The Supreme Court is hearing arguments this week for Students for Fair Admissions Inc. v. President & Fellows of Harvard College, and a similar case against North Carolina State. The issues are (1) whether the Supreme Court should overrule Grutter v. Bollinger and hold that institutions of higher education cannot use race as a factor in admissions; and (2) whether Harvard College is violating Title VI of the Civil Rights Act by penalizing Asian American applicants, engaging in racial balancing, overemphasizing race and rejecting workable race-neutral alternatives.
It is not the job of the court to determine if affirmative action is desirable, though there is robust public debate on that issue. Nor is it the court’s job to determine if affirmative action is effective, though again there is much public debate about that. The courts only job is to determine if it is legal in the context of the constitution and current federal law.
Here is the exact text of Title IX:
“No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.”
It seems pretty clear to me from that wording that using race, color or national origin in any way in determining admission to Harvard violates Title IX, and the court may well see it that way. If so, some will claim that was an ideological or political decision. I would not presume to claim to know the personal motives of the justices, nor should others be so arrogant. The eventual judgment should be evaluated on the legal arguments in the written decision. The question is simply what the law says, in black and white. If it is defective, it is the explicit job of the legislative branch to remedy that. It is explicitly NOT the job of the courts to do Congress’s job.
I would note that Harvard is perfectly free to use race as a criterion in admissions if it is willing to forgo federal funds. With an endowment of $53 BILLION, Harvard could well afford to forgo federal funds, and in fact even give every student free tuition.
I would also note that the very groups that object to Title IX being used to invalidate the use of race in admission decisions are the very groups that fought for Title IX in the first place, It‘s just that they want it applied only to African Americans, but not to Asian Americans. Of course, in today’s highly politicized environment, whichever way the court rules the media reaction will be hysterical, and probably highly unfair to the justices.
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