When Nina Totenberg is calling affirmative action "racial preferences," affirmative action is in trouble.

Here's her report — at the NPR website — on yesterday's oral argument in a case she doesn't mention the name of but which I happen to know is Schuette v. Coalition to Defend Affirmative Action. This is the case where the people of Michigan — after the Supreme Court approved of the University of Michigan Law School's use of race in admissions — amended their constitution to require that the state "not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin." Another way to put that is to say: The state constitution bans affirmative action.

Under U.S. Supreme Court case law, affirmative action in university admissions does not violate the Equal Protection Clause of the U.S. Constitution when it is done in a way that is narrowly tailored to the compelling interest in the benefits of classroom diversity. In Schuette, the question is not whether the university can choose not to have a policy of affirmative action, but whether the policy against affirmative action can be put in the state constitution — where, as a political matter, it becomes difficult to change. The idea is: 1. The political process has been restructured along racial lines, and 2. That restructuring violates Equal Protection.

It's a difficult argument to make, since it sounds like choosing equality imposes inequality, but there are a couple old cases upon which to build. I just want to focus here on Totenberg's (perhaps) careless adoption of the state's characterization of affirmative action as "racial preferences." Boldface added:

Students seeking to enact or get rid of other preferences can lobby the regents, [the ACLU's Mark] Rosenbaum observed. But racial minorities cannot lobby for reinstatement of consideration of race in college and university admissions decisions. Moreover, he said, to get back their preferences, minority students would have to embark on a difficult and multimillion-dollar campaign to re-amend the state constitution in a state that is more than three-quarters white.

Also arguing against the referendum was lawyer Shanta Driver. Justice Stephen Breyer posed this hypothetical to her: Most cities have "a vast number of administrators" of all kinds of programs. Suppose an administrator of one project decides to adopt a racial preference, for a good reason, but then the city council votes to abolish that preference. Would that be unlawful?

"No," replied Driver. Breyer pressed on, asking "Where's the line?" How do you avoid giving every individual administrator the power "to decide on his own whether to use racial preferences without a possibility of a higher-up veto?"

So there's Justice Breyer saying it too. Perhaps Totenberg picked up the cue from him. It seems to me, if you want affirmative action to be accepted as important, good, and — as we say in legal doctrine — compelling, you don't want to encourage the habit of thinking of it as preferences, which seem to be special benefits that some people get because of their race. You want people to think in terms of taking into account all of the many factors that play a role in the university's practicing of a subtle art of composing a student body with a marvelously fine-textured, beneficial-to-all diversity.

If that way of thinking is lost, affirmative action is doomed.

"The affirmative-action case liberals deserve to lose."

By Emily Bazelon, who is a liberal, at Slate, which is liberal (so this isn't some conservative fakely "helping" liberals see the light, in the style of articles like "Do Yourselves a Favor, Republican/Raise the debt limit high enough that we don't have to debate it again until after your primaries," a teaser on the front page of Slate right now).

I'm very interested to hear about this morning's argument in the case Bazelon is previewing, Schuette v. Coalition to Defend Affirmative Action. The argument against the Michigan constitution's ban on affirmative action in education is so abstruse that no article aimed at laypersons can explain it. Bazelon does a creditable job — at paragraphs 4-6 at the link — but I've repeatedly read (and taught) the strange cases that the argument is based on, and I've seen year after year of law students struggling just to see what the Court was saying in those cases, which must be further extended to reject the Michigan ban. If the Supreme Court embraces that argument, people won't understand why, and it will help conservatives in 2014 and 2016.

Which is why I read Bazelon's "liberals deserve to lose" as "liberals should want to lose."

The conservatives' high ground on race is colorblindness, and they'd be fools to abandon it.

That's a general piece of advice I'd like to deliver, prompted by this specific headline, seen just now at Twitchy:

Slain World War II vet Delbert Belton honored at candlelight vigil [photos]

I know there are those who think there's a need to rebalance public opinion after the distortions that surrounded the George Zimmerman case, which skewed racial discourse in this country over the past year, but it's a terrible idea to go looking for incidents in where the killers are black and the victims are white and to exploit them in what seems like an effort to undo the distortions. I saw this happening earlier this week over the Christopher Lane murder, I labeled it "counter-Trayvonistic," which was a too-subtle way to say: Don't fight skewing with skewing in the opposite direction.

