For now, at least. A federal trial judge has ruled that, while race is considered by Harvard in determining who gets in and who doesn’t (“the use of race in and of itself is admitted”), and while the plaintiff group has standing in this case to challenge the resulting discrimination against Asian Americans (in line with an earlier ruling), nonetheless Harvard is not breaking the law. The outcome was not surprising, and the judge’s 130-page opinion is unlikely to change many minds or alter the expected trajectory of the case to the Supreme Court.
The judge found, “Race is only intentionally considered as a positive attribute.” But if race is a positive attribute for favored groups, then does it not follow that it is a negative attribute for everyone else? Well, yes, the judge admits about 100 pages later, “Race conscious admissions will always penalize to some extent groups that are not being advantaged by the process.” So, sure, there is discrimination against Asian Americans, but it is not “undu[e]” or “disproportionate.”
Here’s a sociopolitical reality: If it’s legally accepted that racial discrimination in admissions is permissible if you do A-B-C and do not do 1-2-3, then universities will make those claims. And so the judge here explains at great length why she accepts Harvard’s assertions that its discrimination is narrowly tailored (A-B-C) and that she is persuaded by the school that the discrimination is not anti-Asian (vis-a-vis whites, 1-2-3) but only pro-diversity. She’s wrong, but schools are willing to roll the dice that their bluff won’t be called and that, if it is, they’ll draw a sympathetic judge.
So we struggle on, hoping for a Supreme Court decision that says, no, it’s spinach and to hell with it: Racial discrimination in university admissions is not permissible, period. With the overwhelming majority of Americans rejecting this unequal treatment (preferring E pluribus unum), and with a judiciary less and less hospitable to it (since, after all, the text of the laws are), and with this discrimination becoming more outdated and less tenable in our increasingly multiethnic country with every tick of the clock — well, why should anyone expect the struggle to stop?
***
Let me elaborate a bit on the A-B-C, 1-2-3 point in the third paragraph above. The approach the Supreme Court takes in Equal Protection Clause cases like this one is to say that racial discrimination triggers “strict scrutiny,” which means in turn that it is allowed only if the discriminator has a really good reason for the racial discrimination (a “compelling interest”) and is using race no more than absolutely necessary in order to achieve that interest (“narrow tailoring”).
So in the college admissions area, the Court has found that the “educational benefits” from having “diversity” in its student body are such a “compelling interest.” And this means that a case like Harvard’s will hinge on whether the school’s use of race is “narrowly tailored” — that is, whether it might have achieved diversity in some other way without using overt racial preferences, whether race was used too mechanically (i.e., via quotas or some sort of point system), whether the school periodically reassesses its use of race, and so forth.
Now, my point is that, so long as the door is left open for schools to consider race if it is “narrowly tailored,” many schools will assert that they meet those requirements, no matter how stringent they may appear on their face to be. They will hire experts, and create committees, and manufacture whatever paper trail they have to in the hopes that, if they are sued, they will — with the help of a well-disposed judge – prevail, as indeed they did in the Harvard case.
The only way, then, that the practice will stop is if the Supreme Court revisits its decision to recognize the “diversity” justification as “compelling” in its 2003 Grutter v. Bollinger ruling. That’s not such a heavy lift, really. Is it really plausible that the “educational benefits” enjoyed by white and Asian American students in random conversations they have (in or outside the classroom) with black and Latino students are so valuable—and so impossible to achieve in any other way—that they justify the long list of costs of racial discrimination? The answer is clearly no. See my discussion here, for example.
(The situation here is complementary to what we are faced with in government contracting cases, where the Court has also left the door open to using racial preferences, so long as government entity can cite a “disparity study” that shows racial discrimination can be remedied only by the use of racial preferences in the entity’s award of contracts. Many city, county, and state governments — and the federal government itself — are only too willing to pay someone to conduct such a disparity study, so that they can continue to engage in the discrimination they like. Here, what the Court must do is find that, in 2019, there is no way that the use of race is “narrowly tailored” to remedy racial discrimination, since the contracting process is uniquely amenable to stopping discrimination simply by requiring more transparency at every step of the bidding process.)
Anyway, here’s hoping that, when the Harvard case finally does reach the Supreme Court, that it has been litigated in such a way that they Court will be able to revisit whether or not “diversity” is a “compelling interest” at all.
***
The Grutter decision discussed above has a famous line in it by Justice Sandra O’Connor, in which she says that she expects the use of racial preferences to end in 25 years: “We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.” And so one of the Center for Equal Opportunity’s supporters has brought to my attention that he has cleverly created a countdown clock and posted it on the Internet, so that we can all keep track of how long we have to go until June 23, 2028. You can consult it here.
