No Child Left Behind If Not For Their Skin Color

Partha Chakraborty-

Partha Chakraborty

“Race for some highly qualified applicants can be the determinative factor,” Seth P. Waxman, lawyer for Harvard University in Students for Fair Admissions, Inc (SFFA)., v. President & Fellows of Harvard College, said in the Oral Argument on Oct 31, “just as being an oboe player in a year in which the Harvard-Radcliffe Orchestra needs an oboe player will be the tip.” Chief Justice John Roberts shot back. “We did not fight a Civil War about oboe players. We did fight a Civil War to eliminate racial discrimination, and that’s why it’s a matter of considerable concern.”

If you have a child who is qualifying for college admission or transfer – I have one at home right now – the impact of race-based preferences on their prospects must be high in your mind. For over forty years the Courts have permitted positive discrimination on the basis of race. The Courts ruled out quotas of points of skin color, but allowed “holistic admissions” where race of an applicant can be a factor. Impact has been stark.

Based on analyses submitted by the SFFA, “a hypothetical case of an Asian-American male with a 25% chance of admission” can increase his chances of admission into Harvard to 36% simply by self-identifying as “white” (ceteris paribus), to 77% by changing race to Hispanic, and, to 95% by changing to “African-American”. An amicus brief noted that “as soon as admissions of Asian students began reaching 10 or 12 percent, suddenly a red light went on. . . . [A]dmission of Asian-Americans has either stabilized or gone down,” even when both absolute and relative number of Asian American applicants continued to increase. This trend repeated in every selective university, public or private.

Harvard does this, among others, by assigning demerits based on “likability factor” to Asian American students early in the process. It is not an exaggeration to say that “Jewish Problem” at elite public and private universities of the 20’s and 30’s resurfaced, albeit with an Asian mask; universities’ response remains essentially the same.

I am writing today not to quibble about the high pedestal on which we – especially South Asians – put the Ivies, and others. I will also not question the efficacy of SAT, and other tests, in predicting success. My answer in each might surprise you, but that is for another day. Today I will deliberate if it makes sense to use race as a deciding factor.

Race is a lazy and sloppy identifier, if at all, for a (very) large majority in the country. I was born and raised in the continent of Asia, but is my experience not different than an escapee from North Korea? Is the life story of a marginal farmer in a remote village of India the same as the scion of an industrialist in a sea-facing penthouse of Mumbai? Even if both my parents were refugees and orphans, surely a family uprooted penniless from Afghanistan last year has gone through more recent trauma than I did. How do you club refugees from Bosnia / Ukraine / Armenia/… with children of an Upper East Side socialite? How do you treat Holocaust survivors and their grandchildren?

I am reminded of a quote of Colin Powell to the effect that growing up in New York City he never knew a “White” person, he knew them as Polish, Armenians, Jews, as much as he knew others as Jamaicans, Colombians, and so on. That is more like the reality that most Americans have – we identify ourselves as Americans first, and then “Indians / Pakistanis/Bangladeshis… Jews/Italians/Irish/… Ethiopians/Somalis/Nigerians/… Mexicans/Colombians/Venezuelans/….”. Unless we are talking about survivors of slave trade, and their posterity, race as an identifier never makes sense.

Special consideration for those who bore the brunt of inhumanity for centuries may indeed have been the overarching theme for using race as a positive discriminative in a zero-sum game of university admissions. A moral case for using race can be heard in the Howard University speech of Lyndon Johnson when President Johnson spoke of the unfairness of asking a recently unshackled person, still hobbled by the weight of chains on their back and legs, to compete as equal with everybody else without providing redress.

Multigenerational consequences of slavery and Jim Crow provided a case for exceptions to the principles of nondiscrimination – so the argument goes. A second argument is put forward by Lewis Powell in the 1977 case Regents of the University of California vs. Bakke, and echoed by Sandra Day O’Connor in the 2003 case Grutter v. Bollinger. This argument addresses diversity as a desired goal, in and by itself. It was meant to ameliorate inherent conflicts of race-conscious policies with Equal Protection Clause by creating a bigger constituency of beneficiaries of an “underrepresented class.” O’Connor hoped that a sunset would happen in 25 years; the opinion did not mandate it.

Almost 20 years since Grutter, no reasonable argument can be made that large selective universities are any more diverse than they were before, except for race. 43% of White students at Harvard enjoy some non-academic admissions preference – an athlete perhaps, or child of an alum, or member of dean’s list of special applicants (a catch-all for offspring for powerful people or large donors). A 2017 study found that almost all Harvard graduates came from the top 10% of income bracket, Princeton had more students from the top 1% than from the bottom 60%, and so on. If you have the resources and the will to do it, professionals advertise services that cover everything from massaging the resume to (ghost) drafting a personal essay to identifying a quick extra-curricular activity specifically tailored to an applicant’s college of choice. Admission process is a game, and anything goes, including under-the-table dealings that were in the headlines. Things could be different, and better, if colleges tried. In 2017, three years after the lawsuit was filed, Harvard tried reducing use of race as a factor without obvious change in demographic profile of students.

