on Oct 27, 2022
at 12:05 pm
This article is part of a symposium on the upcoming arguments in Students for Fair Admissions v. University of North Carolina and Students for Fair Admissions v. President & Fellows of Harvard College. A preview of the case is here.
Wen Fa is a senior attorney with Pacific Legal Foundation. He filed an amicus brief supporting Students for Fair Admissions and directly represents clients in many of the cases discussed in this article.
The Supreme Court will hear arguments in cases involving race-based admissions policies against the backdrop of a larger discussion about the meaning of 14th Amendment and its guarantee of equality before the law. Some contend that the 14th Amendment promises equality of outcomes among broadly defined racial groups. To them, the government must act to remedy racial disparities — regardless of cause — in employment, economic status, health care, education, housing, and countless other areas.
That vision of the 14th Amendment is misguided in two fundamental ways. First, the 14th Amendment protects not equality of outcomes but equality of liberty. The principle was enshrined in the Declaration of Independence, which recognized that all persons are created equal — each endowed with unalienable rights such as “life, liberty, and the pursuit of happiness.” America failed to put this principle into practice for decades after the Founding. But after a bloody civil war, Congress attempted to guarantee equality before the law through the passage of the 14th Amendment. Senator Jacob Howard, in a speech introducing the amendment to the Senate, praised the amendment’s guarantee of equal rights. He explained that the 14th Amendment “gives to the humblest, the poorest, the most despised of the race the same rights and the same protection before the law as it gives to the most powerful, the most wealthy, or the most haughty.”
Second, the 14th Amendment protects individuals, not groups. It can be no other way. A person’s unalienable rights cannot depend on the fortunes of other individuals or the whims of the political majority. As the late Justice Antonin Scalia put it, the race-based distribution of benefits and burdens is alien to the Constitution’s focus upon the individual.
The principles undergirding the 14th Amendment are key to understanding what is at stake in cases challenging race-based admissions policies at Harvard and the University of North Carolina. Both schools admit that admissions officers may use race in admissions to ensure that the demographics of the incoming class are aligned with the demographics preferred by the universities. At Harvard, the admissions committee reviews “one-pagers” which contains racial statistics in part to ensure that there is not a dramatic drop-off in applicants with certain characteristics — including race — from year to year. UNC’s admissions policy favors members of underrepresented minority groups, which is defined as any group whose percentage enrollment within the undergraduate student body is lower than their percentage within the general population in North Carolina.
The universities’ fixation on proportional group representation stifles individual opportunity. College guidebooks like the Princeton Review advise Asian American applicants to be careful about what they say and don’t say in their applications. The guidebooks encourage Asian American students who aspire to attend Harvard to distance themselves as much as possible from racial stereotypes by renouncing any aspiration of being a doctor or an engineer, and to get involved in activities other than math club, chess club, and computer club. This is wrong. America promises all individuals the right to pursue their goals and to do so unencumbered by membership in a racial group.
Elite universities are hardly the only institutions that tinker with their admissions programs to reach their preferred racial outcomes. Until recently, world-class magnet schools in Hartford, Connecticut, operated under the racial quota that reserved a quarter of the seats for white and Asian students in the name of diversity. When not enough white and Asian students ultimately enrolled, many schools had to leave seats empty rather than give black and Hispanic students attending failing neighborhood schools an opportunity at a better future.
Although the pernicious racial quotas in Hartford are no longer in effect, high schools such as Stuyvesant, Bronx Science, and Brooklyn Tech in New York City and Thomas Jefferson High School in Virginia reduced admissions standards designed to ensure that enrollees will succeed in the famously competitive environment at those schools. In each case, the changes were driven by a desire to bring the racial demographics of the student body closer in line with the racial demographics of the general population. And, in each case, because Asian American students — a group that comprises unique individuals from no less than 30 different countries — were “overrepresented” as compared to the general population, the new admission policies were designed to decrease the number of Asian American enrollees. Finally, the changes in admissions policies in these cases share the common thread of advancing “equity” through decreasing academic standards rather than helping students to succeed. Such measures ultimately harm all students.
Government has not confined efforts to prioritize equality of outcomes over equality of rights to the context of education. The federal government has enacted programs designed to dole out billions of dollars in taxpayer money on the basis of race. One provision of the America Rescue Plan Act of 2021 called on the Department of Agriculture to distribute billions of dollars in forgiving farm loans that were issued or guaranteed by the federal government. Until it was halted by multiple federal courts and then ultimately repealed, the federal farm loan forgiveness program attempted to eliminate disparities across a host of metrics, including the number of farmers that belonged to each racial group. Yet the program aimed to accomplish that goal by discriminating on the basis of race — every minority farmer and rancher with eligible farm loans would have their loans forgiven and every white farmer and rancher was categorically excluded from the program.
These race-based programs are hardly limited to federal legislation. States and municipalities, too, have enacted recent legislation that exclude or disadvantage small businesses that are not “minority-owned” from competing for COVID-relief grants and from bidding on government contracts.
There’s a better way forward. In education, government would do well to open the door for innovative schools to compete against traditional public schools and allow parents to choose the best school for their child’s individual needs. Similar “opportunity cures” exist for small businesses. Government could roll back onerous licensing, permitting, and other regulatory red tape that do not further any legitimate government purpose but instead prevent new entrepreneurs from earning an honest living. In all, the path forward lies not with massive race-based government programs, but with removing barriers that prevent individuals of all races and classes from flourishing.