supreme court killed college admissions essay

A Big Problem With College Admissions Could Be About to Get Worse

If affirmative action ends, how much more perverse could the process become?

The year after I graduated from college, I worked as an admissions officer at a highly selective private university, where about 12 percent of students who apply get in. My colleagues and I evaluated and scrutinized thousands of applications. I ​​searched for the highest-achieving students and the most thoughtful stories to satisfy the university’s goal of creating an academically competitive, personally compelling, and racially diverse class.

Before long, I realized that this job had constraints. I got the clear message that I should reward high-achieving students from historically marginalized backgrounds who also described struggle and adversity in their admissions essays. That these students should have to prove their worthiness by putting their trauma on display seemed obviously unfair. A few years later, I pursued a Ph.D. in sociology to study the admissions process . My research showed me that the valorization of trauma narratives is widespread in selective colleges’ admissions departments—and that students from marginalized communities are well aware that their applications have a higher chance of success when they describe the difficulties they’ve faced.

Read: The college-admissions merit myth

This problem could worsen if the Supreme Court disbands affirmative action in its decisions for the cases Students for Fair Admissions v. President and Fellows of Harvard College and Students for Fair Admissions v. University of North Carolina . Schools will still want racially diverse classes. Twenty-five Harvard student and alumni groups filed an amicus brief detailing the importance of diversity at the school. Stanford University, MIT, Amherst College, and dozens of other selective schools signed briefs expressing commitments to diversity and holistic admissions practices. So if schools are forbidden from formally asking for students’ racial identities, the college essay could become even more important as a way for students to signal their race.

Race currently shapes students’ essays and how admissions officers read them. The 20 admissions officers I interviewed at competitive private universities for my dissertation (to be completed in 2024) bear this out. They revealed that wealthier and white students tend to write about sports injuries, mission trips to the global South, and the plight of other marginalized groups they served in their various community-service activities. Students from lower-income backgrounds, especially those mentored by college-preparatory nonprofits, write about their trauma. These students typically tell stories about food insecurity, assuming the role of a parent in their households, working at local grocery stores to buy and prepare food for younger siblings, the threat of gun violence on their route to school, and perpetual homelessness. These findings are consonant with research from Stanford about the interrelatedness of college-essay content and household income .

College-admissions officers, 65 percent of whom are white, express deep ambivalence about trauma-focused essays. They told me that they do not encourage applicants to write about trauma, but they admit that these narratives provide helpful context when so many students are applying with so few opportunities to distinguish themselves, and when schools want to ensure adequate racial diversity in their classes.

Read: The absurdity of college admissions

Essays about struggle helped John, a white admissions officer at a small private liberal-arts college in New England, acknowledge the challenges that students endured. (I have changed the names of the people I interviewed to protect participants’ privacy under ethical-research guidelines.) Although he criticized the “trauma porn” he regularly encountered in college-admissions essays, he insisted that some more information about student backgrounds was necessary. “When I’m reading those essays about certain traumas,” John told me, “[I’m] really appreciative of the additional perspectives.” Context about a student’s difficult background or upbringing, John said, better positioned him to advocate for them. With limited spots, even students who have near-perfect academic records needed a little extra “something” to help them stand out. For racially marginalized students, a trauma narrative could fill that gap. Sarah, a white admissions officer at a highly selective southern university, said she found stories of trauma “distressing” but found the additional context about the students’ lives helpful and important to consider.

But what about the students who chose not to disclose their trauma or struggle in their college essay? John said he doesn’t “want to penalize students who maybe don’t have an essay that shows grit and resilience.” He was not alone in this belief. Other officers emphasized that Black and low-income students who chose more lighthearted topics would not be disadvantaged in the admissions process.

Still, according to Sarah, John, and others I interviewed, some admissions officers perceive stories that highlight a student’s ability to overcome a struggle as an indication of their ability to endure challenges once in college. Awareness of a student’s resilience allowed officers to say, “Look at what this student has overcome, and they managed to maintain a nearly perfect GPA; they deserve a shot.”

Still, the officers knew that this expectation for marginalized students to explain themselves to colleges is not entirely fair. Brenda, a white admissions officer for a Texas-based university, told me that reading trauma essays sometimes moves her to tears. “There are essays that made me cry. There have been days when I have sat for 30 minutes under my desk, just bawling, because of that essay that I read and the experience that the student had. There are days when I have to take a break, and I have to shut down my computer and say, ‘I can’t deal with this anymore.’ And there are also days when sometimes I get really angry, right? Like, why do young people have to experience such hard things in their lives? And why do they have to overcome this stuff?”

Similarly, John admitted, ​​“I don’t want any of the students to feel as though they have to divulge their personal challenges in a really raw and kind of painful way just to get into college. There’s something that feels very perverse about that.”

Despite this perversity, students know the power that a trauma-focused essay has in the admissions process. The 37 Black undergraduate students I interviewed for my dissertation and the nearly 100 students I have encountered at college workshops say they believe that a story of struggle is necessary to show that they are “diverse.” Black students believe that college counselors and admissions officers link their racial identities to trauma.

If these types of essays are already so important, imagine how much bigger a role they could play if they become the only way for students to let colleges know about their racial identities. How much more “perverse” could the process become?

In oral arguments for the SFFA cases , several Supreme Court justices anticipated this problem, asking questions about how schools should evaluate personal information that students reveal in college essays. The attorney for the anti-affirmative-action side said that in addition to not asking applicants directly for their race, colleges should also not take into account racial information that appears in an essay.

But higher education without affirmative action would not mean a future in which race is removed from the admissions process—that would be impossible. Instead, it could create a process in which certain students face even more pressure to put their pain on display.

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The Death of Affirmative Action

Protesters for and against affirmative active demonstrate on Capitol Hill on Thursday in Washington, DC. Anna Moneymaker/Getty Images hide caption

Protesters for and against affirmative active demonstrate on Capitol Hill on Thursday in Washington, DC.

The Supreme Court effectively killed race-conscious admissions in higher education on Thursday.

In two cases, the court decided that the admissions policies of Harvard and the University of North Carolina - both of which consider race - are unconstitutional, ruling the policies violated the equal protection clause of the 14th Amendment.

The decisions reversed decades of precedent upheld over the years by narrow court majorities that included Republican-appointed justices. The rulings could end the ability of colleges and universities, public and private, to do what most say they still need to do: consider race as one of many factors in deciding which of the qualified applicants is to be admitted.

NPR's Legal Affairs Correspondent Nina Totenberg reports on the ruling and what it means for college admissions. NPR's Adrian Florido looks at how colleges and universities in California adjusted their admissions policies when the state banned affirmative action 25 years ago.

In participating regions, you'll also hear a local news segment to help you make sense of what's going on in your community. Email us at [email protected] .

This episode was produced by Connor Donevan, Alejandra Marquez Janse, Jason Fuller and Lexie Schapitl. It was edited by Adam Raney, Denice Rios and Krishnadev Calamur. Our executive producer is Sami Yenigun.

Supreme Court Rules to End Affirmative Action in College Admissions

In a sweeping decision, the Court ruled 6-3 that Harvard and UNC's race-conscious admissions programs were unlawful.

The Supreme Court ruled today that race-based admissions decisions at Harvard University and the University of North Carolina were unlawful, in a move that will have a sweeping impact on college admissions in the United States. In a 6-3 vote, with the liberal members dissenting, the Court ruled that U.S. colleges can no longer consider a student's race when deciding entry.

Elsewhere, he wrote, "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. But, despite the dissent’s assertion to the contrary, universities may not simply establish through application essays or other means the regime we hold unlawful today."

In a dissent , Justice Sonya Sotomayor wrote, "Today, this court stands in the way and rolls back decades of precedent and momentous progress." The decision "cements a superficial rule of colorblindness as a constitutional principle in an endemically segregated society where race has always mattered and continues to matter. The Court subverts the constitutional guarantee of equal protection by further entrenching racial inequality in education, the very foundation of our democratic government and pluralistic society."

Sotomayor added, "The devastating impact of this decision cannot be overstated. The majority’s vision of race neutrality will entrench racial segregation in higher education because racial inequality will persist so long as it is ignored."

Emily Burack (she/her) is the Senior News Editor for Town & Country, where she covers entertainment, culture, the royals, and a range of other subjects. Before joining T&C, she was the deputy managing editor at Hey Alma , a Jewish culture site. Follow her @emburack on Twitter and Instagram .

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ChatGPT can get you through college, but there’s one essay it can’t help with—and it has to do with the Supreme Court’s affirmative action ruling

For students of color hoping to get into the nation’s most elite colleges, application essays are more important than ever.

