By George Leef
A big legal test looms for racial preferences in admissions for colleges and universities. Harvard has been sued by the group Students for Fair Admissions, which alleges that the school discriminates against students of Asian ancestry. If you’re not familiar with the case, Terry Eastland of the Center for Equal Opportunity discusses it in this Martin Center article.
Harvard wants to have what it regards as an ideally “diverse” student body and has therefore done to Asian students what it did to Jewish students in the 1920s and 30s – limit their number. Just as the university wasn’t opposed to individual Jewish student in the old days, but wanted to keep their percentage down to preserve the school’s image, so today Harvard isn’t against Asian students as individuals, but sets admission requirements for them significantly higher than for others. That is so it can have more room for students whose ancestry supposedly makes the school more diverse.
The problem facing Harvard (as well as other elite schools that have similar admissions policies) is that Title VI of the Civil Rights Act of 1964 states, “No person in the United States shall, on the grounds of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.”
Because many Harvard students receive such financial assistance, it is subject to the provisions of Title VI and hence open to lawsuit by students who argue that they have been discriminated against because of their race, color, or national origin. And that puts Harvard in a very difficult position.
Law professor Richard Epstein explains the problem in this post, “Harvard’s Asian Exclusion,” “Harvard cannot tell a straight story about what it does in regard to admissions. Its choices are two: deny that it engages in any form of discrimination, or justify its discriminatory practices. Harvard unfortunately tries to do both, and fails ignominiously…. As a matter of sheer logic, any admissions protocol that is not race-neutral on its face engages in intentional discrimination, for it is not possible to favor some groups in the admissions process without disfavoring others.”
Harvard is prepared to spend a huge amount in legal fees trying to win a legal ruling that it is not violating Title VI in its different treatment of students based on what group they “represent.” It might lose anyway. But there is a way for the university to escape the legal bind it’s in.
It could do that by no longer taking federal money.
Many years ago, Hillsdale College and Grove City College decided that, in order to protect their autonomy from federal regulators, they had to completely sever financial ties with Washington. Hillsdale, as its president, Larry Arnn wrote in this piece for the Martin Center, established a completely private system for helping students who needed financial help to afford college. No federal money is received, so the college is free to have its own admissions policies, as well as avoiding federal mandates on an array of other matters.
If Hillsdale can afford to go “cold turkey” on federal aid, a fortiori Harvard, with its prodigious endowment of more than $35 billion, can do so.
By cutting financial ties with Uncle Sam, Harvard’s officials would be free to continue indulging in the warm and fuzzy notion that they are advancing social justice when they admit academically less-qualified black, Hispanic, and Native American applicants instead of better qualified but “overrepresented” students from other groups. Epstein is right when he says, “If Harvard wants to sacrifice academic merit for diversity, let it. The students who miss out on any merit-based criterion would receive many other admissions offers.”
Such freedom from the constraints of the law, however, would come at a price, namely giving up federal money. Hillsdale, Grove City, and a few other schools (including Wyoming Catholic College) have been willing to do that. Why won’t Harvard put its money where its mouth – that is, its dedication to “diversity” – is?