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Jeff Sessions’ Justice Department Goes after Affirmative Action’s Institutional Racism

Ilya Shapiro

Who could have predicted that one of President Trump’s
projects would be to root out institutional racism? Yet
that’s the upshot of an internal memo which apparently
launches a push to review university admissions policies for
race-based discrimination. The memo is still not public but the
Justice Department has said that, at least so far, the focus will
be on one complaint filed by Asian-American groups against Harvard.

There’s strong evidence
that schools are discriminating based on race in the name of
‘affirmative action.’

To be sure, the Supreme Court has said three times in the last
30 years that race can be “a factor” in admissions decisions,
to be used to achieve the “compelling interest” of
educational diversity. At least for another decade, when the
25-year clock that swing Justice Sandra Day O’Connor set in
two 2003 University of Michigan cases runs out. In
those cases, the Court struck down the use of a mechanical points
system — five points if you’re a violin virtuoso, 20
points if you’re black — but upheld the law
school’s supposedly more individualized, “holistic” review.

But invoking the word “holistic” isn’t the end
of the constitutional inquiry. As Justice Anthony Kennedy wrote for
a 7-1 majority (Justice Ruth Bader Ginsburg dissented) in the 2013
case Fisher v. UT-Austin, universities bear
“the ultimate burden of demonstrating that, before turning to
racial classifications, workable, race-neutral alternatives do not
suffice.”

Although the Supreme Court two years later okayed the University of Texas system, college
officials don’t have carte blanche just so long as they avoid
points or quotas. Even after Fisher II, a school with a
race-conscious process must show three things to pass
constitutional muster:

(1) that its program is necessary to achieve diversity; (2) that
its chosen means properly “fit” its ends; and (3) that
it provides individualized consideration, such that colleges
don’t make race the “defining feature.”

But can any school show how or when race affects admissions
decisions? Can anyone offer evidence that would enable a court to
evaluate whether the use of race is narrowly tailored to achieve
its purported goal? The black-box nature of admissions policies
makes it impossible to ascertain whether race is a thumb or brick
on the scale.

Admissions programs frustrate accountability because schools
wield “holistic review” as a shield to frustrate
scrutiny, judicial or otherwise. Holistic review can serve as a
cover for the illegitimate use of race.

For example, Princeton professor Thomas Espenshade found that Asian students applying to selective
private colleges are six times less likely to be admitted than
Hispanic students with the same academic qualifications and 16
times less likely than black students. And despite being the
fastest-growing population in America, Asians are admitted at Ivy
League schools in remarkably similar numbers and percentages
year-to-year.

That’s strong evidence that schools are discriminating
based on race. It all hearkens to the less-than-illustrious history
of the so-called Harvard Plan, which began as an alternative to
explicitly capping the number of Jewish students

Those are the sorts of things that the Justice Department should
look into. Government lawyers must open the “holistic”
black box and hold administrators’ feet to the constitutional
fire. And that’s before we even get into the harm to the
beneficiaries of racial preferences!

I have my policy disagreements with Attorney General Jeff
Sessions over the drug war and related issues, but I applaud
him here. When he was nominated, his supporters argued that he was
a civil-rights advocate who had no truck with racial
discrimination. Six months later, he’s proving their
point.

Ilya Shapiro
is a senior fellow in constitutional studies at the Cato Institute
and editor-in-chief of the Cato Supreme Court Review.