The Supreme Court’s decision on June 29 reversing affirmative action wiped out most race-conscious admission practices, but left a crucial loophole by permitting applicant-led discussion. “Nothing prohibits universities from considering an applicant’s discussion of how race affected the applicant’s life,” Chief Justice John Roberts wrote in the court’s majority opinion for the case.

Now, selective colleges are encouraging students to share experiences from their upbringing and background by emphasizing “identity” and “life experience” in the essay prompts. But students who rely on ChatGPT to write their papers, which data suggest is most of them, will need to put in the work themselves if they want to stand out.

This year’s prompt for Johns Hopkins University reads : “Tell us about an aspect of your identity (e.g., race, gender, sexuality, religion, community, etc.) or a life experience that has shaped you as an individual and how that influenced what you’d like to pursue in college at Hopkins.” The prompt also acknowledges the Supreme Court’s ruling point-blank, citing Chief Justice Roberts’s opinion in telling applicants that “any part of your background, including but not limited to your race, may be discussed” but that it would be considered “based solely on how it has affected…your experiences as an individual.”

The change is notable from last year, when prompts asked students about more mundane topics like books they’ve read, volunteer experience, and how they spent their summers, the New York Times reported. 

Naturally, students stumped for essay ideas are turning to the hottest new tech to help them through their block: OpenAI’s ChatGPT. 

The chatbot has upended higher education since it went viral at the end of 2022, with students using it to cheat and teachers scrambling to “ChatGPT-proof” their classrooms. More than half of students admit to using ChatGPT for an essay, according to a study.com survey , but it remains to be seen whether the A.I. will really be the death of the college essay . 

Sure, the bot can spit out an analysis of Plato’s Republic , but can it successfully write a compelling, heartfelt essay—and write on the complicated and nuanced subject of race?

ChatGPT’s deficiencies

On that front, the news isn’t good for essay-writers. The A.I. seems to make the same mistakes as many high school students who are taking their first stab at narrative writing.

ChatGPT’s essays “tell” rather than “show,” education consultant Christopher Rim wrote , meaning it spells out the takeaway of the story rather than utilizing literary techniques, like characterization and imagery, to allow readers to glean their own takeaway—the exact opposite of the golden rule for effective narrative writing: “Show, don’t tell.”

That’s not entirely surprising: As a large-language generative AI model, ChatGPT is trained to mimic speech patterns on large quantities of existing text, putting it at a disadvantage when creating original thoughts and self-reflection needed for these essays.

Admissions essays ask that students stand out and highlight the creativity and experiences that make them suited for a particular school, but ChatGPT’s essays are stale, lack a unique voice, and fail to show who the student actually is, according to Rim.

Of course, the more the user edits and critiques ChatGPT, the better the result will be. Asking the bot to be more conversational in its response or asking it to add a sarcastic joke can go a long way, but its essays still seem to be missing the wow factor.

“ChatGPT failed hardest at the most important part of the college essay: self-reflection,” Sanibel Chai, a college-essay tutor who tested the A.I., wrote for New York magazine .

“Can ChatGPT bring together disparate parts of your life and use a summer job to illuminate a fraught friendship? Can it link a favorite song to an identity crisis? So far, nope,” Chai wrote. “Crucially, ChatGPT can’t do one major thing that all my clients can: have a random thought.”

Asking ChatGPT to include the subject of race in an essay invites a whole new swath of deficiencies. Off the bat, the A.I. can offer run-of-the-mill anecdotes describing experiences with racism, but it doesn’t accurately convey the complexity of someone who’s actually experienced it. Rather, it forms a simplified caricature of a student of color that lacks emotional depth.

After this reporter spent 45 minutes prompting ChatGPT to write an essay addressing racism, and even after repeatedly instructing it to stop using clichés, the bot continued to generate cringey sentences like the following: “As I think about the path ahead, I know that embracing my heritage and sharing my story is the best way I can contribute to a world that’s colorful, diverse, and united by the stories we tell.”

Those who have experimented with ChatGPT all seem to come to the same conclusion: Sure, it can write an okay essay after multiple prompts and editing, but it certainly won’t be a standout that a college admissions committee will remember. Only a human student can do that—for now.

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Admitted students talk role of ChatGPT in essays amid changing admissions policies

Princeton admitted students to the Class of 2028 on Dec. 14 as part of its Single Choice Early Action round.

Louisa gheorghita / the daily princetonian.

Artificial intelligence (AI) is receiving a growing focus at Princeton, serving as the subject of the Class of 2028 Pre-Read and spurring the creation of the Princeton Language and Intelligence Initiative (PLI) in September 2023. ChatGPT’s growing popularity has recently sparked conversation about its place in the classroom and whether it can be accurately detected .

Questions about the role of AI in essay writing and the weight essays should hold in the admissions process remain, during an admissions cycle already upturned by the Supreme Court’s decision to strike down affirmative action. These concerns have already resulted in Duke University’s decision to abandon the practice of scoring applicant essays.

The newly admitted Class of 2028 is the first Princeton class to have access to this controversial technology during the admissions process. The Daily Princetonian spoke to admits on their perspective on the usage of generative AI during the college application process, and a professor with expertise in the field.

All three incoming members of the Class of 2028 interviewed by the ‘Prince’ said that they had not used any form of AI in their essays, though one student experimented with AI during the essay-writing process.

They expressed that they felt the personal focus of the essay made it an ill-fit for AI assistance. 

“I don’t really know what it would help with because you’re supposed to write about yourself, and it doesn’t know anything about you,” Jacob Emerson ’28 said.

Jamie Creasi ’28 expressed a similar sentiment. “There’s no way for it to communicate the challenges I’ve experienced, or what kind of life I have,” she said.

Hemant Sharma ’28 described his experience with attempting to use AI. He found that his essay “lost its emotional touch” so he ended up reverting to his old essay. “[ChatGPT] just made everything worse,” he said.

The University shares this position. In a written statement to the ‘Prince,’ University Spokesperson Jennifer Morrill wrote, “An essay generated by an AI platform is unlikely to be as rich and nuanced as a student’s own words.”

The ‘Prince’ spoke with Associate Professor of Computer Science Arvind Narayanan about ChatGPT's writing abilities. Professor Narayanan said that while AI may be capable of writing a passable essay, it likely would not be any easier than writing an essay without AI assistance. 

Professor Narayanan said, “If the use of AI assistance causes [the college admissions essay] to matter even less, I see it as an entirely positive development,” finding the essay to be “an exercise in performative authenticity.” 

The new admits differed in opinion about regulating generative AI use in the college admissions process. Creasi likened the usage of ChatGPT to a calculator which helps conduct simple calculations in order to allow a focus on more complex tasks. 

“At first, people saw calculators as a way of cheating because you don’t have to do a lot of the equations that you once did or use your mind in the same sort of way. But since then, we’ve adapted to calculators … we can do higher level math or physics,” he said.

Conversely, Sharma felt that detection of AI usage in a college essay should be allowed, stating, “I think there should be at least a minor punishment because it’s easier if we curb it now so that it doesn’t hurt anyone later in the future.” 

However, even if schools agreed to take action against students suspected of unauthorized AI use, Professor Narayanan believes AI-identification technology is not at the “level of accuracy that would make it justifiable to penalize applicants for using AI assistance.”

Although the University did not respond with explicit rules about the use of generative AI in the college application process, Morrill wrote that all applicants “sign a statement acknowledging all information in the application (including the essays) is their own work.”

Claire Meng is a News contributor for the ‘Prince.’

Please send any corrections to corrections[at]dailyprincetonian.com.

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Stephen Breyer to the Supreme Court Majority: You’re Doing It Wrong

By Louis Menand

One day in 1993, Stephen Breyer , then the chief judge of the Court of Appeals for the First Circuit, which sits in Boston, was riding his bicycle in Harvard Square when he was hit by a car. He was taken to Mount Auburn Hospital with broken ribs and a punctured lung. While he was recovering, he was visited by three White House officials. They had flown up to interview him for a possible nomination to the United States Supreme Court.

The vetting went well enough, and Breyer was invited to Washington to meet the President, Bill Clinton . Breyer’s doctors advised against flying, so he took the train, in some discomfort. The meeting with Clinton did not go well. According to Jeffrey Toobin’s “ The Nine ,” a book about the Supreme Court, Clinton found Breyer “heartless.” “I don’t see enough humanity,” he complained. “I want a judge with soul.” Breyer was told to go home. They would call.

