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Why the Justice Department’s Affirmative Action Fight Is What America’s Colleges Need

August 3, 2017, 9:27 PM UTC

The U.S. Department of Justice plans to investigate and potentially sue universities that intentionally discriminate against certain applicants based on race. Specifically, the department will look into allegations that Harvard University discriminates against Asian-American applicants.

This is welcome news. For too long, the federal government has allowed schools to put a thumb on the scales and admit certain races over others.

A 2016 Gallup poll found that nearly two-thirds of Americans don’t believe race or ethnicity should be a factor in college admissions decisions. This should surprise no one. Our nation’s civil rights laws and constitutional guarantee of equal protection were written to protect all people from unjust discrimination.

Unfortunately, the Supreme Court has sanctioned discrimination against non-preferred minorities in college admissions for decades. In Regents of the University of California v. Bakke (1978), the Court held that schools may use racial preferences in admissions decisions to promote the “educational benefits that flow from an ethnically diverse student body.” While this sounds like a laudable goal, the Bakke decision gave schools the green light to use race as a key factor in admissions decisions. This led schools like the University of Michigan to implement policies such as automatically awarding one-fifth of the points needed to gain admission to every black, Hispanic, and Native American applicant. The Supreme Court ruled that unconstitutional in Gratz v. Bollinger (2003).

But on the same day, in Grutter v. Bollinger (2003), the Court determined that a school’s goal of reaching a “critical mass” to advance diversity on campus was permissible. Though the Court underscored that schools should first try to use race-neutral programs to reach their goals, few schools took this guidance to heart—as the research of ULCA economist Richard Sander has demonstrated. In the intervening years, schools have become increasingly secretive about how much they use race in admissions decisions. Yale and Stanford were reportedly caught destroying their data in 2015. Earlier this year, Princeton sued the federal government to prevent its data from becoming public.

Just last year, in Fisher v. University of Texas at Austin, the Court once again upheld a school’s ability to use race in admissions decisions. Abigail Fisher, a white applicant who was denied admission to the University of Texas, challenged the school’s use of racial preferences. In the course of her unsuccessful lawsuit, she learned that, even though minority enrollment soared following passage of the state’s law requiring colleges to admit Texans who graduated in the top 10% of their high school class, the school decided that this didn’t produce the “right” kind of diversity because there were too many students from majority-minority schools.

A lawsuit is currently pending against Harvard by a group of Asian Americans who were denied admission. The group alleges that the school put limits on the number of Asian Americans it will admit, similar to the racist quotas and caps that Ivy League schools put on the number of Jewish students they would admit in the 1920s.

Last year, 130 Asian-American organizations asked the Department of Education and the Justice Department to investigate Yale, Brown, and Dartmouth for similar race-based quotas that lock out well-qualified Asian-American applicants. They claim data shows that, on average, Asian Americans must have SAT scores 140 points higher than white students, 270 points higher than Hispanic students, and 450 points higher than black students to have a shot at admission to these schools.

Colleges shouldn’t let race color their decisions as to whom they will let inside their ivied walls. As Justice Clarence Thomas explained in his dissent from the Fisher decision, “The Constitution abhors classifications based on race because every time the government places citizens on racial registers and makes race relevant to the provision of burdens or benefits, it demeans us all.” Indeed, he continued, the “‘faddish theor[y]’ that racial discrimination may produce ‘educational benefits’” does not change that constitutional command of equal protection.


Aside from the constitutional problems with racial preferences, the sad truth is that they often harm the very students they were intended to help. Research conducted in the last decade has shown that affirmative action policies led to many students ending up “mismatched” with their colleges, or ending up at colleges that were more rigorous than they could handle—leading to a dearth of minorities in STEM fields, and lower grades and higher dropout rates among students who needed a preference to gain admission.

Chief Justice John Roberts put it best in Parents Involved in Community Schools v. Seattle School District No. 1 (2007): “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” It’s high time that the Justice Department joined this effort.

Elizabeth Slattery is a Legal Fellow in the Edwin Meese III Center for Legal and Judicial Studies at The Heritage Foundation.