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    Trump administration sides with Asian American students in discrimination suit against Harvard

    Trump administration sides with Asian American students in discrimination suit against Harvard

    Harvard’s use of “a nebulous and entirely subjective ‘personal rating'” for applicants “has repeatedly penalized one particular racial group: Asian Americans”

    Harvard University discriminates against students of Asian ethnicity in admissions. That much is beyond doubt.

    Harvard is far from alone. Study after study have shown that Asian students need to outperform other students, particularly other non-white minorities, on standardized tests and grades in order to obtain admission.

    This is achieved through the use of “soft” factors in admissions decisions similar to those used to cap Jewish enrollment starting in the 1920s. Harvard pioneered the way in limiting Jewish enrollment much as it has pioneered the way in capping Asian enrollment.

    The use of these soft factors has been boosted by U.S. Supreme Court decisions upholding discrimination in the service of diversity. The argument is that diversity adds to the educational experience, so some discrimination to achieve that supposed educational end is permitted, as long as it’s not too blatant.

    A university is in large part defined by those intangible “qualities which are incapable of objective measurement but which make for greatness.” Sweatt v. Painter, 339 U. S. 629, 634 (1950). Considerable deference is owed to a university in defining those intangible characteristics, like student body diversity, that are central to its identity and educational mission. But still, it remains an enduring challenge to our Nation’s education system to reconcile the pursuit of diversity with the constitutional promise of equal treatment and dignity.

    In striking this sensitive balance, public universities, like the States themselves, can serve as “laboratories for experimentation.”… The University of Texas at Austin has a special opportunity to learn and to teach. The University now has at its disposal valuable data about the manner in which different approaches to admissions may foster diversity or instead dilute it. The University must continue to use this data to scrutinize the fairness of its admissions program; to assess whether changing demographics have undermined the need for a race-conscious policy; and to identify the effects, both positive and negative, of the affirmative-action measures it deems necessary

    In the past 30 or so years, Asian students have been sacrificed by elite universities at this altar of diversity, and the US Supreme Court has sanctioned this racial discrimination. Shameful.

    Asian American students sued Harvard for discrimination and Harvard defended the case through trial arguing that its discrimination using soft factors was lawful. The trial judge, in a travesty, agreed with Harvard (emphasis added):

    Plaintiff Students for Fair Admissions, Inc. (“SFFA”) alleges that Defendant President and Fellows of Harvard College (“Harvard”) discriminates against Asian American applicants in the undergraduate admissions process to Harvard College in violation of Title VI of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000d et seq. (“Title VI”).1 Harvard acknowledges that its undergraduate admissions process considers race as one factor among many, but claims that its use of race is consistent with applicable law.

    * * *

    … For purposes of this case, at least for now, ensuring diversity at Harvard relies, in part, on race conscious admissions. Harvard’s admission program passes constitutional muster in that it satisfies the dictates of strict scrutiny. The students who are admitted to Harvard and choose to attend will live and learn surrounded by all sorts of people, with all sorts of experiences, beliefs and talents. They will have the opportunity to know and understand one another beyond race, as whole individuals with unique histories and experiences. It is this, at Harvard and elsewhere that will move us, one day, to the point where we see that race is a fact, but not the defining fact and not the fact that tells us what is important, but we are not there yet. Until we are, race conscious admissions programs that survive strict scrutiny will have an important place in society and help ensure that colleges and universities can offer a diverse atmosphere that fosters learning, improves scholarship, and encourages mutual respect and understanding.

    The case now is on appeal. The U.S. Department of Justice has recently filed an Amicus Brief to put its position before the appeals court even though it is not a party. DOJ sided with the Asian students. The entire Brief is worth a read.

    The Introduction lays out the case in summary as to why Harvard’s racial manipulation is unlawful, and the District Court was in error in excusing Harvard’s discrimination:

    As Harvard undisputedly considers applicants’ race when selecting its incoming freshman class, it bore the burden at trial of proving that its consideration of race in the admissions process is narrowly tailored to a cognizable compelling interest. Yet the unvarnished record shows that Harvard’s use of race is hardly tailored at all.

    The trial record established that Harvard actively engages in racial balancing that Supreme Court precedent flatly forbids. Indeed, the racial composition of Harvard’s admitted class is strikingly stable from year to year. That result is no accident. The school considers applicants’ race at virtually every step, from rating applicants to winnowing the field of applicants when attempting to avoid an oversubscribed class. And its inclusion of race in the analysis frequently makes a dispositive difference. The district court found that Harvard’s use of race was “determinative” for “approximately 45% of all admitted African American and Hispanic applicants.” ADD84. Moreover, Harvard meticulously tracks and shapes the racial makeup of its emerging incoming class throughout the process, continuously comparing the new class’s racial composition with that of the previous year. This overt engineering of racial stasis bears no resemblance to the flexible, nonmechanical “plus” factor that the Supreme Court’s cases to date have permitted.

    The evidence also showed that Harvard’s process has repeatedly penalized one particular racial group: Asian Americans. Indeed, Harvard concedes that eliminating consideration of race would increase Asian-American admissions while decreasing those of Harvard’s favored racial groups. The resulting racial penalty stems in part from one component of Harvard’s admissions rubric—a nebulous and entirely subjective “personal rating”—that consistently and inexplicably produces poorer scores for Asian Americans than for other applicants. That disparity is undisputed, and unexplained. Harvard bore, but did not carry, the burden of proving that this disparity is not the product of racial discrimination. As the district court observed, based on the trial record, one could not rule out racial discrimination as the source.

