Judge Allison Burroughs might want to avoid Chinese restaurants for a while, owing to her disgraceful federal court opinion rationalizing Harvard University’s blatant discrimination against Asian-American undergraduate applicants. After spiking in admissions during the 1990s and comprising 21 percent of Harvard’s student body, Asian-American admissions plateaued to under 20 percent— creeping up to 25 percent after Asian-Americans protested in a lawsuit against Harvard in response to the pullback.
Those Asian-Americans didn’t get in by acing chopsticks dexterity contests. As a group, they rate higher in grades, test scores, and extracurricular activities than others. But subjective factors, including “tips” by admissions officials on various elements (such as legacy admissions, sports, and “personality”) significantly reduced their enrollment. Judge Burroughs defended these interventions as essential to preserve black and Hispanic numbers so all Harvard students could benefit from their presence.
Even for an opinion defending racial preferences, this one surely ranks as one of the most ridiculous ever written by a federal judge, for example: “there is no evidence of any racial animus whatsoever or intentional discrimination on the part of Harvard beyond its use of a race conscious admissions policy….” To be fair to the judge, she has terrible material to work with in the Supreme Court’s incoherent opinions on affirmative action.
Her self-contradictory parody of judicial reasoning quotes the late African-American novelist Toni Morrison (naturally): “The wise and esteemed author Toni Morrison observed, ‘Race is the least reliable information you can have about someone. It’s real information, but it tells you next to nothing.’” So Harvard will some day, the judge expects, reach the point where the “fact” of race is no longer important, no longer “the defining fact.”
Nonetheless, trying to keep the government’s interests alive, she declares, “The Court’s affirmance of the University’s admissions policy today does not necessarily mean the University may rely on that same policy without refinement.” And then she accuses the suing Asian-American students of demanding admissions quotas! A fact-based analysis of Harvard admissions policies and the discriminatory judgments the university was making can be found in Althea Nagai’s analysis of how Harvard’s own testimony indicts its admissions process as discriminatory. (Full disclosure: Nagai is my wife.)
I flee this parody of legal reasoning and substitute my own defense of Harvard’s policy by reference to other Supreme Court affirmative action cases involving Asian-Americans. Whether my defense is less ridiculous than that of Judge Burroughs I leave to critical readers.
Why shouldn’t Harvard defend its anti-Asian policies in the same way the Court defended the ethnic Japanese exclusion cases in World War II? Shouldn’t Harvard be reticent to accept students who might turn out to be disloyal to the country? In an opinion criticizing racial preferences policies in higher education while also sympathizing with them, William O. Douglas, who participated in the ethnic Japanese relocation cases of World War II, cited and defended them albeit as at “the verge of wartime power.” Today of course the Japanese exclusion cases are deemed to justify “concentration camps” for illegal migrants.
But Justice Brennan, whose opinion supporting racial and ethnic preferences in the pivotal affirmative action case of Bakke v. University of California, goes much farther than Douglas. While racial categorizations in law are constitutionally dubious, Brennan also allows an “‘overriding statutory purpose,’ [which] could be found that would justify racial classifications.” “Paradoxically,” Brennan allows, the Japanese cases are among the precedents supplying such a rationale of positive or negative discrimination.
But all this ignores, I believe, the real reason Harvard wants to keep a ceiling on Asian-American admissions. It doesn’t have to do with personality defects, obsession with grades, science nerdiness, or even, perish the thought, treasonous inclinations and un-American proclivities—things the Court was not prepared in 1944 to deny about ethnic Japanese.
The reason for Harvard’s discriminatory policy can be found in the “critical mass” argument the Left often deploys for greater racial quotas for blacks and Hispanics. But it is wrong to scapegoat these groups for a ceiling on Asian-Americans. No, the blame rests more on white women, who need their “critical mass” of white men as partners. Not just any white men, mind you, but Harvard brand white men.
Harvard men, not Caltech nerds. (In the past few years Caltech’s entering classes have had over 40 percent Asian-Americans, compared with the mid-20 percents for MIT.)
Of course no Harvard applicant is going to state such a self-interested desire in her or his application. Ivy League schools are not about breeding after all! Yet even in the face of the rants of feminist tracts, Harvard apparently recognizes nature and the attractions it calls forth.
Nature will continue to assert itself in the powerful drive of smart women for successful men. It just needs to be apologized for in bizarre ways, as in Judge Burroughs’ opinion and in racial preference policies generally. In the meantime, may she continue to find polite and submissive waiters at her favorite Boston Chinatown restaurants.