by Mitch Kokai
Senior Political Analyst, John Locke Foundation
Roger Clegg writes for the Martin Center about a judge’s decision in a lawsuit targeting Harvard’s admissions policy.
In a long-awaited decision, federal trial judge Allison Burroughs has ruled that, while Harvard does consider a student’s race in determining who gets in and who doesn’t (“the use of race in and of itself is admitted”), nonetheless Harvard is not breaking the law.
That outcome was not surprising, and the judge’s opinion is unlikely to change many minds or alter the case’s expected trajectory to the Supreme Court.
Judge Burroughs found that “Race is only intentionally considered as a positive attribute.” But if race is a positive attribute for favored groups, then does it not follow that it is a negative attribute for everyone else? Well, yes, she admits about 100 pages later, writing, “Race conscious admissions will always penalize to some extent groups that are not being advantaged by the process.” Sure, there is discrimination against Asian Americans, but it isn’t “undu[e]” or “disproportionate.”
Here’s a sociopolitical reality: If it’s legally accepted that racial discrimination in admissions is permissible if you do A-B-C and do not do 1-2-3, then universities will make those claims. And so Judge Burroughs explains at great length why she accepts Harvard’s assertions that its discrimination is “narrowly tailored” (A-B-C) and that she is persuaded by the school that its discrimination is not anti-Asian (vis-a-vis whites, 1-2-3) but is only pro-diversity.
I believe she’s wrong in concluding that our law permits group discrimination as long as it doesn’t hurt disfavored groups “unduly.” The Civil Rights Act in particular and the 14thAmendment weren’t written that way. But Harvard drew one of the judges who reads the Supreme Court’s dubious jurisprudence to conclude that they were.