Despite decades of affirmative action, the elite colleges diversity track records remained appalling. But now they will no longer be able to hide their resounding failure. The most important legal challenge in a world of post-affirmative action has just been launched and will shine a spotlight on racism in the admissions policies of elite colleges, which actively support white students, including many who already hold top benefits and could not otherwise measure themselves academically.
The contradictions between Harvard’s rhetoric and the reality of its student body composition have already done great harm and compromised Harvard’s legal standing before the Supreme Court. Judge Neil Gorsuch noted that Harvard could have achieved its current level of racial diversity by giving socioeconomically disadvantaged applicants half the boost it gives so-called ALDC students, including athletes (the « As »), children of pupils (also known as « legacies », the « L »), children of donors (« D ») and children of faculty and staff (the « C »).
Gorsuch noted that the ALDC’s preferences are race-neutral, but « undoubtedly most benefit white, wealthy candidates. » In fact, approximately 68% of ALDC applicants to Harvard are white (only 6% are black). And although only 5 percent of applicants are an ALDC, they make up about 30 percent of students admitted to Harvard each year.
« However, » Gorsuch wrote, « Harvard supports them. »
In the court of public opinion that matters most to these schools — their current and future donor base — the strategy has worked up to this point. While only 33% of Americans said they supported affirmative action in a recent Pew Research Center survey, 63 percent of Harvard students have a favorable view of race conscious admissions. Nearly three-quarters of students at Stanford, where 17 percent of students come from the top 1%, say their institution has a positive impact on society. Elite colleges’ positioning of themselves as givers gives alumni a foundation to champion their alma mater and motivates them to keep giving money.
It’s about to get a whole lot harder with a new generation of post-affirmative lawsuits that flip the script on elite colleges by targeting the perks they offer to the wealthy. Elite colleges will no longer be able to present themselves as liberal centurions fending off conservative marauders; now it will be conservatives fighting liberal reformers.
Front and center in this drive is a civil rights complaint initiated by Boston-based civil rights lawyers on behalf of Chica Project, African Community Economic Development of New England and the Greater Boston Latino Network, three nonprofits serving underprivileged students of color. The lawsuit calls on the U.S. Department of Education’s Office of Civil Rights to end inheritance and donor preference under the Civil Rights Act of 1964.
The statement will put Harvard on the ropes. Based on current legislation, a plaintiff need only show that an « apparently neutral practice has a racially disproportionate effect. » It clearly requires no racist intent, just disparate impact. The Supreme Court may eventually set its sights on such laws, but until then it seems fair to characterize the evidence as overwhelmingly in favor of nonprofit groups.
Assuming the complaint succeeds in demonstrating that preferences for the children of alumni and donors have a disproportionate effect on the racial makeup of Harvard admissions, the burden would then shift to Harvard to demonstrate that these practices have a « manifest relation to the education in question.” Meeting the “educational need” test will be a challenge for Harvard. No educational benefits have ever been claimed for ALDC preferences. (Presumably even Harvard won’t take the diversity argument to its absurd extreme and argue that wealthy alumni and donor children enrich the classroom with their perspective.) The only potential justification is financial. But a study monitoring students donations to 100 top universities found no connection between the existence of legacy preference and alumni generosity. MIT has he never practiced legacy preference and has an endowment of nearly $25 billion.
On another front, legislation was introduced in Massachusetts this would impose a significant public service fee on colleges practicing hereditary or donor preference and redirect money to community colleges. (Disclosure: I participated in the conceptualization and drafting of this bill.)
Whether or not these measures are successful, they fundamentally change the public relations position of Harvard and its peers. Gay’s message included another page from the old playbook. « To our current students, » she said, « you make excellence possible and you belong at Harvard. » The commentary is unequivocally directed at Harvard’s tiny population of socioeconomically disadvantaged students of color who might perceive themselves as beneficiaries of affirmative action.
Now Gay and his peers will have to defend the advantages it offers to its large population of socioeconomically advantaged white students, who feel they are entitled to admission to the elite university despite a lifetime of privilege.
The way elite colleges have historically framed affirmative action is racist: students of color cannot gain admission through an otherwise « objective » process without further assistance. In truth, the process is anything but objective. Nearly all of the criteria upon which elite colleges rely are simply proxies for wealth, and all are designed to rationalize the entry of the type of student body that serves their institutional interest in satisfying and growing a wealthy alumni network. .
Through sleight of hand, elite colleges have kept the focus on the small amount of good they do as a deviation from the huge benefits they offer to affluent whites.
Is about to end.