He knew that things had gone poorly. “There’s only two people who aren’t convinced I’m going to be on the Supreme Court,” he told a fellow-judge. “One is me and the other is Clinton.” He was right. The phone never rang. The seat went to Ruth Bader Ginsburg .

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Ginsburg was a cool customer, too, but she knew which buttons to push. In her interview with Clinton, she talked about the death of her mother and about helping her husband get through law school after he was stricken with testicular cancer. Clinton loved catch-in-the-throat stories like that. Ginsburg was confirmed by the Senate 96–3.

A year went by, there was another Supreme Court vacancy, and Breyer was again in the mix. His candidacy was pushed by Ted Kennedy, with whom he had worked as the chief counsel of the Senate Judiciary Committee when Kennedy was its chair. Clinton really wanted to nominate his Secretary of the Interior, Bruce Babbitt, but Babbitt faced opposition from senators in Western states, and Breyer seemed politically hypoallergenic.

So Breyer was chosen. Still, the White House did not do him any favors. Clinton’s indecisiveness was an ongoing story in the press—it had taken him eighty-six days to pick Ginsburg—and the news coverage made it plain that Breyer was not his first or even his second choice. The White House counsel, Lloyd Cutler, told reporters that, of the candidates being considered, Breyer was “the one with the fewest problems.”

Clinton announced the selection without even waiting for Breyer to come down from Boston. When Breyer did show up, a few days later, he said, “I’m glad I didn’t bring my bicycle down.” Famous last words. In 2011, he broke his collarbone in another biking accident near his home in Cambridge, and in 2013 he fractured his right shoulder and underwent shoulder-replacement surgery after crashing his bicycle near the Korean War Veterans Memorial, on the National Mall. He was seventy-four. You have to give him credit. He gets right back on the horse.

Since his appointment to the Court, Breyer has published several books on his jurisprudential views. His latest is “ Reading the Constitution: Why I Chose Pragmatism, Not Textualism ” (Simon & Schuster). It sums up his frustration with the court that he just stepped down from.

Clinton was not the only person who read Breyer as a technocrat. People felt he lacked a quality that Clinton could apparently summon at will—empathy. “He’s always been smarter than most of those around him,” the Yale constitutional-law professor Akhil Amar explained to a reporter, “so he’s had to learn how to get along with other people.”

That was his reputation at Harvard Law School, too, where he taught administrative law for many years before becoming a judge. “Breyer’s basic social instincts are conservative,” a Harvard colleague, Morton Horwitz, told the Times . “His legal culture is more liberal, and his very flexible pragmatism will enable him to give things a gentle spin in a liberal direction. But he’s a person without deep roots of any kind. He won’t develop a vision. . . . The words ‘social justice’ would somewhat embarrass him.”

It’s true that Breyer has a professorial presentation. He is cosmopolitan and erudite. He travels to other countries and is interested in their legal systems; reporters like to drop the fact that he has read “À la Recherche du Temps Perdu,” in French, twice. He is also, for a judge, relatively wealthy. His wife, Joanna Hare, a clinical psychologist at Dana-Farber, is the daughter of an English viscount.

Before joining the Court, Breyer showed few signs of being a social-justice warrior. He has, like the President who appointed him, neoliberal inclinations. He was instrumental in creating sentencing guidelines for federal judges that he later conceded were too rigid. He wrote a book on regulatory reform. And one of his proudest legislative achievements was working with Kennedy to deregulate the airline industry.

But he has an admirable temperament. Toobin called him “the sunniest individual to serve on the Supreme Court in a great many years.” Seated on a bench next to a lot of intellectual loners— Antonin Scalia , Clarence Thomas , David Souter , Ginsburg herself—Breyer became a consensus seeker, if not always a consensus builder. He believed in reasoned discourse.

He had also learned, from watching Kennedy do business in the Senate, that compromise is how you get things done in government, and he understood that on an ideologically divided court the power is in the middle. Being a split-the-difference centrist, like his predecessor Lewis Powell, and like the Justice he was closest to, Sandra Day O’Connor , suited his personality, too.

Breyer loved the job and was reluctant to announce his retirement, throwing liberals who feared another R.B.G. fiasco into a panic. He stepped down at the end of the 2021-22 term, in time for President Joe Biden to put one of Breyer’s former clerks, Ketanji Brown Jackson , on the Court. Breyer is now back where he started, as a professor of administrative law at Harvard. Happily for the law school, there are now many dedicated bike lanes in Cambridge.

Horwitz was not entirely right about what George H. W. Bush called “the vision thing.” Beneath Breyer’s pragmatic, let-us-reason-together persona is the soul of a Warren Court liberal. The Warren Court is where Breyer’s judicial career began. After graduating from Harvard Law School, in 1964, he clerked for Justice Arthur Goldberg. It was, he said, “a court with a mission.” The mission was to realize the promise of Brown v. Board of Education.

Brown is Breyer’s touchstone. He calls the decision “an affirmation of justice itself.” Brown was decided in 1954, and it governs only segregation in public schools. This is because the Fourteenth Amendment’s guarantee of “the equal protection of the laws,” the right under which Brown was decided, is a right that can be exercised only against states and their agencies. But Breyer understands Brown in a broader sense. He believes that the reasoning in Brown leads to the condemnation of any and all discrimination that is within the reach of government to eliminate.

Extending the spirit of Brown is what the 1964 Civil Rights Act was designed to do. The act was signed into law in July, just as Breyer was beginning his clerkship, and it did something that Congress had tried once before, in 1875: make it unlawful for public accommodations like hotels, theatres, and restaurants to discriminate on the basis of race. In 1883, in a blockbuster decision, the Supreme Court had thrown out that earlier act as unconstitutional. It ruled that the government cannot tell private parties whom they must serve.

Title II of the Civil Rights Act once again prohibited discrimination in public accommodations on the basis of race, color, religion, or national origin. But how are privately owned businesses like restaurants within the reach of the state? In October, 1964, three months after the act was signed into law, that question came before the Court in two challenges to the constitutionality of Title II: Heart of Atlanta Motel v. U.S., concerning a motel in Georgia that refused to serve Black travellers, and Katzenbach v. McClung, concerning a restaurant in Birmingham, Ollie’s Barbecue, that refused to seat Black customers. (They could use a takeout window.)

The Court ruled that Congress gets its power to ban discrimination in public accommodations from the commerce clause in Article I of the Constitution. (“Congress shall have power . . . to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.”) This holding required the Court to find that the Heart of Atlanta Motel and Ollie’s Barbecue were, in fact, part of interstate commerce. And the Court so found.

Since the motel was patronized by people travelling from one state to another, and since the ingredients for some of the food served at Ollie’s came from outside Alabama, the Court held that the motel and the restaurant were part of commerce “among the several states” and therefore within the power of Congress to regulate. The Court declared the 1883 ruling “inapposite and without precedential value,” and the decision in both cases was unanimous. Breyer thinks that they were the most important rulings of his clerkship.

There was another case with far-reaching effects that was decided during Breyer’s clerkship: Griswold v. Connecticut. The plaintiffs, Estelle Griswold and C. Lee Buxton, opened a Planned Parenthood clinic in New Haven and were arrested for counselling married couples about birth-control devices, which were illegal under the state’s anti-contraception law. Griswold and Buxton argued that, since the law was unconstitutional, they could not be prosecuted for advising women to break it. In a 7–2 decision, the Court agreed. What constitutional provision did the Connecticut law violate? The right to privacy.

Justice William O. Douglas wrote the opinion of the Court, and it is a classic of judicial inventiveness. Nowhere does the Constitution mention a right to privacy, but Douglas proposed that “specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance.” By this jurisprudential alchemy, the First, Third, Fourth, Fifth, and Ninth Amendments could be interpreted as defining a “zone of privacy” whose penumbra would extend to the marital bedroom.

Douglas concluded his opinion with an encomium to marriage. He got quite worked up about it. “Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred,” he wrote. “It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects. Yet it is an association for as noble a purpose as any involved in our prior decisions.” Douglas was sixty-six. A year after Griswold, he divorced his twenty-six-year-old third wife, Joan Martin, to marry Cathleen Heffernan, who was twenty-two.

Griswold became a key precedent in two landmark cases: Roe v. Wade, decided in 1973, and Obergefell v. Hodges, the same-sex-marriage case, decided in 2015. “The right of privacy,” Harry Blackmun wrote for the Court in Roe, “is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.” In Obergefell, Anthony Kennedy, also writing for the Court, quoted Douglas’s reflections on marriage in their entirety and added some emanations of his own. In addition to a privacy right, he declared, constitutional liberties extend “to certain personal choices central to individual dignity and autonomy, including intimate choices that define personal identity and beliefs.” (In a dissent, Scalia said that he would “hide my head in a bag” before putting his name to some of Kennedy’s prose.)

