(Bloomberg Opinion) -- It’s no surprise that a federal judge has held that Harvard University doesn’t discriminate against Asian Americans in its admissions. This case probably ends here: The Supreme Court would be ill-advised to take up this particular case. Yet there will likely be other cases like this one, and a conservative Supreme Court may well take one of those as an opportunity to rule against diversity-based admissions.
Evidence of discrimination by Harvard (where I work) was, in the end, extremely weak. The parties introduced competing statistical models, and even the model preferred by the plaintiffs didn’t show much in the way of disparate admissions outcomes. The main troubling finding, that Asian-American applicants were scored slightly lower on a “personal qualities” metric, appears to be mostly explained by high school teacher recommendations, which might well reflect implicit bias – but not discrimination by Harvard.
Yet Harvard’s courtroom victory isn’t cause for celebration. The court’s findings of fact and law serve as a stark reminder that racial disparity remains an enduring reality in American education, long before students ever reach college. Remedying that disparity is a multi-generational challenge that demands serious engagement. It demands a fundamental rethinking of how educational resources are distributed in the United States — and how all students can be put on an equal playing field in preschool, elementary school and high school.
Affirmative action, now known as diversity-based admissions, is a tool for addressing the symptoms of educational disparity on the basis of race. It isn’t a cure for the disease of structural injustice.
Consider the numbers. As the federal district judge meticulously documented, Harvard, like other elite universities, still needs to use race-conscious admissions to achieve a diverse class. The court found that race was a “determinative tip for approximately 45% of all admitted African-American and Hispanic applicants.” Following the dictates of the Supreme Court, Harvard’s admissions office doesn’t use racial quotas, and it treated race as a discretionary “plus,” not as a factor assigned any specific weight. Nevertheless, the 45% number is stark. It dramatizes the fact that, if Harvard paid no attention to race in admissions, the numbers of African-American and Hispanic students it admits would decline drastically.
Of course, from the standpoint of the anti-affirmative-action activists who brought this case in the first place, such a decline would be just fine. Indeed, those activists seem to have had no particular concern for Asian Americans themselves, whose causes they had never before championed.(1) They just came up with a creative idea for attacking affirmative action in a new way. Instead of claiming that affirmative action keeps out qualified white applicants, the anti-affirmative-action activists hoped to show that affirmative action pitted different racial minorities against each other. It’s fair to say that the effort fell flat in court.
Whether the activists’ approach resonated nationally is a harder question to measure. The point of bringing a case like this isn’t necessarily to win the litigation, but to affect broader public discourse, and to affect the atmosphere among the judges who decide high-profile cases like this one. It’s conceivable that Harvard and other elite universities will now be perceived as discriminating against Asian Americans, whether they actually do or not.
I would be surprised if the Supreme Court accepted this case. Justice Sandra Day O’Connor kept affirmative action alive in a pair of 2003 decisions, and Justice Anthony Kennedy, after much equivocation, ended up following her lead once he had become the swing vote. Yes, today’s swing vote, Chief Justice John Roberts, is considerably more conservative, and is very unlikely to flip his earlier votes, which have reflected his deep skepticism of the constitutionality of race-conscious admissions.
But that stance isn’t shaped by worry about Asian Americans, and Roberts is unlikely to want to use the Harvard case as the vehicle to change the law. For technical reasons, it’s much easier to use a case that comes from a state university, where the governing standard is the Constitution, rather than Title VI, a federal antidiscrimination law that has been interpreted to follow constitutional standards and applies to private universities.
Then there’s the fact that Roberts went to Harvard College and Harvard Law School. He is the only current justice to have attended the college, but another four justices attended Harvard Law School (Justice Ruth Bader Ginsburg ended up transferring to Columbia).
There is no rule that says the justices can’t rebuke their alma mater. Nevertheless, the odds are high that the verdict in Harvard’s favor will survive the court of appeals and will be upheld by the Supreme Court.
That’s the right outcome. But it shouldn’t blind us to the pressing need to change the nature of educational opportunity in the United States — by any and all means necessary.
(1) The organizer of the lawsuit, Edward Blum, was also behind a white student’s lawsuit against the University of Texas that reached Supreme Court, among others.
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Noah Feldman is a Bloomberg Opinion columnist. He is a professor of law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “The Three Lives of James Madison: Genius, Partisan, President.”
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