June 29, 2023 - SUPREME COURT OF THE UNITED STATES

STUDENTS FOR FAIR ADMISSIONS, INC. v.PRESIDENT AND FELLOWS OF HARVARD COLLEGE

We’re back to the law, I’m afraid. In this instance the decision by the American Supreme Court two weeks ago. It’s all about positive discrimination, something which, although superficially attractive, I find inherently difficult to justify. Usually it is an excuse for not having addressed the living conditions that produce the disadvantages for which positive discrimination is a so-called solution - a cheaper but much less effective solution.

In the wake of the Civil War, the Fourteenth Amendment provided that no State should “deny to any person...the equal protection of the laws.” It guaranteed: “the law in the States shall be the same for the black as for the white; that all persons, whether colored or white, shall stand equal before the laws of the States.”

Despite this, the Court – along with the country as a whole – failed to live up to the Clause’s commitment. For almost a century after the Civil War, state-mandated segregation was the norm in many parts of the Nation. The Supreme Court played its own role in that history, allowing the shameful ‘separate but equal’ regime that would spread through much of America.

Some decisions had emphasized that it required States to provide black students educational opportunities equal to - even if formally separate from - those enjoyed by white students.

Finally, however, in 1954, in Brown v. Board of Education, the Supreme Court overturned the separate but equal regime. The right to a public education, it said, “must be made available to all on equal terms.” In the years that followed, Brown’s “fundamental principle” reached other areas of life - for example, state and local laws requiring segregation in bussing; racial segregation in the enjoyment of public beaches and bathhouses; and anti-miscegenation laws.

Admission to Harvard can depend on a student’s grades, recommendation letters, or extracurricular involvement. It can also depend on their race. Which is good if you’re part of a defined minority, and there’s a lot of effort put in by candidates to show that they come into such a category, but not so good otherwise. So the question was whether their admissions systems was lawful under the Equal Protection Clause of the Fourteenth Amendment.

Each application for admission is screened by a “first reader,” who assigns a numerical score in each of six categories: academic, extracurricular, athletic, school support, personal, and overall. For the “overall” category - a composite of the five other ratings - a first reader can and does consider the applicant’s race. When ultimately the full committee looks at the list, then any candidate with a majority of the their votes is tentatively accepted for admission. There will be more of them than there are places. At this point the racial composition of the tentative applicant pool looked and used to ensure that in the final selection for a set number of places there is no “dramatic drop-off” in minority admissions as compared to the previous year. Those deciding are given four pieces of information about each person - legacy status, recruited athlete status, financial aid eligibility, and race. Evidence was given that the selection process results in race being a determining factor in the admission of a “significant percentage of all admitted African-American and Hispanic applicants.”

The jurisprudence on positive discrimination took a while to develop. It was first considered in 1978 in ‘University of California v Bakke’. One of the Justices in that court found that justification for positive discrimination could be based on the educational benefits that flow from a racially diverse student body. He regarded it as “a constitutionally permissible goal for an institution of higher education.”

But a university’s freedom was not unlimited—“racial and ethnic distinctions of any sort are inherently suspect.” Accordingly, a university could not employ a two-track quota system with a specific number of seats reserved for individuals from a preferred ethnic group.

Neither could a university use race to prevent consideration of a particular individual. Race could only operate as “a ‘plus’ in a particular applicant’s file,” and even then it had to be weighed in a manner “flexible enough to consider all pertinent elements of diversity in light of the particular qualifications of each applicant.” 

In the later case of Grutter v. Bollinger 2003, the Supreme Court used much of the reasoning of the earlier decision. The limits set out, they said, were intended to guard against two dangers that all race-based government action tends to produce. The first is the risk that the use of race will evolve into “illegitimate...stereotyping”. Admissions programs could thus not operate on the “belief that minority students always (or even consistently) express some characteristic minority viewpoint on any issue.”

The second risk was that race would be used not as a plus, but as a negative - to discriminate against those racial groups that were not the beneficiaries of the race-based preference. Thus a university’s use of race could not occur in a manner that “unduly harmed non-minority applicants.”

The judgement though imposed another very significant limit on race-based admissions programs: at some point, the Court held, they must end. Recognizing that “enshrining a permanent justification for racial preferences would offend” the Constitution’s unambiguous guarantee of equal protection, the Court expressed its expectation that, in 25 years, “the use of racial preferences will no longer be necessary to further the interest approved today.”

The court in the Harvard case also emphasised that, as a matter of general law, universities must operate their race-based admissions programs in a manner that is “sufficiently measurable to permit judicial review”. In the Court’s view, this they had not done in any meaningful sense.

The benefits of racial profiling put forward by Harvard included: training future leaders, acquiring new knowledge based on diverse outlooks, promoting a robust marketplace of ideas, and preparing engaged and productive citizens. While no doubt commendable goals, it was unclear how courts were supposed to measure any of them, or even if they could, how they could know when they had been sufficiently attained so that racial preferences could end. The question whether a particular mix of minority students produces “engaged and productive citizens” or effectively “trains future leaders” was, they considered, far too vague.

In addition, the admissions programs failed to show a meaningful connection between racial categories used and the goals they pursue. To achieve the educational benefits of diversity, Harvard measured the racial composition of their year groups using racial categories that were plainly overbroad (South Asian and East Asian students are all represented as “Asian”); arbitrary or undefined (the use of the category “Hispanic”); or under-inclusive (no category at all for Middle Eastern students).

The lower court had found as a fact that Harvard’s consideration of race had resulted in fewer admissions of Asian-American students. Its assertion that race was never a negative factor in their admissions programs therefore made no sense: the Court said that college admissions were zero-sum. It was not that an extra place would be found for someone disadvantaged by race. So then accepting someone because of their race necessarily meant that someone-else was excluded. 

Nothing though prohibited universities from considering an applicant’s discussion of how race affected his life, “as long as that discussion was concretely tied to a quality of character or unique ability that the particular applicant could contribute to the university”. Justice Roberts, giving the majority opinion said “Many universities have for too long wrongly concluded that the touchstone of an individual’s identity is not challenges bested, skills built, or lessons learned, but the color of their skin. This Nation’s constitutional history does not tolerate that choice.”

But there is now a PS to all of this. The test of ‘Legacy status’ in the first round of assessing potential students relates to the weighting to be given to the offspring of Harvard graduates. Not that Harvard actually accepts that this is a significant factor. The College says: “Among a group of similarly distinguished applicants, the daughters and sons of College alumni/ae may receive an additional look.”

But it seems that the additional look is in fact rather important: around 30% of students have one or more relative who graduated from the College. And this despite regression to the mean of children as compared to their parents in terms of being ‘distinguished’. So then there is now another law suit asking the courts to say that such preference is itself unlawful - it undoubtedly disadvantages Afro-Americans.

On the other hand, or maybe this is stereotyping, the ‘recruited athlete status’ may be to their advantage?

One to watch.

9 July 2023

Paul Buckingham