And when the high court gets a hold of it, it will likely mean the end of affirmative action in higher education, just one of a series of decisions that will mark the legal revolution the court’s five conservatives are about to bring.
This lawsuit was the brainchild of Edward Blum, a conservative legal activist who was behind the case that gutted the Voting Rights Act and has been trying for years to destroy affirmative action. After losing a case involving admissions at the University of Texas, he evidently decided that an attack on the use of race in admissions could be more successful if he presented Asian Americans, not whites, as the aggrieved party, even if whites will wind up being the principal beneficiaries if he is successful.
Here are the basic facts: Like many universities, Harvard considers race as one of many factors in admissions in an effort to assemble a diverse student body, though it insists that while an applicant’s race can never hurt them, it can help them. The university rejects about 19 of every 20 applicants, and is fond of saying they could fill their entire incoming class with nothing but valedictorians if they chose to do so. Instead, it says, the university takes a more holistic view of each applicant and each class as a whole, looking beyond grades and test scores to include less-quantifiable qualities.
But the plaintiffs in this case argue that the university discriminates against Asian Americans by consistently downgrading them on some of those fuzzier measures. Though Asian Americans make up 22.7 percent of the class of 2022, a much higher proportion than their share of the population, an internal review a few years ago showed that if Harvard considered only grades and test scores, the number would be 43 percent.
Among the things that have been detailed in the trial is how the university appears to give special consideration to the children of donors who give large sums of money. As you may have heard, this is apparently how young Jared Kushner got into Harvard. An official from his high school told author Daniel Golden, “His GPA did not warrant it, his SAT scores did not warrant it. We thought for sure, there was no way this was going to happen.” But Kushner’s father Charles made a fortuitously timed $2.5 million donation to the university (to which Charles had no connection) while young Jared’s application was being considered, and the boy was admitted. Meritocracy is an inspiring thing.
Which bring us to why this is such a difficult case. You can simultaneously believe that Asian Americans have a legitimate complaint about the admission process at Harvard and other places, while also believing this lawsuit was brought in bad faith and would have dire consequences for many people seeking a college education. Elie Mystal, writing for Above the Law, makes an excellent point:
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.
That effort is enthusiastically supported by the Trump administration, which last year decided “to redirect resources of the Justice Department’s civil rights division toward investigating and suing universities over affirmative action admissions policies deemed to discriminate against white applicants.”
The idea that if we just took race out of the equation then we would have a system based solely on “merit” is ridiculous. But while the trial going on right now might produce a fascinating record, when the case reaches its ultimate destination it may already be a fait accompli.
The last major affirmative action case that came before the Supreme Court was Fisher v. University of Texas at Austin, which was decided in 2016. Justice Anthony M. Kennedy wrote the majority decision, which held that the university could consider race as one factor “in defining those intangible characteristics, like student body diversity, that are central to its identity and educational mission.” Justices Clarence Thomas and Samuel A. Alito Jr., and Chief Justice John G. Roberts Jr. vigorously dissented. Those three have now been joined on the court by justices Neil M. Gorsuch and Brett M. Kavanaugh.
Though Gorsuch and Kavanaugh have not ruled on affirmative action programs, there is precisely zero reason to believe they would not side with the court’s other conservatives. As I have noted many times, the entire purpose of the conservative legal pipeline that produced them, the one organized by the Federalist Society that presented Gorsuch’s and Kavanaugh’s names to President Trump, is to ensure that the judges extruded at its end will be ideologically reliable in every way.
The only question is how expansive that ruling will be, and how far it will go. But it’s never a bad bet that the big winners are going to be wealthy white people.