In his op-ed at the New York Times yesterday, Yascha Mounk, a fellow at New America, asked “Is Harvard Unfair to Asian-Americans?” A century ago, Harvard had a problem, he writes: “Too many Jews.” Today it’s Asian-Americans. Euphemistic admissions criteria like “character and fitness” solved Harvard’s problem back then. Today, numbers do the job. To get into the top schools, Mounk writes, Asian-Americans “need SAT scores that are about 140 points higher than those of their white peers.” And that’s brought on a suit by a group called Students for Fair Admissions.

If this case is decided eventually under current law, as is likely, the result will be less than clear or satisfying in several respects. To see why, just follow Mounk’s argument. One reason this “new discrimination” is tolerated, he notes, is that “many academics assume that higher rates of admission for Asian-Americans would come at the price of lower rates of admission for African-Americans.” But the two issues are unrelated, he continues:

As recognized by the Supreme Court, schools have an interest in recruiting a “critical mass” of minority students to obtain “the educational benefits that flow from a diverse student body.” This justifies, in my view, admissions standards that look favorably on underrepresented groups, like African-Americans and Latinos. But it can neither explain nor justify why a student of Chinese, Korean or Indian descent is so much less likely to be admitted than a white one.

Then what does explain why an Asian-American student is so much less likely to be admitted than a white one? Mounk continues:

Conservatives point to Harvard’s emphasis on enrolling African-Americans (currently 12 percent of freshmen) and Hispanics (13 percent) but overlook preferences for children of alumni (about 12 percent of students) and recruited athletes (around 13 percent). The real problem is that, in a meritocratic system, whites would be a minority—and Harvard just isn’t comfortable with that.

Ah! There we have it, Mounk believes. But notice that this “explanation” mentions, almost in passing, “a meritocratic system,” as if that were what we had. If we did—at least one based heavily on SAT scores—the aforementioned academics would be right: Harvard would admit far more Asian-Americans and far fewer African-Americans and Hispanics—and perhaps fewer legacy and athletic applicants as well.

But under current law, what we have instead is a system in which discrimination based on academic merit varies. As Mounk correctly notes, universities may discriminate to achieve “diversity”—and, in particular, a “critical mass” of minority students. What that means, of course, is that the distinction between “majority” (read “white”) and “minority” (“non-white”) looms large in admissions decisions. What it means in practice, however, is that academic merit weighs more heavily in white than in non-white decisions—except in the case of Asian-Americans, where it weighs more heavily even than with whites. For Mounk, there’s the rub. Indeed, it gives new meaning to “reverse discrimination”—not against the majority, as we usually think of it, but against a minority.

So what’s to be done? Mounk grants, of course, that there are inescapable trade-offs among admissions criteria and that there is no one right answer to the question of which are to weighed more heavily than others. But he never goes to the principled solution—perhaps because our modern antidiscrimination law precludes that solution. For that, we’ll need to notice that Harvard is, after all, a private institution. As such, its board and administration should be free to shape its incoming classes however they wish, much as religiously affiliated institutions are mostly free to do today—and of course the rest of us would be free as well to judge Harvard’s policies as we wished. That would solve a host of problems, if our law permitted it. Unfortunately, it does not.

The issue is more difficult, however, in the case of public institutions, which belong to all of us. In fact, Students for Fair Admissions also has the University of North Carolina at Chapel Hill in its sights. But the problem there is that equal protection comes into play, which means that the university, like all public institutions, is forbidden to discriminate except on grounds that are narrowly tailored to serve its function. But what does that mean in practice? Does it mean that academic merit should be the dominant or perhaps the only admissions criterion? Or does it mean instead that the university should be open to all? Indeed, don’t the parents of less gifted children pay taxes to support the University of North Carolina too?

Reflections on the implications of our vexed antidiscrimination law bring us, then, to a more basic question: Given that these admissions decisions are so freighted with controversial and incommensurable value judgments, why do we even have public institutions of higher education (or of any level of education, for that matter)? Couldn’t these insoluble questions be avoided if all education, like religion, were private? Now there’s a modest proposal. See here for a fuller discussion.