Justice Roberts Has Made the Law, Now Let Him Enforce It

Students for Fair Admissions v. Harvard

Last year’s Supreme Court decision found race based admissions to universities illegal. Admission statistics for this year strongly suggest that some universities, including Harvard, are ignoring the verdict, continuing to discriminate in admissions in favor of blacks and against Asians. This raises the question of how the verdict could be enforced.

The simplest way would be for the court to specify admissions criteria, such as ranking applicants by some specified weighted average of test score (SAT or ACT) and GPA. It is not, however, obvious what the criteria should be, courts have no expertise in selecting students to be admitted to university, and there is no reason why all universities should use the same criteria.

A different solution, also unsatisfactory, would be to forbid universities from asking applicants their race. There are multiple imperfect proxies for race available to a university that wants to discriminate. Most Asian Americans have an Asian last name, most African immigrants an African last name. Some neighborhoods and some schools are almost entirely Afro-American. Many students visit the school they are applying to, others get interviewed by Alumni. In these and other ways a university that wanted to know the race of applicants could learn it.

The alternative of forbidding a university to use race in its admission decisions would be impossible to enforce on any university using criteria in part subjective, since admissions officials could, as some seem to have done in the past, simply assign high ratings on subjective criteria to applicants from groups they wanted to favor, low ratings for groups they wanted to discriminate against.

A Possible Answer

Require each university to state a criterion for admission based on non-racial objective characteristics of the applicant and report the racial distribution of the applicants it would admit if it used that criterion. The university is now free to use any criteria it wishes, objective or subjective, for actual admissions, but if the racial distribution that results deviates substantially from what it would be if it used the objective criterion it chose the university is guilty of racial discrimination and subject to whatever penalties result.

That corresponds to the way in which we currently spot discrimination in admissions, by a pattern sharply different from what it would be with obvious criteria such as SAT or GPA. Under this rule the university is free to select students on whatever basis it thinks best so long as it gives the same racial outcome as its preferred objective criterion. A university that wants to use nonobjective criteria such as personality is free to replace one Asian with another with a higher score their measure of personality but lower test scores. It is not free to use rating on a subjective criterion to replace an Asian with a black or white. Different universities can use different objective criteria for the first step reflecting different beliefs about how best to measure the characteristics they care about or differences in their preferred student mix; Oberlin might want to weight evidence of musical ability, MIT mathematical. Different choices are likely to produce somewhat different racial distributions.

Enforcement Mechanisms

Suppose that, on the basis of the procedure I have described or some alternative, a university is found guilty of racial discrimination, what happens next? One possible solution could be for the court to require the university to revise its admissions results to fit the required pattern, cancel admission of enough members of over-represented groups, admit enough members of under-represented, to make the racial distribution of admitted students fit the pattern produced by the objective criteria the school had selected.

Another approach would be …

A Class Action

Suppose Harvard has admitted 140 Asians, should have admitted 200. Sixty Asian applicants have been harmed by the school’s illegal admissions policy. Combining that with an estimate of the value of a Harvard degree, probably calculated from statistics on the wages of Harvard graduates, we have a total amount of damage done. Form a class consisting either of all rejected Asian applicants or some subset of the most qualified and sue on their behalf. Better yet, require Harvard to report its ranking of the rejected Asian applicants and sue on behalf of the sixty highest ranking.

Calculating the per person damages is a hard problem, since it depends among other things on where the rejected applicant ended up going instead, but suppose it comes to ten thousand dollars a year for fifty years for a total of half a million dollars (it should be a present value calculation, but I am ignoring that for simplicity). That makes the total thirty million dollars, a substantial sum but not large enough to be a serious punishment for a university as wealthy as Harvard. The tort was, however, deliberate, which is a possible basis for punitive damages.

An alternative approach would be to require Harvard to report its ranking and then have the sixty top ranked Asian-Americans sue to be admitted. Harvard can then choose either to cancel admissions of some of the over represented group or expand the class size, recalculate how many Asians it should have admitted, and admit a few more. That gives part of the result of my earlier proposal through a different mechanism.