Conservatives have rested on the principle of colorblindness for a long time, and they've taken abuse for it. Look at how left liberals abuse Chief Justice Roberts for writing, "The way to stop discrimination on the basis of race is to stop discriminating on the basis of race." They consider that kind of talk naive (at best). They push the perceived sophistication of what Justice Blackmun said back in the first affirmative action case: "In order to get beyond racism, we must first take account of race. There is no other way."

Those are the 2 well-defined and socially presentable opinions in this country, and decent, sincere Americans have argued from these positions for decades. Now, we're seeing some conservatives who seem frustrated by this taking account of race that's been done on the left. They seem to think it's a good time to spotlight violence committed by black people. This is not a good idea! It's fine to mourn Shorty, but these candlelight vigils are intended to stir hearts the way hearts were stirred at the Trayvon Martin demonstrations.

Trayvon Martin — an individual human being — was used by demagogues to score points about the suffering of black people in America, but this is not a game, and it is delusion to imagine that there is a need to score points on some imagined other side. This is not a game. There is no score. And we are all on the same side.

To paraphrase the Chief Justice: The way to stop skewing public opinion based on race is to stop skewing public opinion based on race.

To stir hearts counter-Trayvonistically is to nurture feelings that white people are oppressed by black people. This alternative to colorblindness is profoundly stupid. 1. It abandons the easy to express, principled position that many people perceive as the high ground. 2. It steps into the arena of taking account of race, where the left liberals would love to take you on. And 3. It gives air to the white supremacists among us. These people have been outcasts for a long time, but they exist, perhaps not quite yet recognizing what they are.

What sparks catch fire in that candlelight vigil for Shorty?

"Supreme Court Puts New Pressure on Colleges to Justify Affirmative Action."

The Chronicle of Higher Education sums it up in a headline.

But I question "puts." Will schools really feel that pressure? The court receiving Fisher v. University of Texas on remand feels some pressure as it must reexamine — once more, with feeling — the evidence already assembled. The University of Texas will feel some pressure to point out how the Court of Appeals can say what it said before in a newly convincing way — without all that language about deference and presumption of good faith. And maybe eventually this will wend its way back to the Supreme Court. Is anyone else really feeling pressure?

It seems to me that the Court has once again said what it always says about affirmative action and admissions: 1. Here, have some more time, and 2. Could you please speak about what you are doing in a somewhat more palatable way, okay, thanks?

"It offends me that the court failed to exert any kind of leadership with this decision."

Says William, in the comments in the previous post, apparently forgetting that whole notion of leading from behind.

The underlying issues are clear as a bell. By kicking the case back to the lower court for another look, the court simply deferred its ultimate responsibility.

But affirmative action is all in the timing. The Court manufactured delay the first time the issue came around. Then it did Bakke, giving schools a clue on how to move forward. (Say "diversity," and be like Harvard.) Then it let things ferment for 25 years, at which point, it said:

It has been 25 years since Justice Powell first approved the use of race to further an interest in student body diversity in the context of public higher education. Since that time, the number of minority applicants with high grades and test scores has indeed increased... We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.

Even if 25 years had already passed — it's only been 10 — the argument would be for an extension.

Like a schoolmarm, William insists "The underlying issues are clear as a bell."

That paper was due 40 years ago.

I'd say the answer is crushingly clear: We need more time.

"There is disagreement about whether Grutter was consistent with the principles of equal protection.... But the parties here do not ask the Court to revisit that aspect of Grutter’s holding."

The decorous Justice Kennedy, writing for the majority in today's opinion in Fisher v. University of Texas, refraining even from saying the word "overrule."

Revisit... as if we'll be paying a social call.

