For all the attention currently focused on the Supreme Court, next year’s term may prove even more controversial. In 2023, the Court will determine whether Harvard’s use of race as a factor in its admissions decisions violates Title VI of the Civil Rights Act, which prohibits discrimination on the basis of race, color, or national origin by private universities receiving federal funds, as well as whether the University of North Carolina’s use of race in a similar manner violates the Equal Protection Clause of the Fourteenth Amendment, which applies to public universities.
Students for Fair Admissions (SFFA), a nonprofit group and the plaintiff in the suit, cites evidence that Harvard and UNC’s consideration of race as a factor in their admissions policies in effect penalizes Asian Americans. The data are startling: an Asian-American applicant in the highest academic decile has only a 12.7 percent chance of getting into Harvard; an African-American applicant in the same decile has a 56.1 percent chance; a Hispanic applicant has a 31.3 percent chance; and a white applicant has a 15.3 percent chance. In fact, an African-American applicant in the fourth-lowest academic decile still has a greater chance of gaining admission than an Asian-American in the top academic decile.
In light of Title VI and the Constitution’s prohibitions on racial discrimination, one might ask why universities have been permitted to use racial preferences in admissions in the first place. SFFA suggests that much of the story begins with Grutter v. Bollinger, a 2003 case in which the Court examined a challenge to the University of Michigan Law School’s admissions policy. The policy granted applicants belonging to certain racial minority groups a greater chance of admission than it did similarly qualified applicants from other racial groups, ostensibly to promote racial and ethnic diversity within the law school’s student body. In a 5–4 decision upholding the contentious admissions policy, the Court stated that the use of an applicant’s race as a factor in the admissions decisions of an institution of higher education violated neither federal law nor the Constitution, so long as the policy was narrowly tailored to further the institution’s compelling interest in obtaining a diverse student body. SFFA asks the Court to overturn this ruling.
But the idea of a college accounting for race in admissions to advance diversity originated not with Grutter but with a mischaracterization of Justice Lewis Powell’s opinion in Regents of the University of California v .Bakke, a 1978 case in which the Court was asked to evaluate the University of California at Davis Medical School’s special admissions program. This program was designed to ensure the acceptance of a specified number of students from certain minority groups to the medical school. The Court ultimately struck down the special admissions program on the grounds that it constituted a racial quota, in violation of the Fourteenth Amendment. Still, the Court did not foreclose the consideration of race in college and university admissions altogether.
Writing on behalf of a plurality of the Court, Powell held that while Title VI and the Equal Protection Clause ban the use of overt racial classifications, they allow institutions of higher education to consider an applicant’s race in the admissions process as one factor among many. Such institutions, Powell contended, have a compelling governmental interest in attaining a diverse student body, and race is one aspect of diversity.
Powell’s opinion—seeking to strike a pragmatic compromise in a split decision—was not rooted in any consistent legal principle. And he understood that the potential existed for colleges and universities to distort its reasoning. They could take the Court’s holding in Bakke to permit, for instance, the use of race as the deciding factor when determining which of two applicants deserved admission, so long as this was done in the name of diversity. Powell therefore stipulated that the type of diversity colleges and universities were allowed to pursue was not strictly racial or ethnic, but rather diversity writ large. Consider the following passages from the final pages of his opinion:
Ethnic diversity, however, is only one element in a range of factors a university properly may consider in attaining the goal of a heterogeneous student body. Although a university must have wide discretion in making the sensitive judgments as to who should be admitted, constitutional limitations protecting individual rights may not be disregarded.
The file of a particular black applicant may be examined for his potential contribution to diversity without the factor of race being decisive when compared, for example, with that of an applicant identified as an Italian-American if the latter is thought to exhibit qualities more likely to promote beneficial educational pluralism. Such qualities could include exceptional personal talents, unique work or service experience, leadership potential, maturity, demonstrated compassion, a history of overcoming disadvantage, ability to communicate with the poor, or other qualifications deemed important.
For Powell, race should rarely be dispositive in college and university admissions. Of course, as the data in SFFA’s petitions for certiorari make clear, the opposite has happened in the ensuing 44 years. Many of the country’s most elite colleges and universities nowadays define their interest in attaining a diverse student body solely in terms of race and ethnicity, consistently giving preferential treatment to certain racial groups. Come next term, the Court will have the opportunity to avenge Powell by ruling in favor of SFFA. Institutions of higher education may have a compelling governmental interest in diversity, but they do not have such an interest in discrimination.
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