The Grounds of the Decision

The plaintiffs sued on the grounds of both the Civil Rights Act and the Fourteenth Amendment. The Civil Rights Act applies to both private and government actors but the 14^th Amendment forbids discrimination in state action, as mentioned several times in the opinions. When I first heard about the decision I assumed that the justices had based it on the Civil Rights Act. I was mistaken; only one, Gorsuch, in a concurring opinion, did so (Thomas joined in that opinion but also filed his own). The others based their verdict on the Equal Protection Clause of the 14^th Amendment.

This raises an issue I could not find discussed in the opinions. The University of North Carolina, sued along with Harvard, is a state institution but Harvard is not, so why is the Equal Protection Clause relevant to its admission policies?

One possible answer is that Harvard, like almost all universities, receives a lot of government money; the funding is state action even if the university is not. If that is the argument the decision was based on, Harvard could presumably continue to discriminate in admissions if it is willing to do without any government money, which would include Federal research grants and possibly student loans. Federally sponsored research is reported as 11% of operating revenue of $6.1 billion, so about two thirds of a billion dollars a year. Total education revenue, “tuition and board and lodging income, net of financial aid,” is another 22%, or 1.3 billion. I don’t know how much of that is from federally supported student loans and am not sure if they count, so the total cost to Harvard of doing without Federal money would be something between two thirds of a billion and two billion dollars a year. That is a lot of money even for Harvard, but Harvard’s endowment is about fifty billion dollars so they could keep it up for quite a while.

Gender Discrimination

Current civil rights law recognizes gender as a protected category, so although it did not come up in the Supreme Court case one could, some court might, argue that the same conclusion applies. A legitimate response could be that, since a college serves a social as well as an educational function, it has a legitimate interest in maintaining a roughly equal m/f ratio. Making that argument would require the college to admit that an important part of what it is producing is an environment for mate search — but it is.

What about an all male or all female college? The argument there would be that since mate search is, for obvious evolutionary reasons, hardwired into adolescents as a high priority activity, the presence of potential partners of the opposite sex has an effect, arguably negative, on the educational functioning of the institution.

My Own Views

This essay so far has been about how the court’s verdict can be enforced, not whether it is correct. My own view is that the Equal Protection Clause of the 14^th Amendment, which forbids racial discrimination by governments, is a sensible rule, hence that the Court’s verdict was correct as applied to the University of North Carolina, which is a state institution. I believe, however, that voluntary association between private parties should be voluntary in both directions, that a relation such as buying or selling a service should only occur if both parties are in favor of it. Under the Civil Rights Act I can only employ someone, rent to someone, sell my services to someone, if a third party, a court or a government agency, approves of his and my reasons for doing so, am required to engage in such a transaction if the third party disapproves of my reason for not doing so. I regard that as a violation, not an enforcement, of rights.

Hence I conclude that Harvard, or any other private college, should be free to discriminate for or against blacks, Asians, men, women, gays, straights, Christians, Jews, Muslims or any other racial, sexual or religious category of applicants, provided only that they not fraudulently claim not to do so. The Court’s verdict was correct, as Gorsuch argued, in the application of civil rights law to Harvard but that law is, in my view, incorrect.

I am confident that almost all of the people responsible for Harvard’s admissions policy disagree with me, approve of the laws against racial discrimination, but hypocrisy is not a legal offense.¹

P.S. added two days later

A commenter on the post points out a footnote to the majority opinion that I had missed:

‘We have explained that discrimination that violates the Equal Protection Clause of the Fourteenth Amendment committed by an institution that accepts federal funds also constitutes a violation of Title VI.’ Gratz v. Bollinger, 539 U.S. 244, 276, n. 23 (2003). Although Justice Gorsuch questions that proposition, no party asks us to reconsider it. We accordingly evaluate Harvard’s admissions program under the standards of the Equal Protection Clause itself.

So the court left open the question of whether Harvard, or other private schools, would be free to discriminate if it didn’t accept federal money.

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1. I discussed my view of the behavior of the Harvard administration, in a different context, in an earlier post.