Last week, both Harvard and the University of North Carolina (UNC) filed their response briefs with the United States Supreme Court (SCOTUS), which is now considering two lawsuits against the institutions’ admissions processes by Students for Fair Admissions (SFFA). In the responses, the defendants categorically deny claims of racial discrimination in undergraduate admissions, pledge their unrelenting allegiance to “student-body diversity,” and challenge SFFA’s legal standing as the plaintiff.
The Harvard brief was signed by a dozen attorneys from three branches of the conglomerated law firm Wilmer Cutler Pickering Hale and Dorr LLP, which bills its clients up to $1,000 an hour. The UNC brief, filed by both the university and the State of North Carolina Department of Justice, was written by three attorneys from Skadden, Arps, Slate, Meagher & Flom LLP, which has a top hourly billing rate of $1,425.
Although they have hired the top guns to represent themselves against an allegedly “paper organization” lacking standing, neither UNC nor Harvard has submitted any novel claims or arguments in the new round of legal sparring. Instead, both filings, similar to each other in argumentation and conclusions, echo lower-court rulings and defendants’ friends-of-the-court briefs that favor the continued use of race in admissions.
Even the sequences of their arguments are identical: they 1) defend diversity as a core mission of American higher education, 2) assert race is only a plus factor among many, 3) insist that every applicant is treated equally without regard to race, and 4) argue that race-neutral alternatives are insufficient to achieve diversity. Both Harvard and UNC also warn SCOTUS that an unfavorable ruling would destabilize the law, rattle “decades of settled precedent [for using race],” and dishonor the original intent of the Fourteenth Amendment as well as Brown’s legacy.
In other words, diversity, long interpreted as racial diversity and representation, is to be accepted beyond doubt as a critical goal for both higher education and our society as a whole. Legal precedents, which by no means gave anybody a license to discriminate, are not to be revisited so that universities and colleges can be saved from future litigation. So, move along, nothing to see here—if only they were right. Both schools have committed substantive errors through their dogmatic pride in existing practices and prejudice against their challengers.
There is no settled consensus on diversity
In its brief, UNC touts its commitment to “diversity initiatives … from campus discussion forums and student debates to course offerings.” The school also emphasizes diversity of intellectual thought “against group think,” earning itself one of “the top colleges overall for free speech.” In the same breath, ironically, UNC also cites lower admission and enrollment of “underrepresented minorities” as a primary challenge facing its diversity work. This setback is accentuated given its history as “a Southern flagship university that for most of its history excluded racial minorities from admissions altogether.”
Harvard, the forerunner of the “holistic review” model, does not even try to conceal its overemphasis on racial diversity. It argues in its brief that “for students of color, adequate representation mitigates feelings of alienation and isolation that inhibit learning.” This blanket statement addressing an imaginary group of victims is a mere ideological platitude and says nothing about the real educational benefits of diversity.
According to the “2021 College Free Speech Rankings” by the Foundation for Individual Rights and Expression (FIRE), UNC ranked 23rd among 150 top colleges for free speech with an overall score of 64.5 out of 100, measured for seven components including “Openness, Tolerance for Conservative Speakers, Tolerance for Liberal Speakers, Administrative Support for Free Speech, Comfort Expressing Ideas, Disruptive Conduct, and FIRE’s Speech Code Rating.” Harvard ranked 130th with a “Red” speech code signaling policy restrictions of protected speech.
Overall, the survey, the largest for campus free expression, found that “66% of students report some level of acceptance for speaker shout-downs — up 4 percentage points from ; 23% consider it acceptable for people to use violence to stop certain speech — up 5 percentage points from .” A concerning uptick in penalizing free speech makes the case for viewpoint diversity precarious.
Diversity of political affiliation is a joke in modern academia. A recent survey of 12,372 American university professors by the National Association of Scholars (NAS) found an astounding 8.5-to-1 ratio of registered Democrats to registered Republicans, a ratio that is almost eight times larger than that of the general population.
