In its rebuttal to Students for Fair Admissions (SFFA), the Asian-American plaintiffs suing it for discrimination—a case that the Supreme Court will hear this fall—Harvard College turns to a curious rationale: the Fourteenth Amendment’s supposed provision for race-based policymaking.

“Absolute neutrality has never been a universal constitutional principle,” Harvard argues in its new brief, writing with apparent intention to impress the originalists on the Court with an argument that the crafters of the Fourteenth Amendment saw race-conscious measures as necessary to ensure blacks’ “equal participation in society.”

In its attempt to construct an originalist argument, Harvard wheels out historic examples such as the Freedman’s Bureau, a temporary agency intended to help emancipated slaves begin their life as free citizens. Harvard uses this and two other examples entwined with the Freedman’s Bureau to contend that the Fourteenth Amendment empowered the government to propose “race-conscious measures” in issues like college admissions for the sake of “equal participation.”

This rationale is bogus, and in any case, originalism is hardly the right argumentative device to argue for racial preferences in college admissions. It is one thing to provide freedmen essential rations like food, water, and clothing; it is another to encode racial distinctions into policy.

With all due respect to the crafters of the Fourteenth Amendment, modern Americans have no idea what a late-nineteenth-century American legislature would do with Asian-Americans as a second “minority” complicating the legal conflict between whites and blacks. On the one hand, Chinese-Americans were allowed to ride in rail cars with whites in 1896 Louisiana; on the other, Congress had passed the Chinese Exclusion Act in 1882, preventing them from becoming citizens. We have no idea, either, how a Gilded Age Supreme Court would rule on a hypothetical Harvard case—and even if we did, would we consider its case law relevant now? This was, after all, the period in which the Supreme Court ruled 7-1 to allow racial segregation in Plessy v. Ferguson.

Indeed, we can turn to Justice John Marshall Harlan’s famous dissent in Plessy for better ideas about how to apply the Reconstruction Amendments today. Harlan wrote that the Thirteenth, Fourteenth, and Fifteenth Amendments could not entertain segregation because their collective point was to “[remove] the race line from our governmental systems”—or more concisely, because “the Constitution is colorblind.”

Harvard seems to be refuting this principle of colorblindness, writing that the “collective understanding” of the 39th Congress “chose ‘equal protection’ over language SFFA would have preferred and authorized numerous race-conscious measures incompatible with SFFA’s absolutist view.” But if colorblindness—that is, the removal of all distinctions based on race—is not the ideal for which the Court and the nation should strive, then what alternative does Harvard propose?

The answer is: we don’t know. More precisely, we don’t know when or under what conditions Harvard, if left to its own devices, would finally remove the racial classifications from its admissions process. Ten years from now? Twenty? A century from now? A skeptic would note that prestigious traditions tend to die hard—and that, after nearly 30 years of alleged racial discrimination against Asians, Harvard’s racial “balancing” has in fact become such a tradition.

It has long been established that Asian-Americans and whites suffer disproportionately due to Harvard’s race-based admissions, which have created an upswell of resentment from frustrated Asian and white college applicants. In his expert witness testimony, Duke University economist Peter Arcidiacono estimates that an Asian-American with a 25 percent chance of admission to Harvard would have a 33 percent chance if he or she were white, a 75 percent chance if Hispanic, and a 95 percent chance if black. Furthermore, the average Asian-American admittee to Harvard had SAT scores roughly 120 points higher than blacks admitted and 50 points higher than whites. (This is a low estimate, as a third or more of Asian applicants would have scored higher than the maximum SAT score had the maximum been increased.)

Harvard uses the word “tip” to describe its racial preferences, but the preferences are in fact massive boosts to an applicants’ admission chances. The self-described “tip” for athletes, for example, moves their chances of admission from 6 percent to 86 percent. Another “tip,” for legacy applications, moves their chances from 6 percent to 34 percent, and one for Dean’s interest list students (most likely children of significant donors to Harvard) moves their chances from 6 percent to 42 percent. And applicants receive a comparably large boost for being the right race. Harvard’s “tip” system certainly contravenes Justice Harlan’s notion that the “race line” should be removed from our institutions. If Harvard is sincerely interested in what it calls in its brief “a genuinely diverse environment,” it should consider eliminating the legacy and child-of-donor incentives that benefit children from wealthy backgrounds before it seeks to deny merit-based opportunity to Asian students.

So long as Grutter v. Bollinger, the Supreme Court case now at issue, remains precedent, Harvard will be free to discriminate on the basis of race. The Supreme Court should strike down that precedent and get America’s colorblind ideal back on track.

Photo by Maddie Meyer/Getty Images


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