Image 01 Image 03

Higher Ed Establishment v. Asian Students at SCOTUS

Higher Ed Establishment v. Asian Students at SCOTUS

Our column in The NY Post about amicus briefs filed against the Asian students in the Harvard/UNC Supreme Court discrimination cases: “The educational establishment’s uniformity and vigor in supporting racial preferences is staggering.”

As you know, we have been following very closely the lawsuit brought against Harvard University and the University of North Carolina, alleging admissions discrimination against Asian applicants. The case was just scheduled for argument in the U.S. Supreme Court for October 31, 2022. It could end Affirmative Action as we know it.

The Legal Insurrection Foundation filed an Amicus Brief in support of the Asian students. It provides, in part:

The grand judicial experiment of excusing racial discrimination in university admissions in the hope it would promote the educational objective of diversity of viewpoint has failed, and accordingly, this Court should overrule or modify its holding in Grutter v. Bollinger, 539 U.S. 306 (2003) (“Grutter”). Despite the Court permitting the use of race in higher education admissions, viewpoint diversity is increasingly endangered on campus. Since Grutter, the range of viewpoints permitted on campus, particularly on matters regarding race, has narrowed. It’s time to return to the constitutional prohibition against racial discrimination without an exception for education.

Johanna Markind of LIF, who co-authored the brief with me, and I have a column in the NY Post on the amicus briefs filed against the Asian students, Higher ed unites against Asian students in Supreme Court’s Harvard discrimination case.

Go to the link and read the whole thing, here’s an excerpt:

The dirty little secret of higher-ed admissions is that achieving a desired “diverse” racial mix means discriminating against Asian applicants — or at least, secret until Students for Fair Admissions exposed it.

The higher-ed establishment is brazenly defending its race-conscious admissions in dozens of amicus briefs…

The statistics are shocking. As SFFA noted in its Harvard petition, “an Asian American in the fourth-lowest decile has virtually no chance of being admitted to Harvard (0.9%); but an African American in that decile has a higher chance of admission (12.8%) than an Asian American in the top decile (12.7%).”

Such unequal treatment followed the 2003 Supreme Court decision in Grutter v. Bollinger permitting schools’ temporary, limited use of race as one of many factors for the desired educational objective of viewpoint diversity. Harvard and other schools have used this loophole to drive de facto illegal racial quotas, using admissions subterfuges like personal scores and a “holistic” approach reminiscent of the methodologies Harvard developed a century ago to limit Jewish enrollment….

Not a single college or university supported the Asian students. To the contrary, several dozen briefs were filed against SFFA on behalf of hundreds of colleges, universities, higher-education and professional-school associations, teachers unions, more than 1,000 professors and deans and even college basketball coaches.

One of the most striking things about these briefs is the openness with which colleges admit to having racial preferences and their complete lack of sympathy for the Asian victims of discrimination.

The American Bar Association, which accredits law schools, bluntly demanded the court “not ban race-conscious admissions policies.” The University of California president and chancellors argued that “universities must retain the ability to engage in the limited consideration of race.”

A group of highly competitive schools including most of the Ivy League claimed, “No race-neutral alternative presently can fully replace race-conscious individualized and holistic review to obtain the diverse student body.”

Without racial preferences, in other words, these schools could not achieve their desired racial mix….

The Supreme Court faces a stark choice: Continue the nod to racial discrimination or, as Chief Justice John Roberts once wrote, hold: “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”

Like I said, click over to the link for the whole thing. And share it.

UPDATE – A reader in NYC sent this photo of the column as it appeared in the print newspaper:


Donations tax deductible
to the full extent allowed by law.


Subotai Bahadur | August 3, 2022 at 11:24 pm

I know it won’t happen because we don’t have that much time left before things go TANGO UNIFORM, but as an American born of Chinese ancestry, with children and grandchildren; I can’t help but think that Asian-Americans in this country should form our own university with the highest standards and real classes, not the politically correct ones. If an Asian-American wants the PC ones, they can go with those with circular ocular organs.

