Courts

The Slippery Slope Of Ending Affirmative Action Has Moved On To Its Next Target: Women And 'Proxies For Diversity'

I don't think they know how close to the sun they are flying.

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Who would have thought that getting rid of affirmative action — a program that (at least in the public imagination) benefits Black applicants — would spill over into lawsuits aiming to dismantle advantages given to other minority groups? Well, me, for one.

Turns out, I was right. Not even a week after the Supreme Court basically ended affirmative action for minorities (they left affirmative action for white men in place —  legacy admissions — but that could be next on the chopping block), America First Legal is already up to the good fight of attempting to enforce the Harvard and North Carolina decisions in the broadest way possible. From Reuters:

Law schools that give preferences to minorities and women in admissions and hiring risk getting sued by America First Legal, the conservative legal group warned in a letter to 200 U.S. law schools following last week’s U.S. Supreme Court decision on affirmative action.

“You must immediately announce the termination of all forms of race, national origin, and sex preferences in student admissions, faculty hiring, and law review membership or article selection,” the letter said, adding that law schools “must” announce policies prohibiting preferential treatment before the start of the school year.

America First Legal, a nonprofit group headed by former Trump adviser Stephen Miller, said on its website that it sent the letter threatening to sue the law schools if they extend any “discriminatory preferences” based on race, gender or national origin. The group also said decisions based on factors in an applicant’s biography that could serve as a proxy for race—such as socioeconomic status—is also unlawful.

If your first impression upon reading this was that America First’s statements are a little broader than the Supreme Court decision would suggest, well, duh. All 230+ pages of the Harvard & UNC opinion make no mention of law review membership or article selection, but give an inch, take a mile is a staple conservative strategy at this point. Don’t be surprised when 303 Creative‘s free speech loophole for discriminating against protected classes morphs into some PR team fabricating a case that aims to bring back “No Blacks, No Jews, No Irish” signs on free association grounds. America First already sent this threat to 200 law schools — I’ll give it a week before they send it to a bunch of the feeder firms that recruit from the schools with the words “Try Us” attached to a sticky note.

Their threat to sue over proxies for race like socioeconomic status makes sense and is to be expected, but good luck. Woe to the one that informs them how many different criteria act as proxies for race! Sure there’s socioeconomic status, but there’s also being a first-generation lawyer or college attendee (54% of first generation college attendees are minorities). And, here’s the fun part! White folks aren’t unraced people! If the impending lawsuit against legacy admissions makes the inroads required to prove that legacy status is really just a proxy for whiteness (~70% of Harvard’s legacy admissions are white), the sky is the limit for what other “factors in an applicant’s biography” could be interpreted as racial proxies. Trying to curry favor with admissions by mentioning your love of golf? American golfers were 77% white and 80% men back in 2016 and I doubt the numbers have diversified that much. Rowing? Seventy-seven percent of female rowers are white women, so that’s a no go. Not to mention that, given the $500k bribe Lori Loughlin paid to pretend her kids were good at rowing so they could get in to University of South California, it’s probably an indicator of socioeconomic status as well.

Wanna know why this is the fun part? Because at some point, this will become a poison pill and wealthy whites are going to want to push back. Take legacy admissions, for example. Being the son of Justice Breyer could have been the reason that Michael Breyer made it off the waiting list and into the Stanford class of 1999. And while there is no case that grants poverty the status of a being a protected class… 76% of millionaires are white. You get what I’m putting down? Having millionaire parents is a socioeconomic status that could be read as a proxy for whiteness that’s about as predictive as some kid playing golf or rowing. I don’t think the proxy game is a battle American First Legal, and their donors, are prepared for.

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Conservative Legal Group Threatens To Sue Law Schools Over Racial Preferences [Reuters]

Chris Williams became a social media manager and assistant editor for Above the Law in June 2021. Prior to joining the staff, he moonlighted as a minor Memelord™ in the Facebook group Law School Memes for Edgy T14s.  He endured Missouri long enough to graduate from Washington University in St. Louis School of Law. He is a former boatbuilder who cannot swim, a published author on critical race theory, philosophy, and humor, and has a love for cycling that occasionally annoys his peers. You can reach him by email at cwilliams@abovethelaw.com and by tweet at @WritesForRent.

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