This summer and fall, Donald Trump’s administration launched a multi-pronged attack on diversity in higher education, deploying lawsuits and cutting funding for minority-serving institutions, particularly those with high populations of Hispanic students.  

In June, a group of conservative plaintiffs took aim at the federal program that offers funding and support to Hispanic-serving institutions, or HSIs. The Department of Justice is declining to defend the program in court, a move that breaks with tradition and increases the lawsuit’s chances of success. 

In September, the Department of Education redirected $350 million in federal funding for HSIs to other priorities, like charter schools and American history education. As in the lawsuit, the Trump administration argued that sending this money to schools that primarily serve Hispanics would be racial discrimination. 

The latest campaign in Trump’s war against “DEI” has the potential to devastate universities that define themselves through their service to underprivileged minorities. It also could pose a threat to the financial survival of the university system as a whole. 

As the Washington Monthly noted this fall, Hispanic students are the main growth population in a time of enrollment slump. With the overall student population declining, the federal government could be encouraging colleges to better serve an underprivileged group while preserving their own bottom line. Instead, it’s punishing them for doing so, reasoning that to target any particular ethnic or racial group—for any reason—is illegal discrimination. 

Beyond that, what would happen to higher education and the law if it became widely illegal to acknowledge race? To understand these cases and the future they could lead to, we spoke with Reginald C. Oh, who teaches constitutional law at Cleveland State University. A Monthly contributor, Oh is nationally known for his expertise in what the Constitution says about race.  

This interview has been edited for clarity and brevity. 

RW: So, Reggie, hi. First off, there’s this lawsuit against the Hispanic-serving institutions program, which the Department of Justice is declining to defend. Can you talk us through what the plaintiffs, the state of Tennessee and Students for Fair Admissions, are saying? 

RO: Okay, well, it really boils down to their argument that the HSI program is “illegal discrimination” in violation of Students for Fair Admissions v. Harvard, the Supreme Court’s decision from 2023 that struck down affirmative action. [Students for Fair Admissions was involved in both cases.] That’s the rationale both for the lawsuit and for the Trump administration saying, “Well, we don’t want to defend the lawsuit, because we also believe the program is illegal.”  

RW: Illegal how? 

RO: So that’s the key, right? When they say it’s illegal discrimination, what they’re really arguing is that it’s unconstitutional discrimination under SFFA v. Harvard. They’re substituting the word “illegal” for “unconstitutional,” which is a rhetorical move and an inaccurate statement of law. SFFA v. Harvard dealt solely with the admissions process, and whether race could be used as a criterion in admitting students. This issue has nothing to do with admissions or individual merit—it has to do with funding for schools that have a certain number of Latino or Hispanic students. [To be federally recognized as an HSI, a school must have at least 25 percent Hispanic students.] And that’s absolutely an open question.  

RW: Just to remind us, what part of the Constitution did SFFA v. Harvard say that affirmative action violated?  

RO: The Equal Protection Clause of the Fourteenth Amendment, which was intended to protect the rights of formerly enslaved people after the Civil War. It says that states can’t deny the equal protection of the law to any person within their jurisdiction. The Court in SFFA v. Harvard held that the use of race in admissions was unconstitutional discrimination against Asian-American students in violation of equal protection.  

RW: What do you think about the norm-breaking aspects of this particular case? The federal government isn’t defending its own program, hoping it leads to the program’s demise. Still, this was duly passed by Congress. Are there any concerns about a future where, if you’re a president saddled with a program you don’t like, you invite a lawsuit and then sit back and do nothing? 

RO: The Trump administration’s refusal to defend the lawsuit is unprecedented. Their attempt to justify their inaction by saying, “We’re not going to defend the law because we agree with the plaintiffs,” raises serious separation of powers issues. We’re talking about Congress passing a statute that tells the executive branch, “Distribute these funds to those minority-serving schools,” and so when the president refuses to defend the law in the lawsuit, what he is actually doing is defying Congress. 

RW: Don’t presidents sometimes decline to enforce a particular law? And isn’t that a prerogative that’s been under debate, but there’s certainly precedent for? In what way is this different from President Obama’s DACA program (Deferred Action for Childhood Arrivals), which gave people who were in the country illegally a chance to stay?  

RO: Yeah, so those raise two separate issues. DACA is really about the president creating his own program, right? But creating a program like DACA is considered lawmaking or legislation, which is the job of Congress, not the president. The job of the president is to faithfully execute the laws enacted by Congress. Congress didn’t create DACA, though, Obama did. So, the legal fight over DACA was about whether the president had the authority to create that kind of program without congressional approval. 

The HSI case is completely different, because Trump does have congressional authorization to distribute funds to eligible institutions. In fact, by law, Trump is required to distribute the funds. The Constitution doesn’t say the president may execute the laws enacted by Congress only if he thinks it’s a good idea; it says the president shall or must execute congressional programs. So, what’s the legal basis for Trump’s refusal to distribute the funds?   

RW: This makes me want to get back to something in this lawsuit. The plaintiffs are saying that these minority-serving programs are illegal under the SFFA v. Harvard decision. They’re arguing that the precedent, which outlaws affirmative action in admissions and says nothing about anything outside of admissions, should also apply to these programs. Do you think the Supreme Court will be favorable to this argument about what it was really saying in its own decision? 

RO: Honestly, yeah, I think they would be favorable to it. The Roberts Court is pretty hostile to race conscious policies. However, I don’t think you can say the outcome is written in stone, especially since the HSI issue is not about college admissions and individual merit, but about serving disadvantaged institutions that serve disadvantaged populations.  

RW: Okay, let’s move to September. The Trump administration announced that it would withdraw approximately $350 million in funding, the vast majority of which was going to HSIs. Some of it is being redirected to charter schools. Some is being sent to American history and civics grants. Some of it—somewhat confusingly, given the administration’s espoused views on race—is being sent to historically Black colleges and universities as part of a one-time infusion of upwards of $400 million. What was the reasoning there? 

RO: Well, in refusing to distribute the funds to HSIs, Trump is claiming to do so would be illegal DEI under SFFA v. Harvard. In diverting the funds to other programs like charter schools, Trump doesn’t really offer any reason or justification other than he’s the president. 

I want to explain further why Trump’s claim about “DEI is illegal discrimination” doesn’t make any sense. Even if a law is technically discrimination because it’s race conscious, that doesn’t make it automatically “illegal.” There’s another step involved called strict scrutiny [a very high standard of proof] in which the government can argue that the use of race was necessary to achieve a compelling interest. If they can do that, then the discrimination would be legal. Trump, however, never mentions the second step.  

RW: Can we touch a bit on the future this is creating? You know, if we’re in a world where it is illegal discrimination to have a program or to have funding that names a group of people, what happens long term? 

RO: In the scenario where the argument that it is all illegal discrimination wins, the future is race-blind policies about basically everything. You wouldn’t be able to consider race in any aspect of U.S. policy making, federal, state, or local.  

It may seem implausible, but the ultimate implication is that race as a concept gets eliminated from political and legal discourse. Think about it. After SFFA v. Harvard, some schools adopted policies barring admissions officers from knowing the race of applicants to ensure a “colorblind” process. But don’t people’s names identify their race? Asian names certainly do. So now admissions officers can’t know the names of applicants? And what about student essays—they now can’t write about their life experience if it would identify their race, right? You see where this goes. We’d end up in a world where even thinking or writing about race would be deemed dangerous because it could lead to “illegal discrimination,” and race functionally would no longer exist.  

Now think about the implications of all that.  

RW: The Supreme Court did mention that this is something you still could do—write an essay about your life experience that mentions race. 

RO: Yes, Roberts did say that. But Trump’s “any consideration of race is illegal discrimination” argument simply ignores that part of Roberts’s opinion. It’s like Trump is telling Roberts, I know you didn’t really mean that and so I’m just going to pretend that part doesn’t exist.  

RW: This leads to a broader point, as you’ve mentioned to me, with some historical parallels to the era of racial segregation in America. If you make law and policy unable to acknowledge something that is a fact in the real world, what kind of scenario does that create? Law and policy are denying realities on purpose, pretending they don’t exist so as to enforce a desired outcome, but without stating it. 

RO: That’s absolutely right. The goal of erasing race out of policymaking is ultimately to deny the reality of existing racial inequality, racial disparities, and racial segregation in K-12, in higher education, and in housing. Think about it. If we can’t consider or count race, then how can we measure and document the racial disparities we know exist? We can’t, and we’d be forced to pretend that racial disparities don’t exist and be unable to address them. And according to the Trump, it’s the Equal Protection Clause which requires this, which is bizarre, even absurd.   

RW: It’s upside down. 

RO: Yeah, we’re in bizarro world with a bizarro Equal Protection Clause in which equity violates equal protection, and racial inclusion or integration is illegal discrimination. If integration is illegal under equal protection, doesn’t that mean segregation is legal? Yeah, it’s absolutely reversed. It’s unequal protection, not equal protection. 

Bringing it back to HSIs, to be eligible for funding, schools must be at least 25 percent Hispanic and serve low-income students. In alleging that the HSI program is “illegal discrimination,” Trump’s goal is to end a policy assisting disadvantaged Hispanic serving colleges. If a law seeking to end racial inequality violates equal protection, then what the Equal Protection Clause protects is racial inequality.  

You know Bizarro, right? Go look up Bizarro Superman. 

RW: I don’t know Bizarro Superman. Oh, my god. [The WM editor is looking at a picture of Bizarro, a zombie clone of Superman who is his opposite in every way—nourished by kryptonite, weakened by sunlight.] 

RO: Yeah, yeah. That’s it. The Trump administration’s Bizarro Constitution.  

The post The Quiet War on Hispanic-Serving Colleges appeared first on Washington Monthly.

Zohran Mamdani, the mayor-elect of New York, met with President Donald Trump in the Oval Office today in what might have seemed like an improbable love fest. Though the 34-year-old democratic socialist and the 79-year-old Republican would seem to have nothing in common, they do share a couple of important ties. Both have called the borough of Queens home, and both were catapulted to office on the issue of affordability.  

Before the meeting, the two men traded insults, calling each other “communist” and “fascist.” Afterward, Trump said of Mamdani, “I feel very confident that he can do a very good job. I think he’s going to surprise some conservative people, actually.” Mamdani was civil, too: “It was a productive meeting based on a place of shared admiration and love, which is New York City, and the need to deliver affordability for New Yorkers,” he said. The early pundit consensus for this surprising turnabout is that Trump loves a winner. This is certainly true, but their topic of conversation also reflects the Trump administration’s recognition that rising prices have become a political burden. 

Mamdani won what’s been called “the second-hardest job in America” by relentlessly harping on the cost of living for average New Yorkers and ways to drive it down, from free buses to easing regulations on Halal food carts. Mikie Sherrill and Abigail Spanberger won gubernatorial races in New Jersey and Virginia with a similar message about taming high prices. Republicans, who swept to power in 2024 primarily out of frustration with inflation, recognize that the Democrats’ new strategy rests on a simple truth: Fairly or not, the cost of living gets blamed on whoever’s in charge. 

Or at least they should. Instead, Trump has been criticizing the Democrats’ mantra of affordability as misappropriation. “It should be our word, not theirs,” he said this week. He might have seen the Oval Office meeting as a way to reclaim the word by embracing its best-known exponent. Meanwhile, his administration is throwing out a raft of explanations for rising prices in hopes that one might work. In a live interview on Thursday at the neoclassical Andrew Mellon Auditorium in Washington, D.C., with Breitbart News, Vice President J.D. Vance cycled between denial, justification, bargaining, and blame. 

“The new buzzword, if you will, is affordability,” Breitbart’s Washington Bureau Chief Matthew Boyle said, referencing Mamdani’s campaign. “People out there feel like the economic situation isn’t that great.” He added, “Look, we’re 10 months to the day here since [Donald Trump’s second] inauguration. But they want to see more. They want to see more action. … What’s your message to those out there who feel like they haven’t seen that yet?” 

I sat in the audience and counted eight different answers from Vance, a Yale Law graduate. 

First, it’s the congressional Democrats’ fault. The government shutdown, an act of “economic terrorism,” slowed the momentum we would see now.  

Two: “We get it, and we hear you.”  

But, three, “the Biden administration put us in such a very, very tough spot.” Vance used the familiar example of high egg prices. If it went from $2 a dozen to a high of $8 during Biden’s term, he noted, that it remains at, say, $6.50 now is still a significant problem. (Explanation four. Also, egg prices are actually back to $2 a dozen, and it was primarily avian flu that drove the increase.) “And,” he added—point five—“the thing that I’d ask for the American people is a little bit of patience.” The economy wasn’t harmed over 10 months, he said; it was four years of importing foreign workers under Biden (six) that followed a 40-year policy of offshoring American jobs (seven). And finally (eight), hope is around the corner: “It’s going to take a little bit of time for every American to feel that economic boom, which we really do believe is coming.” 

To be fair, several of those answers fit into one refrain: a decades-long betrayal of the American worker is being reversed by Trump, who needs a little more time and forbearance to finish the job. But if you consider a previous response of Vance’s, there is even a ninth: There is no problem.  

A few hours before Vance’s interview, the Bureau of Labor Statistics released a long-delayed report from September that showed 119,000 new jobs—respectable growth, and more than anticipated. “If you look below the surface, I think the numbers are actually better,” Vance said. Why? Well, the Biden numbers were worse than you thought: Wage growth was eaten up by inflation (true, though you could spin that as wages keeping pace with record inflation), and because all the jobs were going to the foreign-born, “there wasn’t any job growth at all.” (False.) In that context, September’s jobs and growth in post-inflation wages aren’t just modest improvements: they’re the first real growth in years. 

The mood in the Mellon Auditorium was defiant and jubilant: Vance took the stage to a standing ovation and received applause for his immigration remarks that echoed throughout the Beaux-Arts interior. Boyle’s questions were appropriately obsequious for an editor who, apparently, Vance once urged Jeff Bezos to hire at The Washington Post.

But outside that room, Trump’s approval ratings remain as low as they’ve been, with 76 percent of respondents holding a negative view of the economy and 61 percent disapproving of the president’s economic policies, according to a recent Fox News poll. Not so long ago, another administration was trumpeting the strength of its economy, touting statistics that didn’t square with the experience of angry voters. 

That the Trump administration’s affordability problems are self-created could be considered a strength. Joe Biden didn’t have many palatable answers for a pandemic supply shock and a grinding war in Europe. But Trump could, if he chose, reverse his tariffs—which will cost the average household $1,200 this year and $1,600 the next, according to the Tax Foundation—and direct ICE to stop arresting contractors and restaurant workers without criminal records.  

Instead, Vance and Trump are staying the course. And they’re eagerly elevating Mamdani, certain that not only their base but swing voters will recoil from his socialist label and big-government policies. Maybe so. But they’re picking a politician relentlessly focused on the cost of living as their foil, while offering shifting explanations for their own performance.  

Vance did share one tidbit on Thursday: There’s a “great” new Republican health plan coming, one that is “going to get Republican and Democrat support.” (The Trump administration has made promises like this one before.) So, voters who suffered through the shutdown and are now eyeing health care premium increases need only a modicum of patience. Like that big economic boom, lower prices are just around the corner. 

The post Affordability Wars appeared first on Washington Monthly.

In the near future, a collegiate crisis is looming. Beyond the federal government’s ongoing assault on higher education, with its politicized investigations and threats to funding, an inevitable and devastating cliff awaits. We’re talking, of course, about enrollment.

As the abnormally large Millennial generation gives way to the smaller Gen Z, American colleges are losing their ability to fill seats—and balance their budgets. Between 2010 and 2021, universities lost 15 percent of their student population, or about 2.7 million people. Hundreds of schools closed. As if that weren’t enough, demographers predict that those numbers will soon plummet again, decreasing by as much as another 15 percent by 2039. Losing close to a third of their student population in total will likely mean lights out for many more schools.

There is hope, however. Even as the general population shrank, Hispanic students made up 80 percent of increases in degree attainment between 2017 and 2022. Numbers of Hispanic high school graduates are projected to increase by 16 percent by 2041. Given the existential importance of serving this population, one might think that colleges would be ferociously competing to recruit these students and get them through school, and that major education publications would be closely tracking their progress. But there are few such measures of excellence out there, and the rankings of Hispanic-serving schools that do exist mostly rely on generalized data, rather than numbers that tell you specifically how Hispanic students are doing. And that’s why this year the Washington Monthly, in collaboration with the non-profit Excelencia in Education, is releasing a comparison of how schools serve this all-important population.

