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  • Nikhil Agarwal

The Court Must End Race-Based Affirmative Action


A man protests affirmative action policies that disadvantage Asian Americans.

(PBS)


In Brown v. Board of Education, the Supreme Court set forth a principle: if we truly are men created equal, then distinctions based on race have no place in our society. Simple yet transformational, this idea was supposed to usher in a new era of race relations and civil rights. Unfortunately, this principle has been eroded in years since.


This week, the Supreme Court will hand down a ruling in the consolidated cases of Students for Fair Admissions, Inc. v. President and Fellows of Harvard College and Students for Fair Admissions, Inc. v. University of North Carolina, both of which challenge the constitutionality of racial preferences in college admissions. The use of racial preferences in college admissions is not only unnecessary to achieve diversity on college campuses but is reminiscent of a bygone era of American history in which racial discrimination ran rampant. The Court has a golden opportunity to uphold the admirable principle it once set forth, and it would be a dereliction of duty not to do so.


Proponents of affirmative action in higher education point out that black Americans have long suffered due to historical racism and have been denied the freedoms they are owed as American citizens. Thus, America must make up for a legacy of discrimination and racism, and race-conscious affirmative action is a necessary redress for those injustices. It is an emotive and compelling argument worthy of consideration.


What happens, however, when the solution to historical discrimination necessitates discrimination today against another minority group? Such is the case with affirmative action, which harms not just white Americans, but Asian Americans, whose ancestors have suffered the ignominy of government-sponsored internment and exclusion, and who themselves suffered from an uptick of hate crimes during the COVID-19 pandemic. The evidence that universities are engaging in discriminatory racial re-balancing which disadvantages Asian Americans is overwhelming. As Professor Richard Sander explained during his Claremont McKenna Athenaeum talk on April 12th, the size of Harvard’s racial preferences is such that an Asian-American male applicant with a 25% chance of admission has a 74% chance of admission if they are Hispanic, and a 93% chance if they are African-American.


Most devastating for Harvard is their “personal rating score,” used to filter the 60,000 students who apply on traits such as ‘likability, courage, kindness and being “widely respected.” Under pressure from Justice Alito during oral arguments, Harvard attorney Seth Waxman acknowledged the District Court finding that “a statistically significant and negative relationship between Asian American identity and the personal rating assigned by Harvard admissions officers.” Unless Asian Americans are deficient in the way these scores suggest—a preposterous assumption—it would appear that Harvard is inventing subjective criteria as an excuse to admit them at lower rates.


This is not at all a stretch given the sordid origin of Harvard’s personality scores in the 1920s. At that time, Jewish applicants were scoring the highest on admissions exams and were disproportionately represented in the student population. Concerned with what he saw as a growing ‘Jewish problem,’ then-President of Harvard Lawrence Howell introduced a subjective character and personality portion to the admissions process, designed to lower Jewish representation. It’s hard to shake off the feeling that Harvard today is similarly attempting to punish Asian-Americans, who according to a Harvard report from 2013, would be the most represented ethnic group if only academics were taken into account.


None of this is to say that there isn’t value in a racially diverse student body, or that the Supreme Court has always been ambivalent towards racial diversity in education. If racial preferences are a necessary evil, then under the Supreme Court’s standard of ‘narrow tailoring,’ they ought to be employed as minimally as possible, and only when other race-neutral alternatives wouldn’t suffice in achieving the goal of racial diversity. As Professor Sander points out, the story of Prop 209 in California shows that universities can focus on socioeconomic preferences instead of race and still achieve similar levels of racial diversity. In the University of California system, Prop 209’s mandated focus on socioeconomic status and outreach programs aimed at low-performing schools in California led to dramatically improved grades, STEM persistence rates, and four-year graduation rates for black and Hispanic students. The issue of athlete recruits, legacies, children of faculty and staff, and applicants on the dean’s interest list, collectively known as ALDCs, also suggest that Harvard’s use of race isn’t narrowly tailored. A 2019 study from the National Bureau of Economic Research found that 43% of white students were ALDCs and that 75% of these students wouldn’t have been accepted had they not fallen into this category. If Harvard were truly concerned with having a diverse student body, they would’ve done away with ALDC admissions, thereby reducing the need for race-conscious admissions.


These colleges’ insistence that there aren’t any race-neutral alternatives that would ensure racial diversity while maintaining their academic excellence speaks to their real interest. For example, Harvard argues there are no race-neutral alternatives that allow it to foster racial diversity while at the same time “perpetuating its standards for academic and other forms of excellence.” What these ‘other forms of excellence’ are is anyone's guess, but if this is true, then it shows that Harvard’s real interest is first and foremost to maintain its prestigious reputation as an elite and exclusive school. If it wasn’t, they would lower their academic requirements, and admit more minority students. This interest, however, surely cannot be considered ‘compelling’ by any stretch of the imagination.


Race is and always has been fundamental in American society, and the unconscious biases of public officials and legislators mean that race will be taken into account for even the smallest and most informal affairs. Should the law, however, encourage the consideration of race, and all the biases that come with it? The answer is a resounding no. As Judge Harvie Wilkinson rightly points out, ‘without the law as a brake on race-based decisions, the use of race will proceed at a gallop. And without law as a brake, citizens will resort to race-based rhetoric with alacrity, plunging public discourse into a toxic state.’ The racial classifications that defined the America of old created a system of injustice, dehumanization, and division, the scars of which were felt for generations thereafter. Let’s not re-open them any further than we have already.


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