Harvard Sued for Asian Quotas in Admissions (4)
by pianoman » Tue Feb 23, 2021 10:12 pm
Another merit-based high school program is being dismantled in Virginia in the name of "equality." Thomas Jefferson High School for Science and Technology was ranked first in the nation according to at least one listing. (High school rankings are even more arbitrary than college rankings, but it's one of the top programs in the country.) https://www.localdvm.com/news/virginia/ ... s-process/ Judge rules to allow Thomas Jefferson High School to adjust admissions process VIRGINIA by: Rebecca Burnett Posted: Feb 4, 2021 / 04:37 PM EST / Updated: Feb 4, 2021 / 11:08 PM EST ALEXANDRIA, Va. (WDVM) — On Tuesday, a Fairfax County judge ruled that Thomas Jefferson High School for Science and Technology could continue to adjust its admissions policies, including standardized testing. The state-chartered STEM magnet school, which has been ranked as the top public high school in the country, requires an admission test and a $100 application fee. Circuit Judge John M. Tran said, “The debate over standardized testing belongs to educational professionals on the national, statewide, and local levels, and should not be decided by the courts.” Last fall, the Fairfax County School Board voted to eliminate the test and the fee in order to expand the freshman class and “remove barriers and inequities historically faced by students from culturally and ethnically diverse socioeconomic backgrounds.” It also voted to raise the minimum GPA and course requirements. A group of parents sued. Applications for the 2021-22 school year are now available on the school’s website. Meanwhile, the co-founder of the Coalition for TJ, Harry Jackson, says they’re also filing a federal lawsuit. He’s confident it will succeed. Jackson says the coalition was founded to “seek diversity and excellence in STEM” at TJ in opposition to the proposal. He agrees that TJ has struggled with diversifying its student body, not because of its admissions process, but “due to the lack of recruiting minorities and the lack of funding for after-school academic enrichment programs.” He says the proposal is watering down TJ’s standards while disenfranchising gifted students who are not from low-income families. “If you’re a parent of a child that doesn’t get admitted to TJ, why would you not file an appeal based off of that your child was denied simply because of race, or simply because you’re middle class,” he said. “Because most of this effort is under the assumption that all of these parents are sending their kids to test prep programs, which is not the case.”
by pianoman » Tue Jun 15, 2021 10:14 pm
Instead of taking up the case against Harvard immediately, the Supreme Court has asked the Biden administration to file an amicus brief on the case. Everyone knows where the Biden DoJ stands on the issue, but how they argue it may be important to the case. Some analysts have noted that such a move indicates the Court has interest in the case and are likely to accept it. It seems to me like a last-ditch attempt by the now minority-liberal members to forestall the inevitable. https://www.nationalreview.com/corner/s ... tion-case/ Supreme Court Shows Interest in Harvard Anti-Asian Affirmative Action Case By Dan McLaughlin June 14, 2021 11:36 AM This was another uneventful morning at the Supreme Court, with two uncontroversial decisions (one unanimous, one split between 9–0 and 8–1 decisions in two related cases) involving the First Step Act and the felon-in-possession statute. But the big news came in case number 20-1199, Students for Fair Admissions v. President and Fellows of Harvard College. The Court has yet to decide whether it wants to hear the case, but this morning, it asked the Biden administration to file an amicus brief setting forth its views of the case. Cases in which the Court asks the Solicitor General for such a brief are not always taken by the Court, but they are much more likely to end up on its docket. While there is little doubt that the administration will side with Harvard, its position could be politically sticky, and the case could be explosive. The petition asks the Court to overrule its pro-“diversity” rationale for allowing universities to consider race in admissions: (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. Roger Clegg has set forth the argument for why the Court should hear this case, and it now has the Court’s attention. The case involves blatant discrimination against a group of non-white, historically discriminated-against group (Asian Americans) who have been the subject of much recent attention over anti-Asian hate crimes. Democrats have been very touchy about being forced to admit that they support Harvard’s discrimination. The Biden administration dropped an investigation into anti-Asian discrimination at Yale. Democrats rejected, by a 49–48 vote in the Senate, a Ted Cruz amendment saying that no college “may receive any Federal funding if the institution has a policy in place or engages in a practice that discriminates against Asian Americans in recruitment, applicant review, or admissions.” Congressman Ted Lieu erupted in anger at a hearing in March when Peter Kirsanow raised the issue. Hardly anything is nearer and dearer to Asian-American parents than educational opportunity. Democrats are understandably hesitant to openly admit that they support discrimination against Asian Americans in that very area. But they do.
