For now, at least. A federal trial judge has ruled that, while race is considered by Harvard in determining who gets in and who doesn’t (“the use of race in and of itself is admitted”), and while the plaintiff group has standing in this case to challenge the resulting discrimination against Asian Americans (in line with an earlier ruling), nonetheless Harvard is not breaking the law. The outcome was not surprising, and the judge’s 130-page opinion is unlikely to change many minds or alter the expected trajectory of the case to the Supreme Court.
The judge found, “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, the judge admits about 100 pages later, “Race conscious admissions will always penalize to some extent groups that are not being advantaged by the process.” So, sure, there is discrimination against Asian Americans, but it is not “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 the judge here 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 the discrimination is not anti-Asian (vis-a-vis whites, 1-2-3) but only pro-diversity. She’s wrong, but schools are willing to roll the dice that their bluff won’t be called and that, if it is, they’ll draw a sympathetic judge.
So we struggle on, hoping for a Supreme Court decision that says, no, it’s spinach and to hell with it: Racial discrimination in university admissions is not permissible, period. With the overwhelming majority of Americans rejecting this unequal treatment (preferring E pluribus unum), and with a judiciary less and less hospitable to it (since, after all, the text of the laws are), and with this discrimination becoming more outdated and less tenable in our increasingly multiethnic country with every tick of the clock — well, why should anyone expect the struggle to stop?