The Trump administration’s Department of Justice has now filed a Statement of Interest in a pending lawsuit alleging that Harvard has discriminated against Asian Americans in admissions. Like almost every college or university, it receives federal taxpayer dollars, and as a condition, it must obey Title VI of the Civil Rights Act of 1964, which forbids discrimination “on the ground of race, color, or national origin” in “any program or activity receiving Federal financial assistance.”

The Asian Americans plaintiffs assert in their complaint that the school’s admissions office practices a disguised racism against them that has the effect of holding them “to a far higher standards than other students and essentially forces them to compete against each other for admission.” They allege, moreover, that the statistics for all groups—whites, African Americans, Hispanics, and Asian Americans—show that Harvard engages in “racial balancing” because the admissions rates for each group are closely similar year after year. They allege that the category of “race” is being used not as an additional consideration in admissions—a “plus factor,” as the Supreme Court has permitted—but as the “dominant factor” in deciding whether or not to admit Asian Americans who apply to attend the school.

Affirmative Action from Bakke to Today

Interestingly, all parties here—the plaintiffs, the Department of Justice, and Harvard—cite the same four controlling Supreme Court cases, all of which, decided by a badly divided Supreme Court, have furthered the drift from equality under the law to the supposedly limited use of race in university admissions.

In the inaugural and landmark equal protection case, Regents of the University of California v. Bakke (1978), the Court decided that the minority set-aside at the medical school of the University of California was unconstitutional but also found, in the plurality opinion of Justice Lewis Powell, that race could be considered a “plus” factor in the admissions decision, notwithstanding the principle that “racial and ethnic distinctions of any sort are inherently suspect.” The Court thus explicitly endorsed affirmative action based on race as constitutionally permissible.

Powell said that “a diverse student body” for the purpose of the “robust exchange of ideas” was “of paramount importance” in higher education and that “the interest of diversity [was] compelling.” But for each applicant, race could be that “plus” factor so long a university treats “each applicant as an individual in the admissions process.” In his concurring opinion, Justice Harry Blackmun added that “in order to get beyond racism, we must first take account of race . . . in order to treat some persons equally, we must first treat them differently.”

Since Bakke, the standard has been that race may be taken into consideration but that each application must be individually considered based on a collection of factors, including race.

In the 5 to 4 majority opinion in Grutter v. Bollinger (2003) written by Justice Sandra Day O’Connor, the Court more emphatically affirmed racial affirmative action, that is, the consideration of “underrepresented minority groups” so long as each admissions decision was “individualized.” In affirming the admissions practices of the University of Michigan Law School, the Court again stated that diversity was a valid purpose of higher education but also held that universities must undertake “serious good faith consideration of workable race-neutral alternatives that will achieve the diversity the university seeks.” O’Connor famously closed her opinion with a qualification, writing: “We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.”

In the companion case of Gratz v. Bollinger (2003), the Court, in a 6 to 3 decision authored by Chief Justice William Rehnquist, found that the University of Michigan’s undergraduate admissions program, in awarding an extra score of 20 percent based on race to “underrepresented minorities,” was in violation of the Equal Protection Clause of the Fourteenth Amendment to the Constitution.

And in Fisher v. University of Texas (2016), an again divided Supreme Court held in a 4 to 3 decision authored by Justice Anthony Kennedy that the inclusion of race as an additional “special circumstance” along with an applicant’s essay, and consideration of his or her leadership, community service, and extracurricular activities, was constitutional under the Equal Protection Clause. In dissent, Justice Samuel Alito maintained that the school’s diversity goals had no “limiting principle for the use of racial preferences.”

Harvard’s Racial Accounting

In the Harvard case, the Asian American plaintiffs and the Justice Department allege that the defendant has been engaging in “racial balancing.” But Justice Powell had declared in the Bakke decision that it was “facially invalid” for a university to use “some specified percentage . . . of race or ethnic origin” in its admissions policies. “This the Constitution forbids,” Powell said, citing Brown v. Board of Education (1954). In Grutter, Justice O’Connor cited Bakke and post-Bakke cases in qualifying “outright racial balancing” as “patently unconstitutional.” And in Fisher, Justice Kennedy wrote that with regard to “balance,” an admissions policy may not rely on “the exclusive use of a percentage plan.”

