October 9th, 2019

Affirmative action: safe for now

There was an enormous sigh of relief across the country when United States District Court Judge Allison D. Burroughs issued her ruling in the case brought to end affirmative action admissions at Harvard University. Everyone is aware that a contrary opinion would essentially eliminate race-conscious admissions everywhere. In fact, that is the reason Students for Fair Admissions, Inc. brought the case.

Edward Blum, the progenitor of the plaintiffs’ organization, has apparently made it his life’s work to end affirmative action in America’s colleges and universities. He was behind the last Supreme Court case involving the consideration of race in admissions. He lost that case against the University of Texas in 2016. A weakness of that case was that the plaintiff, Abigail Fisher, did not measure up academically against the blacks competing for admission to the University of Texas at Austin.

At the University of Texas, 168 minorities with equal or higher grades than Fisher were also rejected. Only five blacks or Latinos with lower grades or test scores than Fisher were admitted, but 42 white applicants with that grade level were also admitted. Blum was thus unable to establish racial discrimination on the basis of grades at the University of Texas in Austin.

Blum cleverly then tried to create a conflict at Harvard by using Asian students who were highly competitive on grades. The problem with that approach is Harvard has for several years accepted a large number of Asians. For each of the past three years about 21 percent of students admitted have been Chinese or other Asians. That is an extraordinarily high acceptance rate since only 5.6 percent of America’s total population is Asian.

Nonetheless, Blum chose Harvard as the target for his legal complaint. Certainly one reason was that such a case against Harvard would attract considerable public attention. But there was undoubtedly another reason that would not get publicized. Harvard is one of the most attractive of the elite colleges. About 40,000 students apply for admission every year but only about 2,056 are admitted. One might conclude that there are thousands of disappointed scholars who are bitter about losing out to a minority for acceptance to Harvard. Blum might reasonably expect this group to be his allies.

Judge Burroughs carefully applied the standards established in prior affirmative action cases in her 130-page ruling. She concluded that admissions officials did not discriminate against Asian applicants and officials sought less restrictive approaches to achieve racial diversity. She acknowledged that human judgment limits the creation of a perfect process. Therefore, some imperfection is to be expected in the creation of a racially mixed class at Harvard.

The ruling proclaimed the many advantages to students of participating in a racially mixed class. This created the opportunity for students to learn from others outside their limited cultural environs. However, there was some criticism that the ruling made no reference to affirmative action being a required reparation for past racial discrimination.

There is general agreement that Blum will appeal this decision to the U.S. Supreme Court. Blum is also involved in an affirmative action battle with the University of North Carolina at Chapel Hill. Clearly, he has litigation interests beyond the Harvard University case.

Blacks ought not rely indefinitely on winning such affirmative action cases. Sandra Day O’Connor, the former U.S. Supreme Court justice, said in the 2003 case of Grutter v. Bollinger, “We expect that 25 years from now, the use of racial preferences will no longer be necessary…” Only nine years are left on that premise.

civil rights, opinion