The Journal Gazette
 
 
Friday, December 03, 2021 1:00 am

Contrasting high court cases test parameters of inclusion

Abe Schwab

There's an affirmative action case (Students for Fair Admissions v. President and Fellows of Harvard College) that's been appealed to the Supreme Court, and it's captured my attention.

The case stems from a lawsuit filed in 2014 accusing Harvard of racial discrimination.

Harvard's affirmative action admissions practices aim to admit a diverse student population and so pay some attention to race. In the case, the plaintiffs claim that Harvard, a private institution, should not be allowed to consider racial characteristics in admissions decisions.

Harvard may be interested in fostering diversity in its student population, but considering the racial characteristics of applicants to achieve that goal, the lawsuit claims, is wrong.

The case is interesting, in part, because it makes no attempt to claim Harvard should make all its admissions decisions based solely on the academic qualities of the applicants. The lawsuit does not, for example, challenge admissions decisions affected by the applicant's ability to play for one of Harvard's athletic programs or the fact that an applicant's parents attended Harvard.

The Harvard case reminds me of the case from a couple of years ago that also made its way to the Supreme Court. In that case (Masterpiece Cakeshop v. Colorado Civil Rights Commission), a baker in Colorado challenged the anti-discrimination directives of the Colorado Civil Rights Commission. The Supreme Court ruled in favor of the baker and his right to refuse service to a gay couple.

There are some differences between the cases.

First, in the case of the baker, the legal basis for refusing to serve the gay couple was freedom of religion. That is, the baker had religious beliefs that prohibited him from providing services to a gay couple.

Harvard, however, is not a religious institution. Its decisions are not based in any religious document, interpretation or dogma. That said, Harvard (and the people who run it) seems to have a firmly held belief that racial diversity is an important part of its admitted student population.

So long as we live in a non-theocratic society, any claim that we should give priority to firmly held religious beliefs over other firmly held beliefs lacks justification. That is, a firmly held belief shouldn't be privileged because it happens to be attached to what one associates with their religion.

Second, in the case of the baker, he refused to serve specific individuals. His firmly held beliefs precluded him from serving these particular customers and any other potential customers like them. Harvard is not refusing any specific group or person admission – they are not eliminating a group from being their customers.

Third, in the case of the baker, he refused to provide service to members of a group that has been historically stigmatized and marginalized. In the case of Harvard, they are working to ensure their services are available to all groups and working to ensure they get customers from groups that have been historically stigmatized and marginalized.

But at their core, both cases have a fundamental similarity: They involve a private institution and the way that institution is allowed to determine to whom it provides its services.

And that has me wondering about individuals who believe the baker should be allowed to determine to whom he provides services, even if it means discriminating against historically stigmatized and marginalized individuals. Do they also believe that Harvard should be allowed to encourage diversity by whom they offer their services?

If not, it suggests that these individuals believe it's OK to discriminate against historically stigmatized and marginalized groups in the way a private business is run, but it's not OK for a private business to do something that fosters diversity and might help historically stigmatized and marginalized groups.


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