by pianoman » Fri Jul 23, 2021 12:33 am
A striking article mocking the UC regents' decision to stop using standardized testing for admissions. Not only is this op-ed hilarious, it makes a point not many people realize: that "capping" the Asian population in California and elsewhere in the country has a long and racist history: https://www.theatlantic.com/ideas/archi ... at/619522/ The University of California Is Lying to Us Does getting right with contemporary concepts of anti-racism mean reviving one of the state’s most shameful traditions? By Caitlin Flanagan July 22, 2021 “Liberté, égalité, fraternité!” is the cry that once stirred a nation to action, but out here in the crumbling state of California, we’re at a lower ebb. A hobbled people rally to a revolutionary whimper: “Put your pencils down.” In May, the University of California announced an immediate end to the use of standardized testing in admissions and scholarship decisions at the nine schools in its system that accept undergraduates. It is a move so widely hailed by the administrators and faculty that you know someone’s getting hustled, and in this case the marks are the state’s low-income Black and Latino students––the very ones whom the new policy is supposed to help. The university has long claimed that it is “shaped and bounded by the central pervasive mission of discovering and advancing knowledge.” What’s one more lie? The university has averred that standardized tests discriminate against low-income Black and Latino students; its evidence is that these students tend to perform worse on the SAT and ACT than students from other racial and ethnic groups. If we were to think about this assertion rationally instead of emotionally, we would have to face what California has done: consigned its most vulnerable students to some of the worst K–12 schools in America. There can be no more obvious example of state-sponsored discrimination than the condition of these schools, which, decade after decade, have robbed students of 13 years and given them little in return. All the standardized tests do is reveal the obvious outcome of our cruelty. Saying it’s the tests’ fault is like feeding children a poisoned sundae and then blaming the cherry on top for making them sick. Do the tests prevent low-income Black and Latino students from getting college degrees? This is the charge of a lawsuit filed in 2019 and settled by the university in May that claimed that requiring test scores for admission “actively prevent[s] Plaintiffs from accessing public higher education and its attendant opportunities.“ Only the counterrevolutionary impulse would lead anyone to want to douse the flames of social justice with the fire retardant of fact. But the truth is that no high-school graduate in California is denied higher education because of a test score. The UC schools are some of the most competitive in the state, but the Cal State system has more than twice as many campuses and costs about half as much to attend, and some locations have an admission rate of almost 90 percent. Students reluctant to earn a degree from the “lesser” system may avail themselves of the best deal in American higher education: Earn a 2.4 GPA in the requisite courses at a California Community College, and your ability to transfer to a UC campus is guaranteed. Not a single standardized test need ever be taken. Here are some more of the fiercely held arguments for dumping the tests: Test scores don’t reflect the character-forging aspects of life as a poor teenager; the tests force students from underfunded schools to compete against “affluent whites” who can afford expensive test prep; high-school GPA is a much better predictor of students’ ability to succeed in a UC program anyway. These are not facts. They are assumptions, all of them flawed or flat-out incorrect. First, poor students were not pitted against rich students. One of the ways the UC system found to work around the state’s ban on affirmative action was to evaluate test scores “in local context.” You didn’t need to be a top test taker in California to be UC-eligible. You just needed to be a top test taker within your own school. Moreover, UC admissions adopted a system of “holistic review” to take into account the hardships that applicants faced, allowing students to express themselves in essays that are read by an army of readers. Second, while high-school GPA has been found to be more predictive of success at college than standardized test scores at some schools, the exact opposite turns out to be true for students at UC schools. There, standardized test scores say more about which applicants are likely to earn a degree and to do it in less than eight years; they also correlate strongly with students’ GPA at the university. The biggest barrier to getting into the University of California is not the SAT; it is, again, the GPA. Because students at underfunded schools have such limited access to college counseling, they often