Why Harvard’s Affirmative Action Victory Should Be Overturned

The recent affirmative action opinion (discussed here) in Students For Fair Admissions v. Harvard University held that Harvard’s discrimination against Asians did not amount to discrimination. Despite the victory of Harvard and the entire higher education hierarchy, committed as it is to using racial preferences to promote “diversity,” there is a reason to believe this may turn out to be affirmative action’s last hurrah.

Plaintiffs have already announced they will appeal and have stated that if they lose in the First Circuit they will appeal to the Supreme Court. The clear evidence produced at the trial — that the “diversity” demanded by Harvard requires Asian applicants to be treated worse than applicants from other groups; that preferences to legacies, athletes, and others go mainly to whites — and Judge Burroughs’ strained efforts to insist that all of this differential treatment is no more than mere “tips” and “plus factors” and to force all of it under the protective cover of current Supreme Court doctrine, reveals the weakness of that doctrine.

Pyrrhic Victory?

Speaking at an event at Harvard last week, SFFA’s lead attorney, Adam Mortara, suggested that Harvard’s victory may prove to be pyrrhic, even if it were to survive appeals.

He insisted that the “remarkable stability” of the proportion of Asians admitted over the years (increasing only after the SFFA suit was filed), despite the dramatic increase in the number of Asian applicants, was indistinguishable from the sort of quota that courts have outlawed. He emphasized that “No one — not Judge Burroughs, not Harvard — has ever explained how it is that African Americans and Hispanics just have much better objective personal qualities than white and Asian applicants,” quipping that “I guess there’s just something more personally appealing about African American and Hispanic applicants.” In response, the Harvard Crimson noted, “at least a dozen students in the crowd voiced their agreement, shouting, ‘There is!’”

[Will SCOTUS Back Harvard’s Affirmative Action Win?]

Finally, he drew attention to the facts revealed at trial showing the “privilege preferences” for legacies, athletes, and others, preferences that go mainly to whites. If those preferences were removed, he argued, there would be less cause for race-based preferences. Even if the Supreme Court does not strike down race-based preferences, he argued, the lawsuit against Harvard has exposed a “morally repugnant system of privilege preferences” that will likely produce an extreme backlash.”

Legacy Preferences

As it happens, within days of the release of Judge Burroughs’ opinion Duke economist Peter Arcidiacono, SFFA’s expert witness, and several co-authors published a devastating analysis of the extent of those “privilege preferences” at Harvard. “Using publicly released reports,” they wrote, “we examine the preferences Harvard gives for recruited athletes, legacies, those on the dean’s interest list, and children of faculty and staff (ALDCs).

The results were shocking.

Among white admits, over 43% are ALDC. Among admits who are African American, Asian American, and Hispanic, the share is less than 16% each. Our model of admissions shows that roughly three-quarters of white ALDC admits would have been rejected if they had been treated as white non-ALDCs. Removing preferences for athletes and legacies would significantly alter the racial distribution of admitted students, with the share of white admits falling and all other groups rising or remaining unchanged.

As noted above, SFFA attorney Mortara finds these ASDC preferences “morally repugnant.” Writing at National Review Online, Robert verBruggen called them “a national disgrace,” stating in the subhead that “Opponents of affirmative action should be twice as mad about this.”

[Has Harvard Lost Its Taste for Western Civilization?]

I think those responses are overblown. Such preferences may well be bad policy. They may well be unfair. But they are not as bad as — and should not be treated legally the same as — distributing benefits and burdens based on race. The common argument — that if legacy preferences are legal, race preference should be legal too — assumes, absurdly, that if you can discriminate for one reason, you can discriminate for any and all reasons.

As the eminent social scientist James Q. Wilson once observed, “we did not fight the Civil War to make sure the University of Mississippi would admit good quarterbacks. To say that racial and athletic classifications are similar or that one can reason from the latter to the former is foolish.” (Wilson made the same points here.)

Nevertheless, eliminating or reducing the privilege preferences would result in the admission of more Asians and allow for the admission of greater numbers of other minorities without having to rely on race preferences. Judge Burroughs, however, would have none of it.

In a short section of her opinion headed “ALDC Tips” (some “tips,” if 43% of the admitted whites would not have been admitted without them!), because reducing or eliminating preferences for ALDCs would make Harvard “far less competitive in Ivy League intercollegiate sports, which would adversely impact Harvard and the student experience.”

In addition, “Eliminating tips for legacies, applicants on the dean’s and director’s interest lists, and children of faculty or staff would also come at considerable costs and would adversely affect Harvard’s ability to attract top-quality faculty and staff and to achieve desired benefits from relationships with its alumni and other individuals who have made significant contributions to Harvard.” We can’t have Harvard losing to the likes of Columbia or Cornell, can we?

[Harvard Law Professors Challenge Unfairness of Title IX]

Although Judge Burroughs acknowledged that preferences to ALDCs benefitted whites at the expense of Asians and other minorities, she found no fault with them because they had a beneficial effect and no racial motivation. “Harvard’s objective in giving tips to applicants based on criteria other than individual merit, such as to legacies and the children of its faculty and staff, is to promote the institution and is unrelated to the racial composition of those applicant groups.”

She found Harvard’s intent, here as elsewhere, was entirely benign, which points to increasingly evident problems with the legal standard(s) covering discrimination. If racial discrimination “to promote the institution” is justified, very little will be prohibited and hasn’t been.

