October 13, 2019

ON THE HARVARD CASE: Last week a federal judge decided that it is just fine for Harvard University to demand much higher academic credentials from Asian American students seeking admission than from other students. Not unexpected … but not good.

Interestingly, in the court of public opinion, the race preference question consistently comes out the other way. Even when WGBH tried to load the question in favor of race preferences in admissions, its poll came out against them and in favor of race neutrality.

Should polls have any bearing on the law?  Hmm … maybe.  (For non-lawyers:  Under longstanding legal doctrine, a law or governmental policy that discriminates on the basis on race must be narrowly tailored to accomplish a compelling governmental purpose. In 1978, Title VI was held in the Bakke decision to apply this standard of “strict scrutiny” to private schools, like Harvard, that receive federal funds.)

Of course, if the public is in favor of race discrimination, that should carry no weight in court at all. (Obvious, right?  That’s the whole purpose of the strict scrutiny standard–to make it really difficult to uphold a law or policy that discriminates.  The thumb on the scale against race discrimination is heavy) But if it’s the other way around—the public firmly opposes a policy that discriminates on the basis of race and wants race neutrality instead—that should be a different matter. I don’t see how in the world the Supreme Court can conclude that the policy nevertheless serves a “compelling purpose” that the public doesn’t view it as compelling (or even minimally persuasive).

For this (and many other reasons), I believe there is hope the decision will be overturned on appeal.  We’ll see.

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