Blog Ipsa Loquitur

Elie Mystal, writing at Above the Law: Asian-American Affirmative-Action Lawsuit Against Harvard Has Always Been On Behalf Of Mediocre White People

Harvard University almost certainly discriminates against Asian-American applicants in a number of ways. Foremost is the fact that because so many Asian-Americans have absolutely outstanding test scores, good luck getting in if you don’t. If there is an abundance of “crazy rich Asians” with perfect SAT or ACT scores, don’t try being the Vietnamese-American whose parents were refugees who merely scored in the top 15th percentile while working two jobs and helping your parents with rent. Best hit up Rutgers if you didn’t make the mathlete team.

You can tell [anti-affirmative action activist Ed] Blum’s lawsuit is disingenuous, because it — and the media coverage of it — is hyper-focused on “ending” affirmative-action and calling into question “race-based preferences.” It’s looking at only one prong of Bakke and trying to gut it.

The legal underpinning of affirmative-action in college admissions rests on two straight-forward principles. The Supreme Court case, Regents of the Univ. of Cal. v. Bakke, held that colleges and universities could use race as “one factor among many” in their admissions process, and that colleges and universities could not use a quota system to fill their classes.

Blum’s argument goes something like this: One, the population of Asian Americans has increased by 72% since the turn of the millennium. Two, the population of Asian American students admitted to Harvard has stayed more or less flat since then, even while the applicant pool becomes steadily more Asian. At this point, something like 43% of Harvard applications are Asian, but only 20% of the class is Asian. Three, this means Harvard is imposing a quota on Asian students.

And as Mystal points out, Ed Blum is probably right. The Supreme Court said “yeah, affirmative action is Constitutional, just don’t set up a quota system” and now Harvard sure looks like it’s got a quota system. Harvard’s policy probably ought to change. But make no mistake: Blum isn’t hoping to get Harvard’s admissions policy tossed out. He’s arguing that Harvard shouldn’t be taking race into account at all, and he aims to get Bakke overturned. As the Supreme Court has taken a rather hard right turn in the intervening years, there’s a non-zero chance we see affirmative action end up severely weakened.

Of course, if Blum does succeed in his lawsuit, he might not like the results. Let’s all take a second to appreciate one of my favorite headlines of all time “White People Think College Admissions Should Be Based on Test Scores, Except When They Learn Asians Score Better Than Whites.” Without that (again, probably unconstitutional) quota system that Harvard’s got, there are going to be fewer white kids at Harvard, not more.

I joke, but Mystal astutely observes this is about more than a few solid students rejected by Harvard because of a quota:

Blum does not want 43 percent of the Harvard class to be made up of Asian-American students. Instead, he wants Harvard to stop using race as one factor among many, but to keep using all the other non-academic factors. There’s no Ed Blum lawsuit trying to get Harvard to stop using legacies as a factor in admissions, there’s no lawsuit trying to get Duke to stop using a fundamentally sound jump-shot as a factor in admissions, there’s no lawsuit trying to get Liberty to stop using pastor recommendations as a factor in admissions. There’s only the ongoing, generational effort to rinse black people out of higher education.

Here’s hoping Justice Ginsberg makes it another few years.