One thing when I was growing up. Except for when I was in Nebraska and there were no other Asian-Americans in school and I was considered to be VC because, well these were Nebraskan kids; we Asian-Americans got along with each other. Chinese, Japanese, Koreans, Filipinos, it did not matter. There were so few of us that we got along and covered each others’ backs.

So let’s have an Epicanthic Fold University. Require Asian-American descent, 1450 minimum combined SAT score, with a 6+ on the essay. Hard standards. If they can exclude us, we can exclude them. And be the best Doctors, Lawyers, Engineers, and Scientists.

I assume there will be comments.

Subotai Bahadur

    jhkrischel in reply to Subotai Bahadur. | August 4, 2022 at 7:19 am

    The trick here is you don’t have to require asian-american descent. If you just have hard standards, you’ll get more asians.

    The future is filipino? 🙂

    CellarDoor in reply to Subotai Bahadur. | August 4, 2022 at 10:11 am

    Asians moving to America have displaced real Americans out of schools for decades. So White Americans have been dealing with this for a longer time than the newly aggrieved imports.

    The Gentle Grizzly in reply to Subotai Bahadur. | August 4, 2022 at 10:44 pm

    Neither Bette Savis orvMsrty Feldman need apply…

    divemedic in reply to Subotai Bahadur. | August 8, 2022 at 12:36 pm

    As a white guy with an SAT in the 98th percentile, and a GRE score in the 92nd percentile, I would support this. You don’t even have to restrict it to Asians. Just have high standards, and the vast majority of those who meet criteria would be Asians, Jesuits, some Mormons, and Jews. There would be a few Hispanics, and virtually no black students.

The Gentle Grizzly | August 4, 2022 at 3:45 am

Will European-Americans with epicanthic folds be allowed? There’s Asian blood there. I’m sure my Asian blood will not count as mine is the Steppes of Central kind.

I’m fairly sure you’d need to refuse federal money like Hillsdsle and agree with that.

I see your idea as a good one.

    Subotai Bahadur in reply to The Gentle Grizzly. | August 4, 2022 at 4:04 pm

    May be able to fit you in :-). The Huns that took out the Roman Empire were originally the Hsiung-nu tribe in Central Asia. They were annoying a Han dynasty emperor who gave a general an order to either kill them all or chase them so far away that he never heard of them again.

    The general knew that Chinese war chariots were not going to cut it against Hsiung-nu mounted bowmen. So he trained an army of Chinese mounted bowmen. And there were a bloody lot more than there were Hsiung-nu. Net result, they were chased west [looking at the maps there is a huge western salient of Han China at that time]. The Hsiung-nu chased west every central Asian tribe they encountered and the process kept repeating till they each hit the Roman Empire sequentially. Not good for the Romans.

    So if the DNA shows you are part of that, welcome to EFU. 🙂

    And they can keep the Federal money.

    Subotai Bahadur [who is Han Chinese, despite the Mongol pen name]

Daniel Yaacov | August 4, 2022 at 6:56 am

B”H” Open secret, known since the 90s, to anyone who attended schools in that tier and was not willfully blind

See flagship state schools statistics (undergrad, UC law / med school, UC system, UMich etc)

eg in 1997, the University of California Los Angeles (UCLA) School of Medicine was three times more likely to admit an applicant if they checked the race box marked “black” or “hispanic” than if they checked “asian” or “white.”

I agree with the scholastic requirements, but are Hungarians (with or without epicanthic folds) considered Asians?

    Pepsi_Freak in reply to paracelsus. | August 6, 2022 at 4:54 pm

    I know that geographically the Bosporus is considered to be the division between Asia and Europe, with lines extending northward from that Strait, but Hungarian friends of mine claim that culturally Hungary is the Eastern edge of Europe and the Western edge of Asia. I don’t argue with putative descendants of Attila.

We can only hope and pray that the current composition of SCOTUS will allow these utterly pernicious, unconstitutional (in my personal estimation; SCOTUS has obviously previously given the imprimatur of constitutional legitimacy to racial preferences in school admissions) inequitable, indefensible and corrosive racist admissions policies to be struck down as unconstitutional, once and for all.

Epicanthic folds? I’ll bet there’s a pill for that.

