The Regime Media is upset that the U.S. Supreme Court has accepted a case challenging Affirmative Action in college admissions [The Supreme Court adds affirmative action to its potential hit list, by Nina Totenberg, NPR, January 24, 2022]. And maybe it should be. In the famous case of Marbury v. Madison, Chief Justice John Marshall issued a ruling giving a result desired by the incoming Jefferson administration, namely the disqualification of a Judge appointed at the last minute by the much-loathed outgoing Adams administration. But the ruling also laid down long-term precedent—the right of the Supreme Court to overrule acts of Congress—completely adverse to what Jefferson himself wanted. Perhaps it is time for another Marbury v. Madison decision—this time for civil rights…including whites.

SCOTUS’ actual grant of certiorari consolidates suits against Harvard and UNC—see Steve Sailer’s posts Harvard to Its Asian Rejects: It's Not You, It's Your Personality and Black Female Judge Rules U. Of North Carolina Can Continue Violating 14th Amendment As Long As It Makes Even The Most Transparent Effort To Obfuscate What It Is Doing—but if Harvard loses, so does Yale, which is being sued by the same people.

The suits seek to find their undergraduate admissions policies invalid under Title VI of the Civil Rights Act of 1964 due to the apparent discrimination of such policies against Asians [The Supreme Court will hear two cases that are likely to end affirmative action, by Ian Millhiser, Vox, January 24, 2022]. If the elite universities lose, the result would be stark: the cutoff of all federal funding, including any tuition funding for their students.

What has been little noticed, however, is that this suit poses some significant and uncomfortable problems for the Supreme Court.

On one hand, the Court could follow the lead of the federal First Circuit Court of Appeals and simply say, in effect, that while more blacks is good, more Asians is bad [Appeals court upholds ruling that Harvard admissions process does not discriminate against Asian Americans, by Nick Anderson, Washington Post, November 12, 2020]. Although that undoubtedly represents the thinking of our current elites, such thoughts are uncomfortable when enunciated out loud or in judicial opinions and the resulting backlash, in the first instance from Asians, will be increasingly hard to repress.

On the other hand, if the Court rules the policies discriminatory, it is faced with a monumental procedural task. Namely, what is the appropriate remedy?

In contrast to the admissions policies in their graduate departments, which—aside from ever present Affirmative Action—are relatively meritocratic and transparent, the undergraduate admissions policies of Yale and Harvard have been for more than a century notoriously opaque. Over time, depending on the year, they have taken into account a bewildering and increasingly (to many) bizarre set of factors. The Wall Street Journal reported almost 20 years ago that Harvard rejected half of the double-800 SAT scorers who applied, while accepting many applicants with lower scores [For Groton Grads, Academics Aren't Only Keys to Ivy Schools, by Daniel Golden, April 25, 2003]. These acceptances were presumably based, not only on money, but also on whether the applicant did/did not play the flute, grow up on a farm in the Midwest, know how to shoot a rifle, or had unicycled backwards across Afghanistan during the summer after their Junior year in high school.

The lower scoring cohort of course includes the low-scoring blacks—average SAT approximately 580/580, who are explicitly selected on the basis of race (a per-se violation of Title VI?). However it also includes a huge number of (presumably flute-playing) whites, and even Asians, who scored less but had other “factors” in their favor.

It is clear that this mixed bag of perpetually changing criteria has resulted in the admission of fewer Asians than would be admitted solely on the basis of scores received on standardized tests, nationwide mathematics and physics competitions, and the like. But what changes does the Court order in the current grab-bag set of criteria?

Does it force schools to throw out the entire admissions methodology they have used for more than a century? Are all colleges and universities to be reduced to selecting from a sterile test results list, from first to last, of standardized bubble test performers?

What about the poets? Will the schools be forced to ditch athletic programs?

Little noticed in this drama: SCOTUS has an effective exit ramp.

The Court could simply reverse a series of very weakly reasoned prior holdings under Title VI. These relate to the type of funding at risk in these suits that Harvard, Yale etc. actually receive, or are “deemed” to receive, from the Federal government.

Surprisingly, very little federal financing that Harvard and Yale receive goes to their undergraduate departments, whose admissions criteria are the ones at issue.

The vast majority of federal funding goes either to their graduate programs—especially in the hard sand social sciences—or to University students, in the form of tuition grants and loans.

