Judging race’s role in college admissions

In 12 months, the nation might be approximately where it is now, with Cassandras claiming democracy hangs by a frayed thread that the Supreme Court might snip. Then, the subject will not be abortion but racial preferences in college admissions.

Such preferences — racebased allocations of opportunity — deepen social divisions, exacerbate identity politics and repudiate the individualism of the nation’s natural-rights tradition. By June 2023, however, the Supreme Court will rule on the challenge brought by plaintiffs against what they say are racially discriminatory 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 20 points — equivalent to an entire letter grade — to the 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 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.” 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).”

Presenting “diversity” as an 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 that these benefits were the school’s motivation for racially discriminatory admissions.

But why this presumption, given academia’s politics and fads, and given that the supposed educational benefits of diversity remain a (politically convenient) “pedagogical hypothesis”? Next year, the Supreme Court’s duty will be to exercise its judgment, not to defer to such presumptions.