As a Harvard alumnus, I received this afternoon via email a letter from Harvard president Lawrence S. Bacow concerning the Supreme Court’s grant yesterday of the certiorari petition filed by Students For Fair Admissions (SFFA). SFFA has sued Harvard over its use of racial preferences that penalize Asian-American applicants in the undergraduate admissions process. The magnitude of those racial preferences is enormous, as this chart from the certiorari petition shows (emphasis in yellow added):
Let’s walk through some of the evasions and distortions in President Bacow’s letter.
1. “Yesterday, the Supreme Court announced a decision that could put forty years of legal precedent at risk.”
Fittingly so. Those “forty years of legal precedent” flatly violate Title VI of the Civil Rights Act of 1964, which states:
No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.
In his partial dissent in Regents of the University of California v. Bakke (1978), Justice John Paul Stevens (joined by Chief Justice Burger, Justice Rehnquist, and Justice Stewart) observed that the “plain language” of Title VI “stands as a broad prohibition against the exclusion of any individual from a federally funded program ‘on the ground of race.’” (Emphasis in original.) Thus, just as Title VI protected racial minorities, so also it protected Alan Bakke—the white applicant rejected by UC Davis’s medical school—from what Stevens called “‘reverse discrimination’ or ‘affirmative action’ programs.”
Further, SFFA argues powerfully that Harvard violates the very precedents that Bacow purports to defend: by indulging impermissible racial stereotypes in assigning a “personal rating” to Asian American applicants, by engaging in forbidden racial balancing (quotas), by using enormous racial preferences, and by ignoring workable race-neutral alternatives.
Whether racial preferences have actually benefited favored minorities beyond the admissions threshold is open to question. In their powerful book Mismatch: How Affirmative Action Hurts Students It’s Intended to Help, and Why Universities Won’t Admit It, law professor Richard Sander and legal journalist Stuart Taylor Jr. present compelling evidence that large racial preferences in college admissions programs “systematically put minority students in academic environments where they feel overwhelmed” and “end up having high academic attrition or failure, thereby earning fewer degrees, obtaining fewer professional licenses, giving up on aspirations, and emerging from higher education with a deep-seated”—but mistaken—“sense that they didn’t have what it takes to succeed.” In fact, “nearly all of these students do have what it takes to succeed”: “If they were at good but less-selective schools, their chances of achieving long-term success in school and in life would be higher.”
2. “Colleges and universities could lose the freedom and flexibility to create diverse campus communities that enrich education for all.”
Title VI applies only to universities that receive federal funds. If Harvard wants the “freedom and flexibility” to discriminate on the basis of race, it has a $53 billion endowment that would allow it to avoid the strictures of Title VI. All that it needs to do is stop accepting federal funds.
3. “Our admissions process, in which race is considered as one factor among many….”
Oh, please. See chart above.
4. “Those who challenge our admissions policies would ask us to rely upon a process far more mechanistic, a process far more reliant on simple assessments of objective criteria.”
What SFFA seeks is a process that doesn’t adopt impermissible racial stereotypes in assigning a “personal rating” to Asian American applicants and that doesn’t use enormous racial preferences. Such a process would allow for more individualized consideration.
5. “Would [your college] conversations have been as rich if you had shared the same interests, the same life experiences, and—yes—the same racial or ethnic background as your fellow community members?”
Gee, it sure seems that Bacow doesn’t want alumni to understand that Harvard is being sued for discrimination against Asian Americans.
His question further falsely assumes that there is no middle ground between Harvard’s system of massive racial preferences and racial quotas, on the one hand, and a boring homogeneity, on the other. In fact, there is a vast middle ground.
Indeed, it appears that there is at least one kind of diversity—socioeconomic diversity—that Harvard has little or no interest in. As SFFA explains, at trial it “simulated an alternative where Harvard eliminates its preferences for the white and wealthy [i.e., “children of donors, alumni, and staff/faculty”] and increases its preference for the socioeconomically disadvantaged. This simulation would achieve greater racial diversity without using race. And it would achieve something that Harvard currently lacks: socioeconomic diversity.”