The text of Title VI as enacted in 1964, together with its copious legislative history, indicated that the cutoff of funds required by that statute would be program-specific. (Title IX of the Civil Rights Act of 1972 uses similar language, referring to any “program or activity”.)  Namely, if a research grant were given to the Harvard graduate school in Physics for a certain type of research, it would be that graduate department—not any other part of the University—that would be required to meet Title VI and IX non-discrimination requirements. In addition, grants to students under tuition aid programs would be viewed as grants to the students, unaffected by the racial policies adopted by the college the student chose to attend.

However, expansive—and arguably unsupported—regulations issued by Alfred Blumrosen of the  EEOC shortly after the enactment of Title VI, took the opposite position. These regulations, still in effect today, held that money going to only one program would put an entire University system under Title VI requirements, and that tuition money going to just one student attending a University would result in the application of Title VI restrictions to the entire school.

(These are the regulations that first imposed—in apparent violation of the statute—what is referred to today as “Affirmative Action.”)

It is this, arguably incorrect, interpretation of Title VI that threatens a massive funding cutoff if the elite schools lose the suit, since only on the basis of that expansive interpretation would funds paid to students or to graduate departments be impacted in any way by undergraduate school policies.

But SCOTUS could simply reverse the arguably weak precedent upholding the EEOC interpretation and adopt the arguably more correct, and narrower, view of Title VI.

It could—and I argue it should—simply hold that, although the undergraduate admissions criteria illegally discriminate on the basis of race—both due to its treatment of blacks and of Asians—this failure will require no, or a very limited, cutoff of federal funds to Harvard and Yale. And it should hold that grants to students are to students, irrespective of the policies of the schools they attend; and that grants to graduate programs do not imply any Title VI coverage of the undergraduate departments of these Universities.

In addition, it could give Harvard and other elite schools more, not less, flexibility in designing their admissions requirements by eliminating or reducing the events under which “disparate impact” could trigger Civil Rights claims.

Although this might as a practical matter require some adjustment in graduate admission, those would be relatively small, since, as noted, graduate admissions in the main are basically meritocratic and transparent.

This would be a way for a conservative Court majority to reach the result fervently desired by the Woke Left—college admissions bureaucrats could discriminate in favor of their pet groups all they want—while creating precedent that would massively reduce the scope of the Civil Rights Act in years to come.

The resulting program-by-program limitation, if imposed by the Court, would be far more important than it might at first seem.

For example, if a student today obtains a federally funded scholarship or loan, any college he attends must comply with the full panoply of the Civil Rights Act restrictions and mandates, even if the college does not directly receive a single federal dollar. In order to avoid this, some schools, such as Hillsdale College in Michigan, decided early on to reject students financing their education with federal assistance. But this not only unfairly targets students who may wish to attend “unconventional” colleges, it also puts a college that rejects such students at a huge competitive disadvantage, since either it must completely finance its own scholarship or loan program or simply restrict its intake to the much smaller universe of students who can afford full-freight tuition.

In contrast, if the narrow “program” definition suggested here were adopted, the receipt by a student of federal assistance would not affect in any way the college he chose to attend. This would increase his freedom of choice and would relieve many colleges of the onerous burdens imposed by the Act.

Similarly, today, if a research university received federal funding for medical or physics research in its graduate schools, the entire University must meet the almost endless Civil Rights Act tests—irrespective of the fact that no actual discrimination might be going on inside the physics or chemistry department graduate division.

But if a narrow interpretation of “program or activity” were adopted, the undergraduate program’s activities would be completely irrelevant to the compliance by the University with Title VI or IX—only the actions of the relevant graduate department would count.

If a narrow interpretation of “program” were accompanied by a definitive end to “disparate impact” rules, thereby giving colleges more, not less, flexibility to adopt non-academic admittance policies, the Court could let Harvard “win” its case while at the same time significantly limiting the practical effect of the Civil Rights Act—limiting it back, in other words, to its intended, much smaller, scope.

This would not necessarily result in fewer blacks being admitted to Harvard. It might, in fact, result in more. In fact, everyone in the U.S. in 1963 would have taken for granted that a private college like Harvard could admit as many blacks as it wanted, regardless of academic ability, with no federal interference.

What it would do, however, is get the federal government out of the picture and reintroduce the right to freedom of association.

Yes, for Harvard. But also for the rest of us—including whites, should any college wish to attract such an unfashionable demographic.

A Marbury v. Madison result indeed. And in the area of Civil Rights, perhaps it’s about time.

Email Albemarle Man.