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Harvard students and supporters marched through Harvard Square during a rally on Saturday to oppose the Supreme Court’s ruling against affirmation action.
In a conclusion to one of the most consequential Supreme Court sessions in many years, the Court released an opinion today on the Biden administration’s proposed plan to forgive up to $20,000 in federal student loan debt per borrower. After dismissing one case due to lack of standing from the plaintiffs, the Court voted 6-3 to block forgiveness in the second case (giving standing based on the servicer MOHELA).
This decision will have major implications for higher education policy. Here are the things that I will be looking for in the coming months and years:
Restarting student loan repayment was already going to be a nightmare, and this creates additional challenges. The first challenge is the sheer number of borrowers re-entering repayment. Roughly 43 million Americans have federal student debt, and the Biden administration estimated that about 20 million would have their loans completely forgiven by their proposal. I have little confidence that the Department of Education, student loan servicers, and colleges can smoothly handle 23 million borrowers that would have remained, let alone 43 million. Federal Student Aid badly needed additional resources to manage a return to repayment, but Republicans were only willing to provide the funds if it came with a rider blocking its use on debt relief. Since both parties agreed on no riders in last year’s omnibus spending bill, no additional funding was provided.
In an overlooked item due to yesterday’s important decision on college admissions, the Department of Education released information about how they plan to manage the return to repayment. ED plans to give a 90-day grace period for missed payments and is considering future grace periods. Needless to say, Republicans are not happy and may go to court to stop grace periods based on the agreement in this summer’s debt ceiling legislation.
How many borrowers are willing to start making payments? There is going to be a group of people who are livid about having to resume payments after not getting the loan forgiveness they were expecting. I am expecting a substantial group of borrowers to not make any payments until they get to the brink of default—which could take a while. These borrowers may still hold out hope for another forgiveness effort (more on that in the next section) and they may not proactively reach out to servicers to update their information if they have moved since March 2020. A particularly interesting group is the 20 million students who would have received complete forgiveness, as the frustration factor is likely higher among this group than among students who knew they would still have a balance remaining under this plan.
As a note, with income-driven repayment, students at least in theory should be able to start making some payments. But adding an expense back to the monthly budget is painful and income-driven repayment is still complicated to navigate. So there will be challenges even among people who are not as upset about this decision.
How will Democrats respond? The progressive wing of the Democratic Party has been pressuring the Biden administration to forgive all student debt and immediately pivot to using the Higher Education Act instead of the HEROES Act. That is likely not happening given today’s court decision. But a few moderate Democrats voted in favor of a Republican-led resolution disapproving of debt forgiveness and ending the repayment pause. The Biden administration will point to its expanded income-driven repayment plan, which could also face legal challenges in light of this decision. Free college and debt forgiveness were key issues in the 2020 Democratic presidential primary, and they will continue to be key issues in contested Democratic primaries for the next several years.
How will Republicans respond? By the time you read this, there will be plenty of press releases from Republican politicians celebrating the discussion. But there are still concerns about a future administration trying another avenue to forgiveness, particularly through income-driven repayment. There are some thoughtful efforts among Republicans to maintain income-driven repayment while reversing most of the Biden administration’s proposed changes. But Republicans are also seeking to limit borrowing for graduate students, which is something that I have been expecting for years.
This week’s Supreme Court decisions are likely to influence the direction of American higher education for years to come, and some of the influences are not going to be immediately obvious. But the items discussed above are going to play an outsized role in policy discussions for a good while.
rkelchen
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Sifting through the aftermath of a disastrous blaze. The romance that launched a thousand Supreme Court opinions. A poetic ode to a simple life, well lived. Tracing the arc of food writing. And examining the hidden costs of a particularly sensitive surgical procedure. Our favorites of the week, pulled from all of our editors’ picks.
