As many of you know, the U.S. Supreme Court has recently begun hearing oral arguments in the cases of affirmative action that have been brought against Harvard University and the University of North Carolina. We know some of you are wondering if affirmative action will die and if it will be a decision that sends shockwaves through the entire college admissions system.
First, we want to give you guys an overview of what this affirmative action case is, the players involved, and what is going on. Full disclosure: Brooke is not an expert in constitutional law (though she does have a degree in American Studies), but she is going to break down the case as best she can.
Essentially, a group called Students for Fair Admissions has brought two cases against two universities: Harvard University and the University of North Carolina. So in both cases, the petitioner is trying to overturn a decision made in a case called Grutter v. Bolinger from about twenty years ago, in which Sandra Day O’Connor gave a majority opinion that race can be narrowly used as a factor in admissions if you do it how Harvard does it. This means that you are not simply checking a box; it is part of a holistic process. Students for Fair Admissions’ first aim is to institute a broad ban on the use of race as a factor or category in admissions, citing Brown v. Board of Education as an originalist argument of the 14th Amendment and the idea that we shouldn’t be creating categories because they can be potentially harmful. So, we need to get rid of these categories completely, and legal distinctions based on race or color should be prohibited from the college admissions process. So that’s the first task in this lawsuit.
But the second point is different between the two universities. The one that’s specific to Harvard is basically about discrimination against Asian students. The question asks if Harvard is violating Title XI of the Civil Rights Act by penalizing Asian American applicants, engaging in racial balancing, overemphasizing race, and rejecting workable race-neutral solutions. But the question specific to UNC is different: can a university reject a race-neutral alternative—which is the idea that in some roundabout way, university goals can be achieved by throwing out test scores and admissions—because it would change the composition of the student body, without proving that the alternative action would cause a dramatic sacrifice in academic quality or educational benefits for the overall student body diversity?
In any case, there is a lot of overlap between the two cases, and we’re going to talk about both of them in general for the most part, but we will make some distinctions throughout.
The first conclusion that Brooke has come to from listening to these oral arguments is that it looks like the checkbox has to die. When you fill out the Common Application—the standard application for the majority of colleges and universities in the United States—you have the option to check a box that states what your race is. There isn’t room for a ton of nuance in the box-checking, because you can’t say that you’re, for example, one-eighth African American with just the box. It seems to Brooke that nobody is going to die on the hill of the checkbox.
The first thing that the petitioner has established is that the checkbox is sidelining people into racial groups, and that’s harmful in some way. The attorney representing the Students for Fair Admissions argues that “Grutter assumed that applicants would be treated as individuals, not as members of racial groups, but Harvard gives racial preferences based on the box that applicants check, even if they never write about race or explain how it influences their views.” This is kind of crazy, because what the people making this argument are saying is that you are totally allowed to talk about race in your essays, and that can be subjectively evaluated, but you are not allowed to check a box.
The liberal side counters that nobody is using the checkbox in an isolated manner and that that checkbox is always viewed in light of other parameters, so it is never an isolated element. The conservative justices have made it very clear that they are not impressed by the idea of the checkbox. The attorney for the University of North Carolina doesn’t even know how some people should be checking this box that they’re potentially taking into consideration.
Chief Justice Roberts says, “So, let’s say the student has one grandparent who falls within that class. Can the student claim to be a member of an underrepresented minority?” So essentially what they’re getting down to is that there is a different experience if you’re fully identifying as African American than if you’re a quarter or an eighth African American, and your mother or father is pressuring you to check that box because they know it’s going to help you get into college. Brooke had one student that she worked with that was a quarter Latina, and she always felt like the people at school never felt like she was “Latina enough,” and she wrote an essay on that. It comes down to the fact that race is not just a checkbox and that human beings are not just checkboxes. Also, diversity is on the rise in our country, so Brooke’s thoughts on this are that whether the checkbox dies today, next June (which is her prediction), or even ten years from now, at a certain point in America, checkboxes don’t make a ton of sense, especially if people are only checking one.