ADDED: Here's Justice Breyer at oral argument, nailing Fisher's lawyer down that he's not asking to overrule Grutter:




Later, when Fisher's lawyer said "I think you can fashion a result in this case which may or may not have to, quote, 'overrule' Grutter," Justice Sotomayor came out with the memorable line: "So you don't want to overrule Grutter, you just want to gut it":



So did the Court gut Grutter today? No, of course, not. That sounds so brutal. But it laid Grutter out on the carving board and advised the Court of Appeals to sharpen the knives.

ALSO: I'm rereading my own notes from my spring Conlaw2 class, when I taught Grutter along with the oral argument in Fisher and I find this, referring to Justice O'Connor's opinion in Grutter:

Is she damaging the SS test by applying it with deference and not attending to the loose fit between purported goal and policy adopted? (How can you gut it if it lacked guts?)

"The worst forms of racial discrimination in this Nation have always been accompanied by straight-faced representations that discrimination helped minorities."

Justice Thomas, in today's opinion in Fisher v. University of Texas, likening affirmative action to slavery and segregation. ("Slaveholders argued that slavery was a 'positive good' that civilized blacks and elevated them in every dimension of life.... A century later, segregationists similarly asserted that segregation was not only benign, but good for black students.... Following in these inauspicious footsteps, the University would have us believe that its discrimination is likewise benign. I think the lesson of history is clear enough: Racial discrimination is never benign....")

"If you think that you can think about a thing inextricably attached to something else without thinking of the thing which it is attached to, then you have a legal mind."

Justice Ginsburg, quoting Professor Thomas Reed Powell, in today's opinion in Fisher v. University of Texas, mocking the notion of race-blind alternatives to affirmative action.

AND: What really distinguishes the legal mind is knowing whether you want 2 things to be the same or different and the skill and the nerve to say that they are. That is, it's not about what you think you are capable of thinking. It's about what you are willing and able to say. Powell is willing to deploy the dead metaphor inextricable attachment and to soothe you into thinking that you're better than other people — ugh, lawyers! — if you don't ask whether those 2 things really are inextricably attached.

The 2 things in today's context are: 1. taking race into account in admissions and 2. other admissions policies that would produce a racially diverse student body. 

The Supreme Court sends Fisher back to the lower court with instructions to take strict scrutiny much more seriously.

Here's the PDF of the opinion, which was 7-1. Instead of applying the "searching examination" of strict scrutiny...

... the Court of Appeals held petitioner could challenge only “whether [the University’s] decision to reintroduce race as a factor in admissions was made in good faith.” 631 F. 3d, at 236. And in considering such a challenge, the court would “presume the University acted in good faith” and place on petitioner the burden of rebutting that presumption. Id., at 231–232. The Court of Appeals held that to “second-guess the merits” of this aspect of the University’s decision was a task it was “ill-equipped to perform” and that it would attempt only to “ensure that [the University’s] decision to adopt a race-conscious ad- missions policy followed from [a process of] good faith consideration.” Id., at 231. The Court of Appeals thus concluded that “the narrow-tailoring inquiry—like the compelling-interest inquiry—is undertaken with a degree of deference to the Universit[y].” Id., at 232. Because “the efforts of the University have been studied, serious, and of high purpose,” the Court of Appeals held that the use of race in the admissions program fell within “a constitutionally protected zone of discretion.” Id., at 231.

IN THE COMMENTS: "Someone explain this to me like I'm ten, please and thank you." Okay. The Supreme Court has said that all race discrimination by the government — including well-intentioned, supposedly benign things like affirmative action — must be subjected to "strict scrutiny," which normally is said to require that the government have a "compelling interest" and that the discriminatory policy is "narrowly tailored" to serve that compelling interest. But in Grutter v. Bollinger, the narrow majority made it seem as though universities, if they used race as a factor in a holistic judgment about whom to admit, deserved some deference, and the Court of Appeals relied on that. Today, the Court seems to reject that reading of Grutter. Take into account that Fisher didn't ask for the Court to overrule Grutter, so that enterprise is pushed into the future. Also in the future, there's a pending case from Michigan about affirmative action. So the drama over affirmative action continues.

