Jamelle Bouie raises a very interesting point from Justice Elena Kagan’s dissent in Biden v. Nebraska, where she accuses the majority of the Supreme Court of violating the Constitution by holding the Secretary of Education lacked the authority to cancel student loan debt.

“From the first page to the last, today’s opinion departs from the demands of judicial restraint,” Kagan wrote. “At the behest of a party that has suffered no injury, the majority decides a contested public policy issue properly belonging to the politically accountable branches and the people they represent.”

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In reaction to the Supreme Court’s holding that affirmative action is unconstitutional, Jane Coaston reminded us that this was a first world problem.

Just a general note that most colleges and universities don’t use affirmative action because most schools accept pretty much everyone who applies. Selective universities are a small slice of what “college” is in America.

— Jane Coaston (@janecoaston) June 29, 2023

Getting into Harvard, Yale and Stanford will be hampered if they don’t use race as factor in admissions. Getting into Trinity Washington University, not so much.

The most obvious way to help colleges level the field among students is to level the field among colleges. But the largest gifts in higher education often go to the institutions with the most resources. Harvard University recently received a gift of $300 million, the University of Chicago received a gift of $100 million and Columbia University received a gift of $175 million. The combined endowments of these institutions add up to more than $74 billion. They can already afford to fund expensive diversity efforts. What if, instead of the $500 million that the Chan Zuckerberg Initiative has pledged to Harvard, it spread that kind of money around institutions like Trinity Washington University, where a majority of students are Black or Hispanic and 63 percent of students are Pell Grant recipients?

The writer, Angel B. Pérez is the chief executive of the National Association for College Admission Counseling and a self-proclaimed beneficiary of affirmative action, giving him two horses in the race. His op-ed starts out with one sketchy claim and one glaring omission, which makes it hard to take him seriously.

I’ve been traveling the country speaking to corporate executives about seismic shifts in higher education: a demographic cliff, decreased state funding, ever-rising tuition and a recent poll showing that over half of Americans don’t believe college is worth the cost. And, of course, the Supreme Court’s decision on affirmative action, which was handed down on Thursday, banning the use of race in college admissions.

Is he really saying that he’s been traveling around the country speaking about a Supreme Court decision that came out a two days before his op-ed was published? Or is he just not a writer capable of clear expression? Perhaps he should ask his college for a refund as it failed him in thinking and writing.

But more importantly, a majority of Americans not only think college isn’t worth the cost, but that race-conscious admissions are wrong. Maybe he missed that Pew Survey when he was busy traveling around the country speaking about the Supreme Court decision that had yet to exist?

But he also makes a point that, his own cred aside, is worthy of some consideration.

If you haven’t connected the dots for how this will affect your organizations, it’s time to wake up, I have been warning them. For decades, companies in America have relied on colleges and universities to deliver a diverse and well-prepared work force. That gravy train is officially over.

Gravy train? Is educating students so that they may enjoy a future of success in the workplace a, if not the, purpose of college?

But creating that labor pool — taking people from wildly different backgrounds and circumstances and turning them all into polished graduates with comparable skills — is tremendously hard, expensive work. Most corporations that reap the benefits contribute almost nothing to the effort. They sit back and wait, content to let the nation’s colleges and universities scout and nurture that talent.

That’s not going to work anymore.

While colleges turning students from “wildly different backgrounds and circumstances” into “polished graduates with comparable skills” may be a bit hyperbolic, he’s not wrong that the college to C-suite and professional school pipeline might be adversely affected if the handful of elite universities that compete for the handful of well-qualified minority students who are prepared and capable of surviving the rigors of an elite education fail to push out enough warm bodies.

What goes unsaid is that there is tremendous pressure on corporations and professions, law included, to have black people in upper management, the bench and the operating room. One of the most difficult, yet rarely mentioned, problems is that corporations can’t hire and promote minorities when there are not enough to fill the quotas.

Much as quotas are unconstitutional and wrong, it’s always been about quotas since we know what the percentage of black people in the general population is and we know what the percentage of black people in upper management is, and the tacit assumption is that if they’re not at least reasonably close, it must be racial discrimination because what else could it possibly be?

What Perez neglects to mention in his “fixes,” which are essentially that corporations and foundations should throw money at the problem, is that black graduates from Harvard B School are in extreme demand. Black graduates from Trinity Washington University are not. The former have the credentials that are expected of CEOs, whereas Trinity Washington University is already churning out black graduates. Hear a lot about them running Fortune 500 corporations or being nominated to the federal bench?

Perez’s point, that without elite colleges being feeders to top positions in corporations and professional schools, the well of “polished” black graduates will be smaller and competition for them will be increasingly intense in order to bulk up their diversity numbers. Corporate human resource departments are going to be placed in an untenable position, being commanded to find enough black grads to make the corporation or grad school appear to be diverse and inclusive when the numbers aren’t there.

This will likely cause a panic in HR, as nobody wants to say that the reason there aren’t enough black people in management or law or medicine is that there aren’t enough warm bodies who check enough boxes to create the appearance of being dedicated to diversity. The obvious fix is to dig down deeper to find more people without whose primary qualification is their skin color rather than their “polish” or “comparable skills.” Suddenly, Trinity Washington University grads will be in high demand. Not all, of course, but a majority of them. The rest will have to survive the rigors of an elite education.

