Opinion: This is what the Supreme Court should be asking Harvard

Editor’s note: Editor’s note: Evan Mandery is a professor at John Jay College of Criminal Justice and author of “Poison Ivy: How Elite Colleges Divide Us.” The opinions expressed here are his own. Read more reviews on CNN.


On Oct. 31, the Supreme Court will hear arguments in a pair of cases that threaten to end “affirmative action,” as it has been practiced by America’s colleges and universities for nearly half a century.

In the main lawsuit, a group called Students for Fair Admissions (SFFA) alleges that Harvard University’s admissions policies – which sometimes include race as a “plus” factor – have systematically disadvantaged Asian-American applicants. Harvard says a bad decision would limit their “freedom and flexibility” to create diverse campus communities.

I have a question I’d like one of the courts to ask Harvard: How can the university defend “affirmative action” for poor students of color while aggressively engaging in affirmative action for rich whites?

Make no mistake, Harvard has been doing affirmative action for wealthy white applicants for centuries. The mechanisms are almost too numerous to mention. Research has long shown that high school class rank is a better predictor of college performance than standardized test scores, but Harvard and other elite colleges continue to admit students based on SAT and ACT scores, which are closely linked to wealth.

While Harvard announced last year that it would not require applicants’ SAT and ACT scores for the next four years, a recent study found that the testing-optional practices that some schools (Harvard among them) have adopted in the wake of the pandemic have done nothing. increase the enrollment of low-income students.

It is also well established that early admissions disadvantage poor students of color, yet the proportion of students admitted early has steadily increased. Harvard has 42 teams in 24 sports programs; According to admission statistics cited in a 2019 National Bureau of Economic Research working paper on ALDC preferences (athletes, legacies, donor relations and children of faculty), 69% of recruited athletes are white.

Many, like squash and fencing, are effectively barred from socioeconomically disadvantaged children because of prohibitive costs. And that’s to say nothing of the explicit preference given to the disproportionately wealthy and White children of faculty, alumni, and donors.

This hypocrisy makes Harvard’s ethical position untenable.

It is also of great legal importance.

Here’s everything you need to know about the constitutionality of affirmative action in one paragraph: Under the Civil Rights Act of 1964, the Equal Protection Clause applies to all universities that receive federal funds. Most religious universities you’ve probably never heard of are mostly right wing. Harvard does. The Equal Protection Clause prevents discrimination based on race. A race-based admissions program, like Harvard’s, must undergo “rigorous scrutiny,” meaning it must be “narrowly tailored” to be of “compelling interest.”

The Supreme Court has long recognized that diversity is a compelling interest in college admissions. This is the Regents of the University of California v. Bakke’s major holding, a split decision in 1978, rejected quotas but embraced Harvard’s approach to tackling race. In 2003, the Court reaffirmed its commitment to this approach in Grutter v. In Bollinger, against the admissions practices of the University of Michigan Law School. The current Court has debated whether Grutter should be overruled.

Ending affirmative action would also be a most unfortunate development at a time when the issue of race in admissions has taken on a broader historical scope to address deeper questions of reparations. As Harvard recently admitted, the university enslaved more than 70 people. Its $53 billion endowment grew in part from donors who built their wealth through the slave trade. Other elite schools have made similar concessions, with Georgetown pledging to offer priority admissions to descendants of slaves.

Indeed, the construction of “affirmative” action – born in its current form under the Johnson administration amid the passage of civil rights legislation aimed at transforming US society to give black Americans more opportunities – means some students need a leg up. meeting the supposed objective qualifications – almost all of them are linked to wealth. This refusal to recognize how wealth feeds false notions of objective merit blurs the agenda of preserving the status quo. And that’s to say nothing of the essential contribution voices of color make in the classroom. If the court ends the affirmative action – as is likely – it will be nothing but a tragedy.

It should never have come to this.

Under current law, a program cannot be “narrowly tailored” if the university can achieve its goal in a race-neutral manner. In other words, race can only be considered as a last resort. With the threat of a lawsuit looming, Harvard convened a committee to explore race-neutral alternatives to its admissions practices. The commission’s work was never launched, and after the SFFA filed suit, it was disbanded. Harvard then convened a second committee to consider whether it could achieve its diversity goals through race-neutral means. The committee summarily decided that it could not.

At trial, SFFA presented expert testimony from Century Foundation Fellow Richard Kahlenberg. Kahlenberg offered a sensible proposal to promote diversity: Harvard could end its significant preference for ALDC candidates. The Harvard study said the gap in acceptance rates between whites and Asians could be explained almost entirely by the preference given to ALDCs. The Harvard expert – Berkeley economics professor David Card – said, in fact, that Harvard did not prefer whites to Asians; it was just that the institution needed lacrosse players and teacher kids, and they happened to be disproportionately white. “The statistical evidence does not support” the claim of bias, he said.

The key moment in the case was the owner of the card. He testified that eliminating race and the ALDC would lower black and Hispanic enrollment. But why should Harvard do both? Can’t ALDC terminate preferences? Wouldn’t that be narrowly tailored to the goal of improving diversity, race-neutral?

The judge in the case, Allison Burroughs, said no. “Eliminating advice to ALDC applicants would open up spots in Harvard’s class that could then be filled through an admissions policy for non-white students,” he wrote, “but would make Harvard much more competitive in Ivy League intercollegiate sports. it would have a negative impact on the experience.” The First Appellate Court agreed. The athletes have shown “discipline, resilience and teamwork”. As if the children who help support the family don’t work!

Burroughs bought almost every aspect of Harvard’s argument. He said eliminating preference for “endowments, applications from the dean’s and director’s interest lists, and children of faculty or staff” would “result in significant costs and affect Harvard’s ability to attract top-quality employees and reap the desired benefits from relationships.” with his former students or other people who have made important contributions to Harvard”. However, Harvard offered no evidence to support these claims and studies have shown that legacy has no relationship with alumni generosity.

Perhaps it is not surprising that a judiciary dominated by graduates of elite universities and law schools has refused to challenge factual claims that implicate the very nature of American choice. But this narrowness also creates an opportunity. The Supreme Court has an option available that would preserve actions in favor of the most deserving candidates and promote diversity: It should reverse the case and require Harvard to fulfill its goal of promoting diversity through race-neutral means. Given the likely outcome of the case, this is an approach Harvard should move away from.

Alas, the current Supreme Court has shown little interest in strategically maneuvering to suspend longstanding civil rights (as the outcome of Dobbs v. Jackson Women’s Health made clear), and Harvard and its elite peers have shown little interest in upsetting the status quo. So there is every reason to believe that the drive for deserving students of color will end soon. Let history remember that if it does, it will be largely because of Harvard’s steadfast commitment to affirmative action for rich whites.