Featured Article - Biden’s ‘Yes’ to Racial Preferences by William McGurn

Deck the halls with boughs of holly! 'Tis the season for admissions folly!
 

The fall semester is officially over, and Christmas is right around the corner. Unfortunately, opponents of equitable college admissions haven’t felt the holiday cheer and continue to promote racial preferences in American higher education. Bah! Humbug!
 

Let’s start in the Tar Heel State. About seven years ago, Students for Fair Admissions (SFFA) filed a lawsuit against the University of North Carolina, alleging that the school unlawfully discriminated on the basis of race and ethnicity in undergraduate admissions. SFFA claimed that UNC’s procedures were in violation of both the 14th Amendment and Title VI of the Civil Rights Act of 1964.
 

In October, however, District Court Judge Loretta Biggs of the Middle District of North Carolina ruled in UNC’s favor, writing that “[t]he [UNC] Admissions Office instructs readers to consider each applicant as an individual based on all relevant factors revealed in his or her application in order to understand the candidate holistically and comprehensively [emphasis added].”
 

The language of “holistic” admissions harkens back to the landmark Supreme Court case Grutter v. Bollinger. Decided in 2003, this case held that “[t]he use of an applicant's race as one factor in an admissions policy of a public educational institution does not violate the Equal Protection Clause of the Fourteenth Amendment if the policy is narrowly tailored to the compelling interest of promoting a diverse student body, and if it uses a holistic process to evaluate each applicant, as opposed to a quota system.”
 

Even if we accept holistic admissions in theory, the “holistic” part is notoriously difficult to quantify. It seems that, at least in some instances, universities hide behind this language in order to engage in blatant racial discrimination, typically preferencing black and Latino applicants over more qualified white and Asian students. SFFA has hard data to back this up—here’s just one example from the UNC case:

For African-American applicants with an academic index above 3.1, race is a dispositive factor, essentially guaranteeing admission. For Asian-American applicants with an academic index below 2.6, on the other hand, race is a dispositive factor, virtually guaranteeing rejection.

But I suppose Judge Biggs did not find this compelling. SFFA has not limited its efforts to UNC, though, and has also taken aim at Harvard. The group first filed suit in 2014, and lost in the District Court and the First Circuit Court of Appeals in 2019 and 2020, respectively. Not to be denied, SFFA has since appealed to the Supreme Court, where it now awaits the Court’s decision to grant or deny cert. SCOTUS has requested that the Biden administration help it make this decision, resulting in a December 8th brief from Solicitor General Elizabeth Prelogar.
 

In this week’s featured article, the Wall Street Journal’s Bill McGurn discusses Prelogar’s brief and laments what he calls “Biden’s ‘yes’ to racial preferences.” He notes that this “yes” is in tension with Biden’s apparent “no” regarding anti-Asian racism:

the same federal government that Mr. Biden says should be fighting racism against Asian-Americans is OK with using race to discriminate against Asian-American college applicants. Even more significant, Ms. Prelogar’s brief urges the Supreme Court not to hear a lawsuit against Harvard University that seeks to have the use of race in college admissions declared unconstitutional.

Contradictory? Yes. Surprising? Not really. McGurn reminds us that it is Biden’s Justice Department which in February dropped its own lawsuit against Yale alleging similar racial discrimination in admissions (a suit filed during the Trump administration).
 

The message is clear: When it comes to anti-Asian racism, the Biden administration is all bark and no bite. Yes, it may virtue-signal about the “inflammatory and xenophobic rhetoric [that] has put Asian American and Pacific Islander (AAPI) persons, families, communities, and businesses at risk”—i.e., professors calling COVID-19 the “Wuhan flu”—but it actively supports what is perhaps the greatest example of anti-Asian racism in our time. Needless to say, we urge the Supreme Court to disregard Prelogar’s erroneous advice and to hear SFFA’s case. The stakes are simply too high to sweep this one under the rug.
 

Until next week. Merry Christmas!
 

About the NAS