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Appeals Court upholds Harvard’s discrimination against Asian-Americans

Appeals Court upholds Harvard’s discrimination against Asian-Americans

This case likely will be accepted for review by the Supreme Court, and in my prediction, will finally end racial discrimination in admissions in the name of diversity.

Harvard discriminates in admissions, that is beyond doubt. So do many other elite colleges and universities.

That’s illegal, right? Kinda, sorta, but not if you discriminate against certain groups to benefit other groups and couch it in Supreme-Court-approved verbiage about wanting to provide a diverse educational environment.

As we explained in an earlier post:

Harvard is far from alone. Study after study have shown that Asian students need to outperform other students, particularly other non-white minorities, on standardized tests and grades in order to obtain admission.

This is achieved through the use of “soft” factors in admissions decisions similar to those used to cap Jewish enrollment starting in the 1920s. Harvard pioneered the way in limiting Jewish enrollment much as it has pioneered the way in capping Asian enrollment.

The use of these soft factors has been boosted by U.S. Supreme Court decisions upholding discrimination in the service of diversity. The argument is that diversity adds to the educational experience, so some discrimination to achieve that supposed educational end is permitted, as long as it’s not too blatant….

In the past 30 or so years, Asian students have been sacrificed by elite universities at this altar of diversity, and the US Supreme Court has sanctioned this racial discrimination. Shameful.

At Harvard, a group called  Students for Fair Admissions, Inc. (“SFFA”), sued for discrimination against Asian Americans.

We covered the lawsuit since it’s inception in 2015, through the trial court decision favoring Harvard, and onto the appeal in which the Trump administration supported the Asian American students:

The First Circuit Court of Appeals just issued an Opinion by a two-judge panel affirming the District Court ruling in favor of Harvard. (A third judge, Juan Torruella, heard oral argument and participated in deliberations, but died on October 28, 2020, before the Opinion was issued). The 104-page Opinion catalogs the extensive infrastructure Harvard has developed to justify discrimination as part of a diversity goal — it’s truly mind-boggling.

Once again, the discriminatory effect on Asian-American students was not disputed, but the motive and method were deemed lawful:

SFFA asserts that Harvard fails to meet the Supreme Court’s standards for the use of race in admissions which are asserted to be justified by diversity in these ways: (1) it engages in racial balancing of its undergraduate class; (2) it impermissibly uses race as more than a “plus” factor in admissions decisions; (3) it considers race in its process despite the existence of workable race-neutral alternatives; and (4) it intentionally discriminates against Asian American applicants to Harvard College. SFFA seeks a declaratory judgment, injunctive relief, attorneys’ fees, and costs. The district court denied Harvard’s motion to dismiss SFFA’s suit for lack of Article III standing. See Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll. (“SFFA I”), 261 F. Supp. 3d 99, 111 (D. Mass. 2017).

After a fifteen-day bench trial at which thirty witnesses testified, the district court issued a 130-page opinion with findings of fact and conclusions of law. See Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll. (“SFFA II”), 397 F. Supp. 3d 126, 132 (D. Mass. 2019). It made numerous factual findings, including as to competing expert witness testimony and credibility determinations about the testimony of witnesses. See id. at 158-83. The district court found that Harvard had met its burden of showing its admissions process did not violate Title VI. See id. at 197, 199, 201, 204. It entered judgment for Harvard on all counts. See id.

After careful review of the record, we hold that SFFA has associational standing to bring its claims and that under governing Supreme Court law Harvard’s race-conscious admissions program does not violate Title VI.2

There was no doubt that Harvard takes race into consideration in admissions:

Harvard’s use of tips that take race into account is the focus of many of SFFA’s claims. We consider how and when Harvard claims to consider race. It admits that race can be considered during Harvard’s “first read” of application materials only when assigning an applicant’s overall rating. It also admits that an applicant’s race can be considered in both subcommittee and full committee meetings. Harvard denies that race is considered in assigning an applicant’s personal rating during the “first read.” We describe the background against which Harvard’s tip taking race into account is used. Admissions officers are provided, from time to time, with summaries containing demographic information.

These “one-pagers” provide a snapshot of various demographic characteristics of Harvard’s applicant pool and admitted class and compares them to the previous year. In addition to race, these sheets summarize the applicant pool on a variety of other dimensions (e.g., gender, geographic region, intended concentration, legacy status, whether a student applied for financial aid, etc.). Information from this sheet is periodically shared with the full admissions committee, and the committee uses this information in part to ensure that there is not a dramatic drop-off in applicants with certain characteristics — including race — from year to year. Harvard keeps abreast of the racial makeup of its admitted class in part because doing so is necessary to forecast yield rates. The yield rate is the percent of admitted applicants who accept an offer of admission.13 Empirically, Asian American and white students accept offers of admission at higher rates than African American, Hispanic, Native American, and multiracial applicants.

