Bench Memos


Harvard Briefs

Branded merchandise is displayed for sale outside Harvard University in Cambridge, Mass., June 18, 2018. (Brian Snyder/Reuters)

Kudos to the Department of Justice for the brief it filed this week against Harvard in the lawsuit where the school has been sued for admissions discrimination against Asian Americans — and to David French for his fine discussion of that brief.

I also want to mention the amicus brief also filed this week against Harvard by Southeastern Legal Foundation, the Reason Foundation, and my own organization, the Center for Equal Opportunity. That brief discussed two studies documenting evidence of Harvard’s discrimination, written by CEO research fellow Althea Nagai.

There is overwhelming evidence that Harvard uses racial preferences against Asian Americans, as the CEO studies and much other evidence show. And it should be borne in mind that, whether or not Harvard discriminates against Asian Americans vis-à-vis whites, it is essentially undisputed that “overrepresented” groups (e.g., Asian Americans and whites) are discriminated against vis-à-vis “underrepresented” groups (e.g., African Americans and Latinos). Therefore, Harvard’s use of racial preferences must pass “strict scrutiny” to be lawful.

That means, in turn, that Harvard must show that there are “compelling” educational benefits in using racial preferences against Asian Americans to limit their numbers and achieve greater student-body “diversity.” Each institution that uses racial preferences must make this showing; it cannot simply cite the Supreme Court’s 2003 decision in Grutter v. Bollinger, since the educational benefits of “diversity” will be different in, say, a graduate physics program than at a law school. In addition to producing evidence of those educational benefits, Harvard must also explain how those benefits are so compelling that they outweigh the obvious costs of discriminating against Asian Americans in this particular context (see list of these kinds of costs here). If the trial court finds that the discrimination is against Asian Americans vis-à-vis whites as well as vis-à-vis other nonwhite groups, it would be even harder to meet this first prong of strict scrutiny, because there will actually be less racial diversity in the student body as a result of the discrimination.

Finally, Harvard must show that using racial preferences against Asian Americans is “narrowly tailored” to achieving those compelling educational benefits. A key element of narrow tailoring is the consideration of race-neutral alternatives. Once again, Harvard’s own internal research indicates that this test is failed. And given the wide variety of racial and ethnic backgrounds in its applicants, Harvard could and should consider the perspectives and experiences of individual applicants without using race as a proxy for those perspectives and experiences. Here again, if the court finds that the discrimination is against Asian Americans vis-à-vis whites as well as vis-à-vis “underrepresented” nonwhite groups, strict scrutiny is even more difficult to pass.

Look at it this way: Harvard has been using racial preferences for at least 40 years: Justice Powell’s 1978 opinion in the Bakke case discusses them. Yet rather than phasing them out, as the Court in Grutter expected it would do, the principal change Harvard has made over the past 40 years is to dramatically ramp up their use against Asian Americans.


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