February 3, 2012

Still no word on Fisher; in the meantime another example of how “diversity” creates injustice

By Still no word on Fisher; in the meantime another example of how “diversity” creates injustice

Bloomberg today reports that the Office for Civil Rights, a subdivision of the U.S. Education Department, is investigating complaints that both Harvard and Princeton discriminate against Asian-American undergraduate admission applicants. The article states:

Like Jews in the first half of the 20th century, who faced quotas at Harvard, Princeton, and other Ivy League Schools, Asian-Americans are over-represented at top universities relative to their population, yet must meet a higher standard than other applicants based on measures such as test scores and high school grades, according to several academic studies.

The article then surveys the average differences in the test scores of among racial groups and notes that “Asian-Americans need to score 140 points more than whites, 270 points higher than Hispanics, and 450 points above African-Americans out of a maximum of 1600 on the math and reading SAT to have the same chance of admission to a private college.”

This type of racial discrimination in college admissions is hardly surprising. Ever since the Supreme Court found in Grutter v. Bollinger that “diversity” can be a compelling interest that justifies considering race in higher education, universities have sought to create the perfect “rainbow” of racial diversity on their campuses. The result is that while it is easier for members of racial groups that are under-represented in higher education—namely Latinos and African Americans—to gain admission to select universities, it is affirmatively more difficult for over-represented groups, particularly Asian Americans, to gain entrance.

This type of discrimination against Asian Americans is particularly ironic when it occurs in California. For decades of California’s history, Asian Americans suffered untold discrimination. One of the major goals of the 1878 Constitutional Convention was to exclude Chinese workers from business and industry. The delegates also adopted a specific provision of the Constitution that forbade all natives of China from voting—a provision that was not overturned until 1926. Later, in the 20th century, Japanese Americans were brutally forced from their homes and into dismal internment camps for the duration of World War II. In addition, neither Chinese nor Japanese immigrants were legally allowed to even own land in California until 1952. That California government institutions today continue to discriminate against Asian Americans in any capacity is extremely regrettable in light of this history.

PLF has frequently noted the injustice of lumping people together based on race. We have also actively litigated against the “diversity as a compelling interest” rationale because we believe that it “contravenes the very premise of the Constitution.” The Constitution was designed to protect the right of the individual to life, liberty and the pursuit of happiness from government infringement. And yet today, the sad reality is that by authorizing universities to consider race in admissions, the Supreme Court has severely undermined the Constitution as a bulwark for protecting individuals; it has instead licensed state institutions to pick and choose winners and losers on a group basis. As we and others have pointed out, this type of group stereotyping is paternalistic, offensive and counterproductive. It is also completely at odds with the cherished American principle that people can make of themselves whatever they wish—unconstrained by the limits of race and social class that stymied many of our European ancestors. Contained in the ideal of the American dream was the principal that because the same rules applied to everyone; everyone had the same opportunity to succeed. Let’s hope that the Court grants cert in Fisher and reaffirms that vision—that people should succeed or fail on their merits alone, rather than on the basis of their skin color.

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