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The Empire of Racial Preferences Strikes Back
Even if the Supreme Court rules against using race in college admissions, some schools plan to ignore it.
https://www.wsj.com/articles/the-em...fourth-circuit-tj-affirmative-action-193ed060
[archive link: https://archive.is/9c80h]
Willaim McGurn (29 May 2023)
[bold emphasis added - OB]
Any day now, the Supreme Court will issue landmark rulings on the constitutionality and statutory compliance of using racial preferences in college admissions. And already the empire is fighting back.
No place is more institutionally invested in using race to determine outcomes than our college campuses. The betting is that the high court will come down against what the chief justice once called the “sordid business” of “divvying us up by race.” But the universities are even now planning work-arounds that will allow them to continue to do what they’ve been doing—albeit in a sneakier way.
The two cases involve a private school, Harvard, and a public one, the University of North Carolina. Students for Fair Admissions sued both, claiming Harvard discriminated against Asian-American applicants and UNC discriminated against both Asians and whites. When the court took the case, Laurence Tribe told the Harvard Crimson that even if the university lost, not much would change.
“Universities as intelligent as Harvard will find ways of dealing with the decision without radically altering their composition,” the Harvard Law professor emeritus told the Crimson. “But they will have to be more subtle than they have been thus far.”
David Bernstein, a law professor at George Mason University, agrees. “Some universities will just keep doing what they do until they get sued,” he told the Daily Caller, “especially because there’s not much of a likelihood that any individual university will get sued, unless they announce publicly that they are refusing to comply with a Supreme Court’s opinion.”
The first hint of defiance comes from the Fourth U.S. Circuit Court of Appeals in a case involving Thomas Jefferson High School for Science and Technology. The Fairfax County, Va., magnet school has regularly been ranked top in the nation. But its school board had a problem: The merit-based entrance system produced a student body that was almost three quarters Asian-American—while the percentage of African-American students was too tiny to report.
The school board’s answer in 2020 was to do away with the entrance exam, cap the number of students from schools that had historically sent the most students to TJ while setting aside seats for 1.5% of every eighth-grade class so that students from less successful schools would be admitted. It worked as planned: Asian-Americans dropped from 73% of the student body to 54%, making room for every other group—whites, blacks and Latinos—to increase its numbers.
Parents and concerned members of the community formed the Coalition for TJ and, with the help of the Pacific Legal Foundation, sued. They were initially successful. In February 2022, Judge Claude Hilton of the U.S. District Court in Alexandria ruled that TJ had engaged in forbidden racial balancing. But last week a divided Fourth Circuit panel overturned Judge Hilton’s ruling.
Coalition for TJ v. Fairfax County is about finding a facially neutral proxy for race. National Review’s Ed Whelan notes that the opinions here will likely prove the new battle lines over racial diversity if the Supreme Court rules as expected. In his concurrence, Judge Robert King wrote that Coalition for TJ failed to show an intent to discriminate against Asian-Americans, even if the board knew its changes would cause Asian enrollment to fall. In her dissent, Judge Allison Jones Rushing detailed the “undisputed contemporaneous evidence” to the contrary.
Legal arguments aside, it’s notable how many are willing to sanction discrimination against people whose only sin is to have worked hard and achieved. It’s illuminating too that some of the loudest voices against anti-Asian hate go silent when, say, a Korean-American woman doesn’t get the medical school slot she earned because the school believes it already has too many Asians.
Unlike the Jim Crow South, moreover, this new discrimination isn’t pushed by ignorant rednecks. It emanates from the privileged ramparts of our most elite universities, and is embraced by those who consider themselves paragons of enlightened thinking.
Again we saw this in Virginia, where the state Senate denied Suparna Dutta—an India-born, Hindu woman of color—a seat on the Virginia Board of Education after Democrat Sen. Ghazala Hashmi alleged she was in cahoots with “white supremacists.” Ms. Dutta’s real sin was to advocate merit and to be a co-founder of the Coalition for TJ. The flip side to the new discrimination is the ugly and unspoken conclusion that African-Americans can’t achieve, so the answer is to hide or play down any measures of achievement.
As Judge Hilton noted during the TJ case, “You can say all sorts of beautiful things while you’re doing others.”
Perhaps the Supreme Court will remand the Fourth Circuit’s decision for reconsideration after its Harvard and North Carolina rulings. But if the justices really want to end discrimination against Asian-Americans and restore the ideal of a color-blind society, they will recognize that their rulings here are only the opening skirmish.
