Affirmative Action Cases Present Crossroads

Admission to elite higher education in this country is far from an examination-based meritocracy. Examination provides at most a cutoff point below which applicants are not considered because they are thought to lack the minimum ability to meet the institution’s academic standards. Beyond that threshold, institutions exercise broad discretion about whom they will admit, based on their judgment about both who should comprise the next generation with elite credentials and what serves their institutional self-interest. Among the factors considered can be geography, athletic, artistic talent, or entrepreneurial talent, community service, status as the child of alumni or faculty, and relation to parents who are in a position to do the school some good by reason of wealth, office or celebrity. Unlike examination scores, these factors cannot be quantified easily or at all. Their weight is subjective. When any of them tip the balance in a close case, one of a limited number of places goes to someone with lower examination credentials than a rejected applicant. A point guard, a legacy, an Eagle Scout, a resident of a big square state, or the child of a big giver with 1400 SATs may beat out an applicant who brings only 1600s to the table.

There is no legal constraint on any of these preferences. There is, or may be, one on the explicit consideration of the applicant’s race. It has long been controversial whether and to what degree the Equal Protection Clause permits colleges to prefer applicants from racial groups that have historically been subject to discrimination and whose own social and economic position reflects that history. On Oct. 31, the Supreme Court revisited the issue, hearing arguments in cases involving Harvard and the University of North Carolina. Several justices asked whether there were alternative racial-neutral means, such as increased financial aid or eliminating early admission programs, to achieve the racial diversity the institutions want. The colleges and the solicitor general responded that the alternatives would not produce the same result. We do not venture on the always hazardous prospect of predicting the decision from the course of oral argument. What is at issue are two fundamentally conflicting views of what the 14th Amendment permits or even requires with respect to race.