The shape of Breyer’s Supreme Court career therefore has an emblematic significance, because it was bookended by two decisions that undid much of what the Warren Court achieved in Heart of Atlanta and Griswold. Breyer’s first major dissent came in 1995, in U.S. v. Lopez, a commerce-clause case; his last was in Dobbs v. Jackson Women’s Organization, the decision that overturned Roe v. Wade .

Lopez turned on the constitutionality of the Gun-Free School Zones Act of 1990, which made it a federal crime to possess a firearm in a school zone. In a 5–4 decision, the Court rejected the government’s argument that the act was a legitimate exercise of Congress’s power under the commerce clause. It was the first time since 1936 that the Court had struck down a federal law for exceeding the commerce-clause power.

Much of the New Deal was made possible by the commerce clause. In his dissent, Breyer noted that more than a hundred federal laws include the phrase “affecting commerce.” How many was the Court bent on invalidating? Some, anyway. Five years later, in U.S. v. Morrison, the Court threw out provisions of the Violence Against Women Act on the ground of commerce-clause overreach.

Breyer’s dissent in Dobbs, in 2022, was joined by Elena Kagan and Sonia Sotomayor . The privacy right in Roe “does not stand alone,” they wrote. “The Court has linked it for decades to other settled freedoms involving bodily integrity, familial relationships, and procreation. Most obviously, the right to terminate a pregnancy arose straight out of the right to purchase and use contraception. . . . They are all part of the same constitutional fabric.” They wondered, again, how much the Court was prepared to unravel. In his concurrence, Thomas suggested that the Court might want to reconsider Griswold and Obergefell.

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What happened? Breyer has an explanation, and he lays it out in the new book. He thinks it’s all a matter of interpretation.

As Breyer points out, a majority of the Court now subscribes to the interpretive methods known as textualism and originalism. Textualism and originalism tend to be run together as types of what used to be called “strict construction” (a term that seems to have fallen out of use). But there is a difference. Textualism is primarily a way of interpreting statutes, and originalism is a way of interpreting the Constitution.

Textualists ask what the words of a statute literally mean. Information like legislative history or social-science data is largely irrelevant. Textualists don’t ask, “What would Congress have us do?” They just say, “What is the rule here?” and try to follow it.

Originalists, on the other hand, ask what the Framers would have them do. Originalists can consult the records of the Constitutional Convention (which are hardly comprehensive) and documents like the Federalist Papers (which is a collection of op-eds). But they claim to stick to the “original public understanding” of constitutional language—that is, what the words meant to the average voter in the eighteenth century. They do not invent rights that the Framers would not have recognized, as originalists think Douglas did in Griswold.

More recently, originalists have looked to something called “history and tradition,” highly malleable terms—whose history? which tradition?—by which they tend to mean things as they were prior to circa 1964. Writing for the Court in Dobbs, Samuel Alito explained that the decision turned on “whether the right at issue in this case is rooted in our Nation’s history and tradition.” The constitutional right to abortion was then fifty years old. For women likely to rely on it, the right had existed for their entire lifetimes. But what mattered to the originalists was whether women could rely on it in the nineteenth century.

The use of race as a plus factor in college and university admissions is even older. The practice dates from the late nineteen-sixties, and has been ruled constitutional by the Supreme Court three times: in 1978, in 2003, and in 2016. But the majority had little trouble wiping it out last term, in Students for Fair Admissions v. Harvard . It is a bit brazen to be shouldering aside precedents under the banner of “tradition.”

Breyer sums up textualism and originalism as attempts to make judicial reasoning a science and to make law a list of rules. In our system of government, the Constitution is the big trump card. But it doesn’t come with a user manual. The document is basically a list of clauses—the commerce clause (sixteen words), the equal-protection clause (fourteen words), and so on. And the Constitution gives the reason for a clause only twice: in the patent-and-copyright clause in Article I and in the right-to-bear-arms clause in the Second Amendment. (We could add the preamble, the “We the People” clause, which gives the rationale for having a written constitution in the first place, a novel idea in 1787.)

Some constitutional clauses, like the requirement that the President be native-born, are rules, but many, like the equal-protection clause (the only reference to equality in the entire document), are principles. They do not mark out bright lines separating the constitutionally permitted from the constitutionally forbidden.

Courts, however, are obliged to draw those lines. Judges cannot conclude that the law is a gray area. Textualists and originalists believe that their approach draws the line at the right place. Breyer thinks that the idea that there is a single right place, good for all time, is a delusion, and that his approach, which he calls “pragmatism,” is the one best suited to the design of the American legal system. Pragmatism makes the system “workable” (a word Breyer uses many times) because it does not box us into rigid doctrines and anachronistic meanings.

Pragmatist judges therefore look to the law’s purposes, consequences, and values. They ask, “Why did the lawmakers write this? What are the real-world consequences for the way the Court interprets it? And what are the values that subtend the system of government that courts are a part of?” These are questions that literal readings can’t answer.

An originalist like Scalia, for example, thinks that the “cruel and unusual punishment” clause in the Eighth Amendment makes unconstitutional only punishments that would have been considered cruel and unusual in 1791, the year the amendment was ratified. In 1791, people were sentenced to death for theft. If we said that seems cruel and unusual today, Scalia would say, “Fine. Pass a law against it. But the Constitution does not forbid it.” When he was asked what punishment the Framers would have considered cruel and unusual, Scalia said, “Thumbscrews.”

To this, a pragmatist judge would say, “Then what is the point of having a constitution?” The words “cruel and unusual” were chosen by the Framers (in this case, James Madison, who drafted the Bill of Rights) because their meanings are not fixed. And that goes to the purpose of the clause. The Constitution does not prohibit cruel and unusual punishment because cruelty is bad and we’re against it. It prohibits punishment that most people would find excessive in order to preserve the public’s faith in the criminal-justice system. If we started executing people for stealing a loaf of bread today, the system would lose its legitimacy. Surely an originalist would agree that the Framers were big on legitimacy.

The same is true of many other clauses—for example, the free-speech clause in the First Amendment. Free speech is protected not because it’s a God-given right. It’s protected because, in a democracy, if you do not allow the losers to have their say, you cannot expect them to submit to the will of the winners. Free speech legitimizes majoritarian rule.

Breyer’s book is organized as a series of analyses of some twenty Supreme Court cases, most of which Breyer took part in during his time on the Court. Some are major cases, like District of Columbia v. Heller, in which the originalists found a right to possess a gun for self-defense in the Second Amendment, which says nothing about self-defense. (“Some have made the argument, bordering on the frivolous, that only those arms in existence in the eighteenth century are protected by the Second Amendment,” Scalia wrote in the Court’s opinion. Hmm. What happened to the Thumbscrews Doctrine?)

Other cases are perhaps less than major, like Return Mail, Inc. v. United States Postal Service, which answered the question of whether the federal government is a “person” capable of petitioning the Patent Trial and Appeal Board under the Leahy-Smith America Invents Act. (It is not.) Breyer explains how originalists and textualists decided each case and how he, as a pragmatist, decided them. His book is accessible, rather repetitive, and neither theoretical nor technical. It is addressed to non-lawyers.

It also seems weirdly naïve. Or maybe purposefully naïve. In most of the cases Breyer discusses, where there was disagreement on the Court it resulted not from differences in interpretive methods but from differences in politics. In almost every case, the originalists and textualists came down on the conservative side, restricting the powers of the federal government and expanding the powers of the states, and the pragmatists and “living constitutionalists” (another term that’s now largely avoided) came down on the liberal side.

What is naïve is to believe that the conservative Justices—which means, on the current Court, the six Justices appointed by Republican Presidents, though they are not always on the same page—would decide cases differently if they switched to another method of interpretation. Judicial reasoning doesn’t work that way. Judges pretty much know where they want to come out, and then they figure out a juridically respectable way of getting there.

Why would Breyer want to ignore, or seriously understate, the part that political ideology plays in Supreme Court decisions? The answer lies in an earlier book, “ The Authority of the Court and the Peril of Politics ,” based on a lecture he delivered at Harvard in 2021. It’s all about legitimacy.

