In response to U.S. District Judge Allison D. Burroughs’ ruling this week that Harvard University does not discriminate against Asian Americans in undergraduate admissions, two commentators issued reactions with almost themes: the ruling missed the point. In the New York Times, law professor Melissa Murray wrote that the opinion missed the point by being…
…focused on diversity as the sole grounds on which the use of race in admissions may be justified. As Judge Burroughs noted in her ruling, diversity-centered admissions policies can “enhance the education of students of all races and backgrounds, to prepare them to assume leadership roles in the increasingly pluralistic society into which they will graduate,” “broaden the perspectives of teachers” and “expand the reach of the curriculum and the range of scholarly interests.” Her words echo the standard refrains that have been deployed to defend affirmative action since Justice Lewis Powell’s opinion in University of California v. Bakke (1978). Justice Powell famously extolled the virtues of the “Harvard Plan,” which recognized that a “farm boy from Idaho can bring something to Harvard College that a Bostonian cannot offer.” The problem, of course, is that thinking about diversity in terms of what beneficiaries might contribute makes the benefits of affirmative action contingent and conditional — worthy only because its beneficiaries serve the broader needs of institutions and those who are assumed to belong.
To the contrary, Murray believes that Harvard’s race preferences out to be justified as permanent reparations, though she never uses those exact words. (Hmmmm.…I wonder if she’s black? Let’s see…why yes, she is!):
Those who fought for affirmative action expected institutions to maintain policies that ensured continued representation of those who had long been excluded. But at least in the courts, these convictions have been largely jettisoned.
That’s because they are unethical, illegal and unconstitutional.
The momentary victory for Harvard, which was correctly accused of discriminating against Asian-Americans in admissions in order to further affirmative action goals, was the result of an ideological rather than a legal analysis. I give the judge credit for being open about his bias: how else could one interpret his reasoning? From the Washington Post:
While Harvard’s “admissions process may be imperfect,” Burroughs wrote, the judge concluded that statistical disparities among racial groups of applicants “are not the result of any racial animus or conscious prejudice.”
The law does not require “racial animus or conscious prejudice” to make racial discrimination illegal. Discrimination on the basis of race is unfair, unjust, illegal and wrong. The judge doesn’t address that fact; he just explains why Harvard’s discrimination is the good kind, writing, “The use of race benefits certain racial and ethnic groups that would otherwise be underrepresented at Harvard and is therefore neither an illegitimate use of race or reflective of racial prejudice.”
What does “under-represented” mean? This is a tell: Judge Burroughs is a disciple of the Left’s edict that institutions, workplaces, benfits and distinctions are inherently suspect or harmful if they don’t closely match demographic divisions within the public in general. This essentially un-American myth requires the use of quotas while disguising their intent and function.
Affirmative action has always been an example of policy hypocrisy, engaging in present discrimination in order to combat the effects of past discrimination. It was justified, at best, as a temporary breach of core principles in pursuit of a theoretical remedy to a unique problem.
Another “the opinion missed the point” article had a more useful, if also flawed, analysis than the law professor’s “We should keep discriminating against whites and Asians forever because of slavery and Jim Crow” argument. Richard Ford makes the case in “The Harvard Ruling Misses the Point” that the entire debate is taking place within an absurdity. Elite institutions like Harvard exist to bestow the credential of being certified “elite,” a member of the deserving American upper class. “Democratizing” the anointment process by artificially using factors that have nothing to do with merit or achievement to bestow elitism is self-contradictory: once it becomes obvious that getting admitted to Harvard signifies nothing substantive, then Harvard’s ability to sanctify its graduates vanishes, or should.
It should. Harvard’s degree always was something of a fraud in this respect. Ford correctly observes,
The unstated assumption that folds affirmative action into a general critique of elite admissions is that acceptance should be based exclusively on individual merit (and that merit, in turn, should be measured by grades and test scores). Indeed, opponents of affirmative action often speak as if it is a departure from an otherwise even-handed and admirable meritocracy. But the Harvard case and the bribery scandal both expose—in high relief, if not for the first time—the extent to which non-racial (and hence legally unproblematic) admissions preferences dwarf those associated with race. Athletes, legacy applicants, and those otherwise likely to help universities secure large donations enjoy higher admission rates than members of underrepresented racial groups. Affirmative action is one of the more modest of many departures from numerical indicia of merit.
Well, more modest except for the fact that it is, you know, illegal. There’s no law or Constitution principle, or even logical rebuttal, that holds that a private institution cannot and should not make practical quid pro quo arrangements with benefactors, or that admitting otherwise less-than-stellar applicants out of storied parents and families does not enhance an institution’s prestige, and thus the value of its degrees to graduates who are, in fact, qualified on their personal merits alone. There are, however, laws that forbid discrimination on the basis of race, gender, religion, and the other familiar categories. Ford is essentially excusing racial discrimination in admissions because “it’s not the worst thing,” but, in fact, it is.
Other observations in the article are better. Ford writes, for example,
As a practical matter, then, so-called merit-based admissions—however one defines merit—can only go so far: the children of the elite must always predominate if the school is to remain elite. A truly elite school admits the most talented student body it can while still ensuring that most of the student body is drawn from the upper class. If it were not for the American myth of the classless society, we could admit that an elite education is, among other things, a class credential. Elite admissions could then be understood as a ritual through which the upper classes sort themselves and decide which lucky members of the lower orders to admit into their ranks.
The Harvard ruling and the bribery scandal will lead to calls for reform of the admissions process, and there is plenty to criticize. But much of the uproar has been based on unrealistic and even incoherent ideas about the nature of selective universities, their strengths, and what they can accomplish. The myth of the classless society allows the critics of university admissions to pretend that selective universities could somehow be less elitist but still just as elite. And this has meant that all the resentment over the classist aspects of university admissions has been displaced onto the relatively minor issue of race-based affirmative action.
It’s not relatively minor if you are a Harvard applicant passed over because your skin is the wrong color, and someone with inferior qualifications is nonetheless the “right color.” Ford, like Professor Murray and Judge Burroughs, in the end is using a rationalization to justify racial discrimination, just a different one than they were.
Harvard is going to lose this case in the Supreme Court of the United States because its racially-biased admissions process constitutes illegal discrimination.
That’s the point. and it isn’t a particularly complicated one.