If parts of Judge Allison Burroughs’s decision in the Harvard affirmative-action case don’t seem to make sense, it’s not entirely her fault. She was bound by the Supreme Court’s precedents on the subject, and the justices have been refining absurdity ever since they took up the issue in 1978.
The question this time was whether Harvard was unlawfully discriminating against Asian-American applicants. Harvard “testified that race, when considered in admissions, can only help, not hurt, a student’s chances of getting in” — as the New York Times reported with a straight face. Judge Burroughs bought it, writing that race “is never viewed as a negative attribute” by Harvard’s admissions department.
Think about that for a moment. Logically, if a particular racial or ethnic background is a plus, then another background must be a “minus”. Harvard has a finite number of places to offer. Putting a thumb on the scales for certain racial minorities means putting a thumb on the scales against everyone else.
Burroughs’s tortured reasoning traces back to that 1978 case, University of California v Bakke. As complex as some of the issues surrounding affirmative action can be, the legal question at that time should have been easy. The Civil Rights Act of 1964 says: “No person in the United States shall, on the ground of race, colour, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any programme or activity receiving Federal financial assistance.”
It doesn’t say “unless that person is white or Asian-American”, or “except to remedy the lingering effects of past discrimination”, or “but universities can engineer the racial make-up of their campus if they think there are educational benefits to it.”
Justice Lewis Powell nonetheless decided for the court that the law permits the use of race as a “plus” to attain racial diversity so long as it is not “decisive”. His argument went like this: the Civil Rights Act was an attempt by Congress to implement the Fourteenth Amendment’s guarantee that all persons get equal protection of the law; the meaning of that guarantee is for the court to determine; therefore the act permitted whatever the court thought it should.
The courts have struggled ever since to wrest some sense from the ruling. Following Powell, Burroughs wrote that Harvard was in the clear because it treated race as “an important consideration” that “never becomes the defining feature” of an applicant. One problem: If being black or Hispanic or Native American is a plus for the admissions office, it has to be decisive in some cases. If it is never decisive, it isn’t really a plus.
It is a testament to the contrived nature of the Supreme Court’s rulings that towards the end of her opinion, Burroughs drops the pretence: “Race-conscious admissions will always penalise to some extent the groups that are not being advantaged by the process, but this is justified by the compelling interest in diversity and all the benefits that flow from a diverse college population.”
Besides, she adds, the burden on Asian-Americans, the focus of the lawsuit, is light. This line, though, creates another unacknowledged problem: The burden on Asian-Americans is too small to give them a legal injury, but absolutely vital to maintaining the benefits of a racially engineered student body?
Even some fans of affirmative action have criticised the reasoning of the decision. New York University School of Law professor Melissa Murray laments that it rested on the asserted educational benefits of racial diversity rather than the need to remedy past discrimination. But changing rationales in that way would not only flout the Supreme Court’s precedents, but require colleges to change their admissions practices. If remedying past discrimination in our country is the point of race-conscious admissions, admitting non-whites from abroad, or with recent roots in the US, won’t help that cause.
The better course is an unlikely one: The Supreme Court should take the Harvard case on appeal and use it to reaffirm the actual words of America’s landmark civil-rights law.
• Ramesh Ponnuru is a Bloomberg Opinion columnist. He is a senior editor at National Review, visiting fellow at the American Enterprise Institute and contributor to CBS News