Equal Treatment

It has been a sunny, hot day in Santa Fe, New Mexico, where strangers are kind and beauty is overflowing.

The Supreme Court has ruled against Harvard and the the University of North Carolina (UNC) and thereby against racial discriminations in college admissions. Good riddance. But why?

Harvard and the UNC argued their cases poorly. It is no wonder they lost. Perhaps, Harvard and the UNC could have hired better lawyers. Perhaps, better lawyers would not have helped, for the facts of the case were unfavourable.

The Supreme Court’s job was easy. All the Court had to do was to follow the letter of the law. It had to follow the Constitution, whose Fourteenth Amendment’s Equal Protection Clause is unequivocal: no discrimination on the basis of race or colour is permitted. Exceptions must pass the standard of strict scrutiny, which calls for compelling governmental interests and narrowly tailored policies. By accident or by design, Harvard’s and UNC’s policies defied scrutiny.

Beyond the narrow confines of the case and as a matter of abstract principle, it is harder to argue that racial discrimination in college admissions should be outlawed. Below is a list of possible objections to equal treatment and the corresponding rebuttals.

1. The Constitution, which insists on equal treatment, is passé.
   This may be so. In this case, the Constitution ought to be amended rather than ignored. Besides, America is the experiment defined by the values espoused by its founding documents. To terminate this experiment by disowning these values is hubristic, myopic, and selfish (and reminiscent of the recent CNN headline “Janitor heard ‘annoying alarms’ and turned off freezer, ruining 20 years of school research worth $1 million, lawsuit say”).
2. Private individuals are free to choose friends and lovers on the basis of race. Why should not Harvard, a private institution, be free to do likewise?
   Harvard has greater market power than any single individual does. As a result, competition (e.g., from the preppy Yale and Princeton or the savvy University of Chicago) may not suffice to arbitrage any errors in Harvard’s admissions policy.
3. Regulation of tech companies seems to be predicated on no competition at all. Surely Harvard faces more competition than Facebook and Google do in their core product markets. Harvard does not pass the test for regulation.
   The kind of power Harvard wields extends beyond its power in the education market. Harvard is an influencer. If GM starts selling an overpriced car with inferior specifications, Ford will happily undercut GM by selling a better car for less. By contrast, if Harvard were to introduce racial caps in the name of diversity, lesser schools might follow the suit to appear to be with it.
4. Banning racial discrimination in admissions will lead to more racism rather than less, because racial discrimination in admissions could have been used to undo the structural racism in America.
   It is true that it is silly to deprive a benevolent social planner — say, Harvard — of a policy instrument — say, the right to discriminate on the basis of race. The benevolent planner can always ignore a policy instrument if it is redundant or harmful. But there is little reason to believe universities to be benevolent social planners. They bend to political pressures, just like everyone else does. Just like the one man one vote doctrine ties the hands of the districter (typically the state legislature) by preventing the districter from drawing electoral districts with unequal populations, so does the ban on racist admissions tie the hands of a malicious or misguided university bureaucracy.
5. This pessimistic view about human and organisational intentions
   is inconsistent with anything good at all happening in America.
   False. The assumption that people serve their preference by responding to the incentives presented to them by their environment is descriptive, nether optimistic nor pessimistic. Under this assumption, there is a potential for a myriad of equilibria. The outcome is not preordained. The American outlook is the optimistic outlook that the best of all possible equilibria will prevail if citizens get to coordinate on a certain set of shared practices, such as treating equals equally and respecting each other’s freedoms. The role of the Constitution is to serve as a device that helps coordinate on these good practices.
6. Banning racial discrimination in college admissions will not matter either way. If universities want to discriminate, they will do so on the basis of an ensemble of race-adjacent characteristics that, taken together, will predict race perfectly.
   This is exactly what the universities will do. Nevertheless, the hope is that there is value in not normalising discrimination by permitting overt discrimination. The hope is also that covert discrimination will be less amenable to the social contagion orchestrated by a handful of influencer unversities than overt discrimination.

Thank you kindly.