Race, Harvard and the Supreme Court The Justices will get a chance to vindicate the 14th Amendment.
The Supreme Court on Monday agreed to hear two cases challenging racial preferences in admissions at Harvard and the University of North Carolina. Kudos to the Justices for taking this opportunity to vindicate equal treatment under the law regardless of race, especially when the left is pushing racial calculations into policies far beyond campus.
This also is a chance for the Court to correct its own mistakes. Racial quotas are forbidden, but in Grutter v. Bollinger (2003), a 5-4 majority endorsed the idea that race could be a “plus” factor to help colleges seek “the educational benefits that flow from a diverse student body.” Yet there was an expiration date: “We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.”
That deadline is almost here. But two decades later the progressive zeal for divvying up people by race, ethnicity and sexuality has increased. Colleges have begun hosting specific graduation events for black, “Latinx” or LGBT students. Some dorms provide optional “affinity housing.” States and hospitals lately have written race into their policies for allocating scarce Covid-19 treatments. The old goal of “equality” is now passe on the left, which wants “equity,” which means unequal treatment in an attempt to achieve equal results.
Also, what is the limit on a racial plus factor? Students for Fair Admissions, the petitioner in both cases, says Harvard admits 56.1% of black applicants in the top academic decile, compared with 31.3% of Hispanics, 15.3% of whites, and 12.7% of Asians. A black applicant who’s in the fourth-lowest decile, it adds, “has a higher chance of admission (12.8%) than an Asian American in the top decile.”
This would be one hell of a plus factor, which suggests that in reality Harvard is pretty much doing what it wants. “Grutter was wrong the day it was decided,” the petition says. The Fourteenth Amendment guarantees all Americans—black, white and Asian—the equal protection of the laws. The Civil Rights Act of 1964 bans racial discrimination “under any program or activity receiving Federal financial assistance.”
The Justices have abortion and guns on this year’s docket, so give them credit for taking on another combustible subject. As for the merits, it’s hard to improve on Chief Justice Roberts’s formulation in a 2007 case: “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” Time for an encore, Mr. Chief Justice.
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