By Jeffrey Miron and Jacob Winter
This article appeared on Substack on May 30, 2023, and an earlier version appeared under Jacob Winter’s byline in the Harvard Undergraduate Law Review.
In a few weeks, the Supreme Court will announce its decision in two cases it heard last fall, one against Harvard and the other against the University of North Carolina. Both suits challenge race‐based affirmative action in college admissions. In each case, a group called Students for Fair Admissions (SFFA) argues that the universities’ admissions policies unlawfully discriminate against Asian Americans.
The case against UNC rests on two issues. Under the Fourteenth Amendment’s Equal Protection Clause, states may not “deny to any person within [their] jurisdiction the equal protection of the laws.” SFFA claims that universities are adopting de facto quotas by prioritizing minority applicants over Asian Americans who have stronger academic records. Furthermore, under Title VI of the 1964 Civil Rights Act, no university receiving federal funds or student aid may discriminate based on race, color, or national origin. The case against Harvard, a private university, relies primarily on this second legal argument.
Perhaps the most well‐known Supreme Court case addressing affirmative action is Regents of the University of California v. Bakke (1978). In the case, a white applicant who was twice rejected from the UC Davis School of Medicine challenged the constitutionality of the school’s racial quotas in admissions. The Court struck down the use of strict racial quotas, but ruled that the use of race as one of several criteria in university admissions is permissible under the Fourteenth Amendment and Title VI. The justices found that fostering diversity is a compelling state interest because it improves the quality of education. This unique ruling made the permissibility of race‐based affirmative action a legal gray area and cemented it as one of the most contentious issues in American politics.
The Court’s ruling in today’s cases is unlikely to end or even calm this debate. If the Court bars any consideration of race, universities will likely use other factors associated with race, such as socioeconomic status or geographic location. There is already evidence of this. Passed in 1996, California Proposition 209 prohibits state government institutions, including public education, from considering race, sex, or ethnicity. The University of California system has switched to proxies for race, such as family income and neighborhood circumstances, to continue promoting “diversity and equal opportunity.”
If these practices become widespread, they will likely spur new lawsuits that challenge whether such practices are legal. Plus, history suggests that whenever the Court upholds the legality of race‐based affirmative action, legal challenges will nonetheless continue. Furthermore, the Court’s ruling will inevitably enrage one side or the other, generating further polarization over the issue.
This cycle of never‐ending debate raises the question of whether, these cases aside, a better policy path exists. The answer is that instead of banning or regulating affirmative action, federal and state governments should eliminate financial support of higher education.
If states do not operate universities, the Equal Protection Clause has no bearing, since it applies only to state governments, not private universities. Absent federal funding for higher education, via research grants or financial aid, Title VI of the Civil Rights Act is similarly irrelevant. Use of affirmative action would become a decision for private institutions using their own funds. Such decisions would answer only to the market for higher education. Universities would be driven to employ admissions policies that align with the preferences of most of their constituents and potential applicants. Otherwise, to remain competitive in the higher education market, they would be compelled to change their policies if enough of their constituents or potential applicants found them objectionable.
This perspective on the current debate will strike some as nonsensical, since many believe government support of higher education is essential to ensure widespread access and a skilled labor force. That argument is disputable but the subject of another piece. This article argues instead that, regardless of any downsides, elimination of government support would have important benefits.
Many people believe affirmative action is valuable because diversity enhances the quality of teaching and research. Others believe higher education should practice affirmative action as a partial remedy to past racial injustice. In a free society, it should not matter for government policy whether one agrees with those views; if private institutions wish to act on them without using government funding, they should be free to do so.
Evidence from the higher education market suggests that many universities and their faculty, students, and parents value affirmative action immensely, or at least view it as an insufficient reason to avoid these institutions. Universities began using affirmative action before government pressure to combat discrimination. Harvard and similar institutions are both among the strongest advocates of affirmative action and the schools in the greatest demand by applicants. Thus, eliminating government support of higher education respects the freedom of universities and their constituents.
Reasonable arguments may exist for government support of higher education, whether via state universities or federal funding. But a full assessment should recognize that if the government funds education, then it must take stands on divisive issues, with all the anger and polarization this entails. If all universities were privately funded, many would practice affirmative action while others might not. People would attend institutions consistent with their beliefs and the factors that matter most to them.
This approach is also far less likely to polarize the nation than a sweeping Supreme Court decision. Affirmative action critics might not be satisfied, but their tax dollars would not support the practice. Plus, they can avoid such institutions so long as enough other people share their views.
Implementing this approach would require discontinuing funds to private universities and privatizing public universities. Developing a strategy for implementation is beyond the scope of this article. However, it is clear that discontinuing funds to private universities would be politically and logistically easier than privatizing public universities (but certainly not easy). Governments could discontinue funds gradually and make clear to universities when funds will cease.
An alternative perspective, in the Harvard case, is that private universities could avoid restrictions on affirmative action by forgoing government funding, as a few schools have done. Alternatively, the federal government could withhold funds from institutions whose admissions policies do not satisfy Title VI, rather than barring private use of affirmative action. These approaches would have a similar effect as eliminating funds entirely, and may even be better since universities would choose their own paths. The government would avoid the perception that it is backing away from promised funding, and universities would gain greater agency. Regardless of which plan is best, it is clear that government funds must be separated from higher education.
What does this mean for the Harvard and UNC cases? It is unclear. Rather, these cases are a teaching moment: government intervention often provokes polarizing debate over the goals, structure, and limits of that intervention. This does not render all government intervention undesirable, but it raises the bar at which the government should intervene. This lesson should enter policy debates in higher education, and beyond.