The Best Colleges for Hispanic Students ranking combines the social mobility focus of the Monthly’s college rankings with the deep knowledge that Excelencia has built over decades of studying Hispanic performance in higher education. Among many other metrics, the D.C.-based non-profit gathers data on the transfer and graduation rates of Hispanic students, which are a good approximation of how well schools serve them. The hundreds of schools that apply for the organization’s “Seal of Excelencia” certification provide that information for consideration—and much more. They also submit data about diversity among faculty and staff, along with other metrics, and descriptions of their programming, communications, and long-range planning around Hispanic education. To reflect those nuanced evaluations, we tracked in our ranking whether or not a school was awarded the seal. To those metrics we added two social mobility measures from our own rankings: net price (the annual amount students pay when factoring in aid), and the percentage of students who receive Pell Grants. 

We limited our ranking to federally recognized Hispanic-serving institutions (HSIs) that provided this information when they applied for the Seal of Excelencia—151 schools, out of the 615 HSIs. As a result, we’re calling this the “Best” Colleges for Hispanic Students, not “Best and Worst.” Any school that serves so many Hispanic students (the minimum for an HSI is 25 percent) and that cares enough about its performance to go through the rigorous seal application is deserving of praise.

Many of the top performers, like UT–Rio Grande Valley (number two among four-year schools) and Fresno State (number eight), are favorites in the Monthly’s overall rankings (see Best Colleges for Your Tuition (and Tax) Dollars rankings). That’s no accident—those schools are already focused on delivering a quality education at low cost to underprivileged student populations. Take our number one university for Hispanic students, Cal State–Los Angeles. The regional university in East L.A. is a powerful engine of social mobility, with a low net price of $4,551 (fourth of the 1,421 schools in our overall rankings) and a high proportion of students on Pell Grants—66 percent. The school is more than three-quarters Hispanic, and it serves those students well: They graduate at close to the same rate as the general population (51 percent versus 53 percent, compared to the 13-point national gap). Cal State–LA also received the Seal of Excelencia in 2023, one of only nine institutions that year. 

Patterns emerge in the rankings, especially around location. A high proportion of Hispanic college students are in California, Texas, and New York. Those states dominate the top slots here, and if the list were expanded to include the bottom two-thirds of HSIs, you might expect to see them there, too. But demographic happenstance also gives rise to intentional excellence. Eight of the top 20 schools are California State campuses, which are united by their low prices, favorable graduation rates, and high numbers of non-wealthy students. The University of Texas and Texas A&M systems also do well. Texas A&M International is in third place, with an incredibly low price of $3,833 and a graduation rate for Hispanic students equal to that of the general population. Five other Texas schools occupy the top 20, including little-known Sul Ross State University (nine), a Seal of Excelencia winner that graduates Hispanic students at a better rate than it does the general population. The same is true of UT–San Antonio (13), which also boasts a seal, 42 percent Pell enrollment, and reasonably low costs. 

The rest of the country has plenty to offer, too. A few Florida schools, including Florida International University (18), reach the upper echelons. Like California and New York, much of the Florida state system’s excellence in our rankings is owed to a unified governance structure whose focus on affordability keeps tuition low. (See Christopher M. Mullin, “Florida’s Fresh-Squeezed Colleges.”) In Georgia, Dalton State College rises to 16th place mostly by virtue of its attractive cost—$5,083 a year. (The graduation rates, though not great, are about equal between Hispanic students and the general population of the college.) Two CUNY branches, Lehman and John Jay, make the top 20. Just a few miles apart and roughly the same size, they offer very low costs—around $4,000—to their roughly half-Hispanic student populations, and have virtually no ethnic graduation gap. John Jay proudly features a wide array of student support resources, including ¡Adelante!, a two-year leadership program that provides academic mentorship, career advice, and financial support to Hispanic students.

We also rank two-year schools in a separate list, because of a methodological wrinkle: Given how often students at these institutions finish their degrees at other schools, we count transfers as a positive rather than a negative. The number one  performer is South Texas College, a community college in the Rio Grande Valley with an overwhelmingly Hispanic student body—95 percent. Students pay a staggeringly low $1,414 a year, net of aid, and more than a third are on Pell Grants. In 2022, South Texas College celebrated its high performance in a ranking from Excelencia of schools that enroll and graduate Latinos. “Being an HSI is more than just a designation for STC, it’s our identity; it’s who we are,” Matthew Hebbard, vice president of student affairs and enrollment management, said in a statement. The school focuses heavily on student support services for its many first-generation and ESL students, as well as on hands-on vocational training, including at partner universities in Mexico that prepare students for manufacturing jobs. 

These schools offer many concrete lessons about the kinds of programs that best serve Hispanic students. Crucially, they aren’t limited to one part of college. Our number two four-year school, UT–Rio Grande Valley, boasts a comprehensive strategy that includes “Tuition Advantage,” a program that pays tuition and fees for students with family incomes under $125,000; a dual credit program with several area high schools; and a robust international student services department for its Latin American undergraduates. One of Excelencia in Education’s regular awards is the “Examples of Excelencia,” four programs chosen from dozens around the country as a model for what works. They include a wide range of programs, from student support services to language instruction to academic skills classes to scholarships and recruiting initiatives meant to boost access to college.

There are many places to find great ideas, including at schools that aren’t on this list. In 2024, one of the finalists for the Examples of Excelencia award was a student support service at Santa Barbara City College called the Writing Center, which works with high numbers of Hispanic students. Just creating a student service center focused on writing support isn’t the innovation; what’s special about the Writing Center, Emma Trelles, the poet and former professor who directs the center, told me, is the staff’s understanding of how cultural and linguistic understanding affects success. “As the daughter of immigrants and the first in my family to complete college and go on to get a master’s, I know firsthand how hard it is to navigate bureaucracies and complete platforms and all the things you have to do as a student when you don’t have guidance,” she told me. The center’s handpicked tutors, about a third of whom are bilingual in English and Spanish, view themselves as “collaborators,” Trelles said, not teachers or lecturers. Some students come for just a few sessions—like a young man of Mexican descent who recently asked Trelles for help navigating the college online dashboard. Others come back again and again, brushing up on their writing, polishing their English, and sometimes just talking through their daily problems and fears. In applying for the Examples of Excelencia award, the Writing Center tracked down statistics on its own effectiveness. From 2017 to 2023, Hispanic students who visited the center between one and three times completed their classes at rates 13 to 25 percent higher than those who didn’t visit at all. 

Completion, and enrollment—colleges will need to improve their performance in these areas over the coming decade if they wish to survive. And to do so, they will need to serve an expanding and often under-privileged student population that itself is a focus of many of today’s political attacks. (On his first day in office, Donald Trump rescinded Biden-era initiatives to support HSIs as part of a slew of executive orders against what he called “harmful” DEI.) By highlighting the schools that have recognized and accepted that mantle, we hope to inspire others to follow. Maybe then that cliff will not seem so steep.

Best Hispanic-Serving Colleges (4yr and 2yr)

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Two years ago, as America reeled from the Dobbs decision, I was invited to a constitutional law conference at Georgetown University. On a bright, cold November morning, I signed in, pasted on my nametag, and walked in to see what I had expected—a stuffy conference room filled with academics. But as the day rolled on, I encountered something surprising: energy, even excitement.  

Amid the despair over the rollback of abortion rights, scholars and activists were discussing how to fix the Supreme Court—not only by altering its structure but also by rethinking the popular conception about what the Court should be for. (Rights-giving fount of wisdom? Or something more modest, democratic?) It was a surprisingly heady conversation, animated and idealistic, and yet grounded in reforms that almost no one was talking about. 

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I was inspired. Over the next several months, I read dozens of law articles, interviewed leading thinkers, and wrote a detailed guide to the reform debate, in which I weighed these ideas and argued that movement-building was needed to connect them to public outrage.  

By then, I had worked as an editor here for about a year, long enough to learn that this was classic Washington Monthly journalism: Marshaling nitty-gritty policy details in service of a Big Idea on the horizon. Another aspect, more emotional than conceptual, stands out to me now, though, as defenders of democracy pick up the pieces after the 2024 election. In moments of despair, specifics matter. Huddling with friends and family brings comfort, but it’s the people proposing solutions who will put you back on your feet. 

The Washington Monthly will keep doing this work amid a dark political landscape. It’s critical in a moment like this, where, amid defeat, new ideas can grow. But we need your support. If you value our forward-looking, solutions-based journalism, donate to the Monthly now.  

Please give today.  

Rob Wolfe 

Editor 

P.S. As a token of our gratitude, if you give $50 or more, we will send you a one-year subscription to the print edition of the Washington Monthly. Donate now. 

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Ozan Jaquette, a well-respected professor of higher education at UCLA known for his academic mentorship and groundbreaking research, takes great pleasure in calling himself a “slug.” As a high school student decades ago in Newton, Massachusetts, the young Jaquette was, by his own admission, a mediocre student. Smart, yes, but lacking confidence, with a tendency to hide himself behind jokes. Instead of academics, he poured his energy into sports. “I was just trying to get on the basketball team,” he recalls. 

Imagine his surprise when, come junior year, the brochures from colleges started pouring in. Dozens of schools—UMass Amherst, Boston University, George Washington University—were interested in this son of college professors who earned “straight Bs,” while avoiding honors and AP classes. Jaquette took his second chance and ran with it: He enrolled at GW, studied hard, and followed his fascination with the inner workings of colleges and universities through to a PhD. Years later, as a professor at the University of Arizona, he advised a young grad student whose experience with college recruitment would forever change how he saw his own. 

Karina Salazar grew up on the south side of Tucson, the daughter of Mexican immigrants in a low-income neighborhood. Unlike Jaquette, Salazar was a standout scholar. She took every AP and honors class available at Sunnyside High School, earning a GPA of above 4.0 with the aim of becoming the first in her family to attend college. “Everything I was supposed to do, I did it, and I did it right,” she told me. But unlike Jaquette, she received no brochures in the mail. The only recruiters to visit Sunnyside were from community colleges. The military was there, too, tabling during lunch hour and handing out swag from a giant trailer at football games. Salazar ended up at the University of Arizona, mostly because, she says, “it was in my backyard. I didn’t know other colleges and universities.”

As Jaquette and Salazar worked together, first as mentor-mentee and then as colleagues and research partners, they were struck by the disparity in their experiences. Why had Jaquette received so many extra chances to prove himself to colleges, while Salazar, a much better student, wasn’t on their radar at all? Part of the answer lies in the practices of enrollment management, the industry that helps colleges find the students they need to fill classes and pay tuition. When Jaquette calls himself a slug, it’s not just his self-deprecating humor. A slug, to enrollment managers, is something very desirable—a low- or mid-tier student with financial means who’s likely to accept an offer of admission and pay a large share of tuition. Universities, especially mid-ranked state and private schools without large endowments or Ivy League prestige, go looking for slugs to balance their budgets. They go looking for Ozan Jaquettes, not Karina Salazars.

For decades, the national discussion about equity in higher education has centered on the way colleges treat prospective students who apply. Do they choose among applicants based primarily on grades and test scores, for instance, or do they give preference to students who list fancy extracurriculars and legacy status on their admissions forms? Do they consider an applicant’s race, and if so, how? But schools don’t just wait passively for students to knock on their doors. They engage in expensive and time-consuming efforts to lure applicants, and in choosing whom to lure, they make decisions about equity and inclusion long before the admissions process even begins. As the experiences of Jaquette, Salazar, and millions of others illustrate, race and class play into who even gets to apply. 

The general public knows little about college enrollment managers and the vast web of private consultants who decide who gets recruited and who gets ignored. Yet the industry has been around since the 1970s and, despite having arisen in response to genuine financial pressures on schools, has played a large role in the inexorable rise of tuition around the country. Enrollment managers over the years have steadily increased the top-line tuition at their institutions to give themselves room to attract wealthy students with so-called merit aid. With inflated tuition sticker prices, colleges can afford to offer these scholarships that sound performance based but are really meant to flatter high-income students into matriculating while still paying top dollar. Meanwhile, schools offer insufficient aid to poor and middle-class students to cover the difference, which leaves them saddled with massive loans—collateral damage in the hunt for slugs.

So how do enrollment managers find these students and get them to apply? Here, Jaquette and Salazar have broken new ground. As research partners, they set out to explain just how it was that their paths to college came to be so unequal. After filing public records requests and painstakingly scraping university websites, they uncovered a bustling industry within the enrollment management industry—the Big Data realm of student lists. For the past few decades, a typical vice president of enrollment management at a major university has bought student names—somewhere between 50,000 and many hundreds of thousands of them annually—at roughly 50 cents a pop from the College Board, which administers the SAT, and from its competitor, ACT. These lists come with such detailed information as GPA, college intentions, and home addresses. That personal data, which parents and students give away when they sign up for standardized tests, allows colleges to customize their recruitment efforts for maximum returns. Need a student with middling grades and above-average SATs from a wealthy enclave like Newton, Massachusetts, who is interested in attending a school of your size in your region? Just apply a few filters in a computer program, or have your consultant do it for you, and you have thousands of names and addresses to which you can send glossy brochures. 

This technology is powerful, and theoretically could be used for noble purposes—to recruit, say, high-achieving students from low-income families in minority neighborhoods. (A few schools are doing so; more on this later.) But what Jaquette and Salazar found in surveying dozens of major schools is that list data is much more often a tool of exclusion, enforcing with even greater precision the hierarchies of race and class that limit access to college. 

Until very recently, colleges bought these long lists of prospective students directly from the testing companies, but developments in recent years—including the pandemic-era decline of standardized testing, and updates to privacy laws—have made it much harder to sell student information. As they lose access to list data, increasingly desperate schools have been turning to nontraditional sources and new technologies to form personalized connections with students. This new landscape has unlocked the potential for a fairer, more inclusive system of college recruitment, but also the threat of increased control by private consulting companies, which have begun to buy up alternative sources of student names. This moment of turmoil, education scholars argue, is the time for regulators to step in. 

The underlying incentives that spawned the enrollment management industry were established by the federal government, which has the power to set fair rules for the marketplace and ensure that federal aid is benefiting the students who need it. In the short term, that can mean regulating the sector and cracking down on its worst excesses. In the long term, truly fixing the problem will require changing the incentives that drive those excesses, which means fundamentally restructuring the way colleges are funded and their classrooms are filled. If the search for slugs has gone too far, it could be time to add a little salt. 

As soon as Karina Salazar arrived at the University of Arizona, in 2007, she became all too aware of the inequalities of college. Her 94 percent Hispanic high school, where four out of five students last year qualified for free or reduced-price lunch, had not prepared her to meet her new peers, who took European vacations in the summer while she worked full-time back home. “I didn’t realize I was low income until I went to college,” she told me. No one in her family had the experience to help her navigate the system, and so, Salazar remembers, she “stumbled around” in choosing a major, eventually settling on journalism. But even with those obstacles, she graduated in four years and then launched straight into a master’s program in education and public policy, also at UA.

Jaquette was Salazar’s instructor in a graduate-level statistics class. Afterward, Jaquette encouraged Salazar to pursue a PhD, and then became her adviser. Over the years they have formed a complementary dynamic—Jaquette the big, goofy personality, who answers business emails with chilled-out phrases like “ya mon”; Salazar the sharp, intellectually rigorous, morally clear Abbott to his Costello. Two or three years into Salazar’s doctoral program, as she was finishing up her course work and thinking about a dissertation topic, the colleagues remarked on how their stories were two sides of the same coin. Jaquette had already studied public universities’ propensity to seek wealthy out-of-state students in response to decreased state funding, which made him wonder if the disparity in his and Salazar’s recruitment might be a result of that trend. 

Together, they started thinking about how to measure where universities were recruiting. Admissions offices planning visits to high schools often post schedules on their websites, so after training themselves in data management (and eventually enlisting undergraduate researchers and a professional programmer), Salazar and Jaquette were able to pull from the web a list of thousands of visits by 150 colleges and universities in the 2017 school year. They published their findings in a New York Times op-ed. As they had suspected, recruiters largely focused their visits on out-of-state high schools in affluent white communities. One of the most wealth-seeking universities was Rutgers, whose main campus in New Brunswick, New Jersey, visited high schools across the country that served areas with median family incomes of $117,600. The median income for neighborhoods those recruiters skipped over: $67,000. As a follow-up, Salazar conducted a spatial analysis of high school visits in Dallas and Los Angeles, and found a trend that she calls “recruitment redlining.” Mapping out the visits, Salazar found herself tracing lines around poor communities of color that had been ignored by nearly all universities—much as bankers, insurers, and the U.S. government once drew actual red lines on maps to deny financial services to residents in Black neighborhoods. 

Salazar and Jaquette are careful not to portray universities as scheming villains. The scramble to recruit rich out-of-state students stems from systemic state and federal disinvestment from public universities, long-term enrollment decline, and the rising underlying cost of higher education. Aside from the top few universities in the U.S. News & World Report rankings, most schools don’t have a functionally unlimited endowment and instead rely on tuition revenues, and so of course they look for students from rich areas. Those schools will bring on some Pell Grant recipients, but not too many, because that leads to sacrifices elsewhere. As Jaquette told me, “You rob banks because that’s where the money is.” 

