The principle of equal treatment without regard to race is one that is close to my heart. Accordingly, one of my favorite books on a legal subject is Andrew Kull’s The Color-Blind Constitution. (I learned of the book at the time of its publication through Judge Alex Kosinski’s 1993 New Republic review/essay.) It is a book that is by turns inspiring and maddening. I recommend it without reservation to readers interested in the subject.
The principle of equal treatment was adopted as the law of the land in the great civil rights legislation of 1964 and 1965, or so we foolishly thought at the time. It may even have been the law for a minute or two. Then the federal government began building the whole edifice of affirmative action and racial preferences that we live with today and that has been addressed by the Supreme Court in a number of important cases. Certainly insofar as higher education is concerned, the affirmative action regime and the treatment of students based on the color of their skin are entrenched more deeply than ever under the shibboleth of “diversity.”
One of the lessons of Kull’s great book is that the Supreme Court reserves for the judiciary the discretion to approve varieties of racial discrimination. The ideal of the color-blind Constitution remains permanently on the horizon. Kull’s book essentially anticipates the Supreme Court’s ultimate approval of the University of Texas’s “affirmative action” program in the Fisher case on its second trip to the Court last year. I thought the result in Fisher disappointing, if not farcical, but unsurprising. To adapt a phrase from George Wallace, affirmative action today, affirmative action tomorrow, affirmative action forever.
One of the unlovely side effects of the affirmative action regime is its discriminatory treatment of “Asian” students. The effects, which can be seen by comparison with universities that do not discriminate by race, are gross.
Disappointed Princeton applicant Jian Li filed a claim of discrimination against Princeton in 2006 that was resolved against him in 2015. “Mr. Li,” Jason Riley writes in yesterday’s Wall Street Journal, “had a perfect score on the SAT and graduated in the top 1% of his high school class.”
Li, incidentally, ended up at Yale. The Yale Daily News covered Li’s 2006 claim against Princeton in an article that provides more background here. The YDN article notes: “Li said his case is based on a study of admissions processes published by three Princeton researchers in 2004, which found that while elite universities gave African-American applicants an advantage equivalent to 230 extra SAT points and Hispanic applicants 185 points while making admissions decisions, the schools placed Asian-Americans at a disadvantage equal to a loss of 50 SAT points.”
Now Edward Blum of Students for Fair Admissions is awaiting the second batch of documents collected by the Department of Education in the course of investigating Li’s claim. The documents are to be released to him under the Freedom of Information Act. The documents, however, reveal secrets that Princeton would prefer to keep swept under the rug. Princeton has therefore sued the department to prevent their disclosure. Politico reports on the lawsuit here.
“The suit argues that the material being sought is exempt from FOIA,” Riley explains, “a claim that the government has rejected. The school also maintains that releasing the data would compromise student privacy [clearly unwarranted invasion of personal privacy makes out a FOIA exemption], and it likened its admissions process to ‘trade secrets’ [another FOIA exemption] that, if exposed, would put Princeton at a competitive disadvantage in attracting students.”
Oh, what a tangled web we weave.