Legitimacy is why the Warren Court was on a mission in 1964. The Supreme Court’s reputation—you could say its mystique—is all that it has. It cannot tax or spend. Only Congress can do those things, and only the President can send in the Army. When Southern school districts ignored Brown and refused to integrate, the Court was in danger of being exposed as a paper tiger. It was crucial, therefore, that everyone believe that the Justices were not making law, only finding it. The Constitution made them do it. That was the Court’s claim to legitimacy.

Breyer thinks that the Court still operates this way. All Justices, he says in “The Authority of the Court,” “studiously try to avoid deciding a case on the basis of ideology rather than law.” The reason that “different political groups so strongly support some persons for appointment to the Court and so strongly oppose others” is that people “confuse perceived personal ideology (inferred from party affiliation or that of the nominating executive) and professed judicial philosophy.”

But Presidents and Senate majorities certainly think they are appointing Justices who share their political beliefs, even when they profess to be simply looking for the most qualified jurist. Sometimes Presidents are wrong. Earl Warren, appointed by Dwight D. Eisenhower, no enthusiast of race-mixing, is a famous example. But that is not because Warren was apolitical. Warren was a Republican politician. He had been elected governor of California three times and had run for Vice-President on the ticket with Thomas E. Dewey, in 1948. For Warren, the political constituency that mattered when he became Chief Justice was not the President or Congress. It was the public.

He could see that, in the postwar era, public opinion was likely to favor expanded liberties—the United States was presenting itself, after all, as the leader of the free world—and although his court may sometimes have got a few paces ahead of public opinion, it was largely in step with the times. It was a liberal era. We are not living in a liberal era anymore, and the Court reflects this.

Politics is the art of governance. The Supreme Court is a branch of government, and is therefore a political body. Its decisions affect public life. If by “political” we mean “partisan,” we are still talking about governance, because partisanship is loyalty to a political ideology, normally instantiated in a political party. Politics, therefore, cannot not be partisan. Partisanship is how politics works. Even when politicians say, “This is no time for politics,” they are saying it for partisan reasons. They are saying it because it is good for their side to say it.

What makes the Court different from other political actors is stare decisis, the tradition of respecting its earlier decisions, something Congress does not have to worry about. There is no rule against overturning a precedent, though. So why has the Court been traditionally reluctant to do so? Why does Thomas’s suggestion that it might be time to overrule Griswold and Obergefell seem so radical? It’s because the Court’s legitimacy is intimately tied to the perception that, in making its rulings, it looks only to what the Constitution says and what the Court has previously decided. When the Court overturns a case, it has to make it appear as though the decision was wrong as a matter of law.

This is why Breyer insists that it’s all a matter of legal forensics, of what interpretive lenses the Justices use. He wants to preserve the authority of the Court. He wants to prevent the Justices from being seen as the puppets of politicians.

His toughest moment on the Court, for this reason, must have been Parents Involved in Community Schools v. Seattle School District, decided in 2007. In that case, the Court struck down a Seattle policy of using race as a factor in assigning students to high schools with the aim of attaining rough racial balance.

It was the kind of policy that the Court had approved a number of times since Brown. Now, in an opinion by John Roberts, the Court declared that it had had enough. Roberts ended with a memorable line, no doubt saved up for the right occasion: “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”

After Roberts announced the Court’s opinion, on the last day of the term, Breyer delivered a speech from the bench. “Bristling with barely concealed anger,” according to an account by the legal scholar Lani Guinier, he accused the Court’s Republican appointees of voting their policy preferences. “It is not often in the law that so few have so quickly changed so much,” he said.

In 2019, Breyer’s speech from the bench was published as a pamphlet by Brookings. The title he gave it was “Breaking the Promise of Brown.” ♦

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Private, selective colleges are most likely to use race, ethnicity as a factor in admissions decisions

The U.S. Supreme Court’s decision to limit affirmative action in higher education is likely to have the biggest impact on a relatively small group of schools – primarily highly selective private colleges and universities, according to a new Pew Research Center analysis.

The question of how, if at all, race and ethnicity should figure into college admissions decisions goes back decades – at least to the Supreme Court’s 1978 decision in Regents of the University of California v. Bakke, which outlawed specific quotas for minority groups but allowed the use of race as one factor among many in admissions decisions. Given the Supreme Court’s recent rulings on affirmative action , Pew Research Center wanted to find out just how widespread the practice of factoring race and ethnicity into admissions decisions has been.

There are roughly 4,200 postsecondary degree-granting educational institutions in the United States, but many were outside the scope of this research. We started by downloading a list of institutions from the Integrated Postsecondary Education Data System (IPEDS) , which is maintained by the U.S. Education Department. After filtering out for-profit schools, schools that don’t primarily offer bachelor’s degrees, non-accredited/non-degree schools and schools with “open admissions” policies (under which virtually all applicants with a high school diploma or the equivalent are admitted), we were left with 1,550 institutions.

Among the trove of data maintained by IPEDS are figures from each school on how many people applied for admission in the 2021-22 school year and how many were actually admitted. By dividing the latter into the former, we calculated admission rates for all 1,550 schools.

Since race and ethnicity considerations are more likely to be contentious at schools where demand for admission greatly outstrips available spots, we decided to focus on schools that admitted half or fewer of all their applicants for 2021-22. That brought our study group down to about 200 schools.

Our source for how much consideration (if any) a particular school gives applicants’ race and ethnicity is its Common Data Set , or CDS. The CDS was developed more than two decades ago by the College Board, Peterson’s and U.S. News and World Report as a way to both increase transparency and comparability among institutions and ease their burden of having to respond to multiple overlapping data requests from publishers of college rankings. Many (but not all) colleges participate in the CDS initiative, and many (but not all) of those publish their completed questionnaires on their websites. We searched for CDS forms for all 200+ schools on our target list, for as many years as the schools made them available.

Among the items on the CDS is a list of 19 academic and nonacademic factors (including “racial/ethnic status”) that might or might not go into a school’s admission decisions. Schools can rate each factor, in descending order, as “very important,” “important,” “considered” or “not considered.”

We further limited our study group to schools with a publicly available CDS for at least one of the past three academic years, and which assigned a rating to the “racial/ethnic status” item. In the end, 123 schools fit all our criteria.

Each CDS also contains a breakdown of the school’s undergraduate population by race and ethnicity. We used that data to calculate the diversity of each school’s student body for the most recent academic year available. Undergraduates who aren’t U.S. residents are counted separately and aren’t categorized by race or ethnicity, so we excluded them from the calculations.

While there is no comprehensive list of colleges and universities in the United States that consider race and ethnicity as a factor in admissions decisions, many schools report information about themselves in a standard format called the Common Data Set (CDS) and make it available online. Among the items on the CDS is a list of 19 academic and nonacademic factors that might go into a school’s admissions decisions. Schools can rate each factor as, in descending order of significance, “very important,” “important,” “considered” or “not considered.”

We examined CDS forms from 123 selective colleges and universities – which we defined as those that admit half or fewer of their applicants – to see whether they considered race and ethnicity as a factor in deciding whom to admit, and if so, how significant a factor it was. We only looked at schools that had filled out that portion of the CDS in at least one of the past three academic years.

Of these schools, 74% (91 out of 123) said they did consider race and ethnicity, with 10 of those describing it as an important factor. The vast majority of those schools (82) are private, not-for-profit institutions.

About a quarter of the schools we examined (32, or 26%) said they did not consider race and ethnicity at all. Of those, most (22) are public colleges and universities.

Related: More Americans Disapprove Than Approve of Colleges Considering Race, Ethnicity in Admissions Decisions

As an earlier Center analysis found, most colleges and universities admit most of the people who apply to them . In the 2021-22 school year, only 202 out of 1,550 four-year colleges and universities admitted half or fewer of the people who applied to them, based on our most recent analysis of data from the federal government’s Integrated Postsecondary Education Data System.

This analysis about the consideration of race and ethnicity in admissions decisions is limited to public and private not-for-profit institutions that offer bachelor’s degrees and higher credentials, and have published a recent CDS on their website. For more details, refer to the “How we did this” box.

Highly selective and private colleges more likely to consider race and ethnicity

In general, consideration of race and ethnicity is more common among schools with the lowest admission rates.

In the Center’s analysis of selective schools with publicly available CDS data, all 24 schools that admit fewer than 10% of applicants say they consider race and ethnicity when deciding whom to admit, although only one rated it as an important factor. And among the 48 schools that admit between 10% and 30% of applicants, all but seven consider race and ethnicity in admissions, with five rating it as an important factor.

But among the 51 schools that admit between 30% and half of all applicants, just over half (26, or 51%) consider race and ethnicity, and only four call it an important factor. Nearly half of those schools (25, or 49%) say they don’t consider race and ethnicity at all.

