Will the Supreme Court finally stop colleges from using race-based preferences in admissions? That is the question in the case of Students for Fair Admissions v. President and Fellows of Harvard College.

The Case

Harvard has a long and sordid history of focusing on race in admissions. It admits discrimination against Jewish students in the 1920s. But it defends its current process of giving preference to African-American and Hispanic students.

The Asian-American students of SFFA cry “foul.” Harvard’s system treats students of the same academic caliber very differently depending on their race. That, according to SFFA, must be stopped.

Here’s one cited example: an African-American student in the fourth-lowest academic segment of applicants has a higher chance of admission than an Asian-American student in the highest segment. This should strike any fair-minded person as grossly unfair.

The Court’s Precedents on ‘Affirmative Action’

The caselaw on college “affirmative action” programs is anything but clear.

In Grutter v. Bollinger (2003) the Supreme Court upheld the consideration of race in college admissions. While racial classifications usually trigger the highest form of scrutiny, the Court found that student body “diversity” was a compelling interest for colleges. But it noted that this interest would diminish as our nation’s history of racism fades further into the past.

Not all of the Justices agreed. Justices Scalia and Thomas staunchly opposed the idea that there could ever be a compelling interest in classifying people based on race. According to Scalia, “Where injustice is the game … turnabout is not fair play.”

Here’s the confusing part. On the same day the Court decided Grutter, it decided Gratz v. Bollinger (2003). In that case, the Court struck down a policy that awarded “points” to applicants based solely on race. The Court found that policy invalid because it was not as “holistic” as the other.

So in 2003 the Court’s answer to whether colleges may consider students’ race in their admissions process was: maybe; sometimes. Not very helpful.

The Problems with ‘Affirmative Action’ Admissions Policies

The answer in 2023 should be, simply, “no.” In light of the profound harms posed by racial discrimination, colleges bent on achieving “diversity” should have to do so in some other way.

If the aim is simply a diverse student body, we should see colleges looking for students who speak multiple languages, hail from rural areas, grew up in single-parent homes, have parents in the military, and all manner of other traits.

But when it comes to the goal of “diversity,” there seems to be a single-minded focus on just three traits: race, gender, and sexual orientation. Current frameworks look at these three traits, and give some people (non-white, non-male, non-heterosexual) a diversity “credit” that no one else gets. In other words, they give a few types of people a leg up on everyone else.

Diversity is not a feature of some people and not others. It’s a feature of our society as a whole. It results from the huge variety of traits, conditions, talents, and experiences that make us all different. In America, we have it in spades. But why do our institutions believe they need to engineer it into a given student body? And why do they think they should engineer it through processes that are simply unfair?

These unjust systems harm real people. Giving preferences to some students because of their race means handicapping other students because of theirs. Colleges that do this are creating new victims of racial discrimination. This increases racial tension and resentment in society as a whole.

We would do well to heed the words of Justice Scalia:

To pursue the concept of racial entitlement — even for the most admirable and benign of purposes — is to reinforce and preserve for future mischief the way of thinking that produced race slavery, race privilege, and race hatred. In the eyes of government, we are just one race here. It is American.

What Real Celebration of Diversity Looks Like

To truly celebrate diversity, we should let people shine according to their naturally diverse talents, ideas, and abilities — and the contributions they make to our world.

In the arts, let’s celebrate the beautiful and creative. In sports, let’s celebrate the fastest, strongest athletes. In business, let’s celebrate the most innovative. In our families, friendships, and communities, let’s celebrate those who are most caring and kind. And in prestigious institutions of higher learning, let’s go ahead and celebrate those who have the best grades, strongest essays, and the highest test scores.

Any college that wants to place higher value on non-academic traits remains free to do so. What it should not be free to do is to require one academic standard for students of some races, and a different standard for others. This term, the Supreme Court has a great chance to rule that way.

Rita Peters is a constitutional attorney, the author of Restoring America’s Soul: Advancing Timeless Conservative Principles in a Wayward Culture and co-host of the weekly radio program, “Crossroads: Where Faith and Culture Meet.”