May 26, 2021

Can Harvard Keep Discriminating Against Asians?

The Supreme Court will decide whether to consider an admissions case.

Harvard University discriminates against Asian Americans on the basis of race. That much is pretty well established. The only question now is whether the Supreme Court will take up Students for Fair Admissions v. Harvard and follow the ancient (i.e., 2007) wisdom of Chief Justice John Roberts: “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”

In order to admit more blacks and Hispanics, Harvard manipulates its admissions requirements in ways that limit admission rates for Asian American applicants in particular. This includes requiring higher SAT scores for Asian Americans, as well as penalizing them on an entirely subjective personality rating system. Astoundingly, since the suit was first filed in 2014, Harvard has won repeated victories in lower courts, more or less on the logic that it can continue to discriminate as long as it’s not too blatant about it. It’s what we’ve mockingly called the Not-Too-Blatant Standard™.

Students for Fair Admissions has appealed to the Supreme Court, which has yet to decide whether to take the case. Harvard, naturally, claims it doesn’t merit review because it’s just trying to increase diversity and equity.

On the contrary, given the justices’ inconsistency in previous race-based cases over the last four decades, it’s high time for some clarity.

In fact, it is the Court’s 2003 ruling in Grutter v. Bollinger that has given universities carte blanche to set up discriminatory regimes. Writing the Court’s opinion in that case, Sandra Day O'Connor infamously concluded, “We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest [in student body diversity] approved today.” In other words, racial discrimination was justified for another quarter-century. We’re still seven years from reaching that arbitrary date.

On the surface, this case is only about Harvard. Yes, the particulars of the Harvard case are somewhat unique. Yes, the Roberts Court tends to rule narrowly on cases so as not to overreach with precedents. But thanks to the Left, race has become the defining issue in our nation, and dividing along racial lines is how leftists address almost literally everything. College admissions, law enforcement, corporate boards, airline pilots, professional sports, federal farm subsidies, job preferences, COVID vaccines — all of it has been racialized by the “Unity” Party.

As for the case at hand, the editorial board of the Wall Street Journal put it plainly: “The 14th Amendment guarantees equal protection of the law, and Title VI of the Civil Rights Act makes discrimination by race illegal. What the plaintiffs ask is for the Court to affirm, at long last, that these words mean what they say.”

Update 6/15: The Supreme Court has kicked this case down the road, asking the Biden administration to weigh in. Power Line’s Paul Mirengoff cuts right to the chase, writing: “There’s no doubt as to what the Biden Justice Department thinks about Harvard’s policy of granting extreme race-based preferences to Blacks and Latinos at the expense of Asian-Americans and Whites. Nor is there any doubt as to its view on whether this Court should grant the Asian students’ petition. Nor is the DOJ likely to think of any arguments in favor of preferences or denying cert that are unknown to the Justices. Thus, the Court’s request makes little sense to me unless the goal is to delay hearing the case until, at the earliest, the term following the 2022 elections. This, I believe, is the goal.”

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