What Exactly Is Discrimination?

There has been a long-running debate in anti-discrimination law over whether a finding of discrimination requires evidence of discriminatory intent or purpose, known as “disparate treatment,” or whether the differential effect of a policy on different racial groups is sufficient, even in the absence of a racial intent or purpose, known as “disparate impact.” See the thorough and very helpful discussion of these terms here.

As I pointed out in my recent essay on the Harvard opinion, Judge Burroughs repeated ad nauseam that she found Harvard perfectly and completely innocent of any racial animus, prejudice, or bias, and thus its various policies that limited Asian enrollment did not qualify as discrimination. Since she found no “pervasive bias,” she found that “Harvard does not systematically exclude Asian Americans.” Bias less than “pervasive” or “systematic” apparently is fine.

In short, I believe Judge Burroughs illegitimately redefined the “intent” required for a finding of disparate treatment, unjustifiably limiting its meaning to biased or prejudiced intent. Surely no one, not even Judge Burroughs, can look at the record in this case and doubt that Harvard quite clearly intended to limit the number of Asians it admitted because, as I noted here, “‘too many’ Asians would result in numbers of blacks and Hispanics below what their devotion to ‘diversity’ demands.”

[A Weak Attempt at Justifying Admissions Preferences]

One other oddity deserves mention. Typically, liberals favor the disparate impact standard, and conservatives insist on disparate treatment. Harvard’s admissions policies and practices reek of intent to admit fewer Asians and more blacks, but even if the intent were not evident, they clearly had a disparate impact, and yet no liberals have been heard to raise a peep in complaint. If ALDC preference amounts to disparate impact discrimination, after all, then so does the entire holistic/tips/plus factors enterprise.

Disparate impact is OK here but not there; discrimination in one setting is prohibited, but the same sort of discrimination elsewhere is accepted. Current legal doctrine governing discrimination, in short, is very much in need of reform. Current reliance on such porous legal blather as “tips,” “plus factors,” “narrowly tailored,” “compelling reasons,” etc., simply allows universities to do whatever they want if they are sufficiently clever at cloaking it with high-sounding holistic hokum.

What Is To Be Done?

I have a few modest suggestions for remedies to the current mess.

First, reverse or seriously modify Bakke, reviving the powerful argument of Justice Stevens (never mind that he later abandoned it) that discriminating on the basis, even to promote “diversity,” is prohibited. “A different result cannot be justified,” he wrote, “unless [the] language [of Title VI] misstates the actual intent of the Congress that enacted the statute.”

Reversing Bakke would accomplish, among other worthy goals, the following:

1. Overturn Justice Powell’s unpersuasive holding in Bakke that Title VI means whatever the Equal Protection Clause of the 14^th Amendment means. Title VI should mean what Congress wrote, that no person should be “subjected to discrimination” on the ground of race, color, or national origin under any program or activity receiving federal assistance. Doing so would also reverse Justice Powell’s disastrous conclusion that the 14^th Amendment smiles on “diversity”-justified racial discrimination.
2. Insist that “discrimination” in Title VI means what Hubert Humphrey, Senate floor manager of the 1964 Civil Rights Act, said repeatedly: it means “a distinction in treatment … given to different individuals because of their different race, religion, or national origin.”

3. As discussed above, clarify the meaning of “intent,” making clear that it does not require evidence of bias or prejudice.
4. Redefine “quota,” which is now synonymous with fixed, rigid numbers. Any admissions program, like Harvard’s, that regards any number or proportion of admitted Asians as too high, or any number of admitted blacks or Hispanics as too low should be regarded as a quota system and prohibited.

As an aside, I’ve never understood why people who welcome the extensive discrimination necessary to produce the “diversity” they desire to object to quotas at all. In fact, Charles Lane has just argued in the Washington Post that it would have been better if the Supreme Court had allowed quotas. I, of course, disagree.

5. Redefine “compelling” in the current “compelling purpose” justification for discrimination to mean really, really compelling, and “strict scrutiny” to mean really, really strict. As Gail Heriot has just stated, pointing to polls that have consistently shown strong opposition to racial preference in admissions, “I don’t see how in the world the Supreme Court can conclude that the policy nevertheless serves a “compelling purpose” that the public doesn’t view … as compelling (or even minimally persuasive).” Such redefinitions would still allow some discrimination, but it would be limited to examples like taking race and ethnicity into account in selecting an undercover police officer to work in a black or Hispanic or Italian gang.
6. After implementing to above changes, courts should then abandon the current requirement that universities engage in the snipe hunt for “race-neutral alternatives” to racial preference, since all parties know that snipe doesn’t exist. If you are determined to admit more blacks and Hispanics than relying on their qualifications would produce, there is no good substitute for preferential treatment.

As Judge Burroughs stated, “Any race-neutral alternative will be deemed workable only if it would allow Harvard to achieve the benefits that it derives from its current degree of diversity … while also being practicable, affordable, and not requiring a material decline in academic quality or any of the other measures of excellence valued by Harvard.”(This reminds me of the position attributed to critics of Yale’s decision to go co-ed: they didn’t object to the admission of women so long as doing so did not exclude any men who otherwise would have been admitted or increase the size of the entering class.)

The Supremes could do worse than adopt these modest suggestions, and probably will. Indeed, if a Democrat wins the next presidential election and appoints a justice or two, they will do much worse.