Enrollment managers have been helping colleges respond to these pressures for decades. In 1973, a theoretical physicist at Boston College named Jack Maguire received an unusual request from the higher-ups: Pack up your slide rule, move to the admissions office, and use your way with numbers to get us more students. Founded during the Civil War to educate Irish Catholic immigrants, the university now was nearing insolvency due to dropouts and decreased applications. Maguire and another elevated quant, the former business professor Frank Campanella, coined the term enrollment management for their innovation of aligning the formerly separate systems of recruitment, admissions, financial aid, and retention behind a unified strategy to put scholarly derrieres in seats. The first two enrollment managers conducted surveys to figure out why too few students were applying and too many were transferring away. Among other strategies, they redirected financial aid away from upperclassmen and toward the freshman class, while dangling merit scholarships to wealthy students who didn’t need them but would be enticed by the offer. “Were we the first and only ones to do it? You could make a case for lots of folks,” Maguire told the journalist Neil Swidey this year. “But the fact is, I had the great advantage of being a mathematician—a scientist—and knowing nothing about admissions.” 

By 1980, application numbers had tripled. Maguire’s tactics were such a hit that he soon left to start his own private consulting firm, the first in what would become a multibillion-dollar industry. Meanwhile, other schools were copying BC, and its tactic of attracting high-income students with merit aid was spreading across the country. As the competition over rich kids heated up, colleges used federal aid dollars to offset the financial aid that they otherwise might have given to low- or middle-income students. (You’ve earned a federal Pell Grant? Good news—for your university, which will take that out of the aid it would have given you, and send that money elsewhere!) With tuition steadily rising, nonwealthy students have been forced to take on more and more loans to fill the void between aid and the total cost of college. This trend, which came to be known as financial aid “gapping,” accelerated as the pressure on higher education rose. The Reagan administration drastically reduced federal student aid, the cost of college steadily increased along with student debt, and long-term demographic change put a squeeze on the pool of applicants. Universities desperate to fill seats competed in the increasingly popular U.S. News rankings, which rewarded them for rejecting applicants, soliciting alumni donations, and raising their SAT averages. 

Swidey’s interview with Maguire, and many of these historical details, appeared this May in a book-length collection of journalism and academic research called Lifting the Veil on Enrollment Management, which was curated by Stephen Burd, a senior education policy writer and editor at New America. As Burd notes in his own chapter, schools soon learned that they could make money and attract applicants by rising in the U.S. News list. The cross-pollination between enrollment management and college rankings made higher education ever more exclusive. In 2011, for instance, Clemson had stalled in its decade-long quest to reach the top 20 public universities. Administrators had already tried every trick in the book, Burd writes. They had stopped admitting students below the top third of their high school classes; asked for micro-donations to inflate their alumni giving rate; and given competitor universities poor ratings in the reputational survey that informs the U.S. News rankings. Still, despite maintaining an acceptance rate higher than what they needed to rise in the rankings, they were enrolling too few students to fill that fall’s freshman class. They turned to private consultants. 

On the advice of Huron Education, one of the biggest enrollment consulting firms, Clemson increased its spending on merit and other non-need-based aid to wealthy students by 160 percent. By 2019, the plan had borne fruit: The acceptance rate was down, the yield rate was up, and the SAT scores of the incoming class had risen by 80 points. (Nonwealthy students, meanwhile, were forced to make up for decreased aid with risky Parent PLUS Loans, Burd writes.) Clemson was far from the only school to do this, at the behest of a fleet of private consultants that had grown throughout the 1990s and 2000s to guide schools through these treacherous waters. One pioneering consultant was Bill Royall, a former Republican political operative who popularized the mass purchasing of names and the mailing of lavish brochures like the ones that lured Jaquette to GW. His firm, Royall & Company, grew steadily through those decades and, in 2015, was acquired by the parent company of the Education Advisory Board, now just EAB, which itself was bought by private equity as part of an ongoing wave of consolidation in the industry. Profit hungry as they were, these businesses grew so quickly because they pointed to a simple truth: Every incentive pushes institutions to cater their recruiting to wealthy students and leave the rest behind.

The next phase of research started with Jaquette, who had heard from friends in admissions offices and private consulting about the world of student lists. Though it was no secret that roughly 87 percent of universities buy, collectively, tens of millions of names annually from consultants or directly from the testing companies, he and Salazar realized that no one outside the industry had attempted to quantify the practice. Doing so would get them close to answering their initial question: Why did Jaquette get the glossy brochures?

Getting access to that data wasn’t easy. Just as the research partners had had to train themselves as data managers, now they became investigative journalists, filing laborious records requests to public universities. As before, funders such as the Joyce and Kresge Foundations pitched in for additional researchers to help scale up the project. Jaquette and Salazar obtained 414 orders for student data that 14 public universities in Arizona, California, Minnesota, Illinois, and Texas made to the College Board from 2016 to 2020, along with the more than 2.5 million names those schools received. 

The researchers found that colleges routinely filtered their requests by test scores, geographic location, and other data points that tend to exclude students of color. The most common set of filters for prospective undergraduates, used in 99 of 414 requests, sorted students by class rank, GPA, SAT, and zip code. The population of students nationwide who don’t take the SATs is disproportionately nonwhite and poor; moving up the score table, the population of test takers becomes disproportionately rich, and disproportionately white and Asian. Centering one’s outreach on affluent zip codes, as the 14 schools often did in their list orders, is also an efficient tool of exclusion by both race and class. Combine multiple such filters, and the chance of a low-income student of color sneaking through becomes very slim indeed. Jaquette and Salazar made a surprising finding in that vein: The more that schools pile on filters such as SAT, GPA, and zip code, the more they exclude Black and Hispanic people across the income spectrum. In other words, universities set out looking for wealthy students to fill their coffers, and end up sorting America’s high schoolers ever more precisely by race.

Once they started digging into the results and asking schools about their practices, Jaquette and Salazar found another surprise. They had started off thinking of recruiting as a process driven by colleges and universities, and came away with a new appreciation for the influence of private consultants. At some schools that bought more than 100,000 names a year, Jaquette said, “you couldn’t find any university employee who knew anything about the names that they were buying, and why did you use these filters and why not these others.” 

College admissions offices are notoriously tough places to work, where an experienced VP often oversees a posse of inexperienced and underpaid recent grads, who are eager to serve their alma mater but overwhelmed by the volume and complexity of the work. As The Chronicle of Higher Education reported in April 2023, burnout and turnover in this critical profession, one responsible for filling the vast majority of seats in university classrooms across America, have reached crisis levels. Many university employees don’t have the time or the expertise to carefully curate student lists; they request names using the filters that a consultant thinks are best, or that were left over from their predecessor in the admissions office, or their predecessor’s predecessor. As Jaquette told me, “When you see them all doing something similar, you might assume it’s because they share common knowledge and goals, but are making individual decisions. But part of the reason we see consistent inequality in recruitment practices is because of these third-party products and enrollment management companies that are kind of telling universities what to do.”

Some university officials are capable of thinking for themselves, however. Matt Lopez, an outspoken critic of the exclusionary practices of enrollment management, took a job as deputy vice president of admission services at Arizona State University in 2016. In his new role, he pushed to bring the school’s recruiting strategy in line with its mission statement, which calls for ASU to measure itself “not by whom it excludes, but by whom it includes and how they succeed.” One of his first moves was to switch the bulk of the university’s list purchases to the PSAT, which includes more underprivileged students than the SAT itself. He also changed the filters—less outreach to out-of-state students, and more to parts of Arizona with high concentrations of rural, low-income, Indigenous, Hispanic, and Black residents. At the same time, Lopez was conscious of the university’s bottom line and how much it could realistically offer to students. He stopped reaching out to some out-of-state areas where it seemed unlikely that students could make an ASU education work financially, in order to prioritize low-income students in Arizona who could benefit from state aid. Other industry experts I spoke with praised Lopez’s approach as a way to use student lists to expand college access, rather than limit it.

But the nationwide landscape was about to change. The pandemic forced school districts to cancel in-person SATs and ACTs, which, together with rising criticism about socioeconomic inequity in standardized testing, pushed many universities to remove the exams from their admissions requirements. Meanwhile, concerns about privacy over the past decade have led at least two dozen states, including New York, Illinois, and Florida, to pass stricter laws controlling the release of student information. Regulators and privacy advocates have lately started to push for those laws, many of which were modeled on California’s 2014 Student Online Personal Information Protection Act, or SOPIPA, to apply to the selling of list data. This summer, for instance, the College Board paid $750,000 to settle a suit from the New York attorney general over alleged violations of the state’s privacy law. As a result, colleges can only get test takers’ names in those states if the students opt in afterward by signing in to an online portal and agreeing to release their data. The number of available names has plummeted as a result.

“You can’t go to College Board and just buy a million names like you used to,” Lopez told me. That’s roughly the number that ASU was buying annually from the testing companies when he arrived. Now, the pool of available names has shrunk, and the prices, which once were around 47 cents a name, have gone up tenfold in some cases, Lopez said. Bobby Andrews, a former vice president of enrollment management at Duquesne, DePauw, and other universities, told me that these well-intentioned privacy restrictions are making it harder for colleges that want to seek out low- and middle-income students to do so. 

The large majority of students who take standardized tests in the classroom during weekdays are no longer showing up in databases, since most don’t know to opt in for data sharing, and also because in some states the companies aren’t allowed to solicit their signoff. The students whose information is available are those with the family resources and experience to sign themselves up for college outreach—and they tend to be rich and white. (Which perhaps would not be such a problem for some slug-hungry schools if the names were not so expensive and so few.) “In the end, you’re restricting the most populous group of underresourced students from being available to colleges who want to recruit them,” Andrews said. More recently, this spring’s rollout of the online SAT triggered internet privacy laws that restrict the selling of student data even further. 

The squeeze on student names is pushing universities from a woeful status quo into a potentially worse unknown. The duopoly of the College Board and ACT that controlled most list data were, at least, nonprofits, bound by transparency requirements and the general expectation that they would work toward some social good. Now, colleges are turning to for-profit companies for student names, and one, EAB, increasingly dominates the market. Long a leading enrollment management consultancy, EAB is on an acquisition spree, gobbling up companies that offer alternative sources of names. In 2022 it purchased the tech firm Concourse, whose online platform flips college application on its head by letting students create profiles that schools can peruse and send admissions offers to. This “reverse admissions” process is a promising innovation (see Jamaal Abdul-Alim’s article in our September/October 2023 issue, “When Colleges Apply to Students”). But the Concourse platform also captures detailed data on students, which EAB can turn around and sell to prospect-hungry colleges. EAB also recently bought the leading scholarship finding website Cappex, and created an exclusive partnership to distribute a major college recruiting platform called Intersect. Both of these deals give EAB control over sources of student data. 

If it achieves monopoly power over list data, the private equity–owned EAB will gain even more leverage to force schools to buy expensive software and consulting services that they don’t necessarily need. The transition of student lists from a lightly overseen not-for-profit space to a less unaccountable profit-driven one is speeding up. Private equity controls the second-largest enrollment management consulting company, RNL, and this April a private equity firm even bought ACT, which was forced to relinquish its nonprofit status.

Troubling as these trends may be, the federal government does have tools to curb predatory behavior in the industry. If EAB’s acquisitions are threatening competition, for instance, federal antitrust regulators like Lina Khan, chair of the Federal Trade Commission, might consider taking a hard look into those deals. 

Meanwhile, Jaquette and Salazar have advanced a creative answer to discrimination in student lists: Treat them like credit reports. Credit rating agencies such as Equifax are regulated as holders of personal data that helps businesses to determine whether or not to make loans to consumers. Those agencies are not allowed to, say, draw red lines around a Black neighborhood in Chicago and automatically assign a low credit score to anyone living there. A student list, meanwhile, is information that helps colleges to decide whom they should offer admission to—along with financial aid, which includes loans. So why not have the FTC and the Consumer Financial Protection Bureau apply similar regulations to purveyors of student data, who, according to Jaquette and Salazar’s research, systematically exclude minorities in their products? 

In addition to policing the existing market, government can help colleges and students go around the middleman. It can invest more in college advising for lower-income high schools, so those students have the knowledge and resources to navigate the application process themselves rather than be wholly at the mercy of the student recruitment industrial complex. It can also offer “direct admission,” an increasingly popular system where all resident high school students above a certain academic performance standard receive automatic admission into one or more of that state’s public universities. Under direct admission, which 10 states had implemented as of 2023, much of the recruiting that colleges have been doing on their own is, in effect, done for them by the state. 

Even with direct admission, colleges still want the ability to proactively reach out to students—to make sure they get enough to fill their classrooms, and the right ones for the programs they offer. To give colleges access to students without going through private consultants, more states should consider creating a “public option” for list data. In recent years, Arizona began providing all its public universities with high school student data that the state government already captures as the overseer of K–12 schools. Though privacy regulations limit the public lists to just a name and an address, that has been enough for ASU’s Lopez to make his state’s pilot student list program a cornerstone of his recruitment strategy. 

None of these reforms, however, will solve the underlying problem that pushes colleges to behave the way they do: the financing of higher education itself. Many states drastically underinvest in their public universities, and the Pell Grant, the federal government’s main source of direct student support, covers only a fraction of average tuition compared to what it did decades ago. Combine those pressures with the decreasing supply of high school graduates after the large Millennial generation, and it all adds up to an unavoidable need to recruit students from wealthy families and shun those from poorer ones. 

As the Monthly’s own Kevin Carey argued in 2020, American higher ed needs a foundational rebuild, one that relieves the financial pressures that encourage bad behavior. Among other measures, Carey’s plan calls for a restructuring of the federal funding system: For every college, the government would provide a flat $10,000 stipend per student, along with universal tuition reimbursement on a sliding income scale. Give schools the assurance that they can afford to pay for each student’s education, and suddenly the hunt for wealthy kids is not so urgent. Acceptance of that aid would come with conditions. No more deceptive pricing; no more diversion of federal money into wealth-chasing merit scholarships; no more confusing financial aid letters that disguise what’s a grant and what’s a loan. 

The new regime would cause sweeping change in American higher education, perhaps even creating a leveling effect where less influential regional universities and state colleges see a boost in funding while flagship universities see a slight decrease, at least from federal sources. (The most prestigious and wealthy universities wouldn’t see much of a change; Carey’s proposed structure would allow colleges to opt in, which he believes non-elite schools have every incentive to do.) It might also require all of us to reexamine our assumptions about what college is. Is it a magical place where we live in pristine dorms and “find ourselves” during study abroad in Barcelona, or is it something more modest? Which should be more bountiful—the amenities, or the outcomes? If that sounds suspiciously … European, then consider that the American higher education system worked this way as recently as the 1960s and ’70s, when the still-standing federal funding laws were written. Since then, underlying financial realities changed, forcing schools to abuse every loophole in the name of survival; now, it’s a matter of catching up.

Around the time Salazar was finishing her PhD, in summer 2019, she came up with a bright idea. Dissertation defenses are staid affairs held in a conference room before a panel of academics and just a few onlookers. Her research into colleges’ recruitment (or lack thereof) in poor neighborhoods had unusual relevance to her institution and the community around it. And so, she recalls, “rather than just present this work to a committee and my immediate family in this dusty room, I decided to do it at my local high school.”

A few months later, in the same school library where she had filed college applications years before, Salazar presented her findings to Sunnyside High School’s principal, the district superintendent, and administrators from the University of Arizona. Afterward, the local officials shook hands with UA’s vice provost for Hispanic affairs and another high-ranking dean. A partnership was born. 

Today, the district that only received visits from the Army and Marines has a full-time recruiter from the University of Arizona. Salazar, who became a professor at UA after her PhD defense, sat on the hiring committee for that job and recently helped to hire another recruiter, this one focused on outreach to local Indigenous communities. The results have been striking. Between 2019 and 2023, the annual number of graduates enrolling at UA from Sunnyside’s district, which includes two other low-income high schools, rose from 91 to 180. 

Salazar and her collaborators are seeking to create similar partnerships in other Tucson-area school districts and eventually in other areas of the state, including rural ones that don’t get attention from large public universities. But they’re doing so at a deliberate pace, seeking funding while keeping in mind how much programs like these depend on a delicate balance of personal relationships and cultural understanding. This outreach isn’t quickly scalable, and certainly not a panacea. No one solution is.

Still, there’s satisfaction in coming full circle. Not often does an academic get to shape her career around a research subject that affects her own community, and then directly introduce solutions on the ground. Salazar’s applied approach reflects the priorities of her culture, she says—research for its own sake is a fine thing, but even better is to make a difference in the world. 

In a similar way, Salazar doesn’t see her success as her own. All of Sunnyside shares in it. And what that represents to her is something larger—the potential that so many people in that neighborhood and thousands of others would have, if only they received the same opportunities. As Salazar told me this summer, “I’m not the shining example of the community. I’m not an exception.”

