My NBC Article on the Affirmative Action Cases Accepted by the Supreme Court.

NBC News published my article today on the Supreme Court’s role in two affirmative-action cases that were heard earlier today. Below is a sample:

Monday’s Supreme Court decision to hear Students for Fair Admissions, President and Fellows Harvard College. The case was challenging race-based admissions policies at Harvard College. A similar case will be heard against University of North Carolina Chapel Hill.

The litigation exposes a variety of flaws in “diversity”, a racial preference rationale that has been adopted by many colleges across the nation. The Harvard case also features extensive evidence indicating the school’s admissions system specifically discriminates against Asian American applicants — not just by comparison with other racial minorities but even relative to whites. This is an increasingly disturbing aspect of affirmative-action policy that the Supreme Court will examine in the Harvard case.

Harvard’s case against it would fall if courts stayed true to the law interpretations they make. Harvard, as a private university, does not have to adhere to any constitutional restrictions against racial discrimination. UNC is, however, a public university. However, Harvard is still subject to Title VI of Civil Rights Act of 64 because it has federal funding that it uses for student financial assistance and other purposes. Title VI bans discrimination on “the ground of race color or nationality” in federally funded education programs. However, it does not exempt from well-intentioned discrimination in affirmative actions.

The Supreme Court, however, has incorrectly interpreted Title VI as allowing racial preferences when the court interprets the Equal Protection clause of Amendment 14. And a series of Supreme Court rulings…. have held that racial preferences in higher education admissions are permissible under the 14th Amendment in some situations in which they are used to promote educationally beneficial “diversity…”

When the court considers the Harvard and UNC cases, it would do well to reject the “diversity” rationale entirely, or at least subject it to much tougher standards of review….

[T]Harvard’s racial/ethnic categories are not logical. In an amicus brief, one expert pointed out that “Hispanic” and “Latino” categories include many diverse groups, such as Argentinians (Cubans), Mexicans (Mexicans), and Spanish-speaking immigrants. “Asian Americans” include racial and ethnic groups that cover more than half the world’s population, such as Chinese people, Indians and Filipinos, among others….

This group has a vastly diverse history. They are lumped together in a handful of categories that make a mockery out of the notion universities actually seek diversity and not engage in stereotyping.

Perhaps even worse, the diversity rationale could be used to justify all kinds of racial and ethnic preferences….

[I]If compensatory justice truly is the goal, Harvard and other institutions’ discrimination towards Asian American applicants are even worse. Asian groups such as Chinese and Japanese Americans were themselves victims to a long history of discrimination by state and federal governments….

Such anti-Asian discrimination is not limited to Harvard, but has also arisen in admissions policy elsewhere….

These policies, while well-intentioned and intended to promote equality and diversity are unfortunately often pursued in the name of progressivism. But good intentions are not enough….

Unfortunately, the political right is not immune to anti-Asian bigotry. The wrongs of either side of the political spectrum are not enough to justify the actions of the others.

NOTE: The article mentions that my wife Alison Somin co-authored an amicus short urging the Supreme Court hear Harvard’s case and also served as co-counsel for the plaintiffs involved in a lawsuit challenging anti-Asian discrimination at Thomas Jefferson High School for Science and Technology.