The trial that is winding down this week in federal district court in Boston, Students For Fair Admissions v. Harvard College, has once again focused attention on preferential treatment based on race and ethnicity in college admissions. This time, however, the focus is on discrimination against Asian Americans, not whites.

It’s an odd controversy, since a substantial majority of the American public has long since made up its mind. In the most recent of many public opinion surveys that have reached the same conclusion, an extensive survey by the liberal group More in Common found that even though 81 percent of Americans believe that there are serious problems of racism in the country today, “a full 85 percent also believe that race should not be considered in decisions on college admissions.”

That 15 percent minority seems to be heavily concentrated in the media and academia. These views are at variance with mainstream American opinion and tend to fall along three lines of thinking: that diversity is good; that racial preferences are not true discrimination; or that racial preferences are discrimination, but are good anyway. Below we elaborate on these arguments and explain why they are wrong.



***

(1) Diversity is good: No racial group should be "underrepresented."

But if this is true then it follows that no group can be "overrepresented," and so we must ask: Why are too many Asian Americans (Jews, whoever) bad? And if “diversity” is the goal, why are a few added blacks and Hispanics more important than, say, a few Muslims or conservative Christians? Since the Common Application has a box for religious identification, it would be as easy for Harvard to engineer religious as it does racial and ethnic diversity. But it does not. Marlyn McGrath, Harvard’s dean of admissions, admitted under questioning that “on the advice of Harvard’s lawyers” Harvard does not learn the religious identification of applicants.

(2) Diversity is good: It reveals that not all members of racial/ethnic groups are the same.

Do Harvard freshmen really not know this? Moreover, if members of racial/ethnic groups are not fungible, why does it matter if there are “too many” Asian Americans?

(3) "I received a preference, and look how well I turned out!"

This “C’est Moi!” defense ignores questions of opportunity cost. How can anyone know that the contributions they make to society are superior to those that would have been made by the person they displaced as a result of racial preference?

(4) Racial preferences help make up for our country's history of discrimination and institutionalized racism.

The legal answer to this argument is that the Supreme Court has long rejected it, and so no school relies on it. (Schools are forced instead to rely on the weak reed -- which, honestly, nobody really believes -- that random remarks by black and Latino students provide dramatic diversity “educational benefits” in no other way teachable to white and Asian American students.) The practical answer is that the students who receive racial benefits are generally not from disadvantaged backgrounds, and the students who are discriminated against often are.

(5) It's not discrimination: Harvard denies it engages in racial discrimination.

An internal study by Harvard’s Office of Institutional Research, however, found that Asian-American identity was negatively correlated with the personal rating of applicants and their chance of admission. And at trial Harvard's dean of admissions admitted that some groups get more of a benefit from consideration of their race than other groups do. The Supreme Court doesn't call the weighing of race in this area "racial preferences" for nothing.

(6) Not very many Asian Americans are victims of Harvard's discrimination.

How many is “too many”? According to the plaintiffs’ expert, “Randomly drawing from those in the top academic index decile would result in over 50 percent of the admitted class being Asian American, compared to their current share of approximately 22 percent. Over the six-year period, this would result in an increase of 1,563 Asian-American admits in the baseline dataset.”

Even Harvard admits that the proportion of Asian Americans admitted would increase from about 18 percent to 43 percent if only grades, test scores, and recommendation letters were considered.

(7) There's no invidious intent.

Tell that to the Asian Americans who would have been admitted if less qualified whites, blacks, and Hispanics had not been but for their race.

(8) If preferences are bestowed based on athletic skill or where parents graduated, why not based on race?

Because the Constitution's Equal Protection Clause and our civil rights statutes were not designed to protect long-distance passers or legacies. Racial discrimination is uniquely ugly.

(9) Race counts only as a positive factor, never as a negative one.

Harvard officials insisted on this point at trial, but it’s a logical impossibility. For every student who was admitted because of his or her race, one student was not admitted because of his or her race.

(10) Asian Americans are overrepresented at Harvard compared to their proportion of the population.

Asians may be overrepresented compared to the general population, but not compared to the pool of supremely qualified applicants. And in any case, Harvard does not purport to mirror the general population in any category. That’s why it’s Harvard.

(11) Some Asian Americans, such as the Hmong, actually receive preferences.

The fact that some Asian Americans may receive preferences does not justify discriminating against other Asian Americans. Moreover, the deserving Hmong, etc., who receive preferences would probably be admitted even without being given a preference because of their Hmongness. (This is similar to the argument that angrily objects to treating Asian Americans as a “model minority” because some aren’t; the irony is that it is those who defend group preferences who resist treating individuals as individuals.)

(12) All the students Harvard admits are qualified.

Yes, but they are not as qualified as those whose place they took, who were denied admission because of their race or ethnicity.

(13) It would be a bad thing if only SAT scores were considered.

Nobody is arguing for that. Consider whatever you like, so long as it's not race.

(14) Race is but one factor considered among many.

If race is sometimes a deciding factor, then when that happens discrimination has occurred—whether or not other factors were considered, too. Put the shoe on the other foot: What if Ole Miss in the bad old days had said that, sure, it helped to be white, but whites were not admitted based on race alone? This wouldn’t have been a persuasive argument then. It’s not a persuasive argument now.

(15) Race is considered only as a plus factor/tipping point.

Then why does Harvard claim that evaluating candidates without regard to race would have such drastic effects on admissions? The fact is that study after study, from both sides of the aisle, has shown that race is not a marginal input in admissions, but rather is given enormous weight.

(16) Even if it is discrimination, it’s still good: Asian Americans need to stand shoulder to shoulder with their brothers and sisters in the “community of color” to fight white supremacy.

Precisely how does it fight white supremacy when Asians suffer discrimination relative to whites? And so you really believe that Asian Americans are and should be willing to suffer discrimination so long as it benefits blacks and Hispanics?

(17) All Harvard students benefit from racial diversity.

That argument doesn't work very well for people who don't get into Harvard because they have the wrong skin color. And the choice is not Yale or jail. If racial preference ended, the currently preferred students would still confer whatever benefits “diversity” has to offer at the slightly-less selective institutions they would attend.

(18) The real motive of the Harvard lawsuit is to end discrimination against whites.

Those of us who oppose racial preferences have always done so in the name of the principle of colorblind law, not to benefit this or that group. Would a Latino who supported Martin Luther King because he wanted to end discrimination against Hispanics as well as blacks have been acting dishonestly?

(19) Racial preferences have been used for a long time and the Supreme Court has allowed them for a long time.

Precedents are used to make changing the interpretation of the law more deliberate. They don’t preclude it. Segregation was practiced and allowed for a long time, too. But then the Supreme Court realized its mistake and changed the law.

(20) Discrimination against Asian Americans that benefits blacks, Hispanics, and even whites must be good: All the good people support it and President Trump opposes it.

That must be a strawman. No one actually thinks like that, do they? Well, yes. Here’s the New Yorker’s Jeffrey Toobin: “at its core, the [ SFFA v. Harvard] lawsuit reflects the American conservative movement’s legal and political assault on people of color, which has been endorsed and abetted by President Trump. The Trump administration has sought to limit voting rights, backing voter-suppression efforts; it has demonized immigrants; the president himself has repeatedly targeted prominent African-Americans for abuse. The Trump administration is also supporting the Harvard lawsuit.”

The law is the law is the law. If your view is dependent on who is supporting or opposing a case, and not the merits, then what you’re talking about politics, not the law.

Our suggestion is that Harvard and all other universities should return to the principle favored by an overwhelming majority of Americans—and the letter and spirit of our civil rights laws—by treating all Americans without regard to race, color, or national origin.