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 5.

“It remains an enduring challenge to our nation’s education system to reconcile the pursuit of diversity with the constitutional promise of equal treatment and dignity,” Justice Kennedy wrote for the 4-to-3 majority.

Some colleges, such as Duke and Bucknell universities, said they would wait to see how the Education Department proceeds in issuing new guidance. Other colleges said they would proceed with diversifying their campuses as the Supreme Court intended.

Melodie Jackson, a Harvard spokeswoman, said the university would “continue to vigorously defend its right, and that of all colleges and universities, to consider race as one factor among many in college admissions, which has been upheld by the Supreme Court for more than 40 years.”

A spokeswoman for the University of Michigan, which won a major Supreme Court case in 2003, suggested that the flagship university would like more freedom to consider race, not less. But it is already constrained by state law. After the case, Michigan voters enacted a constitutional ban on race-conscious college admissions policies.

Where are we headed? Tough to know!

1) Discrimination against Asian-Americans is significant, unpopular and very hard to justify. A Republican Supreme Court is going to find it hard to allow it to continue, at least officially. I suspect that decisions like Fisher v. Texas are in trouble, although any eventual over-turning might be several years out.

2) The Deep State of elite education is not so easily defeated. Affirmative Action — treating applicants differently on the basis of their race — is already illegal in states like California and Michigan and, yet, it still goes on sub rosa.

3) Elite institutions like Harvard are determined and resourceful. Their defense in the current lawsuit is, quite frankly, genius. Harvard creates a personal rating for all applicants. Asian-Americans do much worse on this metric. Once you account for these scores, Harvard (probably!) does not discriminate. And, since those (totally opaque!) scores are under Harvard’s complete control, there is no way to prove that it is discriminating or to stop it from doing so.

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