Ken Marcus ’88 is the (recently confirmed) Assistant Secretary of Education for Civil Rights, a position which places him at the center of the debate about racial diversity in higher education. Marcus, and his colleagues in the Justice Department, have started the process of getting rid of racial preferences. Let’s spend a week discussing their efforts. Day 4.

The Trump administration’s moves come with affirmative action at a crossroads. Hard-liners in the Justice and Education Departments are moving against any use of race as a measurement of diversity in education. And the retirement of Justice Anthony M. Kennedy at the end of this month will leave the Supreme Court without its swing vote on affirmative action while allowing President Trump to nominate a justice opposed to policies that for decades have tried to integrate elite educational institutions.

Note the rhetoric:

1) “Hardliners” are people who object to discrimination/quotas against Asian-Americans. Would the New York Times have used that word in 1925 to describe people who objected to Jewish quotas at Harvard?

2) No one is “moving against any use of race as a measurement of diversity.” Ken Marcus does not care how Williams measures “diversity.” Williams can measure diversity however it wants! Marcus (and the rest of the Federal Government) object to Williams — as a recipient of federal funds via student loans — treating applicants differently on the basis of their race.

A highly anticipated case is pitting Harvard against Asian-American students who say one of the nation’s most prestigious institutions has systematically excluded some Asian-American applicants to maintain slots for students of other races. That case is clearly aimed at the Supreme Court.

The Harvard case is fascinating. It goes to trial in October. Should we provide more coverage? Again, it is unclear if Williams (today) discriminates against Asian-Americans the way that Harvard does. But the demographics and other societal changes mean that, unless we start doing so in the future, Williams will be 40% Asian-American a generation from now. I don’t have a problem with that. Do you?

“The whole issue of using race in education is being looked at with a new eye in light of the fact that it’s not just white students being discriminated against, but Asians and others as well,” said Roger Clegg, the president and general counsel of the conservative Center for Equal Opportunity. “As the demographics of the country change, it becomes more and more problematic.”

Indeed. Recall my favorite chart:


SAT scores are highly correlated with every other aspect of your academic profile: ACT, AP, subject tests, high school grades, teacher recommendations, essay quality, et cetera. Since Asian-Americans make up 50%+ of the highest SAT scorers, they almost are almost certainly 50%+ of the highest ACT, high school transcript, et cetera applicants. Why is Harvard only at 20%? Discrimination. Why is Williams only at 20%? Hard to know! We might discriminate, but, as with Jews almost a 100 years ago, the discrepancy might be caused by applicant preferences.

The key point — and one that smart guys like Roger Clegg and Ken Marcus will focus on — is that discrimination against Asian-Americans is a hard sell. When Marcus was cutting his teeth on affirmative action debates back in the 80s, it was much easier to justify discrimination against white applicants. First, they (being part of the power structure) were not particularly sympathetic victims. Second, their ancestors were plausibly guilty of historical crimes which required restitution. Third, they were such a large majority that a marginal decrease in their numbers did not seem a large price to pay for increased diversity.

I don’t think any of those arguments are going to work in the case of discrimination against Asian-Americans. And once Clegg/Marcus force places like Harvard/Williams to stop discriminating against Asian-Americans, how long will they be able to discriminate against whites?

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