assume that if they want to go to the UC, they should keep an eagle eye on their GPA. What many don’t know is that, to be eligible, they must complete a series of 15 college prep classes called the A-G requirements. Good grades in other classes don’t count. (And—shockingly—some high schools don’t even offer all the A-G requirements.) There was a loophole these students could use, and it involved test scores: The course-load requirement could be waived for those who did well enough on the SAT or the ACT. This was a Hail Mary pass for many smart kids who, for whatever reason, didn’t do well in high school or did well but not in the A-G classes. In 2018, about 22,000 students “tested in” to the UC. Almost half of those students were low-income, and more than a quarter were Black, Latino, or Native American. The UC has now taken this lifeline away. How do I know all of this? Because unlike the regents, who enthusiastically voted to eliminate the tests for the first time in 2020, I did not ignore the findings of a 225-page report that was prepared for them at the request of the UC’s then-president, Janet Napolitano. This report, by the Academic Council’s Standardized Testing Task Force, was based on years of UC admissions data and was the product of a tremendous amount of work by a formidable team of experts in statistics, medicine, law, philosophy, neuroscience, education, anthropology, and admissions. The scholars determined that the obvious challenges faced by low-income Black and Latino students were poverty and poor K–12 education. And they found that the UC’s use of standardized tests did not amplify racial disparities. They agreed that the university should continue using test scores in admissions, but recommended that the UC begin developing its own test, which would be designed to meet the needs of both students and the institution. Why did the regents completely ignore this report? I have a guess. People in power today would much rather do something that seems to promote “equity” than make an evidence-based choice that could lead to accusations of racism. This is the kind of infuriating policy decision that looks like it is going to help poor, minority students but will actually harm them. A spokesperson for the UC says it is still analyzing data to “learn how we can improve our efforts to recruit and retain a diverse student body that is representative of California.” But what additional analysis could it possibly perform that would exceed what its own stupendously accomplished task force already conducted? And what would it take to make the school “representative”? Four percent of undergraduates in the UC are Black, compared with 5 percent of K–12 public-school students statewide. Twenty-five percent of undergraduates are Hispanic or Latino, compared with 55 percent of schoolchildren in the state. The unspoken assumption many advocates of scrapping the SAT make is that cutting the undeserving white population down to size would make these numbers fairer. But white students are also underrepresented, if only ever so slightly, at the UC: They make up 21 percent of the undergraduate population and 22 percent of K–12 schoolchildren. There is only one group of students who are “overrepresented,” to use the chilling language of social engineering, at the university: Asian Americans. Twelve percent of K–12 students are Asian or Pacific Islander, compared with 34 percent of UC undergraduates. Aligning enrollment with state demographics would require cutting the share of those students by almost two-thirds. It would mean getting right with contemporary concepts of anti-racism by reviving one of California’s most shameful traditions: clearing Asians out of desirable spaces. In the 19th century, Chinese people were beaten and lynched in California, in a prelude to the state’s successful campaign for the Chinese Exclusion Act, which cut off immigration from China. In 1906, San Francisco tried to force all Chinese, Korean, and Japanese public-school children to go to a separate “Oriental School.” And in 1942, the first internment camps for Japanese Americans opened in California. The UC has an established history in this dirty art. In the 1960s, Asian enrollment at UC Berkeley was strong, and it soared through the ’70s. But in the ’80s, it plummeted mysteriously. Berkeley was investigated by the Department of Education, and in 1989, the chancellor apologized and pledged that this would never happen again. Until now. There is an ongoing discussion within progressive politics as to whether Asian Americans are a reliable part of the Black-brown coalition or whether they have been—to use another weird but fashionable term—“whitened.” Does the UC think it’s a good idea, in this era of racism and hate crimes against Asian Americans, to promote the idea that these students are hoovering up an unfair proportion of a precious resource? These students are not faceless “grinds”; they are teenagers, each one with talents