The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Today the Boston Globe published my op ed (you may have paywall issues) on what the Supreme Court should do in the Harvard and UNC Chapel Hill cases challenging racial preferences in college admissions. Here's an excerpt:
The Supreme Court recently decided to hear two cases challenging the use of racial preferences in higher education: Students for Fair Admissions v. Harvard College and a similar case against the University of North Carolina at Chapel Hill. These cases focus on two important issues: the badly flawed "diversity" rationale for racial preferences, and Harvard's apparent policy of targeting Asian American applicants for discrimination. The Supreme Court would do well to rule against the diversity theory and make clear that anti-Asian discrimination is no different from that against other groups.
Affirmative action in college admissions began as an effort to compensate historically discriminated-against minority groups — especially Black people — for the many years of oppression they suffered. But the Supreme Court has largely rejected the compensatory justice rationale for such policies and instead endorsed the theory that racial discrimination in admissions is sometimes permissible to achieve educationally valuable "diversity…."
The racial categories used by Harvard, UNC, and many other universities are remarkably crude. The "Hispanic" or "Latino" category lumps together such varied groups as Argentinians, Cubans, Mexicans, and Puerto Ricans. "Asian" encompasses more than half the world's population, including Chinese, Indians, and Japanese. Arabs, native-born white Protestants, and Swedish immigrants are all classified as "white…." Such sweeping and arbitrary classifications amount to little more than crude racial stereotyping of a kind courts would reject in almost any other context. They certainly don't reflect any carefully nuanced assessment of different groups' distinct characteristics or potential contributions to educationally useful diversity.
If applied consistently, the diversity theory could justify a vast range of racial and ethnic discrimination…. This kind of near-blank check for racial discrimination is dubious under any plausible theory of constitutional interpretation, whether originalist or living-constitutionalist….
Perhaps the court should reconsider the compensatory justice rationale for racial preferences, which is far more compelling. But it is not clear how discrimination against one set of members of a racial group can be remedied by discrimination in favor of an entirely different set of people years later, whose only connection to the victims is that they are members of the same race….
If compensatory justice is the true purpose, schools should at least make extensive efforts to ensure that the beneficiaries of racial preferences really have been victimized by discrimination themselves, as opposed merely being members of the same demographic group as others who have.
Later in the article, I discuss the unfortunate parallels between today's anti-Asian discrimination in elite-college admissions, and early twentieth-century policies under which elite institutions sought to restrict the number of Jewish students.
I discussed the issue of anti-Asian discrimination in greater detail in this April 2021 article in The Hill, which also notes examples on the political right, as well as the left. This one of those issues where both sides of the political spectrum love to denounce the bad behavior of the other, while ignoring their own.
On a personal note, I grew up in the Boston area and have been a Globe reader since I was in elementary school. But this is the first time I ever got a piece published there. There is some irony in the fact that I published multiple articles in national media such as the Washington Post and the Wall Street Journal before finally managing to place one in my longtime hometown paper. But better late than never!