The Empire of Racial Preferences Strikes Back
Even if the Supreme Court rules against using race in college admissions, some schools plan to ignore it.
https://www.wsj.com/articles/the-em...fourth-circuit-tj-affirmative-action-193ed060
[archive link: https://archive.is/9c80h]
Willaim McGurn (29 May 2023)
[bold emphasis added - OB]
Any day now, the Supreme Court will issue landmark rulings on the constitutionality and statutory compliance of using racial preferences in college admissions. And already the empire is fighting back.
No place is more institutionally invested in using race to determine outcomes than our college campuses. The betting is that the high court will come down against what the chief justice once called the “sordid business” of “divvying us up by race.” But the universities are even now planning work-arounds that will allow them to continue to do what they’ve been doing—albeit in a sneakier way.
The two cases involve a private school, Harvard, and a public one, the University of North Carolina. Students for Fair Admissions sued both, claiming Harvard discriminated against Asian-American applicants and UNC discriminated against both Asians and whites. When the court took the case, Laurence Tribe told the Harvard Crimson that even if the university lost, not much would change.
“Universities as intelligent as Harvard will find ways of dealing with the decision without radically altering their composition,” the Harvard Law professor emeritus told the Crimson. “But they will have to be more subtle than they have been thus far.”
David Bernstein, a law professor at George Mason University, agrees. “Some universities will just keep doing what they do until they get sued,” he told the Daily Caller, “especially because there’s not much of a likelihood that any individual university will get sued, unless they announce publicly that they are refusing to comply with a Supreme Court’s opinion.”
The first hint of defiance comes from the Fourth U.S. Circuit Court of Appeals in a case involving Thomas Jefferson High School for Science and Technology. The Fairfax County, Va., magnet school has regularly been ranked top in the nation. But its school board had a problem: The merit-based entrance system produced a student body that was almost three quarters Asian-American—while the percentage of African-American students was too tiny to report.
The school board’s answer in 2020 was to do away with the entrance exam, cap the number of students from schools that had historically sent the most students to TJ while setting aside seats for 1.5% of every eighth-grade class so that students from less successful schools would be admitted. It worked as planned: Asian-Americans dropped from 73% of the student body to 54%, making room for every other group—whites, blacks and Latinos—to increase its numbers.
Parents and concerned members of the community formed the Coalition for TJ and, with the help of the Pacific Legal Foundation, sued. They were initially successful. In February 2022, Judge Claude Hilton of the U.S. District Court in Alexandria ruled that TJ had engaged in forbidden racial balancing. But last week a divided Fourth Circuit panel overturned Judge Hilton’s ruling.
Coalition for TJ v. Fairfax County is about finding a facially neutral proxy for race. National Review’s Ed Whelan notes that the opinions here will likely prove the new battle lines over racial diversity if the Supreme Court rules as expected. In his concurrence, Judge Robert King wrote that Coalition for TJ failed to show an intent to discriminate against Asian-Americans, even if the board knew its changes would cause Asian enrollment to fall. In her dissent, Judge Allison Jones Rushing detailed the “undisputed contemporaneous evidence” to the contrary.
Legal arguments aside, it’s notable how many are willing to sanction discrimination against people whose only sin is to have worked hard and achieved. It’s illuminating too that some of the loudest voices against anti-Asian hate go silent when, say, a Korean-American woman doesn’t get the medical school slot she earned because the school believes it already has too many Asians.
Unlike the Jim Crow South, moreover, this new discrimination isn’t pushed by ignorant rednecks. It emanates from the privileged ramparts of our most elite universities, and is embraced by those who consider themselves paragons of enlightened thinking.
Again we saw this in Virginia, where the state Senate denied Suparna Dutta—an India-born, Hindu woman of color—a seat on the Virginia Board of Education after Democrat Sen. Ghazala Hashmi alleged she was in cahoots with “white supremacists.” Ms. Dutta’s real sin was to advocate merit and to be a co-founder of the Coalition for TJ. The flip side to the new discrimination is the ugly and unspoken conclusion that African-Americans can’t achieve, so the answer is to hide or play down any measures of achievement.
As Judge Hilton noted during the TJ case, “You can say all sorts of beautiful things while you’re doing others.”
Perhaps the Supreme Court will remand the Fourth Circuit’s decision for reconsideration after its Harvard and North Carolina rulings. But if the justices really want to end discrimination against Asian-Americans and restore the ideal of a color-blind society, they will recognize that their rulings here are only the opening skirmish.