AND: Justice Ginsburg is the only dissenter, and she refers to her own dissenting opinion in Gratz. (Gratz was the companion case to Grutter. The majority upheld the University of Michigan Law School's "holistic" approach to affirmative action in Grutter but shot down the more mechanical methodology used in Gratz.)

I have said before and reiterate here that only an ostrich could regard the supposedly neutral alternatives as race unconscious. See Gratz, 539 U. S., at 303–304, n. 10 (dissenting opinion). As Justice Souter observed, the vaunted alternatives suffer from “the disadvantage of deliberate obfuscation.” Id., at 297–298 (dissenting opinion).

That is, forthright, transparent affirmative action is preferable.

It is race consciousness, not blindness to race, that drives such plans [as Texas's automatic admission of the top 10% in every high school].

In a footnote there, Ginsburg quotes a professor (Thomas Reed Powell): “If you think that you can think about a thing inextricably attached to something else without thinking of the thing which it is attached to, then you have a legal mind.” That is, only legalistic people think there's a way out of race consciousness.

MORE: Now, let's look at the concurring opinions. Justice Scalia has one short paragraph to underscore the fact the litigant in this case failed to ask the Court to overrule Grutter. He also joins the majority "in full." Justice Thomas has a much longer concurrence, which joins the majority but tips his hand: He's ready to overrule Grutter, and he wants to say "categorically" that a state may not use race at all in the admissions process.

Grutter was a radical departure from our strict-scrutiny precedents....

Attaining diversity for its own sake is a nonstarter....

[T]he educational benefits flowing from student body diversity — assuming they exist — hardly qualify as a compelling state interest....

There is no principled distinction between the University’s assertion that diversity yields educational benefits and the segregationists’ assertion that segregation yielded those same benefits....

The worst forms of racial discrimination in this Nation have always been accompanied by straight-faced representations that discrimination helped minorities.

Slaveholders argued that slavery was a “positive good” that civilized blacks and elevated them in every dimension of life....

A century later, segregationists similarly asserted that segregation was not only benign, but good for black students. They argued, for example, that separate schools protected black children from racist white students and teachers....

Following in these inauspicious footsteps, the University would have us believe that its discrimination is likewise benign. I think the lesson of history is clear enough: Racial discrimination is never benign....

Blacks and Hispanics admitted to the University as a result of racial discrimination are, on average, far less prepared than their white and Asian classmates....

Tellingly, neither the University nor any of the 73 amici briefs in support of racial discrimination has presented a shred of evidence that black and Hispanic students are able to close this substantial gap during their time at the University....

The University admits minorities who otherwise would have attended less selective colleges where they would have been more evenly matched....

Moreover, the University’s discrimination “stamp[s] [blacks and Hispanics] with a badge of inferiority.” Adarand, 515 U. S., at 241 (opinion of THOMAS, J.). It taints the accomplishments of all those who are admitted as a result of racial discrimination.

Here, Thomas quotes John McWhorter: "I was never able to be as proud of getting into Stanford as my classmates could be. . . . [H]ow much of an achievement can I truly say it was to have been a good enough black person to be admitted, while my colleagues had been considered good enough people to be admitted."

ALSO: Finally, let's focus on how Justice Kennedy — writing for everyone but Ginsburg and Kagan — pushed the Court of Appeals back on its understanding of Grutter:

According to Grutter, a university’s “educational judgment that such diversity is essential to its educational mission is one to which we defer.” 539 U. S., at 328.

There's that deference. It's about finding diversity "essential." That's "an academic judgment" and judges "some, but not complete" deference is "proper" under Grutter. The lower courts "were correct" about that deference. The question is whether Grutter was correct to accept diversity as a compelling interest for Equal Protection Clause strict scrutiny analysis. Kennedy cautions (as Grutter itself cautioned) that diversity isn't just another way to say racial balancing.

Is there deference in determining whether there's narrow tailoring?

[A] court can take account of a university’s experience and expertise in adopting or rejecting certain admissions processes. 

