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Two Lawsuits That Could Kill Yale

The future of higher education will be settled by the courts.

Yale University Law School is shown on the day the U.S. Senate Judiciary Committee was holding hearings for testimony from Supreme Court nominee Brett Kavanaugh and Dr. Christine Blasey Ford on September 27, 2018 in New Haven, Connecticut. (Photo by Yana Paskova/Getty Images)

The current state of higher education is so insane and irrational that a sensible observer must conclude that colleges will not reform unless they are forced to. If rational self-interest or conscience had any sway in today’s universities, they would have gotten off their highway to destruction three exits ago. There are two lawsuits currently attempting to nudge higher ed away from being a soulless parasite on the middle class and onto a more sustainable path. Unfortunately, the two are pushing in opposite directions.

The first lawsuit is the California case that last week produced an injunction blocking the University of California system from using SAT or ACT test scores in admissions. A group of students and activist groups sought to ban the tests on the grounds that they are racially discriminatory and also because many disabled students were prevented this year from taking the tests by the Covid crisis. Judge Brad Seligman ruled that UC’s decision to make admissions “test-optional” was not enough. To prevent non-disabled students from having an unfair advantage, admissions must be “test-blind,” meaning students cannot submit scores even if they have them.

The second case was announced by the Department of Justice’s Civil Rights Division in August, when it notified Yale University that a two-year investigation found Yale’s affirmative action practices to be in violation of the Civil Rights Act. “Asian Americans and whites have only one-tenth to one-fourth of the likelihood of admission as African American applicants with comparable academic credentials,” the DOJ wrote. Yale has until September 15 to submit a plan to change its affirmative action policy so it no longer discriminates against whites and Asians. The school has indicated that it will fight the DOJ and defend its current policies as lawful.

Both of these cases suffer from fuzziness about where colleges are supposed to end up. The California plaintiffs obviously want to put a permanent end to what they consider discriminatory tests, and, conveniently enough, the defendants are on the same page. The UC Board of Regents already voted in May to make SAT/ACT scores optional through 2025 because “it’s a racist test,” as one regent put it. California intends to develop its own non-racist test over the next four years. Whether it does or not, the SAT/ACT requirement is unlikely to return. 

Clearly standardized testing is on the way out in California. But can a university system survive if it does away with academic selectivity entirely? Administrators everywhere are worried about the enrollment bust that, according to demographics, will hit in a few years when the number of 18-year-olds in America plummets. Is filling admissions slots with non-college-ready, bottom-quintile-scoring dullards a solution, or will it kill California’s colleges by trying to save them? There is currently much scholarly debate over whether the true function of colleges is education, credentialing, skill-building or signaling. If academic selectivity is done away with, they will no longer perform any of those functions.

The DOJ’s ultimate goal is even harder to discern. Does it really want a Yale that is majority Asian and less than 1 percent black? A 2013 study at Harvard found that, without affirmative action, Harvard would be 43 percent Asian, 38 percent white, and 0.7 percent black. (The United States is 5.6 percent Asian.) Is that the kind of fairness the DOJ has in mind? When California voters passed a referendum banning affirmative action in 1996, university bureaucrats circumvented it by cloaking the old racial preferences in layers of subterfuge. Unlike the voters of California, the Justice Department has the power to force Yale to comply with its demands. If it wants to ban affirmative action, it can refuse to ease up, hauling Yale into court if necessary, until the school produces an outcome it is satisfied with.

So what outcome should it be satisfied with? If Yale is allowed to keep affirmative action in any form, the DOJ will be giving its stamp of approval to racial discrimination against Asians and whites. But if affirmative action is abolished, the result will be an ethnically lopsided Ivy League and, soon, an ethnically lopsided national elite. There is no legal principle that can find a middle ground between these two undesirable outcomes. “There is no such thing as a nice form of race discrimination,” the DOJ letter says. Either that’s true under the law or it isn’t.

The solution for fifty years has been to muddle through, pretending there is a way for schools to racially discriminate a little but not too much. With these two lawsuits on a collision course, muddling through may not be a viable strategy for much longer.

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What makes these two cases such a combustible pair is that they undermine each other’s fundamental arguments. In the California case, the defendants argued that a “test-optional” system was just as fair as a “test-blind” one as long as test scores were only used to help applicants, never hurt them. The plaintiffs responded that it made no logical sense for UC to claim that it only used test scores as a “plus factor.” Imagine a football game where only one side can score field goals, they said. No one would call that fair. Judge Seligman agreed.