    Despite highlighting various holes in Harvard’s evidence, the district court credited the school’s assurances that it does not employ racial biases in the personal rating, and gave the school the benefit of the doubt when the experts’ analyses conflicted. But strict scrutiny demanded much more. Faced with the results of Harvard’s process—a barely fluctuating racial composition and less favorable evaluations of Asian Americans—and the mechanisms that produced them, the court should have put Harvard to its proof. And even if the parties’ evidence were in equipoise, a tie should have gone to the plaintiff, not to Harvard. On this record, the court should have found that Harvard’s failure to demonstrate affirmatively that its admissions process meets the Supreme Court’s stringent criteria was fatal.

    The wisdom of race-based admissions policies like Harvard’s is subject to vigorous debate. But Title VI and Supreme Court precedent impose limitations on Harvard’s ability to consider race in its admissions process—limitations that Harvard has not respected. It now falls to this Court to enforce these limitations and reverse the district court’s judgment.

    Harvard Hates America, wrote John LeBoutillier in 1978. He was talking about the elitest attitude that looked down on the rest of the country. Perhaps a more modern configuration would be “Harvard Hates Asian America.”


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    Barry Soetoro | February 27, 2020 at 11:56 pm

    “This [limiting Asian enrollment] is achieved through the use of “soft” factors in admissions decisions similar to those used to cap Jewish enrollment starting in the 1920s. Harvard pioneered the way in limiting Jewish enrollment much as it has pioneered the way in capping Asian enrollment.”

    Fake history. Since the early 20th century Jews have been (and continue to be) overrepresented at Harvard: (Jews currently comprise 29% of Harvard’s student population)

      William A. Jacobson in reply to Barry Soetoro. | February 28, 2020 at 12:36 am Read some history: “Institutional discrimination against Jewish applicants to Harvard took place under the administration of former University President Abbott Lawrence Lowell, who introduced an early system of “holistic” admissions at the College in the 1920s that took into account non-academic factors.

      As part of his admissions reforms, Lowell attempted to institute quotas limiting Jewish admit rates to the College. Lowell’s attempt failed, but Harvard’s new admissions process was still used to restrict the number of Jewish students at the school without the use of hard quotas.”

        Barry Soetoro in reply to William A. Jacobson. | February 28, 2020 at 1:00 am

        “A 1923 proposal by President A. Lawrence Lowell that Jews be limited to 15% of undergraduates was rejected, but Lowell did ban blacks from Harvard Yard, writing that “forcing” blacks and whites to live together “would increase a prejudice that … is most unfortunate and probably growing.””

        It appears an attempt to limit Jewish enrollment in the ’20s to 15% was not adopted. When did Jews ever comprise 15% of the US population? I understand a policy subsequently adopted to give preference to geographic diversity eventually reduced Jewish enrollment down to 15%, but you’re not going to denigrate diversity, are you? Arguing that a ethnic demographic is entitled to gross overrepresentation in enrollment smacks of ethnic supremacism.

          alaskabob in reply to Barry Soetoro. | February 28, 2020 at 2:55 am

          “Entitled”? I understand diversity….admit students who can scrape by with C’s and D’s so that A’s aren’t over-represented. College as affirmative action making up for bad high schools or as true challenges to educate the best and brightest?

            rabidfox in reply to alaskabob. | February 28, 2020 at 3:02 pm

            Why is diversity always based on race? There is cultural diversity as well – ex: son/daughter of a W.VA coal miner comes from as divers a culture as the son/daughter of a black lawyer. Same with children of first generation immigrants, etc. But all this ‘diversity’ nonsense is racially based.

    herm2416 | February 28, 2020 at 7:49 am

    The last time I looked, Asian was an ethnicity, and not a race.
    Has that changed?

    rhhardin | February 28, 2020 at 8:06 am

    If you go on smarts only, you get normal Asians, exceptional whites and no blacks.

    ScottTheEngineer | February 28, 2020 at 11:46 am

    Allowing or dissalowing someone to attend a school based on a characteristic they have no control over is blatant racism.

    The only determinitive factor would be just how racist hey are.

    Diversity is bullshit. I’m smrter then y’all cause I went to class with 2 Jews, a negro 5 honkys and a chink.
    Its disgusting.

    Albigensian | February 28, 2020 at 12:52 pm

    Harvard, it seems, knows what all of us (although we might not admit it, let alone publicly declare it) know: that some are just more diverse and others are less diverse, and therefore to achieve diversity one must favor the diverse over the non-diverse.

    For at least it’s still possible to publicly say such things without fear of civil or criminal liability. To see where this is going, you really should read and understand “Must We Defend Nazis: Why the First Amendment Should Not Protect Hate Speech and White Supremacy” by Richard Delgado and Jean Stefancic. It’s just $1.99 for the Kindle edition, and reading it is an education on where some insist “diversity” must go.

    Within this work the authors argue that snce speech can have devastating effects (e.g. high blood pressure, strokes) therefore laws making “hate speech” a crime would not violate First Amendment. But until U.S. courts recognize this (Hello, Bernie?) there should be at least civil liability for “hate speech.”

    Unfortunately Richard Delgado is not some streetcorner-preacher crank, he teaches civil rights and critical race theory at University of Alabama School of Law. The co-author is his wife.

    So, if you still believe the law should be race-neutral (were you not warned that this belief is racist?) you’d best say so while you still can. Even if (for now) such speech is merely more evidence of Trump’s racism.

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