Ethical College Admissions: The Supreme Court

You are likely aware that the Supreme Court heard oral arguments last week in the twin cases, filed by Students for Fair Admissions, challenging the use of race-based preferences by Harvard University and University of North Carolina at Chapel Hill. What is unclear is whether the five hours spent on the two cases—two hours longer than planned—was anything other than political theater. The consensus of those who followed the oral arguments is that the justices on the court had most likely already made up their minds.

The consideration of race in college admission is only one of the things on trial in these cases.

If race-based preferences are on trial, that certainly opens the door to questioning other admission preferences as well. While I am not aware that Students for Fair Admissions has ever filed lawsuits challenging legacy, athletic or donor preferences, perhaps suggesting that it thinks those are fair, those preferences will inevitably come under scrutiny as well.

During oral arguments, Justice Neil Gorsuch asked what would happen if athletic and donor preferences disappeared, concluding that “We would just have a crummy squash team and no art museum. Then what?” Then what, indeed. Are we willing to give up our climbing walls and lazy rivers as well?

Legacy preferences have already come under attack, most recently in a report issued a couple of weeks ago by James Murphy, senior policy analyst at Education Reform Now. We’ll come back to legacy preferences.

What else is on trial? Judicial deference to institutions to determine what their student bodies look like. In past cases involving college admissions and race, previous Supreme Courts have deferred to institutions. It’s not clear that the current court will follow stare decisis, the precedents established over the past 45 years going back to Bakke, the first case involving college admission and race.

That means that the court itself is also on trial. On the heels of overturning Roe v. Wade as well as 50 years of what several justices described during their confirmation hearings as “settled law,” the court is at risk of exposing itself as no longer impartial umpires calling balls and strikes, the metaphor used by Chief Justice John Roberts back in 2012, but rather ideological politicians who happen to wear robes.

It has been suggested that the leader of the current court is not Roberts but rather Justice Clarence Thomas. After the decision overturning Roe, Thomas suggested that he would be open to repealing previous court precedents on issues ranging from gay marriage to privacy in consensual sexual relationships. To no one’s surprise, he stopped short of arguing that Loving v. Virginia, the case prohibiting states from outlawing interracial marriage, should be overturned.

Thomas has been a consistent opponent of race-based preferences, and to be fair to him, the issue is personal to him in a way that it isn’t for most of the other justices (with the exception of Justice Sonia Sotomayor, who has proudly admitted that she is a beneficiary of affirmative action, and of Justice Ketanji Brown Jackson), or most of us. He wants (and has a right) to believe that he has earned his success on his merits rather than because of his race. Certainly he understands all too well the stigma attached to successful African Americans that their success is a product of affirmative action. That’s misguided and unfair, especially since none of us can claim that our success is something we have earned without any help whatsoever.

The other admission practice that is on trial is holistic admission. During oral arguments there were two statements that caught my attention. The Washington Post reported that Patrick Strawbridge, the lawyer for Students for Fair Admissions, argued that considering race alone in making admission decisions is not consistent with the Constitution. In another exchange, Roberts told the lawyers for Harvard that they needed to establish whether granting a “credit” based “solely” on skin color is based on a stereotype.

I found both those comments odd. Surely they don’t believe that students are admitted to Harvard based solely on race (please avoid the “don’t call me Shirley” response). I think they are suggesting that holistic admission, especially in combination with über-selectivity, provides cover for institutions to admit the classes they want to achieve institutional priorities, including racial diversity, without any way to criticize a particular admission decision. They think, or suspect, that race is not one among many factors in admissions decisions but a determinative one, or at least weighing more than other factors.

The irony, of course, is that it was Harvard’s amici curiae brief back in the Bakke case outlining a holistic process where race was but one among many factors that Justice Lewis Powell cited as exemplary in his majority opinion. Some on the current court are skeptical of that approach, with Justice Samuel Alito asking during oral arguments, “Did Harvard sell Justice Powell a bill of goods?”

As suggested by its title, “Ethical College Admissions” is less concerned with the legal and political implications of preferences than the ethical considerations (recognizing that there might be considerable overlap). One of the guiding principles in ethics is “Treat like cases alike.” Returning to legacy preferences in light of the current Supreme Court cases over racial preferences, do those two types of preferences constitute like cases? If we abolish one, must we abolish the other?

I would argue that they aren’t like cases. Legacy preferences and racial preferences present different kinds of ethical issues. But I have to conclude that legacy preferences are less defensible than racial preferences.

Legacy preferences serve as a means to preserve privilege. The argument for legacy preferences is that a college or university is a kind of family, and that loyalty to the family is a good thing. (The other argument that I’m not capable of judging is that the pool of legacy applicants is stronger than the overall pool.) I don’t disagree with loyalty as a value, but should it outweigh other values? Should an applicant receive preference because of who his or her parents are rather than who he or she is? That turns admission into college into membership in a private club, passed down from generation to generation. Several times I described legacy admission, later quoted in a New York Times editorial, as a transfer of property.

Even if you accept the family metaphor, there is the question of what best serves or strengthens any family. I have been fortunate to work in a school with an exceptional sense of community that is almost family-like, but I have always believed that what best serves the family is expanding the family by bringing in new blood. A family that is too loyal becomes insular and inbred, like the royal families of Europe in the 19th century, and inbreeding inevitably produces genetic mutations that weaken and endanger the family.

The weakest argument for legacy preferences is tied to alumni philanthropy, the notion that alumni will support a college or university only if their children receive preference in admission. The experience of places like Johns Hopkins University that have abandoned legacy preferences suggests that a decline in alumni support is not inevitable. But even if it is, is alumni giving in hopes of an admission quid pro quo really philanthropic or a subtle form of bribery? That’s exactly the argument that Rick Singer and his clients made to justify their criminal conduct.

Racial preferences are different in that the goal is noble and laudable, to redress past discrimination and increase access to elite education. The ethical question is whether that end justifies the means. Does it matter how we achieve the goal of greater equality and access?

I think it does, although I don’t claim to have the answer for how to accomplish that. The Bakke case involved the medical school at the University of California, Davis, setting aside a certain number of places for applicants of color, and the Supreme Court found that racial quotas were unacceptable. Critics of race-based preferences argue that the practices are similar today, only shrouded in appeals to holistic admission and diversity.

Ethics are about ideals, and an admissions process and a society where, to quote Martin Luther King Jr., applicants are “judged not by the color of their skin but by the content of their character,” is ideal. But is it purely aspirational in 2022? Ethics must also be practical, and the practical consideration is that American society is still dealing with race as an issue. I wish that consideration of race wasn’t necessary, but we’re still dealing with 300 years of racial injustice, and forcing colleges to abandon all consideration of race isn’t a viable solution to that larger issue.

At the same time, I’m not comfortable with the proposition that racial preferences must always be with us any more than I bought the idea that American forces must remain in Afghanistan for 75 to 100 years. In the Grutter case, Justice Sandra Day O’Connor talked about racial preferences remaining for 25 more years. We’re five years away from that timeline, and it’s not clear that five more years is enough. But we may not have five more years.

Regardless of what the Supreme Court decides with regard to Harvard and UNC Chapel Hill, our profession needs to be thinking about an exit strategy for preferences of all kinds.