The Limits of Law as a Social Tool

Harvard and University of North Carolina Admissions Methods Upended


By Anil Madan

Last week the Supreme Court of the United States (“SCOTUS” or “the Court”) issued its long-anticipated decision in two cases consolidated for consideration on appeal. The Court considered whether the admissions systems used by Harvard College (the undergraduate college of Harvard University) and the University of North Carolina (UNC), two of the oldest institutions of higher learning in the United States, are lawful under the Equal Protection Clause of the 14thAmendment.

US Supreme Court rejects Affirmative Action at Harvard and UNC. Pic – New York Times

The Court concluded they are not lawful. The decision was 6-3 with the so-called conservative justices joining Chief Justice Roberts’opinion for the majority. Justice Sotomayor (Justices Kagan and Jackson joined her opinion), and Justice Jackson writing separatelyauthored blistering dissents.

Enacted in the wake of the Civil War, the 14th Amendment to the United States Constitution provides that no State shall “deny to any person . . . the equal protection of the laws.”

The language of the amendment is directed to the states. So, what does this have to do with Harvard and UNC? Over time, SCOTUS decisions interpreting the 14th amendment have long recognized that a state may act directly as well as indirectly and governmental action whether by the state, its agencies, or cities, towns, and municipalities and their agencies and boards, fit within the concept of state action. But states may also act through private institutions by funding them. Harvard and UNC receive massive federal and state grants. Hence, the anti-discrimination provisions of the 14th Amendment and laws enacted pursuant to its enabling provisions, apply to these two institutions and any others receiving federal or state aid.

The Harvard and UNC admissions process

In 2022, over 60,000 people applied for admission to Harvard; fewer than 2,000 were admitted. Gaining admission to Harvard thus involves success in one of the most selective evaluations processes. Admission can depend on having excellent grades, glowing recommendation letters, or overcoming significant adversity. It can also depend on your race.

The admissions process at Harvard evaluates each applicant through successive stages of review. The initial screening involves a reader assigning scores in six categories: academic, extracurricular, athletic, school support, personal, and overall.

In assigning the overall rating, the first readers “can and do take an applicant’s race into account.”

The applicants are then evaluated by regional subcommittees. The subcommittees are responsible for making recommendations to the full admissions committee. They can and do take an applicant’s race into account when making their recommendations.

The next step of the Harvard process is the full committee meeting. The committee has 40 members, and its discussion centers around the applicants who have been recommended by the regional subcommittees. At the beginning of the meeting, the committee discusses the relative breakdown of applicants by race. The “goal,” according to Harvard’s director of admissions, is to make sure that Harvard does not have a dramatic drop-off in minority admissions from the prior class.

The full committee selects a class of applicants who are tentatively admitted. Then comes the final process called the “lop.” Any applicants that Harvard considers cutting at this stage are placed on a “lop list,” which contains only four pieces of information: legacy status, recruited athlete status, financial aid eligibility, and race. The full committee decides as a group which students to lop. In doing so, the committee can and does take race into account. Once the lop process is complete, Harvard’s admitted class is set. 

In the Harvard admissions process, “race is a determinative tip for” a significant percentage “of all admitted African American and Hispanic applicants.”

UNC’s admission process is also selective for a class of 4,200 out of 43,500 applicants. At UNC, initial readers are required to consider “race and ethnicity” as one factor in their review.

The evidence established that during the years at issue in this litigation, underrepresented minority students were more likely to score highly on their personal ratings than their white and Asian American peers but were more likely to be rated lower by UNC readers on their academic program, academic performance, extracurricular activities, and essays.

After the initial readings and recommendations for admission by readers, the selected applicants go through a committee review. The review committee either approves or rejects each admission recommendation made by the first reader, after which the admissions decisions are finalized. In making those decisions, the review committee may also consider the applicant’s race.

Race consideration and the doctrine of equality

SCOTUS was thus faced with undeniable evidence that race was being considered as a factor in admissions by both Harvard and UNC. The evidence was also undeniable that these admissions policies had increased the number of Black and Latino admittees to both colleges.

But whereas the end result in each case was desired, and even consonant with the idea of equality, was it legal under the language of the 14th Amendment?

If the 14th Amendment was the expression of a noble American idea, execution of that idea in the years after its adoption is tainted by almost a century of shameful failure. Indeed, state-mandated segregation was in many parts of the nation a regrettable norm. As Chief Justice Roberts admitted, the Court played its own role in that ignoble history. This culminated in the infamous case Plessy v. Ferguson, which held that separate facilities for whites and blacks were acceptable. This notion of separate but equal was the law of the land that perpetuated segregation of the races and a deep-seated inequality in the extent and quality of opportunities and services for blacks.

It was not until the landmark 1954 decision in Brown v. Board of Education that SCOTUS finally declared that “separate but equal” was just gloss and that separate is inherently unequal. The Court ordered desegregation of schools, the admission of blacks to white schools and whites to black schools to achieve mixed schools. In a follow up decision, the principle expressed in the Brown case was emphasized: schools must admit students on a nondiscriminatory basis. In short, the case had declared the fundamental principle that racial discrimination in public education is unconstitutional.”

