The Harvard Case Is About the Future of Affirmative Action

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One day before Harvard goes to court to defend its admissions practices, two warring rallies made clear that the trial is about much more than just the university.

On Wednesday, newly minted Harvard president Lawrence Bacow delivered a sober message to the campus community. In less than a week, he said, Harvard would be heading to federal court to defend its use of race in admissions. “This lawsuit has the potential to create divisions on our campus and in our broader alumni community,” he wrote. And on a brisk Sunday here, those divisions were remarkably clear.

One day before the start of the trial, two warring rallies revealed the deep fissures in the Asian American community over affirmative action. Supporters of Harvard’s race-conscious admissions practices—mostly students—began arriving at Harvard Square early Sunday morning. They grabbed prepared signs from a box, hung banners, and slipped on light blue shirts. The message was consistent: “Defend diversity.”

Supporters of Harvard’s race-conscious admissions policy march from Harvard Square. (Adam Harris / The Atlantic)

It was important that they made their voices be heard, they argued, because this is bigger than Harvard. And they aren’t wrong. This case, the latest in a string of challenges to affirmative action, seems poised to make it all the way to the Supreme Court, and could fundamentally change if and how race can be considered  in admissions. The Supreme Court has upheld race-based affirmative action several times over the last 40 years, but, as the court has lurched to the right with the appointment of Brett Kavanaugh, the future of the practice is more imperiled than anytime in recent memory.

Starting today in federal district court, lawyers for a coalition of Asian American students, brought together by conservative legal strategist Edward Blum and his group Students for Fair Admissions, will argue that Harvard unfairly caps the number of Asian American students it admits in order to boost the enrollment of other racial groups. It will also argue that the college has not considered alternative strategies to  diversify its campus.

Blum has made a career of challenging race-specific policies. He previously spearheaded a case against affirmative action practices at the University of Texas at Austin, and before that, he instigated Shelby County v. Holder, the landmark case from 2013 that nullified pieces of the Voting Rights Act. Several students at the rally were aware of Blum and his litigious past, arguing that he is using Asian Americans as a cudgel to advance a personal agenda of ending affirmative action in higher education.

The lion share of students who had gathered in Harvard Square were, themselves, Asian American—including students and recent graduates who will testify in support of the university in court. That includes Thang Q. Diep, a senior who submitted portions of his admissions file to the court in an effort to bolster Harvard’s case.

“As an Asian American, I do not believe that Harvard’s race conscious admissions policy hurt me,” Diep wrote in a statement to the court. “I disclosed my race and I did not have stellar grades, but I was accepted to Harvard most likely based on my personal statement, which reflected the diversity that I brought to campus.”

And on Sunday, he forcefully declared why he was standing up for Harvard. “My stance on affirmative action is a general reminder to the rest of America—and especially to Edward Blum,” he said to a chorus of cheers, “that I, along with so many other Asian Americans, refuse to be tools of white supremacy, and that we stand in alliance with all communities of color.”

Diep’s argument is one that has resonated with Asian Americans: According to a survey by AAPI Data, nearly two-thirds of Asian Americans support affirmative action policies. Yet, specifically among Chinese Americans, support for the practice is substantially lower.  And some three miles away, across the Charles River, another group—dominated largely by Chinese Americans—voiced their displeasure with Harvard’s policies.

Unlike the the student rally, the event, held in front of the historic Trinity Church, had the markings of a professionally produced rally, such as a surround-sound speaker system, an elevated stage, and metal barriers. And rather than the signs and shirts vowing to “defend diversity,” this rally featured placards decrying affirmative action. “Discrimination in the name of diversity is wrong” was the motto of the gathering, jointly hosted by the Asian American Coalition for Education, or AACE, and Students for Fair Admissions.

Yukong Zhao, the president of AACE, boasted during his speech to a crowd of roughly 250 people that the litigation is sending a message to other schools. “If you don’t stop your discrimination,” Zhao said, “we will file civil rights complaints against you, we will take you to trial.”

There were notably fewer students at the latter rally. Kelley Babphavong, a junior at Harvard, was a notable exception. Babphavong, whose parents are from Laos, and who spoke at the anti-affirmative action rally, believes that the Asian American students supporting Harvard aren’t considering the other possible alternatives to race-conscious admissions, such as class-based preferences. (Students for Fair Admissions has enlisted Richard Kahlenberg, a policy analyst at the Century Foundation, a left-leaning think tank, to make this point in court.)

But there are doubts that tipping the scales in favor of socioeconomic diversity will do anything to racially diversify a campus, for a simple reason. As Sue Dynarski, an economist at the University of Michigan, put it, “Most poor people are white. Putting a thumb on the scale for low-income students will help far more white students than black or Hispanic students.”

The dueling rallies on Sunday revved up both sides for the three-week-long battle over Harvard’s admissions practices. “We’re not at war with Harvard, we’re not at war with higher education,” Blum told me. But still, how the case plays out in court could ultimately have major ramifications for whether colleges in places far away from Cambridge will continue to consider race in admissions.



GOP pollster: Republicans may hold on to the House in midterms

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GOP pollster John McLaughlin said Sunday that Republicans may be able to fend off Democrats' efforts to take back control of the House in November's midterm elections. 

Speaking on AM 970's "The Answer" in New York, McLaughlin told host John Catsimatidis that the key to a Republican victory next month is retaining enthusiasm felt by GOP-leaning voters following the successful confirmation of President Trump's second Supreme Court nomination, Brett Kavanaugh.

"You’re seeing Republicans in the areas where Trump did well go up in the polls because the Trump voters are reengaged," McLaughlin said.