and interests as varied as those of any other applicant. It is immoral, and ought to be illegal, to treat them as a menace to be contained. They happen to be the majority of our highest-achieving students, and they belong at the University of California. In short, this decision will probably hurt thousands of Asian American teenagers, backfire for Black, Latino, and low-income students, and make little difference for affluent whites. The futility of the mission is so staggering that you have to ask: What will dropping the tests really accomplish? It will give cover to the many forces invested in not improving the state’s K–12 education, especially in the poorest districts. Those include: Republicans, who don’t like pouring money into public education; taxpayers, who don’t like their dollars being spent on other people’s children; Democrats, who serve the teachers’ unions; and the mighty unions themselves, which seem more interested in protecting failing teachers than in reforming a failing system. “California is America, only sooner.” Californians are proud of that expression, and it still holds up. What’s happening out here—a homelessness crisis that turns deadly when the summer heat climbs; soaring crime in the cities; fires and coastal erosion spurred by climate change; strong students denied college admission because of the color of their skin and the “foreign” sound of their names; and a great research university obscuring, rather than revealing, the truth—all of that will happen where you live, too. We just got here first. Someday, in a textbook on world history, there will be a chapter about all of us—you, and me, and our shared moment. The title of that chapter will be American Decline.
by pianoman » Mon Dec 13, 2021 12:05 am
They tried changing the test. Since that didn't work, just get rid of it! https://www.latimes.com/california/stor ... ions-testsUC slams the door on standardized admissions tests, nixing any SAT alternative By Teresa WatanabeStaff Writer Nov. 18, 2021 7:52 PM PT The University of California has slammed the door shut on using any standardized test for admissions decisions, announcing Thursday that faculty could find no alternative exam that would avoid the biased results that led leaders to scrap the SAT last year. UC Provost Michael Brown declared the end of testing for admissions decisions at a Board of Regents meeting, putting a conclusive end to more than three years of research and debate in the nation’s premier public university system on whether standardized testing does more harm than good when assessing applicants for admission. “UC will continue to practice test-free admissions now and into the future,” Brown said to the regents, during a discussion about a possible alternative to the SAT and ACT tests. Testing supporters argue that standardized assessments provide a uniform measure to predict the college performance of students from varied schools and backgrounds. But UC ultimately embraced opposing arguments that high school grades are a better tool without the biases based on race, income and parent education levels found in tests. Given UC’s size and influence, the prolonged debate was closely followed nationally as a harbinger of the future of standardized testing in admissions. Its decision to permanently drop testing requirements is likely to embolden other campuses to do likewise and accelerate the national movement to seek more equitable ways to assess a student’s potential to succeed in college. “When you have the most prestigious university system in the nation’s most populous state functioning without test scores and developing ways to do admissions fairly and accurately without them, it’s very significant,” said Bob Schaeffer, executive director of FairTest: National Center for Fair & Open Testing. “UC already is and increasingly will become a national model for test-free admissions.” He said the number of campuses that don’t require test scores for admission has increased to 1,815 today from 1,075 two years ago — in part due to the difficulty of securing appointments for SAT and ACT tests during the pandemic. The share of students who submitted test scores to the Common Application, a consortium of 900 public and private colleges, fell to 43% in the 2020-21 admission season compared with 77% in 2019-20. It’s unclear how many institutions will remain test-optional beyond the pandemic. And UC’s decision does not spell the end of SAT and ACT testing in California. Los Angeles Unified, the nation’s second largest school district, still administers the test to its high school students and counselors advise them to take it to maximize opportunities to apply to other colleges. But the issue is now definitively settled at UC. Brown’s declaration culminated an often-contentious process kicked off in July 2018 when then-UC President Janet Napolitano asked the Academic Senate to review how UC uses the tests and whether any changes were necessary given the