When Allan Bakke claimed he was the victim of reverse discrimination, the Supreme Court held that affirmative action, using race as one of many factors to achieve an overarching pedagogical good of having a diverse student body, a compelling state interest as was approved in the Fischer, was not unlawful. Not because it was reparations for past discrimination, and not a quota.
At the time, it was highly controversial, enough so to cause a fractured plurality opinion, but the use of race as a consideration, among others, seemed on the right side of a line that prohibited discrimination based on race. Back then, the argument that discrimination favoring an “oppressed” race was itself a favored goal. The idea would have been considered ludicrous and unlawful. But Bakke never drew a real line between the use of race as a “plus” factor and unlawful discrimination.
As the years went by, and “diversity” became more rubric than rationale, race became a more institutionalized factor, until it reached the point where Harvard, miraculously, managed to maintain what would, to any outside eye, appear to be a quota system, where its admissions managed to matriculate a class along racial lines, year after year. It didn’t claim to have a quota system, and vehemently denied that it imposed quotas. It just turned out that way. Go figure.
One of the groups most severely affected by this scenario were Asian students. Whether it was the Tiger Mom thing or just a cultural ethic of working harder, students with great grades, scores, plus, sought admission to one of the nation’s premier colleges. Harvard, unlike lesser schools, had a huge universe of applicants from which to choose their study body, and it was exceptionally competitive. If you aspired to go there, you could get better grades, higher scores, play violin on the stage of Carnegie and find a cure for cancer, but you couldn’t change your skin color or nationality.
There was nothing left to do but sue when, year after year, superlative Asian students just couldn’t make the cut, no matter what they did, and were passed over for students who might have compelling stories, but not nearly as accomplished. Harvard didn’t deny their sterling applications, but claimed that they just weren’t sufficiently personable. You know, one of those impossible to define, incapable of pinpointing, characteristics that could always be claimed and never proven one way or another. As the burden of proof was on the plaintiffs suing Harvard, it was their responsibility to show that Harvard was violating Title VI and the Equal Protection Clause by engaging in racial discrimination against Asian students by compelling them to compete among themselves for a limited number of seats, because the rest were held for people of other races to “balance” the student body and achieve diversity.
The First Circuit, with the painful reminder of how computers have allowed judicial opinions to grow in length without growing in substance, issued a 104-page opinion affirming the district court’s holding that Harvard did not violate the law, but merely took race into account in its effort to achieve the compelling interest of diversity. After page upon page of excruciatingly uninformative and nonspecific fuzzy language about Harvard’s good intentions, the court concluded that Harvard’s use of racial discrimination against Asians was the good kind, not the bad kind. The problem is that for all the words murder, pages turned in search of some limiting rationale for the holding, there was none to be found.
“Harvard says so” appears to be sufficient.
As for process, the Khurana Committee relied on input and data from students, alumni, faculty and staff, and other stakeholders in Harvard’s admissions process. It considered how a diverse environment prepares Harvard’s graduates to enter the public and private sectors and how those sectors prefer graduates who have been exposed to a wide range of ideas and people. In our view, at least these specific goals were articulated in the Khurana Report: (1) training future leaders in the public and private sectors as Harvard’s mission statement requires; (2) equipping Harvard’s graduates and Harvard itself to adapt to an increasingly pluralistic society; (3) better educating Harvard’s students through diversity; and (4) producing new knowledge stemming from diverse outlooks. These goals make clear that Harvard’s interest in diversity “is not an interest in simple ethnic diversity, in which a specified percentage of the student body is in effect guaranteed to be members of selected ethnic groups,” but “a far broader array of qualifications and characteristics of which racial or ethnic origin is but a single though important element.” Parents Involved, 551 U.S. at 722 (quoting Grutter, 539 U.S. at 324-25). Race is one piece of Harvard’s interest in diversity. It is “considered as part of a broader effort to achieve ‘exposure to widely diverse people, cultures, ideas, and viewpoints.'” Id. at 723 (quoting Grutter, 539 U.S. at 330).
Of course, there was never any question that diversity was a good thing and satisfied the compelling state interest prong of strict scrutiny. The blooming flowers of diversity were beautiful, but the question was how far it could go before it crossed the line from a “plus” factor into racial quotas, balancing and unlawful discrimination.
Racial balancing is not transformed from ‘patently unconstitutional’ to a compelling state
interest simply by relabeling it ‘racial diversity.’***
However, universities may pay “some attention to numbers” without “transform[ing] a flexible
admissions system into a rigid quota.”
A mere 42 years after the Supreme Court held ruled against Bakke, there is still no answer as to where that line may be and when that line is cross. Harvard wraps its racial considerations up in the sweetest of purposes, and denies that it would ever engage in a system of racial balancing, rigid quotas.
SFFA argues that, focusing on the classes of 2009 to 2018, “the percentage of [Harvard’s] class by race always fell within a narrow range.” For these classes, the share of Asian Americans admitted ranged from a low of 17.5% in 2013 to a high of 20.3% in 2016 with various percentages in between.
Harvard, in contrast, argued that the period from 1980 should be considered, when the class grew from “a low of 3.4% in 1980 to a high of 20.6% in 2019.” The Court agreed with Harvard. But as much emphasis on stats as appeared in the court below and is repeated by the First Circuit, it ultimately comes back to “Harvard says so.”
The district court considered this evidence and found that it “likely over emphasizes
grades and test scores and undervalues other less quantifiable qualities and characteristics that are valued by Harvard and important to the admissions process.”
It’s hard to argue with “less quantifiable qualities and characteristics,” which had long been a hallmark of Harvard denying admission to students because “they’re not our type.” But it’s not racial discrimination because Harvard says so.
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