The Latest Lawsuit Against Racial Preferences Has Harvard Worried

By George Leef

Racial preferences in college admissions dodged a constitutional bullet when the Supreme Court decided to uphold the University of Texas’ preferential policy in the Fisher case (2016).  What had once looked like a case that would kill or at least wound the way many top colleges and universities discriminate against some applicants in order to make their student bodies “more diverse” turned out otherwise following the death of Justice Scalia.

That victory of the University of Texas did not, however, declare that colleges were in the clear with their discriminatory admissions plans. A case has been filed against Harvard over its policies – Students for Fair Admissions v. Harvard. The plaintiffs in the suit are students of Asian descent who argue that Harvard makes it much more difficult for them to gain admission than if they were in preferred groups, particularly black and Hispanic.

You can read Students for Fair Admissions’ statement of the facts of the case here.

This lawsuit clearly has Harvard worried. Recently, outgoing president Drew Faust sent a letter to the Harvard community in which she stated that the school would do the utmost to defend against SFFA.

She wrote, “As this case generates widespread attention and comment, Harvard will react swiftly and thoughtfully to defend diversity as the source of our strength and our excellence – and to affirm the integrity of our admission process. A diverse student body enables us to enrich, to educate, and to challenge one another.”

That sounds nice, but Harvard will have to convince a jury that it would somehow lose its excellence if it couldn’t play favorites among its applicants. Its lawyers will have to deal with a new study released by the Center for Equal Opportunity, “Too Many Asian Americans?,” which compares admissions at three of America’s most prestigious universities: Harvard, Massachusetts Institute of Technology, and Caltech.

Both Harvard and M.I.T. practice “affirmative action” by admitting many black and Hispanic students with lesser academic qualifications. Caltech, however, is race-neutral and makes no attempt to engineer a “diverse” student body based on ancestry. Caltech is noted for its academic excellence and nothing suggests that its graduates have any more trouble dealing with the world than do Harvard and M.I.T. grads.

Jurors may have a hard time accepting Harvard’s purported need to discriminate against highly qualified Asian-American students when the counter-example of Caltech is put before them.

Another weak link in the “diversity” argument that the jurors may find hard to swallow is the claim that without racial preferences, students wouldn’t learn how to, as Faust’s letter says, “live alongside people of different backgrounds, experiences, and perspectives as they prepare for the complex world that awaits them.”

For one thing, students at Harvard (and most other universities) are perfectly well aware that the world is full of people who have different backgrounds. Almost no American college student is unaware of the world’s diversity and nearly all of them have been taught throughout their schooling to celebrate diversity.

And for another, the “diversity” that emerges from the kind of racial preference policies practiced by Harvard is mostly “optical” rather than essential. Georgetown professor Sheryll Kashin has made the argument that the minority students who are chosen under racial preferences are overwhelmingly upper-middle class kids who differ very little if at all culturally from their white and Asian peers. (My review of her book Place Not Race: A New Vision of Opportunity in America is here.)

So the jurors are likely to wonder if Harvard’s preference for students from certain groups (and concomitant discrimination against students from other groups) is really justified by its supposed benefit of teaching young people to get along with those who are different. They might conclude that discrimination to achieve “diversity” is merely a hollow excuse.

Federal law says that colleges and universities that receive government money may not engage in racial discrimination. Up until now, the Court has looked the other way as schools like Harvard did exactly that, approving it because it supposedly has huge educational benefits. The SFFA trial might end with the jury deciding that admissions discrimination in fact has no benefit and should stop.