Among the colleges in our study group, the average admissions rate is lower among schools that consider race and ethnicity than among those that don’t (21.7% vs. 37.4%).

Also, consideration of race and ethnicity is more common for private colleges and universities, at least among the institutions we studied. All but 10 of the 92 private colleges and universities we examined (89%) considered race and ethnicity in deciding whom to admit, with 10 of those ranking it as an important factor.

But among the 31 public schools, only nine (29%) considered race and ethnicity at all, and none rated it as an important factor. (One partial explanation: Nine of the 22 public schools that don’t consider race and ethnicity in admissions are in California, where voters banned the practice in a 1996 ballot initiative .)

Notably, the schools that rated race and ethnicity as an important factor in admissions decisions had, in aggregate, less diverse student bodies than those that didn’t. In those 10 schools, White students made up nearly 56% of undergraduate enrollment (excluding non-U.S. residents), compared with just over half among schools that said they considered race and ethnicity as one factor among many, and 41% among schools that said they didn’t consider it at all. In that last group of schools, Hispanic students accounted for nearly a quarter of aggregate undergraduate enrollment – largely because the group includes several big public universities in California and Florida with sizable Hispanic student populations.

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Striking findings from 2023

Americans and affirmative action: how the public sees the consideration of race in college admissions, hiring, asian americans hold mixed views around affirmative action, more americans disapprove than approve of colleges considering race, ethnicity in admissions decisions, most popular.

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Why It Will Now Be Easier for Educators to Sue Over Job Transfers

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In a case followed closely in the education community, the U.S. Supreme Court on Wednesday ruled that employees challenging a transfer under the main federal job-discrimination law must show that change causes some harm in term or condition of employment but that the harm need not be “significant.”

The ruling was largely a victory for employees and civil rights groups, who had urged the court to reject a standard requiring a significant disadvantage in the transferred employee’s new job assignment to be the basis for a discrimination complaint under Title VII of the Civil Rights Act of 1964.

It was a defeat for employers and their advocates, including several school groups, who warned that removing the significance requirement could impinge on the many transfer decisions school administrators must make in deploying a typically large workforce.

“To make out a Title VII discrimination claim, a transferee must show some harm respecting an identifiable term or condition of employment,” Justice Elena Kagan wrote for the court in Muldrow v. City of St. Louis . “What the transferee does not have to show, according to the relevant text, is that the harm incurred was ‘significant.’ Or serious, or substantial, or any similar adjective suggesting that the disadvantage to the employee must exceed a heightened bar.”

A police sergeant’s case has parallel examples in education

Five other members of the court signed Kagan’s opinion: Chief Justice John G. Roberts Jr. and Justices Sonia Sotomayor, Neil M. Gorsuch, Amy Coney Barrett, and Ketanji Brown Jackson. Justices Clarence Thomas, Samuel A. Alito Jr., and Brett M. Kavanaugh all concurred with the outcome, but Thomas and Alito wrote opinions that almost read like dissents, and Kavanaugh wrote a separate opinion that would have gone further than the majority in support of employees.

The decision revived the Title VII sex-discrimination suit of St. Louis police Sgt. Jatonya Muldrow, who worked nine years in the intelligence division and had once led the gun-crimes unit. In 2017, a new, male supervisor transferred her to a local police district, where she supervised routine patrol and investigative matters and once again had to wear a uniform instead of plainclothes.

The new intelligence-division leader allegedly referred to the work Muldrow had been involved in as “very dangerous,” and he replaced her with a male officer and transferred two other women out of the division. The supervisor also referred to her as “Mrs.” rather than “Sergeant,” as he addressed men of that rank.

The U.S. Court of Appeals for the 8th Circuit, in St. Louis, ruled that Muldrow’s transfer was not an adverse employment action because it “did not result in a diminution to her title, salary, or benefits” or “a significant change in working conditions or responsibilities.” The court was one of several federal appeals courts to apply some form of the significance standard in job transfer cases.

Kagan cited some of those decisions, including a 1998 ruling by the U.S. Court of Appeals for the 10th Circuit , in Denver, which adopted a significant standard in the case of a teacher who alleged sex discrimination in her transfer to a less desirable (to her) school.

“To demand ‘significance’ is to add words—and significant words, as it were—to the statute Congress enacted,” Kagan said. “It is to impose a new requirement on a Title VII claimant, so that the law as applied demands something more of her than the law as written.”

And such a standard can make a real difference, she said, as “many forced transfers leave workers worse off respecting employment terms or conditions. (After all, a transfer is not usually forced when it leaves the employee better off.)”

She cited several examples from cases of employees whose bias claims about their transfers were rejected under a significance standard. They included, Kagan said, “a school principal is forced into a non-school-based administrative role supervising fewer employees; a court again finds the change in job duties not ‘significant.’”

That referred to Cole v. Wake County Board of Education , a 2021 decision by the U.S. Court of Appeals for the 4th Circuit, in Richmond, Va., that ruled against a Black middle school principal who challenged her transfer to a central-office position as being motivated by racial bias. The appellate court affirmed a district judge’s ruling that despite the principal’s view of the transfer as a demotion that decreased her chances for advancement, other principals had been moved to central-office positions without any loss of prestige.

Kagan said in a footnote that the principal’s case she cited was an example of a claim that failed under the significance test used by the ruling appeals court but would “succeed” under the Supreme Court’s new standard.

In fact, school employment cases came up frequently in the briefs filed in the case, including ones asking whether being transferred to teach 7th grade instead of 3rd grade would be a materially adverse change (an appeals court said it wasn’t) or whether a school security guard’s movement from a high school to a middle school, with more outdoor work and less opportunity for overtime, met the significant transfer test (another appeals court said it did not).

“Educational administrators, particularly in large urban school districts, regularly must make a wide range of teacher and support staff assignments and other personnel management decisions to meet the needs of constantly changing student populations,” said a friend-of-the-court brief filed in support of the significance standard by the National School Boards Association; AASA, the School Superintendents’ Association; and the National Association of School Business Officials International.

Francisco M. Negrón Jr., the founder and CEO of K12 Counsel, an education law advocacy firm in Washington, said the decision will be worrisome for school districts.

“This will make it more difficult for districts to be nimble” in their deployment of teachers, administrators, bus drivers, and other personnel, he said.

“The majority was quite expansive in its opinion,” said Negrón, who was the longtime general counsel of NSBA until late last year and had helped write the school groups’ brief. “Kagan talks not just about job locations and schedules but also perks. School districts are going to have to be more careful about what constitutes terms and conditions of employment.”

They may need to make clear to new hires that they work for the district and are subject to redeployment based on the district’s needs. But even then, he added, “I think there are more questions this case raises than it answers, and those are going to be the subject of future litigation.”

Ming-Qi Chu, the deputy director of the American Civil Liberties Union’s Women’s Rights Project, said the decision “is an enormous win for workers.”

The “heightened standard contradicts the statute’s text and undermines Congress’ plan of eliminating discrimination in employment in passing Title VII,” she said.

One justice calls majority opinion ‘unhelpful’

Muldrow’s case was revived but sent back to lower courts for consideration of certain outstanding questions about some of the evidence in her case. All members of the court agreed with that outcome.

Thomas, in his opinion, said he believed the proper standard was not “some harm” but that an employee challenging a transfer must show harm that is “more than trifling.”

“In other words, a plaintiff must have suffered an actual disadvantage as compared to minor changes,” he said.

Thomas said Muldrow “failed to prove that there was any nontrifling change in her job’s prestige” and that the 8th Circuit was probably correct to reject her claim, but he grudgingly went along with the judgment that will require the lower courts to give a fresh look at some aspects of her case.

Alito was more critical of Kagan’s opinion, even as he also joined the outcome.

“I do not join the court’s unhelpful opinion,” Alito said. “For decades, dozens of lower court judges, with a wealth of experience handling Title VII cases, have held that not every unwanted employment experience affects an employee’s ‘terms’ or ‘conditions’ of employment.”

As to Kagan’s guidance that plaintiffs must show some harm but that it not be significant, “I have no idea what this means, and I can just imagine how this guidance will be greeted by lower court judges.”

“We do not typically say that we were harmed or injured by every unwanted experience,” he added. “The predictable result of today’s decision is that careful lower court judges will mind the words they use but will continue to do pretty much just what they have done for years.”

Kavanaugh tacked in the opposite direction, saying in his opinion that he did not think that “some harm” was necessary for a successful claim if the transfer was made on the basis of the characteristics covered by Title VII—the employee’s race, color, religion, sex, or national origin.