It’s not anti-Asian but anti statistically smart people. On the bright side, the Asians they do let in do exceptionally well because they are the extra-smart ones. They stamped out Asian failure pretty much.

I don’t know is Texas A&M University Prairie View is considered a historical black college but I know on this campus it is almost impossible to get into that school unless you are black—of the 8/9 thousand students there are less than 50 students that are not black. On campus It is expected to have one voice–this is not about diversity. It is about group think.

    CellarDoor in reply to Texasvoice. | August 4, 2022 at 10:13 am

    The Asians are taking spots in colleges and in high paying jobs from old stock Americans. We don’t need more foreigners in the US we need better education and a system that puts merit before race politics. No more hand outs to low scoring blacks just because they’re pretending to be traumatized.

      guyjones in reply to CellarDoor. | August 4, 2022 at 9:56 pm

      Your presumptuous reference to “the Asians” allegedly being foreigners is way off-base. Most of these folks are American citizens. And, your other reference to “old stock” Americans (whatever the hell that means) is just outmoded. There is no such thing, anymore.

        Another Voice in reply to guyjones. | August 5, 2022 at 3:40 pm

        I picked up on the same statement with you giving print to the same thought.
        ‘Old School’ as used implies that the Asian ethnic students are current immigrants. The fact that the majority of students of ethnicized Asian heritage are anywhere from 2nd to 5th generation Americans who have immigrated legally. What is ‘Old School’ is the value they give to family and education. If that is an Asian quality, we should be lucky to have had that passed along to other ethnic races which are being quantified and qualified in College and Universities admissions.

      JohnSmith100 in reply to CellarDoor. | August 5, 2022 at 10:16 am

      Asians are good for our gene pool. Our problem is not letting Asians in, it is letting stupid people and lowering out competitiveness by flooding the country with stupid people. There is smart diversity which is good, and dimwit diversity which is very bad.

Getting so sick of this. The whole thing is really starting to disgust me to no end. We need to crap can the whole racial thing and start going to letting people in based on merit, full stop.

Let people in first by their test scores, the top people get in first and get to fill those slots, and it shouldn’t matter one whit what their race is, just that they have shown that they have applied themselves over the years and have developed the ability to study, think, and apply the knowledge that they have picked up and use it to good advantage.

That, and that alone, is all that should matter for a college applicant. These are also the people that should be getting the government grants and loans for their educations, first and foremost, before all others, as they have shown the drive, initiative, and intelligence that it takes to succeed in college.

These would be best served as the next generation of doctors, lawyers, scientists, engineers, and so on that we need for this country to take first place once again on the world stage…

JackinSilverSpring | August 4, 2022 at 8:37 am

Segregation used to be a dirty word, especially when aimed at what the South did to undo the aftermath of the Civil War. Today, segregation has been dressed up in the form termed DEI (which I prefer to re-order as DIE). But even if you put lipstick on a pig it’s still a pig. Comparably, DEI is still segregation even if it has another name, and what the colleges and universities are doing is segregation, no matter what they claim.

The quote from Roberts is funny. Given his history as chief justice, the odds are that, this time, he will try to build a majority that allows discrimination to continue.

E Howard Hunt | August 4, 2022 at 8:48 am

These college administrators are more yellow than those against whom they discriminate.

I support ending racial preferences, but I think thie acuteness of this problem is caused by the hyper-emphasis on school rank and brand-name. I would rather have an education system where it matters much less where you.go to school, than our current practice of the rest of your life depending on 1 admission decision. What you do and how well you do it while in college should matter most, not what connections professors or the campus Career Center have. If there is a way to achieve that then the sting of these backwards admissions policies would be less severe because there would always be a good school with quality education available for every talented student.

    The Gentle Grizzly in reply to broomhandle. | August 4, 2022 at 12:37 pm

    All well and good, but, when you have an executive suite full of ivy league grads, or of some other high-status colleges, they will hire their own. The very best middle manager they have will not get a promotion up the ranks if their degree came from a small college, or – heaven forbid! – they actually WORKED and took their degrees in -sniff- night school.

    Throw in the “right” fraternity ring, and merit goes out the window.

