Mirror of Justice

On the likely impact of the Supreme Court's rulings on race-conscious admissions

Christopher Connell, a writer for the Princeton Alumni Weekly, recently interviewed me for a story on the likely impact on Princeton University of the Supreme Court's rulings on race-conscious admissions policy in the Harvard and University of North Carolina cases. Some quotations from me appeared in the story, but (quite reasonably) he was unable to include everything I said. I'm therefore reproducing here his questions and my complete answers:

1. What do you think will be the impact of the Supreme Court’s ruling against explicit use of race in admissions decisions on the composition of Princeton’s student body and those at other highly selective U.S. colleges and universities? Will that be for good or ill?
   
   I suspect that Princeton and other universities will revise their practices to comply with the Supreme Court’s ruling that an applicant’s race or ethnicity, as such, may not be counted for or against him or her. These institutions will, however, continue to seek to admit classes in which students come from a wide variety of backgrounds and bring a diversity of experiences. I expect that Princeton will redouble its efforts to admit more students from less affluent backgrounds, especially those who have attained high levels of academic and other forms of achievement despite their comparatively modest family circumstances. The Supreme Court’s rulings in the Harvard and University of North Carolina cases forbid giving preferences to applicants based on race or ethnicity, but do not forbid preferences based on, for example, socio-economic class. To the extent that these rulings push universities to assess applicants as individuals, and not treat them as members of groups (be they so-called “overrepresented” or “underrepresented” groups), I think they are for the good. They won’t prevent Princeton or other colleges and universities from having diverse student bodies.

2. Virtually all colleges embrace efforts to increase the diversity of their students, faculty and staff. Do you think that this ruling will undercut that? Do you foresee a Princeton that is less racially and ethnically diverse?
   
   As I said, I do not expect the rulings in the Harvard and University of North Carolina cases to result in a less diverse student body. Indeed, more individualized assessments of candidates, especially taking into account the challenges they have faced (which could be the result of social class, race or ethnicity, disability, religion, or a range of other factors), is likely to result in what will be in important ways a more diverse student body. Among the respects in which the student body might be more diverse, is that there could be a broader mix of political, moral, religious, and cultural viewpoints than we currently have. You note that colleges are seeking more diversity of faculty as well as students. The Supreme Court decisions, though the cases directly concerned the admission of students, by their logic do apply to faculty and staff hiring. An area in which Princeton, like most other prominent private and public universities, needs improvement is the area of faculty viewpoint diversity. This was stressed by Dr. Cecilia Rouse, writing in the Princeton Alumni Weekly, when she was Dean of the Woodrow Wilson School. I hope it will be very much in our minds as we move forward in light of the Supreme Court’s rulings.

3. Should Princeton keep giving legacy applicants an advantage? Last year, 12.5 percent of undergraduates were legacy admits [presumably mostly with strong academic credentials, not marginal ones].
   
   The Supreme Court’s rulings do not forbid giving legacy applicants an advantage. My sense, however, is that the days of giving the children or grandchildren of alumni a leg up in admissions are numbered. Although it is not hard in the abstract to make the case for giving a small advantage to “legacies” in the admissions process, it’s harder to make the case in the concrete historical circumstances we have here, given the fact that Princeton (like virtually all of what the University regards as its “peer” institutions) has in its record certain forms of invidious discrimination (not only against racial minorities, but also against Jews, Catholics, and others). Will abandoning the legacy preference make a big difference? I doubt it. Princeton alumni are deeply devoted to their alma mater, and strongly encourage their children to aspire to attend Princeton and make it their first choice. Many, many alumni children are super high achievers and are going to do extremely well in the admissions process, even without a legacy preference. Most alumni children who are admitted will elect to attend. Frankly, I doubt that the legacy preference makes much of a concrete difference these days in admissions decisions; so its abolition, which I suspect is coming, will not dramatically alter the make-up of the student body. We’ll still have plenty of alumni children with strong family ties to Princeton.