Subsequent case law expanded the application of the Brown pronouncement to virtually all areas affected by state action, and it was established that the clear and central purpose of the 14th Amendment was to eliminate all official state sources of invidious racial discrimination in the States. In short, the central purpose of the 14th Amendment was to eliminate racial discrimination.

It is not difficult to see where this path led the majority. Eliminating racial discrimination means eliminating all of it. The Court had ruled that “the Equal Protection Clause applies without regard to any differences of race, of color, or of nationality—it is universal in its application. For the guarantee of equal protection cannot mean one thing when applied to one individual and something else when applied to a person of another color. If both are not accorded the same protection, then it is not equal.”

These considerations inexorably led the majority to declare the admissions policies used at Harvard and UNC to be unconstitutional.

In doing so, the Court emphasized one principle that is at the core of the American idea: “Distinctions between citizens solely because of their ancestry are by their very nature odious to a free people whose institutions are founded upon the doctrine of equality.”

Sordid and dark history

What of the dissenting Justices? Both Justices Sotomayor and Jackson recounted in considerable detail the sordid and dark history of the abuses that African American slaves suffered. Nor was the history of this country anything but shameful in the treatment and exploitation of blacks following the Civil War and for another century following the adoption of the 14th Amendment and remedial legislation enacted under its authority. Effects linger to this day.

Both dissenters correctly stated that the precedents of SCOTUS had recognized the validity of doing precisely what the majority rejected in these cases: that it is necessary and appropriate to take affirmative steps to remedy past discrimination.

For example, the Brown v. Board of Education case involved the use of race as an identifying factor to achieve a mixed-race makeup in all schools. Why then is it not lawful to carry on the same practice to achieve a mixed-race composition at Harvard and UNC?

The short answer is that the tension between the literal words of the 14th Amendment and the endorsement of actions that are clearly antithetical to its command are too much for the law to bear.

Chief Justice Roberts is entirely correct in stating that college admissions to Harvard, UNC, and other colleges with hyper-competitive applicant pools is a zero-sum game. Every action that tips the balance in favor of one race, negatively affects another.

In my view, Chief Justice Roberts has the better legal argument and Justices Sotomayor and Jackson have the better social policy argument. The problem as I see it is that we turn to the law as a tool to remedy social ills all too often. In this case, the Constitution does not permit the chosen remedy and it was time to recognize that fact. At the same time, abandoning the remedy, as Justice Sotomayor stated, does to some extent subvert the constitutional guarantee of equal protection by further entrenching racial inequality in education.

She went so far as to say that the Court’s majority opinion is not grounded in law or fact and contravenes the vision of equality embodied in the 14th Amendment. Justice Jackson made a similar argument. To me, the dissenters missed the point that the majority accepts that denial of equal opportunity to minorities is itself a violation of the 14th Amendment, but it rejects the idea that fixing a violation by another violation is the right approach.

On the other hand, as Justice Jackson pointed out, a successful affirmative action program should carry the seeds of its own destruction. This, for her, justifies the use of such an approach. The tension is palpable: use current discrimination to remedy past discrimination cannot be reconciled with the 14th Amendment which prohibits all discrimination.

Admissions based on academic merit

Why not simply have admissions simply based on academic merit, an approach many opponents of affirmative action often urge? Justice Sotomayor dismissed this idea. She wrote: “Using class rank or standardized test scores as the only admissions criteria would severely undermine multidimensional diversity in higher education. Such a system would exclude the star athlete or musician whose grades suffered because of daily practices and training. It would exclude a talented young biologist who struggled to maintain above-average grades in humanities classes. And it would exclude a student whose freshman-year grades were poor because of a family crisis but who got herself back on track in her last three years of school, only to find herself just outside of the top decile of her class. A myopic focus on academic ratings does not lead to a diverse student body.”

And therein lies the problem. We need to find a solution that is compatible with the 14th Amendment.

If Harvard and other colleges were to start a program of education, perhaps even an Internet-based online instruction modality, open to students of all races at modest cost to give students an academic boost so that when considered in an applicant pool without using race as a factor, they could reapply for admission and not require preferential consideration. The downside is, of course, the delay in commencing their studies. Students can be paid a stipend and even given the opportunity to work while enrolled in such a program. Delay of opportunity earned is better than denial. It must be recognized that such an approach addresses mainly the academic prowess factor.

Justice Jackson articulated the proposition that the majority’s race-blindness approach does not solve the problem of race-based disadvantage. To her, the irony is that requiring colleges to ignore the initial race-linked opportunity gap between applicants will inevitably widen that gap, not narrow it. It will delay the day that every American has an equal opportunity to thrive, regardless of race.

With this case, we butted up against the limits of using the law as a tool of social engineering. We can either amend the Constitution to declare that discrimination is acceptable in some circumstances, a notion antithetical to the very notion of a society of equals, or we can find other ways of ensuring that people of all races are given a better education and thus, open more opportunity for all.

I will add a postlude. The language of the majority opinion leaves no doubt that reparations initiatives conferring benefits based on race or color will not face constitutional muster.


Mauritius Times ePaper Friday 7 July 2023

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