Is the end in sight for race-conscious college admissions?
I wrote this piece three years ago for The Weekly Standard. It was basically a “backgrounder” on what were then new challenges to admissions preferences–one brought against Harvard and the other against the University of North Carolina at Chapel Hill. There has been some “discovery” in the cases, and seven months ago the Justice Department confirmed that it is considering whether it might enter the Harvard case. We hope that the department decides to get involved—and that it will argue for non-discrimination in admissions.
In Grutter v. Bollinger, decided in 2003, Justice Sandra Day O’Connor upheld race preferences in higher education but also declared they must have “a termination point.” So when a lawsuit against preferences in admissions is brought, there is a presumption that they could be terminated, perhaps even in a ruling applicable to schools across the country.
Last month, two cases challenging preferences were filed in federal courts, one against Harvard College, the other against the undergraduate school of the University of North Carolina at Chapel Hill. The plaintiff in both is Students for Fair Admissions (SFFA), a new nonprofit whose members include, according to the group’s press release, “highly qualified students recently denied admission to both schools, highly qualified students who plan to apply to both schools, and their parents.” The organization and its members support race-neutral admissions and seek nothing less than the end of race preferences in higher education and the discrimination they entail.
Like many other elite undergraduate schools across the country, Harvard and UNC-Chapel Hill use race preferences to admit their classes. Under current law, preferences challenged in court must undergo “strict scrutiny” and are permitted only when they serve a compelling governmental interest that cannot be achieved through race-neutral means. In the context of higher education, “diversity,” to use the shorthand expression, is the only compelling interest the Supreme Court has recognized.
SFFA is prepared to argue that race-neutral alternatives capable of achieving diversity are available to both schools, and that the failure to adopt such alternatives violates federal law and the Constitution. SFFA points to preferences based not on race but socioeconomic criteria. “This approach is particularly effective,” the organization argues, “when combined with increased use of financial aid, scholarships, and recruitment to attract and enroll minority applicants” and with “the elimination of admissions policies and practices, such as legacy preferences and early admission, which operate to the disadvantage of minority applicants.”
SFFA contends that UNC-Chapel Hill’s failure to avail itself of race-neutral alternatives “is especially troubling” because it knows better. In 2012, the school conducted a study to determine whether automatically admitting in-state applicants finishing in the top 10 percent of their high school class would work about as well as racial preferences in achieving diversity. The study showed that, indeed, the percentage plan would work better than race preferences, admitting slightly more minorities. But UNC-Chapel Hill refused to adopt the plan. Its central objection: The plan would admit students with an average SAT score 56 points lower than that of the students admitted under the current, racially inflected process.
SFFA says this is a “trivial decrease” in average SAT scores, and it would seem so. A question for the courts in both cases, but especially the one brought against UNC-Chapel Hill, is whether a race-preferential admissions process can be maintained when a plausible race-neutral alternative is available. In Fisher v. University of Texas at Austin, the Supreme Court’s most recent case on race preferences in admissions, Justice Anthony Kennedy called for stricter judicial scrutiny. That more skeptical approach could wind up constraining the use of preferences at more schools than just UNC-Chapel Hill and Harvard.
The SFFA lawsuits also challenge preferences at their very root by taking on the diversity rationale. Obtaining the educational benefits of a diverse student body is the rationale, simply stated. A diverse student body will include skilled musicians and artists and others with special talents. And it will include “underrepresented” minorities—African Americans, Hispanics, and Native Americans. And not just a few underrepresented minorities but “a critical mass,” as Justice O’Connor wrote in Grutter.
“Critical mass” surely involves a numerical definition. But higher educators are loath to address the “mystical critical mass,” as Justice Antonin Scalia has called it, and officials at neither Harvard nor Chapel Hill are likely to be eager to say much about it should the lawsuits proceed. Indeed, during oral arguments in Fisher, Chief Justice John Roberts asked the defendant’s lawyer what critical mass the University of Texas at Austin is “working toward,” only to be told, “We don’t have one.” Likewise holding things tight, Harvard no longer allows the public to examine admission rates by race.
SFFA is ready to press the argument that it was a mistake for the Court to have endorsed critical mass and that “it should be outlawed once and for all.” SFFA would appear to have an important ally should either case go to the Supreme Court–Justice Kennedy, who wrote the following in his dissent in Grutter: “The concept of critical mass is a delusion used to mask [an] attempt to make race an automatic factor in most instances and to achieve numerical goals indistinguishable from quotas.” And about quotas, the Court has been clear: They are illegal.
SFFA is also prepared to argue that Harvard and UNC-Chapel Hill fail to use race on the terms approved in Grutter—as merely a “plus factor.” Instead, race has become a very large factor in admissions decisions; otherwise a critical mass could not be enrolled. Indeed, SFFA contends, “Only using race or ethnicity as a dominant factor in admissions decisions could . . . account for the disparate treatment of high-achieving Asian-American and white applicants and underrepresented minority applicants with inferior academic credentials.” Neither school’s admissions decisions, says SFFA, are “explainable on grounds other than race.”
The challenge to Harvard’s race preferences is significant for its focus on the fate of Asian Americans in elite-school admissions. In its filing, the SFFA shows how the “Harvard Plan” that Justice Lewis Powell held up in Regents of the University of California v. Bakke (1978) as a model for diversity-based admissions had its origins early in the 20th century and was used to discriminate against Jewish applicants until the 1960s. Today, the latest edition of the Harvard Plan is used, alleges SFFA, “to hide intentional discrimination” against “another high-achieving racial and ethnic minority group,” one “underrepresented relative to its application numbers,” and to an extent no other racial or ethnic group is. In other words, Asian Americans are victims of quotas now, just as Jews once were.
Not incidentally, one member of SFFA who applied for and was denied admission to Harvard’s 2014 entering class is an Asian American whose parents are first-generation immigrants to the United States from China; who graduated from high school ranked 1st out of 460 students by weighted and unweighted grade point average; whose high school ranked in the top 5 percent of all American high schools; who achieved a perfect score of 36 on the ACT, 800 on the SAT II History, and 800 on the SAT III Math; who was captain of the varsity tennis team, a volunteer in numerous philanthropic efforts, and so forth.
Both Harvard and UNC-Chapel Hill say their admissions policies comply with the law. Both will vigorously defend them; Harvard already has engaged Seth Waxman, who served as solicitor general during the second Clinton term. But however the two cases fare, SFFA has already indicated it will file more. Its leaders are in this battle for the long run, even as they hope it will end soon, with that point of termination finally reached.