On the contrary, “diversity” has become an ideological battle cry for the far left, who occupy key positions throughout the education deep state and mandate loyalty to diversity as a political litmus test. Harvard’s Office for Equity, Diversity, Inclusion and Belonging, an extension of the school’s core mission of “diversity,” is tasked with pursuing “antiracist” programs and initiatives. Harvard’s School of Public Health offers an “anti racism resource list,” featuring information from “Black Lives Matter.” So much for race being only an inconsequential, tiny part of diversity.
The strict-scrutiny regime is neither settled nor workable
For Harvard, UNC, and other leading universities that have used race in admissions to balance their incoming classes, “strict scrutiny” is a golden shield. All schools provide a laundry list of how they have exhausted race-neutral alternatives, such as need-based student recruitment, targeted outreach to underrepresented students, and a pipeline for high-achieving community college students. They all swear that their efforts are conducted in good faith and are narrowly tailored, but that they couldn’t yield “exceptional student-body diversity” without race-based measures.
The irony here is rich: if these schools truly believe that diversity is a broad concept meaning “no person is one-dimensional and no two people are the same,” how would they be able to quantify a desirable level of diversity without using race as a proxy?
Furthermore, the defendants argue that revisiting previous Supreme Court rulings on race and affirmative action in education would disrupt “significant and concrete reliance interests”—in other words, it would upset the race-conscious establishment. This is flawed argumentation for two reasons.
First, existing legal parameters surrounding the use of race are not always strictly observed. The whole point of SFFA’s legal challenges is to determine the extent to which UNC and Harvard have employed race as a factor in admissions, outside the scope of narrow tailoring and beyond the purpose of satisfying a compelling government interest. Not only have SFFA’s own expert analyses shown that race played a significant role, but also other independent scholarly inquiries corroborate this.
A 2016 Inside Higher Education survey found that 42% of admissions officers from private colleges and 39% of admissions officers from public colleges said that they hold Asian-American applicants to higher standards.
Richard Sander and Stuart Taylor analyzed the scale of racial preferences in selective American universities over a 20-year period. They found that “No other racial or ethnic group at these three of the most selective Ivy League schools is as underrepresented relative to its application numbers as are Asian-Americans.”
After all, race consciousness is not a benign practice that only rewards and never punishes certain groups. If race were only to be used as a plus factor, as argued by Harvard and UNC, then why have a growing number of intellectuals, policy observers, journalists and advocacy groups independently documented the systemic trend of discrimination and racial balancing? SFFA is not a lone wolf in the battle, as many others have pursued administrative complaints, public exposure, and legal actions against discrimination in education, some of which started long before SFFA.
Second and more fundamentally, the legal doctrine of strict scrutiny is inherently contradictory. Supreme Court rulings in affirmative action cases (Grutter v. Bollinger, Fisher I, and Fisher II) have consistently given universities deferential authority to justify racial discrimination. The court has deferred to universities to make academic judgments on whether race-conscious admissions are needed to advance a compelling government interest. Permitting the discriminator to prove its own innocence is a self-defeating exercise. And now, the court has a once-in-a-lifetime opportunity to correct this mistake.
The ideological nature of the defendants’ obsession with racial diversity can be best illustrated by an amicus brief filed by three progressive California organizations—California ChangeLawyers, Equal Justice Society, and Wilson Sonsini Goodrich & Rosati—on August 1, 2022.
In the brief, cosigned by 22 partner organizations, amici curiae urged the Supreme Court not to repeat California’s mistake to inflict “immediate, palpable harm on many talented Black, Latinx, and other prospective and admitted students” or to perpetuate “systems of white supremacy” in higher education. This is a blatant lie, considering California’s overt progressive outlook and the undeniable fact that 9.65 million Californian voters, not white supremacists, decided to keep the state’s constitutional ban on racial preferences in 2020.
At the end of the day, the first principle of equality should supersede the social engineering of racial diversity.
Image: Bill Chizek, Adobe Stock