There are many reasons that conservatives rallied so strongly around Jeff Sessions in his recent conflict with President Trump. This week, we got another reason to be glad he runs the Department of Justice.
The New York Times reported that it obtained a document indicating that DOJ was looking for lawyers who were interested in “investigations and possible litigation related to intentional race-based discrimination in college and university admissions.” Despite the lack of any racial emphasis whatsoever, the Times described the intent as “redirecting resources” to protect “white applicants.”
I’d describe it differently. I’d say the DOJ is enforcing the law. And if you think white applicants would be the prime beneficiary of fair enforcement, you’re sadly mistaken. The true victims of affirmative action are our Asian American citizens.
In 2015 and 2016, Asian American groups filed complaints against a number of elite American colleges, and these complaints presented evidence of a truly stunning level of race-based discrimination in higher education. For example, they alleged that Asian Americans have the “lowest acceptance rate for each SAT test-score bracket.” To gain admission to college, Asian American students had to score 140 points higher than white students, 270 points higher than Hispanic students, and 450 points higher than black students.
Compounding the problem, the complaints presented strong evidence of prohibited quotas. As the Asian American population expanded, its college-admission rate stagnated — in much the same way that anti-Semitic administrators used to place caps on Jewish students.
At Yale, for example, from 2001 to 2008, the percentage of Asian American students never exceeded 13.80 percent of the student body or dropped below 13.50 percent — an unbelievable almost decadelong fluctuation of only 0.3 percent. The caps change over time (they increase and decrease), but they’re always there.
The complaints rightly assail the damage caused by the quotas and the obvious and extreme higher standards applied to Asian American students:
The discriminatory practices by Yale, Brown, Dartmouth, and other Ivy League colleges have caused tremendous harm to students in the Asian American community, including stress/mental health issues, pressure to study more as the bar is raised higher, lack of trust in American institutions, self-identification crises, and fortification of racial barriers. For every Asian American college applicant, such discrimination engenders a feeling that, being Asian American, he or she is somehow less American than peers of other racial backgrounds.
I can understand why. I’ve seen this discrimination with my own eyes. As I’ve written before, I served for a time on the admissions committee at Cornell Law School, and there was a crystal-clear racial, ethnic, and ideological hierarchy. Asian students faced the toughest admissions challenge, then white students, then Hispanics; black students had to clear the lowest academic hurdle. In fact, there was discrimination even within ethnic groups. The committee preferred Mexican Americans to Cuban Americans. It preferred Filipino applicants to Chinese. And it absolutely preferred minority applicants who indicated a commitment to social justice over those who indicated a desire for economic success.
Moreover, in practice, affirmative action often increases the admissions chances of wealthy black and Hispanic kids over poor Asian Americans and poor whites. White students are dinged for their alleged “privilege,” but what privilege do Asian American students enjoy? After all, there are still Japanese Americans alive today who spent time in internment camps. The legacy and pain of discrimination is very real, and it’s compounded by academic standards that explicitly tell Asian American students they have to do more and achieve more than anyone else to enjoy the same access to American higher education.
How is any of this legal? After all, Title VI of the Civil Rights Act of 1964, as written, prohibits discrimination on the basis of “race, color, and national origin” in federally funded educational institutions. The 14th Amendment to the U.S. Constitution establishes that no state can deny any person within its jurisdiction the “equal protection of the laws.”
Decades of leftist judicial and regulatory activism have reversed their meanings. The Supreme Court has repeatedly reaffirmed that the 14th Amendment permits the use of race in admissions for the sake of advancing the “compelling state interest” of a properly diverse student body. Left-wing regulators have essentially and improperly rewritten Title VI so that colleges can take the Orwellian step of discriminating to allegedly end discrimination.
But these exceptions are supposed to be relatively narrow. Colleges are supposed to reject formulas and quotas. The admissions process is supposed to be “holistic,” with race merely one of many factors considered. In practice, quotas exist. In practice, the formulas are clear. In reality, race isn’t just one factor in admissions — time and again, it’s the most important factor.
Kids know it. Parents know it. Admissions officers know it. That explains the strain Asian American families feel when their kids have ambitions of attending the best schools. It creates an injustice often imposed on poor white kids who face the burden of their alleged “white privilege.” It does a disservice to black students who know they can take their foot off the academic gas and still gain admission to America’s most elite colleges.
Affirmative action is indispensable to the scourge of identity politics: It cements into law the racist notion that the color of your skin matters more than the content of your character. It creates injustice for the purpose of curing injustice, and it works mainly to polarize an already divided nation. No one should be under any illusion that Sessions alone can end this destructive practice, but if his DOJ can punish the worst and deter the rest, he can at least start a process that is long overdue.
David French is a senior writer for National Review, a senior fellow at the National Review Institute, and a lawyer. ©2017 National Review. Used with permission.