4. Princeton today admits twice as many Pell Grant-eligible students (~20 percent) as it did 15 years ago. Is enrolling more students from lower-income families sufficient to maintain the current enrollment levels of students from underrepresented racial and ethnic groups?
   
   I don’t think or speak in terms of “overrepresented” and “underrepresented” groups. Our students are not here to represent groups. Sometimes I’ll hear people say that Jews, for example, or Asians are “overrepresented” at Princeton. I find that kind of talk deeply troubling. There’s simply no such thing as “too many Jews” or “too many Asians.” Yet it really isn’t possible to embrace the concept of “underrepresented” groups without validating the idea that some “groups” are “overrepresented.” Our policy should, therefore, be one that eschews this way of thinking. High achieving students come in all colors and from every ethnicity. We need to find them, encourage them to apply, assess them on an individualized basis (taking into account the challenges they’ve faced), select among them in a strictly non-discriminatory way, and do everything we can to encourage those we admit to enroll.

Political Catholicism Reborn? A symposium on Kevin Vallier's new book

Law and Liberty is hosting a collection of reviews of Prof. Kevin Vallier's new book, All the Kingdoms of the World.  Although I think -- and have, I confess, imposed this view on Prof. Vallier more times than is polite -- that the "Catholic Integralism" phenomenon is being treated, in some quarters of the legal academy, as more of a "thing" than, I think, it actually is, I think Vallier's book is excellent and also appreciated the collected reviews.  As the man says, "highly recommended"!

A Conference on Robert George's "Making Men Moral at 30"

I'm delighted to announce a conference on Robert George's groundbreaking book, Making Men Moral: Civil Liberties and Public Morality, on the 30th anniversary of its publication. The conference will be held November 30-December 1, and is being jointly organized by AEI, the Ethics & Public Policy Center, Pepperdine University, and the Project on Constitutional Originalism and the Catholic Intellectual Tradition at Catholic University. You can see the terrific program at the link.

I'm particularly pleased to contribute something to this conference, as Robby's book was a major influence on me as I thought about an academic career many years ago, shaping the way I thought about so-called "legal moralism" and many other questions in constitutional law and theory that came to occupy me in later years. And I continue to use the book to this day in my own classes as a model to introduce some of the foundational questions of governance that it discusses.

Steve Smith on Legal Education's "Bleak" Future

Prof. Steven Smith (San Diego) posted, a few days ago, a short essay at the Law and Liberty site called "A Bleak Future for Legal Education." Like everything Steve writes, the piece is engaging, learned, and provocative.  In this essay, Steve returns to a number of the themes developed in his great 2007 book, Law's Quandary, including the "malaise" that attends the fact that our legal arguments, premises, and practices presuppose an "ontology" that, really, "we" don't believe anymore.  He opens with Holmes's quote:

The remoter and more general aspects of the law are those which give it a universal interest. It is through them that you not only become a great master in your calling, but connect your subject with the universe and catch an echo of the infinite, a glimpse of its unfathomable process, a hint of the universal law.

Then, he outlines what he sees as two contemporary threats -- I'll shorthand them "cynicism" and "consumerism" - to the way of thinking the quote reflects, or presupposes. (A third threat, which purports to be a solution, is alluded to at the end.)  Stuart Banner, Aquinas, Chesterton, Darwin, Freud, "the Crits", The Demons, and Thrasymachus (et al.) appear along the way.

Like the man says, "highly recommended"!

Steve Smith on Legal Education's "Bleak" Future

Prof. Steven Smith (San Diego) posted, a few days ago, a short essay at the Law and Liberty site called "A Bleak Future for Legal Education." Like everything Steve writes, the piece is engaging, learned, and provocative.  In this essay, Steve returns to a number of the themes developed in his great 2007 book, Law's Quandary, including the "malaise" that attends the fact that our legal arguments, premises, and practices presuppose an "ontology" that, really, "we" don't believe anymore.  He opens with Holmes's quote:

The remoter and more general aspects of the law are those which give it a universal interest. It is through them that you not only become a great master in your calling, but connect your subject with the universe and catch an echo of the infinite, a glimpse of its unfathomable process, a hint of the universal law.