The universities are arguing that the checkboxes don’t matter that much, and at the same time, the people bringing the petition are arguing that you could talk about race in your essays, and if it’s contextualized, it’s okay. It seems to Brooke that everyone is almost in agreement here and that we can get rid of the checkbox and still potentially look at race in context in a subjective manner, so long as that subjective manner is not coming down through racial classification. And the other thing we’ll add about the checkbox is that it was the first way that Rick Singer, ringleader of the infamous college admissions scandal, started cheating on college applications. He took white students and checked the “African American” box to try to gain an advantage. So, if that’s the way that Rick Singer got started with his deception, and nobody is fact-checking these boxes—which is true, no one fact-checks this—why are we even putting this on a college application?
That brings us to the second point, which is that within the Harvard case, there is a specific argument being made that Asian students are being disadvantaged. What’s crazy about this is that when we look at the statistics from the Office of Institutional Research at Harvard, it’s jarring and shocking. There is indisputable numeric evidence that shows that Asian American students are at a disadvantage, at least in terms of correlation, within the Harvard admissions process. As you can see in the video, there is a negative correlation with being Asian, whereas there is a very positive correlation with being a highly ranked athlete or having a personal rating of 1 or 2. The personal rating is where a lot of this debate is coming down to, and there was a huge New York Times exposé back in 2018 when this court case first emerged—before it wound its way through all of the courts and up to the Supreme Court—that found that the personal ratings of Asian American students were statistically lower than white students even though, when alumni interviewers interviewed them, the percentages were essentially negligibly different on the same kinds of attributes that these personal ratings supposedly encompass. The lower courts have decided that they cannot prove where to point the racism finger, and don’t know where it comes from or whether it’s intentional. To be unconstitutional, this must be intentional, which means Harvard had to intend to be racist with their personal scores. But inevitably, the comparison between the alumni interviewers and the people in the admissions office didn’t hold up because the lower courts decided that the people in the admissions office had access to particular information that the alumni interviewers didn’t, namely, teacher recommendations, counselor recommendations, and personal essays. So part of the personal rating came from those subjective elements that there is no way that Harvard could catalog or decisively put its finger on. It looks like racism, but we can’t point the finger because numbers alone are not sufficient.
In any case, this personal ratings conundrum really does put Mr. Waxman, the attorney for Harvard, on edge. What he said during the oral argument is in direct conflict with the evidence from the internal report from the Office of Institutional Research that says that a personal rating of 1 or 2 is the most correlative, underneath athleticism, for predicting whether you get into Harvard or not. So, how can this personal rating not matter when it’s the most correlative and predictive factor there is? The numbers don’t lie: it looks like there is an appalling account that Asians are being discriminated against, and yet, because we can’t point the finger at who is doing it, we can’t nail Harvard on it. To Brooke, it really hits home why racism is such a hard issue, because we know it’s there and we can see it in the numbers, but nobody knows exactly where it’s coming from, and therefore, we can’t call people out on it.
The third thing that we’ll say is that we know more than ever when it comes to race-blind admissions. When this other court case was decided twenty years ago, we didn’t have any precedents for race-blind admissions, but since that time, nine states have instituted laws that require some or all of their in-state institutions or flagships to be race-blind in their admissions. Michigan, California, and Texas are three of the biggest examples. What it really comes down to is that it’s unclear whether these race-blind alternatives are “enough” for producing the racial diversity that campuses want to see. Essentially, what Brooke sees is that justices who are super far to the right, like Kavanaugh, are saying that it looks like there is good evidence that there is lots of diversity with these programs. Then there are justices on the other side like Sotomayor who are not satisfied with the idea that Harvard today, if they ripped out race as a consideration, would go from 14% African American to 6% African American, according to estimates. So, when it comes to race-neutral alternatives, this is a huge point of discussion in the UNC case, because it really comes down to whether you can reject race-neutral alternatives if your student body is going to change significantly. The other thing is whether there will be a negative impact on the academic environment; we want GPAs to be good and don’t want a lowering of test scores, which is what tends to happen when the metric of race is replaced with low-income, for example.