Megan Greenwell | Wired | June 27, 2023 | 7,987 words
Megan Greenwell’s piece does what the best longform features do: It mesmerizes you with an opening so powerful and a story so compelling that you deliberately read it slowly, just to make it last. This piece—about a devastating fire at a branch of the National Archives and Records Administration that happened to contain records belonging to Greenwell’s grandfather—is nearly 8,000 words long, but the prose is so sharp and cinematic that you’ll wish it was longer. “The National Personnel Records Center fire burned out of control for two days before firefighters were able to begin putting it out,” she writes. “Photos show the roof ablaze, a nearly 5-acre field of flame. The steel beams that had once held up the glass walls jut at unnatural angles, like so many broken legs.” Even were it not set against a backdrop of the U.S. government, this would be a fascinating mystery: What or who started the fire and how do workers attempt to uncover precious facts from seriously damaged files? Did Greenwell’s grandfather’s records survive the blaze? Be sure to take it slow and let this story smolder. I’m certainly glad I did. —KS
Kerry Howley | New York | June 21, 2023 | 7,555 words
My husband sent me this story while I was reporting in Idaho last week, with a message that said, “Isn’t this by that writer you like?” The answer, reader, is yes. Kerry Howley’s 2022 story about anti-abortion activist Marjorie Dannenfelser was rightly named a finalist for a National Magazine Award—one of several nominations Howley’s work has received in the last several years—and I suspect this piece about Clarence and Ginni Thomas will be in the running for many, many honors. Whereas with Dannenfelser, Howley was shedding light on a powerful person who isn’t a household name, here she tackles two of the better-known political (yes, SCOTUS justices are political) figures in America. She does it without access to them, instead surveying pre-existing material on the Thomases with remarkable facility, mustering everything she needs, and nothing she doesn’t, to tell the story of their marriage. Take the seemingly mundane detail of Ginni telling a bunch of right-wing youth that her favorite charm on a bracelet Clarence gave her is a pixie because, to her husband, she is “kind of a pixie…kind of a troublemaker,” which Howley convincingly positions as a metaphor for the havoc Ginni has wreaked on American democracy. Consider this brilliantly constructed sentence: “They take, together, lavish trips funded by an activist billionaire and fail, together, to report the gift.” And that’s just in the first section! This piece is one for the ages in both substance and style. I mean, damn. —SD
Jeremy B. Jones | The Bitter Southerner | June 6, 2023 | 1,580 words
I have never before picked an obituary for our Top 5, but Jeremy B. Jones’ ode to his grandfather deserves recognition. At just over 1500 words, it’s not a particularly long piece, but it’s a particularly poetic one, and is enough to get to know—and respect—Jones’ Papaw. Ray Harrell lived a simple life on a little bit of land in Fruitland, North Carolina. To many, it would not be enough; for Harrell, it was plenty. After all, as Jones writes, he had “a reliable tractor and a fiery woman.” It was a good life because he appreciated what he had, was contented with his lot. Jones notes that these quiet lives often slip past unnoticed, “yet those are the lives in our skin, guiding us from breakfast to bed. They’re the lives that have made us, that keep the world turning.” A small essay about a simple life that I found hugely moving. —CW
Marian Bull | n+1 | June 15, 2023 | 3,978 words
In reviewing Rebecca May Johnson’s Small Fires, Marian Bull looks at how infusing recipes with introspection and experience begat the cooking memoir. What I loved about about this piece—besides spurring me to pick up Small Fires, which also appeared in our recent feature “Meals for One”—is that while Bull surveys chef memoirs, she hails Johnson’s book as one for the home cook, the self-trained enthusiast. “Johnson has inverted this form by writing a memoir of a recipe, rather than a ‘memoir’ with recipes,” she writes. Johnson looks at cooking as translation and recipes as a form of performance, which is comforting for someone like me who views a recipe as a guide: “The unpredictable ‘I that cooks,’ who resists the recipe again and again, generates new translations.” How inspiring and affirming to be invited to take a seat at this generous table where nothing is lost and everything is gained in translation. —KS
Ava Kofman | ProPublica and The New Yorker | June 26, 2023 | 8,601 words
It’s easy to think that “men trying to upgrade their dongs” is a journalism cheat code of sorts. Having written about them myself many years ago, I can assure you that it’s not. Pitfalls abound. Tone is everything. Jokes are easy; reserve is hard. (So is avoiding double entendres.) Yet, Ava Kofman manages to thread every needle in her stunning examination of the state of penile-enlargement procedures, which focuses primarily on issues surrounding the popular Penuma implant. She writes compassionately about the patients, not dismissing the complex psychological situations that led them to pursue surgery. She writes unblinkingly about the doctor who popularized the procedure, and whose practice seems at times to operate with all the care of a 30-minute oil change joint—and about the surgeon who “was doing such brisk business repairing Penuma complications that he’d relocated his practice from Philadelphia to an office down the street.” And speaking of unblinking, I dare you not to wince as she plays fly on the wall during an implantation; you may never hear the phrase “inside out” the same way again. This story may have drawn you in with its imagined salaciousness, but it delivers something far better: truth. —PR
What piece did our readers love most this week? One that makes clear that the kids are not all right.