Then, he outlines what he sees as two contemporary threats -- I'll shorthand them "cynicism" and "consumerism" - to the way of thinking the quote reflects, or presupposes. (A third threat, which purports to be a solution, is alluded to at the end.)  Stuart Banner, Aquinas, Chesterton, Darwin, Freud, "the Crits", The Demons, and Thrasymachus (et al.) appear along the way.

Like the man says, "highly recommended"!

Approaching Equilibrium in Free Exercise of Religion Decisions in the Federal Courts

This is the second of three postings about the empirical studies that Michael Heise and I have conducted on religious liberty decisions in the lower federal courts. Today, I am sharing our findings about our most recent study of Free Exercise of Religion decisions. We have good news to share here, which is that equilibrium or equality is within reach for Free Exercise claimants from different religious backgrounds.

This article is titled Approaching Equilibrium in Free Exercise of Religion Cases? Empirical Evidence from the Federal Courts, was published in the Arizona Law Review, and is available in full (link here).

Our dataset for 2006-2015 religious liberty decisions consisted of 2,847 judicial participations (773 by district court judges and 2,074 by court of appeals judges). This dataset of these religious liberty decisions is unprecedented in its size and its inclusive­ness of judicial actors from multiple Article III courts. In addition to including multiple decisions from every one of the 13 federal courts of appeals, our dataset includes decisions from district judges in 90 of the 94 federal districts.

Before multivariate regression analysis, the religious liberty claim was favorably received by the ruling judge 37.7% of the time. In the 30 years of decisions in our studies, this success rate has remained remarkably stable, consistently falling within a two percen­tage point band. For the 1986–1995 period, that positive ruling rate was 35.6%; for 1996–2005, it was 35.5%.

The chart accompanying this post sets out the religious identities represented in this study, by percentage of observations.

Unfortunately, as scholars and observers have long noted, America’s history of religious tolerance has been blemished by inequality and intolerance, with certain religions favored by political and judicial recognition, while other religions have been disadvantaged and left unprotected by the courts against majoritarian demands. Indeed, in our prior study for 1996–2005—during the period leading up to and following 9/11—we found that Muslims were experiencing a dramatic deficit of success in free exercise claims, succeeding at only about half the rate of other religious claimants.

But the past need not predict the future. For the most recent period we studied, 2006–2015, things appear to be moving toward that aspirational point where claimants from most religious backgrounds across the spectrum of religious experience in American life suffer no systematic disadvantage in seeking accommodations for religious exercise. With shrinking exceptions, judges of the federal courts of appeals and district courts appear to be adjudicating constitutional and statutory religious exercise claims with even-handed impartiality. Claims by Catholics, Mainline Protestants, Baptists, Seventh-day Adven­tists, Mormons, Muslims, and others did not achieve success or experience failure at a significantly different rate than for claims of the same type made by others.

The Brittanica Dictionary defines “equilibrium” as “a state in which opposing forces or actions are balanced so that one is not stronger or greater than the other.” The followers of one religion should neither enjoy a greater probability to prevail nor suffer a disadvantage in seeking state recognition of religious practices, when such unequal results are based on religious identity of the follower or the cultural dominance of that religious tradition. If religious liberty in America is to be genuinely available in practice, as well as in theory, it must mean that every person of every faith may expect equal consideration when presenting a demand for accommodation of religious exercise against governmental restrictions.

What prompted religious liberty adjudication to move in this encouraging direction? As with last week’s posting on Establishment Clause decisions, we find that Supreme Court clarification of the law appears to have made a substantial difference.