The effect of using this race-oriented admission was dramatic:

A race-conscious admissions program is not narrowly tailored if a university uses it despite workable race-neutral alternatives. See Fisher I, 570 U.S. at 312. The district court found that eliminating race as a factor in admissions, without taking any remedial measures, would reduce African American representation at Harvard from 14% to 6% and Hispanic representation from 14% to 9%. SFFA II, 397 F. Supp. 3d at 178. It found that at least 10% of Harvard’s class would not be admitted if Harvard did not consider race and that race is a determinative tip for approximately 45% of all admitted African American and Hispanic students. Id.

But the Court held that Harvard had a lawful motive of diversity:

Harvard has identified specific, measurable goals it seeks to achieve by considering race in admissions. These goals are more precise and open to judicial scrutiny than the ones articulated by the University of Texas and approved by the Fisher II majority….

These goals make clear that Harvard’s interest in diversity “is not an interest in simple ethnic diversity, in which a specified percentage of the student body is in effect guaranteed to be members of selected ethnic groups,” but “a far broader array of qualifications and characteristics of which racial or ethnic origin is but a single though important element.” Parents Involved, 551 U.S. at 722 (quoting Grutter, 539 U.S. at 324-25). Race is one piece of Harvard’s interest in diversity. It is “considered as part of a broader effort to achieve ‘exposure to widely diverse people, cultures, ideas, and viewpoints.'” Id. at 723 (quoting Grutter, 539 U.S. at 330). …

Harvard has sufficiently met the requirements of Fisher I, Fisher II, and earlier cases to show the specific goals it achieves from diversity and that its interest is compelling….

… there is nothing in Fisher II suggesting that a university can only consider race once or that only a single use of race is a necessary component of a narrowly tailored policy. The Court made clear that as long as race is “considered in conjunction with other aspects of an applicant’s background” and is “but a ‘factor of a factor of a factor’ in the holistic-review calculus,” it will not be considered impermissibly mechanical. Fisher II, 136 S. Ct. at 2207. Harvard has shown that its holistic consideration of race is not impermissibly extensive.

The Court found that there was only a correlation of the use of soft factors resulting in diminished Asian admission, but not a causal relationship:

There is a clear and important distinction between race being correlated with the personal rating and race influencing the personal rating. Race correlating with the personal rating means that there is a statistical relationship between race and the personal rating. Race influencing the personal rating means that this statistical relationship is causal. It means that Harvard assigns applicants higher or lower personal scores because of their race. The distinction between correlation and influence is very important. [Underscoring in original.]

This case likely will be accepted for review by the Supreme Court, and in my prediction, will finally end racial discrimination in admissions in the name of diversity.

I agree with this comment on the decision by Ilya Shapiro of the Cato Institute:

This ruling isn’t surprising in the slightest. The case was always designed to go to the Supreme Court and now it will, though not in time to be heard this term. When even Californians vote overwhelmingly to maintain that state’s prohibition on the use of race in public employment, contracting, and education, it’s high time that the justices end the 40-year error of interpreting the Constitution to allow universities that accept public funding to use racial preferences in admissions decisions. Evaluating applicants based on the color of their skin—even as one of many factors—is repugnant to the constitutional precept of equal treatment under the law.


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The more fundamental problem is the myth that personal worth depends on getting academic degrees.

As long as people believe that you’re nobody unless you’ve gone to college, they’ll look for ways to get everyone into college.

Of course, the vast academic bureaucracies and the departments of fake subjects also have incentives to get unqualified people enrolled in universities.

Having a two parent father and mother household offends Harvard’s liberals.

One of Ted Kennedy’s finest accomplishments, short of dying, was being expelled from Harvard..

If the Supremes hear the case, even that dim wit John Roberts may take the anti discrimination side. He indicated so at his confirmation hearing.

We must discriminate to end discrimination!

Literal systemic racism. Rather ironic.

This is a very bad case to take to SC.

A) even though there is ample and obvious evidence of discrimination, Page 43 through 46 of the opinion state that the findings of fact by both the district court and the CA1 in their deNovo finding fact, claims there was no discrimination.
B) pages 43 through 46 also provide detailed analysis of why the facts follow the standards set forth in Bakke, Grutter and Fisher.

