On October 31, the Court will hear oral argument in a pair of cases challenging the role of race in admissions decisions at Harvard College and the University of North Carolina. Briefing in the two cases—Students For Fair Admissions v. Harvard and Students For Fair Admissions v. University of North Carolina—is now complete.
Harvard’s brief dazzled me with its evasive doublespeak. Harvard repeatedly invokes the district court’s findings of fact,* but those findings are, in key respects, contradictory and incoherent:
1. Harvard says that “the lower courts found ‘no evidence’ of discrimination against Asian-American applicants ‘whatsoever.’” But Harvard also states that the courts concluded that “if Harvard abandoned consideration of race as one among many factors, representation of African-American and Hispanic students would significantly decline.” Doesn’t that show that Harvard considers race in a way that discriminates “significantly” in favor of African-American and Hispanic applicants? And what conceivable reason is there to believe that the number of accepted Asian-American applicants wouldn’t increase to compensate for the decline in African-American and Hispanic students if Harvard “abandoned consideration of race”?
2. Harvard says that the “lower courts found Harvard uses race … only ‘as a plus factor in the context of individualized consideration of each and every applicant.’” But if race is a “plus factor” for some applicants and not for others, that’s clear evidence of racial discrimination.
3. Harvard says that the district court found that information from the admissions office’s one-page summaries of its “tentatively admitted class” is “never used to pursue racial quotas or balancing” but is used to “identify anomalies in the representation of students with certain characteristics, including race.” It later repeats that the “lower courts found that ‘Harvard does not have any racial quotas and has not attempted to achieve classes with any specified racial composition’” but that Harvard instead “includes race among other characteristics on one-pagers for the permissible purposes of guarding against inadvertent drop-offs in representation of minority applicants.” But the very notions of “anomalies” and “inadvertent drop-offs in representation” sure seem to presuppose some sort of racial quota or balancing.
4. Harvard says that the “lower courts found Harvard considers race as ‘one factor among many.’” But, again, the lower courts’ conclusion that the numbers of admitted African-American and Hispanic applicants “would significantly decline” if Harvard “abandoned consideration of race” shows that race is often a very large factor. Indeed, the district court found that “race is a determinative tip for approximately 45% of all admitted African American and Hispanic applicants.” (Emphasis added.)
5. In support of the just-one-factor-among-many canard, Harvard finds it meaningful to state that “a person’s race … is part of who they are.” Surely true (even if ungrammatical). But a person’s religious faith is also an important part of who that person is. Yet as the Students For Fair Admissions brief points out, Harvard treats religious diversity very differently from racial diversity:
[W]hen applicants self-report their religion, Harvard blinds itself to this information; admissions officers thus usually have no idea whether an applicant is Catholic, Protestant, Buddhist, Muslim, Jewish, Daoist, atheist, or something else. [Emphasis in original.]
* Oddly, Harvard’s brief repeatedly asserts that the court of appeals (as well as the district court) made findings of fact. Harvard uses the plural phrase “the lower courts found” (or “both lower courts found”) a remarkable seventeen times, and it also refers to the “courts’ findings of fact” and the “lower courts’ extensive findings” (plural possessive in both instances). But it’s elementary that appellate courts don’t make findings of fact.