university’s efforts to expand access amid unprecedented growth in demand. After a year of study, faculty leaders recommended in February 2020 that UC continue using the exams for admissions, citing data in a highly anticipated report showing that standardized tests may actually help boost enrollment of disadvantaged students. But that controversial conclusion set off a flurry of countervailing pressures, including a report attacking the faculty recommendations. In May 2020, the regents ultimately voted to eliminate SAT and ACT testing requirements. Meanwhile, the Compton Unified School District and several students and community organizations had filed two lawsuits in 2018 alleging that the SAT requirements violated their civil rights — and an Alameda County Superior Court judge agreed, ordering UC to suspend them in September 2020, six months after the regent’s decision. UC President Michael V. Drake subsequently asked the Academic Senate this spring to examine whether an alternative test could be used beginning in 2025. A Senate committee studied whether an assessment used for K-12 students in California and several other states, known as Smarter Balanced, could be repurposed for UC admissions decisions. The committee’s unanimous conclusion: no go. The Smarter Balanced test only provided “modest incremental value” beyond high school grades in predicting a student’s first-year UC performance while “reflecting and reproducing inequality” in educational opportunities for underserved students, committee co-chair Mary Gauvain, a UC Riverside professor, told regents on Thursday. Using the state exam in admissions decisions could benefit some underrepresented students who test well but have lower grades, the committee report found, but would disproportionately favor Asian Americans and Pacific Islanders and could reduce admission rates of Black, Latino and low-income applicants. Gauvain added that committee members were also concerned that using the test for high-stakes admissions decisions would spur the development of a test-prep industry — further exacerbating social inequities among low-income students unable to pay for such training. Tony Alpert, Smarter Balanced executive director, did not comment on the findings that the test reflected racial and economic disparities. But he said in a statement that he was excited about working with UC to use Smarter Balanced’s tools to help improve teaching and learning. The faculty said the state assessment could be used, for instance, to help place students in writing classes after admission to UC. But the committee could find no alternative UC admissions test without the broader problems, Gauvain told regents. Drake said he concurred with the committee’s conclusion. “Is this the end of the issue?” Regent Sherry Lansing asked. “It’s the end for now,” Brown replied. Drake said UC could consider adopting a standardized test in the future if one was developed that meets the university’s needs. “But we’re not developing one and we don’t know of one that exists at this time,” he said. Without testing requirements, Drake added, UC attracted a record-breaking number of freshman applications for fall 2021 — more than 200,000 — and admitted the most diverse class ever. UC admissions officers have said they were able to thoroughly evaluate the flood of applications without test scores, using 13 other factors in the system’s review process, such as a student’s high school grade-point average, the rigor of courses taken, special talents, essays and extracurricular activities. The faculty committee said UC should step up other ways to advance equity in admissions. Recommendations included a closer partnership between UC and the K-12 system with greater access to college-preparatory courses required for admission; more state funding for academic preparation programs, and enhanced monitoring to make sure UC is reaching underserved high schools. The report also called for more funding to help UC thoroughly assess applications, provide anti-bias training for application readers and strengthen supports to help students complete their degrees. Regents hailed the decision. Regent Eloy Ortiz Oakley, one of the earliest and most outspoken opponents of standardized testing for admissions, urged UC to continue to lead the way in promoting test-free admissions, particularly since they seem to increase the diversity of applicants. Board Chair Cecilia Estolano called her vote to eliminate SAT and ACT testing requirements one of her proudest moments as a regent. She said the next pressing task is to double down on ways to prepare more students for UC admission and support them once enrolled. “We know we’re dealing with generations of educational inequity baked in discrimination, baked in structural impediments to our students,” she said. “If we’re going to continue to try to expand educational access in an equitable way ... we have to provide the supports to enable our students to succeed.”