The post The Student Recruitment Industrial Complex appeared first on Washington Monthly.

The past year has been one of unceasing turmoil in higher education, with assaults on the fundamental social and economic value of college. Student protesters at Columbia, Harvard, Penn, and other universities received fervent denouncements and praise. The presidents of several of those institutions were called before Congress and two were forced by their boards to resign. Federal courts blocked another Biden administration loan forgiveness plan. Red states defunded diversity, equity, and inclusion offices and put restrictions on the teaching of America’s racial history. Capping all of that were revelations about Project 2025, the conservative road map for a second Trump term, which contains such radical policy prescriptions as closing down the federal Department of Education and privatizing all student loans. A heightened and troubling level of rancor pervades these plans and the wider political conversation about higher education. But the focus of both sides’ attention remains the same.

Time and again, conservatives whip themselves into a fury over phenomena, real or imagined, that predominantly take place in top-ranked universities. The same goes for the so-called liberal elite, whose members think about college primarily through the lens of their venerated alma maters. Consider, for instance, the bitter though legitimate debate over the value of the Gaza war protests that drove the news for months. What’s not debatable, as the Washington Monthly showed with hard numbers in June, is that the protests were largely absent from the open-access schools that most American college students attend. Yet that fact went almost completely unmentioned in media reports and congressional hearings, leaving the impression that the whole of higher education was involved in controversies that were chiefly confined to highly selective universities.

This joint obsession with elite schools is warping our politics by aggravating the large and growing political divide between those with a college education and those without. It is not an exaggeration to say that this divide, which is both a symbol and a cause of broader economic and cultural rifts in society, could determine which party wins control of the federal government in November.

We couldn’t have known that higher education would become such a central political issue when we published the first Washington Monthly college rankings in 2005. We were quite sure, however, that the national fixation on a handful of highly selective universities, fed by U.S. News & World Report’s college ranking system, was a crisis in the making. Apex colleges have their place—as training grounds for future leaders, producers of cutting-edge scholarship, and so forth. But the values that define them—how world renowned they are, how much money they raise and spend, how many students they don’t let in—are the opposite of those that should guide the broader system of higher education, where the aim is to make quality college degrees available and affordable to as many people in as many local communities as possible.

We wanted to challenge elite schools to be less self-serving and to elevate in the national conversation the hundreds of humbler colleges and universities that are the backbone of the American higher ed system. These institutions, especially the state-run “regional” universities that are the theme of this year’s college guide, do the noble work of helping low- and middle-income students get the education they need to get ahead in life. These schools also tend to be enmeshed in, and beloved by, their local communities as centers of economic growth and civic life. Yet they are largely unknown outside of their regions.

So, we devised an alternative set of benchmarks for what “excellence” is in higher education, ones that measure what colleges do for their country, instead of for themselves. Rather than reward institutions for their wealth, fame, and exclusivity, we evaluate them on their commitment to three goals: social mobility, research, and public service. We give credit to colleges that welcome students from low- and middle-income backgrounds and get them through college and into good jobs with manageable debt. We use reliable data on research spending and PhD attainment for graduates, rather than the imprecise reputational surveys that other rankings rely on. And we track how colleges encourage their students to be active citizens by voting; serving in the military, Peace Corps, and AmeriCorps; and majoring in socially valuable fields like teaching, health care, and social work. As a result, our rankings highlight the parts of America’s higher education system that the Ivy-focused headlines of the past year, and so many before, have ignored.

The good news is that elite private universities have been feeling the pressure to recruit more students of modest means—and with their endowments exploding in size, they’ve had more than enough resources to cover those students’ costs. As a result, some big-name institutions did well on our rankings this year. Six of the top 11 national universities are Ivies, and the Massachusetts Institute of Technology and Stanford snagged the top two spots. That’s not far from where they landed on U.S. News’s rankings, which also now have a social mobility metric. But that metric makes up such a modest portion of the overall U.S. News score that private colleges that treat lower-income students abysmally also do well. Tulane, Baylor, and Hofstra rank 73rd, 93rd, and 185th on U.S. News’s list of national universities. They come in 429th, 363rd, and 422nd on ours. Not only do they recruit few low-income students and charge them a fortune, but they also produce little scholarly research and fail to prepare their students to engage in their democracy.

On our liberal arts college rankings, Berea College and Harvey Mudd College are again at the top, though they have very different profiles. Kentucky-based Berea is a supercharged engine of social mobility, with excellent earnings, graduation rate, net price, and academic performance for low-income students. Los Angeles–area Harvey Mudd doesn’t bring in nearly as many Pell recipients, but it has excellent research chops and its graduates go on to earn very good money (an average of $123,761 nine years after matriculating) and an unparalleled number of advanced degrees. On the other hand, tony Oberlin College, 51st on the U.S. News liberal arts college list, is down at number 108 on ours. It costs $16,357 a year (making it 87th in net price), brings in only a handful of low-income students, and does a mediocre job of supporting them. Zero—zero—graduates this past year pursued service-oriented majors, and very few entered government service. Oberlin also received no points on our scale of schools’ efforts to get students to vote.

Even if they try, selective private universities and liberal arts colleges can’t help many low-income students get ahead for the simple reason that they educate only 6 percent of all undergraduates. Flagship public universities have more capacity, enrolling 19 percent of all bachelor’s students, and some of them rank near the top of our list this year—kudos to the University of Wisconsin–Madison (12), the University of California, Berkeley (13), and the University of North Carolina at Chapel Hill (19). Unfortunately, many other flagship public universities, like the University of Colorado Boulder (109) and the University of Vermont (203), have become more like private universities—exclusive, expensive, and solicitous of wealthy out-of-state and foreign students rather than nonaffluent residents in their own states.

To find the real engines of upward mobility, you need to look lower on the traditional pecking order, to what are called regional public universities. These institutions often have “state” in their name, admit most or all applicants, and are generally not much known nationally. Yet they bestow more than 40 percent of all four-year degrees in America. U.S. News lists only three regional publics among its top 100 national universities. Sixteen make it into the Washington Monthly top 100, including California State University, Fresno (22), Florida Atlantic University (41), and Montclair State (57).

Regional publics also dominate the upper reaches of our bachelor’s and master’s lists. In the former category, fourth-ranked Elizabeth City State, a historically Black university in North Carolina, is number one in offering students a low net price, number six in ROTC participation, and number nine in research expenditures. SUNY Geneseo is the top master’s school for its formidable research and its number one performance in sending grads on to earn PhDs. Meanwhile, the many campuses of the for-profit DeVry University continue to disappoint. The branch in Ontario, California, is ranked 587th among our master’s schools because it charges students $30,000 a year, graduates an abysmal 26 percent of them in eight years, underperforms expected earnings by 25 percent, and sends practically no one on to PhDs.

Regional universities are the real workhorses of higher education. They serve exactly the kind of people that politicians in both parties—but especially Republicans, these days—profess to advocate for: working-class students in search of a practical education that will prepare them for the workforce and a step up the socioeconomic ladder. We’ve long been fans of these unassuming institutions, which have launched the careers of such prominent Americans as Tom Hanks and Tim Walz. Indeed, their virtues and struggles are the thread that runs through all the feature articles in this issue of the magazine.

For one, the teaching is better at regional public universities than at elite institutions, writes Jonathan Zimmerman. That’s because faculty at elite universities get ahead by pursuing research rather than good classroom pedagogy. That said, teaching quality throughout higher education is generally poor and has been for generations—a sorry situation that won’t change, Zimmerman argues, until the federal government puts its muscle and money behind reform.

Regional universities also provide states with an exceptional return on state taxpayer dollars, Zach Marcus reports. Whereas graduates of flagships often leave for jobs in distant cities, those of regional universities typically settle down and build their careers in-state. Yet the regionals typically receive far less public funding than flagships, which wield more political power. And conservative state lawmakers, channeling the outrage over campus “wokeness” their constituents pick up on Fox News, demand cuts to higher ed budgets that hit hardest the regional universities that most benefit their constituents’ kids. 

Because they are seen as lower status, regional universities sometimes try to ape flagships by tightening their admissions standards and devoting more money to research—actions that help them rise in the U.S. News rankings. They almost never lower their institution’s selectivity to serve more students and pour money into programs that meet local needs rather than burnish their national reputations. But that’s exactly what José Luis Cruz Rivera has done at Northern Arizona University. As Jamal Watson writes, Cruz’s early success is turning heads in the higher ed reform world.

Regional universities also offer some of the best returns for the millions of Americans looking to upgrade their careers by going to graduate school. That’s a key finding of a new ranking we are unveiling in this issue, “America’s Best and Worst Master’s Programs.” The other key finding is that the worst returns are offered at some of the country’s most prestigious universities. A master’s degree in nursing from Yale, for instance, will leave you $118,849 in debt, on average, whereas you’ll borrow only $23,302 for the same degree from the University of Texas Rio Grande Valley while earning slightly more five years later ($133,871 versus $128,563 for Yalies). Information like this can’t be found on U.S. News’s popular “Best Graduate Schools” guide, because that ranking mostly ignores how much programs cost or how much debt students tend to graduate with. If you want to understand how these elite universities get away with it, read Marc Novicoff’s investigation of the master’s in counseling program at Northwestern University. (Spoiler: It’s because the federal government lets them.)

Another first-of-its-kind ranking we are debuting in this issue, “America’s Best and Worst Colleges for Women in STEM,” tells quite a different story. Elite private universities like Carnegie Mellon and flagships like the University of Washington are the ones doing the best job of reversing women’s underrepresentation in science and technology degrees, while regional public universities are among the biggest laggards. But as Laura Colarusso notes, the high rate of women succeeding in STEM at elite universities takes away the reason other colleges often trot out for their failure: that women aren’t interested or can’t compete with men in these endeavors. If regional universities stop making excuses and up their game, their sheer size means that America could have considerably more female scientists and engineers to meet the economy’s growing demand for such talent.

And finally, Anne Kim reports on another way to improve outcomes for masses of students at unheralded schools: Reform the developmental education classes that so many freshmen get thrown into. Remedial education has long been a kind of limbo for underprivileged or underperforming students; it’s expensive, time consuming, and simply doesn’t work to get the vast majority of students back on track. Proven reform methods do exist, like “corequisite” classes that meet alongside, not in place of, college-level courses. But a decade-old push to put those fixes in place has stalled, Kim writes, and Washington needs to provide an extra push to overcome faculty skepticism and institutional inertia.

There’s clearly room for regional universities to improve their performance, but it would help if we didn’t starve them of funds. On average, regional publics receive about 10 percent fewer state dollars per student than do flagships. They also garner less federal research funding. And they don’t have the kind of gargantuan endowments that elite schools enjoy, because they are in the business of educating average Americans, not people who go into hedge funds and investment banks. If we supported regional universities at anything like the level of elite colleges, there would be considerably more of the former and fewer of the latter in the top 100 of our rankings.

Both sides of the aisle are guilty of ignoring the contributions of regional universities. But they do so for different reasons: liberals, out of ignorance or snobbery; conservatives, because it undermines the populist anti–higher ed agenda. After all, what are regional publics but a huge government-funded program, one that keeps flyover towns afloat while improving millions of working-class Americans’ lives?

Still, it’s possible to break through these sorts of partisan blinders. A few years ago, community colleges and vocational training weren’t high on the national agenda, either. Today, elected officials in both parties talk about them constantly, and at least pretend to want to invest in them. A similar boost in recognition for regional public universities could bring benefits beyond what can be measured in degrees attained and jobs acquired. Voters these days hold almost all institutions in low regard; it’s part of what drives the nihilism of our politics. But all Americans, regardless of party, ought to be proud of what regional universities do every day. Elevating them in the national conversation could go a long way toward bringing us together.

Special thanks to the Lumina Foundation for its support of the college guide and rankings issue and to the Bill & Melinda Gates Foundation and the Strada Educational Foundation for their support of our general higher education coverage.

The post A Different Kind of College Ranking appeared first on Washington Monthly.

Click here for the Monthly‘s Presidential Accomplishment Index and more essays comparing Trump and Biden’s achievements in office.

When it comes to federal regulations, Democratic and Republican presidents are judged by different standards. The former are expected to use federal regulations vigorously to advance liberal goals such as protecting the environment and the rights of workers. The latter are supposed to take an ax to federal regulations, especially those that burden large corporations. Neither task is especially easy. Moving a federal regulation through the complicated rulemaking process is time-consuming, and the same is true for getting rid of one. But both Donald Trump and Joe Biden played their assigned roles in their first terms, at least rhetorically. So it’s fair to assess their actual records by those partisan metrics: Was Biden an effective regulator, and Trump a successful deregulator? 

All in all, the Trump administration’s inexperience and sloppiness in rulemaking led an overwhelming number of its actions to be overturned in court. Biden, meanwhile, has had far more success promoting his agenda through regulations. 

But Biden’s accomplishments will be in jeopardy if he loses this fall, thanks to one lasting victory that Trump did achieve: appointing three justices to the Supreme Court. Since then, in a series of precedent-breaking decisions, the Court’s conservative supermajority has begun an assault on the foundations of the administrative state. Regardless of who wins the election, we can expect to see the next president pursue a similar agenda with a similar level of competence. This time, however, the playing field will be tilted to the right—unless he and his fellow Democrats in Congress take aggressive steps to curb judicial interference with regulation.

A year into his presidency, Trump proclaimed with typical bombast that he had launched the “most far-reaching regulatory reform” in U.S. history. “We have decades of excess regulation to remove,” he said in the Roosevelt Room of the White House, just before using an oversize pair of scissors to cut through red tape. “To help launch the next phase of growth, prosperity, and freedom, I am challenging my cabinet to find and remove every single outdated, unlawful, and excessive regulation currently on the books.”

Soon after taking office, Trump directed executive branch agencies to remove two regulations from the books for every one added. At the end of his term, he claimed to have zapped eight for every one. There are many ways to evaluate those benchmarks, but by any fair measure he did not reach his two-to-one goal, let alone the grandiose figure of eight.

Many of the regulations that Trump claimed to have revoked he was merely refusing to enforce, including numerous consumer protection standards. Among his administration’s attempts to actually remove regulations from the books, or add them, a staggering number—77.5 percent—were overturned in court. For comparison, other administrations lose these cases only about 30 percent of the time.

This winter, the libertarian Cato Institute attempted to measure Trump’s impact in several ways, all of which indicated that his deregulatory campaign at best kept the number of new rules level, and more likely saw a slight increase. One long-used, but imprecise, method is to count the number of pages in the Code of Federal Regulations, an annual register of all executive branch rules. Under Trump, the number of pages increased by 0.8 percent to 186,645—less than it increased in the Obama years, but far from the promised reduction. But tallying up pages in a book doesn’t tell you how many actual regulations were added or removed, nor how much of an effect, positive or negative, they had on the economy. A more sophisticated way of measuring regulatory burden is to count the number of restrictions implied by words such as must, required, may not, and prohibited that appear in the CFR. Trump’s first term also produced a marginal increase in that metric. 

Trump’s attempts to cut red tape were significantly hindered by his administration’s unfamiliarity with the ponderous bureaucratic processes that govern regulations. Federal rulemaking is a lengthy process that involves public comment, congressional and administrative review, and ultimately oversight from courts. To get rid of a regulation is similarly onerous, unless it happens within the 60-day time window that the Congressional Review Act gives lawmakers to block a new rule. The Trump administration often glided over steps in that process and used faulty reasoning to nix Obama-era regulations (or enact its own), which led courts to overturn a stunning 200 of 258 regulatory actions in the first Trump term. 

As the journalist Olga Khazan wrote in The Atlantic in 2021, Trump’s political appointees had little knowledge of the regulatory process, which led them to look to radical outside groups to guide their policies. Emails obtained by Khazan show that Trump officials consulted the anti-welfare think tank Foundation for Government Accountability as they crafted changes to SNAP eligibility that would have kicked 3.7 million people off food stamps during the pandemic. The administration offered little justification for the changes, other than that they would save money, and declined to weigh any potential negative consequences, as the rulemaking process usually demands. A federal judge blocked one part of that proposal in a scathing decision in late 2020, and Biden withdrew the rest the following spring.

Many of the regulatory actions Trump did undertake were openly slanted in favor of Big Business. Just to give a few examples: Trump substantially weakened Obama-era fuel economy regulations; presided over the congressional scaling back of the Dodd-Frank financial regulation law; and revoked federal standards to prevent discriminatory housing practices (which the administration viewed as a mandate to subsidize low-income housing over single-family homes). 

Although these regulatory moves doubtlessly saved large companies billions of dollars, they have the potential to impose costs on others, including taxpayers who might, for instance, be on the hook for bank bailouts down the road. 