But, again, it's not complete deference. Grutter demanded "a careful judicial inquiry" into the  university’s "serious, good faith consideration of workable race-neutral alternatives." But the Court of Appeals only looked at "whether [the University’s] decision to reintroduce race as a factor in admissions was made in good faith." It spoke of presuming good faith at one point as it disparaged its own ability to figure out what admissions policies are needed.

Grutter did not hold that good faith would forgive an impermissible consideration of race....

So here the Court of Appeals misunderstood Grutter. The remand isn't to determine if Grutter should be overruled, but to try again, applying a less judicially restrained version of Grutter. The word "overrule" does not appear in Kennedy's opinion, only in the 2 concurring opinions. The closest Kennedy comes to talking about overruling Grutter is at page 9, in discussing diversity as a compelling interest:

There is disagreement about whether Grutter was consistent with the principles of equal protection in approving this compelling interest in diversity. See post, at 1 (SCALIA, J., concurring); post, at 4–5 (THOMAS, J., concurring); post, at 1–2 (GINSBURG, J., dissenting). But the parties here do not ask the Court to revisit that aspect of Grutter’s holding.

Revisit. A euphemism. Obviously, the nudge to ask what was not previously asked is sharp enough.

Immensely exciting morning at the Supreme Court.

Live-blogged at SCOTUSblog.

UPDATE 1: We're waiting for the University of Texas affirmative action case (Fisher), the 2 same-sex marriage cases (on Prop 8 (Hollingsworth) and DOMA (Windsor), and the Voting Rights Act case (Shelby County). I'm feeling that we're going to get a whole lot of minimalism here. Fisher will be about the peculiarities of the UT program. Prop 8 will fizzle on something technical. Windsor herself will keep her remedy, but DOMA will survive. And the Voting Rights Act will survive. If so, that will be the excitement of no excitement. Get ready.

UPDATE 2: The cert. grants have been announced, and they include review of the President's recess appointment power. The case arises out of Obama's interpretation of what counts as a congressional recess, and involves 3 appointments to the NLRB. Details on the case — NLRB v. Canning — here. More details here.

UPDATE 3: The Court affirms the 7th Circuit in Vance, 5-4, Alito writing: "a supervisor for vicarious [liability] under Title VII only if she has the power given by the employer to take tangible employment actions against the victim." The 4 dissenters are the 4 liberals.

UPDATE 4: Another opinion by Alito, Mutual Pharmaceuticals v. Bartlett. Also 5-4. Federal law about drug warnings preempts state law remedies based on "design defect."

UPDATE 5: In Vance, Ginsburg, dissenting, compares the majority's narrow reading of the statute to Ledbetter, which became a big political issue. Congress subsequently amended the statute. So Ginsburg says: "Congress has, in the recent past, intervened to correct this Court’s wayward interpretations of Title VII.... The ball is once again in Congress’ court to correct the error into which this Court has fallen, and to restore the robust protections against workplace harassment the Court weakens today." I assume the majority has no problem with that. It's statutory interpretation, and if Congress wants this greater liability for employers, it can/should amend the statute.

UPDATE 6: Breyer writes the 7-2 opinion in U.S. v. Kebodoeux: "Registration requirement under SORNA as applied to Kebodeaux falls within the scope of Congress's authority under the Necessary and Proper Clause." SORNA is the Sex Offender Registration and Notification Act. The dissenters are Scalia and Thomas.

UPDATE 7: Fisher! 7-1, only Ginsburg dissenting. Vacated and remanded "because the Fifth Circuit did not hold the university to the demanding burden of strict scrutiny articulated in Grutter and Bakke, its decision afffiming the district court's grant of summary judgment was incorrect." (I'm starting a new post for Fisher and working on reading the case.)

UPDATE 8: The last opinion is UT Southwestern v. Nassar, also by Kennedy: "The Court holds that Title VII retaliation claims must be proved according to traditional principles of 'but for' causation..." This one is 5-4, split as you'd predict a 5-4 split would split. Ginsburg writes the dissent.

UPDATE 9: There will be more opinions tomorrow.

Why is Fisher taking so long?

