John J. Bastiat / Nov. 17, 2020

Harvard’s Racial Doublespeak Affirmed

The First Circuit Court effectively said that some discrimination is okay.

The title is admittedly a little misleading: “Racial doublespeak” is but one humble epithet among many arising from the discrimination case just decided by the U.S. Court of Appeals for the First Circuit. Dropped from the title for brevity’s sake were “double-standards,” “race-based quotas,” “court-sanctioned institutional bias against Asians,” “leftist elitism,” “overt racism,” “throwing the 1965 Civil Rights Act under the bus,” and a host of other equally apt descriptors. But “racial doublespeak” is a good start.

Background: The Harvard Case

Students for Fair Admissions (SFA) sued Harvard in 2014, culminating most recently in the First Circuit’s decision in favor of the Ivy League school. We’ve discussed at length the ongoing struggle of SFA against Harvard’s biased admissions standards. The gist of it is that Harvard effectively says, There are just too many smart Asians applying to Harvard — we can’t let them all in — and we don’t have enough smart blacks entering, so we need to tweak the admissions knobs in the name of “diversity”!

Good luck getting any Harvard official to admit this position, of course, but a simple inspection of the facts demonstrates this to be the practical effect. In any case, we fully expect this matter to reach the Supreme Court of the United States (SCOTUS), especially given the flawed logic upon which the First Circuit’s decision rests.

Logic Gaps

The underpinnings of all federal courts’ admissions-diversity jurisprudential logic is flawed. The First Circuit affirmed the district court’s ruling partially on the basis that Harvard’s use of race “is consistent with the requirements of Supreme Court precedent.” Translation: We will continue to make these types of insane rulings, because SCOTUS itself endorses them. The Supreme Court, for its part, has done nothing to clarify its convoluted positions in a handful of cases on the matter over the past few decades, stating nothing more than some use of race in admissions is permissible. A little racism is okay, apparently.

So how much is “some”? Nobody knows. The nation’s highest court has yet to deign to put sharp edges — actually, any edges — on how much “race” in the admissions process is enough and how much is too much, let alone how such criteria could or should be implemented. Thus, lower courts are left to their own whims and mischief on the matter, all under the umbrella of aegis and legitimacy conferred, however nebulously, from SCOTUS. The result: A federal district court under the First Circuit ruled in 2019 that penalizing Asian Americans is “justified by the compelling interest in diversity and all the benefits that flow from a diverse college population.”

The First Circuit, having endorsed that decision, has now established a new standard. The Wall Street Journal accurately pegs it: “Harvard never explains precisely how it uses race in admissions, but the court says that’s fine because the school uses other subjective admissions criteria as well. The ambiguity means schools can use race in arbitrary fashion as long as they’re not too blatant.” In honor of the Journal’s keen insight, we’ll call this new benchmark for college admissions discrimination the Not-Too-Blatant Standard™.

Thus, in both word and effect, the First Circuit has given carte blanche for schools to freely discriminate based on race, as long as they “aren’t too blatant” about it. This sounds more like reasoning from the Jim Crow era than from a modern federal court, but there it is. Until the Supremes hear SFA’s inevitable appeal, the First Circuit’s standard is effectively the law of the land. But the absence of a sane juridical standard to decide admissions discrimination matters isn’t the only logic problem.

Logic Flaws

Another even more fundamental reasoning defect lurking underneath the Not-Too-Blatant Standard™ is this: Why a skin-color-based double standard in the first place? Wasn’t the basic idea behind the Civil Rights Act of 1965 to attempt to fulfill the vision of Dr. Martin Luther King Jr. — that people should be judged by the content of their character, not by the color of their skin? So what happened? Is it okay to discriminate for the sake of ending discrimination? Does that make any sense? And for how long?

The Civil Rights Act is now over a half-century old. What discrimination still exists? That is, what real, concrete examples of discrimination exist that are not addressed by our current laws, either at the state or federal level? As to those who would point to “systemic institutional bias” backed up by cherry-picked statistics rather than concrete evidence, we would simply ask: What is more systemic, institutionalized, and biased than a race-quota-based admissions system at one of the nation’s most prestigious universities? That is, what discrimination actually exists that isn’t sponsored by the government?

Or how about this for twisted logic: Not just any skin color counts. Being “non-white” alone isn’t enough. No, the color must be from among an anointed class of colors, and, apparently, “Asian” isn’t on that list. So let’s see if we have this straight: Harvard is okay in discriminating against Asians and whites, but not against other races deemed too scarce to meet Harvard’s “diversity” requirements — is that it? And what exactly are those diversity requirements? And why are they there in the first place? And why do the courts view “diversity” as a “compelling” governmental interest? Do we need to have [X]% of this color and [Y]% of that color in every class? And why should diversity trump academic performance or any other merit-based criteria? No one seems to be able to address any of these questions sufficient to survive a laugh test — including, of course, the First Circuit.

For its part, the First Circuit blathers on for roughly 100 pages in what amounts to using a jackhammer to tap in a wall tack in its sadly comical attempt to justify the conclusion that Harvard’s “personal ratings” used in its admissions process are not influenced by race. Never mind that the school’s data show exactly the opposite, or that, according to the Justice Department brief, these personal ratings are why Asians are disproportionately rejected from admissions, notwithstanding their impeccable academic and other merit-based credentials. Nope: Apparently that’s not too blatant — standard met!

Here’s an illuminating thought experiment: Imagine if this Harvard-shill of a court attempted to pawn its convoluted logic off on a class of black plaintiffs under the same circumstances. “Bad press” would be the least of Harvard’s troubles; rioting and the complete loss of the school’s already mottled reputation would probably be much higher up the uh-oh list at the PR Department. But for now, it’s all good, we are told by the First Circuit: It’s okay to be a racist if the goals are “diversity” (whatever that is) and ending racism (however that is defined) — and, of course, you’re not too blatant about it. Got it?

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