@coase, my point is that the footnote supports the prevailing wisdom on CC. At least among the adult CC population. Your post implies otherwise.
The schools in the footnote wouldn’t want to divulge the race based information since some of them are defending discrimination lawsuits themselves. (But if they have the stats on the information they did provide, they likely have the other stats as well).
What’s at risk here for the private schools? They are private. They can do what they want right? If Fisher decision went against affirmative action, that by itself would not subject the private schools to any lawsuits… I suppose the only risk is that they could potentially lose some funding from state or federal programs that have to adhere to the new standard should the UT decision become law in Texas… and in this regard it would only impact at the margin private elite schools like Rice in Texas anyhow, if at all… is there a wider risk here?
@intparent: Point taken. There are two kinds of behavior on CC that are irksome to me. One is the insistence on making snarky comments whenever a study documents converntial wisdom. That was done here. It is always useful to have empirical work that vindicates the common wisdom. The other behavior that is irksome is the belligerent repetition of assertions that are not entirely accurate. This is not the correct thread for making that point. End of tangent.
I am just speculating. But could their students become ineligible for federal loans? Or might the 529 tax break no longer be applicable to those schools for students? Schools get research grants from federal entities, too. And of course there is the non-profit tax status of the college itself. Just thinking of ways colleges benefit from federal dollars or tax breaks. I have no idea if any of these might be jeopardized, but @Regulus7 brought up the question.
@Regulus7, reputational risk.
Private schools can do a lot legally, just as private individuals can, but do you expect someone who is racially biased to come out and say they are in a non-anonymous forum? There’s a reason why comments on anything related to race are far nastier on anonymous online forums than anywhere where the poster can be identified.
So would the schools have any interest in showing any numbers that could support any argument that they are racially biased?
Princeton, for one, is being sued by Asian applicants who claim racial discrimination.
That case has been decided. See:
@Regulus7 - that’s a great question. The answer is that the ruling for the plaintiff in Fisher would probably de facto also apply to private schools as well as public ones. Title VI of the Civil Rights acts prohibits institutions that receive Federal funding from engaging in racial discrimination, and a Supreme Court ruling in favor of Fisher on these grounds would be binding. Other than a few peculiar cases like Hillsdale College, no university (even ultra wealthy ones like Harvard, Yale, etc.) can afford to be cutoff from Federal research funding, Federal financial aid programs, or other Federal grants. It would essentially be a death sentence.
The reason I say it would only probably apply is that (1) it would depend on exactly how the ruling was written and on what grounds the case was decided (2) almost certainly the Obama administration and private colleges would look for clever ways to continue doing what they’re currently doing. In particular, I personally believe that you can assume the current administration would go right up to the edge of open defiance of the Court.
I dont think there are private rights of action under Title 6. Also the rulings of the SC are not binding to non parties they are precedent. There is no defiance of the court when someone is not a party to an action. The Kim Davis case is an example of defiance of the court. I dont think the Ivies will lose any sleep over this.
You are wrong on this part. Please trust me on this.
As to who can bring action and what constitutes defiance, you may be right or not. I don’t claim expertise. I don’t understand the difference between binding and precedent, but does it matter as far as the ultimate effect if the case is decided on broad grounds?
The Office of Civil Rights findings do not necessarily end the litigation. The plaintiffs may file their case in federal court and to my knowledge there are several Asian groups suing Harvard and other universities alleging discrimination who have already done so.
(In response to #27)
29 - Rulings of the Supreme Court are binding on non-parties. Imagine the Court deciding the same legal matters hundreds or thousands of times, just with a change of names of the parties.
Aside from the obvious issues of ‘fairness’ and ‘representation’ I think it introduces an impossible standard - namely that the Court should be the one to decide how an institution of higher learning decides to accept its students. I mean race and affirmative action are the issue in this case, but how about other ‘non academic’ considerations such as Legacy, Donors, Athletes, etc… Why can’t someone sue in the future and say “Hey Harvard you accepted Athletes with lower test scores and GPA than me… thats unfair… yada yada…” I just can’t see how SCOTUS can write a standard that exorcises the affirmative action considerations away from college admission decisions across the entire country. ?? can you ??
If the Court speaks to what the Constitution requires, it is binding on everyone. Federal funding makes it likely that if the Court, for example, says that using race as a plus factor in admissions violates the 14th amendment, that will impact virtually every college in the country.
I would bet a lot that the Ivys (and everyone else) will be watching closely as we head into round 2.
Tatin you are confusing your terminology. Rulings of the supreme court are not binding on non parties. They are precedents to be followed. Fact patterns etc vary from case to case SC holdings can sought to be applied via legal action to non parties if the facts are such that a precedent would be applicable. You also may want to look as to what private rights of action mean. Title 6 may only allow the government to file suit for alleged violations .