For example, the Supreme Court’s 2006 decision in Gonzales v. O Centro Espirita Beneficiente Uniao do Vegetal, 546 U.S. 418 (2006), provided the tools for loosening the grip of stereotypes. This decision held that the government could not preclude a religious sect from sacramental use of a hallucinogenic substance by the “mere invocation” of a general prohibition on nonmedical use of narcotics. By requiring an individualized case-specific scrutiny that focuses on the religious claimant’s particular attributes, the O Centro decision encourages the judge to abandon stereotypical generalizations and engage in a differentiated and individualized treatment of each claim.”

In this way, a court instead may better appreciate the character of the claimant’s religious practice and the nature of the requested accommodation. To undertake that examination, the judge should learn about each claimant’s faith perspective objectively and rigorously, but also sympathetically, thereby substituting new information and understanding for implicit beliefs. See also Holt v. Hobbs, 574 U.S. 352, 361–62 (2015) (directing courts to evaluate on whether the government has substantially burdened a particular religious exercise rather than other forms of religious exercise in which the claimant might engage, thus requiring courts to focus on the specific nature of a particular religious exercise).

Additional evidence in our study supports this analysis. The independent variables in our study that do achieve statistical significance strongly and comprehensively—Case-Type variables—are precisely those that should correlate with the outcome of religious liberty disputes. Not every free exercise or related claim is positioned to be positively affirmed in every context. And we find that the likelihood of success does vary by case category. Indeed, of our 12 Case-Type variables, 8 are significant, namely Public Secondary and Higher Education, Private Education, Religious Meetings, Religious Expression, Zoning, Prisoner, Exemption from Anti-Discrimination Laws, and Criminal Defense.

The remarkably comprehensive and robust signifi­cance of our Case-Type variables dovetails with doctrine to advance the equilibrium of religious liberty for diverse religions. Rather than the case turning on noncontextual and perhaps implicitly biased views of a particular religious claim, the contextual approach demands a deeper dive into the nature of the religious claim and a fine-tuned assessment of the government’s claim of an overriding public interest. We would expect, then, that some contexts are more likely to pose particularly troubling invasions of the government into private religious behavior, while others are more likely to implicate a compelling public interest in preventing harmful behavior.

Although the promised land may be in sight, we are not yet there. Significant advantages (for Native Americans and Budd­hists) and disadvantages (for Orthodox Jews and Rasta_­farians) for a small number of claimants demonstrate that work remains to be done. And the troubling indication that judges may look more favorably on claims by coreligionists belies any pretense that impartial adjudication has been fully achieved.

Through the rise of cultural tolerance, a deepening understanding of the sincere beliefs of others, and conscientious judicial attention to religious claims and countering implicit bias, the courts may be moving us closer to that ideal of robust and widely enjoyed religious liberty.

Empirical study of religious liberty decision in the federal courts: The Establishment Clause cases

One of the scholarly hats that I wear is that of an empirical researcher on religious liberty decisions in the lower federal courts. I have been greatly blessed over the past couple of decades to collaborate with Michael Heise of Cornell on this work. We have now published our most recent findings through three successive decades of religious liberty decisions, in three journal articles that have been published within the past several months.

I’ve been encouraged to share some of what we’ve found here on Mirror of Justice. I’m planning to post separately on each of our three works in the coming week or so.

I begin today with our study of Establishment clause decisions in the federal district courts and courts of appeals from 2006 through 2015. This article is titled Cracks in the Wall: The Persistent Influence of Ideology in Establishment Clause Decisions, was published in the Arizona State Law Journal, and is available in full (link here).

What has been most distinctive – and not in a good way – about our observations of Establishment Clause cases over multiple decades has been the sometimes dramatic and still persistent partisan divide among the judges, based on the party of the appointing president.