He said, “Suppose that an employer says to an employee in the Columbus (Ohio) office: ‘We are transferring you to the Cincinnati office because you are black. But your compensation will not change.’ Does that violate Title VII? Of course it does.”

The discrimination is the harm, Kavanaugh said, and a transfer is by definition a change in terms or conditions of employment. Still, he said, the new “some harm” requirement is a low bar for plaintiffs to meet.

Anyone who has been transferred based on a characteristic covered by Title VII, Kavanaugh said, “should easily be able to show some additional harm—whether in money, time, satisfaction, schedule, convenience, commuting costs or time, prestige, status, career prospects, interest level, perks, professional relationships, networking opportunities, effects on family obligations, or the like.”

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Reinstating the SATs Will Only Make Rich Kids Richer

A t America’s wealthiest colleges, the SAT is back with a vengeance, and it’s easy enough to see who will suffer: socioeconomically disadvantaged students of color.

Over the past few weeks, Dartmouth , Yale , Brown , and Harvard have all announced that they will require standardized test scores from all applicants next fall after suspending their use during the pandemic.

Between the spring of 2020 and the winter of 2021, the number of four-year universities and colleges with test-optional policies doubled from 713 to 1,350 including, notably, all eight Ivy League schools. Colleges touted the shift as progressive. “Students have never been treated as numbers,” Colorado College posted on its website. “Our test-optional policy allows our team to identify the most qualified candidates for admission while also increasing access for first-generation, low-income, and traditionally underserved students.” Even Harvard was on board. “People somehow think that if you don’t have test scores it’s very hard to evaluate an application, but you have teacher reports, you have grades,” Harvard’s admissions dean Bill Fitzsimmons said in 2022. “There’s an enormous amount of academic information.”

In the wake of the Supreme Court’s decision in SFFA v. Harvard , which effectively ended race-based affirmative action, it was possible to envision career-defining standardized testing heading for the scrap bin of history, too. After all, the SAT and ACT have long been known to correlate closely with wealth. One recent study found that students from families in the top 1% of the income distribution are 13 times more likely than students from the bottom 20 percent to score 1300 or higher on the SAT. Just 2.5% of students from the lowest income quintile manage to reach 1300.

If colleges wanted to preserve diversity—and could no longer consider an applicant’s race—surely they could no longer place great weight on a metric that functions principally as a marker of the applicant’s wealth.

Not so fast.

Elite colleges are whistling quite a different tune than they were just two years ago. The reimplementation of standardized testing has coincided with a spate of personal anecdotes , research , and articles extolling their putative benefits. Christina Paxson, the president of Brown University, recently touted the SAT and ACT for revealing “useful information about whether students will, on average, be academically successful at Brown.”

Read More: I Took the SAT Again in My 50s. Turns Out I Had Learned Nothing

One could understand the need for standardized testing at public colleges, where more than a third of entering students fail to graduate within six years. But it’s a curious argument to be advanced by Brown, where the six-year graduation rate is 96% and for Pell Grant recipients is 93%.

Another line of defense is that the SAT is the best friend of the downtrodden. Harvard economist David Deming said , “My worry is that if we get rid of the SAT, you’re getting rid of the only way that a low-income student who’s academically talented has to distinguish themselves.” It’s again a curious argument to be made, especially by schools like Brown and Harvard, each of which counts itself among the 38 American colleges where more students come from families in the top 1% of the income distribution than the bottom 60%. This is true even though Brown has an endowment of $6.6 billion and Harvard the nation’s largest— $50.9 billion .

It's even more curious, still, given that in the same letter in which Paxson announced the return to standardized testing, she reaffirmed Brown’s commitment to early decision—which has long been known to hurt poorer students who can’t afford to commit to a college without comparing financial aid packages—and to the preference it affords to the children, of alumni, donors, faculty, staff, and athletic recruits—pathways that overwhelmingly benefit rich, white applicants, otherwise known as “ALDC” applicants. At Harvard, for example, 43% of white students are “ALDC.” Research shows that about three quarters of these students would have been rejected without their ALDC status.

Read More: The Case Against Private College Admissions Counselors

So what’s really going on?

To understand, one need only take a closer look at the most widely cited study by Deming and his colleagues Raj Chetty and John Friedman. Standardized test scores, the story goes, are a much better predictor of college success than high school GPA. What are their principal markers of “college success?” Attending an “elite graduate school” and “working at a prestigious firm.” The outcome they’re looking at is the accumulation of wealth not knowledge. Is it any surprise that rich kids both outperform lower-SES kids on the SAT and at getting investment banking jobs at Goldman Sachs and consulting jobs at McKinsey?

What if these researchers and college administrators instead adopted this definition of success: the student maintained a college GPA of over 3.0, learned and grew as a person, and got a significant benefit in terms of economic mobility? By this standard, virtually every socioeconomically disadvantaged kid admitted to one of these prestigious, highly endowed colleges is a success.

But this interpretation of the data and definition of the object of college would be decidedly inconvenient and mask the true object of elite colleges: to make rich kids richer.

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2024 ESSAY CONTEST

The Honorable Robert A. Katzmann Justice For All: Courts and the Community Initiative & the Appellate Courts Committee of the New York County Lawyers Association In Honor of Second Circuit Judge Rosemary S. Pooler

Contest Information and Prompt

Contest entry and rules.

In honor of Judge Rosemary S. Pooler and the 70th anniversary of the Supreme Court’s decision in Brown , the theme for this year’s essay contest is “70 years of Brown v. Board of Education : The Promise of Equal Protection of the Laws.” Consistent with this theme, students are asked to consider how the federal courts have interpreted and applied Brown since that decision was rendered, and to think critically about how the principles motivating that decision and the decision itself have influenced and continue to influence individuals, communities, and American society.

The 14th Amendment, ratified in 1868 following the Civil War, includes the Equal Protection Clause, which provides that the state shall not “deny to any person within its jurisdiction the equal protection of the laws.”

In Brown v. Board of Education , 347 U.S. 483 (1954), decided 70 years ago this year, the Supreme Court ruled that state laws that segregated students based on race violated the Equal Protection Clause. In so holding, the Supreme Court overruled an earlier decision in Plessy v. Ferguson , which held that if public facilities were equal, racial segregation did not violate the Equal Protection Clause.

In articulating its landmark decision in Brown , the Supreme Court explained that it “must consider public education in the light of its full development and its present place in American life throughout the Nation[,]” and could not view the problem before it by “turn[ing] the clock back to 1868 when the [Equal Protection Clause] was adopted, or even to 1869 when Plessy v. Ferguson was written.” According to the Court:

[E]ducation is perhaps the most important function of state and local governments. Compulsory school attendance laws and the great expenditures for education both demonstrate our recognition of the importance of education to our democratic society. It is required in the performance of our most basic public responsibilities, even service in the armed forces. It is the very foundation of good citizenship. Today it is a principal instrument in awakening the child to cultural values, in preparing him for later professional training, and in helping him to adjust normally to his environment. In these days, it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education. Such an opportunity, where the state has undertaken to provide it, is a right which must be made available to all on equal terms.

The Court went on to explain that racial segregation is harmful in and of itself. Separating students “from others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone.” And this “feeling of inferiority” may affect certain children’s ability to learn and deprive them of the benefits they would otherwise receive from their education.

The Court concluded that,

in the field of public education the doctrine of ‘separate but equal’ has no place. Separate educational facilities are inherently unequal. Therefore, we hold that the plaintiffs and others similarly situated for whom the actions have been brought are, by reason of the segregation complained of, deprived of the equal protection of the laws guaranteed

Decisions informing Brown or that apply Brown:

• United States v. Carolene Prod. Co. , 304 U.S. 144 (1938): In Carolene Products Company , the Supreme Court recognized that “prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities” thus requiring judicial intervention.
• San Antonio Indep. Sch. Dist. v. Rodriguez , 411 U.S. 1 (1973): In Rodriguez , the Supreme Court upheld Texas’s system of financing public schools through property tax assessments, which created a disparity in resources between wealthier and poorer tax districts, against a challenge under Brown and the Equal Protection Clause. In reaching this decision, the Court reasoned that “where wealth is involved, the Equal Protection Clause does not require absolute equality or precisely equal advantages.”
• Grutter v. Bollinger , 539 U.S. 306 (2003): In Grutter , the Supreme Court held that “student body diversity is a compelling state interest that can justify the use of race in university admissions” at least to a limited extent. The Court recognized that the benefits of diversity in an educational setting included enabling students to better understand persons of different backgrounds, and that a diverse student body helped make classroom discussion “livelier, more spirited, and simply more enlightening and interesting”.
• Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll. , 600 U.S. 181 (2023): In Students for Fair Admissions , the Supreme Court held that Harvard College’s and the University of North Carolina’s admission policies, which gave preference to certain applicants solely based on their race, were unconstitutional under the Equal Protection Clause. The Court reasoned that the contested admission policies “further[ed] stereotypes that treat individuals as the product of their race, evaluating their thoughts and efforts—their very worth as citizens—according to a criterion barred to the Government by history and the Constitution”, thus contradicting the “core purpose” of Brown and the Equal Protection Clause.

