by Mitch Kokai
Senior Political Analyst, John Locke Foundation
Harvard University this week urged the Supreme Court to reject a challenge to its affirmative action policies, but its brief is more likely to aggravate the conservative majority than pacify its well-documented hostility to race-conscious policies.
Students for Fair Admissions, the advocacy group behind the lawsuit, alleges that Harvard discriminates against Asian applicants, and their petition calls on the justices to demolish the legal foundations of affirmative action. Harvard urged the justices not to get involved, saying the petition doesn’t meet the Court’s usual criteria for taking cases. …
… Harvard’s response to the Students for Fair Admissions petition relies on the same cagey explanations that have fed criticism of the Court’s affirmative action precedents for decades. The university’s failure to correct those weaknesses bodes poorly for its odds of keeping the case out of the High Court.
One such example is Harvard’s description of a type of memo admissions officers regularly circulate to track the characteristics of the applicant pool. The plaintiffs allege these memos are one tool Harvard uses to engineer the racial make-up of each incoming class, a practice the Supreme Court has long forbidden. …
… “The information is not used to pursue racial quotas or balance,” Harvard’s brief says of the memos. “It may be used to recognize declines in representation of admitted students with certain characteristics, in which case the committee may give additional attention to applications from students with those characteristics to ensure they were fairly considered.”
In other words, Harvard says its admissions committee does not balance the incoming class based on race. It merely tracks all sorts of demographic information about applicants and responds as a body when it detects that a particular group is undergoing “declines in representation.” It’s the kind of thin and suspect distinction that has animated judicial critics of affirmative action for decades.