The problem is that the “plus factor” versus penalty distinction has been a central pillar of race-based affirmative action since Bakke. “The applicant who loses out on the last available seat to another candidate receiving a ‘plus’ on the basis of ethnic background … would have no basis to complain of unequal treatment under the Fourteenth Amendment,” Justice Powell’s hairsplitting 1978 opinion argues.

As a matter of basic reason, Judge Seligman has the better argument. There is no mathematical difference between advantaging one class of students and disadvantaging every other. But whether he realized it or not, the same logic that Seligman used to strike down “test-optional” admissions is equally fatal to decades of affirmative action jurisprudence.

The Yale case punctures a longstanding fallacy of its own. In last year’s Harvard case, where a group called Students for Fair Admissions sued Harvard for the same reasons the DOJ is going after Yale, the plaintiffs claimed that Harvard systematically discriminated against Asian applicants by giving them lower personality ratings, docking them for being “quiet,” “shy,” “flat,” and other stereotypes. The judge ruled that this was irrelevant unless they could point to specific applicants who would have gotten in if their personality scores had been higher. “Even if there is an unwarranted disparity in the personal ratings,” she wrote, “the Court is unable to identify any individual applicant whose admissions decision was affected.”

The absence of individual students in the plaintiffs’ case was intentional. An earlier lawsuit by the same activists made Texas teenager Abigail Fisher its frontwoman, but it turned out that making one young woman the focus of so many years of humiliating scrutiny was needlessly cruel. Fisher was nearly 30 by the time the Supreme Court finished with her case and heartily sick of strangers litigating whether she was smart enough to get into UT Austin on her own merits. Identifying specific Asian students who were unfairly rejected shouldn’t have mattered anyway. If race makes a marginal difference in Harvard’s admissions decisions, then there must be students who are accepted for being the right race and rejected for being the wrong race, as a matter of logic. 

The DOJ’s Yale letter makes exactly this point. The Supreme Court says that race “cannot be decisive in practice” if an affirmative action program is to pass civil rights muster. But race must be decisive at least some of the time, or there would be no point to the program. If Yale’s demographics with and without affirmative action are as disparate as studies suggest, then race is decisive not just occasionally but in quite a few cases. 

Should academic qualifications count for everything, or nothing? Most colleges think the truth is somewhere in between. But their ability to find a pragmatic middle ground depends on the logical fudges that protect them from civil rights law’s blanket ban on racial discrimination — the “plus factor” rule, or the idea that affirmative action has only beneficiaries, never victims. If judges start striking down these fudges, then the whole edifice of college admissions as it currently exists collapses.

When the Justice Department sued the Virginia Military Institute over sexual discrimination in the 1990s to force the school to admit women, it was helped by the fact that no one in the Civil Rights Division cared if VMI lived or died. The question at issue was whether VMI could perform its particular mission if it went co-ed. When it turned out that the Rat Line just wasn’t the same with ladies present, the feminist lawyers in Washington did not lose any sleep. Oops, we accidentally destroyed an institution beloved by Southern traditionalists. Too bad.

Is that the way the DOJ feels about Yale? If forced to adopt race-blind admissions, Yale could well die. Privileged students would flee impending Caltechization — or flee in protest at black and brown underrepresentation on campus, as they would doubtless prefer to describe it. No one with ambition wants to attend an all-white (or “white-adjacent,” as Asians have been deemed) campus. It doesn’t look good. Assuming the ruling was extended to other schools besides Yale, a DOJ victory would throw the entire higher ed industry into turmoil, at exactly the moment when the Covid crisis and the enrollment bust already threaten its survival. Students would seek out alternatives to previously favored colleges, or alternatives to college altogether.

The courts will have a prominent role to play in determining what form the collapse of American higher education takes and what replacement arises after the collapse. Based on these two cases, there are two alternatives on offer. In the California model, the higher ed sector continues to metastasize, assimilating more and more students and generating more and more economic activity, as the connection to any actual education becomes more and more remote. In the alternative model, lots of colleges die. If the players in these cases — the DOJ, the UC Board of Regents, Yale, Harvard, Students for Fair Admissions — would prefer a third alternative, the time to think of one is running out.

about the author

Helen Andrews is a senior editor at The American Conservative, and the author of a forthcoming book about the Baby Boomers to be published by Sentinel this fall. She has worked at the Washington Examiner and National Review, and as a think tank researcher at the Centre for Independent Studies in Sydney, Australia. She holds a Bachelor of Arts in Religious Studies from Yale University. Her work has appeared in The New York Times, The Wall Street Journal, First Things, The Claremont Review of Books, Hedgehog Review, and many others. You can follow her on Twitter at @herandrews.

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