The lawsuit challenging Harvard University’s admission practices, which kicked off last week, has been portrayed by many as the possible end of affirmative action. That claim is debatable insofar as Harvard’s specific approach need not be an indictment of affirmative action as it is practiced elsewhere.
Indeed, the litigation presents an opportunity for affirmative action to reinvent itself.
In the foundational 1978 case of Regents of the University of California v. Bakke, the Supreme Court ruled that a university was permitted to take race into account as one factor in its admissions decisions in order to assemble a diverse student body, but it could not implement an outright quota system. Subsequent Supreme Court jurisprudence has left this basic holding intact.
Even if one accepts that being part of a diverse campus benefits students, diversity has always been a problematic justification for making individual admission decisions.
One’s fellow students may have an interest in how their classmates are selected, but focusing solely on diversity effectively reduces the two most interested parties — the student who is being admitted and the one he is displacing — to mere spectators.
Despite this shortcoming, diversity has managed to enjoy a positive reputation because it is usually cast against racial discrimination, which tends to produce uniformity.
But a commitment to diversity runs the risk of racial stereotyping. For once one is down the rabbit hole of assigning individuals to groups, it is easy to fall into the habit of assuming those groups are homogeneous.
Thus, it becomes commonplace to deride Asians as unoriginal, lacking in personality, or as a former MIT dean of admissions called one Korean student, “textureless math grinds.”
Defenders of affirmative action are often quick to dismiss critics as racists who trot out vague claims of reverse discrimination, but if the allegations against Harvard prove to be true, they will have to come up with better arguments.
That does not necessarily mean affirmative action must end.
What would a new approach look like?
To begin with, it would speak to those students who are being excluded and leave them with the sense that they are being treated fairly.
One way of doing that would be to acknowledge that some applicants have had advantages that others lack, and that the latter group may in fact have greater potential when given admission to an elite college. To anyone who has had a privileged childhood, whether the Winklevoss twins or the Obama daughters, it would be difficult to argue against that proposition.
Prior discrimination on the basis of race or other personal characteristics might be relevant, but only in the context of a specific individual whose application suggested he deserved such special consideration. Moreover, racial discrimination would not necessarily enjoy any special treatment relative to other significant barriers that a student had demonstrably overcome, such as poverty, the need to contribute to the household’s income, or a disability.
Elite universities should also be more transparent about how they make admissions decisions.
African-American and Hispanic students comprise 27.5 percent of those admitted to Harvard’s Class of 2022. Since Harvard’s affirmative action program has principally favored those groups, that means at least some of these students would not have been admitted otherwise. The Asian applicants who were rejected to make room for them deserve a better explanation than “because there’s enough of your kind here already.”
More transparency would also give applicants a better appreciation for the extensive thought that goes into considering every candidate as an individual and would signal to members within favored groups that they too are more than merely interchangeable members of an ethnicity.
Last of all, any affirmative action program should be assessed on the basis of data relative to the goals the program sets for itself. For example, if a university seeks to identify students with higher potential than their high school grades or test scores suggest, somebody should be looking at how those students actually perform for the next four years.
From the perspective of 1978 race may have been a reasonable proxy for disadvantage and diversity absent from so many of America’s most prominent institutions that the problems of the Bakke decision were not immediately apparent.
But what was true about the social order in 1978 is less true today, and proponents of affirmative action ought to confront that reality honestly.
In the 2003 case of Grutter v. Bollinger, which upheld the University of Michigan Law School’s affirmative action program, Justice O’Connor writing for the majority, expressed a similar view: “The Court expects that 25 years from now, the use of racial preferences will no longer be necessary…”
That was 15 years ago. If that was not a warning to university administrators that they would soon be due for a rethink on affirmative action, the Harvard lawsuit surely has gotten their attention. Rather than complain, they should embrace the challenge.
Ian Cooper is a writer and attorney based in Toronto.
