The Latest Case Against Racial Preferences

Lawsuits against college admissions based on race continue to be brought. That’s because it is a divisive, ludicrous, illegal policy to separate students based on their ancestry (sometimes even imagined ancestry) to give some a leg up and others a millstone around the neck.

Although the University of Texas managed to squeak by with Supreme Court approval in the Fisher case, a new suit (brought by Students for Fair Admissions) against Harvard may have a better chance of success. In today’s Martin Center article, Terry Eastland of the Center for Equal Opportunity writes about it.

Under Title VI of the Civil Rights Act of 1964, recipients of federal funds may not discriminate on the basis of race in its programs. Harvard is a recipient, and SFFA contends that Harvard’s admissions program has racially discriminated against Asian-American applicants. The trial is scheduled for October 15, and the case will likely reach the Supreme Court — where Harvard’s preferential admissions policies will reach “a termination point.” At least we can hope so.

Harvard is treating Asian applicants the same way it used to treat Jewish students — it doesn’t want “too many” of them.

Of course, Harvard claims that it must discriminate against highly qualified Asians lest it lose “diversity.” Too bad that Justice Lewis Powell opened that door in his opinion in Bakke in 1978. Ever since, colleges and universities have been pleading that they will lose important “educational benefits” if they can’t racially mix their student bodies and have a “critical mass” of each group. Those arguments are feeble and maybe this time they will get some real scrutiny.

On the “critical mass” issue, Eastland writes,

Its vagueness has been a problem. It would seem to involve a numerical definition. Yet higher educators are reluctant to address the “mystical critical mass,” as Justice Scalia once called it. In the first round of the Fisher case, Chief Justice Roberts asked the defendant’s lawyer what critical mass the university was “working toward,” only to be told, “we don’t have one.”

Buttressing the SFFA suit is a recent study by Althea Nagai for the Center for Equal Opportunity. In it, she found heavy racial preferences at Harvard and MIT, but none at Cal Tech. Do Cal Tech students suffer educationally for the supposed lack of diversity on their campus? It’s laughable.

Eastland concludes,

Harvard is digging in its heels against SFFA: Last week President Drew Faust emailed a letter to alumni to declare the school’s commitment to diversity and intention to defend it. Really though, it’s past time for Harvard to stop discriminating and consider applicants as individuals, not as group representatives.

Or if Harvard really wants to keep discriminating, it could just stop accepting federal money. How about it?

George Leef — George Leef is the director of research for the John William Pope Center for Higher Education Policy.

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