Affirmative Action Outside the Law

The legal debate over affirmative action has been a fancy sideshow — a necessary one that represents the best of all available channels through which to address the issue — but a sideshow nevertheless.

The long-awaited decision in the case brought by Students for Fair Admissions against Harvard, which upholds Harvard’s race-conscious admissions policies on all counts, addresses the relevant legal tests (like “strict scrutiny” and “narrow tailoring”). There is much that lies outside the law, though, including many of the thorniest issues around affirmative action. As debate inevitably continues on (not least because SFFA so clearly intends to bring the case up to the Supreme Court), we must keep in mind what wasn’t adjudicated as well as what was.

Throughout the trial, it was hard to shake the sense that no one was going to find the smoking gun that proved racial discrimination. Startlingly blatant evidence did come out about other types of preferential treatment — rolling out the “red carpet” for an applicant whose family donated $1.1 million to the University, scheming over someone’s “art collection which conceivably could come our way.” The eagerness to schmooze big donors is an open secret, though, and fair game. Call me a cynic, but I believe if Harvard were engaging in an elaborate semi-illegal plot, of course administrators would know the exact boundaries of the game. So, you’d never see documents nearly as damning about race.

And indeed, there was no smoking gun. The decision noted that SFFA failed to present even one example of explicit “discriminatory animus” against an Asian American applicant in an admissions file. Since one of SFFA’s main arguments was that Harvard was discriminating against Asian Americans, this noticeable absence does seem damning.

Stepping outside the justifiably stricter legal framework, though, I still have a nagging question: Does such an explicit example have to exist to prove discrimination? Shouldn’t we at least expect less sloppy discrimination from higher institutions?


Nevertheless, without a smoking gun, the serious charges against Harvard didn’t hold up, and the blame for certain statistical disparities fell mainly on that ever shadowy term “implicit bias,” which kept popping up in the decision. The decision recommended Harvard improve its admissions process by giving admissions officers implicit bias training because it surmised that could have had a slight negative effect on the average personal ratings they gave Asian American applicants. Overall though, the Court concluded, “while implicit biases may be affecting Harvard’s ratings at the margins, to the extent that the disparities are the result of race, they are unintentional and would not be cured by a judicial dictate…”

Though this seems like an excessively generous reading of what was going on, it does also seem reasonable within the legal framework. I wouldn’t want to live in a world where we were all judged by what others, even others in judges’ robes, perceive to be our “implicit biases.”

So I understand why the court would give Harvard a lot of deference to conduct its own business, but as a result, the whole proceeding ended up being mostly irrelevant. It didn’t address what seems to be the elephant in the room. Of course, Harvard is heavily using race in admissions decisions. It would rather have fewer Asian Americans than would get in through a less race-conscious system. It would rather have more African Americans and Hispanics than would get in through that kind of system. It would rather prioritize racial diversity most heavily over other forms of diversity.

Are these facts? Well, I’m not going to be able to prove so in a court of law. Nor, it appears, did Harvard believe it would be able to defend such preferences in a court of law.

But I almost wish they had tried. At least then the argument would be centered on the really hard problems of university admissions. There are no absolutely right solutions, only uncomfortable trade-offs. I agree, for example, the University would suffer if it admitted a student body that was 70 percent Asian American. I would respect Harvard a lot more for saying it explicitly, though.

The big takeaway, at least for now, is “Harvard won.” But what did it really win? Only what the verdict covered, which was determined only by what was argued in the trial — which in turn was only a small and marginal subset of the arguments around affirmative action.

Michelle I. Gao ’21, a Crimson Associate Editorial Editor, is a Government concentrator in Adams House.