Home inFocus The Awakening (Winter 2024) Will Colleges Reject Racial Discrimination?

Will Colleges Reject Racial Discrimination?

Hans von Spakovsky Winter 2024
Protesters gather in 1959 against the integration of schools following the landmark Supreme Court decision Brown vs Board of Education.

On June 29, 2023, the US Supreme Court issued the most important decision involving the education of children since it ended racial segregation in schools in 1954’s Brown v. Board of Education. In Students for Fair Admissions v. Harvard College, the Court finally fulfilled its duty to uphold the guarantees of equal protection in the 14th Amendment and the Civil Rights Act of 1965. It did so by throwing out the race-based admission policies of Harvard College and (in a companion case) the University of North Carolina (UNC).

The Court ordered the termination of the morally repugnant racial discrimination practiced by numerous colleges and universities. This fundamentally just decision should be welcomed by families of all races and ethnicities nationwide, particularly those with sons and daughters graduating high school and aspiring to attend college.

The evidence of such discriminatory practices was stark. Harvard and UNC pride themselves on claiming they are the oldest private and public universities in the country. Yet, in the name of “diversity,” both universities have been using race as a determining factor in the admission of many of their students. This has benefitted some students and punished others, such as the Asian-Americans students who sued both universities. These schools had devised and implemented discriminatory policies intended to prevent highly qualified Asian-American and white students from being admitted, while allowing students of other races with lower qualifications, test scores, and credentials to be admitted.

Why? Because those students were either the “right” or the “wrong” skin color. Unfortunately, this invidious practice had metastasized because of a series of bad decisions by the Supreme Court that culminated in 2003 in Grutter v. Bollinger. In Grutter, a 5-4 majority held that the “educational benefits” of “diversity” were a compelling interest that justified race-based admissions, a holding that was just as wrong from a constitutional standpoint under the Equal Protection Clause as the Plessy v Ferguson decision was in 1896 that permitted racially segregated “separate but equal” facilities.

To meet the compelling-interest standard, the Court in Grutter said that a university had to show that its admissions policy was narrowly tailored to achieve the educational benefits of racial diversity, that race could only be considered a “plus” factor, that universities first had to consider race-neutral alternatives in good faith, and diversity-oriented admissions policies should be “limited in time.” Universities such as Harvard and UNC, however, ignored these constraints and gave only token acknowledgement over the past two decades to the “narrowly tailored” and “race-neutral alternatives” requirements. They also had no plans to ever end those policies. Instead, they engaged in wholesale and blatant discrimination on the basis of race in their admissions. And the lower courts went along with it until 2023, when the Supreme Court had finally had enough.

Prior to the Harvard decision, it might as well have been 1923 and not 2023 when it came to the malevolent practices of school administrators in discriminating against many of their applicants. They were clearly not fulfilling what the Supreme Court originally articulated in the Brown decision: that the right to a public education “must be made available to all on equal terms.”

Given the number of amicus briefs filed in the Supreme Court by numerous other public and private colleges supporting the discriminatory policies of Harvard and UNC, it is clear that this type of invidious racial discrimination has been pervasive throughout schools of higher education across the country. And given the appalling, critical reaction of the academic community to the Supreme Court’s decision, it is likely to continue to be pervasive, just hidden as much as possible by university administrators to avoid legal challenges.

In fact, the outrage and hysteria expressed by the academy, news media, and progressive left is eerily similar to the reaction of white segregationists after Brown v. Board of Education. That decision ended the pernicious “separate but equal doctrine” sanctioned by the Supreme Court in 1896 in Plessy v. Ferguson, one of the worst decisions ever rendered by the Court. Chief Justice John Roberts, who wrote the majority opinion in Students for Fair Admissions v. Harvard, said that decision was part of the “ignoble history” of the Court that helped “deface much of America.”

It was these modern-day, reprehensible, discriminatory admissions policies that President Joe Biden was defending when he attacked the Supreme Court’s decision and claimed it is “not a normal court,” whatever that is supposed to mean. His unapologetic and fervent support for allowing academic institutions to continue to discriminate on the basis of race is not just wrong, it is shameful coming from the president who takes an oath to “preserve, protect and defend the Constitution.”

Apparently, in Biden’s eyes, that does not include the 14th Amendment, which states that no American can be denied “the equal protection of the law” or the Civil Rights Act of 1964 which banned discrimination on the basis of race, color, religion, sex or national origin. Yet, that is exactly what Biden wants universities to do. So, apparently, do the three liberal justices on the Supreme Court, who spent their dissenting opinions trying to explain why an amendment that plainly says everyone has to be treated equally under the law, along with a federal statute banning discrimination, don’t really mean that everyone has to be treated equally under the law and can’t be discriminated against.

Biden’s claim that, with this opinion, the Supreme Court has done “more to unravel basic human rights and basic decisions than any court in history” is particularly outrageous. It is Biden and university administrators who are trying to unravel basic human rights by saying that educational institutions can, and should, discriminate against students based on their race. That is exactly what Biden was telling them to do when he said that “We cannot let this decision be the last word” and he urged university administrators to continue to “support, retain, and graduate diverse students and classes.”

