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By taking up two cases on affirmative action – one against Harvard College, the other against the University of North Carolina – has given itself the chance to correct the great wrong of using racial preferences to select winners and losers. This comes not a minute too soon, as the Biden administration has introduced color-consciousness into all manner of policymaking. 

Ironically, these racial preference cases will be heard in the court’s next term by, among others, an associate justice who will have been picked primarily by virtue of her race and sex. has promised he will nominate only a Black female judge to replace retiring Justice Stephen Breyer. 

This comes on top of the administration’s decision to use race or ethnicity as a factor in the , and its adoption of a $4 billion farm loan relief program that excluded White farmers. The latter was struck down as unconstitutional.  

This aggressive acceleration of race-consciousness, a betrayal of the ideals of the Civil Rights Act, has been a hallmark of the Biden administration. And since the use of race to dole out benefits began with college admissions right after passage of the act, it is only fitting for the court to stop it where it began.  

The case against Harvard has received the most attention because it cuts directly to the perversity of using race and national origin as bases for making decisions in the 21st century. The suit was filed by Students for Fair Admission, a group of Asian American students who say that Harvard’s admission polices violate Title VI of the Civil Rights Act of 1964. Title VI prohibits discrimination based on race, color or national origin for any program that receives federal funds.  

The constitutional issue involves the equal protection clause of the 14th Amendment, the central purpose of which, as the Supreme Court has said, is to prevent the states from purposefully discriminating between individuals on the basis of race.  

Asian Americans have overachieved educationally, despite the fact that today’s Chinese and Indian Americans are mostly first or second generation. They are, in other words, newcomers with no connections or knowledge of the system. 

It’s been well over 44 years, and we still haven’t gotten “beyond racism.” To the contrary, racism is having a field day under this administration.

Yet, according to the Asian American Coalition for Education, Asian Americans accounted for over half of the “highly qualified” applicants to Harvard in 2008. The reason, clearly, is because they practice what researchers have long called the “success sequence.” Compared to other demographic groups, they have fewer out-of-wedlock births, fewer divorces and spend more hours doing homework. 

Their success counters the lie that undergirds the promotion of racial preferences: that you can’t expect people who start a race at different starting points to have an equal opportunity.  

While proponents of the Civil Rights Act were promising color-blindness (Sen. Hubert Humphrey famously said, “If ever this act is used to discriminate against anyone because he is male or White, I will eat the bill page by page.”), others expressed different views. The sociologist Charles Hamilton co-authored a book in 1967 with the communist leader Stokely Carmichael that clearly stated, “In the end, we cannot and shall not offer guarantees that Black Power, if achieved, would be non-racist. The final truth is that the White society is not entitled to reassurances, even if it were possible to offer them.” 

The term “institutional racism” first appeared in their book and is intended to illustrate that major industries and sectors of America were racist, (as well they had been until President Lyndon Johnson signed the Civil Rights Act on July 2, 1964). Unfortunately, America quickly returned to her onetime institutional racism when elites adopted Hamilton and Carmichael’s approach. 

As the Supreme Court took up Regents of the University of California v. Bakke – the first of what would be several cases authorizing racial preference – McGeorge Bundy, then president of the Ford Foundation, wrote in the Atlantic that “To get past racism, we must here take account of race. There is no other present way.” Bakke was decided on such a notion, and in his concurring opinion in Bakke, Supreme Court Justice Harry Blackmun parroted Bundy himself: “In order to get beyond racism, we must first take account of race.” 

It’s been well over 44 years, and we still haven’t gotten “beyond racism.” To the contrary, racism is having a field day under this administration – despite the clear example set by Asians that the way to close the disparity gap is to embrace habits that lead to success, and the fact that large numbers of Americans (73%) reject the use of racial preferences in college admissions, as evidenced by a 2019 Pew Research Center survey. Indeed, institutional racism continues to creep into higher education through efforts disguised as “diversity,” “equity” or “inclusion.” 

The use of race or national origin to pick winners and losers in academics, government benefits or anything else is morally repugnant and unfit for our multi-ethnic society. Moreover, it demonstrably fails to right any historical wrong. Only a madman keeps doing the same thing again and again, expecting different results. 

Sarah Parshall Perry is a legal fellow in Heritage’s Meese Center for Legal and Judicial Studies.