Harvard’s consideration of race in admissions violates established law (Photo Credit: WikiMedia Commons)
The prominent role of affirmative action in college admissions, particularly for so-called “elite institutions” with restrictive admissions requirements, is once again being litigated at the federal level. Last month, the US Court of Appeals for the First Circuit upheld the Massachusetts District Court ruling in SFFA v. Harvard, which affirmed that Harvard University’s use of race in admissions to benefit underrepresented minorities was consistent with previous Supreme Court rulings that placed stringent limits on the use of race to admit or deny students. Established in Regents of University of California v. Bakke (1978), the Court requires schools receiving federal funding to meet the strict scrutiny standard for the use of race in admissions, ensuring that racial measures be “narrowly tailored to further a compelling interest” held by these collegiate institutions.
Students for Fair Admissions, the plaintiff in SFFA v. Harvard, disputes that Harvard has sufficiently met this standard. They argue that, among other violations, Harvard employs the use of “racial balancing,” in other words racial quotas, to place limits on the number of admitted applicants of certain races. Despite Harvard’s claims that their policies do not constitute racial balancing, Harvard does—by their own account—use race in the comparative consideration of applicants. As Students for Fair Admissions argues, it seems implausible that Harvard’s use of race in admissions does not constitute a sort of soft quota. By specifically tracking the racial makeup of its potential admits and then adjusting its consideration of applicants in response to that makeup, Harvard engages in what can only be honestly described as racial balancing.
Harvard’s undergraduate admissions committee admits to the direct consideration of race in at least two ways. First, depending on the applicant’s racial identity, the admissions committee may apply a “tip” to that individual, which boosts the overall rating of that applicant independent of any other factors. This practice does not seem to run afoul of the law since the boost is not “the defining feature” of an applicant’s admission and does not have the same uniform effect. Harvard emphasizes that they do not apply negative tips to applicants of any race, despite fears by some that racial groups over-represented at Harvard relative to the population could be being discriminated against to prevent them from composing a larger proportion of the student body.
This practice, however, differs greatly from Harvard’s racial policy during the final round of admissions. Once applicants in serious contention for admission are selected, Harvard “tracks the racial composition” of all admits, rejections, and undecideds to determine “whether minority students have been admitted in numbers that will likely lead to a racially diverse entering class.” Harvard states that, while they do not permit racial quotas in any form, if a certain subgroup of the admitted class appears “notably underrepresented or has suffered a dramatic drop off relative to the prior year,” the admissions committee is permitted to re-examine the applicant pool to grant “additional attention” to applicants of that subgroup to promote greater diversity in that prospective incoming class.
While these policies were clearly intended to avoid the use of admissions practices specifically deemed unconstitutional in Gratz v. Bollinger (2003) and Grutter v. Bollinger (2003), Harvard’s race-conscious admissions still appear to be in conflict with the spirit and justification of the Supreme Court’s rulings. While the Supreme Court permits the use of race in a “flexible, nonmechanical way” and allows for schools to set goals for rough “critical-mass[es]” of different minority students, it also emphasizes that college admissions committees must primarily consider and decide on applicants as individuals, not as members of an underrepresented—or overrepresented—racial subgroup of applicants. They further cannot insulate certain “applicants who belong to certain racial…groups from the competition for admission.”
The Harvard admission committee’s “reconsideration” process, turned to when the desirable numbers of minorities have not been admitted, does not meet either of these requirements from the Court. This process seems to be an unconstitutional “separate admissions track,” in which the only factor prompting this additional consideration is the applicant’s race. Regardless of the fact that the applicant is theoretically being considered against the entire applicant pool, he or she is being reconsidered in a special process reserved for their racial group. This additional attention is intended to address Harvard not meeting their desired critical mass value of minorities, not to consider the admission of more applicants as individuals. The reconsideration of applicants from a select racial group in order to boost minority numbers above a desired level, even if it achieves this goal through justifiable individual criteria, seems sufficiently quota-like as to not constitute “truly individualized consideration.”
With SFFA v. Harvard expected to reach the Supreme Court in the coming year, it’s very possible that its ruling will be a watershed moment for affirmative action in the United States. If the Court were to deem Harvard’s admission practices unconstitutional, it would dismantle the ability of elite institutions to fine tune the racial and ethnic makeup of their incoming classes to suit their diversity dreams. And while it’s unlikely that a complete repudiation of affirmative action will result from this case, it’s definitely plausible that the Court places significant additional restrictions on the manner in which colleges can conduct race-conscious admissions. However, if the Court upholds Harvard’s racial admissions policy, it would reinforce the legal philosophy that all but the strongest of quotas and racial prioritizations in college admissions are consistent with the Constitution and Civil Rights Act of 1964.
As stated in SFFA v. Harvard, universities have consistently managed to show that there are “real and profound” benefits to racial diversity among student bodies. Exposing students to the demographics of the pluralistic society they will be working and living in and introducing them to certain ideas and experiences tied to race is certainly a compelling interest for colleges. However, this does not excuse or permit the use of unconstitutional policies to craft diverse classes. The law and courts of the United States recognize the dangers inherent to the use of race to determine policy. It is not sufficient that schools taking federal funds realize certain goods by considering race; they must also make a serious effort to minimize the potential for policy misuse by adequately tailoring the consideration of race to acceptable limits. In the case of Harvard, it appears that they’ve failed to adequately adapt their admissions process to this requirement.
It is unlikely that the debate over affirmative action will be settled in its entirety any time soon. As long as colleges are unable to admit suitable numbers of underrepresented minorities through race-neutral admissions, there will always be the desire to use race directly to admit more of them. Despite this, we can still ensure that schools comply with established law and Court precedents to balance the valid desires for racial diversity with necessary protections against racial discrimination.
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