Now in our other empirical work and based on my study of the literature, let me emphasize that I do not share the view that the evidence supports a general critique of the federal courts on partisan grounds. To the contrary, only a few types of cases have shown both a statistically significant and a substantial size discrepancy in how judges appointed by presidents of different parties resolve disputes.

Indeed, we begin our most recent article by noting that the last wall of the judiciary held during the partisan political storm following the 2020 presidential election. In the federal courts, Donald Trump faced defeat after defeat, dozens of times. An impartial and non-partisan federal judiciary was having none of his unsupported claims of election fraud or his extreme requests to disenfranchise millions of voters. Judges appointed by the presidents of his own party, including judges appointed by President Trump himself, rejected in scathing terms the claims that he and his supporters raised.

As we say in the article, however, now having been reminded that a non-partisan judiciary is essential to preserve the rule of law, we should be all the more distressed when we observe federal judges returning to partisan corners on another matter.

In our most recent iteration of our empirical examination of religious liberty decisions in the lower federal courts, we found persisting evidence of a partisan divide. Holding all other variables constant, Democratic-appointed judges were predicted to uphold claims challenging government conduct on Establishment Clause grounds at a 45.1 percent rate, while the predicted probability of success fell to 33.0 percent before Republican-appointed judges.

Importantly, however, this was a substantial narrowing of the partisan gap from our study of the preceding period of 1996-2005, in which we had found that a Republican-appointed judge would accept an Establishment Clause claim only 25.4 percent of the time, while a Democratic-appointed judge would accept the claim at the significantly higher rate of 57.3 percent. Thus, for the earlier period of study, an Establishment Clause claimant’s chances for success were approximately 2.25 times higher before a judge appointed by a Democratic President than one appointed by a Republican President. By the next ten-year period, the Establishment Clause claimant advantage before a Democratic-appointed judge had fallen to about one-third higher than before a Republican-appointed judge.

So what accounts for this? We have suggested that the source of a partisan divide may be found in the absence of constraining legal doctrine that leaves judges without clear guideposts in resolving Establishment Clause disputes. But the Supreme Court has been modifying that doctrine in recent decades. And those stronger legal controls are making a difference. When the Supreme Court sets forth clearer rules for Establishment Clause disputes with less ambiguous standards, greater stability in decisions with less subjectivity followed.

For our most recent study of the 2006-2015 period, we explored the influence of the Supreme Court’s decision in Arizona Christian School Tuition Organization v. Winn, 563 U.S. 125 (2012). In Winn, the Supreme Court employed a narrowed test for judicial standing to deflect Establishment Clause challenges by a group of taxpayers against a state program allowing tax credits for contributions to qualifying non-profit organizations including religiously-affiliated schools. Observing that any funds received by the religious schools was because of the decisions of a taxpayer to contribute to the organization, the Court majority ruled that the case involved private action rather than state activity

The Supreme Court’s 2011 decision in Winn decision narrowed standing and thus reduced the occasions for a judicial finding of an Establishment Clause violation. Winn is a landmark decision that meaningfully redirects Establishment Clause juris­prudence.

And, looking at the lower federal courts in deciding Establishment Clause challenges, our variable for Winn was significant at the 99 percent confidence level and substantial in effect. For the 2006-2015 period, holding all other independent variables constant in our Party-of-Appointing-President model, our best estimate was that the success rate for Establishment Clause claimants fell from 59.7 percent to 15.8 percent after the Supreme Court decided Winn. The impact was quite dramatic, a decline of more than 40 points or nearly three-quarters.

In sum, the Supreme Court’s change of doctrinal course in Winn appears likewise to have changed the outcome course of Establishment Clause decisions in the lower federal courts. No other factor that we have explored has produced such a marked change in predicted like­lihood. This single precedent may have been a game-changer for Establishment Clause decisions in the lower federal courts.

In other words, yes, the law does matter.

Next post will be on the Free Exercise cases, where the news is good, although that must be tempered with fears of changes on the horizon.