Affirmative action forever, Harvard edition

Federal district court judge Allison Burroughs has upheld Harvard’s racially discriminatory admissions policy in Students for Fair Admissions v. Harvard (embedded below). Long story short: Harvard’s discrimination is all in a good cause. Asian-Americans are only incidental victims and they aren’t treated any more poorly in the process than white students. Harvard doesn’t mean anything invidious by it.

The AP story on the ruling is here. Stuart Taylor, Jr.’s 2018 Weekly Standard article on the case is the one to read. In its own way this is an egregious case.

I have observed several times previously that 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. It is a book that is by turns inspiring and maddening. I recommend it without reservation to readers interested in the subject.

The book is full of surprises. For example, Kull devotes two chapters to the separate but equal doctrine approved by the Supreme Court in the 1896 case of Plessy v. Ferguson. The case represents the bygone era of Jim Crow, yet at the outset of his discussion of the case Professor Kull makes this astounding observation: “The majority opinion in Plessy makes a comfortable target, and it is routinely vilified. But in its broad holding, as opposed to its particular application, Plessy has never been overruled, even by implication. On the contrary, it announced what has remained ever since the stated view of a majority of the Supreme Court as to the constitutionality of laws that classify by race.”

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 wants to retain for the judiciary the discretion and authority to approve varieties of racial discrimination. The ideal of the color-blind Constitution remains permanently on the horizon. To paraphrase George Wallace, affirmative action today, affirmative action tomorrow, affirmative action forever.

The court’s opinion makes for painful reading. In the annals of self-impressed self-delusion, this statement stands out as some kind of a classic (page 129): “The rich diversity at Harvard and other colleges and universities and the benefits that flow from that diversity will foster the tolerance, acceptance and understanding that will ultimately make race conscious admissions obsolete.”

Quotable quote (page 83): “[N]o workable race-neutral alternatives will currently permit Harvard to achieve the level of racial diversity it has credibly found necessary for its educational mission.”

gov.uscourts.mad.165519.672.0_2 by Scott Johnson on Scribd

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