The Corner

Law & the Courts

The Justice Department Files a Good Brief in the Harvard Racial Preference Case

The Justice Department building stands in Washington, D.C., February 1, 2018. (Jim Bourg/Reuters)

Kudos to the Department of Justice for the amicus brief it filed Tuesday on behalf of the Asian-American plaintiffs in their lawsuit against Harvard University for its use of racial preferences in student admissions. Bear with me while I give a little more detail on why the brief deserves special praise.

The law requires that, when race is considered in student admissions — as Harvard admits it is here — the school do so only in a way that passes the two prongs of “strict scrutiny”; that is, that the discrimination be “narrowly tailored” to a “compelling interest.” Alas, in deciding the 2003 case Grutter v. Bollinger, the Supreme Court recognized the “educational benefits” of a racially diverse student body as such a compelling interest.

The Harvard case is now before the U.S. Court of Appeals for the First Circuit, but will ultimately go to the U.S. Supreme Court. When that happens, probably next year some time, it is critically important that the Court revisit its 2003 ruling that “diversity” justifies discrimination.  The Justice Department deserves special praise, therefore, for challenging Harvard on both prongs of strict scrutiny, since this helps make it more likely that the Supreme Court will do just that.

For the same reason, by the way, praise is due for the amicus brief that the Pacific Legal Foundation also filed on Tuesday (one that, ahem, was joined by my organization, the Center for Equal Opportunity).

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