In Defense of Affirmative Action in Higher Education

In November 2014, Students for Fair Admissions, an organization founded and led by Edward Blum as part of his ongoing opposition to civil rights and racial equality, sued Harvard University for racial discrimination in the admissions process. 

According to the plaintiff, Harvard discriminates against Asian-Americans and engages in “racial balancing” that unfairly restricts the number of Asian-Americans admitted to the school. Yet the remedy that plaintiff seeks — prohibiting Harvard from being “aware of or learn[ing] the race or ethnicity of any applicant” — is untethered to its allegations. Even if SFFA prevailed on all of their remaining claims, it doesn’t follow that the proper remedy would be to prohibit Harvard from considering race as one of many factors in the admissions process.

On Thursday, the ACLU filed a friend-of-the-court brief with a federal court in Boston in defense of affirmative action in higher education. Whether or not Harvard discriminated against Asian-American applicants in its admissions process will ultimately be decided by the courts, but the remedy that the plaintiff seeks is extreme and unconstitutional for three primary reasons.

First, the Supreme Court has already stated that race can be considered as one factor in a holistic admissions process. In its 2016 decision in Fisher v. University of Texas, the court reaffirmed that universities can take race into account to ensure a diverse student body as long as that practice is narrowly tailored to avoid violating the Constitution’s Equal Protection Clause. In fact, based on the 2016 Fisher decision, the court in this case already dismissed SFFA’s contention that Harvard’s bare consideration of race violates Equal Protection.

There’s also a First Amendment problem.

The plaintiff's proposed remedy — a permanent injunction against any consideration of race in admissions — would unconstitutionally violate Harvard’s First Amendment right of academic freedom. Universities have significant discretion as to how they compose their student body. Harvard’s judgment that a candidate’s multifaceted identity, including race, is a relevant component of its admission decisions is thus a constitutionally protected expression of its educational autonomy. Since the Supreme Court has already recognized that a race-conscious holistic admissions policy does not violate equal protection, the plaintiff's proposed remedy would unconstitutionally interfere with the university’s academic freedom.  

Finally, as the Supreme Court has acknowledged, these policies have reverberating effects that radiate out well beyond the university. Students from diverse backgrounds who learn from each other and are exposed to a variety of experiences, backgrounds, interests, and talents are better prepared for a pluralistic society. Banning any consideration of race, as SFFA seeks, would hamper the growth of generations of students who will be unprepared for an increasingly diverse nation.

To prohibit any consideration of race in a holistic review would undermine equality, impede integration and inclusion, and deny the relevance of individual experiences to the diversity of the student body. Nothing in the Constitution or the record supports SFFA’s request to ban Harvard from considering race in its admission process.

If it is proven that Harvard has discriminated against Asian-Americans, that can be addressed without eliminating race as one factor in the admissions process. Race matters, and we will all be worse off if universities are forbidden from taking that fact into account.

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Anonymous

So you are saying that racism is ok as long as your intentions are good.

I'm sure white supremacists feel the same way.

DEAN HEDGES

However nicely this article is written, it has serious flaws in common sense, and perhaps worse. The basic premise to the idea presented by Jennesa and Marvin is that without control, the only conclusion is chaos. This is just not reality based. In an affirmative action system there are two parts; the affirmed and the not affirmed. This AB system must adhere then to AB dynamics. If A, then not B, unless A includes B. Affirmative action then inflicts a discrimination against the group not provided Afirmation. Diversity is not what Harvard offers and has no responsibility to provide it. Diversity is a naturally occurring event with factors and dynamics far beyond the ivy tower. Race consciousness is unavoidable as is gender. This does not provide a structure for hand picking your customers when you accept funding from the Fed. I suggest the ACLU is astroturfing and is an embarrassment

AnonymouS

Your suggestion is off base. Astroturfing requires dark money and the use of PACs to pursue political goals with a false narrative. It's my understanding, being faithful to the Constitution of the United States is not a political "goal," it is the status quo. The ACLU is keeping this constantly before the courts to keep it real.

Anonymous

Any race-based decision in college admission is inherently discriminatory as it is always done at the expense of other races. So the only just way is to have a race-blind admission policy, and instead using social-economic based considerations to help increase diversity. The current race based affirmative aciton benefits students from upper middel class, which does not seem to be fair from the point of view of lower-income white or asian students.

Dr. Timothy Leary

"We will just keep catering to minorities until we are one.": Bill Clinton circa 1992.

Anonymous

Just tell Harvard's Humanity or Social Study department.

Anonymous

I'm curious as to whether height and weight are considered a relevant component of Harvard's admissions decisions. Ultimately, for those who see the race of an individual is just another physical attribute like hair type, all the weight given to race when it comes to an admissions decision is dumb. Imagine if this was done for another physical attribute that an individual has no control over, and for which they had been brought up to believe plays no part as to whether or not they qualify to attend an ivy league school.

Harvard’s judgment that a candidate’s multifaceted identity, including [height], is a relevant component of its admission decisions is thus a constitutionally protected expression of its educational autonomy. Since the Supreme Court has already recognized that a [height]-conscious holistic admissions policy does not violate equal protection, the plaintiff's proposed remedy would unconstitutionally interfere with the university’s academic freedom.

Anonymous

And the ACLU's sad march towards becoming an illiberal institution continues. Eventually, the name of the organization itself could become Orwellian, eg. Ministry of peace == pro-war / ACLU == pro discrimination and racism.

Just to be clear, if this was simply a first amendment issue I'd be right there with you. But it isn't, since universities voluntarily surrender some rights when they agree to receive federal funding. Key word being voluntarily.

And of course, everyone knows that in the reverse situation, eg. a business that discriminates against minorities in hiring based on, say, a belief that tight conformity and not diversity increases productivity, you and your ilk would be raising your pitchforks. In other words, free speech for me but not for thee.

Do you have no shame?

Anonymous

So you also want to balance jails racial ratio with AA?

Anonymous

Wow. I thought college is for excellence. But you are so convincing that now I believe college admission is a much bigger issue than it is and only by considering race the society can have ultra equality. Let’s not stop at colleges, lets diversify NBA, NFL, etc.

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