The other elephant in the room that people are kind of talking about but not really talking about is that legacy exists because of Harvard’s endowment. Harvard is certainly skirting the issue of legacy, because they don’t want to come out and say that they want legacy because that’s how they raise all of their money; they would not have the billions of dollars of financing that they do for undergraduate education if they did not have a really robust alumni network that was donating like crazy. And in order to maintain that alumni network, they are also maintaining the expectation that if you’re an alum, your kid has a 33% chance of admission to Harvard instead of a 5% chance.
The other race-neutral alternative is socioeconomic class; the petitioner is suggesting that Harvard should fill 50% of its class with low-income students. But again, these kinds of proposals would vastly change the character of Harvard, and that’s the argument that’s coming out. When does Harvard stop being Harvard? The petitioners argue that yeah, you’re going to go from 99th percentile SAT scores to the 98th level, but that doesn’t mean that Harvard isn’t Harvard anymore; it’s just like Dartmouth. But we’re pretty sure that Harvard doesn’t want to be Dartmouth. So essentially, it lowers test scores, potentially lowers GPA and academic preparedness, but there are also concerns—in the UNC case, for example—that it could impact broad-based diversity. For example, the problem with these ten percent plans is that they’re only getting the top ten percent of every high school, but with that, Harvard has had trouble enrolling highly qualified humanities majors. You get a tip on the Harvard scale if you’re trying to get into a humanities major over a technical or science major. Harvard might not be able to reach its goals for how many history majors it’s graduating, and it has esteemed faculty teaching these subjects who are the best in their field and whose classes they need to fill.
The final point that we wanted to talk about is the debate between the two sides on the value of diversity. On the conservative side, Justice Alito keeps saying this idea that race is a zero-sum game, meaning how can one say that race can only help and not hurt? Because if it helps one student get in, that means another student doesn’t get in. But the counter to that is the idea that diversity is a noble aim, and maybe college admissions aren’t all about you but also about building a society and raising up leaders that are going to bring the best outcomes as a whole to our society. And that’s the argument that Kagan and Sotomayor are running with: the idea that diversity is a noble aim and that in order to build a society that works, we want to have leadership that represents our population.
Here’s a line from Kagan where she is talking to an attorney: “If you’re a hospital and you serve a diverse group of patients, is it super-important to you to have a diverse set of doctors?” Studies find, by the way, that if you are African American and you go to a black doctor, you are more likely to take their advice, do what they tell you to do, and have better measurable outcomes in your health. So if we want to create a healthy society, we need black doctors. And the dark horse that really came into the room at the end of one of these oral arguments was the Solicitor General of the United States, who came in and basically did a Hail Mary to not throw the military academies under the bus because they cannot achieve the racial levels that they have if they only use socioeconomic class. The military is a vertical pipeline; they cannot pull people in for leadership from lateral sources, and if you want to come up in the military, you have to come up through the system. And the portal to that system are these military academies, and in order to get officers that match, as a matter of national security, they need to be able to look at race at this point in time.
To recap: one, Brooke thinks the checkbox will die. Two, the court may very well say that race alone cannot be used as a factor in admission, and they cannot categorize people according to racial categories when they’re scoping everything out. But we also don’t know if Harvard will be punished for not trying to adhere to the race-neutral alternatives or whether they will be defunded from federal funding unless they make certain changes, like dismantling legacy. We don’t know how aggressive the court will be yet. We also might get to the originalist argument that race cannot be a category in admissions at all. There might also be a timeline enforced; for example, in the case from twenty years ago, they had a rough timeline of about twenty-five years before we could see some of these affirmative action policies put to the wayside. We’re almost at twenty-five years, and it doesn’t seem like Harvard is putting that aside, but maybe the court will set a deadline.
We will have to see what happens and how broad-reaching this will be, but we will say that the court is leaning conservative and something’s going to change and something’s got to give.