Joseph Cox | Vice | June 20, 2023 | 2,111 words
Those looking for dirty deeds to be done seem to be going no further than the Comm, a series of Discord communities in which people order violence, including commissioning robberies for bitcoin, and organizing swats against vulnerable people for perceived slights and insults. For Vice, Joseph Cox infiltrated this vile, testosterone-fueled world of crime. —KS
This extraordinary profile of Clarence and Ginni Thomas—he a Supreme Court justice, she among other things an avid supporter of the January 6 insurrection—is a masterclass in everything from mustering archival material to writing the hell out of a story:
There is a certain rapport that cannot be manufactured. “They go on morning runs,” reports a 1991 piece in the Washington Post. “They take after-dinner walks. Neighbors say you can see them in the evening talking, walking up the hill. Hand in hand.” Thirty years later, Virginia Thomas, pining for the overthrow of the federal government in texts to the president’s chief of staff, refers, heartwarmingly, to Clarence Thomas as “my best friend.” (“That’s what I call him, and he is my best friend,” she later told the House Select Committee to Investigate the January 6th Attack on the United States Capitol.) In the cramped corridors of a roving RV, they summer together. They take, together, lavish trips funded by an activist billionaire and fail, together, to report the gift. Bonnie and Clyde were performing intimacy; every line crossed was its own profession of love. Refusing to recuse oneself and then objecting, alone among nine justices, to the revelation of potentially incriminating documents regarding a coup in which a spouse is implicated is many things, and one of those things is romantic.
“Every year it gets better,” Ginni told a gathering of Turning Point USA–oriented youths in 2016. “He put me on a pedestal in a way I didn’t know was possible.” Clarence had recently gifted her a Pandora charm bracelet. “It has like everything I love,” she said, “all these love things and knots and ropes and things about our faith and things about our home and things about the country. But my favorite is there’s a little pixie, like I’m kind of a pixie to him, kind of a troublemaker.”
A pixie. A troublemaker. It is impossible, once you fully imagine this bracelet bestowed upon the former Virginia Lamp on the 28th anniversary of her marriage to Clarence Thomas, this pixie-and-presumably-American-flag-bedecked trinket, to see it as anything but crucial to understanding the current chaotic state of the American project. Here is a piece of jewelry in which symbols for love and battle are literally intertwined. Here is a story about the way legitimate racial grievance and determined white ignorance can reinforce one another, tending toward an extremism capable, in this case, of discrediting an entire branch of government. No one can unlock the mysteries of the human heart, but the external record is clear: Clarence and Ginni Thomas have, for decades, sustained the happiest marriage in the American Republic, gleeful in the face of condemnation, thrilling to the revelry of wanton corruption, untroubled by the burdens of biological children or adherence to legal statute. Here is how they do it.
“Harvard’s and UNC’s admissions programs violate the Equal Protection Clause of the Fourteenth Amendment,” the U.S. Supreme Court declared in a ruling today.
