Will President Biden Flinch in the Harvard Admissions Case?

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The New York Sun

Before the Supreme Court decides on whether to hear the affirmative action case against Harvard, the Nine are awaiting word on what the United States is going to do. Will President Biden do an about-face from America’s past support for Asian-American students alleging discrimination in Harvard’s admissions process? If so, how will Mr. Biden square that volte-face with his own promise to “combat racism, xenophobia, and intolerance against Asian Americans”?

Students for Fair Admissions says Harvard’s race-conscious admissions system has been “penalizing Asian-American applicants,” in violation of their civil rights. In prior court filings, lawyers representing America agreed. Fair Admissions wants the Supreme Court to overturn its 2003 ruling allowing universities to use applicants’ race “as a factor in admissions.” Harvard’s own Law Review points to critics calling the lawsuit “a wolf in sheep’s clothing — an attempt to invalidate affirmative action in the guise of preventing discrimination.”

So far in the courts, Fair Admissions has fared poorly, chalking up defeats at the district court and with judges who ride the First United States Appeals Circuit. Yet their case has smoked out what they call “astonishing racial disparities” in Harvard’s admissions process. Consider admission rates for applicants in the top academic tier: For African-Americans, it’s 56.1 percent. For Hispanics, it’s 31.3 percent — yet it is only 12.7 percent for Asians, Fair Admissions’ lawyers report.

Is this, at least in part, the kind of discrimination Mr. Biden had in mind when he denounced anti-Asian sentiments generally? “We cannot be complicit,” he insisted. “We have to speak out. We have to act.” He directed the Justice Department to work with state and local agencies, along with Asian-American and Pacific Islander communities, “to prevent discrimination, bullying, harassment, and hate crimes against AAPI individuals.” What Mr. Biden means by that is unclear, pending the Solicitor General’s filing.

Under President Trump, the United States supported Fair Admissions at both stages of its lawsuit. Civil rights law “forbids schools that receive federal assistance from discriminating based on race,” the Justice Department argued, and the “result of Harvard’s efforts to benefit African Americans and Hispanics” in admissions “has been to impose a racial penalty on Asian Americans.” Fair Admissions likens discrimination against Asian-Americans to anti-Jewish measures at top universities a century ago.

In 1922, “right in the midst of the argument over immigration and Henry Ford’s propagation of the ‘Protocols’ plot,” as it was put by sociologist E. Digby Baltzell, Harvard’s president, A. Lawrence Lowell, proposed the adoption of “a quota system in order to solve the ‘Jewish Problem.’” Lowell was following the lead set by Nicholas Murray Butler, who had just succeeded in reducing “the proportion of Jews at Columbia from 40 to around 20 per cent within two years.”

Yet Fair Admissions says the tools Harvard formerly used to limit the number of Jews in its student body have been turned against Asian-Americans. These include, say, considering applicants’ non-academic qualities — “character and personality” and “interests and activities” — to create “a holistic admissions system.” Today, Harvard’s “personal rating” serves, as SFFA sees it, “to evaluate Asian-American applicants based on prejudicial assumptions and stereotypical characteristics,” with the goal of “reducing the admissions of Asian-Americans.”

That argument failed at the First Circuit, where the riders reckoned Fair Admissions did not prove Harvard acted “with animus” or “stereotyped thinking.” There’s a streak in us that favors the courts getting off Harvard’s back. Yet Fair Admissions has adduced breathtaking evidence that deserves a hearing by the Nine. We like the way Chief Justice Roberts put it when he once said, “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”

The New York Sun

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