You may want to consider one or more of the following prompts:

• Now, 70 years later, do you think that Brown’s promise of fully integrated public education has been achieved? If not, what else needs to be done?
• What does it mean to afford individuals “equal protection of the laws”?
• Brown concerned discrimination in school based on race. Do you think that students today face discrimination in school for reasons other than race? What can be done to change that?
• Are there circumstances under which the federal judiciary should not let popular views or positions influence its decision making? If so, what are they? If not, why not?
• When should the Supreme Court overrule prior cases, as it did when it overruled Plessy v. Ferguson in Brown?
• What types of diversity are meaningful in an educational setting?
• Are there other benefits like public education that we think are so important that they should be provided on an equal basis as a matter of right?
• In order to put their rulings into effect, judges often issue orders that require people or organizations to do certain things. Imagine you are a judge issuing an order to your school. What would you order to make your school a fairer place

Who May Enter : The contest will be open to high school students in New York. Students attending public, private, parochial, and charter schools, as well as home-schooled students of equivalent grade status, are all invited to participate. Note: Children of federal judges or federal judiciary employees are not eligible to participate.

Timeline for Submissions : Entries must be submitted by 11:59 p.m. on April 26, 2024.

Length and Format : Essays must be between 500 and 1000 words (2-4 double spaced pages). The essays must be double spaced and typed using size 12, easily readable font (e.g., Times New Roman, Garamond, etc.). Proper use of citations and bibliographies is not required, but will be credited during the judging. Citations and bibliographies are not included in the word count. Essays must be submitted electronically as a PDF to [email protected] . In the subject line of the email, please put your full name and “2024 Essay Contest Submission” (for example: Jane Smith 2024 Essay Contest Submission). Please submit the contest entry form, available here , as a separate PDF in your email. Please do not put your name on your essay.

Judging : Judging will be based on the following criteria:

• Understanding of Brown v. Board of Education and how the federal courts have interpreted and applied Brown since that decision was rendered
• Analysis of how the principles motivating the Brown decision and the Brown decision itself have influenced and continue to influence individuals, communities, and American society
• Clarity and effectiveness in expressing the theme
• Grammar, spelling, and composition
• First place: $1,000
• Second place: $400
• Third place: $100

Release Forms : Contest finalists will be required to submit a release form allowing the Second Circuit to publish their essays in print publications and on public court websites (student essays published on public websites or documents intended for circulation to the public will be identified only by students’ initials).

Disqualification : Providing false information, failure to adhere to contest rules, plagiarism, off-topic essays, and failure to meet the submission deadline are all grounds for disqualification.

Essay Contest Flyer

These are just a few suggested resources. Students are encouraged to utilize other resources they may find as well.

• Brown v. Board of Education
• United States v. Carolene Products
• San Antonio Independent School District v. Rodriguez
• Grutter v. Bollinger
• Students for Fair Admissions, Inc. v. President & Fellows of Harvard College

https://www.annenbergclassroom.org/resource/conversation-constitution-brown-v-board-education

https://landmarkcases.c-span.org/Case/8/Brown-v.-Board-of-Education

https://www.history.com/topics/black-history/brown-v-board-of-education-of-topeka

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• Student Contests
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• Courts of the Second Circuit
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2024 Justice For All: Courts and the Community Initiative

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Student Opinion

Should Colleges and Universities Get Rid of Legacy Admissions?

Is the practice of giving preferential treatment to applicants with family ties to alumni unfair?

By Jeremy Engle

Legacy admissions have been under renewed scrutiny after the Supreme Court struck down affirmative action across colleges and universities last June, banning considerations of race in applications.

Many selective colleges give a boost to the children or grandchildren of alumni during the admissions process, making them more likely to gain admission.

Is the practice of giving preferential treatment to applicants with family ties to alumni unfair? Or should it be preserved?

In “ Virginia Bans Legacy Admissions in Public Universities and Colleges ,” Colbi Edmonds writes about a law passed in March aimed at ending a century-old practice that some believe perpetuates privilege:

Virginia will end legacy admissions at public universities after Gov. Glenn Youngkin signed a bill on Friday banning the practice that gives applicants with family ties to alumni a boost. Under House Bill 48 , public universities in the state will be barred from giving preferential treatment to applicants based on their connections to not only alumni but to donors as well. That means universities can also no longer give an advantage to applicants whose relatives make donations to the school. Critics of such preferences have said for years that the century-old practice perpetuates privilege. The ban will notably affect the University of Virginia and William & Mary, which are among the country’s more selective public universities. Virginia Tech, another prestigious public university, already announced last year that it would no longer take an applicant’s legacy status into account in the admissions process. The law, which passed unanimously in the Virginia House of Delegates and the State Senate this year, will take effect July 1, after admissions decisions have been made for this fall. Mr. Youngkin, a Republican, said in a statement in January that he believed “admission to Virginia’s universities and colleges should be based on merit.” Virginia is the second state to ban legacy admissions, after Colorado, and similar legislation is being considered in New York and Connecticut, among others. State Senator Schuyler T. VanValkenburg, a Democrat who sponsored the bill, said he was pleasantly surprised by the bipartisan support for the ban. He said he hoped Virginia’s decision will lead other states to follow suit, which he said would help promote diversity in college admissions. “It’s kind of an indefensible policy, especially in light of affirmative action being declared unconstitutional by the Supreme Court,” Mr. VanValkenburg said in an interview. “There’s a lot of ways you can measure merit, but we know that legacy admissions is really not about merit at all.”

While there is growing bipartisan support for ending legacy admissions, the article notes that some are in favor of preserving the practice and oppose the Virginia bill:

But critics of such measures argue that there are adverse effects to banning legacy considerations and that minority students could actually benefit from having familial connections in higher education. There are also concerns about the impact on alumni donor relations if legacy admissions are no longer allowed. This year, an organization of conservative Virginia alumni known as the Jefferson Council expressed being split on the Virginia legislation. “We are of two minds,” James A. Bacon, the group’s executive director, wrote in an email. On one hand, he said, intergenerational families tend to be more loyal and generous to the university. “On the other, we support merit-based admissions based on character and academic achievement.” The group did not immediately respond to a request to comment on Sunday.

Students, read the entire article and then tell us:

Should colleges and universities get rid of legacy admissions? Is it unfair to give preferential treatment to applicants with family ties to alumni?

What’s your reaction to the Virginia bill ending legacy admissions at public colleges and universities in the state? The article notes that Virginia is the second state to ban legacy admissions, after Colorado, and that similar legislation is being considered in New York and Connecticut, among others. Should other states follow suit? Do you think many will?

Critics of legacy preferences argue that the century-old practice “perpetuates privilege” and that ending it will “help promote diversity in college admissions.” Which arguments from the article against legacy admissions are most convincing?

Others, however, warn that banning legacy considerations will have adverse effects, arguing that “minority students could actually benefit from having familial connections in higher education” and that “intergenerational families tend to be more loyal and generous to the university.” How persuasive is the case for preserving legacy admissions?

Gov. Glenn Youngkin, who signed the bill, said that “admission to Virginia’s universities and colleges should be based on merit.” Do you agree? What factors do you think colleges and universities should take into account when considering whom to admit?

Do you plan to apply to college one day? How might the end of legacy admissions affect you?

Students 13 and older in the United States and Britain, and 16 and older elsewhere, are invited to comment. All comments are moderated by the Learning Network staff, but please keep in mind that once your comment is accepted, it will be made public and may appear in print.

Find more Student Opinion questions here. Teachers, check out this guide to learn how you can incorporate these prompts into your classroom.

Jeremy Engle joined The Learning Network as a staff editor in 2018 after spending more than 20 years as a classroom humanities and documentary-making teacher, professional developer and curriculum designer working with students and teachers across the country. More about Jeremy Engle

Time in Elektrostal , Moscow Oblast, Russia now

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• Latitude: 55.79. Longitude: 38.46
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