The Supreme Court’s Chance to End Racial Discrimination in College Admissions

T he United States Supreme Court has an opportunity to undo a grave injustice of its own making: racial discrimination in college admissions.

Today, the Court will hear arguments in Students for Fair Admissions v. Harvard University and SFFA v. University of North Carolina, cases challenging the Court’s 2003 decision in Grutter v. Bollinger. The Court has ruled that institutions cannot use racial preferences to remedy historic societal discrimination, “create a level playing field,” or racially balance student bodies. The only way colleges may use race in admissions is to promote “diversity” — having students of different races on campus to provide manifold views. Thus, in Grutter, the Court held race can be used to promote “diversity” provided race is only one factor in a “holistic, multi-factor” evaluation, is time-limited, and does not involve quotas or racial balancing.

However, our institutions are flouting the standards articulated by Grutter, and race has become the determinative factor for thousands of college applicants each year. There is no such thing as a benign form of racial discrimination: However implemented, it hurts students denied admission due to race. Universities mouth Grutter’s terms — “holistic,” “multi-factor,” “diversity” — and use them for cover as they engage in illegal discrimination.

I helped run the Civil Rights Division of the U.S. Department of Justice under former attorney general William Barr. After a multiyear investigation, I drafted the complaint used to sue Yale University for discriminating against Asians and whites in undergraduate admissions. Our investigation showed that race was the determinative factor in hundreds of admissions decisions each year. The results of our investigation are alarming and foreshadow the arguments the justices will soon hear, as Yale, Harvard, UNC, and likely many others follow similar discriminatory practices.

The evidence revealed that black applicants are as much as eight times more likely to be admitted to Yale than similarly situated Asian and white applicants with comparable academic records. Each year, Yale denies admission to significant numbers of Asians and whites based solely on their race. The evidence also revealed that Yale engages in racial balancing. For nearly two decades, Yale kept the annual percentage of black and Asian admissions within approximately one to one and a half percentage points of the previous year’s admitted class.

Harvard’s admissions process is also heavily influenced by considerations of race. The trial evidence DOJ analyzed and argued to the lower court showed that Harvard monitors the evolving racial composition of the class at every stage of the process to produce a class that, year over year, is racially balanced within a very narrow range.

My colleague and former assistant attorney general, Eric Dreiband, explained to the U.S. Court of Appeals that Harvard’s “application summary sheets used by admissions officers use race. First readers use race, second readers use race, subcommittees use race, the Harvard admissions committee uses race. . . . The overall rating Harvard assigns to each applicant uses race.”

Indeed, despite Grutter’s admonition that racial balancing is illegal, in what is perhaps the most alarming finding, at the end of the admissions process Harvard and Yale use “lopping” and “bopping” to fine-tune the racial balance of the class. That is, after Harvard and Yale have compiled a list of provisionally admitted candidates, they go back through the list and strike (“lop” or “bop”) Asian and white students to achieve racial balance.

Harvard also uses a subjective criterion called “personal rating” to deny admission to Asian students in order to make room for Harvard’s racially favored applicants. Dreiband pointed out: “Harvard admissions officers are sitting in their offices assigning ratings based on criteria like courage and integrity and somehow, in some mysterious and unexplained way . . . Asian-American applicants are being rated as having less courage and less integrity despite the fact that based on the other metrics, academics and extracurriculars, they are the highest achievers.” Last year, only a third of Harvard’s freshmen were non-Hispanic white. The universities ignore Grutter’s mandate about time limits and plan to continue their race discrimination indefinitely.

Even though abiding by Grutter is the least colleges could have done since the 2003 decision, it’s important to keep in mind that Grutter itself is wrong in allowing discrimination. The Equal Protection Clause of the U.S. Constitution prohibits public universities from denying to any person “the equal protection of the laws” based on race. The Civil Rights Act of 1964 states clearly and without exception: “No person in the United States shall, on the ground of race, color, or national origin . . . be subjected to discrimination.” These laws do not make exceptions for discrimination in pursuit of “diversity,” nor do they allow carve-outs for discrimination only against some groups such as whites and Asians. Justice John Marshall Harlan, the sole dissenter in the infamous 1896 Plessy v. Ferguson case that allowed segregation to continue in America, courageously wrote, “Our Constitution is color-blind, and neither knows nor tolerates classes among citizens.”

Lower standards for admission of black and Hispanic applicants also mask society’s failure to these students — that more black and Hispanic applicants are not better qualified upon graduating from high school to be accepted by prestigious universities based on the same criteria as Asians and whites.

Finally, the use of “diversity” as an excuse for race discrimination is predicated on the unexamined and unproven, racist assumption that people are inherently different based on race. How so? Certainly not genetically. And does the black son of a hedge-fund manager from Greenwich, Conn., who attends the Phillips Andover Academy add diversity, while the white daughter of an Appalachian coal miner and the Asian son of a Korean immigrant operating a bodega in the Bronx do not? Is the black Andover graduate going to add diversity when he joins 20 of his Andover classmates in Harvard’s freshman class?

Universities should focus on true diversity — not skin color. Universities should seek to admit students from various socioeconomic backgrounds and locales, immigrants, kids from single-parent families, veterans, etc. Many of these students may be black or Hispanic, but their diversity will come from their unique, individual experiences, viewpoints, and accomplishments, not their race.

Outside the realms of higher education, left-leaning governments, and certain corporations, racial discrimination is extremely unpopular in America. It rightly strikes most of us as un-American and unfair. Even California (California!) voters in 2020 overwhelmingly rejected a referendum to return racial preferences to college admissions.

Much of the misery in human history is a result of treating people as nothing more than members of tribes, rather than individuals deserving of respect and equality under the law — and deserving to rise or fall based on personal merit. Unconstitutionally partitioning Americans into racial and ethnic blocs harms everyone by fostering stereotypes, bitterness, and division among the American people. Chief Justice John Roberts said that “the way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” To the Supreme Court today, this should seem straightforward enough.