by pianoman » Mon Dec 20, 2021 1:12 am
. . . aaand Harvard is going test optional: https://www.bostonglobe.com/2021/12/16/ ... at-or-act/ Harvard accepts 740 students for early admission, will continue not requiring SAT or ACT By Jeremy C. Fox Globe Correspondent,Updated December 16, 2021, 9:09 p.m. Harvard University on Thursday accepted 740 students for early admission to the class of 2026 and said that because of the coronavirus pandemic it will continue not to require SAT or ACT scores for the next four incoming classes. The admitted students were chosen from a pool of 9,406 applicants and are the second class admitted without standardized test scores being required, with the pandemic limiting access to testing sites, Harvard said in a statement. Applicants through the class of 2030 will not be required take the SAT or ACT. Last year Harvard accepted 743 out of 10,087 early admissions applicants, the university said. “Each year Harvard sees an outstanding, talented pool of applicants in the early admissions cycle,” William R. Fitzsimmons, dean of admissions and financial aid, said in the statement. “This year’s admitted class brings to Harvard robust talents and life experiences that will shape our community for years to come.” In the absence of standardized tests, Harvard is considering applicants’ academic achievements, community service, extracurricular activities, family responsibilities, and employment, officials said. “Students who do not submit standardized test scores will not be disadvantaged in their application process,” Fitzsimmons said. “Their applications will be considered on the basis of what they have presented, and they are encouraged to send whatever materials they believe would convey their accomplishments in secondary school and their promise for the future.” Almost 12 percent of the newly admitted students will be the first in their families to attend college, compared to 16.7 percent last year. An estimated 10.8 percent are eligible for need-based federal Pell grants, Harvard said. The admitted student population is 25.9 percent Asian American, 13.9 percent Black, 10.5 percent Latino, 3.7 percent Native American and Native Hawaiian, and 12.6 percent international, officials said. Prospective students have until Jan. 1 to apply for regular decision admittance. Students not accepted during early admittance will be considered again in that cycle, Harvard said.
by pianoman » Fri Jan 21, 2022 10:47 pm
As expected, the Biden administration has thrown its full geriatric weight against the lawsuit reaching the Supreme Court: https://news.yahoo.com/biden-administra ... 59402.html Biden administration asks U.S. Supreme Court to reject Harvard affirmative action case Nate Raymond December 8, 2021 BOSTON (Reuters) - U.S. President Joe Biden's administration on Wednesday urged the U.S. Supreme Court to decline to hear a case against Harvard University challenging the ability of it and other schools to consider race as a factor in student admissions to boost diversity. The justices in June asked the administration for its views on the case, which could give the court's 6-3 conservative majority a chance to end affirmative action policies used to increase the number of Black and Hispanic students on American campuses. Students for Fair Admissions, a group founded by anti-affirmative action activist Edward Blum, is appealing a decision upholding Harvard's race-conscious admissions practices and hopes to overturn a 2003 Supreme Court ruling that preserved such polices. SFFA accuses Harvard of discriminating against Asian-American applicants by engaging in impermissible "racial balancing" to make it easier for Blacks and Hispanics to win admission at the expense of Asian-American applicants. But Solicitor General Elizabeth Prelogar argued in a brief that it would be an "extraordinary step" for the court to reconsider its past rulings and called the case a "poor vehicle" to do so. The lawsuit contends Harvard's actions violated Title VI of the Civil Rights Act of 1964, which bars racial discrimination under any program receiving federal financial assistance. Prelogar argued reconsidering its past decisions would be disruptive for universities that had come to "rely on the permissibility of a holistic, flexible approach like Harvard's as a benchmark in structuring their own admissions policies." Blum in a statement said the brief "regrettably advocates for the continuation of racial classifications and preferences in college admissions," and urged the court to hear the case and a related one against the University of North Carolina at Chapel Hill. Harvard in a statement welcomed the administration's support of policies like its own to create diverse campuses. In related news, the sister lawsuit at UNC has been dismissed. This lawsuit was brought by SFFA simultaneously with the Harvard lawsuit because UNC is a public school and they felt there was a better chance at making the same case there than at a private school. In a move that surprised nobody, the judge refused to acknowledge the glaring mountains of evidence presented in the case and ruled to continue allowing racial discrimination under the guise of "holistic" admissions practices: https://www.jamesgmartin.center/2021/12 ... ions-case/
