The concept was established by the Supreme Court in Bakke, that the value of a diverse student population was a legitimate interest of colleges, and that using race as a consideration atop the other considerations of student qualifications was not unlawful discrimination. And, indeed, while one can question what a diverse background brings to the study of physics, it’s hard to seriously argue that diverse backgrounds, experiences and views don’t contribute to a richer, fuller learning environment.
But the ghost of Bakke floats throughout District of Massachusetts Judge Allison D. Burroughs’ opinion in Students For Fair Admissions v. Harvard. The law never provided that colleges can simply discriminate based on race to achieve the racially diverse student body they desire, an argument that had the support of a disparate impact approach for Asian applicants. It wasn’t that being Asian took away points, for that would have been wrong.
The plaintiffs had argued that Asian-American applicants scored consistently lower than other races on their so-called personal ratings, a subjective measure that takes into account a student’s background and character. The judge recognized that there was a disparity, but said that it was “small” and reflected neither intentional discrimination nor a process that failed to take unintended discrimination seriously.
Had the disparate treatment flowed in another direction, it may not have been so easily dismissed, which was very much the core of the complaint here. But the fact that Judge Burroughs ultimately deemed Harvard’s purpose pure, its process flawed but working, and that there were no better alternatives to achieve the legitimate goal of diversity meant that something had to give. And what gave was the “hard work” (which was a negative stereotype of Asians) and futures of Asian students who weren’t deemed as “interesting” as Black and Hispanic applicants. How one vets for “interesting” might seem interesting, but the court was satisfied that as long as Harvard wasn’t intentionally screening out Asians, it was left to its own devices.
And thus, diversity and inclusion were saved, but because of the Bakke concerns, which NYU lawprof Melissa Murray notes is the right outcome for the wrong reason.
The court’s decision 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.”
In other words, having a racially-diverse student body is good for the students, the school and education. You know who it’s not necessarily good for?
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.
What the decision did not hold, and does not support, is the notion that admission to Harvard, or any college for that matter, is due students as reparations for historic discrimination. Harvard can admit them because it’s good for Harvard and its students. Harvard can’t admit them because it owes them, or at least people who look like them, for past discrimination.
The initial question posed by this action was whether affirmative action or race-cognizant admissions, would survive at all. After all, the assumptions behind such palliative measures, that given the chance, marginalized students would rise and take their place as equals in education, hasn’t panned out quite as expected.
Justice Sandra Day O’Connor, the deciding vote in 2003’s Grutter v. Bollinger ruling upholding affirmative action, wrote that “25 years from now, the use of racial preferences will no longer be necessary.” Just 16 years later, such a forecast seems naïve — especially in light of recent academic and journalistic work that has detailed the persistent way that racial wealth gaps and implicit and explicit discrimination limit opportunity.
Whether this is as naïve as argued isn’t entirely clear. As social perceptions of discrimination improved, there have been shifts in the perceptions of outcomes that seem to always push the envelope further away, farther out of reach. Or maybe the anticipated outcome wasn’t perfect parity in outcome, but equal opportunity was never going produce the results that would look perfect on paper. This is a “glass half full” issue, since some will see disparate outcomes as proof of discrimination while others as proof of autonomy or cultural choices. You can lead a horse to water, after all.
But the win for Harvard, Murray argues, is the loss for oppressed students, as the court failed to rule that it was their rights, and not the interests of Harvard in a diverse population, that deserved protection.
In that regard, Students for Fair Admissions v. Harvard has been a disappointment so far. By giving a full-throated endorsement of diversity as the primary rationale, the decision backed down from other urgent implications. It could have engaged more deeply and directly with the question of whether affirmative action is now merely a tool to promote pluralism or remains an appropriate remedy for longtime systemic, state-sanctioned oppression.
It could be argued that this is difference without a distinction, as either way it inures to the benefit of some at the expense of others, and the “why” is just an exercise in sophistry. But it’s a microcosm of the shift from universal concerns, what’s good for everyone, to identitarian concerns, what is owed to people of a certain race in compensation for their historic discrimination.
Judge Burroughs didn’t bite, as the law has yet to recognize reparations as a justification for express racial discrimination. And yet, those “hard working” Asian students won’t get into Harvard either way.