Biden knew it was unlawful. Pelosi too.* But when it became good politics, both because doing it would endear him to that cohort that really wanted their student loans discharged and because the inevitable Supreme Court reversal would prove another reason to elect Biden because of these radical right-wing “unelected” judges, it was a win-win. And so it is, politically.

Serious standing issues aside, Biden v. Nebraska came down to a couplet in the HEROES Act which gave the Secretary of Education the power to “waive or modify” the terms of student debt repayment. Continue reading →

[Ed. Note: The first installment can be found here.]

Sheriff Roy needed a drink after his encounter with Aunt Cindy at Brauner’s, and he needed one in peace. Fortunately for the Sheriff, he knew people. One in particular owed him a bit of a favor.

He picked up the phone in his office and dialed a number. “Custer, it’s Sheriff Templeton. You remember when you said if I ever wanted to do a confessional you’d be there? How’s tonight at 7 sound?” Continue reading →

In one form or another, elite colleges have used affirmative action since 1965 to socially re-engineer the racial mix of their student bodies. Since first upheld in Bakke in 1978, it skirted a fine line under the Equal Protection Clause of the Fourteenth Amendment. At no time did the Court hold that discrimination on the basis of race was constitutional. At no time did the Court hold that discrimination on the basis of race was permissible to remedy past discrimination in college admissions.

The closest the Court came was to approve the use of race as a “plus” factor among fully qualified applicants to achieve what the Court held to be a constitutionally acceptable pedagogical goal, a diverse student body. When the Court affirmed this in the 5-4 decision of Grutter v. Bollinger in 2003, Justice Sandra Day O’Connor, in her majority opinion, raised two difficult questions. Will the need to consider race, a stop-gap measure to achieve diversity, ever come to a conclusion? What is the ultimate goal, as in what would constitute a sufficiently diverse body and what would it look like? Continue reading →

Not long ago, I took a look at the University of California, Berkeley, rubric for assessing faculty hires on diversity, equity and inclusion. This arose when someone asked me what, in the process of teaching an engineering subdiscipline, they could possibly say to assuage the student interviewers who care nothing about the teaching or the discipline, but only about DEI.

What part of thermo had anything to do with DEI? Beats me was the best response I could give, since I’m disinclined to string together meaningless incoherent phrases that students seem to find appealing and persuasive, ignoring that they are total gibberish.

Unlike my interlocutor, Yoel Inbar had an answer to the question. His answer was that DEI has little to do with his teaching or research. The kids were not impressed by his honesty or clarity. Continue reading →

News broke yesterday that Casetext, the legal-space start-up by Jake Heller and Pablo Arredondo, was bought by Thomson Reuters for $650 million. Having followed Casetext from the beginning, when it started with a dumb idea of a collaborative legal research tool to its pivot into legal research, and further pivot to include AI legal research. As recent experience before Judge Kevin Castel showed when papers included non-existent cases invented by AI, bad legal tech can cause some very real problems for lawyers and their clients. It’s avoidable with a little effort, certainly, but bad tech nonetheless.

But the ethos of “move fast, break things,” assumes that no one is going to be harmed should an attempt at innovation go awry. When it comes to most tech and innovation, that’s mostly true, although there can always be an argument made that by a few gyrations harm ultimately befell someone. And when it comes to spotty tech like generative AI in the law, what sort of lazy, sloppy lawyer wouldn’t check the cites generated by AI to make sure they existed? After all, who would believe that when ChatGPT tells you that Smith v. Jones is a 1978 District of New Jersey case that was on all fours, it pulled it out of its artificial anus? Continue reading →

Assuming, arguendo, the Supreme Court holds that race-conscious college admissions are unconstitutional, then what? Given that universities are dedicated to the existential cause of diversity, equity and inclusion, regardless of what the Supreme Court has to say about the matter, the likelihood is that they will change the head on the corpse in an effort to accomplish the same goals of increasing minority admissions without calling it, or admitting that it is, race conscious.

One possible avenue was that seized upon by the University of California after affirmative action was banned in 1995. Continue reading →

I characterized it as “subconstitutional” back in 2015, not because I had the future potential of a claim of quasi-judicial immunity in mind, but because I wasn’t a big fan of calling it a “kangaroo court” because it was insulting to kangaroos. But in response to the question posed in the referral from the Second Circuit, the Connecticut Supreme Court gave chapter and verse as to what a sham and due process fiasco Yale’s Title IX procedures in holding that accusations made against Saifullah Khan were not entitled to absolute immunity.

If the name sounds familiar, it’s because Khan was prosecuted, and acquitted, of rape in Connecticut. Accusers’ Rights organizations condemned the verdict as a “victim’s worst nightmare” of being discredited on the witness stand. A more objective view would be that the accuser was revealed as a liar on cross. So what did Yale do about its falsely accused student? Take a wild guess. Of course it expelled Khan, because reasons. Continue reading →

Stalin is infamously alleged to have said that “one death is a tragedy, a million are a statistic.” It’s not that the death of one individual matters more (or less) than the death of others, but that the mind works in ways that allow it to focus on smaller bites of information of interest while bigger bites of greater vagary go unconsidered. All of this made for an opportune cry that the worldwide fascination with the five people who died in the Titanic submersible proves how racist we are.

On one vessel, five people died on a very expensive excursion that was supposed to return them to the lives they knew. On the other, perhaps 500 people died just days earlier on a squalid and perilous voyage, fleeing poverty and violence in search of new lives. Continue reading →