Harvard lawsuit may kill affirmative action

It seems clear to many of us that cover the Trump administration that there is a hit list, in concert with the more radical members of the Republican party, on exactly what type of legislation from previous administrations, some stretching back decades, that are right for repeal - topping the list is Roe v. Wade, the 1973 legislation that legalized abortion in the U.S.

Next to that, comes Medicare and Medicaid, and of course, President Roosevelt's key legislation, Social Security.

But lurking in the background, and adding to the issue of what President Bill Clinton described, as America’s most intractable problem, is race, and to that effect, Monday saw opening arguments by a group of Asian American students who feel that the prestigious school is discriminating against them, despite the fact that the recent incoming freshman class has just under 25 percent representation from that group.

In contrast, from that same group, are African Americans, at 15 percent.

Critics say that this suit is a thinly veiled effort to take the consideration of race from college admissions, long debated in the United States, as promulgated through affirmative action, another target of conservative opposition.

Contained within the debate are the questions of quotas, which has been deemed by an earlier Supreme Court decision as undesirable -- but Harvard maintains that while race is not a criteria for admissions, it is a factor in creating a diverse incoming class, and which countless colleges, many less prestigious than Harvard, use..

“Harvard’s approach to holistic admission decisions has been widely adopted throughout higher education,” the American Council of Education, the nation's leading higher education lobbying group, wrote in a brief in the case on behalf of 37 college groups. “A victory for the plaintiff could upend this evolved and evolving system.”

While there is some debate within the Asian community as to the merits of either affirmative action, or the suit, they represent only 6 percent of the population, causing many observers, including educators, as why this, and why now?

The answer rests with the Oval Office and the Departments of Justice and Education, who not only support the suit but have steadily chipped away at earlier efforts, especially by the Obama administration, in many areas, and especially with the removal of protections for rape victims on American college campuses, among others.

Looking at the suit reveals a focus in demographics as well as political affiliation and issues, they say, and, “Asian-Americans have long supported Democrats, tending to favor gun control, pathways to citizenship — and even affirmative action. But a vocal and growing segment of the Asian-American population is fed up with the use of race in admissions, which they believe holds Asian-Americans to higher standards than other groups — and some Republicans see an opening to start to woo a new bloc of supporters. GOP candidates in at least two congressional races this year have railed against affirmative action in explicit bids for Asian-American voters.”

“Polling shows the group still overwhelmingly supports Democrats and largely disapproves of President Donald Trump,” noted Politico.

With the intense partisan gridlock in Washington, and the upcoming midterm elections, with high stakes for control of at least the House, if not the Senate, then this is an effort that pays a dual dividend: shatter affirmative action and gain a new voter bloc.

“Asian-Americans unhappy with the use of race “have an ear, because they occupy a pretty unique place in American politics: They’re nonwhite voters who are opposing affirmative action,” said Janelle Wong, a professor of Asian-American Studies at the University of Maryland who supports affirmative action.”

Sounding the alarm, Wong cautioned, ““If Asian-Americans move to the GOP — that’s the end of the ‘rainbow coalition' in the U.S., and that is a problem for the Democrats,” she said.

Adding to the mix of political bedfellows is that the suit is being “led by longtime anti-affirmative-action activist Edward Blum . . . and its journey begins just after Trump added a fifth conservative justice to the Supreme Court, where the case is likely to end.”

No one in academic circles, or on Capitol Hill is immune to that fact and the new 5-4 conservative majority of the Court, with the appointment of Brett Kavanaugh, is tied to the legislative agenda drafted by the GOP, in concert with such groups as The Federalist Society.

Students for Fair Admissions, Blum’s group, brought the suit against Harvard in 2014, and this summer the Justice Department joined in, accusing Harvard of discrimination in court filings.

The statements from DOJ, and Attorney General Sessions are revealing - “Harvard’s race-based admissions process significantly disadvantages Asian-American applicants compared to applicants of other racial groups — including both white applicants and applicants from other racial minority groups.”

“No American should be denied admission to school because of their race,” Attorney General Jeff Sessions said in a statement at the time.”

On the surface that seems benign enough, yet, read on another level, one can see Wong’s point.

Within the documents, and statements, filed by the plaintiff, we also see value laden terms, that suggest race coded language, which we explored in another column.

To date, we have this: “The plaintiff alleges that Harvard engineers every year a precise racial balance of admission offers that gives an unfair edge to less-qualified applicants from other groups. The plaintiff also charges that Harvard gives too much weight to race and fails to fully comply with a Supreme Court mandate to consider race-neutral alternatives for assembling a diverse class.”

