Preparations Made to Appeal Judge’s Ruling Approving Harvard’s Discriminatory Admissions Policies

November 8, 2019 Updated: November 10, 2019

A conservative civil rights group plans to lend its expertise to the legal fight to overturn a federal judge’s ruling that Harvard University’s policy of discriminating against Asian Americans in favor of whites in the undergraduate admissions process is legally sound.

The ruling in question came Sept. 30 from Boston-based U.S. District Judge Allison D. Burroughs, who was appointed by former President Barack Obama, in a case cited as Students for Fair Admissions Inc. v. President and Fellows of Harvard College.

The Trump administration has weighed in on the side of the Asian American students in the lawsuit.

“No American should be denied admission to school because of their race,” then-Attorney General Jeff Sessions said in a statement in 2018. “As a recipient of taxpayer dollars, Harvard has a responsibility to conduct its admissions policy without racial discrimination by using meaningful admissions criteria that meet lawful requirements. … The admissions policies at our colleges and universities are important and must be conducted lawfully.”

The Asian Americans adversely affected by the policy are collateral damage on the road to social justice, the judge argued.

Burroughs found that “diversity”—a relatively new concept not mentioned in American founding documents such as the Declaration of Independence or the Constitution—trumps all other factors in the college admissions process and justifies race-conscious social engineering by Harvard officials.

Shrugging off the harm done to Asian American students, the judge wrote that “race-conscious admissions will always penalize to some extent the groups that are not being advantaged by the process, but this is justified by the compelling interest in diversity and all the benefits that flow from a diverse college population.”

“It is somewhat axiomatic at this point that diversity of all sorts, including racial diversity, is an important aspect of education,” Burroughs wrote.

“The evidence at trial was clear that a heterogeneous student body promotes a more robust academic environment with a greater depth and breadth of learning, encourages learning outside the classroom, and creates a richer sense of community. The benefits of a diverse student body are also likely to be reflected by the accomplishments of graduates and improved faculty scholarship following exposure to varying perspectives.”

Asian American high school students accounted for about 22 percent of total applicants to the college in recent years, even though Asian Americans make up less than 6 percent of the U.S. population, she wrote.

But in an interview with The Epoch Times, attorney Wen Fa of the Pacific Legal Foundation (PLF), a public interest law firm headquartered in Sacramento, California, rejected the judge’s reasoning.

“We think that discrimination is wrong and shouldn’t be taken lightly just because government takes some vague interest in diversity,” he said. “When the government talks about diversity, it is usually talking about a very narrow conception of diversity: racial diversity.

“At Pacific Legal Foundation, we think everyone should be treated based on individual merit, and not based on race.”

PLF is preparing a friend-of-the-court brief backing the legal challengers in the litigation, Students for Fair Admissions, in that group’s ongoing appeal that is currently pending before the 1st Circuit Court of Appeals. The appeals court could rule in the case next year or possibly the year after, Fa said.

Edward Blum, president of Arlington, Virginia-based Students for Fair Admissions, said when Burroughs issued her opinion that he was “disappointed that the court has upheld Harvard’s discriminatory admissions policies” and that his group vows to appeal the decision all the way to the Supreme Court, if necessary.

SFFA describes itself as “a nonprofit membership group of more than 20,000 students, parents, and others who believe that racial classifications and preferences in college admissions are unfair, unnecessary, and unconstitutional.”

College preparation services already advise Asian Americans how to cope with the discrimination they face in the college admissions process.

“You see the admissions guidebooks, such as Princeton Review and Kaplan, guide students in the admissions process and a lot of these books say if you’re Asian, don’t say you’re interested in science or math or that you want to be a doctor because then you’re too much like the standard Asian,” he said.

You shouldn’t have to hide who you are or pretend to be someone else to get into a college, he added, noting that the PLF’s brief will be based on the Equal Protection Clause of the 14th Amendment.

Critics of affirmative action in college admissions say it’s time for the practice to end.

They quote the words of former Supreme Court Justice Sandra Day O’Connor, who felt the practice was a necessary evil. In Grutter v. Bollinger (2003), she wrote, “We expect that 25 years from now the use of racial preferences will no longer be necessary to further the interest approved today.”

Making race-conscious admissions decisions is “dangerous,” O’Connor wrote, calling it a “deviation from the norm of equal treatment.” Such programs must “be limited in time,” she stated, adding that “all governmental use of race must have a logical end point.”

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