The Supreme Court and Racial Preferences

The Justices can reassert the principle that discriminating by race is illegal

WSJ editorial.

"A great triumph of 20th-century American government was the Civil Rights Act of 1964. It broke the back of Jim Crow and reasserted the principle that no one should be discriminated against for his race. The Supreme Court has a chance to reaffirm that vital American principle on Monday when it hears challenges to the admissions practices at Harvard and the University of North Carolina(Students for Fair Admissions v. Harvard College and SFFA v. University of North Carolina).

The case is an important moment for American law but even more for the country’s social and political future. America is becoming increasingly diverse. Yet rather than assimilate this melting pot with race-neutral principles, many in our political class want to divide America into racial categories, allocating jobs, benefits and even elections based on race.

The Biden Administration is trying to embed this practice across the federal government and impose it on the private economy. This is a destructive trend that will inevitably lead to more racial balkanization and enmity.

***

The Supreme Court has too often assisted this racial division, notably in education. The seminal mistake was the 1978 Bakke decision in which a plurality opinion by Justice Lewis Powell opened the door to racial preferences. Universities pushed that door wide open, which the Court ratified in the misbegotten 5-4 Grutter v. Bollinger decision in 2003.

Justice Sandra Day O’Connor predicted for the majority in Grutter that racial preferences wouldn’t be necessary in admissions in 25 years, but 19 years later they are even more pervasive. The plaintiffs in Harvard and UNC argue that the schools violate Title VI of the Civil Rights Act, which bars recipients of federal aid from discriminating by race. The Fourteenth Amendment’s equal protection clause also prohibits states, including public universities, from discriminating by race.

Grutter’s great mistake was carving out an exception for colleges to use race in admissions to achieve a diverse student body. The Court set some guardrails, including that race may only be a “plus” factor, cannot "unduly harm” non-minority applicants; and must be considered alongside “all” forms of diversity. Universities were also required to consider race-neutral alternatives and to ensure that racial preferences are “limited in time.” But the Court said—wink, wink—it would be “presumed” they are acting in “good faith.”

Evidence uncovered from Harvard and UNC shows they aren’t. Like most colleges, Harvard uses “holistic” admissions reviews that include nonacademic and subjective criteria. Applicants are assigned academic, extracurricular, athletic, personal and overall ratings. But the personal ratings seem to reflect racial bias, and they are weighted heavily in the overall scores.

Applicants with similar academic qualifications thus have hugely disparate admission rates. The plaintiffs show that only 22.2% of Asian-Americans who rate in the top 10% academically received a high personal score compared to 34.2% of Hispanics and 47% of blacks. Do these differences owe to conscious prejudice or what the left calls “implicit” bias?

Asian-Americans in the top 10% academically have a 12.7% chance of getting into Harvard compared to 15.3% for whites, 31.3% for Hispanics, and 56.1% for blacks. Harvard can’t explain the large disparities if race is merely one factor among many, or why admissions officials apparently believe Asian-Americans have personal attributes that make them less worthy.

UNC’s admissions also demonstrate racial disparities that suggest bias. According to one statistical analysis, an out-of-state Asian-American in the fourth highest academic decile has only a 6.5% chance of admissions compared to 57.7% for a black. Another analysis finds that a white, out-of-state male with 10% odds of admission would have a 98% chance if he were black.

Online chats among admissions officers also show that UNC held non-Asian minorities to lower admissions standards—what George W. Bush once called the soft bigotry of low expectations. “If its brown and above a 1300 [SAT] put them in for [the] merit/Excel [scholarship],” one officer wrote. Another: “Stellar academics for a Native Amer/African Amer kid.”

Both colleges claim they don’t put undue emphasis on race. Yet a district court judge found that race was “determinative” for at least 45% of Harvard’s admitted black and Hispanic applicants. If Harvard eliminated racial preferences, the black share of its undergrad class would fall to 6% from 14% and to 9% from 14% for Hispanics. Race is a triple-plus factor.

Colleges could instead adopt race-neutral policies that still benefit minorities as public universities in nine states have done. For instance, Harvard could reduce alumni legacy preferences that primarily benefit affluent whites and give more weight to economic background. California schools have managed this without great rancor since voters there barred government discrimination by race in a referendum in 1996 and again in 2020.

***

The Harvard and UNC cases prove that Grutter was wrongly decided and unworkable. There are no substantive reliance interests that would argue against overturning it. Colleges could abandon racial preferences tomorrow without overhauling their admissions process. Many no doubt would devise race-neutral ways to admit minority applicants.

Grutter’s misplaced hope was that economic mobility would render racial preferences obsolete. Instead, colleges have helped to cover up the failures of K-12 public education, which disproportionately harms black and Hispanic children. Rather than leading to more racial comity, Grutter has bred division and resentment. This may explain why a majority of Americans in most polls say they want race-neutral government policies and admission standards.

By ruling that racial preferences in admissions are illegal, the High Court can send a powerful message that discriminating by race is contrary to American principles and destructive to social harmony."