The Bar-On Brief: Harvard affirmative action lawsuit exposes the irony of judicial politics

The Bar-On Brief: Harvard affirmative action lawsuit exposes the irony of judicial politics

Earlier this month, both sides presented their closing arguments in the case Students for Fair Admissions v. Harvard before the Massachusetts District Court. Now, it’s all up to Judge Allison Burroughs. She will have to review thousands of pages and make the decision as to whether Harvard University’s use of affirmative action and consideration of race in its admissions illegally infringes on students’ — particularly Asian students’ — 14th Amendment right to equal protection.

While the judiciary has already opined on the topic of affirmative action quite a few times, this case is different. Most previous cases dealt with public university systems, including the University of California and University of Michigan systems. Harvard, a private institution, is not necessarily bound by the 14th Amendment. Some supporters of Harvard’s use of race in admissions argue that the private university has a First Amendment right to select its students based on whatever factors it chooses.

Regardless, this case exposes something much bigger than the issue of affirmative action itself — it epitomizes the politicization of today’s judiciary.

The common conservative viewpoint on affirmative action advocates for its abolition through the judiciary because it unfairly discriminates against white Americans. But compare this viewpoint with other conservative ideologies regarding private business’ rights to discriminate, and the logic does not hold up.

The traditional, small government conservative or libertarian standpoint regarding government intrusion in private business affairs is clear: It should not happen. After all, conservatives supported the Masterpiece Cakeshop v. Colorado Civil Rights Commission Supreme Court decision, which affirmed a religious baker’s First Amendment right to refuse service to members of the LGBTQ+ community.

Doesn’t the same logic apply here, too? Courts have long recognized the First Amendment doctrine of “academic freedom,” which “includes the [university’s] selection of its student bodies.” If the First Amendment is applicable to affirmative action cases, maybe private institutions can refuse to admit a white student or an Asian student purely based on their race.

The question then becomes whether this is a world we want to live in. The traditional conservative-libertarian argument is that a capitalistic market will naturally weed out bigotry and discrimination because the only color capitalism cares about is green. Maybe that’s true. But if that is the case, then the same logic should apply when it comes to affirmative action.

Some argue it is the government’s job to enact legislation to protect against discrimination. But Congress never passed a law prohibiting affirmative action. Maybe if conservatives feel so strongly against using race as a factor in admissions, they should enact legislation expressly forbidding it. This is exactly what conservatives have been telling liberals on the issue of abortion. Conservatives have for years (since Roe v. Wade) argued that abortion rights should be enacted through the elected branch as opposed to being engraved as rights by an unelected branch of government.

These different issues — affirmative action, private business discrimination and abortion rights — may seem like apples to oranges comparisons on the surface, but they really aren’t. They all stem from the court having to decide policy issues when Congress is in gridlock.

The conservative position in the Harvard case can be summarized as follows: Private institutions need to be restrained by the government. The courts need to direct private institutions and tell them what they can and cannot do. This sounds like textbook government overreach conservatives usually abhor.

The liberal position in the Harvard case says that Harvard — like all private institutions including hotels, bakeries and restaurants — has a First Amendment right to consider race in its selection process; Private organizations should only be bound by laws that are explicitly passed by Congress. That sounds like textbook free-market conservatism liberals consistently refute.

Judge Burroughs is merely deciding which side will write the opening appellate brief as opposed to the reply brief. And as the case is appealed and moves further up in the court system, these matters of law will be heavily debated. Then perhaps the irony of these arguments will become clear as day.

Shauli Bar-On is a sophomore writing about sociopolitical issues. His column, “The Bar-On Brief” runs every other Tuesday.

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