On Students for Fair Admissions v. Harvard College and racial preferences in college admissions.
On September 30, a federal district court judge in Boston upheld Harvard’s use of racial preferences in undergraduate admissions against the challenge that they discriminate against Asian-Americans. The case—Students for Fair Admissions v. Harvard College—will likely be appealed to the Supreme Court, the fifth time since 1978 that the Court has been asked to rule on racial admissions preferences. The Court should accept the appeal and, for the sake of its own institutional integrity, throw out its entire jurisprudence regarding college admissions. Pro-preference jurisprudence is an abomination, filled with patent fictions, logical contradictions, and vast gusts of rhetorical vapidity that should make any self-respecting jurist weep with despair. Its only purpose has been to paper over the vast academic skills gap between black students, on the one hand, and white and Asian students, on the other. In so doing, court doctrine has perpetuated the very problems it purports to solve.
Students for Fair Admissions’s suit against Harvard presented a new twist on anti-preference litigation: rather than arguing that Harvard’s preferences discriminate against whites in favor of blacks, sffa argued that Harvard discriminates against Asians in favor of whites. This shift reflected both reality and legal strategy. Asian students everywhere are the most penalized when meritocratic admissions are scrapped for a race-based system, since their academic qualifications surpass those of all other racial and ethnic groups.
But litigation calculus also influenced the changed focus. SFFA v. Harvard was filed in 2014, when Justice Anthony Kennedy was still on the Supreme Court. Kennedy had been a pivotal vote for upholding racial preferences. If sffa’s attorneys could convince him that his pro-preference jurisprudence was now harming Asians—themselves a minority and thus part of the student “diversity” that preferences were supposed to enable—they would have a better chance of persuading him to reverse that jurisprudence, their thinking went. And using whites, rather than blacks, as the benchmark for anti-Asian discrimination avoided the appearance of pitting one minority group against another, a charge which left-wing preference supporters routinely make.
This calculation may have backfired. Regardless, winning any anti-preference challenge under current precedent has become virtually impossible.
Heather Mac Donald is the Thomas W. Smith fellow at the Manhattan Institute, contributing editor at City Journal, and the author of the bestselling War on Cops and The Diversity Delusion (available now). Follow her on Twitter here.
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