Monday, October 04, 2021

The Misused Concept of "Discrimination" and why SCOTUS Should not Hear the Harvard Affirmative Action Case

 By Eric Segall

The Supreme Court term starts today and, as the whole legal world knows, the Court has already agreed to decide important abortion and gun cases. There is another dispute the Justices might hear that could have enormous consequences for private and public higher education in this country. The right-wing public interest group Students for Fair Admissions (SFFA), which has brought numerus cases challenging racial preferences in colleges and universities, has sued Harvard claiming the university discriminates on the basis of race against Asians. Two lower courts have issued hundred of pages of opinions rejecting these claims, and now SFFA is seeking Supreme Court review. The Court should deny certiorari for a number of reasons but mostly because Harvard is not engaging in "discrimination" under any meaningful sense of that term.

Harvard is a private university and thus not bound by constitutional requirements. However, a federal statute, Title VI of the Civil Rights of 1964, prohibits any organization that receives federal funds from engaging in "discrimination on the basis of race, color, and national origin in programs and activities receiving federal financial assistance." The Supreme Court has said that the legal standards under Title VI and those required by the Fourteenth Amendment's Equal Protection Clause are the same. Thus, a decision that Harvard is or is not violating Title VI could have enormous implications for public colleges and universities across the country.

Harvard's admission program for undergraduate students is quite complicated. In its brief arguing against the Court hearing the case, Harvard says the following

To advance its mission, Harvard 'pursues many kinds of diversity,' including diversity of 'academic interests, belief systems, political views, geographic origins, family circumstances, and racial identities.' Harvard also create[s] opportunities for interactions between students from different backgrounds and with different experiences,' inside and outside the classroom, including through living assignments, extracurricular activities, and athletics....

To identify the strongest applicants, 40 admissions officers conduct a 'time-consuming, whole-person review process' in which each applicant is 'evaluated as a unique individual.' They consider personal essays, recommendation letters, extracurricular activities, athletics participation, honors and prizes, intended major, intended career, transcripts, test scores, family and demographic information, alumni or staff interview reports, and samples of academic or artistic work. 

The result of this long, complicated, and arduous process is that, for the class of 2025, Harvard is going to be roughly 25% Asian, 16% Black, 12% Hispanic, 53% percent white, and a smattering of other groups. Harvard has no official quotas or ceilings, and does not consider race until a student is already deemed qualified on other grounds.

Harvard's admission process does not "discriminate" on the basis of race either individually or by group. Here are some examples of university discrimination in admissions. The University of Texas did  not accept Blacks until 1956. The undergraduate institutions at the Universities of Georgia and Florida did not accept any Blacks until the early 1960's. In my lifetime, major public universities in numerous states said Blacks need not apply. And this was well after Brown v. Board of Education.

SFFA makes a number of arguments revolving around their core claims that the board scores and grades Asians need to have to be accepted at Harvard are higher than the scores of other racial groups. But this entire line of argument is based on a false premise--that Harvard only uses grades and test scores when making admissions decisions. Legacies, athletes, students with unique skills, leadership and otherwise, geographic location, and numerous other factors can substantially affect a student's chances of being admitted.

To the extent that the Fourteenth Amendment's Equal Protection Clause informs the Court's understanding of Title VI, that amendment does not mention race, and its original meaning rather clearly does not foreclose race-based measures to make up for the discrimination that non-whites have suffered throughout our history, including, of course, Asians.  And if Asians were actually suffering "discrimination" under Harvard's admissions system, then Title VI might well be violated. But Harvard should be allowed substantial latitude under Title VI, and public universities the same under the Constitution, to help students of all races by building as diverse a class as possible with grades and test scores just being two of many factors schools use to foster that much-needed diversity. It is hard to make the argument that Asians are suffering legal discrimination at the hands of a university when they make up 25% of the class, especially compared to the total exclusion of racial groups from many major universities for much of our history.

No matter how talented the high school students are at many prestigious private schools in my home town of Atlanta, and public schools as well, in its desire to build a diverse class, Harvard will take only a certain number from each school no matter what. Harvard makes geographical and school-specific decisions to further the diversity of its class. To say that Harvard is "discriminating" in any meaningful legal sense of that term when placing those limits is misleading and does not capture what Harvard is really trying to do. Both the district court and the court of appeals found that Harvard does not discriminate based on racial identity, in hundreds of pages of opinions, and there is no reason in fact or law for the Supreme Court to question those judgments.

I do not mean any of this to suggest that the law of affirmative action does not need serious repair. As many have noted, the Supreme Court has erred by saying that diversity alone can justify colleges and universities using racial criteria, and that the no-quota rule drives the use of race behind closed doors (absent costly and unnecessary litigation). But this Supreme Court will not improve that doctrine and is likely to make it much worse. That being the case, the best we can hope for, and what the Court should do, is allow the lower courts to do their jobs, which is all about finding facts, conclude that Harvard does not illegally discriminate against Asians, and deny certiorari in a case that has already gone on way too long.