Opinion: This is the question the Supreme Court needs to ask Harvard

Editor’s Note: Editor’s note: Evan Mandery is a professor at John Jay College of Criminal Justice and the author of “Poison Ivy: How Elite Colleges Divide Us.” The views expressed here are his own. Read more opinion on CNN.

CNN
—

On October 31, the Supreme Court will hear arguments in a pair of cases that threaten to end “affirmative action,” as has been practiced by America’s colleges and universities for nearly half a century.

In the lead case, a group called Students for Fair Admissions (SFFA) allege that Harvard University’s admissions policies – which sometimes count race as a “plus” factor – have systematically disadvantaged Asian-American applicants. Harvard says that an adverse decision would limit their “freedom and flexibility” to create diverse campus communities.

I have a question I’d like one of the justices to ask Harvard: How can the university defend “affirmative action” for poor students of color while aggressively engaging in affirmative action for affluent Whites?

Make no mistake about it, Harvard has been doing affirmative action for affluent White applicants for centuries. The mechanisms are almost too numerous to mention. Research has long shown that high school class rank is a far better predictor of college performance than standardized test scores, yet Harvard and other elite colleges continue to admit students based on SAT and ACT scores, which are closely correlated with wealth.

While Harvard indicated last year it would not require SAT and ACT scores of applicants for the next four years, one recent study found that the test-optional practices which some schools (Harvard among them) have adopted in the wake of the pandemic did nothing to increase the enrollment of low-income students.

It’s similarly well established that early admissions disadvantaged poor students of color, and yet the share of students admitted early has steadily increased. Harvard has 42 teams in 24 sports programs; according to admissions statistics cited in a 2019 working paper from the National Bureau of Economic Research on so-called ALDC preferences – athletes, legacies, relations of donors, and the children of faculty – 69% of recruited athletes are White.

Many, like squash and fencing, are effectively foreclosed to socioeconomically disadvantaged children because of their prohibitive costs. And this says nothing of the explicit preference given to the children of faculty, alumni, and donors, who are disproportionately affluent and White.

This hypocrisy makes Harvard’s ethical position untenable.

It also has great legal significance.

Here’s everything you need to know about the constitutionality of affirmative action in one paragraph: Under the Civil Rights Act of 1964, the Equal Protection Clause applies to any university that accepts federal funds. Only a handful of mostly right-leaning, religious colleges that you ‘ve probably never heard of don’t. Harvard does. The Equal Protection Clause prevents discrimination on the basis of race. A race-conscious admissions program, like Harvard’s, must withstand “strict scrutiny” – meaning that it must be “narrowly tailored to serve a “compelling interest.”

The Supreme Court has long acknowledged diversity as a compelling interest in college admissions. This is the central holding of Regents of the University of California v. Bakke, a splintered 1978 decision that rejected quotas but embraced Harvard’s approach to dealing with race. In 2003, the Court reaffirmed its commitment to this approach in Grutter v. Bollinger, a challenge to the University of Michigan Law School’s admissions practices. The current Court has invited argument on whether Grutter should be overturned.

Ending affirmative action would also be a most regrettable development at a moment when the issue of race in admissions has taken on a broader historical scope to address deeper reparative questions. As Harvard recently acknowledged, the university enslaved more than 70 individuals. Its endowment of $53 billion was grown in part from donors who had built their wealth through the slave trade. Other elite schools have made similar acknowledgments, with Georgetown pledging to offer preferential admissions for descendants of slaves.

Indeed, the very construction of “affirmative” action – born in its current form during the Johnson administration to provide Black Americans with greater access to opportunity amid the passage of civil rights legislation intended to transform US society – implies that some students need a leg up to meet putatively objective qualifications –nearly all of which are tied to wealth. This refusal to acknowledge how wealth fuels false notions of objective merit obfuscates an agenda of preserving the status quo. And this says nothing of the essential contribution that voices of color make in the classroom. If the Court ends affirmative action – as it likely will – it will be nothing less than a tragedy.

It never should have come to this.

Under existing law, a program cannot be “narrowly tailored” if the college could achieve its goal in a race-neutral way. In other words, race can only be considered as a last resort. With the threat of litigation looming, Harvard convened a committee to examine race-neutral alternatives to its admissions practices. The committee’s work never got off the ground, and, after SFFA filed its lawsuit, disbanded. Harvard then convened a second committee to explore whether it could achieve its diversity goals through race-neutral means. The committee summarily determined that it could not.

At trial, SFFA presented the expert testimony of Richard Kahlenberg, a fellow at the Century Foundation. Kahlenberg offered a sensible proposal to boost diversity: Harvard could end the significant preference it gives to ALDC candidates. Harvard’s own analysis said that the difference in admission rates between whites and Asians could be explained almost entirely by the preference afforded to ALDCs. Harvard’s expert – Berkeley economics professor David Card – said, in effect, that Harvard didn’t prefer White people over Asians; it was just that the institution needed lacrosse players and faculty kids, and they just happened to be disproportionately White. “The statistical evidence does not support the claim” of bias, he said.

Card owned the pivotal moment in the case. He testified that eliminating both race and ALDC would cause Black and Hispanic enrollment to drop. But why would Harvard have to do both? Couldn’t it simply end ALDC preferences? Wouldn’t that be the Narrowly-tailored, race-neutral way to achieve its goal of improving diversity?

The trial judge, Allison Burroughs, said no. “Eliminating tips for ALDC applicants would have the effect of opening spots in Harvard’s class that could then be filled through an admissions policy more favorable to non-white students,” she wrote, “but Harvard would be far less competitive in Ivy League intercollegiate sports, which would adversely impact Harvard and the student experience.” The First Circuit Court of Appeals agreed. Athletes, it said, have demonstrated “discipline, resilience, and teamwork.” As if working kids who help support their family haven’t!

Burroughs bought almost every aspect of Harvard’s argument. She said that eliminating preference for “legacies, applications on the dean’s and director’s interest lists, and children of faculty or staff” would “come at considerable costs, and would adversely affect Harvard’s ability to attract top quality staff and to achieve desired benefits from relationships with its alumni or other individuals who have made significant contributions to Harvard.” Yet Harvard offered no evidence in support of these claims and research has shown that legacy has no relationship to alumni generosity.

Perhaps its unsurprising that a judiciary dominated by graduates of elite colleges and law schools have been reluctant to question factual claims that implicate the very nature of opportunity in America. But this reticence also creates an opportunity. The Supreme Court has an option available to it that would both preserve affirmative action for the most deserving candidates and boost diversity: It should remand the case and require Harvard to achieve its goal of boosting diversity through race-neutral means. Given the likely outcome of the case, it’s an approach Harvard should favor.

Alas, the current Supreme Court has shown little interest in maneuvering strategically to avoid disrupting longstanding civil rights (as the outcome in Dobbs v. Jackson Women’s Health made clear), and Harvard and its elite peers have shown little interest in disturbing the status quo. There is thus every reason to believe that affirmative action for deserving students of color will end soon. Let history remember that if it does it will be in large part because of Harvard’s steadfast commitment to affirmative action for affluent Whites.