Students for Fair Admissions (SFFA), the plaintiff in a lawsuit alleging that Harvard discriminates against Asian-American applicants, has filed a petition for certiorari to U.S. Supreme Court in its case against the school. A liberal district court judge ruled in favor of Harvard and a liberal court of appeals panel affirmed that ruling.
Perhaps the non-liberal Supreme Court will take the case and rule against Harvard, whose discrimination against Asian-Americans is obvious.
Here is how SFFA’s cert petition opens:
“It is a sordid business, this divvying us up by race.” League of United Latin Am. Citizens v. Perry, 548 U.S. 399, 511 (2006) (Roberts, C.J., concurring in part, concurring in the judgment in part, and dissenting in part). “‘[D]iscrimination on the basis of race is illegal, immoral, unconstitutional, inherently wrong, and destructive of democratic society.’” City of Richmond v. J.A. Croson Co., 488 U.S. 469, 521 (1989) (Scalia, J., concurring in the judgment). “‘[E]very time the government places citizens on racial registers and makes race relevant to the provision of burdens or benefits, it demeans us all.’” Fisher v. Univ. of Tex. at Austin (Fisher I), 570 U.S. 297, 316 (2013) (Thomas, J., concurring).
“Our nation gave its word over and over again: it promised in every document of more than two centuries of history that all persons shall be treated Equally.” Price v. Civil Serv. Comm’n, 604 P.2d 1365, 1390 (Cal. 1980) (Mosk, J., dissenting). “Our constitution,” as Justice Harlan recognized, “is color-blind, and neither knows nor tolerates classes among citizens.” Plessy v. Ferguson, 163 U.S. 537, 559 (1896) (dissent).
The Court vindicated the promise of equality in Brown v. Board of Education, 347 U.S. 483 (1954), rejecting “‘any authority … to use race as a factor in affording educational opportunities.’” Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 551 U.S. 701, 747 (2007). Ten years later, Congress passed Title VI of the Civil Rights Act to extend Brown’s command to private universities that accept federal funds.
Yet Grutter v. Bollinger, 539 U.S. 390 (2003), abandoned the principle of racial neutrality that Brown and Title VI vindicated. Grutter did so by improperly affording broad deference to university administrators to pursue a diversity interest that is far from compelling. To this end, Grutter endorsed racial objectives that are amorphous and unmeasurable and thus incapable of narrow tailoring. Unsurprisingly then, universities have used Grutter as a license to engage in outright racial balancing. This case shows that judicial scrutiny under Grutter is anything but strict.
But given Harvard’s flagrant violations of Title VI, it fails strict scrutiny even under Grutter. Harvard’s mistreatment of Asian-American applicants is appalling. Harvard penalizes them because, according to its admissions office, they lack leadership and confidence and are less likable and kind. This is reason enough to grant review. That Harvard engages in racial balancing and ignores race-neutral alternatives also proves that Harvard does not use race as a last resort. All of this makes intervention that much more urgent. . . .
SFFA has also filed a federal lawsuit challenging Yale’s discriminatory admissions policy. Last Fall, it attempted to intervene in a suit by the Justice Department alleging that Yale’s admissions practices discriminate against Asian-American and White applicants. That request was denied.
This month, the Biden Justice Department withdrew the suit against Yale. Fortunately, SFFA has stepped into the breach with a lawsuit of its own.
The Harvard and Yale suits attempt to uphold a fundamental proposition — one that shouldn’t be subject to dispute. As Edward Blum, SFFA’s president puts it: “Students applying to undergraduate and post-graduate programs should be judged on their individual talents, character, academic skills, extra-curricular achievements and socio-economic background but not the color of their skin.”
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