Harvard discrimination case could end affirmative action_00000000.jpg
Harvard admissions case could end affirmative action
04:12 - Source: CNN

Editor’s Note: Shan Wu is a former federal prosecutor who also served as counsel to Attorney General Janet Reno. His Twitter handle is @ShanlonWu. The opinions expressed in this commentary are his own. View more opinion on CNN.

CNN  — 

Asian-Americans and all fair-minded people should be angry about several of the allegations made in the lawsuit against Harvard regarding its admission practices. Harvard denies engaging in any discrimination against Asian-American applicants, claiming instead that the lawsuit is really an effort to force universities to adopt racially blind admissions standards.

But the so-called “personal” score is especially offensive. If, as alleged by the plaintiffs, Harvard regularly scored Asian applicants lower than white applicants in such personality traits as “likeability,” “integrity” and “courage,” then that is dictionary definition racism.

Don’t believe me? Here’s the Oxford Dictionary definition for racism: “The belief that all members of each race possess characteristics, abilities, or qualities specific to that race, especially so as to distinguish it as inferior or superior to another race or races.”

Shan Wu

But the importance of calling out such possible racism has been diluted by the fear that a loss for Harvard would be a loss for diversity in higher education. Certainly, that is the view held by the rest of the Ivy league schools who submitted briefs supporting Harvard and the many advocacy groups taking the same position

Allowing such fears to suppress our outrage is wrong.

To begin with, the outcome of this case does not determine the future of affirmative action or race consciousness in college admissions. As pointed out by Harvard Law Professor Jeannie Suk Gersen, the trial judge specifically removed from the case the initial request of the plaintiffs that “the court declare it illegal to use race as a factor in college admissions.”

Rather, the question that remains is whether Harvard has impermissibly exceeded the narrowly tailored use of race to achieve diversity goals that the Supreme Court permits by discriminating against Asian-American applicants.

To paraphrase James Carville: It’s about the racism, stupid. And ample evidence exists for concern.

Despite Harvard seeking to keep secret the details of its process, the court order made public the results of an internal investigation conducted by Harvard’s Office of Institutional Research in 2013, which revealed that Asians were admitted at a lower rate than non-Asians with similar qualifications, and expressed concern over potential anti-Asian bias in the admissions process.

The first day of trial testimony did little to alleviate these concerns, as the Dean of Admissions admitted requiring Asian applicants to have higher PSAT scores than non-Asian applicants in order to be contacted as part of Harvard’s outreach program to potential applicants.

Admittedly, the addition of Justice Brett Kavanaugh to the Supreme Court adds legitimacy to the worry that the court may be hungry for an opportunity to bar any consideration of race in college admissions. But the linking of personality to race is indefensible.

Scoring Asian-American applicants lower than white applicants for their “integrity,” and “courage” is no different than calling them “sneaky” and “inscrutable.” And scoring Asian-Americans lower for “likeability” and/or considering them more “boring” than white applicants is simply the practice of othering – they (Asians) are different than us (whites), so we do not like them as much. It’s code-word racism that cannot be tolerated.

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    For too long, Asian-Americans have suffered the clever discrimination of being called a “model minority,” against whom, supposedly, no real discrimination exists. This same category insidiously pits Asians against other “real minorities” in a manner that sows divisiveness between people of color and benefits only the racial majority. This lawsuit possesses the potential to tear away that illusion, and no one, least of all Asian-Americans, should shy away from it.

    While conservative activists may seek to use this as a test case to attack race-conscious admissions on a broader basis, such a possibility does not mean that we should condone racist anti-Asian-American bias as a necessary evil to accomplish the greater good of diversity.

    Race is not an evil concept. It is just a fact about people. Racism is an evil concept. We must take care not to conflate the two.