Glenn Harlan Reynolds

Decades ago, the Ivy League colleges thought they had a problem: too many Jews. These recent immigrants, from a culture that prized education and academic achievement, had an unfortunate characteristic: They worked harder, studied longer and cared more about school. In short, they had all the attributes required for success in the Ivy League.

Problem was, the Ivy League didn't really want them. Being first-generation students, these applicants didn't have rich alumni parents who would be likely to donate big bucks. Being from an ethnicity not associated with America's governing class, they didn't help the Ivy League with its biggest selling point — that going to college there provides an opportunity to rub shoulders with America's governing class. And they were seen as boring grinds who studied too hard and weren't much fun.

The result was a change in admissions criteria to reward "leadership," and "well-rounded" candidates — a thin disguise for "WASPs" — and, following closely on, actual quotas for Jewish students, so that no matter how many applied, their numbers on campus would stay just about the same. After several decades, this came to be seen as racist and unfair, and the quotas were dropped. (Though by then, conveniently enough, the Ivy League was able to find Jewish applicants with plenty of money, polish and governing-class connections without too much trouble).

But while the quotas for Jews are gone, the Ivy League now, by all accounts, has quotas for Asian students. They are seen as people who study too hard, boring grinds who aren't much fun — and, of course, their parents aren't as rich and connected. And though the numbers of highly qualified Asian applicants have grown dramatically, the number of Asians admitted stays pretty much the same every year.

Now the Asian students are suing. In a lawsuit against Harvard, they are claiming that Harvard demands higher qualifications from Asian students than from others, and that it uses "racial classifications to engage in the same brand of invidious discrimination against Asian Americans that it formerly used to limit the number of Jewish students in its student body."

These claims are almost certainly correct. Discrimination against Asian students — and not just by Harvard, but throughout higher education — has been an open secret for years. Asian students, we're told, face a "bamboo ceiling" as a result.

Where today's discrimination is different from the Ivy League's old quotas against Jews is that those old quotas were removed as part of efforts to fight racism. The Ivy League's new quotas, meanwhile, are often defended on the same grounds — or, at least, as a means of attaining "diversity."

But that's harder to do in a nation that is made of minorities. In the old days, affirmative action was about overcoming white resistance to opening up institutions to blacks. If a black student with lower SAT scores got a spot in college at the expense of a white student, well, that white student probably had benefited to some degree from growing up, or having had parents who grew up, in a racially-segregated society. And, given many white institutions' history of lying and foot-dragging when it came to desegregation, affirmative action was a way of ensuring that we got results, not excuses.

But it has been more than 60 years since Brown v. Board of Education, and, what's more, racial issues in America are no longer black-and-white. The Vietnamese child of boat people or the Indian "untouchable" immigrant who applies to Harvard didn't benefit from racial segregation, and probably overcame more obstacles pre-college than an African-American born in New York. Why should these Asian applicants be disadvantaged so that universities can ensure that there aren't too many of the wrong kind of people on campus?

Thirty years ago, my old law professor Burke Marshall wrote an article in the Yale Law Journal on non-discrimination in a "nation of minorities." He opined that affirmative action was still about breaking down white power structures. Maybe that was still true in 1984. But now universities — all of which, including "private" schools like Harvard, are heavily fed by taxpayer funds — are engaging in racial discrimination in order to produce what they regard as a pleasing bouquet of race and ethnicity. Is that a good enough reason to deny individuals a fair chance? I don't think so. And I suspect that courts will feel the same way.

Glenn Harlan Reynolds, a University of Tennessee law professor, is the author ofThe New School: How the Information Age Will Save American Education from Itself.

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