• Curt Levey

CFJ to SCOTUS: Harvard’s 100 Years of Racial Discrimination is Enough

The Committee for Justice—along with the Pacific Legal Foundation and others—filed an amicus brief in the Harvard and University of North Carolina cases being argued today in the Supreme Court. The cases challenge the Supreme Court’s 2003 ruling in Grutter v. Bollinger that universities can use racial preferences in admissions to achieve broad-based diversity.


The following statement was issued by CFJ president Curt Levey, who litigated Grutter v. Bollinger along with his colleagues at the Center for Individual Rights:


Harvard University’s one hundred years of racial discrimination—in the name of furthering an amorphous interest in diversity—is enough. Only the Supreme Court can put an end to this pernicious practice and the time is now.


As our brief points out, racial balancing “at universities like Harvard … have a long and deplorable pedigree. Roughly a century ago, Harvard maintained a ‘holistic’ admissions process designed to limit the number of Jewish students enrolled at the university” under the guise of seeking diversity. Today, the same excuse is used to limit the number of Asian American students.


In the 1920s and 1930s, Harvard gave applicants ratings such as J1, J2, or J3 to indicate the weight of the evidence indicating that the student was Jewish. Today, college guidebooks like the Princeton Review sadly must instruct Asian American applicants to “distance [themselves] as much as possible from” Asian stereotypes.


Recognizing that colleges’ obsession with the racial composition of their student body was continuing to produce noxious results, the Supreme Court warned in Grutter in 2003 against “[e]nshrining a permanent justification for racial preferences.” The Court stated that “It has been 25 years since Justice Powell first approved the use of race to further an interest in student body diversity. … We expect that 25 years from now, the use of racial preferences will no longer be necessary.”


Nearly twenty of those 25 years have now passed and schools show every sign of enshrining a permanent justification for racial preferences. Rather than slowly going away, our brief notes, “racial balancing has spread to K-12 education, where it is now depriving children of spots at some of the best public schools in the nation solely because of their race.”


Rather than witnessing the amelioration of racial disparities in academic performance, research indicates “[s]tudents who receive racial preferences are more likely to transfer to other schools, take longer to graduate, and are less satisfied with their college experience.” At best, race-based admissions is an experiment that has failed. It is time for the Supreme Court to end the resulting century of discrimination.


The Committee for Justice got involved in this case because ensuring that the judiciary engages in textualist interpretation of our statutes and the Constitution—including the prohibitions on racial discrimination in the Equal Protection Clause and Title VI of the 1964 Civil Rights Act—is central to CFJ’s mission of preserving the Constitution’s protection of individual liberty. Our amicus brief reminds the Court of “the fundamental principle of the Equal Protection Clause—which requires government to treat individuals based on their personal qualities instead of their membership in a crudely defined racial group.”


Our brief was authored by Wencong Fa and other attorneys at the Pacific Legal Foundation.