Sat. Nov 27th, 2021

Nearly every day we learn of another case of governments or others setting policy based on the color of one’s skin. This is contrary to the equal rights fought for and won in the Civil War and civil-rights movement, and the Supreme Court has a rare and valuable chance to reaffirm that principle if it decides to hear the appeal in Students for Fair Admissions v. Harvard.

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The particulars concern whether Harvard discriminates against Asian-Americans in its admissions decisions. Harvard won in the lower courts but the Asian-American plaintiffs have appealed to the High Court. The larger stakes are whether the Supreme Court will wink as America divides in ways that have proved so destructive in the past.

The temptation will be for the Justices to give Harvard a pass given its contentious subject. The High Court has already taken cases on gun rights and abortion for the next term starting in the autumn. And you can imagine the reluctance to add the combustible issue of race to the docket.

This would be a mistake, and not only on the merits of this case. As Justice

Clarence Thomas

pointed out in 2018 when the Court passed on Kansas and Louisiana laws involving Medicaid funds for Planned Parenthood clinics, Supreme Court Justices are given lifetime tenure precisely so that a “politically fraught issue” will not prevent them from applying the law neutrally.

This is what is at stake in Harvard. In America today the principle that drove the civil-rights movement—equality for all—is fast giving way to the view that race must be a dominant factor in every decision from college admission to eligibility for a federal farm program to the makeup of corporate boards to who gets priority for a Covid vaccine.

Harvard’s claim that it doesn’t discriminate against Asian-Americans is self-evidently false. In the name of diversity, it favors blacks and Hispanics for admission while pretending that this won’t penalize applicants whose race is unfavored. The discrimination manifests itself in the much higher SAT scores required of Asian-Americans, as well as a subjective personality rating system that consistently assigns Asian-Americans far lower scores.

It is true that the racial discrimination alleged in Harvard isn’t the same as that of the

Jim Crow

South. In that era federal government intervention was required to break the state-enforced discrimination against black Americans. Race preferences were rooted then in the false claim of African-American inferiority.

No one thinks Harvard is discriminating because of animosity toward Asian-Americans, much less because it believes they are inferior. But it is no less ugly when, say, a talented Chinese-American young woman is denied an equal shot at Harvard because of her skin color—and told she must accept this in the name of diversity or to correct for some historic wrong she had no part in.

The Supreme Court should address this—not least because of its own role in allowing this allocation by race. The issue continues to roil college admissions because in a series of cases—from

Bakke

(1978) to Grutter v. Bollinger (2003) to the two Fisher v. University of Texas (2013, 2016) cases—the Court has hedged on the central issue. The Justices sometimes say the use of race is tolerable for one reason or another, and sometimes it is not.

The way to settle this is for a Court majority to embrace the plurality opinion of Chief Justice

John Roberts

in a 2007 case involving schools in Seattle: “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”

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Taking the Harvard case is arguably more important than deciding either the gun or abortion cases. If the Justices abdicate on the race issue now, the virus of racial separatism will spread ever more deeply into American life. In a few years it may be much harder to eradicate without considerable social harm. The U.S. would slide toward the racially divisive politics of countries like Malaysia, where government bias by race is ingrained in law and policy to unhappy effect.

The Justices should know there is overwhelming public support for the principle of racial equality, rather than the “racial equity” standard that uses government to dictate outcomes by race. A 2019 Pew survey found that 73% of Americans say “colleges and universities should not consider race or ethnicity when making decisions about student admissions.” The number is 62% for blacks and 65% for Hispanic-Americans.

Citizens in two of the nation’s most left-leaning states—Washington and California—recently rejected ballot initiatives that would have allowed racial preferences for state hiring, contracts and university admissions. In California the measure was defeated 57%-43% and lost in 52 of 58 counties.

The 14th Amendment guarantees equal protection of the law, and Title VI of the Civil Rights Act makes discrimination by race illegal. What the plaintiffs ask is for the Court to affirm, at long last, that these words mean what they say.

Main Street: In these highlights from a “Library of Congress” interview with Clarence Thomas, the Supreme Court Justice talks about victimhood, the confirmation process and why he writes so many opinions. Images: AP/Getty Images Composite: Mark Kelly

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By rahul