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The Perfect Victim and the Perfect Judge —The New Challenge to Affirmative Action

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If it feels like we’ve been here before, we have.

The use of race in college admissions is legal and has been tested and upheld by the high court time and again, most recently in the Fisher v. Texas case. But that’s not stopping conservative anti-affirmative activist Ed Blum.

He’s the one leading the charge in this new federal court challenge in Boston this week. It’s a case that claims Harvard is somehow using race in a discriminatory way in college admissions. Harvard, of course, denies the claim. But Blum and his ilk, who have made fighting against racial justice their life mission, has something new up their sleeve. They feel they have the perfect victim.

Those of us who thought Blum losing Fisher v. Texas would settle the issue of affirmative action, once and for all, were sadly mistaken. Fisher was merely a learning experience for Blum. When he realized he couldn’t fight and beat affirmative action with a White victim (Fisher), he set out to find a better victim. He advertised on websites. Sure enough, the good victims came to him.

They would have to be a real minority, a person of color. But not a Black or Latino. They’re not perfect victims. Any Black or Latino who applied would generally get into an elite school of their choice.

Emil GuillermoEmil Guillermo

Blum needed a group that was rarely heard from, that would somehow be qualified for admission, but get rejected. In that sense, they’d be whining in the same key as Whites. Only Blum’s new plaintiffs are not White. They’re Asian.

The so-called model minority is Blum’s perfect victim — proxy Whites who feel aggrieved because they didn’t get into elite schools.

I personally don’t see how the suit can win. Since 2014, Harvard routinely admits a freshman class that is close to or exceeds 20 percent Asian American.  That’s more than three times the Asian American population of the country. How can that be discrimination?

Easy says Yukong Zhao, president of the Asian American Coalition for Education, who’s working with Blum to defeat affirmative action. I’ve talked with Zhao the last two years and he’s convinced every Asian American student who is qualified must get into Harvard.

That’s just an unrealistic expectation.

But Zhao and Blum are forcing the issue. Should Harvard be 40 or 50 percent Asian? Some elite public schools in the University of California system are at that level already.

So the question is does Harvard have some cap of 20 percent on Asians? If so, by current law, quotas are illegal. And that’s likely Blum’s best attack, to prove that Harvard has some artificial limit on Asians that can be construed as the improper use of race.

Getting the answer to that and to how Harvard comes up with a formula for producing a freshman class is already a minor victory for Blum. It may even show how Harvard discriminates in favor of other groups, like legacy candidates, athletes, high donors. But then what? Admissions is more art than science. What is the desired outcome for the aggrieved Asians? Everyone takes a test and the highest scores get admitted, period? Too easy. And again, not realistic.

The unfortunate thing is that the Chinese student advocates like Zhao and others are really under the impression they are fighting for their kids who they feel all deserve to go to Harvard.

Too bad Blum doesn’t care about their kids. Blum’s not even letting any plaintiffs testify, reportedly. And why should he? He doesn’t care about them. The Asians are just used for show. What Blum cares about is beating back racial equity and ending affirmative action. Beyond the perfect victim, Blum has something else in place he didn’t have before.

His perfect judge.

Brett Kavanaugh is the new  5th vote in a 5-4 court.

Sen. Cory Booker asked Kavanaugh point blank during the confirmation hearings about whether the judge saw race conscious programs as racial entitlements?

Kavanaugh refused to answer under oath, despite all the times he’s claimed publicly that he’s agreed with the late Justice Antonin Scalia’s oft-quoted belief that “government can never have a compelling interests in implementing race conscious programs that seek to address this nation’s wretched history of racial discrimination.”

That’s why whatever happens in Boston won’t stay in Boston. It’s likely to end up in Washington, D.C.,  at the Supreme Court.

And Kavanaugh will be there to make Blum’s day. The perfect judge affirming Blum’s perfect victims.

Emil Guillermo is a journalist and commentator. You can follow him on Twitter @emilamok.

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