Fenster writes:

The United States District Court has held in favor of Harvard University in the case dealing with allegations of discrimination against Asian-American students.  The Chronicle story reporting the case is here.  The text of the decision is here.

I am not going to venture much in the way of legal analysis in this post.  I am only now reviewing the text of the case. I am not a lawyer and the nuances are likely to be lost on me.  And it may get appealed and so may not be the final word.

The Chronicle, too, seems not to see the legal reasoning as the key to the case.  The article does not lead with the law but rather with what appears to be a sign by the judge of extraordinary deference to Harvard–in effect a way of saying “I don’t even need to think too much about this in legal terms”.

Writing that the university’s system “passes constitutional muster,” Allison D. Burroughs, a U.S. district judge, added that the court “will not dismantle a very fine admissions program … solely because it could do better.”

Constitutional. Not constitutional.  Bah humbug.  This court is not about to tinker with Harvard for the sake of some special pleading from the peanut gallery.

I find this deference a bit suspicious.  Courts give deference all the time to governments.  But Harvard is a private entity.

Or is it?

In fact this question of public and private is at the heart of the matter, and more so in policy terms than in legal terms.

Harvard is nominally private and as such I am sympathetic with the argument that the government should have a hand’s-off attitude to its admissions process.  Why should Harvard not be able to put the thumb on the scale for blacks, or make it harder for Asians who would otherwise swamp the incoming class, or admit more legacies who may help financially down the road?

But that argument has its limits, and fuzzy limits too.

Harvard is not in the business of admitting the smartest students.  It is not even in the business of admitting students so that the educational attainment of admitted cohorts are optimized by virtue of diversity or other factors.  Yes, that is the legal defense.  And as weak as it is in terms of actual empirical support the notion that diversity is central to the academy is something that the court itself, in this case, simply finds to be “axiomatic.”

But if that is not what Harvard is doing what is it actually up to?

It is in the business of fashioning a good portion of America’s elite.

That part is not admitted.  It lies under the surface.  Just under the surface.  Harvard will be happy to tell you it has an obligation to create an American elite but it tends not to use that argument when defending its admissions policies.  When we are in that world it is all ostensibly about education, and the maximization of education by virtue of the subtle, secret and almost indescribable methods it employs when selecting students.

Of course that is but hypocrisy and legalistic mumbo-jumbo.  Of course they are in the business of fashioning an elite.  They just don’t want to admit that that part of the business plan is a major driver of the admissions process.  So instead we get mind-numbing, non-credible (but axiomatic!) analyses of why diverse classes produce unique and wonderful academic benefits.

But let’s give one cheer at least for Harvard.   The university may be full of it in the way it defends its admissions practices.  But there is a certain logic at work.

America likes to think of itself in individualistic terms, and a cohesive nation will be able to get quite far in discounting group thinking in favor of individual rights and achievements.

Alas, we are not as cohesive as we once were.  All well and good to say our elites will be as merit-based as are the the pretenses of exclusive Ivy admissions practices.  But if one is looking out for America, as Harvard quietly does, some quiet adjustments will need to be made so to achieve positive public ends.  Blacks need to be represented in elite positions.  And would it really be a good idea to have an elite finishing function that is suddenly 50% Asian?

There are to be sure very uncomfortable echoes in that thought of the early part of the 20th century, when the Ivies fretted over too many Jews.  Argue that one out as you will.  But as uncomfortable as the parallels may be it is hard to avoid a tough-minded conclusion here: those who are charged with fashioning an elite may have to take groups and group sentiments into account.  They may make a hash of it or they may do it well.  But with great power comes great responsibility.  In resisting the claims by Asian-Americans Harvard is only doing what it has always done as part of its core mission and identity.

But should a private entity like Harvard play the role of elite manager?  Who “charged” them with that in the first place?  It seems to be something that just happened, without much thought or design, and with the silence on the matter perpetuating the confusion.

Further, while “fashioner of the elite” is not a governmental function like highway construction or tax collections is it not a public matter of the first magnitude?  Of all the things you might offload from public review you privatize the selection of our ruling class?  Our public elites consist of individuals selected and groomed by a private system.

Maybe that is the way it ought to be.  But the fly in that ointment concerns the secretive quality of the whole escapade.  If that is the way it is to be let Harvard admit it is in the business, as a private entity, of creating an elite to govern us.  Let it defend that privatization decision against legitimate challenges. Let it dispense with the cant and hypocrisy, and all the fake diversity analyses, and defend what it is doing.

Let it describe why admitting more blacks and fewer Asian-Americans than merit suggests is a good idea.  Let it defend the fact that Jews are admitted so far out of proportion to their percent of the population that even a bell curve IQ argument does not suffice to explain it.  Let it tell middle American whites that with over 40% of white admissions reserved for legacies, athletic scholarships and other special preferences  there is almost no chance of Becky-from-Boise’s admission once all the other group calculations are taken into account.

Indeed white middle class America might give out a sigh of relief at the court decision.  The chances of its children being admitted are already vanishingly small given the combined effect of preferences for non-whites and the preferences among white candidates for legacies and athletic scholarships.  Whose ox would be gored were Asian admits to suddenly double?