The court should relegate racial discrimination in higher education to the dustbin of history

SYMPOSIUM

This article is part of a symposium on the upcoming arguments in Students for Fair Admissions v. University of North Carolina and Students for Fair Admissions v. President & Fellows of Harvard College. A preview of the case is here.

Zach West serves as solicitor general for the state of Oklahoma. Bryan Cleveland serves as the deputy solicitor general. The state of Oklahoma, through Attorney General John M. O’Connor and then-Solicitor General Mithun Mansinghani, led a 19-state amicus brief in support of Students for Fair Admissions.

United States law has long rejected the notion that racism can be good or benign, and rightly so. The one unfortunate exception to this rule has been the Supreme Court’s approval of racial discrimination in education, which has allowed discrimination against Asian students, most prominently, to fester and grow. Hopefully, the court will soon close that loophole, and relegate racial discrimination in higher education to the dustbin of history.

It has not been demonstrated, much less clearly, that racial “balancing” of any type is necessary for students to have a good education. As Justice Clarence Thomas has previously observed, historically Black colleges and universities provide high-quality education without the levels of racial diversity deemed critical in other contexts. According to a 2021 report, HBCUs account for “80% of Black judges, 50% of Black doctors, and 50% of Black lawyers,” and they are exceedingly effective in producing graduates who pursue science and engineering doctorates. Yet these institutions do not seemingly satisfy the diversity criteria that Harvard or the University of North Carolina declare necessary for a proper educational environment.

Regardless of the debate over the benefits of diversity, the experience of other colleges shows that racial discrimination is not needed for diversity. Since Oklahoma voters prohibited racial discrimination in public education in 2012, the University of Oklahoma has maintained a diverse student body. As Oklahoma’s amicus brief lays out in detailed charts, OU has admitted students of non-Asian minorities at comparable levels to colleges in states that permit racial discrimination, all without discriminating against Asian students. The data shows that universities are still capable of maintaining and growing diverse student bodies without racial discrimination.

Seemingly anticipating this development, the Supreme Court in 2003 expressed the hopeful view that this last vestige of racial discrimination would end within 25 years. They relied on the good faith of universities to eventually transition to race-neutral methods of achieving diversity. And some universities did change course, although often by state requirement. Despite being the discriminatory school at issue in Grutter, for instance, Michigan Law School now engages in race-neutral admissions, and it boasts a sizable increase in the minority population of its student body since 2000.

Nevertheless, many universities have clung to their habits of racial discrimination without any compelling reason, or even any valid reason, for resisting change. Whether by conscious choice or merely by old habit, several of our nation’s colleges routinely deny equal treatment to their applicants on the basis of race — a horrible proposition. Both Harvard and UNC also set aside any pretense that their racial discrimination is temporary, indicating they have every intent to keep engaging in racial discrimination until they are compelled to stop.

While universities that engage in racial discrimination present it as a benign academic benefit, the practical reality is systems of racial discrimination — no matter how benign or “enlightened” — invariably devolve into more and more odious depths of racism. Harvard’s admission data demonstrates that it routinely harms Asian applicants. A top Asian applicant, immensely qualified, has only a 12.7% chance of admission, while Black students with the same academic record have a 56.1% chance of admission and Hispanic students with the same academic record have a 31.3% chance of admission. Even top White applicants have a 2.5% higher chance of admission than top Asian applicants.

Lower courts only avoided the problems here by turning a blind eye to obvious racism, applying a passive level of scrutiny that they would never dare apply in any other racially discriminatory situation. For example, the U.S. Court of Appeals for the 1st Circuit credited a statistical model that factored Harvard’s “personal rating” into admission chances, but the data underlying that statistical model showed that Asians received much lower personal ratings from Harvard. While the university suggested these results were based on factors like poor personal essays, no reasonable person could believe that Asian students as a class are up to 14 times worse writers than Black students with the same academic score, as the numbers seemed to indicate. That an invisible but intentional thumb is on the scale is obvious to any casual observer, even if Harvard would prefer to hide behind a fig leaf and not acknowledge what it is actually orchestrating, which is a massive system of discrimination on the basis of race at one of our country’s most revered and historic institutions.

Grutter, unfortunately, has long allowed universities to pursue diversity through discrimination without addressing the real harms to minorities inflicted by that discrimination. As Justice Antonin Scalia wrote in 1989, “[I]t is important not to lose sight of the fact that even ‘benign’ racial quotas have individual victims, whose very real injustice we ignore whenever we deny them enforcement of their right not to be disadvantaged on the basis of race.” Racial discrimination is always problematic, and its impact on Asians in higher education, among others, is clear.

Indeed, race-based admissions policies come at a steep price for Asian students. Many young Asians have now come to expect being discriminated against by higher education, knowing they must achieve far more than their peers of other races in order to have a hope of being admitted to elite schools. Those are not the sort of negative reliance interests that weigh in favor of retaining Grutter. Instead, they are a harm that our laws and Constitution do not permit. “All applicants must be treated equally under the law, and no benefit in the eye of the beholder can justify racial discrimination,” Thomas wrote in Fisher v. University of Texas at Austin. The Supreme Court, hopefully, will rectify this egregious wrong.