admission. But, to quote Chief Justice Roberts, it was based on my experience as an individual. I believed then, as now, that that is an admirable criteria for a university to consider.