An Open Letter to Harvard President Lawrence Bacow

Dear Harvard President Bacow:

In response to the Supreme Court’s grant of review of the decision of the United State Court of Appeals for the First Circuit in Student for Fair Admissions v. President and Fellows of Harvard College, which decision held that Harvard could consider race in its admissions process, you circulated a letter to the “Members of the Harvard Community” defending Harvard’s use of race in the admissions process and arguing that “[t]hose who challenge our admissions policies would ask us to rely upon a process far more mechanistic, a process far more reliant on simple assessments of objective criteria.”  Each of us, you add, is “more than our numbers, more than our grades, more than our rankings or scores.”

With all respect, you have not fairly presented the argument of those who oppose racial preferences. Critics of racial preferences do not argue that admissions should be mechanistic, turning solely on grades and test scores.  Indeed, using race as a factor is what is mechanistic, since it is a fact beyond the individual’s ability to change. Just as no one should suffer in the admission process for the uncontrollable accident of racial or ethnic identity, no one should benefit thereby, either.

Overcoming social and economic adversity, whatever one’s race, would be a far better marker of the quality of an applicant because it would inform Harvard of the lived experiences of the specific individual it is considering.

Critics of racial preferences disfavor those preferences because race is not a good marker of anything important. Standing alone, it tells one little about the specific person being appraised. Overcoming social and economic adversity, whatever one’s race, would be a far better marker of the quality of an applicant because it would inform Harvard of the lived experiences of the specific individual it is considering.

Indeed, for all of Harvard’s emphasis in the Court of Appeals on diversity, its student body is surprisingly uniform economically and socially.  

Indeed, for all of Harvard’s emphasis in the Court of Appeals on diversity, its student body is surprisingly uniform economically and socially.  According to data available on Google, 15% of Harvard students come from families of the top 1% in earnings, 67% of Harvard students come from the top 20% of income earners.  Only 4.5% come from the bottom 20% of earners. Clearly, most of Harvard’s Black students are not from families in the lowest quintile of earners since 18% of its students are Black while only 4.5% of Harvard’s students come from that quintile.

Harvard emphasized in the Court of Appeals that it also gives special consideration to athletes, the children of faculty, staff, and alumni, and even relatives of donors.  But these categories of applicants are very different from a race-based category for two reasons. First, and most importantly, they are not even arguably prohibited by law.  Second, as the Court of Appeals noted, Harvard defended these practices on the grounds that they either tell Harvard something important about the character of the particular applicant or serve an important interest for the functioning of the University. Referencing Harvard’s arguments, the Court of Appeals noted that giving preferences to athletes allows Harvard to admit students who have demonstrated “discipline, resilience, and teamwork.” Giving preference (Harvard calls them “tips”) to so-called “Legacy” applicants, that is, the children of Harvard graduates, “helps to cement strong bonds between the university and its alumni [and] encourages alumni to donate their time and money…  [G]iving tips to the children of faculty and staff is important to workforce retention.”

Surprisingly, while giving preference to athletes and children of faculty, staff, and Harvard alumni and donors, and while having a student body heavily biased in favor of the economically and socially well off, the Court noted that Harvard rejected increasing the weight it places on socioeconomic background in admissions. The Court quoted Harvard’s argument that giving greater weight to socioeconomic background “would not further Harvard’s diversity goals.  Harvard believes that excellence can and should be found in all backgrounds and determined that focus on socioeconomic circumstances that outweighed all other factors could equally reduce the depth and breadth of the Harvard class as well as its excellence in many dimensions.” (Internal quotation marks omitted.)

Of course, socioeconomic circumstances should not “outweigh” all other factors. But Harvard’s conclusion misses the whole justification for racial preferences. Race itself has no bearing on any quality that an admissions office should care about. Either race is a proxy for some quality that arguably does matter – for example socioeconomic hardship, inferior schools, lack of intact family, difficult environment – in which case Harvard should select for the quality and not for the proxy; or Harvard regards race itself as an essential, determining characteristic of the individual.  And that is simply racist.

Very truly yours,

Gregory R. Smith

HLS ‘68

Gregory Smith is an appellate attorney in Los Angeles and an occasional contributor to the Jewish Journal.