Some of the biggest losers of Trump-era regulation were women. The Trump administration worked against women’s interests in many ways—by undermining private abortion care coverage, reducing access to birth control, blocking data collection on the gender pay gap, weakening Title IX gender protections and the Title X family planning network, taking away nondiscrimination protections in health care, and lowering the overtime pay threshold for working mothers.

When he assumed the presidency in January 2021, Biden quickly went to work undoing several Trump-era regulations. That included withdrawing the aforementioned proposal to kick millions off food stamps and, with Congress’s help, repealing rules that had relaxed restrictions on predatory payday lenders. 

He then began wielding regulatory tools to implement some of his boldest policies. To shore up U.S. manufacturing and decrease the nation’s dependence on international adversaries for critical supply chain materials, Biden’s Commerce Department slapped strict controls on microchip exports to China. The rules have required updates to plug loopholes, but have proved far more effective in their potential to strangle Chinese industry than any of Trump’s bluster about trade wars. At home, Biden in summer 2021 issued his “Executive Order on Promoting Competition in the American Economy,” a sweeping initiative that directed more than a dozen agencies to take steps like limiting noncompete clauses, allowing for over-the-counter sales of hearing aids, bringing back net neutrality (banished under Trump), and making it easier for farmers to bring claims against the monopolized meatpacking industry. As the Monthly editor Will Norris recounts, rulemaking efforts by federal agencies to promote competition have dovetailed with increased antitrust enforcement in the courts—and have already begun to weaken the grip of monopoly power over the economy.

By almost any measure, Biden has been a vigorous regulator. The number of “significant rules”—regulations impactful enough to be overseen by the Office of Management and Budget—increased by 451 in Biden’s first 18 months, as opposed to 270 in the same period for Trump. Biden also created 142 “major rules,” which have economy-wide effects, to Trump’s 81. In terms of instituting major rules, early-term Trump and Biden were comparable to their co-partisan predecessors, George W. Bush and Barack Obama. (Although, because of COVID-19, Trump actually enacted a record number of economic regulations in his last year in office.)

Biden has also made notable changes to a little-known but key chokepoint in the federal government’s regulatory machinery: the Office of Information and Regulatory Affairs. A subsidiary of the White House’s Office of Management and Budget, OIRA vets the cost-benefit analyses of regulations proposed by executive branch agencies. For years, regulation scholars and progressive advocates have complained that OIRA puts too much weight on the supposed cost versus the potential benefits of proposed regulations, listens too much to industry lobbyists and not enough to the public, and increasingly slows the regulatory process down. Last spring, Biden issued an executive order overhauling OIRA’s procedures on all these fronts. In a second Biden term, these institutional reforms could make the promulgation of regulations much smoother. Trump, however, could withdraw the changes if he takes back the White House. 

Moreover, Biden’s institutional changes pale in comparison to one Trump achieved in his first term. By appointing three justices to the Supreme Court, Trump created a conservative supermajority that, during the Biden years, has transformed the bench’s jurisprudence in administrative law. On their own initiative, the conservative justices have launched an assault on the administrative state and the delegation of power from Congress that underpins it—potentially doing much more to deregulate than Trump himself could in his first term. 

In their 2022 ruling in West Virginia v. EPA, the conservative justices expanded a legal framework called the “major questions doctrine” that significantly narrowed what kinds of regulatory power Congress can delegate to executive branch agencies. After oral arguments this year in Loper Bright Enterprises v. Raimondo, Trump’s supermajority appears ready to continue its campaign against regulations, this time by undoing the so-called Chevron doctrine—long-standing precedent that gives agencies leeway in interpreting the federal laws that enable government rulemaking. Both cases threaten not just individual regulations but also the legal foundations on which all regulations are built.

If Trump wins this fall, he’ll likely be able to overturn much of what Biden accomplished in his last months. The conservative Court supermajority he appointed might also make quick work of other signature Biden regulatory reforms that would otherwise be harder for Trump to dislodge. 

But would Trump improve on his abysmal record of losing regulatory cases in lower courts? Possibly not. Many of his first-term failures stemmed from the sloppiness and inexperience of his staff. This time around, Trump seems not to have learned his lesson. He has announced plans to bring the federal bureaucracy even more under his direct control, and with the help of right-wing think tanks is compiling lists of loyalists to replace career civil servants. The likelihood of a second-term Trump regulatory agenda being advanced by sober, effective professionals is looking ever slimmer.

And at the same time, Trump may find a total dismantlement of the administrative state at odds with his stated intention to use the federal government to punish his adversaries at home and abroad. A second term would more likely see him reduce regulatory burden on selected corporations and political allies, while heaping it onto those he distrusts. 

What if Biden is the victor in November? Undoubtedly, he’ll continue to aggressively use regulations to implement new legislation, or to make policy directly in case he can’t get those bills through Congress. And thanks to his OIRA reforms, Biden will have an easier time getting new regulations through the slow-moving rulemaking process.

Looming over all of this, however, will be a Supreme Court increasingly intent on making itself the decider on regulatory authority questions. In his second term, when the Court inevitably torpedoes one of his regulations, Biden will need to find ways around its decision, just as he has in his first term. For instance, when the Court last June overturned Biden’s forgiveness of $430 billion in student loans, his Department of Education responded by expanding debt relief through the “SAVE” program, on firmer statutory ground. 

At some point, however, Biden may have to challenge the Court’s power directly. If a Court vacancy opens, he could nominate a jurist with knowledge of administrative law who firmly supports the Chevron doctrine and opposes the major questions doctrine. He would also be wise to nominate judges to lower courts who have backgrounds in economics, labor, and other subjects that would help them go toe-to-toe with their conservative anti-regulatory brethren (see Caroline Fredrickson’s essay). And if Democrats take control of both houses of Congress, they could pass, and Biden could sign, a “Congressional Review Act” for Supreme Court decisions, giving legislators a fast track through the filibuster to respond. As it stands, Congress is too sclerotic to issue clarifying legislation for each major regulatory decision, which effectively leaves the last word to the Court. 

In either president’s second term, altering the course of the slow-moving ship of state will remain a cumbersome process. For Biden, however, it’ll likely be even more so, with a hostile Supreme Court looking over his shoulder. With Trump, the same self-sabotaging patterns will probably arise. Either way, expect to see long-running tensions come to a head as both men work to finish what they started.

The post Trump vs. Biden: Who Got More Done on Regulation? appeared first on Washington Monthly.

Not so long ago, John Roberts patiently explained to reform-minded folk on Capitol Hill that the Supreme Court had no need for an ethics code. It was December 2011, and despite a recent scandal involving unreported income for Clarence Thomas’s wife, Roberts assured in his year-end report to Congress that the justices were policing themselves just fine. They followed laws that required them to report major gifts (Thomas’s lapse aside, presumably), and they used the lower-court code of conduct as “guidance,” even though it wasn’t binding. In some places, the chief justice seemed to hint that outside pressure over ethics was not only unnecessary but actually harmful—for instance, if it forced a justice to recuse himself “as a matter of convenience or simply to avoid controversy.” “At the end of the day, no compilation of ethical rules can guarantee integrity,” Roberts tutted. 

This fall, the chief justice ate his words. Faced with press exposés of ethical misconduct, especially by Thomas—free luxury vacations and private-school tuition from the billionaire Republican megadonor Harlan Crow, among many other unreported gifts—as well as plummeting public opinion, a congressional investigation, and the possibility of direct oversight from lawmakers, Roberts adopted the first ethics code in the Court’s 235-year history. The rules contained no enforcement mechanism and were watered down in subtle ways from the standard that lower courts follow. Still, it was an extraordinary capitulation: The justices had done something they long insisted they would never do.

On MSBNC, Rhode Island Senator Sheldon Whitehouse proclaimed the code “the first chink in the armor of indifference” around financial misconduct on the bench. But it was much more than that. The justices’ willingness to place specific limits on their own behavior—however unenforceable—marked a blow to an even more fundamental belief that the Court has long held about itself: its singularity. 

For the Court to remain “supreme,” the idea goes, it must float serene above all external influence, including any kind of ethics oversight or congressional regulation. In his 2011 report, Chief Justice Roberts took care to note that the justices observed federal financial disclosure law even though “the Court has never addressed whether Congress may impose those requirements on the Supreme Court.” And again, on the justices’ decision to follow federal law relating to recusal: “The limits of Congress’s power to require recusal have never been tested.” This past summer, Justice Samuel Alito—whose own ethical lapses have also come to light, including an unreported luxury jet trip to Alaska courtesy of another GOP donor with business before the Court—scoffed at the prospect of congressional intervention, telling The Wall Street Journal, “No provision in the Constitution gives them the authority to regulate the Supreme Court—period.” Alito wasn’t speaking out of turn; he was articulating long-held policy. Simply put: The Court must stand alone. 

There is, however, a danger in always standing apart from others. It can easily lead to standing above them. As Garrett Epps, the Washington Monthly’s legal editor, wrote in fall 2022, the Court is now mired in its third great historical crisis. Twice before, in the 1850s and the 1930s, the high court has been captured by adherents of one political party who have attempted to govern from the bench. When one branch of government declares its own primacy over the others, as well as the American people, the result is dangerous instability. In the era of Dred Scott, the Taney Court sided firmly with southern slaveholders, accelerating the coming civil war. During the Great Depression, the “Four Horsemen” on the Hughes Court blocked government programs meant to lift the country out of economic disaster. 

Now we have the Roberts Court, shaped by pro-corporate ideology and conservative resentment over social and demographic change. Overturning decades of precedent, the conservative supermajority has issued ruling after ruling that undermines the ability of executive branch agencies to regulate industry, to fight climate change, and to protect consumer health and safety. Its 2022 Dobbs decision on abortion has created a dystopian reality on the ground: neighbors informing on neighbors, children forced to give birth to their rapists’ babies, terrified doctors waiting for patients to get sicker before performing medically necessary procedures. 

The good news is that the reactionary turn of the Court has awakened a sleeping giant. Voters, including many Republicans, are in open revolt against Dobbs, as recent elections demonstrate. A popular movement against the Supreme Court itself hasn’t coalesced, at least not yet. But the justices’ actions have increasingly shocked center-left elites out of their ingrained deference toward the Court—as the pressure for ethics reform that congressional Democrats and others put on Roberts shows.

And in the end, Roberts blinked. Modest as it was, the Court’s concession—that it is not inviolable, not, after all, so supreme—indicates that the justices may finally have gone too far, and cracked open a window for deeper reform. 

Anyone concerned about the Supreme Court today should be working to prise that window open further. And to do so, they ought to draw on the robust and inventive debate that is brewing among scholars in law schools, think tanks, and advocacy organizations over how to fix the Court. Some of their ideas are bold structural changes: dividing the Court into rotating panels, stripping it of jurisdiction over certain issues, or controlling its certification process. Others are practical and based on policies already proven to work elsewhere, such as creating a “Congressional Review Act” for Supreme Court decisions, as already exists for executive branch regulations. What these ideas share is a recognition that the rights-giving 20th-century Court that liberals came to respect, even revere, is gone. Today’s progressives now realize that the high court is not an infallible fount of wisdom, and that it is historically more often a conservative force; and with that understanding comes a question that these scholars will help us all to answer: What is the Supreme Court even for?

President Joe Biden and other Democratic leaders have not embraced this deeper reform debate, perhaps recognizing that the political moment hasn’t yet arrived. When the survival of democracy depends on each coming election, a little short-term thinking is understandable. 

But one day that moment will come, and it may come suddenly: a wave election, a string of Senate vacancies, a scandal of new, earth-shattering magnitude, or a series of decisions as harmful as Dobbs. When that happens, reformers need to have a plan ready to go—a plan that will require broad public consensus about what problems need to be solved (Should we be restoring the Court’s legitimacy? Limiting its power? Or some combination of both?) and a detailed road map to achieve those goals through nitty-gritty policy. And it’s not as simple as drafting up a document and leaving it on the shelf. Being ready means spending years on movement building to bring together academics, policy wonks, and regular Americans, all waiting to grasp that perhaps fleeting and unforeseeable opportunity. Either that, or submit to being governed for another 30, 40, or 50 years by unelected partisans in robes.

So, for those who want to save the Supreme Court, that conversation must begin now.

A vanguard of law scholars has long warned that Americans, and liberals in particular, rely too much on the courts as interpreters of the Constitution and defenders of civil rights. Even as the Supreme Court recognized gay marriage in the 2010s, building on the unenumerated rights it had discovered in previous decades, “popular constitutionalists” such as Mark Tushnet and Larry Kramer worried that the bench was grabbing power for itself—power that could just as well be used to take rights away. With the blockade of Merrick Garland and the election of Donald Trump, those fears were realized. A tipping point for many law scholars came during the raucous and sometimes absurd confirmation of Brett Kavanaugh, in which the nominee, who had been accused of sexual assault, ranted about Clinton plots and his love for beer. 

Watching those hearings, Ganesh Sitaraman, a constitutional law professor at Vanderbilt, had had enough. He went to a colleague, Daniel Epps of Washington University in St. Louis, who recalls him saying, “This is not going to go away. People are going to care about this. Let’s get on top of this.” In 2019, the pair published a law review article titled “How to Save the Supreme Court.” (Dan Epps is the son of Garrett Epps, who helped to edit this Monthly article.) The scholars painted a dire picture. The partisan balance and public image of today’s Court, they said, is roughly equivalent to that of the pre–Civil War Taney Court. The similarity lies not in the overt racism of decisions like Dred Scott, but rather in the widespread public belief that the Court was in the tank for southern slaveholders. Today, the Court is viewed by many as an arm of the Republican Party, a source of grave concern to Epps and Sitaraman: “In a world where the Supreme Court is widely seen as just another political institution, how will people think about law itself? Our fear is that in such a world, the very idea of law as an enterprise separate from politics will evaporate.” 

The Supreme Court needs to be thought of as a neutral arbiter for political disputes, not just another player in them, the law professors argued—and so fixing it today is a question of restoring that aura of public trust. Right away, that goal disqualified the most talked-about idea at the time: court packing. Supporters of court packing like the political scientist Aaron Belkin argue that the Supreme Court has already been stacked with highly ideological conservatives who gained their seats through norm-breaking political brinksmanship, and so to add, say, six liberal or moderate justices would actually be to unpack it. But as Epps and Sitaraman pointed out, that reasoning would mean little to Republicans, who would have every incentive to repack the Court as soon as they regained power. (Belkin, for one, finds that argument unconvincing. “The first thing is that the Court has already been stolen. If your wallet is stolen, you don’t forgo efforts to recover it just because it might be stolen again,” he told The Atlantic in 2020.) 

To fix the Court in a durable way, the two scholars imagined a total rework meant to make partisan capture almost impossible. The first step was to expand it even more. Epps and Sitaraman proposed appointing every circuit court judge—all 179 of them—an associate justice of the Supreme Court, which would hear cases on a rotating panel system. Every two weeks, nine justices would be picked by lottery from the larger pool. A few more tweaks would ensure impartial rulings: No more than five judges on a panel could be appointed by a president of the same party, and to rule federal law unconstitutional would require a 6–3 supermajority. Each change was meant to counteract a structural weakness that makes the Court vulnerable to political machinations. Partisans in Congress, for instance, would have less incentive to game the appointment process if each seat mattered less, and the larger pool of judges would reduce the unpredictability of death and strategic retirement. 

Along with that framework, which Epps and Sitaraman call the “Supreme Court Lottery,” they offered an alternative: the “Balanced Bench.” In this variation, five permanent justices from each party select another five temporary justices, who must be chosen either unanimously or by a supermajority. Those temporary judges serve a year on the Court, and are chosen two years in advance (so that no conniving parties can strike deals with to-be-appointed justices on specific upcoming cases). If the Court doesn’t fill those seats, it doesn’t convene. Like the other plan, the Balanced Bench is designed to thwart partisan takeover; in this case, by incentivizing consensus. Permanent justices would be forced to choose the most moderate and broadly acceptable temporary justices; and Congress would be encouraged to appoint more plausible centrists to the lower federal judiciary, since ideologues would have little chance of reaching the high court. 

Epps and Sitaraman’s institutionalist, fix-it attitude defines one side of a central divide in the reform debate. You might call their approach the “legitimacy” school of reform, the one that holds that we need to restore respect and trust in the Court. The other side—call it the “democratic” or “disempowering” school—emerged in a lengthy, at times fiery reply to Epps and Sitaraman in the California Law Review. The authors, Harvard’s Ryan Doerfler and Yale’s Samuel Moyn, offered a much simpler plan for the Court: Get it out of the way. “Asking ‘how to save the Supreme Court’ is asking the wrong question,” they wrote. “Saving the Supreme Court is not a desirable goal; getting it out of the way of progressive reform is.” 