by pianoman » Wed Jan 26, 2022 11:19 pm
And the Supreme Court has agreed to hear the case in its next term, which should be in the fall of 2022. https://www.bloomberg.com/opinion/artic ... ive-action Supreme Court Should Just End College Affirmative Action The justices have been splitting hairs for decades to dodge a 1964 civil rights law that plainly bans discrimination on the basis of race. They can correct that mistake now. By Ramesh Ponnuru January 25, 2022, 11:00 AM CST After years of controversy, the Supreme Court is finally going to take up whether colleges and universities are routinely discriminating against Asian-American applicants and, if so, whether they may keep doing it. Even now, it is showing no great haste at remedying the possible injustice. It is probably going to hear the case next fall. The court has ruled on many previous cases involving colleges’ affirmative-action policies. The justices typically write many pages on the practical consequences of different policies and on philosophical questions about what fairness prospective students are due. They work in the occasional pronouncement about grand questions of constitutional meaning. And they argue over very fine points about how race-conscious the admissions office can be. In 2016, for example, justices disagreed about whether the University of Texas was using race in a “narrowly tailored” way and using it to achieve sufficiently “concrete and precise” goals. This time, the court ought to issue a simpler ruling: It is illegal for colleges to treat applicants differently based on their race. Congress and the president decided that policy in 1964, and for the justices that should be the end of the matter. The Civil Rights Act of that year included this provision: “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.” Nearly every college in the U.S. receives some form of federal assistance. This language seems obviously to prohibit any of them from applying different admissions criteria to applicants depending on their race. But Justice Lewis Powell figured out a way to avoid the import of these words in a 1978 case. The Civil Rights Act was an attempt to enforce the 14th Amendment’s guarantee that all people will receive the “equal protection of the laws,” he wrote, and it was up to the justices to decide what the amendment means. If the justices decided to read the amendment to allow race-conscious policies, then the statute had to allow them, too. The status of Powell’s sophistry as a precedent is open to question. He wrote the controlling opinion in the case, but no other justice joined it. In subsequent cases, though, justices have mostly ignored the statutory issue. It warranted one dismissive sentence in a 2014 opinion of the court. Even the justices who oppose affirmative action have not mentioned the statute, preferring to make a constitutional case against the practice. Powell’s opinion pulled the court into a morass that gets ever muddier. Allowing the plain meaning of the Civil Rights Act to govern these cases would let the court escape. No longer would the court have to determine whether racial diversity is a legitimate objective for colleges, how much diversity they should seek, or how far they should go to achieve it. It wouldn’t have to ask how much leeway colleges should have to discriminate if they think it would further their educational mission. It wouldn’t have to ask, either, whether there’s a difference between discriminating against Asian-Americans to help African-Americans and Hispanics, on the one hand, and discriminating against them to help Whites, on the other. Instead the court could conclude that Congress has already decided these questions for it. The simple rule would be: No amount of discrimination on the basis of race is acceptable. If it followed this course, the court would not even have to decide whether the 14th Amendment blocks institutions of higher education that take public funding from considering applicants’ race. So long as Congress forbids the practice, the constitutional question is hypothetical, as Justice John Paul Stevens wrote in a fine response to Powell in that 1978 case. The debate about affirmative action often appears to give the Supreme Court a choice between deferring to universities and asserting an ideal of colorblindness. But there is an alternative: deferring to a law that has already been passed. That’s the democratic answer to the conundrum that the court keeps posing for itself.
