OPINION: The Supreme Court is poised to finally reject racial discrimination in higher education admissions

Ken Tashjy served as General Counsel for the Massachusetts Community College System for over 21 years and currently serves as a higher education attorney and consultant. He has taught as an adjunct instructor at Suffolk University since 2008, and previously at Brandeis University as a Guberman Teaching Fellow. He received a B.A. in Psychology from Susquehanna University, an M.Ed. in Higher Education Administration from the University of Massachusetts Amherst, and his J.D. from Suffolk University Law School. 

Later this year the U.S. Supreme Court will issue its highly anticipated decisions in two affirmative action cases brought by Students for Fair Admissions (SFFA) against Harvard University and the University of North Carolina, which seek to end the use of race as a factor in higher education admission decisions.

[RELATED: Majority of Americans oppose race-based admissions, according to poll]

In its case against Harvard, SFFA asserts that it discriminates against Asian students in violation of federal law by rating them lower than applicants of other races on subjective measures like kindness, courage, likeability, and respectability.  

These lower ratings offset the higher scores achieved by Asian students on admissions criteria like test scores, grades and extracurricular activities, diminishing their changes at admission.

[RELATED: HARVARD Act combats discrimination in race-based admissions decisions]

Concerning North Carolina, SFFA argues that the university’s continued to use race as a factor in admissions violates federal law, while providing no proof that using race-neutral alternatives would negatively effect academic quality or the educational benefits allegedly produced from achieving a diverse student body.   

Both institutions’ race-based admissions policies rely heavily on the Supreme Court’s 2003 ruling in Grutter v. Bollinger.   In that case, the Court held that because a diverse student body produced significant educational benefits, the University of Michigan’s Law School could use race as a factor in admissions to achieve racial diversity among its students.  To do so, the Law School sought to admit a “critical mass” of underrepresented students large enough to expose other students to their distinctive viewpoints.

At the time of the decision, many rightfully criticized it as endorsing reverse discrimination. The late Justice Scalia denounced the Grutter framework as a “sham to cover a scheme of racially proportionate admissions,” and Justice Thomas strongly challenged the validity of the Law School’s claim that a classroom’s racial make-up yields educational benefits worthy of discrimination.

Building on the Justices’ criticism of Grutter, SFFA accurately describes the decision as “grievously wrong” because, among other things, it allows Harvard and UNC to use racial identity, rather than individual merit, to evaluate a student for admissions, which is constitutionally prohibited.  

SFFA also asserts that the institutions’ reliance on Grutter to achieve student body diversity “is pure racial stereotyping” because it assumes “that a university can predict, based solely on race, an applicant’s views or experiences.”  This type of pernicious thinking by Harvard and UNC is at the core of their discriminatory schemes.

In place of racial neutrality, Grutter endorses racial objectives that are “unmeasurable,” thus affording college administrators broad deference to pursue the amorphous goal of student body diversity.   “Unsurprisingly then, [Harvard and North Carolina] have used Grutter as a license to engage in outright racial balancing.”

[RELATED: Google quietly backtracks university fellowship’s racial quota]

While overturning Grutter will mean that universities can no longer use race as a factor in admissions, SFFA correctly points out that most universities can maintain their admissions systems exactly as they are, “with holistic, individualized review that considers all legitimate factors” of an applicant, except for race.  

[RELATED: Majority of Americans oppose Affirmative Action policies]

All of higher education will benefit if SFFA prevails because institutions will be forced to consider race-neutral alternatives when making admissions decisions, such as those used at the University of California and the University of Michigan, where student body diversity under these programs has actually increased, not decreased.

Twenty years ago in his dissent in Grutter, Justice Kennedy warned us that “[i]f universities are given the latitude to administer programs that are tantamount to quotas, they will have few incentives to make the existing minority admissions schemes transparent and protective of individual review.”

Here’s hoping that SFFA succeeds in overturning Grutter and its discriminatory scheme and ends, once and for all, the illicit use of racial stereotypes and racial quotas in higher education admissions.