Doerfler and Moyn, who write in long, elliptical sentences that land like academic grenades, diagnosed a liberal myopia about courts that traces back to Franklin Delano Roosevelt. They argued that the 32nd president’s challenge to the Supreme Court was disastrous—not because he proposed a court-packing scheme, but because he failed. The story of the famous “Switch in Time” and the narrow defeat of court packing in the Senate is often treated as an example of presidential overreach, a reason why the Court should be off-limits. But in fact, after Roosevelt accepted judicial deference in lieu of real structural change, the events that followed—the Court’s wartime decisions on religious freedom, the rights-expanding precedents of future decades, the anti-regulation rulings of the 2000s—saw the institution grasp ever more power. Meanwhile, liberals got the policies they wanted, but were lulled into relying on courts for those things rather than fighting for them themselves. 

To Doerfler and Moyn, tinkering changes like those offered by Epps and Sitaraman fall prey to that liberal Court Adoration Syndrome. The Epps/Sitaraman approach claims to protect the Court’s neutrality, but really, in balancing partisan interests so overtly, it’s just replacing left- or right-wing ideology with a different, centrist point of view. Beyond that, it doesn’t address the fundamental problem of the Court’s outsized influence. But the most immediate obstacle to these technocratic reforms, Doerfler and Moyn said, is that they are too complex for the average person to grasp and to chant for at a political rally. “This dooms any case for their feasibility,” they wrote. “What only law professors can understand, a popular movement will never demand.” 

The only response to a Court that has grabbed too much power, they said, is to take some of it away. One way to do that would be to strip it of jurisdiction over subject areas in which it might feel tempted to interfere with progressive change, such as environmental regulation or health care reform. The Constitution gives the Supreme Court “original jurisdiction” over disputes between the states and between high-ranking ministers such as ambassadors. That can’t be taken away. Everything else falls under appellate jurisdiction, which Congress has the constitutional power to regulate. Doerfler and Moyn didn’t outline a definite plan for how jurisdiction stripping should take place; the point, they said, is for the people themselves to decide how the country should be run, and to clear a path through obstructive courts to put those values into action. Other “disempowering” tools can be part of that conversation: “override” provisions that would allow Congress to vote to nullify Supreme Court decisions, or “poison pills” that would trigger more drastic policies if the Court overturned legislation (though Doerfler and Moyn are skeptical about the power of this deterrent).

Epps and Sitaraman soon fired back—you can’t just blow up the Court, they said; you need it for some things, like rights protection—which kicked off a lively discussion in the nation’s law journals, with ideas flowing from all corners of the country. Conservatives joined the discussion too, including William Baude, who continued to call for reform of the “shadow docket,” a term he coined in 2015 to describe emergency orders, which the Roberts Court has increasingly used to decide cases without a full hearing. One of the more creative examples came from Suzanna Sherry of Vanderbilt, who in “Our Kardashian Court” argued (while missing a golden opportunity to spell it “Kourt”) that the justices have bought into the celebrity culture exemplified by the famous-for-being-famous family. Cults of personality form around the Court’s biggest stars, whose jurisprudence has become warped by the need to cater to their fan bases. Think of the “Notorious RBG” mugs, of Antonin Scalia’s rock star tours of law schools, and of the many openly political events attended by Alito, Neil Gorsuch, and Amy Coney Barrett, including campaign-style pressers with Mitch McConnell and glitzy Federalist Society galas. To solve the problem, Sherry proposed making authorship of opinions secret and prohibiting separate concurrences and dissents. To avoid sounding like the Real Justices of First Street, the bench must speak in one disembodied voice.

Many of these reforms may sound extreme in their ambition and their scale. Court packing, jurisdiction stripping, elevating a hundred district judges at once to the Supreme Court—ideas that sweeping evoke the antidemocratic judicial takeovers of Hungary’s Viktor Orbán or Poland’s Law and Justice party. But almost all of the proposals have precedent in America’s history, and helped to shape the basic structure of the Court as well as the changing intellectual paradigms that guided its jurisprudence. 

In 1801, John Adams shrank the Supreme Court by one seat (from six to five) and packed the lower federal judiciary just before handing over the presidency to his rival, Thomas Jefferson. This “Midnight Judges Act” sparked a cutthroat fight in Congress, and it inspired Chief Justice John Marshall to get in while the power grabbing was good: Two years later, he used a case stemming from Adams’s appointments, Marbury v. Madison, to establish the practice of judicial review, a privilege not explicitly afforded to the Court in the Constitution. The size of the Supreme Court would change six more times in the next 80 years, often for political reasons. (Abraham Lincoln, who battled the Court over his Civil War powers, expanded it to 10 justices in 1863.)

The same goes for other present-day reforms. Jurisdiction stripping as a check on the judiciary was endorsed by Progressive Era politicians who sought to shield child labor regulations from a hostile Court that had twice struck them down; the same senators, including Robert La Follette of Wisconsin, also called for supermajority requirements and legislative override provisions. Later that century, southern segregationists outraged by Brown v. Board of Education called on the Senate to make itself the final appellate body on questions of states’ rights, with the power to overrule the Supreme Court. 

As Jamelle Bouie of The New York Times once pointed out, the historical norm has been to treat the Supreme Court as just another democratically accountable institution—a work in progress, not an untouchable holy idol. “This idea, that the court should work with our democratic aspirations and not against them—and that we should not hesitate to change and experiment with the court should we find ourselves struggling against it—is practically verboten among mainstream politicians,” he wrote in 2021. “But it is a critical part of our political heritage, stretching back to President Thomas Jefferson’s battles with a Federalist-dominated judiciary at the start of the 19th century.” 

As the Democratic presidential primaries began to heat up in 2020, the academic discussion seeped into progressive politics. Sitaraman had a long association with one of the front-runners, Elizabeth Warren, having served as her policy adviser and legal counsel in different stints since 2008. Now the wonkish senator began to repeat some of his ideas on the campaign trail. Senator Bernie Sanders of Vermont disavowed expanding the Supreme Court but supported a plan to rotate conservative justices down to lower courts. The policy nerd and upstart mayor Pete Buttigieg joined in, enthusiastically endorsing the Epps/Sitaraman lottery and citing The Yale Law Journal in his stump speeches. The demand among the base was strong enough to force Joe Biden to flirt with reform as well; as a candidate, he refused to say that he wouldn’t pack the Court. 

Playing footsie with FDR’s legacy didn’t cost Biden the election, though it was vanishingly close in key swing states. With a razor-thin majority for Democrats in Congress, a total overhaul of the Supreme Court in 2021 was obviously out of the question. But Biden did what seemed like the next best thing: He formed a presidential commission, stacked it with the country’s finest minds in constitutional law, and told them to report back on the present-day debate, the history of court reform, and the feasibility of the myriad ideas floating around. It might have been the start of a much-needed conversation, a chance to awaken the public to the crisis of the Court and hand them the intellectual tools needed to one day fix it. 

In the end, it wasn’t. The scholars did their job well, assembling a 300-page report that drew together all the major ideas and the arguments for and against. They compared the Epps/Sitaraman proposals and the competing policies from Doerfler and Moyn—and many others—and they plumbed how those tied in to differing philosophies about the role of the Court. They collected dozens of hours and thousands of pages of testimony from even more experts. Reading the commission’s report, which was released in December 2021, is enough by itself to give a layperson a comprehensive understanding of the debate. But it doesn’t offer any guidance about what to do next—and that’s because the scholars were told not to. Michael Waldman, a member of the commission and the president of NYU Law’s Brennan Center for Justice, recently aired his frustration with this on the popular podcast Strict Scrutiny: “We were actually instructed, publicly instructed, not to reach conclusions. And we didn’t—and so this was finally a government agency that works as intended.” 

By the end of 2021, the political momentum had petered out. The White House had moved on to other massively consequential programs, like the $1 trillion infrastructure bill and the Build Back Better initiative. The latter took almost a whole year of intense negotiations to get Senator Joe Manchin’s crucial signoff for its successor, the Inflation Reduction Act. All the same, some commentators were still working to bring a richer court reform discussion to the broader public. Journalists such as the Times’s Bouie, Vox’s Ian Millhiser, and The Washington Post’s Ruth Marcus tracked the Court’s outrages and the potential structural changes worth considering. Week by week on Strict Scrutiny, the law professors Leah Litman, Kate Shaw, and Melissa Murray gave in-depth and accessible explanations of the Court’s latest doings, while helping listeners to laugh through the absurdity and the horror. The reformers themselves occasionally got the word out through scattered opinion pieces in mainstream news.

Yet reform remained sidelined. Part of the problem seemed to be that the conservative supermajority hadn’t yet realized people’s deepest fears. Despite flirting with initiatives like the “independent state legislature” theory and a Texas abortion law designed to avoid judicial review, the Court did not embrace the most extreme options available to it, preferring instead its usual fare of striking down government regulations and protecting the rights of corporations and the religious. The runaway Court remained a worry, but a worry in the back of the public’s mind. 

In summer 2022, a case out of Mississippi would change all of that.

The first thing to note about Dobbs v. Jackson Women’s Health Organization is that, from a strategic standpoint, it was totally unnecessary. The Supreme Court didn’t need to overturn Roe v. Wade to effectively outlaw abortion in red states. As observers noted before the decision, the Court had been chipping away at the precedent for years by allowing ever more onerous requirements on abortion providers. It could have continued to do so, leaving Roe standing in name only and producing a much more muted backlash. But Mississippi passed a law directly challenging the precedent, and the conservative Fifth Circuit (a panel even more partisan and unmoored from convention than today’s Supreme Court) struck it down, citing Roe, setting up a confrontation the justices couldn’t resist. 

Assigned to write the opinion, Alito, a devout Catholic and avowed enemy of Roe, decided to swing for the fences. The irascible originalist dynamited 50 years of bedrock precedent, declaring Roe “egregiously wrong” and “and on a collision course with the Constitution from the day it was decided.” To prove that abortion has always been a “crime,” he cited a 13th-century jurist, Henry de Bracton, who was an authority on the ducking stool and who called for women suspected of false pregnancy to be locked in a castle and examined daily by “feeling her breasts and abdomen and in every way.” Even worse, Alito appeared to make no exception for rape or incest. And he gave the sense in his writing that the conservative supermajority was drawing a new line in the sand. From that point on, the possibility loomed that they might declare any long-standing precedent unconstitutional, as long as they judged it, by whatever standards suited them, “egregiously wrong.”

Justice Thomas’s concurrence gave a hint of where that could lead. Many of the rights enshrined by the Warren and early Roberts Courts over the past half century—including abortion—relied on an unenumerated “right to privacy” discovered within the Fourteenth Amendment. Now, Thomas opined, the Court ought to follow up on its rollback of Roe by declaring other privacy-based rights unfounded: the right to use contraception, and the right to be intimate with a person of the same sex or to marry them. (Notably, he did not mention Loving v. Virginia, the decision that struck down anti-miscegenation laws. Thomas is Black, and his wife, Ginni, is white.)

Democrats universally decried Dobbs and urged voters to express their displeasure at the polls, which they did that fall, forestalling the predicted “red wave.” Still, Republicans won a narrow majority in the House, and there was no direct action against the Court before Democrats handed over control in January 2023. 

Meanwhile, the academic debate was still brewing. In February 2022, the scholars Willy Forbath and Joseph Fishkin released a landmark book, The Anti-Oligarchy Constitution, that offered a bird’s-eye map for court reformers by updating Progressive Era arguments about constitutional law for the present day. Positively and brilliantly reviewed by the law scholar Caroline Fredrickson in that April’s Washington Monthly, the 640-page opus argued that today’s liberals ought to embrace a concept called “popular constitutionalism,” which would greatly widen the present-day conception of who gets to interpret the Constitution and what sorts of questions are “constitutional” ones. 

Right now, the Supreme Court jealously guards for itself the task of deciding what the Constitution means, and it thinks of that meaning narrowly, as a question of individual rights and the limits of the federal government’s power. In contrast, popular constitutionalism says that all three branches of government, and all Americans, should see themselves as “constitutional” actors. Furthermore, it holds that many more kinds of questions about how we order society should be considered constitutional issues. The Constitution doesn’t just stop the government from interfering with private citizens; it also implies that government has the obligation to do certain things for the people—to fight against wealth concentration, for instance, and to provide economic opportunity. Forbath and Fishkin’s book offered a holistic view of the current crisis of the Court: It’s not just one policy or another that will fix it, but rather the grander project of building a society that shares broadly the responsibility of deciding these fundamental questions.

In November of that year, the Anti-Oligarchy authors discussed their book at a Georgetown Law School conference stacked with all the big names in the academic reform movement, as well as major figures like Maryland Representative Jamie Raskin and E. J. Dionne of The Washington Post. The event, which was organized by the American Constitution Society, a left-leaning counterpart to the Federalist Society founded in 2001, had an air of possibility, of action and invention, in sharp contrast to the glum “what-can-you-do” coverage that followed Dobbs. Unlike other places of public discourse, there was a willingness to directly confront the Court, and even to take action against the justices themselves. 

“I want to suggest that courts are the enemy, and always have been,” Josh Chafetz, a Georgetown Law professor of the “disempowering” school, said on an afternoon panel with Doerfler, Sitaraman, and another Georgetown scholar, Victoria Nourse. In one exchange, Chafetz called for retaliation against the justices as individuals, wondering aloud whether Congress should consider withdrawing funding for law clerks or even “cutting off the Supreme Court’s air conditioning budget.” The quip drew a faint chuckle from the crowd, but Doerfler, deadly serious, interjected: “It should not be a laugh line. This is a political contest, these are the tools of retaliation available, and they should be completely normalized.” What put us here, he said, is the idea that the Court is an “untouchable entity and you’re on the road to authoritarianism if you stand up against it.”

As could be expected, the institutionalists and disempowerers rehashed the major points of their debate, and they and others threw out still more ideas to reform the Court. An inventive and yet eminently practical one came from Sitaraman, who proposed a Congressional Review Act for Supreme Court decisions, similar to what already exists for executive branch regulations, that would give legislators a fast track through their own procedures in order to quickly respond to court rulings. Later, spitballing, Chafetz imagined a remedy of linguistic dimensions: Have executive agencies abandon the legalese that they use when writing policy. Instead of using Latin phrases and citing precedent in anticipation of being dragged into court, bureaucrats would be freed to express themselves in language that reflected the priorities of the people they serve.

Forty years and a few months earlier, another possibility-filled symposium drew together a band of starry-eyed eggheads to reimagine the Supreme Court. That was the founding meeting of the Federalist Society, a rapturous weekend at Yale in April 1982 during which conservatives hatched a scheme to train up ideologically complaisant lawyers and stack the judiciary with them. In November 2022, Dionne, the Post columnist, suggested that the Georgetown conference might be the beginning of a similar liberal-leaning transformation. “Maybe this gathering will be the early history of what happens next,” he said.

Those who make comparisons between today’s reform movement and the Federalist Society should keep in mind that it took the conservatives 40 years to transform the Court. Though there are changes that can and should happen now, reformers should also be thinking in longer arcs. 

Right now, the conservative justices have through their own actions given momentum to one shorter-term reform: ethics. A litany of the misconduct revealed over the past year would take up too much space, but what’s notable is that it has shaken some Democrats into confronting the Court more directly. Senators Sheldon Whitehouse and Dick Durbin, of the Senate Judiciary Committee, are pressing ahead with an investigation into whether the justices’ failure to report billionaires’ gifts might have broken other federal laws. Senate Majority Leader Chuck Schumer has taken to attacking the present Court’s legitimacy, calling it the “MAGA Court.” Biden himself acknowledged, this past summer, that this is “not a normal court.” 

Still, with 2024 looming, the Democrats are shying from more fundamental institutional conflict. This may be wise, electorally; their voters are already activated over Roe, and a more direct challenge to the conservative supermajority could ring alarm bells in the Republican base (and further antagonize the justices, who might well end up deciding the election). But there are a few changes that political leaders can and should consider now. One is for Congress to adopt its own set of enforceable ethics rules for the Court, which, at a minimum, would signal the legislative branch’s willingness to assert itself as a check on the judiciary. Another, a simple change of Senate rules, is to get rid of “blue slips,” a practice that gives home-state senators an effective veto over appointments and allows Republicans to block lower-court judges for political reasons. Other ideas to reduce the brinksmanship of judicial appointments include a proposal that the Senate should have a time limit to hold hearings and vote on nominees.

Much else depends on building electoral majorities and an energized coalition that understands the issues and presses political leaders to act. But if Democrats win back Congress and hold the White House next year—admittedly an uphill climb—they should also consider passing Sitaraman’s Congressional Review Act. Right now, Congress doesn’t have an easy path through the filibuster to clarify its legislation, which leaves the justices with the last word on what lawmakers had in mind when they wrote a federal statute. As Sitaraman once put it, Congress needs a way to say, “No, this is what we meant.” 

The Supreme Court didn’t get this way all by itself. A deepening political divide has exposed structural weaknesses in American government, expressing itself in an ineffectual Congress that struggles even to pass a budget, an imperial presidency that has taken on most actual governing, and a partisan, overreaching Supreme Court. For the Court to change in a more fundamental way, the forces pressing on it will have to change as well. 