Linda Greenhouse says:

One reason might be that Justice Anthony M. Kennedy, who almost certainly received the opinion assignment in the Texas case, isn’t going far enough in that case to satisfy the other conservative justices. Under this theory, those justices responded to what they saw as a frustratingly narrow Kennedy opinion by jumping aboard the Michigan case as the next potential vehicle for shutting down affirmative action....

Fisher is the case argued last October, about the University of Texas affirmative action program, but the court granted cert. just last March in a case about Michigan's ban on all affirmative action in public university admissions. (That case is called Schuette.)

"What opinions will the Court issue today?... What’s the last day the Court will issue opinions?..."

We don't know what cases will come out today, but over at SCOTUSblog, where they'll live-blog the announcements (beginning at 9:30 ET), they predict that last day will be June 26 or 27 and that the same-sex marriage will come out on the last day. Here's the chart showing when cases were argued and which remain undecided. The one we've been waiting longest for is Fisher, the affirmative action case.

ADDED: Here's the live-blogging. I'll keep my eye on it. The other important case that could come out today is Shelby County, about Congress's power and the Voting Rights Act.

Affirmative action is not what it used to be.

The NYT reports.

Uncomfortable paragraph on page 2:

A black associate at one Houston firm, who requested anonymity so as not to jeopardize his chances of making partner, used a familiar legal term to describe his unease at work, saying he sometimes felt there was a “rebuttable presumption” that he was there to fill a quota and was not as qualified as white colleagues.

Any big Supreme Court decisions coming out today?

If so, we'll find out soonest by following the SCOTUSblog live-blogging here.

ADDED: The Court granted cert. in an Establishment Clause case, Town of Greece v. Galloway, about whether "a legislative prayer practice violates the Establishment Clause notwithstanding the absence of discrimination in the selection of prayer-givers or forbidden exploitation of the prayer opportunity." SCOTUSblog opined that it's "a potentially significant religion case" because "The Roberts case has not done much in that field so far." My instant impression was they granted cert. to reverse and it's obvious (based on precedent).

AND: This chart shows which cases are undecided from each month of the term so far. All the November cases have been decided, but one case remains from October, Fisher v. University of Texas, the affirmative action case. There's also a chart which shows which Justices have written the cases from each "sitting," and that chart makes it appear that Kennedy is writing the affirmative action case.

ALSO: No Fisher today.

"What's left to say about affirmative action?" Glenn Loury asks John McWhorter...

... on the occasion of the imminent Supreme Court opinion on the subject. Loury identifies himself as a former opponent of affirmative action who is now a defender. McWhorter says he's never had any problem with putting a "thumb on the scale" in order to get "a certain proportion" of diversity, but he objects to redefining "what qualifications are."

The Fisher v. University of Texas affirmative action case is now the only undecided case argued in October.

SCOTUSblog tells us, after live-blogging the announcement of Moncrieffe v. Holder this morning. Moncrieffe, a case about the meaning of "aggravated felony" under the immigration law, was written by Justice Sotomayor, and that makes it extremely likely that Justice Kennedy is writing the hotly anticipated Fisher case:

[T]he Court tries very hard to distribute the authorship of majority opinions evenly not just over the course of the Term, but also within a sitting (the two-week periods from October through April when the Court hears oral argument). So going into today, Justices Kennedy and Sotomayor were the only Justices without majority opinions in October.... Now he's the only one without an October opinion, which leads to the assumption that he is writing Fisher. 

Does this help predict the outcome of the case? Here's my effort, from last October, to read Justice Kennedy at the oral argument. Remember, Texas has a very odd kind of affirmative action, adding an individualized approach, with race as a plus factor, after a facially neutral program that admits the top 10% of students from every Texas high school. At oral argument, Kennedy focused on the detail that the additional race-based selection was done to bring in more privileged black and Hispanic students, because the 10% program tended to admit underprivileged blacks and Hispanics (which reinforced a stereotype about black and Hispanic people). I said at the time (referring to the Court's most recent affirmative action case, Grutter):

So, it seems, the additional affirmative action is needed to get a more varied group of minority students, in which case, the point is to bring in privileged minority students, because these are the students who — in Grutter terms — might provide the classroom benefit of teaching all the students that minority students don't have "some characteristic minority viewpoint." ...

