Ethical College Admissions: Ironies and Flaws

“Define irony,” convict Garland Greene (played by Steve Buscemi) says in the movie Con Air as convicts celebrate commandeering a plane. His definition is a “bunch of idiots dancing on a plane to a song made famous by a band that died in a plane crash.”

On May 2 we may have found another example. On the very same day that Supreme Court Justice Samuel Alito’s draft opinion overturning Roe v. Wade was leaked, Students for Fair Admission (SFFA) filed its brief before the Supreme Court in its case against Harvard University’s and the University of North Carolina at Chapel Hill’s consideration of race in admissions. Define irony.

There are several levels of irony in the interplay between the SFFA filing and Alito’s opinion. The first is the apparent coincidence of the Roe draft leak and the SFFA brief coming out the same day. The second is that both attempt to overturn 40 to 50 years of previous court decisions, abandoning stare decisis, or the court’s reverence for precedent. And both claim to be descendants of Brown v. Board of Education.

“Ethical College Admissions” has read the SFFA petition to save readers from having to slog through it. Much of it rehashes arguments that weren’t successful in lower court attempts against the two institutions. Students for Fair Admissions alleges that both Harvard and UNC discriminate against Asian American applicants because of their use of race-conscious admission practices to achieve racial diversity.

The primary evidence cited against Harvard is the lower personal ratings that Asian American applicants receive, a rating that SFFA alleges lowers inappropriately and illegally the percentage of Asian American students in each entering class. With UNC, the primary argument is that the university does not consider Asian Americans as an underrepresented minority, as it does with African Americans Hispanics, and Native Americans.

There is one interesting (and I think new) argument in the SFFA filing: it asks the Supreme Court to overturn the 2003 case Grutter v. Bollinger.

Grutter was one of two challenges to affirmative action in admissions at the University of Michigan decided at the same time. The other, Gratz v. Bollinger, involved the university’s undergraduate admissions program that gave underrepresented minority applicants additional points, equal to 20 percent of those needed for admission, and the Supreme Court decided by a 6-to-3 vote that that practice was unconstitutional.

Grutter involved a challenge to the admissions process used by Michigan’s law school. In that case the Supreme Court decided by a 5-to-4 vote that Michigan’s process to obtain “a critical mass of underrepresented minority students” constituted neither a quota nor racial balancing and was therefore constitutionally permitted.

So why is Grutter in SFFA’s sights in this case? Because in both of the most recent challenges to race-based admission before the Supreme Court, Fisher 1 and Fisher 2, the Supreme Court based part of its opinion exonerating the University of Texas on the Grutter opinion and stressed that no party had asked it to reconsider Grutter.

Now SFFA is asking for that reconsideration, at least partly because it thinks it has a Supreme Court willing to overturn precedent. But it is also making the claim that its request to end all race-based admission policies is in keeping with the court’s Brown v. Board of Education decision denying the use of race as a factor in determining educational opportunities. By extension, Grutter, which concluded that diversity was a compelling interest sustaining race-based admission, must be a descendent of Plessy v. Ferguson, the 1896 decision allowing separate but equal schools. The SFFA petition argues that universities ignore Grutter’s conclusion that the use of race must be narrowly tailored, and that they “resort to camouflage,” using “winks, nods, and disguises” to achieve racial balancing and secret racial quotas. It concludes, “Because Brown is our law, Grutter cannot be.”

It’s an interesting and creative argument, but not one I find compelling. The Brown v. Board of Education decision was intended to prevent educational opportunities from being limited or prevented on account of race. Race-conscious admission is intended to increase opportunities for underrepresented groups. Race-conscious admission is certainly controversial, but it is not the same thing as separate but equal, unless you extend the argument to claim that any use of race that benefits one group automatically disadvantages another group, which is what Students for Fair Admissions is claiming with regard to Asian Americans.

So what are the bigger issues here?

The first is what constitutes “fair” admission. Students for Fair Admissions claims that the use of race-based affirmative action is unfair, but there are other admissions preferences—for legacies and for athletes—that benefit those who are already privileged. Why is SFFA not challenging those in court? It is also the case that “rejectivity” is the enemy of fairness. When Harvard is admitting 3 percent of its applicants and could admit three or four different freshman classes that wouldn’t look all that different, it is hard to argue that any applicant is wronged when not admitted.

There is also the fundamental question of how to compare the credentials of two applicants. If you and I both apply to Harvard and are both qualified for and deserving of admission, is it possible to determine that one of us is more qualified and deserving? Even if I have better grades and test scores, I may have the advantage of coming from a wealthy family and a better-resourced school (or one with more grade inflation), and I may have spent hundreds or thousands of dollars on test prep. Which of us is more deserving? Grades and test scores are meaningless without context.

As pointed out in the lower court decision in Harvard’s favor, the discrepancy in personal rating scores between Asian Americans and other groups is problematic. If comparing academic credentials or extracurricular activities is difficult, how does Harvard begin to measure and compare qualities like leadership, self-confidence, likability and kindness? And does the personal rating advantage certain kinds of students and disadvantage others?

A second issue is what constitutes “underrepresented”? Students for Fair Admissions argues that Asian American applicants are being discriminated against because the percentage enrolled would be higher if only academic credentials were considered, but the percentage at both Harvard and UNC exceeds the percentage in the population at large. Is that underrepresented?

The third issue has to do with burden of proof. In previous cases dealing with race-based affirmative action, the court has given deference to universities to decide what admissions policies support their missions. Students for Fair Admissions is arguing that the burden of proof should be on universities to defend their use of race rather than on those questioning those practices.

There is one other important issue raised by the decision in Grutter. That decision included the expectation that affirmative action would no longer be needed in 25 years. We are nearly 20 years in, and I am not aware of anyone on the admissions side of the house who thinks that deadline is achievable. We certainly have a better understanding today that racial inequality in our country continues to be pervasive and deep.

Do we (and should we) have an exit strategy for racial preferences in college admission? I remember when we were told that America would only need to stay in Afghanistan for 75 more years. Is the need for race-based preferences in admission similar?

That’s a difficult conversation to have, and I don’t pretend to have the right answer. The alternative is hoping that a Supreme Court that has already shown a willingness to ignore precedent and turn back the clock will uphold Grutter and the current use of race in college admission. Define irony.