The trial that recently ended in Boston -- the judge's ruling might be months away, and reach the U.S. Supreme Court -- concerns whether Harvard's admissions policy regarding Asian-Americans is unjust, and whether the government should respond.
Practically, the case pertains only to the few highly selective institutions that admit small portions of their applicants. But everyone, and especially conservatives, should think twice -- or at least once -- before hoping that government will minutely supervise how private institutions shape their student bodies.
The clearest thing about the relevant law is the absence of clear guidance. Since 1978, the Supreme Court has said that "a diverse student body" is a "constitutionally permissible goal" and a "compelling" educational interest that can be pursued using racial classifications if they are "narrowly tailored" to achieve a "critical mass" of this or that minority without "quotas" and if they do "not unduly harm members of any racial group" and are no more than a "'plus' factor" in a "holistic" assessment of applicants. "Distinctions between citizens solely because of their ancestry are by their very nature odious", and "(outright racial balancing ... is patently unconstitutional." (Emphases added.) Such open-textured language, deployed in the pursuit of "diversity" (of cultures, perspectives, experiences, etc.), leaves vast scope for practices to engineer various student bodies.
Schools should go beyond "objective" metrics -- secondary school transcripts and SAT scores -- because they measure only what can be quantified, which is not all that matters about individuals. Then, however, schools adopt "holistic" assessments of individual applicants. It probably is impossible for schools or government to devise rules-based assessments that tightly limit the discretion that admissions offices exercise, given the unavoidable imprecision of the open-textured legal language quoted above. And given the needs of schools' subgroups -- the orchestra, the athletic teams, the classics department, etc.
Harvard's practices, say the plaintiffs, who include some aggrieved Asian-Americans, constitute racial discrimination that has the intended effect of suppressing admissions of people like them: Asian-American applicants are rejected in spite of objective academic attainments that would result in admissions for African-Americans, Hispanics or whites. So, when Harvard's president is "unequivocal" that his institution "does not discriminate against anybody" in admissions, this looks like hypocrisy, understood as the tribute that vice pays to virtue.
Except that progressives and their institutions long since stopped believing that colorblind policies are virtuous. And regarding admissions, they might have a point.
Stuart Taylor, a legal analyst as temperate as he is accomplished, argues (in The Weekly Standard) that racial preferences can ratify stereotypes when "holistic" evaluations emphasize personality traits that are supposed group attributes. There really are, however, attributes that are disproportionately prevalent among various groups at various times. Families are the primary transmitters of social capital -- the habits and mores conducive to flourishing -- and family cultures that produce applicants with stellar objective academic attainments should be encouraged.
However, relying exclusively on objective academic metrics (Taylor notes that only Caltech does this; its student body is more than 40 percent Asian) would substantially reduce the number of black and Hispanics admitted. Harvard's own conclusion, in a document presented in the trial, is that admissions based solely on academic metrics would result in a student body that is 43 percent Asian-American and less than 1 percent African-American.
Eight decades ago, Harvard put itself and the nation on the path toward one understanding of meritocracy by emphasizing in admissions the Scholastic Aptitude Test. This was done partly to reduce discrimination against Jewish applicants from family cultures that stressed academic attainments, and partly to dilute favoritism toward the inherited privileges of wealthy families funneling boys through prestigious prep schools.
Harvard's problem today is a version of America's, the tension between two problematic approaches to providing opportunities -- "meritocracy" that is clearly but too simply quantified, and a less tidy but more nuanced measurement of the mixture of merits that serves a university's, and society's, several purposes. The optimum result of the court case might already be occurring in voluntary, prudential adjustments of elite university practices to forestall government interventions that would serve shifting agendas of various constituencies.
The adjustments would include admissions policies more welcoming to academic excellence regardless of other attributes of those who manifest it, and more sensitivity regarding the felt injustices that inevitably accompany admission disparities produced by preferences, however benignly intended.