The fear of less-qualified applicants: that was often a term used by some schools that were forced to integrate in the 60’s 70’s and early 80’s.

Continuing, on this theme, Politico also noted, “It's just one piece of the Trump administration's crackdown on affirmative action. The DOJ has launched separate investigations into admissions policies at Harvard and Yale, the latter of which the Education Department’s civil rights office joined. And the two agencies this summer scrapped Obama-era guidance that called on school superintendents and colleges to consider race when trying to diversify their campuses.”

“An attorney representing Harvard countered that student diversity, which he described as key to the school’s mission, is not possible without affirmative action, and he said race is never considered negatively in applications. “Harvard cannot achieve its educational goals without considering race,” attorney Bill Lee said, according to the Boston Globe.”.

In an attempt to garner opinions from the Chicago academic community, the response was either a polite, but firm, no, if asked if there would be a statement, or an unpleasant  email exchange from the Chicago campus of the largest Illinois university, and silence from a prestigious South Side campus, long the home of Nobel prize recipients, suggesting a wariness, on their part to join in the debate, one way or another.

The Washington Post, reported that “Lee, denied that the university discriminates against Asian Americans or any other demographic group. Harvard’s doors, he said, “are open to students of all backgrounds and means.”

Indeed qualifying students from low-income backgrounds are included, as well as those from prestigious families, such as the Kennedy’s.

“U.S. District Judge Allison D. Burroughs is presiding over the trial and expects to issue a verdict. There will be no jury. Both sides assume Burroughs will not have the final word because any verdict faces a near-certain appeal.”

Walking back through time is important in getting a grasp on the case, and there are precedents even irony, as “Harvard was also previously identified as a model for affirmative action by former Supreme Court Justice Lewis Powell. In the 1978 case Regents of the University of California v. Bakke, Powell became the pivotal vote in both striking down the admissions policy of University of California for using racial quotas, and then upholding affirmative action more broadly, pointing to Harvard as a good example because it considered race as a “plus.”

In a fast forward, ”The pretrial phase of the suit exposed that Harvard received internal warnings about potential bias against Asian Americans in recent years but apparently did little to follow up, and “addressing that issue, Lee said Monday an internal report on potential bias in 2013 was incomplete and preliminary and that senior officials who reviewed it saw “no reason for alarm.”

In 2016, there was the case of Fisher v. University of Texas: “Abigail Fisher, a white female, applied for admission to the University of Texas but was denied. She did not qualify for Texas' Top Ten Percent Plan, which guarantees admission to the top ten percent of every in-state graduating high school class.”

For the remaining slots, race was considered a factor and “she sued the University and argued that the use of race as a consideration in the admissions process violated the Equal Protection Clause of the Fourteenth Amendment. The district court held that the University’s admissions process was constitutional, and the U.S. Court of Appeals for the Fifth Circuit affirmed,” it then went to the Supreme Court, “which held that the appellate court erred by not applying the strict scrutiny standard to the University’s admission policies. The case was remanded, and the appellate court reaffirmed the lower court’s decision by holding that the University of Texas’ use of race as a consideration in the admissions process was sufficiently narrowly tailored to the legitimate interest of promoting educational diversity and therefore satisfied strict scrutiny”.

A pivotal case, perhaps, even more so, was heard 15 years ago, and Sandra Day O’Connor was the swing vote, and there are still “critics of affirmative action who were frustrated by the pivotal role Justice O'Connor played in preserving race-conscious admissions policies in the Supreme Court's 2003 Grutter v. Bollinger decision, involving the University of Michigan Law School. Seen as the court's swing vote on the affirmative-action issue, she ended up siding with its liberal wing in a 5-to-4 ruling holding that race-conscious admissions policies are constitutional because they serve the compelling state interest of promoting diversity and its associated educational benefits.”

O’Connor also looked to the future and in a book of essays by one of her former clerks Stewart J. Schwab, who is now dean of the Cornell Law School, discusses what might be needed, further down the line, citing the 25 years, she wrote, that might be needed to move forward, and Schwab, noted that this period, was not fixed: "When the time comes to reassess the constitutionality of considering race in higher-education admissions," the essay says, "we will need social scientists to clearly demonstrate the educational benefits of diverse student bodies, and to better understand the links between role models in one generation and aspirations and achievements of succeeding generations."

That time seems to have come.