Two cases before the U.S. Supreme Court involving Harvard University and the University of North Carolina at Chapel Hill (UNC) could end affirmative action and upend higher education.
The cases feature a common plaintiff, Students for Fair Admissions, which is funded by conservative activists and wants to ban universities from ever considering an applicant’s race. This extreme request would overturn decades of precedent and constitutionalize racial advantages for White applicants. As legal scholars, we expect the court’s rightwing majority to grant this request. But ironically, the plaintiff’s own arguments support more affirmative action, not less.
Racism remains a powerful force that shapes countless aspects of our public and private lives. We cannot get beyond this reality without considering race. Harvard and UNC know that basic truth and should be upfront about it. The plaintiff is.
This story starts at Harvard University, where the plaintiff raises two distinct claims: one alleging intentional discrimination against Asian Americans; the other challenging Harvard’s formal consideration of applicants’ race. The plaintiff blurs these claims to stigmatize affirmative action and pit Asian Americans against other students of color. The goal is for the public to believe affirmative action harms Asian Americans. Notably, the plaintiff’s own evidence undercuts this narrative and makes the case for affirmative action.
The plaintiff traces anti-Asian bias to “colorblind” admissions criteria, not to Harvard’s formal affirmative action policy. These criteria include Harvard’s “personal” rating, which assesses qualities like leadership, humor, and grit. The plaintiff also implicates Harvard’s “Legacy+” preferences, which benefit the children of alumni and other privileged groups. Per the plaintiff’s own court filings, these anti-Asian biases benefit White students, not students of color: “Incontrovertible evidence shows that Harvard’s admissions policy has a disproportionately negative impact on Asian Americans vis-à-vis similarly situated White applicants that cannot be explained on nondiscriminatory grounds.”
We agree pernicious stereotypes often harm students of color, including Asian Americans, and benefit White applicants. But evidence that a university favors White students over more qualified students of color calls for more affirmative action, not less.
So why hasn’t Harvard emphasized this basic affirmative action math?
Harvard willfully obscures significant racial advantages White applicants receive in its current admissions process. This includes Harvard’s Legacy+ preferences, which constitute massive racial and class advantages for wealthy White students. The plaintiff’s own expert concluded that over a recent six-year period, 43% of Harvard’s White student admits were Legacy+. Of that total, only 25% would have been admitted without their Legacy+ boost. This means Harvard admitted more than 1,600 White students in spite of their inferior academic qualifications. This number exceeds all Black and Latino admits from the same period.
Even the plaintiff’s expert concedes Legacy+ students are “doubly advantaged.” First, they are rewarded for status, as children of alumni, for example, unrelated to any standard conception of academic merit. Second, well before admission, this inherited status confers its own advantages, including unique access to the resources necessary to compile a competitive applicant profile.
But characterizing Legacy+ preferences as a double bonus understates the race and class advantages it awards. Harvard admits Legacy+ applicants who do less with more, a practice that harms more perseverant and talented applicants of color and poor White students who do far more with less. These compounded advantages create a triple bonus for the wealthy, White, and connected.
White racial advantages transcend Legacy+ preferences. Even if Harvard and UNC eliminated such practices, White applicants would still enjoy unearned advantages in admissions. Common admissions factors, such as grades and test scores, understate the academic ability and potential of Black, Latino, and Native American students. The plaintiff actually highlights how stereotypes about Asian Americans and other groups of color can infiltrate subjective assessments, such as alumni interviews and personal ratings. When universities rely uncritically on these measures, they artificially inflate the relative qualifications of White applicants.
We often hear calls for “merit-based” admissions. But decades of research illustrate that an unmindful reliance on grades, test scores, and interviews do not get us there. Affirmative action offers one modest tool to reduce the pro-White bias in these common admissions criteria. When a university considers an applicant’s race, it is not departing from merit. It is moving closer to a merit-based system that grants all students a more individualized, objective, and equitable process.
This affirmative action math is clear, and Harvard ought to say so. The plaintiff has.
Boston University School of Law Professor Jonathan Feingold’s scholarship explores the relationship between race, law, and the mind sciences. University of New Mexico School of Law Professor Vinay Harpalani’s scholarship focuses on the intersections between race, education, and law, examining the nuances of racial diversity and identity from various disciplinary perspectives. Their work has been cited in U.S. Supreme Court amicus briefs defending affirmative action.