The U.S. Supreme Court will hear arguments on Oct. 31 in Students for Fair Admissions v. Harvard and Students for Fair Admissions v. University of North Carolina—two vitally important cases that challenge the constitutionality of using a student’s race and ethnicity as a factor in college admissions. If the Supreme Court forbids the use of race and ethnicity in college admissions, as it should, the opinion may begin the restoration of our nation’s constitutional colorblind legal covenant.
Both cases are legally and factually straightforward. In 2014 Students for Fair Admissions sued Harvard, the nation’s oldest private university, and the University of North Carolina, the nation’s oldest public university. The common element in each lawsuit is the claim that both schools racially gerrymander their freshman classes by illegally raising the bar for certain racial and ethnic groups and lowering the bar for others.
Students for Fair Admissions asserts these practices are outside the narrow bounds the law allows for using race or ethnicity in college admissions. Moreover, we have asked the court to overturn Grutter v. Bollinger (2003), which permits institutions of higher education to use race and ethnicity as factors in admissions to obtain “the educational benefits that flow from a diverse student body.”
In the Harvard case, Students for Fair Admissions revealed that the college is penalizing Asian-American applicants in favor of whites, blacks and Hispanics by engaging in racial balancing, overemphasizing race and rejecting workable race-neutral alternatives to achieve racial diversity. Students for Fair Admissions’s expert presented to the courts a hypothetical case of an Asian-American male with a 25% chance of admission. Changing the applicant’s race to white would increase his admissions chances to 36%, leaving all other factors constant. Changing this applicant’s race to Hispanic boosts his chances to 77%, while changing it to African-American would boost his chance of admission to 95%.
Although Asian-American applicants to Harvard ranked above all other racial and ethnic groups on such objective measures as grades and test scores, the admissions staff gives them demerits on such subjective measures of personality as lacking leadership and confidence and being less likable and kind.
Harvard has a long and ugly history of discriminating against high-achieving minorities. As many historians have pointed out, Harvard’s leadership once believed it had too many Jews on campus because almost a quarter of all Harvard freshmen were Jewish. Holistic admissions criteria were concocted to limit the number of Jews admitted.
In the lawsuit against the UNC, Students for Fair Admissions exposed that the school is violating the Equal Protection Clause of the 14th Amendment and Title VI of the Civil Rights Act. It does so by rejecting all reasonable race-neutral alternatives to racial preferences, even if those alternatives would have increased the student body’s overall racial diversity.
While Harvard and UNC have breached the current strict legal boundaries that permit racial classifications and preferences in college admissions, the opinion in Grutter allowing these polarizing racial policies was wrong on the day the Supreme Court decided it in 2003. The Grutter opinion is internally contradictory, claiming that racial preferences are necessary because race is a proxy for certain views and experiences. Then it claims that racial preferences allow for the breakdown of stereotypes because race isn’t a proxy for any views or experiences. The latter is true: A person’s skin color says nothing about who he is, what he thinks or his life’s struggles and successes.
It is noteworthy that the Supreme Court has forbidden race to be used in assigning students to K-12 schools to achieve diversity. It has also forbidden colleges to use race to diversify their faculties.
That the nation’s most competitive universities place high-schoolers on racial registers is a moral failure. Since racial and ethnic preferences were introduced in the 1970s, they have been divisive. They stigmatize recipients, punish better-qualified applicants and pit Americans against one another.
Ending the consideration of race and ethnicity in college admissions isn’t controversial. In a 2022 Pew Research survey, 74% of all Americans, including 59% of African-Americans, 64% of Asian-Americans and 68% of Hispanics, don’t believe race should be a factor in college admissions. Those who advocate the continuation of race in admissions are working against the convictions and preferences of the majority of America’s racial minorities.
Students for Fair Admissions has demonstrated that eliminating legacy preferences, preferences for the children of faculty and staff, and preferences for the children of wealthy donors, while giving a greater weight to students from economically disadvantaged backgrounds, will produce a diverse student body without treating students differently by race. It can’t reasonably be argued that in the name of diversity, the Asian-American daughter of a working-class immigrant should be penalized in favor of the daughter of a successful white, Hispanic or African-American professional.
The ideal that gave birth to our nation’s civil-rights laws is the principle that people’s race shouldn’t be used to help or harm them in their life’s endeavors. The majority of Americans hope that the Supreme Court will use these cases to return the law to this principled ideal.
Read the full piece in the Wall Street Journal here.