Debating the Lawsuit Against Harvard

This is an edited selection of recent correspondence between Stuart Taylor, Jr., an author and expert on the Supreme Court, and John S. ROSENBERG, a lapsed historian who blogs at Discriminations. ROSENBERG’s article, “Harvard’s Strip Tease About Wealth and Race,” was published on Minding The Campus October 22^nd . Stuart Taylor, Jr., is co-author of two important policy books: Mismatch: How Affirmative Action Hurts Students It’s Intended to Help and How Universities Won’t Admit It, and, Until Proven Innocent, on the Duke rape hoax. ROSENBERG has written frequently on affirmative action, including three articles this year for MTC challenging Harvard’s treatment of Asians and Asian Americans.  

TAYLOR

Dear John,

I very much appreciate both your kind words and your constructive criticisms of my Harvard piece. And, of course, your MTC piece is wonderful in many ways.

I take the constructive criticisms to heart. Maybe court-ordered cold-turkey withdrawal from what has aptly been called “the gateway drug to identity politics” would be the best medicine. In defense of my proposed phaseout approach, I will say that:

–As a critic of the Supreme Court’s tendency over the past 60 or so years of arrogating to itself the power to run the country — often (if not in this case) based on shaky legal premises — I admit to being uneasy about my own advocacy of the Court running the country in the racial-preference department. My uneasiness is increased by my advocacy of doing violence to some Supreme Court precedents.

–One of the comforts that I take on the matter of precedent is that Grutter does provide some support (albeit in dicta) for phasing out racial preferences by 2028;

–Very much unlike Brown II’s “with all deliberate speed,” the hard deadline that I advocate for the Supreme Court to “order Harvard—and, by extension, other colleges and graduate schools—to phase out all use of racial admissions preferences by 2028” is clear and specific enough to stick, unless the Court itself develops cold feet between the date of its decision and 2028. That is, if the Court decides the Harvard case on (say) June 20, 2023, it could order that Harvard “end all consideration of race in deciding which applicants to reject (and which to admit) by June 23, 2028.” (That would be 25 years to the day after Grutter.) It could also stress that any effort by Harvard to continue using racial preferences after June 23, 2028, would be contempt of court. So, the phaseout-by-2028 timetable — rather than ending all racial preferences the day after the decision — is the only sense in which I “stop short of a full embrace and application of the non-discrimination standard.”

You are correct that the phaseout by 2028 that I propose now is not what Rick Sander and I proposed in Mismatch. No need to elaborate on that here.

On another point, I was initially nonplussed by the plaintiff’s lawyer’s opening argument that “diversity is not on trial here.” But I came to think that it was an appropriate way of showing respect for the lower courts’ obligation to heed Supreme Court precedents such as Fisher II and Grutter while at the same time planning to argue in due course to the Supreme Court that it should reconsider those precedents to the extent that they have upheld “diversity” engineered by racial preferences.

As SFFA and its expert Richard Kahlenberg detail in court papers, there are plenty of ways to increase racial (and socioeconomic, and intellectual, and other) diversity without using racial preferences. Harvard could, for example, end legacy preferences, big-donor preferences, and professor-and-staff-kid preferences, and could reduce its bloated system of recruited-athlete preferences, while increasing race-blind socioeconomic preferences.

Consider also the prayer for relief in SFFA’s 2014 complaint (boldface added):

WHEREFORE, Plaintiff, Students for Fair Admissions, Inc., prays for the following relief as to all counts:

(a) A declaratory judgment, pursuant to the Declaratory Judgment Act, 28 U.S.C. § 2201, from the Court that Harvard’s admissions policies and procedures violate Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d et seq.;

(b) A declaratory judgment, pursuant to the Declaratory Judgment Act, 28 U.S.C. § 2201, from the Court that any use of race or ethnicity in the educational setting violates the Fourteenth Amendment and Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d et seq.;

(c) A permanent injunction prohibiting Harvard from using race as a factor in future undergraduate admissions decisions;

(d) A permanent injunction requiring Harvard to conduct all admissions in a manner that does not permit those engaged in the decisional process to be aware of or learn the race or ethnicity of any applicant for admission.

***

ROSENBERG

Stuart,

Thanks very much for your kind and very thoughtful reply to my MTC piece. You make the best argument I’ve seen for going slow (or at least slower than I would) in eradicating racial preferences.

Regarding the Equal Protection Clause, that’s an enormous bucket of worms — original intent, etc. I will say here only that, even recognizing the weight of the point you make, since everyone accepts Brown (at least the propriety of the Court ruling and the result outlawing segregation), it does not strike me as a bridge too far to say it should do something analogous here. Racial discrimination, after all, is racial discrimination.

