The Corner

Law & the Courts

Take the Harvard Case

A gate to the Yard at Harvard University in Cambridge, Mass., March 10, 2020 (Brian Snyder/Reuters)

The Supreme Court’s justices are scheduled to decide later this week whether to grant review for next term in the case challenging Harvard’s use of racial and ethnic preferences in its admissions. They should do so, and then hold that such discrimination is illegal. Only by overthinking could they have any trouble ruling that this racial discrimination violates the law. It is not only at odds with the relevant legal text but also unfair, and not only unfair but also unpopular — and not only unpopular but also making race relations in our country worse.

But wait! There’s much more calling for the Court to return to this issue (and has been for a while): The one misbegotten opinion by the Court ruling that there is a “compelling interest” justifying such discrimination was in 2003, and by its own terms was expected to expire within 25 years. In the meantime, universities’ use of preferences has not faded away, but become more ingrained. Conversely, the country is becoming more multiracial and multiethnic, and individual Americans are themselves more likely to be multiracial and multiethnic, making the discrimination ever more unwieldy, ugly, and irrational. For example, Asian Americans, as in the Harvard case, are more and more likely to be among the victims now; Latinos are a larger “underrepresented group” now than African Americans; and what, by the way, is the historical justification for giving Latinos a preference over Asian Americans? Well, supposedly the justification is not historical but pedagogical — that there are “educational benefits” to exposing whites to “underrepresented” nonwhites — but one wonders how many people really believe this dubious excuse and, indeed, the justifications typically discussed now for “diversity” are more likely to be overtly political and ideological. Those purported educational benefits have always been, in any event, disputed and at best marginal. What’s more, the costs — like the “mismatch” of individuals and institutions, so that every group is hurt by the use of preferences — are undeniable and increasingly well-documented (the Court’s calculus for determining the compellingness of racial discrimination in this context has inadequately weighed those costs, which are many and which I list here ). And it’s impossible to maintain that this discrimination is really necessary for running a college, when most colleges don’t use them (they aren’t that selective), and indeed many states — including big states and states with first-rate public universities, such as California and Michigan — have now enacted specific bans.

There’s speculation that some of the justices might not want to take the case during this time of roiled race relations. But much of the roiling is a result of racial identity politics — on the campuses themselves as well as off — and the too-widespread acceptance of Leftist tropes such as “systemic racism.” This mindset and its racial essentialism have been greatly encouraged by the pervasive institutionalization of the “diversity” rationale for race-based decision-making, especially in the academy. And for this, of course, the Supreme Court itself bears much of the blame.

So the Court should be willing to do its part to clean up the mess it has helped create and which will only get worse otherwise. As a recent Wall Street Journal editorial — also urging the Court to take the case — said, “The Supreme Court should address this — not least because of its own role in allowing this allocation by race.” In any event, the time is long overdue for the Supreme Court to honor the words of the laws that have (already) been enacted to take race off the table when decisions are made.

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