Jim Hartman: Racial preferences on the ropes

The U.S. Supreme Court heard nearly five hours of arguments on Oct. 31 over whether colleges can use race as a factor in admissions, a practice it approved in 1978, and since reaffirmed in 2003.

The justices are considering challenges to the admission practices of Harvard and the University of North Carolina, specifically that they discriminate illegally against Asian-Americans in favor of other races. (Students for Fair Admissions v. Harvard, and SFFA v. UNC.)

This means the court must revisit its 2003 decision in the Grutter vs. Bollinger case in which the court held schools could use race as one factor in admissions in the name of achieving diversity.

Justice Sandra Day O’Connor notably wrote in Grutter that the use of race to achieve diversity probably wouldn’t be needed in 25 years.

That was 19 years ago and on Oct. 31 several justices pressed the question as to when racial preferences would end. Lawyers for the two universities made it clear there’s no end in sight and the schools could discriminate by race for years to come.

If people believe racism is “systemic” in America then schools will never stop using preferences. If they believe the United States is fundamentally racist then discriminating by race will be justified forever.

On the other hand, if the Supreme Court forbids the use of race and ethnicity in college admissions, that opinion would restore America’s constitutional colorblind legal covenant.

Both the Harvard and the UNC cases are legally and factually straightforward.

The claim in each lawsuit is that both schools racially distort their freshman classes by illegally raising the bar for certain racial and ethnic groups and lowering the bar for others.

In Harvard’s case, Students for Fair Admissions revealed the college is penalizing Asian-American applicants in favor of whites, Blacks and Hispanics by engaging in racial balancing, overemphasizing race and rejecting workable race-neutral alternatives to achieve racial diversity.

Although Asian-American applicants ranked above all other racial and ethnic groups on such objective measures as grades and test scores, the admission staff gives them demerits on such subjective measures of personality as lacking leadership and confidence and being less likable and kind.

Harvard has a long and ugly history of discriminating against high-achieving minorities.

Harvard’s leadership once believed it had too many Jews on campus because nearly a quarter of all Harvard freshmen were Jewish. Holistic admissions criteria were concocted to limit the number of Jews admitted.

Ending the consideration of race and ethnicity in college admissions isn’t controversial.

A 2022 Pew Research survey found 74% of all Americans, including 59% of African-Americans, 64% of Asian-Americans and 68% of Hispanics, don’t believe race should be a factor in college admissions.

Colleges could instead adopt race-neutral policies that still benefit minorities as public universities in nine states have done. For example, Harvard could reduce alumni legacy preferences that primarily benefit whites and give more weight to economic background.

California schools have done this since voters there barred government discrimination by race in referendums in 1996 and again in 2020.

America is becoming increasingly diverse. These racial classifications created in 1977 are what we use mostly today: white, Black, Asian and Native American, with an ethnicity option for people of Hispanic heritage.

This country is far more diverse five decade later after these categories were adopted. The categories are arbitrary and misleading. Why should an economically deserving “white” applicant from rural Nevada forfeit their spot to a wealthy family “black” applicant from San Francisco?

Checking the box indicating “Asian” would cover students from China – or Afghanistan. What’s learned from checking that box? What box applies to biracial/ multi-racial applicants?

From the oral arguments, the Supreme Court appears poised to rule racial preferences in college admissions are illegal. The court would best serve the country and equality under law by concluding their time is up.

E-mail Jim Hartman at lawdocman1@aol.com.