Progressives are in a tizzy over a major case before the Supreme Court, Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, which could end the use of racial preferences in university admissions. Students for Fair Admissions (SFFA) represents 20,000 students, many of Asian descent, who believe that Harvard College has discriminated against them based on race, thereby violating Title VI of the 1964 Civil Rights Act.

In its lawsuit against Harvard, SFFA presented considerable data showing that Harvard College consistently admitted black students with academic credentials that were considerably inferior to Asian applicants it rejected, and manipulated its holistic admissions process to denigrate Asians for being less likable and kind than other applicants. SFFA’s data showed that the distribution of admissions from the major racial groups is so consistent from year-to-year that it could only result from de facto quotas. Harvard did not deny the essence of these factual allegations. Rather, based on the precedents created by a line of imprudently decided Supreme Court cases, it asserted that the benefits of “diversity” permit and justify racial discrimination. The Biden Administration has joined Harvard in asking the Supreme Court to deny certiorari, which would leave in place lower-court rulings for Harvard.

Since 2014, SFFA has filed similar lawsuits against the University of North Carolina, the University of Texas at Austin, and Yale for discriminating against Asian Americans in their admissions practices. These actions have fared poorly, in part because of the same precedents. SFFA v Harvard offers the Supreme Court an opportunity to correct the racial injustices it has created.

In the first Supreme Court case involving affirmative action in university admissions, Regents of the University of California v. Bakke (1978), the Supreme Court upheld the use of race as one factor in choosing among applicants for admission, but rejected explicit quotas. Some 25 years later, the Court decided a pair of cases involving the college and law school at the University of Michigan. In Grutter v. Bollinger and Gratz v. Bollinger (both 2003), the Court held that there is a “compelling interest in attaining a diverse student body” and the use of race, among other factors, is constitutional if the program is narrowly tailored, flexible, and provides for a “holistic” review of each applicant. In her majority opinion in Grutter, Justice Sandra Day O’Conner observed: “The Court expects that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.”

In Fisher v. University of Texas at Austin (2013; “Fisher I”), the Supreme Court remanded lower court rulings upholding the use of race in admissions for failing to utilize strict scrutiny. Writing for a 7-1 majority, Justice Kennedy held colleges may employ racial preferences only if “no workable race-neutral alternatives would produce the educational benefits of diversity.”

Three years later, the case returned to the Supreme Court. In “Fisher II,” the Court held 4 to 3 that there should be strict scrutiny of affirmative-action admissions processes, but bizarrely deferred much of this review to universities, and required the use of race be narrowly tailored. The case was decided by only seven justices when Antonin Scalia died and Justice Elena Kagan recused herself because she was involved in the case as Solicitor General in the Obama Administration.

Given the unusually narrow decision in Fisher II, opponents of racial preferences have sought another opportunity to reach the Supreme Court. The retirement of two Justices who were in the majority and the addition of three conservative Trump nominees makes it more likely that the Court will again consider an affirmative action case after just eight years.

Consistent with Fisher I, SFFA presented extensive analysis of socioeconomic affirmative action plans that it asserted would achieve comparable racial diversity, albeit benefiting underprivileged black applicants at the expense of the affluent, privileged blacks Harvard favors for admission. In a 2018 report, a tone-deaf Harvard committee blasted SFFA’s alternative because it would result in “many non-White students [coming to Harvard] from modest socioeconomic circumstances.”

In 2019, Federal District Court Judge Allison Burroughs, an Obama nominee, ruled in Harvard’s favor, implausibly finding there were no quotas, that the race-based personality scores were permitted by Supreme Court precedent, and that under the Fisher II doctrine of deference to universities and diversity, Harvard’s admission program was neither unconstitutional nor unlawful, even though Burroughs acknowledged that race was determinative for “45 percent of all admitted African American and Hispanic applicants.” The First Circuit Court of Appeals affirmed last year and SFFA petitioned the Supreme Court for certiorari. In June, the Court asked the government to file a brief expressing the views of the Biden Administration.

Many observers believe there is a strong potential the Supreme Court will grant certiorari. If that happens, following briefing and arguments, the Court has a range of alternatives, including affirming Harvard’s victory, reversing by finding the facts don’t comport with its Fisher I and Fisher II holdings, fixing Fisher II’s strange conflation of strict scrutiny with deference, or deciding that racial diversity is no longer a permissible goal.

A Better Alternative

For more than 20 years, polls have shown that Americans, including Asians, blacks, Hispanics, and whites, oppose the use of race in admissions decisions (see here, here, and here). By contrast, a 2016 Gallup poll found that 61 percent of adult Americans favor consideration of family economic circumstances in admissions decisions. The potential end or limits on racial preferences create the circumstances for designing and implementing programs genuinely intended to improve diversity for underprivileged children of all races.

Regardless of race, children from poor and low-income families typically must overcome obstacles that more affluent children do not regularly confront. They may attend inferior schools, or have less time for homework because of jobs or chores. They are less likely to benefit from two actively involved parents and receive, on average, less guidance and assistance.

The left vilifies so-called “socioeconomic affirmative action” because it doesn’t replicate the outcomes of racial preferences. They prefer to engineer “equitable” quotas, despite considerable evidence that many students who are admitted to schools for which they are not qualified perform poorly (see here and here). Indeed, progressives are so concerned that fairness might overtake race-based admissions that they are already planning to undermine these programs should SFFA prevail by favoring predominantly non-white high schools, rather than by directly favoring non-white students.

Students from families in the bottom 25 percent of incomes comprise only 3 percent of enrollment in our most competitive colleges, while those from the top 25 percent comprise 72 percent. These biases can be eliminated without preferences or the rejection of better qualified applicants. Because black and Hispanic households have, on average, less than 15 percent of the net worth and 68 percent of the average income of white households, they will disproportionately benefit from these efforts, presumably pleasing those who seek greater minority representation in elite colleges. But this outcome would be a result of sound policy, not a fraudulent design.

In 2016, the Jack Kent Cooke Foundation, America’s leading provider of scholarships for low-income, high-achieving students, published True Merit: Ensuring Our Brightest Students Have Access to Our Best Colleges and Universities. Key findings included that low-income students are one-third less likely to take advanced placement courses, in part because their schools do not offer these courses; only half as likely to take ACT/SAT prep courses; and have family obligations that more affluent students do not.

The Cooke Foundation found that, within a measurable range, high-achieving low income children who have lower GPAs and SAT scores than affluent children, and who are scored lower than affluent applicants by admissions offices for non-academic factors, nonetheless perform on par, both as to college grades and graduation rates.

That means selective colleges can and should “normalize” scoring to better predict performance. Candidates then may be ranked as a single group, with the traditional goal of selecting the applicants who are most likely to succeed. Greater economic and racial diversity will result, with particular advantages for underprivileged blacks and Hispanics who are often overlooked by racial preferences that disproportionately go to children of upper middle class and affluent households. There also should be a review of whether the academic standing of underprivileged students improves in subsequent years. If so, the calibration should take this into account.

Adjusting data so that it accurately predicts college performance requires affirmative effort, but it does not require the social engineering, preferences, or targets of affirmative action, let alone the quotas of equity.

America was founded on the premise of opportunity for all. Impartial, reliable, holistic admissions strengthens our meritocracy and embodies American exceptionalism. Selecting winners and losers based on their complexions does not.