    I imagine the grads from Epicanthic Fold U will not even consider hiring a round-eye, and, they’d get away with it because they are “oppressed”.

The word “diversity” is not anywhere in the U.S. Constitution. Nor is “affirmative action” mentioned. Based on the reasoning in the Hobbs decision, affirmative action and diversity, etc., as reasons to have race-conscious admissions must be struck down by the current majority in the U.S. Supreme Court. And I’ll bet this time, Roberts writes the opinion, too.

    fscarn in reply to Marco100. | August 4, 2022 at 12:37 pm

    That same Constitution also doesn’t have in it any word related to schooling (such as school, teacher, teaching, and so forth).

    Yet we have a federal Dept of Education.

    If I were president and I had a constitutionally-minded House and Senate, the amount of federal statutes that would be repealed would make your head spin.

    And it would also restore what was intended – a limited, federal government.

This is the problem facing those who champion the diversity Olympics. There’s always competition for the diversity seats at every table. Why should the mix of students be at a specific percentage or in a consistent range clustered around that target rate based on race?

What makes that % correct or desirable? Is it based upon national demographics? Is it based upon demographics plus HS grad? Those factors plus college application? Plus SAT/ACT test takers? Even if the goal of racial /gender diversity was a net positive, which IMO, it isn’t and shouldn’t be stipulated, but if it were then how do we arrive at the ‘perfect’ or merely ‘desirable’ % composition?

The d/prog and quota advocates love identity politics based on group but refuse to follow their own stated preferences to their logical conclusion. Make them declare the actual % based on ethnicity and gender they desire using whatever clearly stated modifiers comprising basic categories; college students, employment that requires college, employment that doesn’t require college, employment that doesn’t require HSG or GED.

Then make them agree to implement that across the board. They will quickly find out it isn’t workable. Here are a few jobs that don’t require college; NBA, NFL, DMV, postal service, construction labor, enlisted military occupations. Are they willing to apply their target % to these jobs? Why not if the % is not only desirable but, according to the advocates necessary?

Will they really be willing to insist on adherence to their preferred distribution of ethnic and gender across these
fields? Govt employees? Postal workers? Service support MOS? All of which have minority over representation? Will they require women to enter trades like brick laying to achieve their preferred target %. Why not?

Either mandatory division and distribution based upon race, ethnicity and gender are necessary or they aren’t.

    Jazzizhep in reply to CommoChief. | August 4, 2022 at 12:00 pm

    Keep in mind when you say “gender equity” you mean more men being admitted to college. As of 2021 59.5% of college students were female.

    Oh wait, never mind. That’s not what they mean at all. It’s

      NewYawkahBroad in reply to Jazzizhep. | August 4, 2022 at 1:44 pm

      If you put assuming gender into the equation the numbers turn into a Calculus event….

      CommoChief in reply to Jazzizhep. | August 4, 2022 at 5:59 pm

      More than that. Females will be assigned careers to balance out the numbers in disfavored occupations.

      As an example, both elementary school teacher and pediatrician are imbalanced with large numbers of females in excess of their demographics. Roofing and garbage collection are the reverse. So we reassign to ensure a more equitable distribution.

      Suzy wants to be a teacher but got assigned garbage collection instead. Sally wanted to be a pediatrician but got assigned roofing. Tough luck ladies. Equality can no longer be limited to professional / laptop class. Highest to lowest. Best jobs to worst. No cherry picking.

In more ways than one, Asian-Americans are the new Jews of the 21st century, and anti-Asian discrimination in college admissions is a repeat of anti-Semitic discrimination of the last century. It’s particularly disturbing to see the higher ed establishment defending its own current discriminatory admissions policies.
Plain old white Americans can only stand by helplessly observing and commenting, hoping that SCOTUS will do the right thing after the justices hear arguments in October. I’d like to have some hope for Roberts, but it’s a stretch. Depending on the outcome, this decision could generate as many angry demonstrations as Dobbs has.

    JohnSmith100 in reply to [email protected]. | August 5, 2022 at 10:25 am

    Affirmative shit needs to be banned. We also need to purge incompetent Affirmative hires, that means about 90% in my experience. We also need a minumin IQ standard for politicians, regardless of race.

