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OPINION

Court should reject the flawed diversity theory

It should make clear that anti-Asian discrimination is no different from that against other groups.

Demonstrators against Harvard University's admissions process hold signs and American flags while gathering during a protest at Copley Square in 2018.Adam Glanzman/Bloomberg

The Supreme Court recently decided to hear two cases challenging the use of racial preferences in higher education: Students for Fair Admissions v. Harvard College and a similar case against the University of North Carolina at Chapel Hill. These cases focus on two important issues: the badly flawed “diversity” rationale for racial preferences, and Harvard’s apparent policy of targeting Asian American applicants for discrimination. The Supreme Court would do well to rule against the diversity theory and make clear that anti-Asian discrimination is no different from that against other groups.

Affirmative action in college admissions began as an effort to compensate historically discriminated-against minority groups — especially Black people — for the many years of oppression they suffered. But the Supreme Court has largely rejected the compensatory justice rationale for such policies and instead endorsed the theory that racial discrimination in admissions is sometimes permissible to achieve educationally valuable “diversity.”

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In cases such as Grutter v. Bollinger (2003) and Fisher v. University of Texas II (2016), the court held that universities can use discrimination to pursue “diversity” in order to get a “critical mass” of minority group members large enough to expose other students to their distinctive viewpoints. Lower-court rulings in the Harvard and UNC cases upheld their policies on that basis. Courts apply the “diversity” rationale both to cases challenging discrimination under the Equal Protection Clause of the 14th Amendment and those under Title VI of the Civil Rights Act of 1964, which forbids racial discrimination in programs receiving federal funds. As a private institution, Harvard is covered only by the latter.

Grutter and Fisher are far from models of clarity. They are painfully ambiguous on such key questions as what qualifies as a large enough “critical mass” of students from a given group. The Supreme Court could potentially clear up the ambiguities. But it would do better to reject the flawed diversity theory entirely, or at least severely constrain it.

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The racial categories used by Harvard, UNC, and many other universities are remarkably crude. The “Hispanic” or “Latino” category lumps together such varied groups as Argentinians, Cubans, Mexicans, and Puerto Ricans. “Asian” encompasses more than half the world’s population, including Chinese, Indians, and Japanese. Arabs, native-born white Protestants, and Swedish immigrants are all classified as “white.” “African American” includes both native-born Black Americans and immigrants from Africa and the Caribbean. Such sweeping and arbitrary classifications amount to little more than crude racial stereotyping of a kind courts would reject in almost any other context. They certainly don’t reflect any carefully nuanced assessment of different groups’ distinct characteristics or potential contributions to educationally useful diversity.

If applied consistently, the diversity theory could justify a vast range of racial and ethnic discrimination. For example, I was probably the only immigrant from Russia in my class at Yale Law School. Assuming one is not enough for a “critical mass,” would Yale be justified in giving preferences to other Russian applicants? Would a historically Black college be justified in giving them to white people (assuming it lacked a “critical mass” of white students otherwise)? This kind of near-blank check for racial discrimination is dubious under any plausible theory of constitutional interpretation, whether originalist or living-constitutionalist.

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Perhaps the court should reconsider the compensatory justice rationale for racial preferences, which is far more compelling. But it is not clear how discrimination against one set of members of a racial group can be remedied by discrimination in favor of an entirely different set of people years later, whose only connection to the victims is that they are members of the same race.

If Yale had discriminated in admissions against other Russian Jews in past years, it could not fix that wrong by giving a preference to me when I applied. If compensatory justice is the true purpose, schools should at least make extensive efforts to ensure that the beneficiaries of racial preferences really have been victimized by discrimination themselves, as opposed merely being members of the same demographic group as others who have.

And if compensatory justice is the goal, Harvard and other institutions must end the practice of discriminating against Asian applicants. Asian American groups, particularly Chinese and Japanese, have a long history of being targeted for discrimination themselves. The detention of Japanese Americans in internment camps during World War II is just one of many examples.

Data presented in the Harvard case indicate that, controlling for other variables, Asian applicants have a 6-to-16 percent lower chance of being admitted than comparable white students (depending on whether we use the defense’s model or that of the plaintiffs). The major source of the disparity, according to a 2018 analysis, is that Harvard admissions officials give Asian applicants much lower “personal ratings” than those given to other groups, including whites. These ratings are based on highly subjective factors, such as “positive personality” and being “widely respected.”

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The use of subjective criteria to restrict the number of Asian students is reminiscent of early-20th-century policies that many elite institutions once used to keep down the number of Jewish students. In each case, school officials sought to constrain a group that scored high on academic metrics in order to increase the representation of others. Like Asians today, Jews back then were stigmatized as overly focused on academics and lacking in appealing personality traits and social skills. Such anti-Asian discrimination is not limited to Harvard but has also arisen in admissions policies elsewhere, including both universities and elite public high schools.

The Supreme Court should take this opportunity to curb the dubious “diversity” rationale for racial preferences. And it should also make clear that discrimination against Asian applicants is just as unacceptable as the anti-Semitic admissions policies of yore.

Ilya Somin is a professor of law at George Mason University and author of “Free to Move: Foot Voting, Migration, and Political Freedom.” His wife, Alison Somin, coauthored an amicus brief urging the Supreme Court to hear the Harvard case.