It was okay to discriminate against white people, but maybe it is not okay to discriminate against Asians

“In cases challenging affirmative action, court will confront wide-ranging arguments on history, diversity, and the role of race in America” (

In 2003, the Supreme Court ruled in Grutter v. Bollinger that universities may consider race in their admissions processes as part of their efforts to achieve diversity on campus. On Oct. 31, the justices will hear oral arguments in a pair of cases asking them to overturn Grutter and outlaw race-based affirmative action in higher education altogether.

The challengers urge the justices to rule that the Constitution and federal civil rights laws bar any consideration of race in college admissions. But the universities at the center of the dispute, as well as their supporters, counter that overruling Grutter would have sweeping effects well beyond university admissions, affecting everything from the performance of U.S. businesses to the practice of medicine in an increasingly diverse society.

Both of the lawsuits were filed in federal court in 2014 by a group called Students for Fair Admissions, which describes itself as “dedicated to defending the right to racial equality in college admissions.” The group was created that same year by Edward Blum, a stockbroker and conservative activist who, though not a lawyer, has backed other prominent lawsuits challenging the consideration of race in undergraduate admissions as well as a challenge to the constitutionality of the Voting Rights Act. SFFA says it has more than 20,000 members.

The two universities being challenged are Harvard University and the University of North Carolina. But according to Harvard’s brief, over 40% of all U.S. universities — and 60% of selective universities — consider race in some form during their admissions process. The cases being heard on Monday could affect all of them.

“Consider race” = “discriminate by race” and it was legally okay for decades despite a U.S. Constitution that apparently barred such discrimination, at least for the government and its affiliates. I wonder if we can cut through all of the briefs that have been filed in this case. Can the issues be summarized with the following?

  • It is settled law that discriminating against white people is okay and, in fact, something to be proud of.
  • Asians now wear the “people of color” mantle.
  • It is not okay to discriminate against one subgroup within “people of color” in favor of another subgroup within that victimhood category.
  • Universities are not just discriminating against white people (permissible/legal/praiseworthy), but they’re also discriminating against Asians (impermissible/illegal/deplorable).

Who wants to bet on the outcome of these cases?

The current ruler is on the side of the righteous:

The Biden administration, which filed a “friend of the court” brief supporting the universities, pushes back sharply against SFFA’s suggestion that the universities’ consideration of race as one factor in their admissions programs is inconsistent with the court’s decision in Brown. SFFA’s “persistent attempts to equate this case with Brown trivialize the grievous legal and moral wrongs of segregation,” U.S. Solicitor General Elizabeth Prelogar writes.

The Ivy League schools from which the Supreme Court justices graduated are on the side of the righteous and, in fact, are the most eager and aggressive sorters of applicants by skin color.

So if we think of courts as helping the powerful, this one should go in favor of righteousness (continued racial discrimination).

On the other hand, it is tough to think of a way for the justices to write a decision that would allow continued discrimination against whites (the oppressors) while forbidding discrimination against Asians (successfully established in the victimhood category). The previous decision was absurd: “Court expects that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.” Via this approach to Constitutional law we could say that slavery is permissible right now because we’re in an inflation crisis and high wages are driving up prices, which then drive up wages in a spiral. Since we can’t stop indexing government spending to inflation, the only way to break the spiral is for 25 percent of working-age Americans to be enslaved. “Court expects that 25 years from now, the use of slavery will not longer be necessary to stop the inflation spiral that was launched in 2021.”

Because I am not creative enough to envision how a decision barring discrimination only against Asians could be written, my prediction is that race discrimination by these universities that get taxpayer money will be outlawed.

A Harvard job ad for an astronomy professor requires “Statement describing efforts to encourage diversity, inclusion, and belonging, including past, current, and anticipated future contributions in these areas” and “Demonstrated strong commitment to teaching, advising, and broadening institutional diversity is desired.”

8 thoughts on “It was okay to discriminate against white people, but maybe it is not okay to discriminate against Asians

  1. Who wants to bet on the outcome of these cases? I bet affirmative action will be banned outright and race or skin color will not be allowed to be considered.

  2. I am betting that the Supreme Court will outlaw race preferences in university admissions since they like most of the rest of us see the mess the Court has created in ignoring the plain language of the Civil War Amendments– like the mess the Court created in Plessy v. Ferguson when it similarly ignored the plain language of the 14th Amendment. Bakke I think it was in 1976 kind of ruled that under the Constitution race was not a legitimate criteria in university admissions but here we are nearly 50 years later.

  3. If the court wants to allow racial discrimination, the discrimination will be renamed something else, like antiracism, similar to ACA mandates being renamed as taxes.

  4. There are 3 justices who would no doubt agree with your summary point 1. However, they would waffle on the remaining points. These days all that is required to be a white supremecist is wrongthink (skin color is seemingly irrelevant), and discriminating against white supremecists falls under point 1. So point 2 is shaky, since some Asians don’t think correctly, and are therefore white supremecists. Then point 3 falls apart, because they’re not discriminating against the Asians that are actually POCs, but rather the ones that aren’t so colorful. And finally point 4 falls, because they’re just discriminating against whites and white supremecists, which is fine.

    • It’s the same thing as Mayra Flores not being allowed to join the Congressional Hispanic Caucus despite identifying as Hispanic, or Byron Donalds not being allowed to join the Congressional Black Caucus despite identifying as black. Discriminating against them doesn’t count, because wrongthink.

  5. If affirmative action is banned it will be very easy to get around.
    Every time you have a black applicant V a better academically qualified Asian candidate, you just need to do the following:

    Black Candidate: SAT 1450, but also is X*
    Asian Candidate: SAT 1600, but no so much X*
    SAT + X IS GREATER for the black candidate

    X* here will just be some arbitrary quality which will change depending on the candidates involved. So if one case, the black candidate plays sport, but the Asian was does not, then in that case X is “sport”. In another case it could be “leadership qualities”. Etc.
    In each case the candidate is supposedly chosen on MERIT, based on the sum combination of his superior qualities.
    In other words, it is not that different to the “holistic” criteria they use now, but they just do not call it “race” or link it anyway to race. They are recruiting the best candidates using colour-blind criteria.

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