Let Competition, Not Law, Determine Who Gets Into Harvard

The most sensible and effective way to police private college admissions practices isn't litigation or regulation, but competition.

The most telling development in the opening week of the court case putting Harvard College admissions on trial may have happened entirely outside the federal courthouse.

That was the announcement, timed exquisitely to coincide with the trial's opening day, that Stephen Schwarzman would give $350 million to the Massachusetts Institute of Technology to create a new "MIT Schwarzman College of Computing."

As a Philadelphia high school student in the 1960s, Schwarzman had wanted to go to Harvard College but didn't get in, despite a post-rejection appeal call to the then-dean. He ended up going to Yale. Yale in 2015 announced its own $150 million gift from Schwarzman, prompting a wry New York Times op-ed by Michael Lewis about how Harvard needed to do better at picking winners. Schwarzman also has put $600 million—more than $100 million of his own money and another $500 million he is far along in raising—toward Schwarzman College and the Schwarzman Scholars program at Tsinghua University in Beijing.

Last month Harvard Business School, from which Schwarzman graduated in 1972, did announce a $5 million gift from the Blackstone founder, whose fortune is estimated by the Bloomberg Billionaires Index at about $13 billion. The Harvard Business School gift, in other words, is 1/70 of what he gave MIT. Another possible way to look at it, totaling up the Yale, MIT, and Tsinghua sums, is that Harvard's decision not to admit Stephen Schwarzman was a $1.1 billion mistake.

Schwarzman's gift to MIT was only the most recent in a series of reminders that Harvard exists in a higher education landscape that is highly competitive, from Cambridge to New Haven to China.

On October 5 Harvard installed as its new president Lawrence Bacow, who did his undergraduate work at MIT. Harvard College hasn't produced a president of Harvard University since Nathan Pusey, who served from 1953 to 1971. Since then, MIT has produced two Harvard presidents, Bacow and Lawrence Summers; the other three Harvard presidents since Pusey have been products of Princeton, Stanford, and Bryn Mawr. The last U.S. president with a Harvard College degree was John F. Kennedy.

Kendall Square, MIT's home in Cambridge, Mass., is booming with offices of venture capitalists and of rapidly growing high-technology companies such as Amazon, Google, and Facebook. Though Harvard has been trying to cultivate a similar startup ecosystem in Allston around Harvard Business School, progress has been slow.

Harvard's dean of admissions and financial aid, William Fitzsimmons, acknowledged during his trial testimony on Thursday that a substantial share of the students admitted to Harvard who plan to be engineers and computer scientists wind up choosing not to attend. Those students, he said, "yield at a much lower rate" than do other categories of admitted students. "A whole bunch of those engineers are going to end up happily ever after at MIT or Caltech," Fitzsimmons said.

Which brings us to the anti-discrimination case that is before Judge Allison Burroughs of the U.S. District Court in Boston. Brought by an advocacy group called Students For Fair Admissions, it accuses Harvard of unlawfully discriminating against Asian-American applicants in violation of Title VI the Civil Rights Act of 1964. The Supreme Court's most famous reckoning with that law in the education context was its 1978 opinion in Regents of the University of California v. Bakke. That opinion was fragmented, but it included Justice Lewis Powell's view that "The freedom of a university to make its own judgments as to education includes the selection of its student body."

Powell's Bakke opinion also included, as an appendix, Harvard's own description of its approach: "Faced with the dilemma of choosing among a large number of 'qualified' candidates, the Committee on Admissions could use the single criterion of scholarly excellence and attempt to determine who among the candidates were likely to perform best academically. But for the past 30 years, the Committee on Admissions has never adopted this approach. The belief has been that, if scholarly excellence were the sole or even predominant criterion, Harvard College would lose a great deal of its vitality and intellectual excellence, and that the quality of the educational experience offered to all students would suffer."

For Harvard, that method yielded an entering class of 2022 that is 22.7% Asian-American. MIT's class of 2022, for comparison's sake, is 37% Asian-American.

One plausible response to all this would echo Justice Powell's: absent evidence of outright bigotry or quotas, colleges, even those that accept federal research funding, should be free to make their admissions decisions without a lot of second-guessing or micromanagement by federal bureaucrats or judges, in part because marketplace competition has a way of sorting these things out. The colleges have every incentive to choose wisely, because if they don't, they risk missing out on a Schwarzman.

This is, incidentally, a point widely recognized in Boston during a trial that coincides with the baseball playoffs. Fans here still remember the on-field consequences of the Red Sox failing to sign Jackie Robinson. No one wants to repeat the errors of Tom Yawkey, the Red Sox owner who was slow to integrate and whose team suffered as a result. The city is going so far as renaming Yawkey Way, adjacent to Fenway Park. What made racism irredeemable, at least here, was its contribution to the dearth of World Series championships that lasted from 1918 to 2004.

None of this means that anti-discrimination laws are unnecessary, or that they should go unenforced. Racism is irrational, and outlawing it sends a moral message.

In this particular case, though, conservative commentators usually skeptical of heavyhanded government regulation, excessive litigation, and identity politics have nonetheless mostly been cheering on the plaintiffs' effort to depict Harvard's admissions process as bigoted and to impose a remedy. Perhaps they take pleasure in seeing mostly liberal Harvard hoisted on its own disparate-impact petard.

Fitzsimmons admitted me decades ago under a version of the current system, in which I've since played a tiny role as a volunteer alumni interviewer. When I peeked in on the trial, Fitzsimmons was being questioned by William Lee, an Asian-American Harvard graduate who is both Harvard's top lawyer on the case and the senior fellow of Harvard's governing Corporation.

Also among those at the Harvard table in the courtroom were Seth Waxman, who is a former solicitor general of the United States, and Felicia Ellsworth, who is a former clerk to Chief Justice John Roberts.

If the case does eventually wind up at the U.S. Supreme Court, Harvard's best chance to assemble a majority may rest in part on the idea that the most sensible and effective way to police private college admissions practices isn't litigation or regulation, but competition. There's a tendency to think, mistakenly, that the rare resource to be allocated here is a bed at Harvard College, or, to return to the baseball analogy, a spot on the Red Sox roster. But the genuinely scarce goods are the future Stephen Schwarzmans and Jackie Robinsons. The universities are all chasing them. Those young people are going to wind up as winners no matter what school they go to or what team they play for, and no matter what the court decides in this case.

Ira Stoll is editor of FutureOfCapitalism.com and author of