As court filings in the present case reveal, it is beyond question that Harvard’s admissions for each entering class have been racially balanced in recent years or, as both the Justice Department and the plaintiffs describe it, “remarkably stable.” The rate of admission for Asian Americans in 2013, the year before the suit was filed, was 18 percent of the entering class. It was the same in 2014 and 2015, and it was 20 percent in 2016 and 2017. For other ethnic minorities, the same pattern has obtained. For African Americans, the admission rate was 11, 12, 10, and 11 percent of the entering class over the years 2014 through 2017. For Hispanic Americans, it was 10, 12, 11, and 11 over the same four-year period.

High schoolers who try to get into Harvard are unique individuals; the applicant pool they make up is unique each year as well. Truly considering applicants on an individual basis ought therefore to produce variability in the racial percentages across the years. Because there isn’t much variability, these numbers prove by themselves that Harvard has a policy of predetermined percentages, regardless of the number or quality of applicants. Such a statistical uniformity is so unlikely that it cannot be explained in any other way. As the Asian American plaintiffs have enunciated in their complaint, Harvard “racially balances its entering freshman class to ensure proportional representation of the various racial and ethnic groups in Harvard’s student body.”

(By comparison, the white admissions rate at Harvard has increased from 48 percent in 2014 to 53 percent in 2017. According the 2010 Census, the American population was 72 percent white, 13 percent African American, 5 percent Asian. The 2010 Census did not ask about Hispanic as a race; the current estimates of the Latino population is 17 percent.)

The Legerdemain of the “Personal Rating”

The complaint filed against Harvard focuses on the use of a “personal rating” as a factor in admissions in addition to considering an applicant’s academics, sports, and extracurricular activities. The “personal rating” is not based on personal interviews but is an assessment of what is in the file of each applicant as to “positive personality,” “likeability,” being a “good person,” and “human qualities.” In its Statement of Interest, the Justice Department asserts that Harvard’s own statistics demonstrate that Asian American applicants “have the lowest scores of the four largest racial groups on Harvard’s personal rating despite their superiority in the academic rating,” and that “on average it scores Asian-Americans applicants lower on the personal score than white applicants.”

The response from Harvard officials is that the institution does not engage in racial balancing. They have repeatedly denied that there is any evidence of an “intent” to discriminate and argue, further, that the basis of the Asian Americans’ claim is “entirely statistical.” They do, however, concede that their statistics show “an association between Asian-American ethnicity and the personal rating”—but they call it a “correlation rather than causation.” Citing Bakke and other cases, Harvard says that it uses race only as a “plus factor” amid other significant factors and pleads that “so many of the factors” that go into any given admissions decision “are difficult to quantify.” The university emphasizes that all the relevant Supreme Court cases have approved of the “educational benefits” of student body “diversity.”

Individual Students and Student Bodies

The legacy of Bakke and subsequent cases is that race may be an add-on or “plus” factor in the admissions decision of each individual applicant. But Harvard keeps group statistics about race, as do all universities today, and as indicated, for the last four years, its admissions percentages for African Americans, Asian Americans, and Latinos have been “remarkably stable.” Harvard contends that it does use race but uses it individually. The school contends that it has no intent to discriminate, even as it strongly affirms that it strives for a “diverse student body”— which its racial statistics demonstrate it has achieved. Each “individual” admissions decision had to have been considered in light of group targets for each of the three races.

Note, of course, that to Harvard diversity only means racial diversity. But the Supreme Court has never gone that far. Both the Asian American plaintiffs and the Justice Department claim that Harvard could implement other kinds of “non-race-based” diversity, including offering more scholarships and financial aid, and increasing its efforts targeted at students of less advantaged socioeconomic backgrounds. Harvard answers that it has tried those measures but has found them not “workable” in terms of achieving its “diversity-related educational objectives.” Thus, by defending itself with the argument that “eliminating race-conscious admissions would cause a substantial, unacceptable decline in minority enrollment,” Harvard is forthrightly admitting what its statistics show: that race isn’t merely a “plus” factor.

The contradiction inherent in Bakke and its progeny could not be clearer. Truly individualized admissions decisions would not produce consistent racial admissions percentages. Harvard protests that several of its other admissions criteria are “difficult to quantify” but Harvard itself has quantified its admissions by race, that “inherently suspect” category. Justice O’Connor’s hope—that supposedly benign racial consciousness as constitutional law would last only 25 years—has 10 years to go.