The diversity justification used by Biden and universities for such discrimination is both a fabrication and itself racist. They claim that by using race as a determining factor in college admissions, you will achieve diversity of thought and viewpoint. In other words, they define diversity based solely on the racial proportions of their student bodies. But as the chief justice pointed out in the Harvard case, this view of diversity is based on the “offensive and demeaning assumption that [students] of a particular race, because of their race, think alike.” In employing this type of racial balancing, school administrators “unavoidably employ race in a negative manner” that involves “racial stereotyping.”

The way these universities tried to disguise their discrimination against the qualified students they didn’t want to admit because of their race or ethnicity, such as high-achieving Asian Americans, was through what they called a “holistic” admissions process. This is a subjective analysis provided by admissions officers of the “character” and “fitness” of student applicants. Asian American students at Harvard, for example, were routinely given lower scores on their character and fitness despite being just as involved, or more involved, in the type of extracurricular and community activities that gave preferred students such as blacks, Hispanics, and Native Americans, higher character and fitness scores.

All of the university administrators trumpeting this supposed “fair” and “humane” holistic admissions process seem unaware of its odious origin, although for Harvard administrators it was a case of déjà vu. More than 100 years ago, Lawrence Lowell, the president of Harvard from 1909 to 1938, didn’t like the increasing number of Jewish students who were enrolling at Harvard. He wanted to cap the percentage of Jewish students at 15% so as not to “ruin” the Protestant culture of the university.

Since Lowell knew that setting a quota would trigger opposition and resistance, he instead implemented a new admissions policy that quit relying strictly on academic qualifications and switched to what became known as the Harvard Plan. Today, this is euphemistically referred to as holistic admissions in which potential students are evaluated on their character and fitness.

It was this type of highly subjective analysis that Harvard used to discriminate against Jewish students for decades because they supposedly lacked the character and fitness necessary to matriculate at Harvard. That is exactly the way universities have been using the holistic admissions policy to discriminate against Asian American and white students and discriminate in favor of black, Hispanic, and other minority students. As Alan Dershowitz has written, the Harvard Plan, which is still in use today, was “born out of one of the most shameful episodes in the history of American higher education” and “has in fact been deliberately manipulated for the specific purpose of perpetuating religious and ethnic discrimination in college admissions.”

Unfortunately, given the fervent support that such discriminatory admissions policies enjoy in the academic community, and the support they will no doubt receive from Joe Biden’s Justice Department, it seems likely that academic institutions will do everything they can to engage in massive resistance to this decision. Before doing so, they might want to recall some more “ignoble history.”

After the Brown decision, white segregationist Democratic Senator Harry Byrd of West Virginia orchestrated a coalition of nearly 100 Southern politicians, signing the “Southern Manifesto.” The manifesto was an agreement aimed at “massive resistance” to Brown to show “the rest of the country […] that racial integration is not going to be accepted in the South.” Another chief executive who was upset over the Supreme Court issuing a decision that ran contrary to his views on race was Alabama’s governor, George Wallace, who said in a campaign speech that he would “resist any illegal federal court order, even to the point of standing at the schoolhouse door in person, if necessary.”

Are those complaining so vociferously about this decision planning to engage in massive resistance? Will they stand at schoolhouse doors? Will the presidents of the universities using these biased admissions policies continue to discriminate, finding a way to disguise what they are doing? Are they going to follow the directive of academics like Harvard law professors Mark Tushnet and Aaron Belkin, who have said the Supreme Court’s decision should be ignored because the ruling is “based on gravely mistaken interpretations of the Constitution that undermine our most fundamental commitments”?

Universities not only have a legal obligation to stop discriminating, but a moral one as well. But apparently, they don’t agree with the admonition that “Distinctions between citizens solely because of their ancestry are by their very nature odious to a free people whose institutions are founded upon the doctrine of equality.”

That is a quote from Hirabayashi v. U.S., a corollary to the infamous 1943 Korematsu v. U.S. decision that approved the arrest and detention of Japanese Americans in government camps simply because of their ancestry. Yet today, university and school administrators think there is nothing wrong with discriminating against young Asian American students simply because of their ancestry, some of whom who may be descendants of those who were unjustly deprived of their rights and liberties in those camps. In fact, they believe they’re engaging in morally beneficial behavior.

There is no concept of “original sin” in our jurisprudence, and there is no justification whatsoever for students who have worked hard, done well, and never participated in any discriminatory practices that occurred generations in the past to be discriminated against when they are applying to colleges. As the chief justice said in the Harvard decision, students should be treated based on their:

…experiences as an individual—not on the basis of race. Many universities have for too long done just the opposite. And in doing so, they have concluded, wrongly, that the touchstone of an individual’s identity is not challenges bested, skills built, or lessons learned but the color of their skin. Our constitutional history does not tolerate that choice.

The American public should not tolerate that choice either.

Hans A. von Spakovsky is a Senior Legal Fellow at the Heritage Foundation and a former Justice Department lawyer and Federal Elections Commission commissioner.  He is the coauthor of Our Broken Elections: How the Left Changed the Way You Vote.”