Although the Civil Rights Act of 1964 reasserted the principle that no one should be discriminated against based on race, it has been clear that racial identity proponents led by our cultural elites have succeeded in dividing America into racial categories while allocating jobs and even elections based on race.  Two recent Supreme Court cases challenge this move.  The Court heard arguments regarding two critical cases brought by the Students for Fair Admissions Inc. (“SFFA.)” SFFA is “dedicated to defending the right to racial equality in college admissions.”   These related cases -- SFFA v. Harvard and SFFA v. the University of North Carolina -- are primarily driven by SFFA’s members, including Asian American students who were denied admission to Harvard and the University of North Carolina.

In making their admissions decisions, it is evident that both schools consider the race of applicants, with the schools advantaging American Indian, Hispanic, and black applicants at the expense of Asian American students.  Driven by the promise of merit and values surfacing from strong families, Asian American students study more than twice as many hours as white students.  Hence, it is not surprising that Asian Americans outperform whites as well as members of other ethnic minorities.  The data at Harvard show that an Asian American applicant in the fourth-highest decile (top 40%) of his graduating class had only a 6.51 percent chance of admission.  In contrast, an African American applicant had a 57.7 percent chance of admission. Harvard offers a holistic admissions approach steeped in deceptive practices that hide racial preferences.  As George Washington University professor Jonathan Turley has shown, Harvard arguably manipulates the applicants’ personality, likability, courage, and kindness scores to achieve its desired objective: race-based admissions levels.

This approach represents little more than the return of Plessy v. Ferguson’s separate but equal doctrine, which is now hidden within contemporary diversity rhetoric. Plessy v. Ferguson was outlawed more than seventy years ago in the Brown v. Board of Education decision.  The return of race-based admissions allows Harvard to rate Asian American applicants fifty percent lower on average than African Americans.  Harvard’s percentage ranking allowed black students with lower scores on standardized tests to be admitted at roughly twice the rate of Asian American students.  This raises the question of why Harvard and other universities have decided to engage in subterfuge that is hidden in plain sight.  Several answers take center stage.

Dismayed by Asian American students’ willingness to study hard, provoked by the contention that America is irredeemably racist and outraged by Asian American success, university admissions officers throughout the United States have launched corrective measures designed to disadvantage Asian students.  Outrage advances in lockstep with five deductions. First, “Woke” admissions officers essentially accept the highly Marxist claim that only race matters, thus consigning blacks and Latinos to perpetual victimhood status on the road to societal revolution.  This social justice move enslaves minorities in perpetual victimhood status. Victimhood is tied to Peggy McIntosh’s White Privilege thesis, which states that racial bias is the only factor explaining economic, social, or educational disparity.  Implicit in this contention is the poisonous claim that black Americans are the only ethnic group in history that cannot do well under less-than-ideal conditions.

Second, admissions officers are angered by the fact that Asian American success disproves the contention that only race or ethnic identity matters.  Indeed, the data proves that Asian Americans and West Indian blacks often do better than white Americans in schooling and per capita income while also enjoying lower crime rates. Consistent with this observation, Syrian Americans, Korean Americans, Indonesian Americans, Taiwanese Americans, and Filipino Americans experience significantly higher median household incomes than whites, higher test scores, lower incarceration rates, and longer life expectancies.  Unmoved by the data, admissions officers ignore the evidence right in front of their eyes.

Third, universities’ emphasis on ethnic diversity is designed to ignore collateral casualties of their admissions policies that extend beyond Asian Americans.  Other casualties include a significant percentage of nonwhite students (blacks and Hispanics) who suffer after admittance.  Preferential admissions ensure that many admittees will likely graduate near the bottom of their class, thus ensuring that minority admittees often remain caged by progressive elites’ ostensible commitment to diversity.

Fourth, universities confuse diverse viewpoints with ethnic and racial diversity.  Confusion proceeds because admission officers believe that diversity of skin color advances the search for truth.  This is an absurd conclusion because neither skin color nor ethnicity alone can advance the search for truth.  Instead, diverse viewpoints, conservative or liberal,  advance the search for truth. Because members of the same race may hold starkly opposite viewpoints, the substitution of skin color diversity for diverse points of view amounts to nothing less than sordid race-based condescension.

Fifth, and finally, Harvard and other universities prefer to engage in preferential admissions based on race because they disdain the United States Constitution.  They have accepted black writer Nikole Hannah-Jones’ claim that America is racially oppressive.  This claim, offered at speeches where she earns up to $40,000 per hour, implies that blacks should fully embrace their victimhood status.  Such claims are as self-defeating for them as they are as profitable for her.  Consistent with Hannah-Jones’ contentions, “Woke” universities assert their admissions policies are justified even if they must now discriminate against members of another ethnic minority (Asian Americans).

Against this backdrop, Americans who believe in rationality, reality, and the Constitution face growing challenges when they scan social media platforms.  From food to language to calculus to the Senate filibuster, virtually everything is about race, gender, and identity, arrayed against injustice, implicit bias, and systemic racism.  Every category is in an impending state of flux, demanding conformity to prevailing social conventions that imply the necessity of enforced diversity, equity, and inclusion. Such conventions cannot be found within the text of the Constitution.  Instead, the text of the 14^th Amendment of the Constitution prohibits any State from denying “any person within its jurisdiction the equal protection of the laws.”  Additionally, the conventional approach to diversity flies in the face of Chief Justice John Robert’s declaration that the way to stop discriminating based on race “is to stop discriminating on the basis of race.” Notwithstanding the wisdom of this declaration, advocates of racial essentialism -- from segregationists who have traditionally populated the Democrat party to today’s Critical Race Theorists -- claim only race matters simply because they do not want us to ever get beyond race.

Now the Supreme Court has the opportunity to embrace Justice Roberts’ valid observation.  Let’s stop discriminating on the basis of race and emphasize the cultural and family values that allow Asian American students to thrive in a system emphasizing merit.  Such an approach is the first step toward freeing blacks and Hispanics from the Marxist Left’s insistence that we are a nation of perpetual victims while restoring the promise of the 14^th Amendment of the Constitution.  

Harry G. Hutchison is a Distinguished Law Professor at Regent University. His latest book is Requiem for Reality: Critical Race Theocrats and Social Justice Dystopia.

Image: Fred Schilling, Collection of the Supreme Court