The Court can decide because that’s the law … Title VI of the Civil Rights Act of 1964 prohibits federal funds from supporting activities in which discrimination on the basis of race, color, or national origin occurs. It was passed to prevent schools, hospitals, etc. from discriminating against African-Americans. Currently, the Supreme Court has held that many “affirmative action” programs as currently constituted which take race into account do not violate Title VI, but those rulings are what are being challenged by Fisher.
An institution is free to discriminate on many other grounds. They can discriminate on the basis of intelligence, academic achievement, ability to dunk a basketball, or legacy status. There’s no law the prohibits that, and colleges do it all the time. Nobody has said that Duke basketball has to be “no cut” 
Also, as a partial correction/comment on @tiger1307’s post #29, Section 603 of Title VI appears to give private parties the right to sue Federal agencies to compel them to act in accordance with Title VI (or in this case, the Supreme Court’s hypothetical interpretation of that statute). Also, if another county clerk (not Kim Davis) refused to issue same-sex marriage licenses I think most people would colloquially characterize that as “defying” the Court’s decision even if it’s that’s not technically correct terminology. However, I am not a lawyer.
Fpr all intents and purposes, Supreme Court rulings are binding. The Ohio couple who won the right to same sex marriage didn’t just affect them, not just Ohioans, but couples all across the country.
Fact patterns can be different but if the Supreme Court rules that there can be no discrimination based on race in college admissions, that would apply not only to the University of Texas but to all universities. The ruling is not likely to be that broad, however.
So, in short, does the case (Fisher v. UT) say have the reach, to effect, highly selective private schools? While not my area of the law, my thoughts, and university general counsels I have spoken to, say—possibly.
Summarily, if UT policies are ruled discriminatory by the Supremes, the element of utilizing race in admission will be barred at all universities under the Civil Rights Act and the 14th Amendment’s Equal Protection Clause.
Conversely, if the Supremes hold that UT, as they place it, is not “narrowly tailored,” the consequences would be less severe. Or in other words, it says UT, has a very unique and specific fact pattern, but that doesn’t necessarily satisfy our means test. It could then also say to the Ivy Plus schools is that that your practice, i.e., holistic review, is already OK, and can continue. But, just my lousy 2 cents.
Well, not exactly. It depends on the basis for the ruling, but if it’s decided on 14th amendment Equal Protection grounds, then technically that applies only to states and their subdivisions, including state universities (and I suppose the service academies, by “reverse incorporation”). The 14th Amendment says “. . . nor shall any State . . . deny to any person within its jurisdiction the equal protection of the laws.” It doesn’t say “any private institution,” it says “any State.” There’s a “state action” requirement. As a constitutional matter, private institutions aren’t prohibited from discriminating because the 14th amendment doesn’t apply to them…
That’s why for private institutions you need to look at statutory law, like Title VI of the Civil Rights Act of 1964 which prohibits discrimination by “any program or activity receiving Federal financial assistance.” So if the Supreme Court were to broadly declare any consideration of race in college admissions to violate Equal Protection, that ruling would apply directly to state universities, but not to private colleges and universities. Then the argument would be that as a matter of statutory law (Title VI), the private institutions are not allowed to discriminate because they’re receiving federal funds. There is no private right of action under Title VI to enforce this against private universities; you can’t sue HYPS, etc. on this basis. But an adversely affected private party could potentially get judicial review of a decision by the Department of Education to award federal funds to one or more private colleges and universities that were engaging in admissions practices that the Supreme Court had declared to be discriminatory under the 14th Amendment. You’d have to sue the Department of Education (or some other federal agency), and the remedy would be to vacate the award of federal funding to the offending institutions. But if Harvard were to decide it really doesn’t need federal money, it wouldn’t be unlawful as a matter of federal law for it to continue to use race-based admissions. And this might not be so implausible. Only 15% or so of Harvard’s undergrads receive federal Pell grants, worth probably around $6K or so on average. That’s a drop in the bucket to Harvard with its $37 billion endowment. As are federal student loans; according to College Scorecard, only 3% of Harvard’s undergrads take out federal loans, and those that do graduate with a “typical” debt of $6,000. Again, small potatoes. The $600 million or so Harvard receives annually in federal research grants and contracts is another matter; that’s a considerable sum of money. But there’s at least a plausible argument that Harvard’s research is a separate and distinct “program or activity” from its undergraduate education “program or activity.” Title VI prohibits discrimination in federally funded "programs or activities; thus if a single institution engages in several distinct programs and activities and only some of them are held to be discriminatory, then arguably only the discriminatory ones need to be cut off from federal funding. That would be a pretty bold gamble on Harvard’s part. But hey, who knows?