Can race-based admission to college survive scrutiny?

By June 2023, the Supreme Court will rule on the challenge brought by plaintiffs against what they say are racially discriminatory admissions practices of Harvard College and the University of North Carolina. Before then, the justices should study an essay (“The Sausage Factory”) recently published by Gail Heriot, of the University of San Diego School of Law, and attorney Carissa Mulder. It demonstrates the disconnect between the Supreme Court-approved rationale for preferences and colleges’ actual practices and their purposes.

Two 2003 cases involved the University of Michigan. In one, the court declared unconstitutional the undergraduate admissions policy of adding points — equivalent to an entire letter grade — to admissions scores of certain favored minorities. In another, the court upheld the Michigan law school’s preference policy because, although its magnitude of discrimination was larger, it did not involve an explicit formula. The court decided universities deserved deference for non-formulaic preference policies because the institutions were guided by considerations of pedagogy — academic benefits of “diversity” for all students.

The nine justices agreed that the law school’s policy was racially discriminatory, and hence the school had to demonstrate that the policy was “narrowly tailored” to serve a “compelling” interest. But, say Heriot and Mulder, the court majority “eviscerated” this supposedly strict standard by saying the court should “defer” to the law school’s “educational judgment,” and to “academic freedom.”

One cannot, the authors say, simultaneously “strictly scrutinize a government’s actions and defer to its judgment.” The court’s deference “put a heavy thumb on the scale in favor of race discrimination. But ... the Court is supposed to do everything it can to avoid approving race discrimination and instead to favor race neutrality.”

And, the authors say, it is inconceivable “that academic freedom would have been sufficient to justify any other form of race discrimination.” In the 1950s, there were many education experts who believed that “students learn better in racially segregated schools.” Fortunately, the court then exercised its own judgment.

Since then, Heriot and Mulder say, the court has not explained “why, alone among government instrumentalities, public colleges and universities should be exempt from the strong presumption against racially discriminatory laws and policies (or why, alone among industries, private colleges and universities should be exempt).” Research into schools’ practices shows that race-based admissions are the product not of empirical educational research but “of political winds from both inside and outside each institution,” and are intended to keep campus peace and attract funds.

Presenting “diversity” as educational benefit for all students is academia’s way of justifying racial discrimination actually intended for aims that the Supreme Court has not said justify such discrimination — “social justice,” or compensation for past injuries.

The Michigan law school case assumed, Heriot and Mulder say, the educational benefits of racial diversity and assumed these benefits were the school’s motivation for racially discriminatory admissions.

year, the Supreme Court’s duty will be to exercise its judgment, not to defer to such presumptions.