“TOO MANY ASIANS” — BAD IF AMY WAX SAYS IT, BUT BUSINESS AS USUAL FOR IVY LEAGUE ADMISSIONS OFFICES: Ilya Somin: Supreme Court affirmative action cases challenging Harvard, UNC policies are overdue: The Harvard suit features extensive evidence that the school’s admissions system discriminates against Asian American applicants.
If courts stuck closely to the text of the laws they interpret, the case against Harvard would be an easy one for the school to lose. As a private institution, Harvard is not bound by constitutional constraints against racial discrimination (UNC, by contrast, is a public university). But it is subject to Title VI of the Civil Rights Act of 1964, since it receives federal funds for student financial aid and other purposes. Title VI bars discrimination “on the ground of race, color, or national origin” in any education program receiving federal funds, and it doesn’t exempt well-intentioned racial discrimination in the form of affirmative action.
But the Supreme Court (wrongly, in my view) has long interpreted Title VI to allow racial preferences in situations where the court’s interpretation of the equal protection clause of the 14th Amendment would permit them. And a series of Supreme Court rulings — most notably 2003’s Grutter v. Bollinger and 2016’s Fisher v. University of Texas (often referred to as Fisher II) — have held that racial preferences in higher education admissions are permissible under the 14th Amendment in some situations in which they are used to promote educationally beneficial “diversity,” i.e., ensuring there is a sufficient number of minority students (sometimes called a “critical mass”) so other students are exposed to their distinctive viewpoints.
A racially and ethnically diverse student body, the court concluded in these cases, can potentially benefit students of all races by exposing them to new perspectives and preparing them for careers in an increasingly diverse society. Harvard argues — and lower court rulings in the case agreed — that its race-conscious admissions policy is permissible under these precedents.
The Supreme Court’s standards for acceptable racial preferences are far from clear. Grutter and Fisher are frustratingly ambiguous on such key questions as what qualifies as a “critical mass” of students from a given group that is sufficient to promote diversity, for example, and how much deference courts should give to universities’ educational judgment about the amount and type of diversity they need.
When the court considers the Harvard and UNC cases, it would do well to reject the “diversity” rationale entirely, or at least subject it to much tougher standards of review.
The “diversity” rationale was a transparent effort to rename affirmative action so as to fit within the Powell concurrence in Bakke. It reflects poorly on the Supreme Court that it’s been allowed to continue. But the Gentry Class prizes affirmative action, and the Supreme Court, like all courts, is firmly in the hands of the Gentry Class.