Which Races Should Benefit, at the Expense of Which Others?

(Bloomberg Opinion) -- When California debated a referendum to abolish affirmative action in state university admissions in 1996, President Bill Clinton sounded the alarm. “There are universities in California that could fill their entire freshman classes with nothing but Asian Americans,” he told the Sacramento Bee.

The referendum, which also covered state hiring and contracting, passed. But the underlying issue — that affirmative action works against Asian-American college applicants — has not gone away. And it is still an awkward one for the advocates of race-conscious admissions policies.

A lawsuit against Harvard alleging discrimination against Asian-American applicants has revived interest in the issue. Harvard's president, Drew Faust, has attacked the motives of the plaintiffs, an organization called Students for Fair Admissions. The group, she says, seeks “to question the integrity of the undergraduate admissions process” and “to advance a divisive agenda.” It is guilty as charged on Point One, and Point Two could be said of any effort to fight racial discrimination.

Aaron Mak, writing in Slate, confesses ambivalence about the issue. On the one hand, Asian-Americans have reasonable concern that Harvard is biased against them. On the other hand, Mak thinks the lawsuit is really “for the benefit of white applicants,” who would be better off if colleges are no longer allowed to take account of race. (The plaintiff's group is led by the same person who orchestrated a race-bias lawsuit against the University of Texas on behalf of a white woman who was rejected.)

Jeannie Suk Gersen, a professor at Harvard Law School, slices the issues the same way in The New Yorker. It is alright, in her view, to discriminate against Asian-Americans (and whites) in favor of African-Americans and Hispanics. She writes: “The problem … is the added, sub-rosa deployment of racial balancing in a manner that keeps the number of Asians so artificially low relative to whites.”

Gersen adds, “We should not want the composition of our élite universities to be wildly out of proportion to the racial composition of our country.” A weakness of her argument, as Park MacDougald has noted, is that if Harvard really wants to look more like America, its student body should be more white and less Asian.

Race-conscious admissions have other possible rationales than trying to mimic America’s racial mix. A college might want a certain minimum level of black and Hispanic students, or want to apply a partial corrective for society’s past and current discrimination against blacks and Hispanics. In either case, though, there’s no good argument for making today’s white applicants alone face an admissions disadvantage. Which means Asian-Americans are going to have a disadvantage too.

There are powerful and heartfelt arguments for and against affirmative action in college admissions. I’m sympathetic to the view that colleges should have a lot of autonomy in picking their students. But it’s worth noting, because the courts rarely have, that Congress weighed in explicitly on this issue. The Civil Rights Act of 1964 declares, “No person in the United States shall, on the ground of race, color, or national origin … be subjected to discrimination under any program or activity receiving Federal financial assistance.”

In 1978, back when he frequently voted with the Supreme Court’s conservatives, Justice John Paul Stevens made a strong case that these words should settle the legal question. Justice Lewis Powell got around the words with a bit of sleight of hand: Congress meant for the Civil Rights Act to enforce the Fourteenth Amendment’s guarantee of equality; we justices get to say what the Fourteenth Amendment means; therefore the Civil Rights Act means whatever we say it does; and we say it allows for some benign racial discrimination.

Stevens himself eventually started voting to uphold affirmative action programs, but his original argument has never been refuted. Congress had weighty reasons for passing that landmark law, debated it at length, and has never revisited the question. Until it does, that law ought to govern — and it means that Harvard has to stop discriminating on the basis of race, regardless of how that harms or benefits Asian-Americans or anyone else.

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