Students for Fair Admissions is petitioning the Supreme Court to hear its case against Harvard University for unfairly discriminating against Asian students in its admissions process.
SFFA, a nonprofit student rights group, filed the lawsuit against Harvard back in 2014, claiming a violation of Title VI of the Civil Rights Act. After losing at trial in October 2019, SFFA appealed the case to the 1st U.S. Circuit Court of Appeals, which affirmed the lower court’s ruling a month later.
If the Supreme Court chooses to review the case, there is much that hangs in the balance. Justices will review various Supreme Court precedents — most notably in the 2003 case of Grutter v. Bollinger (cited by the 1st Circuit of Appeals in its decision to affirm), which allowed the University of Michigan to take race into consideration as long as it was with the goal of achieving “diversity.”
SFFA wants the court to overrule Grutter and ban the practice of race-based admissions entirely.
Cory Liu, a partner at the Ashcroft Law Firm and former editor-in-chief of the Harvard Journal of Law & Public Policy, spoke with The Western Journal on Monday and explained the ins-and-outs of the case.
Liu filed an amicus brief with the Supreme Court on Thursday as part of the case, arguing that Harvard has discriminated against prospective students on the basis of race through the creation of arbitrary and irrational racial quotas.
According to Liu, the petition from SFFA is “basically asking two questions.” One, “Should the Supreme Court overturn Grutter?” and two, even if Grutter is upheld, “Did Harvard go too far in how they use race?”
Harvard’s Excessively Race-Conscious Quotas
The first part of Liu’s brief shows that Harvard uses race “not just a little bit, but a lot.”
“They have these what they call ‘one-pagers,’ where they monitor the class’s racial composition in the middle of the admissions process while it’s ongoing. They give bonuses to students based on their race,” Liu told The Western Journal.
“And actually the court found that, I think, maybe 46 percent of black and Hispanic students would not have been admitted without that racial consideration. So it wasn’t just sort of like a tiebreaker around the edges, but it really was a very large boost.”
Yet another race-conscious process utilized by Harvard, Liu explained, is called “lopping.”
This occurs at the end of every day when admissions personnel have “read through every application” and “have a few too many people admitted compared to how many spots they have,” he said.
Those Harvard employees then reject a certain number of applicants who are on the border between being admitted and rejected.
“And in that lopping process, there’s an email actually that came out in the discovery in the case where it basically says, you know, ‘The dean of admissions needs to lop 28 more students. Can you give him his ethnic stats?'” Liu told The Western Journal.
“And so that’s evidence that Harvard, basically, at the end was just trying to make the class look a certain way based on race.”
The Arbitrary Nature of Racial Categories
Furthermore, Liu pointed out that the racial and ethnic categories Harvard utilizes are completely arbitrary. This would suggest, then, that the goal of “diversity” is also defined on arbitrary grounds.
These racial and ethnic categories weren’t originally designed to be used for crafting affirmative action policy.
Rather, they were created by bureaucrats within the federal government in order to establish one standard for record-keeping statistics.
“Why does ‘Asian’ encompass 60 percent of the [world’s] population? Right. If you ask people in China or India, ‘Are you Asian?’ that’s not how they would identify themselves. They probably identified themselves as Chinese or Indian. And so why do you group them together? I think most, a lot of people who are classified as ‘Asian’ would not necessarily describe themselves that way. That’s just the label that America puts on them,” Liu said.
“Similar with the ‘Hispanic’ category,” he continued.
“That’s another interesting category that it’s technically defined as an ethnicity, which is different from race. And so you’re asked, like, on a census, for example, first, ‘Is your ethnicity Hispanic or non-Hispanic?’ And then, ‘What’s your race?’
“So you can have white Europeans who are Hispanic, if you’re from Spain or have origins in a Spanish country, Spanish-speaking country, Spanish culture. And so why would you group those people together with those who are from Central or South America, for instance?
“So the categories don’t make sense. They’re arbitrary. And so it’s not fair to determine our children’s destiny based on these categories that are kind of made up and don’t really make much sense.”
Liu then went on to explain that this system of racial self-identification leaves itself wide open to fraud.
Claims of racial and ethnic identity are not investigated on the grounds of their authenticity despite the fact that many schools have found serious evidence of fraud.
Additionally, when it comes to mixed-race individuals, the categories with which they should identify and be judged becomes difficult to parse.
The Case Against Race-Based Admissions
Liu went on to tell The Western Journal he remains “cautiously optimistic” about SFFA’s chances when it comes to the current lawsuit.
His feelings are partly due to the Supreme Court’s current composition. There are several justices now residing on the court who have had yet to weigh in on this issue.
Also, although many cases against affirmative action policies have failed before, he finds the current lawsuit unique in that it presents tough questions for affirmative action supporters to grapple with.
“The question should just be, ‘Are you discriminating on the basis of race?’ But I think in terms of those who support affirmative action, they have a little bit of a harder time explaining why it’s fair to treat Asians worse than white students,” Liu told The Western Journal.
“Why you should be allowed to make the class look a certain way at the expense of denying equal opportunity to a whole class of students who, you know, a lot of them are children of immigrants. Maybe English wasn’t the first language at home. They didn’t have connections to important or powerful people. They weren’t wealthy. Why do you group them all together in this category that you then claim is overrepresented and deny them an equal chance to get into the school?
“So I think that is a hard thing for them to deal with. And I think there’s just so many facts that have come out that show that, for example, Harvard did its own internal investigations of whether Asians are being discriminated against.
“So the fact that they even asked that question and ran these studies and there was some bad data that came out, even though they ultimately didn’t do anything with it, I think that shows, you know, this isn’t frivolous, this is a legitimate concern that’s existed for many, many years that even Harvard was worried about.
“And so how do you explain that?”
CORRECTION, March 31, 2021: A previous version of this article contained an incorrect spelling of Cory Liu’s first name. We apologize to Mr. Liu, and to our readers, for the error.
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