Can Harvard Discriminate by Race Forever? The school’s advocates can’t say when racial bias in admissions will end.
The Supreme Court Justices exhibited supreme patience Monday in hearing nearly four hours of argument in a pair of major cases involving race and college admissions. But the argument was worth the time, because it exposed some unhappy truths about those who believe in the necessity of discriminating by rac
The Justices are considering challenges to the admission practices of Harvard and the University of North Carolina, in particular that they discriminate illegally against Asian-Americans in favor of other races. (Students for Fair Admissions v. Harvard, and SFFA v. UNC.)
This means revisiting Grutter v. Bollinger (2003), which said schools could use race as one factor in admissions in the name of achieving diversity. Justice Sandra Day O’Connor also famously wrote in Grutter that the use of race to achieve diversity probably wouldn’t be needed in 25 years.
That was 19 years ago, and on Monday several Justices pressed the question about when racial preferences would end. Seth Waxman, Harvard’s advocate, admitted that the school is trying hard to get to a race-neutral future but sees no end in sight for preferences.
Elizabeth Prelogar, the U.S. Solicitor General and an impressive advocate, said explicitly that “I just don’t think it’s tenable to read” Grutter to say the Court had suggested a timetable. She said using race the way the schools do could continue as long as their interest in diversity is “compelling.”
The clear implication is that the schools can discriminate by race for years to come. And anyone who knows anything about the men and women who run today’s universities, and how they believe racism is “systemic” in American life, knows that the schools will never stop using preferences.
If you believe America is fundamentally racist, then you believe that discriminating by race will be justified forever. Justice Sonia Sotomayor came close to saying this explicitly because she said “de jure segregation” continues in the U.S. Her evidence is that segregation continues in neighborhoods and schools. By her logic, discrimination will be justified as long as any segregation exists, no matter the cause.
Mr. Waxman tried to justify Harvard’s use of race by saying it is merely one of many “tips” that the school uses in making judgments about whom to admit—like whether a student is the child of an alumnus, or an athlete.
Doesn’t that mean race will be determinative in some cases, Chief Justice Roberts asked. “I do concede that,” Mr. Waxman said. The Chief replied, “so we’re talking about race as a determining factor in admission to Harvard.” Mr. Waxman said yes “just as being, you know, an oboe player in a year” when the school orchestra needs an oboe player “will be the tip.”
The Chief then uttered lines likely to be remembered: “We did not fight a Civil War about oboe players. We did fight a Civil War to eliminate racial discrimination.”
It also became clear during the four hours that “diversity” is an all purpose word intended to skirt the “strict scrutiny” that courts must use when assessing racial preferences. Diversity seems to be whatever the schools say it is for their purposes, and in many cases it is a subterfuge for race. If the diversity standard is allowed to continue to justify discrimination, as a practical matter the lower courts will be obliged to defer to colleges nearly all the time. This will essentially put schools beyond the reach of judicial review on race in admissions.
Oral arguments aren’t perfect clues to how the Court will decide cases, but the skepticism toward racial preferences by a majority of the Justices was clear. Their doubts are well placed. Discrimination by race is uniquely pernicious, as American history shows.
The Supreme Court was wrong in Grutter in 2003 and Bakke in 1978 to tolerate discrimination by race, but at least it suggested some time limit. Harvard and UNC would like a blank check to discriminate by race as long as they want. The Court would do a service to the country, and America’s principle of equality under the law, by telling them their time is up.
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