In the middle to long term, that means strengthening Congress, and encouraging it to push back on the Court’s usurpations of its constitutional powers. The executive branch, too, should assert itself as a constitutional actor in dialog with the Court. In that vein, some reformers advocate for what Doerfler calls “the tool of conflict”—that is, running popular reforms into the buzz saw of the Court. The tactic might seem futile to some, but the accelerationists of the reform community argue that it can help build political momentum by focusing the public’s attention on the rights and privileges that the Court is denying them. The Biden administration did something like this with its student loan forgiveness program, which it advanced despite the widespread—and correct—expectation that the Court would strike it down.

The 2021 Presidential Commission, despite its flaws, helped to identify another fix with bipartisan potential: term limits for Supreme Court justices. The policy enjoys wide support, most state supreme courts already use it, and, as the commission pointed out, “The United States is the only major constitutional democracy in the world that has neither a retirement age nor a fixed term limit for its high court Justices.” Replacing a justice every two years would reduce the randomness of illness, the unfairness of strategic retirements like Anthony Kennedy’s, and the political stakes of judicial appointments. It would make the Court somewhat more responsive to elections and changing views, and ensure that each presidential term comes with a certain number of appointments—a persistent concern given that Republican presidents have placed far more justices on the Court in recent decades, in proportion to the number of years they have controlled the White House.

There are a surprising number of complications to this seemingly commonsense reform, though, which make it a longer-term prospect at best. The Constitution says that justices shall serve “during good behavior,” which is widely understood to mean for life. Advocates have found ways around this by proposing that term-limited justices remain on the bench but assume “senior” status, among other workarounds, but the constitutionality of the idea is still unclear. And most of all, the implementation is incredibly important. What do you do with the justices already on the bench? In a 2021 paper, Dan Epps and three coauthors, Adam Chilton, Kyle Rozema, and Maya Sen, modeled the historical life spans and retirement times of justices to estimate how long it would take to achieve a fully term-limited Court based on different implementations. If reformers rotated a justice off every two years starting today, the transition would take 18 years. If they waited for the current nine to retire, it could take half a century.

Some of the more sweeping structural reforms, like Epps and Sitaraman’s grand reordering and the aggressive disempowerment of Doerfler and Moyn, also probably belong in this long-term category. And whether reformers ultimately go with a confrontational strategy or a more moderate, institutionalist approach—or some combination thereof—will depend on a wider public debate that should begin now. The liberal base, and America as a whole, ought to think about how its shared values can inform a new vision of what the Court is for. 

On March 9, 1937, Franklin Roosevelt devoted one of his fireside talks to an explanation of his plan to pack the Supreme Court. His complaints about the justices sound like they could have been uttered this very day: The Court had “improperly set itself up as a third House of the Congress—a superlegislature … reading into the Constitution words and implications which are not there and which were never intended to be there.” 

And in a rhetorical frame that today’s reformers should copy, Roosevelt made clear that the fight was not between the president and the Court, but the Court and the people. In a parable of sorts, he likened the American government to a plow being pulled by a three-horse team. One horse, the judiciary, had gone off in its own direction, threatening to break the whole contraption apart. He, FDR, was trying to bring the team back together. But that didn’t mean he was taking control of the entire plow cart of state. The president, after all, is just another horse. (And as we all know, horses follow public opinion.)

“It is the American people themselves,” Roosevelt said, “who are in the driver’s seat.”

The post How to Fix the Supreme Court   appeared first on Washington Monthly.

Over the past year, a steady flow of institutions of higher education have withdrawn from U.S. News & World Report’s increasingly troubled college rankings. First, in November 2022, several prestigious law and medical schools departed, including Stanford, Yale, Penn, and Harvard. Then, this past winter and spring, four well-regarded colleges—Bard, Stillman, Colorado College, and Rhode Island School of Design—announced that they would no longer cooperate with the magazine’s rankings. And finally, in June, Columbia became the first top university to stop participating in the undergraduate rankings, expressing concern about their “outsize influence.” The latter wasn’t the brave stand that it might have seemed—Columbia had fallen 16 places in the prior year’s list after one of its professors revealed that administrators had been juking the stats—but no matter: After years of criticism over U.S. News’s unreliable, prestige-obsessed reign over American higher ed, an exodus has begun. 

What are these schools rebelling against? In their announcements, similar phrases pop up again and again: “outsize influence,” “the tyranny of rankings.” College administrators clearly resent the power that U.S. News has over how they run their institutions. But there was another current within the flood of “Dear John” letters, a sense that the rankings’ priorities are hindering, not helping, schools’ professed commitment to public service. Take Harvard, which objected that U.S. News’s methodology makes it harder to “enhance the socioeconomic diversity of our classes” and “allocate financial aid to students based on need.” Or take RISD, which complained that the metrics are “unambiguously biased in favor of wealth, privilege and opportunities that are inequitably distributed.” To be sure, Harvard and, to some degree, RISD also embrace policies that are “unambiguously biased” toward the rich and powerful. (Legacy admissions, anyone?) But their paeans to the cause of inclusion speak to a broader shift in public opinion, a disgust with the self-serving institutions of the elite that can no longer be ignored.

The clamor for these changes is so loud that even U.S. News is listening. In May, the publication announced that it would begin tracking colleges’ success in graduating students from diverse backgrounds and remove alumni donations and class sizes as factors in its rankings, among other measures. Small changes, but a recognition, at last, that something is fundamentally off.

Now more than ever, we need a better set of benchmarks for what “excellence” is in higher education, ones that measure what colleges do for their country, instead of for themselves. The Washington Monthly’s college rankings try to do just that, by rating institutions on their commitment to three goals: social mobility, public service, and research. Rather than laud the universities that mostly cater to the sons and daughters of the wealthy, we reward those that welcome students from everyday and low-income backgrounds and help them to graduate on time, with good jobs and low debt. Rather than rely on vague surveys of institutions’ “reputation” for academic prowess, we measure hard data on research spending, faculty awards, and rates of PhD attainment among graduates. And instead of boosting universities for how generous their alumni are in giving to their endowments, we rank the generosity of alumni toward their community: How many join the Peace Corps and the military, or pursue careers as social workers or teachers?

This year, the top performers in the Monthly’s rankings once again highlight this difference in priorities. Some traditionally prestigious names appear on our list of 442 national universities—at first place, followed by Stanford and MIT, is Harvard, with its exceptionally high graduation rate, its cheap net cost for students from middle-to-low-income families (fourth best in the nation, at an annual $1,758), its prize-laden faculty, and a comparatively high rate of graduates sent into AmeriCorps, the Peace Corps, and ROTC programs. But we also recognize public universities that, without cracking that “elite” echelon, elevate students of humble backgrounds into community-minded graduates with strong economic prospects—like 19th-ranked Florida International University, a perennial leader in our list that goes underrecognized in the other one (where it was tied for 151st last year). FIU rose 13 places in our 2023 rankings, fueled by its continued commitment to enrolling Pell Grant students, shepherding them through at a low cost that’s comparable to what much richer universities can afford, and graduating them into jobs with respectable incomes. Another such school is California State University, Fresno, tied for 250th on the other list but ranked 26th on ours, ahead of Dartmouth and the University of Chicago. Located in the continental U.S.’s third-largest majority-Hispanic city (Miami, home of FIU, is fourth), Cal State Fresno costs about the same, net, as Princeton, which has $35.8 billion to splash on its undergraduates. At the same time, the NorCal state school graduates more Pell recipients than the New Jersey Ivy, both in absolute terms and compared to predicted numbers.

Brown University, as wealthy and selective as they come, rises only as far as number 43. Despite being fairly affordable for those who make it through its iconic wrought-iron gates, the Providence school makes very little effort to enroll students who actually need the help. Its graduates enter national and military service at abysmally low rates for an institution of its reputation (128th and 205th), and comparatively few pursue service-oriented majors. Meanwhile, Brown spends much less on research compared to its peers. 

Harvey Mudd tops our list of liberal arts schools this year, whereas under the prevailing orthodoxy it typically trails the leading pack. We rank the Claremont science and engineering college so highly because it leads in two key categories—the actual versus predicted earnings of its recent graduates, and the number who go on to earn PhDs. Right behind it is a perennial Monthly favorite, Berea College, which is the best in the nation at enrolling low-income students, and among the best at getting them to the podium on Commencement Day—at exceptionally low cost. Sought-after Carleton College ranks only 36th out of 199; it costs a pretty penny, is far worse at getting its students to complete their degrees than you might expect, and sends them on to surprisingly low-paying jobs in the decade after graduation. (Although they do pursue advanced degrees at a high rate, which could partially explain the lagging post-college income.)

Each year we rank roughly 850 bachelor’s and master’s institutions, as well. Many, like Elizabeth City State University, a historically Black college in North Carolina that ranks second among bachelor’s-granting schools, go unheralded by the prestige measurers even as they quietly graduate thousands of underprivileged students into well-paying jobs. Since 2021, ECSU has climbed 11 places thanks to its incredibly low cost to students and its efforts to enroll Pell recipients and keep them in school, which it does at a rate only 5 percent below the mean. SUNY Geneseo tops our master’s list, ahead of no fewer than seven Cal State campuses in the top 11. The Finger Lakes–area school excels in our research and service metrics, sending an extraordinary number of students on to doctoral degrees and the Peace Corps. Meanwhile, Cal State Northridge, the third-ranked master’s school, graduates more Pell recipients each year—3,779—than the entire Ivy League combined, and charges them about what Cornell and Dartmouth do, while splitting its $203.5 million endowment among 36,000 students and somehow also managing to rank eighth in research spending among its peers. Near the bottom is DeVry University in Ontario. This California campus of the for-profit chain charges an arm and a leg to low-income students—$28,207 a year—who go on to underperform their peers’ incomes by nearly 25 percent, a significant problem with all that tuition to pay off.

The other big news this year has been the growing conservative attack on higher education. Several GOP governors, most prominently Florida’s Ron DeSantis, have been cracking down on academic freedom in their state universities in the name of fighting “woke” values. Such tactics might bring short-term political gains, James Fallows argues in this issue, but are self-defeating in the long run (“What’s the Matter With Florida?”). They appeal to a shrinking number of noncollege-educated voters, while alienating a growing mass of voters with college degrees. They also sap the vitality of institutions that are major drivers of a state’s economic growth—Florida, for instance, is experiencing record-high numbers of faculty resignations and departures from its universities. DeSantis’s relentless campaign against higher education might well be weakening institutions like FIU that serve the working-class people he claims to champion.

Meanwhile, this summer, the Supreme Court’s conservative supermajority struck down affirmative action, leaving in place legacy admission for wealthy whites while reversing precedent that had allowed schools to prioritize spots for minorities. But as several writers note in this issue, the dream of diversity isn’t dead. As Monthly editor Will Norris reports, the military has long run preparatory schools that help underprepared minorities boost their academic scores so they can gain admission to elite officer training academies like West Point without lowering standards—a strategy selective civilian colleges and universities should adopt (“How the Military Can Save Affirmative Action”). Meanwhile, Jamaal Abdul-Alim tracks the growth of “direct admission” programs, which reduce barriers for low-income and first-generation students, many of them people of color, by encouraging colleges to proactively notify qualified candidates of their acceptance—before they’ve even applied (“When Colleges Apply to Students”). Anne Kim casts a jaundiced eye on certificate programs offered by tech giants like Google that allegedly can land high-paying jobs for workers without a full degree (“Google’s Participation Trophies”). And finally, Raquel Rall, Demetri Morgan, and Richard Chait pull back the curtain on university boards, which claim to care about the diversity of their students but keep their own diversity numbers secret—until now (“Does Your Board of Trustees Reflect Your Student Body?”). 

The day after the affirmative action decision, the Court also blocked President Joe Biden’s effort to forgive $430 billion in student loans. “The fight is not over,” Biden said that day. He has since launched another debt forgiveness measure under different legal authority and a new income-based repayment plan that would greatly lower monthly payments and eventually forgive some principal for lower- and middle-income borrowers. Both plans face likely court battles. As the historian Jonathan Zimmerman chronicles in “Higher Ed’s Founding Promise,” the struggle to enshrine college as an affordable public good is as old as the republic. Another president, George Washington, willed a portion of his estate to create a national university for the benefit of all (his wishes were thwarted by political chicanery), and later, Justin Morrill, the architect of the 19th-century land grant universities, desired that they should be “accessible to all, but especially the sons of toil.” 

Here at the Monthly, we’re proud to contribute to that struggle with our annual college guide, which aims to hold institutions—and the governments that fund them—to their promises of affordability and public service. Let’s say the exodus from U.S. News continues. What happens if, instead of competing to rise in its rankings, colleges vie to do well in ours? With the reader’s indulgence, we might imagine this utopia. Here, colleges strive to let in more low- and middle-income students, instead of courting the privileged offspring of wealthy donors. Administrators encourage their undergraduates to spend at least part of their careers serving others as teachers or soldiers, instead of plunging directly into investment banking and private equity. They fall over one another to fund research into climate solutions. They make it as easy as possible for their students to vote. They fight to reverse the reigning system of inequality, rather than perpetuate it through the relentless pursuit of wealth and prestige.

A pretty picture. For now, the sons and daughters of toil can only dream of it.

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During the darkest depths of the pandemic, as businesses laid off millions of people and refrigerator trucks idled outside hospitals, one segment of the workforce enjoyed a degree of freedom and autonomy not seen in at least a century. With offices closed, the “laptop class” of knowledge workers was forced—or freed—to phone it in from home. At first, we (I am a member of this tribe) languished, doom-scrolling Twitter and streaming episodes of Tiger King. But then a funny thing happened. Without a boss looming over our shoulders, we were given an unprecedented amount of control over our own schedules. Many of us avoided hours-long commutes, as well. And in that extra time, amid enormous suffering and upheaval, occurred a curious flourishing. We baked bread. We learned to knit. We video-chatted with friends we’d never have thought to reach out to in normal times. We tended our gardens, botanical and spiritual alike.

Working from home lifted burdens we didn’t know we carried. Implicit in office life is a degree of power and control—not only do the bosses buy our services, they also buy our physical presence. Decoupling those things unlocked liberty not seen in any office worker’s lifetime; managers were forced to communicate precisely what they wanted from their employees, rather than just keep them around for incidental productivity—or, as Jamie Dimon, CEO of JPMorgan Chase, put it, “spontaneous idea generation.” 

The change in physical terrain—from a space controlled by the boss to the sanctuary of one’s own home—might seem minor, a matter of personal convenience, but it speaks to societal forces that reach deep into American history. In the Revolutionary Era, founders like Thomas Jefferson feared, more than almost anything else, industrialization and the rise of wage labor. When independent farmers left their homes to toil in factories under the watchful eye of a boss, their fates—and their votes—became yoked to their industrialist masters, Jefferson believed. They lost their independence as citizens as well as workers. To Jefferson, John Adams, James Madison, and others, the yeoman farmer was the ideal citizen who set his own schedule and was beholden to no one. With a little suspension of disbelief, one could imagine the darkest days of 2020 as a time machine transporting knowledge workers back to their freehold farms. There, we tended our intellectual crops at our leisure, reviving a model of work long forgotten. We discovered we liked it.

Now, the Man wants to take it all away. A steady drumbeat of CEO voices is calling for a return to the office, where white-collar workers will allegedly be more productive—and more easily surveilled. Steven Rattner, who manages Michael Bloomberg’s $8 billion personal investment fund, summed up the anxiety of the ownership class in a New York Times op-ed: “Has America gone soft?” In his piece, Rattner briefly acknowledges that many Americans may no longer value the economic incentives of constant toil over the prospect of a less productive, but more leisurely, existence. But he warns that, while we rest, the Chinese are working 72-hour weeks, and that “less output … eventually means a lower standard of living (or a less quickly rising one).” But his assumption—that working from home equals less productivity—is far from an established fact. Yes, some people are using their extra time to play video games. Others, however, are using their freedom to work harder and more efficiently, sending Slack messages in the doctor’s waiting room and folding laundry while answering calls. Besides, what was the “standard of living” that we strove for all those years—having more stuff? Could there, perhaps, exist collective goods other than the wealth we generate for our bosses? It doesn’t matter; for Rattner and his billionaire friends, the one measurable good to be observed in a worker is how much they produce.

That the laptop class can even have this debate reflects a privilege not shared by service workers, who during the pandemic suffered through layoffs, workplace outbreaks, and rudeness and violence from customers. Still, the struggles of taxi drivers and restaurant waiters are like those of knowledge workers in kind, if not degree. What the average working person lacks, from baristas to mechanics to salespeople to journalists, is economic agency. Economic agency moves hand in hand with political power, and when great swaths of people are denied those things for too long, republics crumble.

