The Corner


Judge Applies Minimal Scrutiny So Harvard Can Keep Discriminating

On the campus of Harvard University in Cambridge, Mass. (Jessica Rinaldi/Reuters)

It took federal judge Allison Burroughs nearly a year to write her decision in Students for Fair Admissions v. Harvard, but I suspect she knew how she’d rule before the trial began.  Good liberals just know deep down that discrimination in favor of applicants who happen to have ancestry that puts them in an oppressed category is a good thing. If Harvard says it’s beneficial, then it must be.

In today’s Martin Center article, Roger Clegg of the Center for Equal Opportunity (which opposes racial preferences) writes about the case and its future trajectory. Even though Harvard won, this was just round one in a battle that will almost certainly end up on the Supreme Court’s docket in a couple of years.

Where is the judge’s ruling vulnerable? Clegg thinks it’s her failure to come anywhere close to strict scrutiny. Is it really true that the school gains some “educational benefits” from marginally increasing the number of students from black and Hispanic families who are accepted while marginally decreasing the number of students from Asian families? If so, is there no other way of obtaining those supposed benefits than setting up racial categories (and apparently quotas)?

Clegg also takes issue with her notion that some discrimination is permissible as long as it isn’t “undue.” He writes, “I believe she’s wrong in concluding that our law permits group discrimination as long as it doesn’t hurt disfavored groups ‘unduly.’ The Civil Rights Act in particular and the 14th Amendment weren’t written that way. But Harvard drew one of the judges who reads the Supreme Court’s dubious jurisprudence to conclude that they were.”

I’m completely with Clegg in hoping that the Supreme Court will ultimately take this case and make a clear ruling against racial preferences in college admissions. If so, schools like Harvard that are so dedicated to curating a student body with whatever mixture it wants will still be able to do so, but only if they are willing to turn away the federal funds that put them under the Civil Rights Act.

Clegg points out that the last time the Court considered this issue, Fisher v. Texas,  it seemed ready to strike down racial preferences, but then Justice Scalia died and the liberal justices dragged Justice Kennedy over to their side, to write a feeble opinion allowing Texas to continue its preferential admissions policy. With Kennedy’s retirement and the addition of Gorsuch and Kavanaugh, there is reason to hope that this case will turn out differently.

George Leef is the the director of editorial content at the James G. Martin Center for Academic Renewal.

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