I'm not taking a position on whether UT's admissions policy is good or whether it's constitutional.... All I am saying is that if Grutter is to be applied (and not limited or overruled), an affirmative action program that's all about boosting the most privileged minority students actually makes sense.

Kennedy seemed to have trouble seeing the sense of that at oral argument. He said "So what you're saying is that what counts is race above all," which is missing the point. I'm sure he ultimately understood the point, but I think we saw — in real time — that the point isn't intuitively appealing to him.

That said, Fisher could narrowly reject the odd UT program and leave the more typical Grutter-style affirmative action alone. But Fisher presents an opportunity to overturn Grutter, and Kennedy dissented in Grutter, which was a 5-4 decision with Justice O'Connor casting the deciding vote. O'Connor's successor, Justice Alito was instrumental at oral argument — as I said at the time — in extracting that point about privileged minority applicants receiving the advantage.

So I'll make a rash prediction: a narrow decision, determined by Kennedy and Alito (and maybe Roberts), striking down only the Texas program. Scalia and Thomas concur, complaining that Grutter should have been overruled. Everyone else dissents.

If race is to be taken into account, what kind of percentage of a particular race must an individual possess?

The oral argument in the Supreme Court today was about the federal Indian Child Welfare Act.

Under the state court's interpretation, said [Paul Clement, representing the guardian ad litem appointed by the state court to determine the child's best interest], ICWA moves the inquiry away from the child's best interests to focus instead on biology, the birth father and race — namely, that the child has 1 percent Indian blood.

1%! 

I am reminded of the Court's pending affirmative action case, Fisher v. University of Texas, in which there were some pointed questions at oral argument about the problem of taking race into account when the individual's racial percentage — always a sticky topic — is minimal and self-reported:

Back to today's case:

Pressed by the chief justice,  [Charles Rothfeld, representing the father] said that it doesn't matter how large or small a child's Indian heritage is because under ICWA, an adoption cannot go forward if a biological parent wants custody and is not a threat to the emotional or physical safety of the child.

Troubled by Rothfeld's contention, Justice Stephen Breyer noted that the father here appears to have "three Cherokee ancestors at the time of George Washington's father." And if you accept that view, said Breyer, "a woman who is a rape victim" could be at risk of having her child taken and given to the Indian father....

The court's decision in this case, [the adoptive parents' lawyer, Lisa Blatt] told the justices, is going to apply to other absentee Indian fathers who have impregnated non-Indian women. These women, she said, will be rendered "second-class citizens" with "inferior rights," and "you're basically relegating the child ... to a piece of property with a sign that says 'Indian, keep off, do not disturb.' "

The WSJ should not have allowed a high school senior to harm her future self...

... by publishing an op-ed attributing her college rejections to her nonpossession of diversity factors — says Kira Goldenberg in the Columbia Journalism Review.

Pity the well-off white girl who has not had to struggle with identity politics or face prejudice because of who she is (wait until she realizes the “real world” still has a glass ceiling). Blaming groups that lack the inherent privilege of caucasian heterosexuals for your own bad luck in a crapshoot is a gross distortion of affirmative action, which is imperfect but remains necessary, in some form, as long as historical inequities persist. And considering the Supreme Court was hearing gay marriage cases last week, persist they do.

Goldenberg purports to care about Suzy Lee Weiss's potentially regrettable "youthful contribution to her Google search results, one that eternally allows future employers and boyfriends to find her arguing against affirmative action and disdaining diversity." Goldenberg says the WSJ was "irresponsible" to allow this naive child to display herself on the internet as "bitter" and "egocentric."

Goldenberg is, ironically, also displaying herself on the internet, and I'd say she's displaying herself as overaggressive and unfair. I just read Weiss's op-ed and it's lighthearted and self-effacing — the opposite of egocentric. She's saying I'm an ordinary kid with nothing special to put on my application, and then she mocks herself for being "[a]n underachieving selfish teenager," chattering out a bunch of phony excuses, and she signs off saying that she needs to go watch TV.

