Harvard President Lawrence Bacow just sent out a letter to Harvard’s alumni and donors to reassure them that there’s no merit to Students for Fair Admissions, Inc. v. President and Fellows of Harvard College. Students for Fair Admissions argues that Harvard discriminates against Asian-American applicants. Bacow, however, is confident that “The College’s admissions process does not discriminate against anybody.” After all, “The Supreme Court has twice ruled on this issue and has held up our admissions process as an exemplar of how, in seeking to achieve a diverse student body, race may enter the process as one factor among many in consideration.”
What Bacow means is that the Supreme Court licenses racial discrimination so long as it isn’t too obvious, and that Harvard has been sufficiently discreet. In any case, Harvard has never before had to defend its admission policies in Federal court. It received honorable mention in Justice Lewis Powell’s eccentric 1978 opinion in Regents of the University of California v. Bakke, but no other justice concurred with Powell’s view on the subject. Justice Sandra Day O’Connor in her 2003 opinion in Grutter v. Bollinger endorsed Powell’s view. That’s the foundation of Bacow’s claim—which seems awfully close to wishful thinking.
How wishful? Harvard uses ugly tactics to get the “diversity” it wants—where “diversity” looks remarkably like the “race quotas” that the Supreme Court said are illegal. Harvard uses “personality” evaluations to help it decide which students to admit, but it appears that “Harvard consistently rated Asian-American applicants lower than others on traits like “positive personality,” likability, courage, kindness and being ‘widely respected.’” Harvard admissions officers didn’t even have to see the Asian-American applicants to know they weren’t likable enough.
A 2013 internal review by Harvard concluded that just accounting for extracurricular and personal ratings reduced the Asian-American share of the Harvard class by one sixth, from 31% to 26%. “Demographic” imperatives, which increased the number of admitted African Americans and Hispanics, reduced the number of Asian Americans by another third, down to 18% of the Harvard class.
18%. Which is a remarkably familiar number. Asian enrollment at elite universities has stabilized at around 18% for a generation, even as the proportion of Asian Americans in the population has risen substantially. Harvard’s Rube Goldberg admission procedures just happen to achieve the same result that you would have gotten by a simple racial quota—of the sort that once kept down the number of Rube Goldbergs at Harvard.
It’s no wonder that Attorney General Jeff Sessions has come out in support of the plaintiffs against Harvard. “Harvard has failed to carry its demanding burden to show that its use of race does not inflict unlawful racial discrimination on Asian-Americans,” said the Justice Department.
It isn’t a surprise either that the Justice Department has also turned to look at Yale, to see how badly it is discriminating against Asian Americans. After all, Yale President Peter Salovey defends Yale in almost identical language to that Lawrence Bacow used to defend Harvard: “Yale does not discriminate in admissions against Asian Americans or any other racial or ethnic group.” But the crucial context is “Supreme Court precedent permitting the consideration of race in college admissions.” Salovey is sure that Yale has been as discreet about its discrimination as Harvard.
Salovey writes that Students for Fair Admission aim to overturn the Supreme Court precedent that allows race to be a factor in college admission. Race discrimination is unjust and it would be wonderful if the Supreme Court overturned their deplorable 2003 precedent and affirmed the ideal of equal opportunity for all Americans. But Yale and Harvard’s use of a “diversity” rationale to enforce what appears to be a simple racial quota presents a different challenge to the Court.
The Supreme Court has affirmed two principles, racial nondiscrimination and the permissibility of policies to enhance diversity, that cut against one another. This is not in itself insuperable: all legal and constitutional principles can potentially conflict, and a great deal of jurisprudence consists of establishing a tolerable legal structure out of practical compromises. Yale and Harvard—and all the other colleges who discriminate in the name of diversity—have endangered the stability of this middle ground. Their policies effectively argue that you cannot achieve diversity without racial discrimination, and they therefore present the Supreme Court a new dilemma. How do you apply precedent’s conflicting imperatives of diversity and nondiscrimination if no college or university is even willing to attempt to achieve diversity without discriminating?
The Supreme Court could mandate judicial oversight over every college admissions department—but that would be unworkably time consuming. The Supreme Court must establish a rule that all college admissions offices must follow under pain of lawsuit.
The simplest answer is to establish priority among the conflicting principles—and racial nondiscrimination must come first. It is rooted directly in the Constitution and our Civil Rights Acts; the permissibility of diversity draws only on the much shallower foundation of Supreme Court rulings. Colleges must first avoid racial discrimination, and only seek diversity that does not discriminate. No college may use diversity to justify any admissions procedure with discriminatory intention or effect.
Such a rule would hollow out virtually all practical effect to the Supreme Court’s endorsement of diversity. Given the bad faith of our colleges and universities, that is the best available solution.
David Randall is Director of Research at the National Association of Scholars.