Will the Harvard Ruling Make Discrimination in Admissions Worse?

• Author: Weisman, Dennis L.
• Position: BRIEFLY NOTED

Last June, in Students for Fair Admissions v. Harvard, the U.S. Supreme Court mostly banned the use of racial preferences in college admissions. The Court found such preferences violate the Equal Protection Clause of the Fourteenth Amendment that prohibits discrimination on the basis of race. The decision is likely to be well received by the public because nearly three-fourths of those surveyed indicate they do not believe that race or ethnicity should be a factor in college admissions decisions.

If you were to ask those opposed to racial preferences the basis for their opposition, most would probably say something to the effect that the "best and the brightest" should be admitted into elite colleges and race should not be a factor in those decisions. The question then is whether it is necessarily the case that more of the "best and brightest" will be admitted to elite universities now that racial preferences are prohibited. The surprising answer is "not necessarily."

Other preferences/ Racial preferences constitute only one of several types of preferences that elite universities regularly employ in making their admission decisions. There are also preferences for legacy admissions (family of alumni), athletes, and the offspring of faculty. (See "What Constitutes 'Discrimination' in College Admissions?" Summer 2019, and "College Admissions Preferences Are Not Justified," Fall 2019.) While racial preferences are now prohibited, these other types of preferences that allow for non-merit admissions were not before the court in the Harvard case and remain in place for the time being.

This is worrisome because minorities do not have the same access as whites to these other types of preferences. To wit, upwards of 36 percent of the students in Harvard's Class of 2022 are descendants of previous Harvard students and only 5 percent of Harvard's tenured faculty are black. The Court's decision discriminates against blacks because the only preferences that remain in place are those that disproportionately favor whites. Was the Court judicious in eliminating racial preferences when the case before it did not allow it to eliminate all preferences?

There is a self-perpetuating dimension to legacy preferences that is eerily reminiscent of hereditary succession, with all the trappings this entails. In contradistinction to racial preferences that have been adjudicated through a convoluted process over the course of more than 50 years, legacy preferences have...