According to a recent survey, Americans don’t like racial preferences. This is not news, being quite in line with many earlier polls, but the time and place here are rather propitious, with the Harvard affirmative-action case going to trial next week.
The new survey, by Boston’s public-radio station no less, asked this question: “The Supreme Court has decided colleges can use race as one factor in deciding which applicants to admit. Do you agree or disagree with this ruling?”
And 72 percent of those surveyed said they disagreed with the Court’s ruling, with only 24 percent agreeing. (Indeed, the only group that the station identified as having more supporters than critics of the Court’s decision was those with a graduate education, and among them by only 49 to 45 percent. This proves, by the way, that the more time you spend on today’s campuses, the worse your judgment becomes.)
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“Harvard Investigates Harvard” and a CEO Amicus Brief — Speaking of that upcoming trial, the Center for Equal Opportunity recently released a study discussing still more evidence that Harvard University is discriminating against Asian-American students in its undergraduate admissions. CEO released another study earlier this year discussing other evidence that both Harvard and MIT — but not Caltech — engage in such discrimination. Both studies can be found on CEO’s website.
The most recent study — “Harvard Investigates Harvard” — focuses on data and information largely drawn from the school’s own self-investigation by its Office of Institutional Research. That investigation was revealed in the course of ongoing litigation against Harvard for its discriminatory admissions.
I also want to mention the amicus brief filed recently against Harvard by Southeastern Legal Foundation, the Reason Foundation, and of course the Center for Equal Opportunity. It discusses, among other things, the two studies. (And kudos to the Department of Justice for the brief it filed at the same time against Harvard in the lawsuit.)
There is overwhelming evidence that Harvard uses racial preferences against Asian Americans, as the CEO studies and much other evidence show. And it should be borne in mind that, whether or not Harvard discriminates against Asian Americans vis-à-vis whites, it is essentially undisputed that “overrepresented” groups (e.g., Asian Americans and whites) are discriminated against vis-à-vis “underrepresented” groups (e.g., African Americans and Latinos). Therefore, Harvard’s use of racial preferences must pass “strict scrutiny” to be lawful, to quote from the Supreme Court’s jurisprudence.
That means, in turn, that Harvard must show that there are “compelling” educational benefits in using racial preferences against Asian Americans to limit their numbers and achieve greater student-body “diversity.” Each institution that uses racial preferences must make this showing; it cannot simply cite the Supreme Court’s 2003 decision in Grutter v. Bollinger, since the educational benefits of “diversity” will be different in, say, a graduate physics program than at a law school. In addition to producing evidence of those educational benefits, Harvard must also explain how those benefits are so compelling that they outweigh the obvious costs of discriminating against Asian Americans in this particular context (see list of these kinds of costs here). If the trial court finds that the discrimination is against Asian Americans vis-à-vis whites as well as vis-à-vis other nonwhite groups, it would be even harder to meet this first prong of strict scrutiny, because there will actually be less racial diversity in the student body as a result of the discrimination.
Finally, Harvard must show that using racial preferences against Asian Americans is “narrowly tailored” to achieving those compelling educational benefits. A key element of narrow tailoring is the consideration of race-neutral alternatives. Once again, Harvard’s own internal research indicates that this test is failed. And given the wide variety of racial and ethnic backgrounds in its applicants, Harvard could and should consider the perspectives and experiences of individual applicants without using race as a proxy for those perspectives and experiences. Here again, if the court finds that the discrimination is against Asian Americans vis-à-vis whites as well as vis-à-vis “underrepresented” nonwhite groups, strict scrutiny is even more difficult to pass.
Look at it this way: Harvard has been using racial preferences for at least 40 years: Justice Powell’s 1978 opinion in the Bakke case discusses them. Yet rather than phasing them out, as the Court in Grutter expected it would do, the principal change Harvard has made over the past 40 years is to dramatically ramp up their use against Asian Americans.
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“Are Asian Americans the New Jews?” — That’s the title of a discussion at the Heritage Foundation last week in which I was one of the panelists. The reference is to the Harvard case again, and in particular to the evidence that has been revealed that the school has set discriminatory quotas aimed at limiting the admission of Asian American students, in a way eerily similar to the anti-Jewish quotas it used to set.
You can watch the event here. My remarks start at the 0:20:45 mark, and I answer audience questions at the 1:00:45 and 1:07:25 marks.
