Biden’s ‘Yes’ to Racial Preferences

0
11

Elizabeth Prelogar appears before a Senate committee considering her nomination as solicitor general of the United States, Sept. 14.



Photo:

Rod Lamkey/Zuma Press

A week into his presidency,

Joe Biden

issued a memorandum declaring “the Federal Government has a responsibility to prevent racism, xenophobia, and intolerance against everyone in America, including Asian Americans and Pacific Islanders.”

Almost a year later, President Biden has now done an about-face. According to a brief by his solicitor general,

Elizabeth Prelogar,

the same federal government that Mr. Biden says should be fighting racism against Asian-Americans is OK with using race to discriminate against Asian-American college applicants. Even more significant, Ms. Prelogar’s brief urges the Supreme Court not to hear a lawsuit against Harvard University that seeks to have the use of race in college admissions declared unconstitutional.

What gives?

At the center of it all is a 2014 suit filed by the nonprofit Students for Fair Admissions accusing Harvard of violating Title VI of the Civil Rights Act, which prohibits discrimination based on race by institutions that receive federal dollars. In 2019 SFFA lost its case at the district court. In 2020, it was shut down at the First Circuit Court of Appeals too.

None of this was unexpected. SFFA then asked the Supreme Court to take the case. In June the high court asked the Biden administration to weigh in before deciding whether to grant cert.

Now it has. In a 27-page brief, the solicitor general says essentially what Harvard says: that its use of racial preferences in its admissions is perfectly legit, and that the Court should not grant cert.

This too was expected. After all, the Biden administration in February withdrew an almost identical suit the Justice Department had itself filed against Yale. The Department’s U-turn here on racial preferences in college admissions is but another consequence of the 2020 election.

Further complicating the issue is

Donald Trump.

In President Trump, Asian-Americans discriminated against by universities such as Harvard found a leader (and a Justice Department) willing to champion their cause. The Biden team, meanwhile, painted Mr. Trump as egging on violence against Asian-Americans with rhetoric pointing to Covid-19’s origins in China.

This was the politics underscoring President Biden’s Jan. 26 memorandum. It doesn’t mention his predecessor by name. But plainly Mr. Trump was the target of language declaring that “the Federal Government must recognize that it has played a role in furthering these xenophobic sentiments through the actions of political leaders, including references to the COVID-19 pandemic by the geographic location of its origin.” In short, Mr. Trump’s use of the “Chinese virus” was said to have “contributed to increasing rates of bullying, harassment and hate crimes” against Asian-Americans.

All this came, moreover, in the context of the traditional Asian-American political preference for Democrats, including Mr. Biden in the 2020 election. But these days Democrats have reason to worry. A just-released Wall Street Journal poll reports that Latinos, once a reliable Democratic bloc themselves, are now equally inclined to consider Republican candidates. With President Biden’s solicitor general having formally come down for racial preferences that reduce the number of Asian-Americans admitted to college, the question is whether there will be political consequences.

All across elite institutions, especially in academe, racial preferences are dogma. But as the Supreme Court considers whether to hear SFFA’s case, it would do well to consider how narrow this support is. A 2019 Pew Research Center survey finds 73% of Americans—including 62% of African-Americans and 65% of Hispanics—saying “colleges and universities should not consider race or ethnicity when making decisions about student admissions.” Not to mention that in the past two years voters in deep blue California and Washington each defeated well-funded attempts to reinstate racial preferences now banned in their states.

The Supreme Court might also consider how dramatically the race dynamic has shifted in the years since its defining ruling in Grutter v. Bollinger (2003), a decision that allowed colleges to use race in admissions. In an amicus brief supporting SFFA’s case, the National Association of Scholars notes that the Asian-American population has increased 67% since then. By this they mean to say that what was once a stark, black-and-white American divide has become multiracial, with consequences no one anticipated.

“[T]he cost of racial preferences,” the NAS says in its brief, “is now primarily borne not by the white majority but by Asian-Americans—another minority group that has been historically subject to discrimination.” How telling that the progressive answer to this dilemma increasingly is to consider Asian-Americans officially white.

The question for the Supreme Court is whether it has the stomach to declare squarely for the Constitution and against racial preferences at a time when it has already committed to take on other contentious issues from guns to abortion. But the political question inadvertently introduced by Solicitor General Prelogar is equally intriguing—whether Asian-Americans will buy the argument that Mr. Biden is standing up for them by opposing language like “kung flu” even as his administration backs those using racial preferences to keep their kids out of Harvard.

Write to [email protected]

Main Street: America’s top public high school, Thomas Jefferson High School for Science and Technology, shows us what discrimination looks like today. Images: Coalition for TJ Composite: Mark Kelly

Copyright ©2021 Dow Jones & Company, Inc. All Rights Reserved. 87990cbe856818d5eddac44c7b1cdeb8

Appeared in the December 14, 2021, print edition.