I wouldn't be surprised if Weiss shares Goldenberg's attitude about diversity policies. It seems to me that Goldenberg flipped out at one line — "If it were up to me, I would've been any of the diversities" — and completely lost her capacity to perceive humor.

Talk about embarrassing yourself on the internet!

Chaos for all-female Smith College after it rejects a transgender applicant, who's got social media to champion her cause.

"A transgender high school student has had her application to a prestigious all-women's college denied because she is tagged as legally male on government documents, prompting a vocal online and social media campaign on her behalf."

Laurie Fenlason, Smith's vice president for public affairs, said the school does not comment on the status or admissibility of individual applicants. But she added, "Every application to Smith is treated on a case-by-case basis, and application materials must reflect female identity."

Smith also has legal concerns over changing its admissions policies, Fenlason said. Schools such as Smith are concerned they could lose federal funding under Title IX, a law that bans sexual discrimination in education but exempts single-sex institutions.

Female identity... that sounds like they've already worked out the answer for the future. Beyond that, they can't say why they rejected the applicant, Calliope Wong. They're not allowed to talk about that. It's Wong going public, making the claim, enlisting social media in publicizing it.

Students and graduates have taken to social media sites, including the Facebook groups "Trans women belong at Smith College" and "Smith Q&A," to show support.

Here's "Trans women belong at Smith College." Sample comment there: "Our alma mater is being incredibly douchey...."

They're allowed to discriminate against men. They're more discriminatory than most schools. But I guess that's the trouble. Once you start discriminating and draw a line, you have to figure out who's on which side of that line, creating problems non-discriminators don't have.

For example, if you are going to do affirmative action, do you simply accept that people are the race they feel that they are? Actually, it does work out that way! It's surprising there isn't more chaos around that, but that's because once students are admitted, they make their own assumptions about who is what race, and they are never confronted with the admissions materials. So, for example, if Liz got bonus points because her application said she was Native American, and when she joins the student body, she's a blue-eyed blonde, the other students just see the blue-eyed blonde. Meanwhile, the school is happy to show better diversity statistics. Everybody wins. (That is, everybody who's there, in person, now, wins. The losers are unknowns exiled who knows where.)

But if you have a place like Smith, that's all female, everyone on site is quite aware that this is an all-female place, and they'll notice if a non-female makes it past admissions. The entire student body is activated as a check on the admissions people. Some of those students might be inclined towards inclusion of transgendered individuals, but some are not. Chaos!

Wong has not undergone the costly reassignment procedure.

Chaos!

"In a surprise development," the Supreme Court took another affirmative action case.

Just now, the Court "agreed to decide whether a state may constitutionally ban the use of race in deciding who gets admitted to public colleges or universities."  This is huge, considering that there is currently a pending affirmative action case — dealing with the peculiar situation at the University of Texas that makes some use of race. "

"The new case is significantly broader," Lyle Denniston says.

ADDED: Here's a report on the 6th Circuit decision from last November. I don't think it's actually surprising that the Supreme Court took this case.

In an 8-7 decision, the court said the 2006 amendment to the Michigan Constitution is illegal because it presents an extraordinary burden to opponents who would have to mount their own long, expensive campaign through the ballot box to protect affirmative action....

The court said having supporters and opponents debate affirmative action through the governing boards of each public university would be much fairer than cementing a ban in the constitution, which it referred to as home of "the highest level" of public policy.

This issue is about the political process for adopting a policy when it is within the range of what can be done through majoritarian decisionmaking — not about whether affirmative action is beyond majoritarian decisionmaking. So I don't agree that this case is "significantly broader" than the University of Texas case. Both cases could be resolved with a big decision prohibiting affirmative action, but both present narrow questions. The Court's taking this new case doesn't mean something big is necessarily brewing, so I retract my "This is huge." I think the UT case could be huge, but taking this additional case doesn't add much reason to suspect that it will be.