In summary, even though there was blatant discrimination, SC isnt going to overrule the finding of facts nor will SC reverse fisher, grutter or bakke.

its possible to seek en banc, first, But going directly to SC is a sure loser for the aforementioned reasons

Liberals investigated liberals and determined that liberals did nothing wrong.

    JOHN B in reply to Olinser. | November 14, 2020 at 8:29 am

    If they had shown the Court that some people in the admissions department had supported Trump – then they would immediately find that there was blatant discrimination.

I thought discrimination was a relic of the past…

    Diversity is a clear and progressive condition. So Pro-Choice, selective, opportunistic, relativistic, politically congruent (“=”) quasi-religion (e.g. “ethics”).

I’m not a lawyer, so can someone explain to me – small words, please – how diversity goals can overide the Constitution in the first place? On what grounds?

    redc1c4 in reply to hopp singg. | November 13, 2020 at 5:44 am

    because it’s for your own good, and that of the chilrens, even if you are too much of a deplorable redneck racist moron to understand it.

    does that help? 😉

    The Friendly Grizzly in reply to hopp singg. | November 13, 2020 at 7:38 am

    Because shut up, racist.

    Albigensian in reply to hopp singg. | November 13, 2020 at 3:25 pm

    The justification seems to be an assumption that those who get in despite being discriminated against benefit from the discrimination because they are thereby exposed to diverse peoples, cultures, races and ethnicities to a greater extent than would be the case without the discrimination.

    And since this benefit is presumed to outweigh the harm to those who were not admitted, there is (in the aggregate at least) no violation because there is no harm.

    This seems tortuous and fatuous logic at best, as the logic doesn’t work so well when those being discriminated against are themselves racial minorities and in any case there is no credible evidence (more like vague hand-waving as ‘argument’) that being discriminated is ever a benefit. For if it is, wouldn’t most then ask to be discriminated against?

    Nor is there any consideration of the indirect harms produced by preferences, such as the inevitable questioning of the credentials of anyone who might have received preferences, or the high flunk-out rate (often with ruinous student-loan debt) among preference admits, or the inevitable need to corrupt academic standards in order to reduce that high flunk-rate.

    Let alone the sheer mental damage of applying enormous social pressures to faculty and students to pretend that what everyone can plainly see is so really is not so.

    Milhouse in reply to hopp singg. | November 14, 2020 at 8:16 pm

    I’m not a lawyer, so can someone explain to me – small words, please – how diversity goals can overide the Constitution in the first place? On what grounds?

    Because discrimination is legal if it’s relevant to the quality of the education being provided. The upshot of Bakke was that a racially diverse student body is a necessary component of a good university education, and not having one would mean the university was turning out graduates who were not as well educated as they could be. For instance college might be the first time they meet and interact with black people as equals, and learn lessons that they will apply in the rest of their lives. That, at least, is the theory. It’s not very well founded, but for now that’s the fig leaf that allows this to go on. It can’t last, though. It depends on a whole lot of pretending and denial, and eventually it will be struck down.

As far as I can tell, we are still in a near-total media blackout.
There is no news.

notamemberofanyorganizedpolicital | November 13, 2020 at 1:32 am


I think lot of schools are hiding their pushing of “critical race theory” by calling it this:

Critical Conversations on Equity.

Diversity, less the euphemisms, and exclusion.

Keeping Chinese out of our universities is not such a bad idea. Many of these “students” are, in reality, agents of the Chinese Military and are where they are to recruit new people for China’s intelligence services.

Harvard is historically black. That’s a better defense.

Stop whining. What we need are rigid admission and employment quotas. The quotas should include race/ethnicity, gender and sexual orientation, religion, political affiliation, native language…

The quotas should be applied to the institution as a whole and to each individual department in it. So, Harvard must be 30% Roman Catholic, 2% Jewish, 2% Asian, 13% black, 14% Hispanic (non-white), 70% white, 45% conservative, 50% male, 45% Republican, 1.6% male homosexual…

The Women and Gender Studies department must be 50% male, 30% Catholic, 2% homosexual…

You get the idea. Real equity is by the numbers.

There’s something else needed. Random assignment of faculty and students to institutions. Applicant for faculty positions and student admissions should be put into a national pool. For anything particular institution, faculty and students would be drawn at random BY A COMPUTER. No admissions committees or faculty search committees–none, nowhere, no time.

Now you have real fairness and real equity. So stop whining and Just Do It!

I teach beginning engineering classes at a community college (statics, dynamics, mechanics of materials, etc), so I have a slightly different take. With very few exceptions most four year degrees are worse than useless. In addition to running up massive debt, too many students learn little or nothing of actual value. At some tony universities students are more likely to learn how to curb stomp “racists” or burn down buildings than how to be functioning adults.

