Skip to content
LPBN-Icon-v1 (1)
The Right Coast
A Member of the Law Professor Blogs Network

Ilya Somin: Supreme Court affirmative action cases challenging Harvard, UNC policies are overdue

By Thomas A. Smith

This litigation highlights a number of long-standing flaws in the diversity rationale for racial preferences embraced by previous court decisions and adopted by colleges around the country. The Harvard case also features extensive evidence indicating the school s admissions system specifically discriminates against Asian American applicants not just by comparison with other racial minorities but even relative to whites. In the Harvard case, the Supreme Court will for the first time consider this increasingly troubling aspect of affirmative action policy.

If courts stuck closely to the text of the laws they interpret, the case against Harvard would be an easy one for the school to lose. As a private institution, Harvard is not bound by constitutional constraints against racial discrimination (UNC, by contrast, is a public university). But it is subject to Title VI of the Civil Rights Act of 1964, since it receives federal funds for student financial aid and other purposes. Title VI bars discrimination on the ground of race, color, or national origin in any education program receiving federal funds, and it doesn t exempt well-intentioned racial discrimination in the form of affirmative action.

But the Supreme Court (wrongly, in my view) has long interpreted Title VI to allow racial preferences in situations where the court s interpretation of the equal protection clause of the 14th Amendment would permit them. And a series of Supreme Court rulings most notably 2003’s Grutter v. Bollinger and 2016’s Fisher v. University of Texas (often referred to as Fisher II) have held that racial preferences in higher education admissions are permissible under the 14th Amendment in some situations in which they are used to promote educationally beneficial diversity, i.e., ensuring there is a sufficient number of minority students (sometimes called a critical mass ) so other students are exposed to their distinctive viewpoints.

via www.nbcnews.com