Much ink has been spilled on the post-pandemic future of work, but little of it has addressed the civic underpinnings of the debate. Some, like Rattner, seem eager to herd us back into our cubicles, with little change to underlying socioeconomic arrangements. Other, more conciliatory, commentators note that more leisure time can improve productivity. Still others chide the marketplace for treating leisure as a “productivity hack” rather than a good in itself. This is closer, but it still misses why the discussion matters to everyone, and not just to whichever class of worker is demanding better treatment.

The debate is about more than greedy bosses and fed-up workers; it’s about democracy’s foundations. An intellectual lineage stretching back to ancient Greece argues that self-governing societies need independent, well-informed, and civically engaged citizens to survive. And to build those people up, societies must give them two things: economic autonomy and leisure time—not vacant hours spent staring at TikTok, but edifying leisure, time spent volunteering, reading, learning a new skill, or raising children. The Greeks called that scholê, the root of our modern-day “school.” Work, in the sense of income-gaining labor, they defined negatively: ascholia, “not-leisure.” Scholê brought societies together by making individual happiness a matter of collective welfare. Building the ideal citizen was everyone’s concern.

Though now largely discarded, this ethos, often known as “civic republicanism,” has informed many of America’s greatest economic and political debates, from the writing of the Declaration of Independence to the creation of child labor laws and the modern workweek. 

Today, great masses are staging a mute protest against the status quo of labor. But they lack the language to frame their objections as something more than selfish, if well-grounded, complaints about their own welfare. By tracing the history of civic republicanism, we see how an issue as apparently quotidian and personal as remote work is, in fact, a matter of democratic importance. Give us the liberty to work unshowered and in underwear, or give us death.

It was tradition in ancient Athens to bury the city’s fallen soldiers together, just as they had fought. Mourning the dead was collective as well; once a year during wartime, the living gathered to hear a funeral oration reminding them of their shared values. In 431 BC, Athens was ending its first year of war against Sparta for hegemony of the Hellenic world. This duel pitted competing visions of government against each other: egalitarian democracy and militarized autocracy. That year’s speech would need to do many hard things—mourn the dead, explain what the living were fighting for, and steel its listeners for another year of loss. 

Thankfully, the speaker was Pericles. The foremost orator and statesman of his time began his eulogy by extolling Athens’s greatness. But he placed the source of that greatness in the citizens themselves. Not only did Athenians enjoy the fruits of democracy—its “regular games and sacrifices” and “many relaxations from toils”—they were the democracy. Their virtues were Athens’s virtues, their faults its faults. “To sum up,” Pericles said,

I say that Athens is the school of Hellas, and that the individual Athenian in his own person seems to have the power of adapting himself to the most varied forms of action with the utmost versatility and grace. This is no passing and idle word, but truth and fact; and the assertion is verified by the position to which these qualities have raised the state.

A democratic society, Pericles was saying, reflects its citizens’ personal qualities, which must be cultivated for the good of all through industry and free time well spent. The Greeks, like many other ancient civilizations, thrived on slave labor. And women had few rights. But what made democratic city-states like Athens unique was that even the humblest male citizens were encouraged to take part in public activities separate from their daily labor, be those theater, athletic games, or government. Indeed, one of Pericles’s greatest innovations was a system of per diem pay for public service that ensured even the poorest citizen could afford to take time off from his toils. Standing, perhaps, among gravestones in the Kerameikos cemetery—we know the speech only through Thucydides—Pericles said of his fellow Athenians, “We alone regard a man who takes no interest in public affairs, not as a harmless, but as a useless character, and if few of us are originators, we are all sound judges of a policy.”

Pericles died of the plague less than two years later, and Athens lost the Peloponnesian War. But its democracy eventually recovered, and just a few decades after Pericles’s speech, another link in the intellectual chain arrived. Aristotle was born in the latter days of Spartan tyranny and mentored Alexander the Great, another conquering warlord. Nevertheless, his thinking on self-improvement and individual autonomy would become essential to the success of democratic societies throughout history. “There remains to be discussed the question,” Aristotle says in Politics, “whether the happiness of the individual is the same as that of the state, or different. Here again, there can be no doubt—no one denies that they are the same.”

In the Nicomachean Ethics, Aristotle laid out what happiness was, charting the path to eudaimonia—the “good life.” It wasn’t just a matter of feeling good or having nice things; it was, the philosopher said, “virtuous activity in accordance with reason.” The word virtue had two faces: virtue in the sense of excellence—striving to be one’s best—but also service to others. Sacrifice for one’s family, neighbors, and country was essential to the good life.

Over the next 2,000 years, political philosophers picked up these ideas and shaped them to their times, forming a lineage that carries us directly to the founding of the United States: Polybius, a Greek who connected the Roman republic’s rise with its civic traditions; the brothers Tiberius and Gaius Gracchus, plebeians who pursued agricultural reforms meant to establish the average citizen as an independent yeoman farmer; Donato Giannotti, a chronicler of class politics in Renaissance mercantile republics; James Harrington, of 17th-century England, who believed that republics flourish when a robust middle class attains both economic and political power; Montesquieu, theorist of the separation of powers as a backstop to civic virtue; and John Locke, model of the American Founders, who disagreed with Aristotle on many things, but not with his idea that the legitimacy and stability of government are bound inextricably with human happiness.

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness

Thomas Jefferson’s words, which reverberate throughout American history, are themselves an echo. Just a few decades before the writing of the Declaration of Independence, parts of Jefferson’s immortal phrase appeared in Locke, who wrote that “the highest perfection of intellectual nature lies in a careful and constant pursuit of true and solid happiness” and that the interests of the state are “life, liberty, health, and indolency of body.” Both Jefferson and Locke lived in dialogue with the civic republican lineage, including with Aristotle, whom they in turns admired and criticized. And both shared the Aristotelian understanding that happiness is, as per the Nicomachean Ethics, “the end to which our actions are directed.”

Meanwhile, Jefferson had a specific idea of the “life, liberty and pursuit of happiness” that he believed we are entitled to pursue. Time and again, the Virginian tobacco planter preached the virtues of the “yeoman farmer”—the self-sufficient man whose leadership in the miniature society of the home prepared him to participate in political decision-making. “The small land holders are the most precious part of a state,” Jefferson proclaimed. Meanwhile, like the Greeks, Jefferson, a slaveholder, reveled in a vision of equality but could only envision extending those privileges to a select few.

The aristocratic Jefferson had one idea of the good life. Another influential model for American work and leisure—the self-made man—was Ben Franklin. The tenth son of a Boston tallow chandler, Franklin ran away to Philadelphia at 17 with only a few shillings to his name. Somehow, he maneuvered his way into the proprietorship of a printing house and, by 23, was editor and publisher of the Pennsylvania Chronicle. As a young man on the rise, he cultivated an image of extreme industry and frugality. As he writes in his Autobiography: “I drest plainly; I was seen at no Places of idle Diversion; I never went out a-fishing or shooting; a Book, indeed, sometimes debauch’d me from my Work; but that was seldom, snug, & gave no Scandal.” 

Published after Franklin’s death in 1790, the Autobiography was a best seller that influenced generations of strivers. But the tale was incomplete—it covered mostly his rise. At 42, Franklin sold his printing business and pronounced himself a “Man of Leisure,” a designation that didn’t mean idleness. On the contrary, he filled his now-open life with meaningful pursuits: invention, scientific inquiry, social clubs, and international diplomacy. He founded the University of Pennsylvania and some of the first subscription libraries. Unlike Jefferson, Franklin gave up slaveholding to become a full-throated abolitionist, and was a proponent of humility compared to the Virginian’s Old World noblesse oblige. As John Paul Rollert noted in The Atlantic, Franklin’s ethos of hard work and productive leisure—the early retirement, the thrift and restraint—held sway for a long time but lately has been abandoned. Now, to those raised on Gordon Gekko and Jordan Belfort, it looks almost quaint. What entrepreneur today, Rollert asked, would walk away “at the height of his earnings potential”?

Debates over the civic consequences of economic arrangements shaped the country’s development throughout the first half of the 19th century. Alexander Hamilton’s vision of political economy, with a strong federal government and an increasingly industrialized society, would clash repeatedly with Jefferson’s agrarian utopianism. Even as the advantage swayed back and forth between the Hamiltonians and the Jeffersonians, both sides saw their arguments as being not only about the running of the economy but also about the health of the budding democracy.

In this era, there’s perhaps no more powerful negative example of civic republican values than the southern plantation system, where masters forbade reading and limited social gatherings to ensure that slaves were too isolated and uneducated to break free. As Frederick Douglass said in 1894, “Education … means emancipation. It means light and liberty. It means the uplifting of the soul of man into the glorious light of truth, the light only by which men can be free.” During Reconstruction, the Radical Republicans in Congress attempted to cement former slaves’ freedom by providing them with 40 acres of land and a mule taken from the plantations. (An override of Andrew Johnson’s veto failed by only a few votes.) After the federal government abandoned Reconstruction and withdrew its troops from the South, white supremacists struck at Black citizens’ economic and political agency in tandem, forcing them into sharecropping while restricting their access to the polls.

Civic republicans split during the Gilded Age. Some deployed the ideals of economic autonomy to protect the sovereignty of corporations; others saw the emergence of robber barons and grueling factory conditions as a new threat to freedom. Many of the latter joined organizations like the Knights of Labor, whose demands followed the twin prongs of civic virtue: economic independence and edifying leisure. The Knights fought for greater autonomy and a voice for workers within companies (even if they couldn’t return them to their freehold farms), while also establishing reading rooms and education centers where workers could better themselves in their free time. In the 1880s, 700,000 Knights and their allies braved hunger and hired thugs to strike for the modern workday, chanting, “Eight hours for work, eight hours for rest, and eight hours for what you will.” Populist leaders like William Jennings Bryan picked up on those demands. In his 1896 “Cross of Gold” speech, Bryan argued that workers and their bosses ought to have equal economic agency:

The man who is employed for wages is as much a businessman as his employer; the attorney in a country town is as much a businessman as the corporation counsel in a great metropolis; the merchant at the crossroads store is as much a businessman as the merchant of New York; the farmer who goes forth in the morning and toils all day—who begins in the spring and toils all summer—and who by the application of brain and muscle to the natural resources of the country creates wealth, is as much a businessman as the man who goes upon the board of trade and bets upon the price of grain; the miners who go down a thousand feet into the earth, or climb two thousand feet upon the cliffs, and bring forth from their hiding places the precious metals to be poured into the channels of trade are as much businessmen as the few financial magnates who, in a back room, corner the money of the world.

As labor organizations fought the street battles and Populists waged political campaigns, Progressives like Louis Brandeis carried the same ideals to the marble halls of government. Before he was elevated to the Supreme Court, where he served from 1916 to 1939, the first Jewish justice was, among other things, a crusading labor lawyer. In the infamous Lochner decision of 1905, the Court struck down a New York law limiting bakers’ hours to 60 a week, arguing that states could not interfere with freedom of contract. Three years later, Brandeis persuaded the Court to limit the workday for women in factories and laundries—a narrow victory, but an important precedent. 

Brandeis’s conception of leisure was all-encompassing, both Franklinian and Jeffersonian. His clerks became accustomed to leaving notes at his office door at ungodly hours and watching the slips of paper silently be withdrawn underneath; meanwhile, he preached the value of free time well spent and threw himself with equal vigor into philanthropy, Zionist activism, and recreation. “I can do 12 months’ work in 11 months, but not 12,” he once said. 

On the nation’s birthday in 1915, Brandeis gave a speech in Boston that asked how, in an age of immigration and nativism, one should define what is quintessentially American. He might have stolen his answer straight from Pericles’s mouth: “What are the American ideals? They are the development of the individual for his own and the common good.” 

And how should one develop the individual? “The worker must … have leisure,” Brandeis said. “But leisure does not imply idleness. It means ability to work not less, but more—ability to work at some thing besides breadwinning … Leisure, so defined, is an essential of successful democracy.”

It wasn’t enough that a citizen has the opportunity to improve himself, Brandeis added: “He must be free. Men are not free if dependent industrially upon the arbitrary will of another. Industrial liberty on the part of the worker cannot, therefore, exist if there be overweening industrial power.” On that power, he said, “some curb must be placed.”

It’s hard, Brandeis was saying, to start and maintain a small business when monopolists have the market cornered. And it’s hard to pass laws restricting work hours and child labor when monopoly corporations have undue influence over the machinery of government. Progressive reformers like Woodrow Wilson eventually curbed corporate power by enforcing and strengthening antitrust laws. But the Supreme Court blocked their efforts to limit working hours and ban child labor. 

Two decades later, Franklin D. Roosevelt took up those causes. “A self-supporting and self-respecting democracy,” he proclaimed in 1937, “can plead no justification for the existence of child labor, no economic reason for chiseling workers’ wages or stretching workers’ hours.” The following year, he signed the Fair Labor Standards Act, and the justices, cowed by his court-packing threats and by changing public opinion, let the law stand. 

At the same time, FDR’s Justice Department cranked up antitrust enforcement—efforts that continued under four subsequent administrations. With the size and market power of corporations in check, entrepreneurship flourished. America enjoyed a decades-long period of broad prosperity and growing leisure the likes of which it had not seen in a century. Other federal interventions, like the introduction of the 30-year fixed mortgage, helped create a modern version of American yeomanry: the suburban homeowner, with his well-trimmed yard and white picket fence. Again, economic independence moved in concert with political stability, though midcentury efforts to include those left out of the bargain—especially Black Americans—would provide leverage to tear it apart.

Now we are again in a Gilded Age, but one without the language that Brandeis and his allies used to break the control of monopolist overlords. Over the past 40 years, Americans have been encouraged to separate politics from economics, the latter supposedly being the domain of experts better suited to the higher-order calculations that keep the great machine humming and the profits trickling down to all. As a result, the average person has been unable to protest the nation’s growing inequality—at least, not in a way that feels true to America’s shared values. (You want the average worker to have a baseline amount of vacation time and parental leave? What are we, France?)

After the pandemic, the discontent with work runs so deep that some are ready to throw the arrangement out altogether. Recently in Harper’s, Erik Baker linked this disillusionment to the 20th-century rise (and recent decline) of the “entrepreneurial work ethic”—the idea that Americans ought to find their passion and pour themselves into it because “when you do what you love, you won’t work a day in your life.” One might think of it as a reversal of the ancient ethic of scholê-ascholia: You depend on your work, rather than your leisure time, for personal fulfillment. The trouble is that, in present-day economic conditions, the outcome of your strivings (and how much you’re paid for them, and for how long) is in someone else’s hands. The most likely result of this dilemma, Baker concludes, is that Americans will simply give up and reject the entrepreneurial work ethic “in favor of a more cold-blooded understanding of work as a simple exchange of drudgery for money.”

Does it have to be that way? A crisis that, from one angle, might evoke cynicism or despair could, from another, present an opportunity. Instead of just giving up on work, now could be the time to revive an ancient, and foundationally American, understanding of how our toil, complemented by leisure, creates civic virtue. Fighting for remote work can be a first step in advancing those wider goals.

But there are lessons to be learned from the last Gilded Age, when efforts to restore workers’ autonomy and give them edifying leisure time were crushed, one after another, by monopolist oligarchs. Right now, a tight labor market provides workers leverage to demand work from home. Current economic conditions, which have spurred an outflux of white-collar workers from big, expensive cities, can also help to build a national labor market that gives more options to workers and less power to big employers based in a few desirable cities like San Francisco or New York.

The current worker-friendly market won’t last forever, however. Both pillars of the civic republican tradition—economic agency and free time well spent—can be upheld over the long term only by curbing the market power of the large corporations that would take it away. That’s one reason why the Biden administration’s aggressive new antitrust efforts, which are popular even with some Republicans, are so important. Opening consolidated markets will lead to more competing firms that employees can play off against each other to get better pay and benefits, including the right to work from home. And, perhaps counterintuitively, anti-monopoly action can also improve American leisure. Thanks to massive, predatory corporations, much of our free time is spent swirling in the vortex of social media algorithms calibrated to hypnotize and enrage us, rather than teach us something new or inspire us to contribute to our communities. Part of envisioning America’s civic future is thinking about ways to encourage technology that rebuilds community rather than atomizing it.

At first glance, it might seem morally obtuse to worry about comparatively affluent Americans fighting to retain a “lifestyle” benefit when others can barely pay their rent. But the changes needed to win the right to work from home will benefit everyone. That’s because reducing the economic power of monopolies will also lessen their inordinate political power. And that will make it easier to pass laws that help less advantaged workers—for instance, requiring corporations to provide health insurance and paid vacations to truck drivers, office cleaners, and others they employ as independent contractors.

Now that employees have tasted the benefits of remote work, the law of loss aversion suggests that they will be loath to give up those freedoms. The next step is to remind them that this is not just a fight over narrow personal concerns but also over the health of democracy.

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