There are many jobs (including science and engineering jobs) that could be done by someone with a two year degree or even vocational training. The notion that a four year degree will prepare you better for the workforce better than other paths is self-serving garbage from professors and administrators eager to protect their sinecures. Four year degrees are filled to the brim with pricy crapadoodle courses that make students worse citizens instead of better (see: multiculturalism).

Even engineering courses are steadily being absorbed into the Marxist Borg. Engineering students are getting fewer technical elective (which could actually be useful) in favor of whatever Maoist struggle session lunacy that universities churn out. Here is a thought experiment: how would you like to drive across a bridge or work in a building design and built by engineers who were trained to believe that mathematics is a racist construct?

No one, not a single person or institution, who touts the “benefits” of racial or ethnic “diversity” has ever been challenged to prove that this idiotic view of “diversity” actually provides any benefit at all. Because it doesn’t.

And this statement simply flies in the face of the facts accepted by this court:

“These goals make clear that Harvard’s interest in diversity ‘is not an interest in simple ethnic diversity, in which a specified percentage of the student body is in effect guaranteed to be members of selected ethnic groups,’ but ‘a far broader array of qualifications and characteristics of which racial or ethnic origin is but a single though important element.’”

The only measurable goal, as far as I can tell, is that a race-neutral admissions policy would reduce the percentage of blacks in each freshman class from 14% to 6%. And “Hispanics” from 14% to 9%. Hispanic is in scare quotes because it isn’t a race but a linguistic group. The Irish fled the famine and other harsh conditions during the 19th and early 20th century and went all over the world. Is a blue-eyed, red-haired, very light-skinned and freckle-faced Mexican national of Irish descent “Hispanic” or white? Is a Mexican national of Chinese descent (again, the Chinese diaspora extended to Latin America) discriminated against by the Harvard admissions crew because her last name is Chang? Or is she favored by the same crew because her first name is Alexandria and she lists her first language as Spanish? Are Brazilians considered “Hispanics” for admissions purposes? I don’t know; this race-obsessed way of thinking and race-obsessed (or racist, to put it in a single word) prism through which the left views the world is alien to me. I don’t see why not since Hispania was the name the Romans applied to the entire Iberian peninsula but then since when do the actual definitions of words mean anything to the left? But suppose Brazilians are considered Hispanics. Brazil is the home of the largest population of people of Japanese descent outside of Japan (many have returned to Japan, largely to the Asakusa district of Tokyo, and the Asakusa Samba Matsuri [festival] is a blast and I highly recommend it if you’re in Tokyo at the time). If Leandro Okabe (male model and actor) had applied to Harvard would he have been favored as a Hispanic? Or discriminated against as an ethnic Japanese?

Note the fact that both blacks and “Hispanics” form 14% of each entering freshman class. That’s not a coincidence. Harvard can claim its goal isn’t to guarantee these races/ethnicities/linguistic groups a guaranteed percentage of freshman class slots, and courts can pretend that’s true, but in fact the range of guaranteed slots for blacks and Hispanics has been remarkably consistent over the decades. Within a percentage point or two. This shows the guaranteed percentage is in fact the goal. Anyone who has studied complex organizations knows that there are procedures on paper. Then there are the real procedures the organization actually follows. In fact, the procedures “on paper” are often simply there to provide the organization with an alibi. On paper Harvard can claim that they aren’t illegally discriminating. A court that agrees that blatant discrimination for the “right” reasons is admirable can ignore the actual results of the procedures that Harvard actually follows. And both can point to claimed “goals” that never result, nor have any quantifiable benefit even if they were achieved, that exist only on paper as their excuse. But hopefully the SCOTUS won’t buy it.

One last appeal. I have my second surgery on Monday. I’m still paying off my first one from July (high deductibles). And I still won’t be able to work for quit a while as I do rehab.

If you can please help me out.

Or if you can’t please link to this on your social media so I can reach more people. Thank you.

Equity, above all else — even beyond the demands of justice, in the sense of earning one’s due.

In postmodern, neo-Marxist, CRT-guided newspeak, these ideals-to-attain are neither redundant, nor anywhere overlapping because the former supersedes the latter.

What will result? One needn’t “reimagine” history. History always sets the future’s agenda.

Haaaaahvaaaahd can go stick its collective head where the sun doesn’t shine. They invited my son to apply, and then rejected his application.

Harvard is the biggest college recipient of money from China.
Message to Chinese students from Harvard Admissions: No need to apply but we will be very happy to take your money. Maybe China is funding Harvard’s Affirmative Action .

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