But why even bother the Constitution with this problem? Why not just rely exclusively on Title VI, perhaps reviving Stevens’ opinion in Bakke?

Re diversity not being on trial, I like your point about that argument perhaps giving an opening to the trial judge. I confess, however, that I’m troubled by the possibility that discrimination against Asians could be reduced while leaving preferences to blacks and Hispanics in place.

What is at risk of happening here is that saving and reaffirming the non-discrimination principle will be subordinated to the worthy goal of stopping or maybe even just reducing the current discrimination against Asians. A good argument can be made that a good deal of the decline of the civil rights movement can be traced to its abandonment of the colorblind principle in favor of a host of policies thought to be good for blacks.

If discrimination is not wrong, in short, what’s wrong with discrimination against Asians or any other groups? Thus, I think it is actually impractical to abandon the principle and that sticking to the principle is by far the best policy.

***

TAYLOR

To clarify one of my points, I see taking account of poverty, doing away with legacies and favoritism for rich donors, etc., as adjustments that Harvard might make to admit more blacks in response to a ban on all racial preferences — not merely to a ban on preferences against Asians.

By the way, one point on which I imagine you and I agree is that almost all of the coverage of the Harvard case in the mainstream media studiously avoids any discussion of the magnitude or even the fact of enormous racial preferences for black students (and to a lesser extent Latinos, etc.). Here Harvard has been forced to open its files in ways that provide unprecedented insights into the size and other workings of racial preferences, and the media have barely noticed. The taboo is almost total. The fact that only 2/3 of 1% of Harvard’s student body would be black if admissions were based on academics alone, for example, has been in the public record since June 15 yet had not been mentioned by any news organization until I first mentioned it in my Weekly Standard piece; since that piece, this fact has been published by only one (the WSJ) that I’ve noticed.

The current racial preferences reduce admissions of Asian Americans as much as of whites, if not more. Banning all racial preferences and penalties, while at the same time ending legacy preferences and some others, would probably reduce black and Hispanic admissions substantially by shifting many of the seats currently occupied by blacks and Hispanics to whites and Asian Americans. To the extent that the courts might also rule that the current system discriminates against Asian Americans relative to whites (as well as relative to blacks and Hispanics etc.), more of the vacated seats would go to Asian Americans and fewer to whites. But I think it almost certain that white, as well as Asian American admissions, would rise.

***

ROSENBERG

Yes indeed. This drum [about the drastic extent of Harvard’s preference to blacks and Hispanics] very much needs to beat. But my fear is that “if diversity is not on trial,” Asian admission could be boosted by doing away with legacies, beating the bushes for Filipino quarterbacks, etc., while leaving the current racial preferences in place.

I’ll make one other point here that will sound more like you than me. If the “diversity” practiced by Harvard and others were close to the one-factor/plus point/etc. approved by Powell in Bakke, most of the last generation of controversy would probably have been avoided. Alas, what they all mean by “diversity” amounts to little more than a confederation of racial and ethnic groups, which requires racial and ethnic discrimination to maintain. Also, interesting, and deeply sad, that Harvard’s lawyers forbid being conscious of religion, taking it into account even as they egg on racial discrimination. I blame the courts for this.

***

TAYLOR

I very much agree with your [comment about the wide gap between the reality of racial preferences as applied and the official descriptions of them]. Note that Mismatch consistently refers to large racial preferences as the big problem, not all racial preferences.

***

ROSENBERG

As you know, and as I mentioned in my MTC piece, my only disagreement with Mismatch was your and Rick Sander’s willingness to tolerate racial preferences so long as they are not large.

For the record (there is a record, isn’t there?), let me repeat what I’ve argued in our earlier emails: abandoning the formerly core principle that Americans should be treated without regard to race, creed, color, or national origin is a greater offense than the size of the preferences involved, no matter which groups benefit or suffer burdens. So, here, it will be good for the Asians if the discrimination against them is reduced, but even better would be reviving the “without regard” principle that is or should be the foundation of civil rights.

***

TAYLOR

I agree, in the sense that history has shown that any effort to hold the line at a little bit of balance-tipping racial preference, at least in a public sense, is an exercise in futility. Give them an inch, they’ll take a mile.

I will note with approval, though, that one of the leading critics of racial preferences confided to me privately that she or he personally might, for example, offer a job to a very well qualified black over a very slightly better qualified white for the sake of helping integrate the professional class.