The New York Times reports:
Chief Justice John G. Roberts Jr., writing for the 6-3 majority, said the two programs “unavoidably employ race in a negative manner” and “involve racial stereotyping,” in a manner that violates the Constitution. However, he added, universities can consider how race has affected an applicant’s life. Students, he wrote, “must be treated based on his or her experiences as an individual — not on the basis of race.”
Citing the 2003 case of Grutter v. Bollinger, and referencing Justice Powell’s decision in the 1978 case of Regents of the University of California v. Bakke, Roberts wrote:
The Grutter majority’s analysis tracked Justice Powell’s in many respects, including its insistence on limits on how universities may consider race in their admissions programs. Those limits, Grutter explained, were intended to guard against two dangers that all race-based government action portends. The first is the risk that the use of race will devolve into “illegitimate . . . stereotyp[ing].” Richmond v. J. A. Croson Co., 488 U. S. 469, 493 (plurality opinion). Admissions programs could thus not operate on the “belief that minority students always (or even consistently) express some characteristic minority viewpoint on any issue.” Grutter, 539 U. S., at 333 (internal quotation marks omitted). The second risk is that race would be used not as a plus, but as a negative—to discriminate against those racial groups that were not the beneficiaries of the race-based preference. A university’s use of race, accordingly, could not occur in a manner that “unduly harm[ed] nonminority applicants.” Id., at 341.
To manage these concerns, Grutter imposed one final limit on racebased admissions programs: At some point, the Court held, they must end. Id., at 342. Recognizing that “[e]nshrining a permanent justification for racial preferences would offend” the Constitution’s unambiguous guarantee of equal protection, the Court expressed its expectation that, in 25 years, “the use of racial preferences will no longer be necessary to further the interest approved today.” Id., at 343. Pp. 19– 21.
(e) Twenty years have passed since Grutter, with no end to racebased college admissions in sight. But the Court has permitted racebased college admissions only within the confines of narrow restrictions: such admissions programs must comply with strict scrutiny, may never use race as a stereotype or negative, and must—at some point—end. Respondents’ admissions systems fail each of these criteria and must therefore be invalidated under the Equal Protection Clause of the Fourteenth Amendment. Pp. 21–34.
(1) Respondents fail to operate their race-based admissions programs in a manner that is “sufficiently measurable to permit judicial [review]” under the rubric of strict scrutiny. Fisher v. University of Tex. at Austin, 579 U. S. 365, 381. First, the interests that respondents view as compelling cannot be subjected to meaningful judicial review. Those interests include training future leaders, acquiring new knowledge based on diverse outlooks, promoting a robust marketplace of ideas, and preparing engaged and productive citizens. While these are commendable goals, they are not sufficiently coherent for purposes of strict scrutiny. It is unclear how courts are supposed to measure any of these goals, or if they could, to know when they have been reached so that racial preferences can end. The elusiveness of respondents’ asserted goals is further illustrated by comparing them to recognized compelling interests. For example, courts can discern whether the temporary racial segregation of inmates will prevent harm to those in the prison, see Johnson v. California, 543 U. S. 499, 512–513, but the question whether a particular mix of minority students produces “engaged and productive citizens” or effectively “train[s] future leaders” is standardless.
Second, respondents’ admissions programs fail to articulate a meaningful connection between the means they employ and the goals they pursue. To achieve the educational benefits of diversity, respondents measure the racial composition of their classes using racial categories that are plainly overbroad (expressing, for example, no concern whether South Asian or East Asian students are adequately represented as “Asian”); arbitrary or undefined (the use of the category “Hispanic”); or underinclusive (no category at all for Middle Eastern students). The unclear connection between the goals that respondents seek and the means they employ preclude courts from meaningfully scrutinizing respondents’ admissions programs.
The universities’ main response to these criticisms is “trust us.” They assert that universities are owed deference when using race to benefit some applicants but not others. While this Court has recognized a “tradition of giving a degree of deference to a university’s academic decisions,” it has made clear that deference must exist “within constitutionally prescribed limits.” Grutter, 539 U. S., at 328. Respondents have failed to present an exceedingly persuasive justification for separating students on the basis of race that is measurable and concrete enough to permit judicial review, as the Equal Protection Clause requires. Pp. 22–26.