At some point, American blacks have to compete on a level playing field. Experience has shown that excuses and special treatment only lead to mre excuses and special treatment. It’s been fifty years since the civil rights movement. Enough. Merit, period.

Diversity, Inequity, and Exclusion (DIE), a Pro-Choice ethical dogma and practice.

NewYawkahBroad | August 4, 2022 at 1:42 pm

They don’t want the Asians coming in and embarrassing the ignorant Americans. 3rd grade Asians can destroy college Americans educationally. Affirmative Action needed to be gone 40 years ago. If you can’t make the grade, not our problem.

Subotai Bahadur | August 4, 2022 at 3:41 pm

I thought I was going to be disappointed. I wrote the first comment at least partly for the purpose of fecal agitation and there were no replies when I went to bed. But I am glad to see that most people commenting are coming down on the side of earning your way in and through.

If I may make an extended comment [Professor, if it is too long, just delete it.] Way back in ancient times when colleges had just progressed beyond being a log with a professor on one end and a student on the other; I spent part of my college career at the University of Colorado, Boulder.

Back then, we had something called Educational Opportunities Program. Student-run, office space furnished on campus, school funded. There were 4 EOP’s; Asian-American, Black, Native-America, and “La Raza Unida”. As one might guess, I was involved with the Asian-American EOP. It was a mostly volunteer thing. I did get minimum wage while I was tutoring [more on that later], but basically we administered some grants and scholarships based on need, selected the recipients, and helped them adjust to higher education [first time in their family for most] and tutored them when they had problems with coursework if we could find a tutor.

We ran it differently from the other programs. We put the word out to high schools on the Front Range [which at that time was where almost all Asians were]. Our target students were those who had the intelligence, high school grades, and ability but the family did not have the resources to send the kid to college. They frequently were first generation in this country. We did not select until we had met with the kid, his family, his high school counselor, and his teachers. We helped pay for the school [mind you; tuition, fees, books, and dorms were a lot cheaper then], furnished counseling, and tutors. At any one time we had maybe 50-60 kids in our program mostly in the hard sciences. While I was involved, we only had one kid flunk out and he was an EE student trying to work full time too, to help his family. We told him not to, but he did it anyway.

That is how WE did it, The Black and “la Raza Unida” would go to the high schools they themselves had gone to and ask, “Hey, do you want to go to college for free?”. No interviews, no checks of grades or transcripts, no support programs or tutoring. And every semester most of the kids they sponsored would flunk out. And there would be demonstrations outside Regent’s Hall because supposedly they flunked out because of racism, not because they did not do the work.

The Native American program was a bit different. It was much smaller than ours and we took them under our wing as best we could because they did not have a cadre of those who were successful students to mentor them. We tried to use our methods, and had one other problem. The very last thing that the Bureau of Indian Affairs wanted was to have college educated Indians [especially lawyers] to hold them to the law. The local reservation BIA would threaten the families of our Native American students to get them to drop out. One Christmas break, when we got back the head of their program [remember, we were student run] didn’t. We checked, and the BIA had jailed him the moment he set foot on the reservation. We had to send a lawyer to spring him.

Now, which set of methods work; screening by ability or screening by skin color and protected class status? And which set of methods benefits both society and the individual? And which set of methods just make things worse? And which are we doing pretty much nationwide now compared to when I was in school a half century ago? I know that today it would not be allowed, in no small part because it worked.

To get back to the tutoring, as I said I would. Our time in the office was volunteer, even for the woman who ran our program. So when I was counseling, it was a freebie. When I tutored in a subject [various History courses, macro and micro economics, political science since I was pre-Law in those days] I and the other tutors got minimum wage, And one other fringe benefit. Our students were close to their families and would get care packages of Asian soul food. It made explaining things a lot easier if you had Cha Shu Bao or even canned dace w/ black bean to fuel the session in the dorm.

Subotai Bahadur

I laughed out loud when I saw basketball coaches were panicking over losing AA. Gee, why would they care?

Related note, how come all this Diversity Is Awesome doesn’t extend to the NBA?