This supports analyses submitted by SFFA that eliminating legacy preferences, preferences for children of faculty and staff, and preferences for the children of wealthy donors (eliminating the special applicant list, e.g.), while giving a greater weight to students from economically backward moorings, will produce a diverse student body without treating students differently by race. Universities’ argument that preferential treatment of legacy children is needed for financial survival is contradicted by experiences of Caltech or MIT, both extremely selective universities.

Further, universities’ consideration of so-called “Extra-curricular and Leadership” (ECL) gives rise to a vicious cycle of puffed up “interests” that a resource constrained family has no capacity to pursue. It has nothing to do with academics – universities are candid about that – and I sincerely doubt if it has anything to do with the success of students. Going by experience from Asia – Japan, South Korea, China, and India – “single-minded” focus on academics at pre-college level does not prevent from assuming leadership roles in commerce and society later, and very successfully. What ECL effectively does is to provide another lever for the entrenched elite to play, and college admissions to play along willingly, to the detriment of the newcomers and the economically disadvantaged.

Just because race-conscious admission policies create favorites in a zero-sum game does not mean they are popular. In a 2022 Pew Research survey, 74% of all Americans, including 59% of African-Americans, 64% of Asian-Americans and 68% of Hispanics, do not believe race should be a factor in college admissions. If the supposed beneficiaries have a poor view of it, something must be wrong.

Justice John Marshall Harlan remembered what was right for America. Harlan was the lone dissent in Plessey v. Ferguson, the infamous 1896 Supreme Court decision that upheld racial segregation under a noxious “separate but equal” doctrine. In his dissent, however, he became celebrated in his enunciation of the basic American doctrine. “Our Constitution is color-blind, and neither knows nor tolerates classes among citizens. All citizens are equal before the law. The humblest is the peer of the most powerful. The law regards man as man, and takes no account of his surroundings or of his color when his civil rights as guaranteed by the supreme law of the land are involved.” Harlan failed to impress his fellow Justices, but history proved him right. When the Joint Committee of Reconstruction wanted to guarantee protection to newly emancipated slaves, they did it by mandating equal protection for all, regardless of race, in the 14th Amendment. They were conscious of plight of former slaves for sure, but they were not “race-conscious.” That begets the question – are we addressing a situation so much worse that we need to repudiate Harlan?

Lessons can be learned from a system still in-force in India. Burdened with centuries of inhumane caste system, independent India sought a way forward with caste-based reservation in government jobs and college admissions, among others. It had unintended consequences. More than three decades back, a friend of mine insisted that he was applying under “General Category” for a highly competitive exam we all were taking. That is not uncommon in India, many aspiring youngsters make it a point of announcing they have competed without reservation preferences as they are admitted to a selective institute. On the flip side, patients routinely refuse to be treated by medics who patients deem to have benefited from the quota system. In some of the worst cases, animosity between groups is as bad as ever and boils over every now and then in college campuses and in elections at every level. Legacy of the reservation system includes a new elite, no less transgressive than the old elite, and exacerbated mutual distrust. India’s Reservation Scheme is not a direct parallel to the US experience – it is an explicit quota system, for one – but the lessons are potent.

Story of my friend also highlights another concern I surmise as important, if not more. How do you reward a teenager who is determined, diligent and dedicated? In a world without a race-      conscious admissions process, competition between hundreds seeking admission into few selective colleges raises the bar and makes the choice indeterministic and statistically fair to everyone. If universities are for academic excellence, as all selective colleges aver to be, how can one not have the same as the overarching deciding factor? That does not prevent colleges from their NCAA aspirations, e.g., a separate admission track for athletes is most welcome. Why create a race conscious mechanism that reduces achievements of supposed beneficiaries? How is this any different from soft bigotry of low expectations? How is this true to the Equal Protection Clause? Treating all admissions under a universal rubric, but inserting myriad complications has created a system that works for few, and goes against the grain of this American Experiment.

Backlash against race-conscious admission “exemplifies broader trends in the culture” note Glenn Loury and John McWhorter, professors at Brown and Columbia respectively, both eminent scholars of race. “The tide is turning against nonsensical “anti-racist” doctrines pedaled by hustlers cloaked in the borrowed finery of intellectual respectability and moral authority…. More and more people now recognize the empty rhetoric of so-called racial justice for what it is. All that remains is for these people to act on what they know to be true.” Race-conscious admission policies violate basic dignity of the aspiring teenager of whatever color. If we do not stop the mayhem right now, college admissions will be a victim of the burning rage against denizens of the faculty club. The result will be unpredictable, and going by the Indian experience, unpalatable for all.

It is time for the Supreme Court to do the right thing and force colleges to experiment with the admissions process, or to just have them concentrate on academics as they are supposed to do in the first place. This American Experiment demands that no child needs to be left behind because of their skin color.

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