Supreme Court strikes down affirmative action in college admissions

The US fought a civil war with the entities owning slaves. But reparations to slaves and their descendants is a separate issue from affirmative action.

No. Why would that have had any impact on their ability to later buy a home? It didn't change anything over the long term.

I am not a lawyer, but I worked on a project at Facebook years ago that touches on the underlying case law here. I spent a full year of my life bashing my head against opaque legal precedents to understand how to build a product that met legal requirements and user needs. Maybe this comment will prove useful in distilling some of the nuance here so you don’t have to spend 12 months of your life doing what I did.

This decision confirms a nearly-unanimous legal consensus that existed before this ruling about the legality of disparate treatment vs disparate impact.

Disparate treatment is enshrined as illegal in other legislation like the fair credit and lending act. It basically states that the use of protected class data for most use cases is illegal. I know the most about how this is interpreted in the context of private companies, but my understanding is that the embargo on the data use is much broader.

Disparate impact, by contrast, is a legal theory without much case law to support it, but it asserts that what is illegal is not the use of the protected class data, but unequal outcomes.

This is super thorny territory. On the surface, disparate treatment (which again, is what the court upheld here) appears to only reinforce the racist, sexist, unequal status quo. And personally, I agree, but it at least prevents overt discrimination on the basis of race, sex, and other important human characteristics. The law right now makes it illegal to outright say that you are treating someone else differently on the basis of those traits. It doesn’t prevent all the other ways to still be racist and sexist and awful, though.

So you might say, let’s go with disparate outcome, then! And this is indeed what I first thought. But there are huge problems here, too. First, the only way to ensure that outcomes are equal is … to measure and report on the very traits we think are sensitive. This wouldn’t just be invasive, it would entrench the collection and measurement of this information. I can think of a lot of ways that bad actors could misuse petabytes of accurate racial demographic information in ways that would make current ML-based inferences and regression correlations laughably indirect.

Then there’s the issue of whether or important things in our society should be equal at all. Take the example of sex and employment. There are professions that are heavily male or female dominated. How would you feel if a colleague of the opposite sex with no training in your discipline was offered 2x as much compensation as you to perform the same task because society insisted that your profession have exactly equal representation? I think of myself a bit of a bleeding heart liberal, but I don’t think that’s a desirable outcome.

And then there are the second and third order effects to consider. Is the fact that most commercial truck drivers are men a reflection of different preferences, social norms, or something altogether different? I have no idea and I’m not about to go all Charles Murray and act like I do.

My goal in writing such a long post isn’t to make an apologist defense for what seem to me a clearly socially regressive finding from the Supreme Court, just that finding a better alternative is really, really hard.

So let’s not get discouraged by this setback. Let’s find a better alternative and get that written into law.

Back in 2009 I thought the tea party and occupy Wall Street crowds would realize they were opposite sides of the same coin. I thought if both sides came together maybe we’d see some material change. But no, the powers that be divided them apart and convinced each the other was the real enemy. Same as it ever was.

> Also god damn I hate this supreme court for overruling their own decisions. Even the ones I would personally benefit from. This is going to ruin the court in the long run for partisan bullshit. If going to the court twice for the same issue can get you different decisions then the ruling of the court means absolutely fucking nothing. You might as well just continue your affirmative action program because the next time the court makeup might be different and they'll change their mind again.

> This was already decided forty years ago

If the US Supreme Court never overturned its decisions, these decisions would still be in force:

- laws criminalising private consensual same-sex activity are constitutional (Bowers v Hardwick, 1986–overturned by Lawrence v Texas in 2003)

- miscegenation laws do not violate the 14th Amendment (Pace v Alambama, 1883–overturned in part by McLaughlin v Florida in 1964 and fully by Loving v Virginia in 1967)

- legally enforced racial segregation does not violate the 14th Amendment (Plessy v Ferguson, 1896–effectively overturned by Brown v Board of Education in 1954)

- racial segregation in public schools is constitutional (Cumming v Richmond County Board of Education, 1899–also overturned by Brown v Board of Education)

- states have the constitutional right to ban racially integrated private educational institutions (Berea College v Kentucky, 1908–also overturned by Brown v Board of Education)

- it is constitutional to execute juvenile offenders who were 16 or 17 at the time of their crime (Stanford v Kentucky, 1989–overturned by Roper v Simmons, 2005)

- it is constitutional to execute the intellectually disabled (Penry v Lynaugh, 1989–overturned by Atkins v Virginia in 2002)

- it is constitutional for public schools to force students to salute the flag and recite the Pledge of Allegiance, even if they have a religious objection to doing so (Minersville School District v Gobitis, 1940–overturned a mere three years later by West Virginia State Board of Education v Barnette, 1943)

- labor laws which impose limits on working hours are unconstitutional (Lochner v New York, 1905–never explicitly overturned, although a series of 1930s decisions effectively did so)

- minimum wage laws are unconstitutional (Adkins v Children's Hospital, 1923–overturned by West Coast Hotel Co. v Parrish, 1937)

- child labor laws violate children's constitutional right to work (Hammer v Dagenhart, 1918, and Bailey v Drexel Furniture Co, 1922–overturned by United States v Darby Lumber Co, 1941)

If the principle "the Supreme Court should never overturn its past decisions" was accepted–the US would be a very different country today. Even if you only want to apply that principle to "established precedent" – Pace v Alabama was law for over 80 years, so if that principle was seriously followed, interracial marriage bans might well still exist in the US today.