by Mitch Kokai
Senior Political Analyst, John Locke Foundation
The Supreme Court hears oral arguments … in two cases, Students for Fair Admissions v. Harvard College and Students for Fair Admissions v. University of North Carolina,in which it has the opportunity to undo a mistake it made almost 20 years ago. The court shouldn’t have created a higher education loophole in the Civil Rights Act of 1964, and it has a chance to close that loophole now.
In the 2003 Grutter v. Bollinger decision, the Supreme Court held that the University of Michigan Law School had a “compelling interest” in building a “diverse” student body that justified the “narrow” use of race as a “factor” when making admissions decisions. Just exactly how schools were allowed to use race as a factor has always been murky because on that same day, in the related case Gratz v. Bollinger, the same court struck down the University of Michigan’s policy of automatically adding a set amount of points for applicants based on their race.
Under the new Grutter and Gratz regime, clear and consistent racial discrimination is out; holistic and individualized racial discrimination is in.
Michigan voters mooted these decisions in their state in 2006, passing a referendum that banned racial preferences. But they continue to apply to most other states.
Today, both Harvard and the University of North Carolina employ highly secretive admissions processes that don’t openly discriminate against applicants based on their race, but the results sure make it seem like they do so behind the scenes.
Harvard, for example, uses a “personality rating” for each applicant that measures things such as “likability,” “courage,” and “kindness.” But a statistical analysis of these personality ratings found that Harvard consistently gives low scores on these qualities to Asian American applicants and gives high scores to black applicants. The differences in these scores were so great that an Asian American in the top 10% academically has only a 13% chance of being admitted to Harvard, whereas a black applicant with the same academic record has a 56% chance of getting in.