(2) Respondents’ race-based admissions systems also fail to comply with the Equal Protection Clause’s twin commands that race may never be used as a “negative” and that it may not operate as a stereotype. The First Circuit found that Harvard’s consideration of race has resulted in fewer admissions of Asian-American students. Respondents’ assertion that race is never a negative factor in their admissions programs cannot withstand scrutiny. College admissions are zerosum, and a benefit provided to some applicants but not to others necessarily advantages the former at the expense of the latter.
Respondents admissions programs are infirm for a second reason as well: They require stereotyping—the very thing Grutter foreswore. When a university admits students “on the basis of race, it engages in the offensive and demeaning assumption that [students] of a particular race, because of their race, think alike.” Miller v. Johnson, 515 U. S. 900, 911–912. Such stereotyping is contrary to the “core purpose” of the Equal Protection Clause. Palmore, 466 U. S., at 432. Pp. 26– 29.
(3) Respondents’ admissions programs also lack a “logical end point” as Grutter required. 539 U. S., at 342. Respondents suggest that the end of race-based admissions programs will occur once meaningful representation and diversity are achieved on college campuses. Such measures of success amount to little more than comparing the racial breakdown of the incoming class and comparing it to some other metric, such as the racial makeup of the previous incoming class or the population in general, to see whether some proportional goal has been reached. The problem with this approach is well established: “[O]utright racial balancing” is “patently unconstitutional.” Fisher, 570 U. S., at 311. Respondents’ second proffered end point—when students receive the educational benefits of diversity—fares no better. As explained, it is unclear how a court is supposed to determine if or when such goals would be adequately met. Third, respondents suggest the 25-year expectation in Grutter means that race-based preferences must be allowed to continue until at least 2028. The Court’s statement in Grutter, however, reflected only that Court’s expectation that racebased preferences would, by 2028, be unnecessary in the context of racial diversity on college campuses. Finally, respondents argue that the frequent reviews they conduct to determine whether racial preferences are still necessary obviates the need for an end point. But Grutter never suggested that periodic review can make unconstitutional conduct constitutional. Pp. 29–34.
(f) Because Harvard’s and UNC’s admissions programs lack sufficiently focused and measurable objectives warranting the use of race, unavoidably employ race in a negative manner, involve racial stereotyping, and lack meaningful end points, those admissions programs cannot be reconciled with the guarantees of the Equal Protection Clause. At the same time, nothing prohibits universities from considering an applicant’s discussion of how race affected the applicant’s life, so long as that discussion is concretely tied to a quality of character or unique ability that the particular applicant can contribute to the university. Many universities have for too long wrongly concluded that the touchstone of an individual’s identity is not challenges bested, skills built, or lessons learned, but the color of their skin. This Nation’s constitutional history does not tolerate that choice.
In her dissent, which Justices Kagan and Jackson joined, Justice Sotomayor writes:
Although progress has been slow and imperfect, race-conscious college admissions policies have advanced the Constitution’s guarantee of equality and have promoted Brown’s vision of a Nation with more inclusive schools. Today, this Court stands in the way and rolls back decades of precedent and momentous progress. It holds that race can no longer be used in a limited way in college admissions to achieve such critical benefits. In so holding, the Court 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. Because the Court’s opinion is not grounded in law or fact and contravenes the vision of equality embodied in the Fourteenth Amendment, I dissent.
The whole decision is here. It is expected to affect educational admissions policies and practices across the country.
The post Supreme Court Declares Harvard’s and UNC’s Affirmative Action Programs Unconstitutional first appeared on Daily Nous.
The debt ceiling legislation would end the pause on student loan payments on Aug. 30 at the latest.
Thomas Jefferson High School for Science and Technology in Alexandria, Va., instituted an admissions process that reserved spots for the top students at every public middle school in the area.
Universities are preparing for the possible end of race-conscious affirmative action.
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