"If, over the next three weeks, they keep those Trump voters engaged, [then] we have a shot at holding the House, but we’ll definitely pick up some U.S. Senate seats," the pollster continued.

McLaughlin, who served as Trump's top pollster during his 2016 campaign against Hillary Clinton, asserted that Republicans should take a page from Trump's book and go on the offense.

"The Republicans, they need to play offense," McLaughlin said, adding that the party's target should be House Minority Leader Nancy Pelosi (D-Calif.), who has battled opposition from within her own party in recent months.

"The person who is the most unpopular national figure is Nancy Pelosi. And the Democrats are hiding her," McLaughlin continued. "The president needs to take her on and expose her because she stands for higher taxes, open borders, fewer jobs. She stands for basically a weaker America."

Democrats are battling for a net gain of 23 seats in the House to retake the lower chamber next month. Republicans hold the advantage in the Senate, where Democrats are seeking to close a two-seat gap.

Republicans trailed Democrats by 13 points on a generic congressional ballot among likely voters in a CNN poll released this week. FiveThirtyEight's election forecast currently gives Democrats a 79 percent chance of winning control of the House next month.



White House limits scope of the FBI's Kavanaugh investigation

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The White House is limiting the scope of the FBI's investigation into the sexual misconduct allegations against Supreme Court nominee Brett Kavanaugh, multiple people briefed on the matter told NBC News.

While the FBI will examine the allegations of Christine Blasey Ford and Deborah Ramirez, the bureau has not been permitted to investigate the claims of Julie Swetnick, who has accused Kavanaugh of engaging in sexual misconduct at parties while he was a student at Georgetown Preparatory School in the 1980s, those people familiar with the investigation told NBC News. A White House official confirmed that Swetnick's claims will not be pursued as part of the reopened background investigation into Kavanaugh.

Ford said in Senate testimony Thursday that she was "100 percent" certain that Kavanaugh sexually assaulted her when they were both in high school. Ramirez alleged that he exposed himself to her when there were students at Yale. Kavanaugh has staunchly denied allegations from Ford, Ramirez and Swetnick.

See AlsoJeff Flake said he demanded an FBI investigation because the Senate 'is coming apart at the seams'

Instead of investigating Swetnick's claims, the White House counsel's office has given the FBI a list of witnesses they are permitted to interview, according to several people who discussed the parameters on the condition of anonymity. They characterized the White House instructions as a significant constraint on the FBI investigation and caution that such a limited scope, while not unusual in normal circumstances, may make it difficult to pursue additional leads in a case in which a Supreme Court nominee has been accused of sexual assault.

The limited scope seems to be at odds with what some members of the Senate judiciary seemed to expect when they agreed to give the FBI as much as a week to investigate allegations against Kavanaugh, a federal judge who grew up in the Washington DC area and attended an elite all-boys high school before going on to Yale.

Sen. Jeff Flake, Republican of Arizona, who led an 11th hour move in the Senate committee for an FBI inquiry, said he thought the bureau would decide how to carry it out. His Democratic colleague Sen. Sheldon Whitehouse of Rhode Island said he expected the FBI probe to include "adequate staffing," support from the committee for "rapid immunity and subpoena decisions as needed, plus the ability to investigate claims of a "penchant for drunkenness and inappropriate treatment of women, particularly where specifically related to incidents under investigation."

An FBI spokeswoman declined to comment, referring questions to the White House.

A White House official did not specifically dispute limitations on the scope of the FBI's investigation but denied the White House was "micromanaging" the inquiry.

White House spokesman Raj Shah said that "the scope and duration has been set by the Senate. The White House is letting the FBI agents do what they are trained to do."

The Senate has only said that supplemental FBI background investigation "be limited to current credible allegations against the nominee and must be completed no later than one week from today."

White House counsel Don McGahn, who has shepherded Kavanaugh's nomination since president Trump chose him for the high court on July 9, is taking the lead for the White House in dealing with the FBI on the investigation, those involved in the process told NBC News.

See AlsoBernie Sanders wants FBI to probe whether Brett Kavanaugh lied under oath

A U.S. official briefed on the matter said its not unusual for the White House to set the parameters of an FBI background check for a presidential nominee. The FBI had no choice but to agree to these terms, the sources told NBC News, because it is conducting the background investigation on behalf of the White House.

If the FBI learns of others who can corroborate what the existing witnesses are saying, it is not clear whether agents will be able to contact them under the terms laid out by the White House, the two sources briefed on the matter said.

Some areas are off limits, the sources said.

Investigators plan to meet with Mark Judge, a high school classmate and friend of Kavanaugh's whom Ford named as a witness and participant to her alleged assault.

But as of now, the FBI cannot ask the supermarket that employed Judge for records verifying when he was employed there, one of the sources was told. Ford said in congressional testimony Thursday that those records would help her narrow the time frame of the alleged incident which she recalls happening some time in the summer of 1982 in Montgomery County, Maryland.

Two sources familiar with the investigation said the FBI will also not be able to examine why Kavanaugh's account of his drinking at Yale University differs from those of some former classmates, who have said he was known as a heavy drinker. Those details may be pertinent to investigating claims from Ramirez who described an alleged incident of sexual misconduct she said occurred while Kavanaugh was inebriated. Ramirez's lawyer said Saturday that she had been contacted by the FBI and would cooperate.

The conditions under which the FBI's reopened background check are occurring appears to differ from the one envisioned by Flake, who used his leverage as a swing vote to pressure the Trump administration to order the FBI investigation.

Flake said Friday he thought the FBI should decide the scope of the investigation.

"They'll have to decide — the FBI you know, how far that goes," he told reporters. "This is limited in time and scope and I think that it's appropriate when it's a lifetime appointment and allegations this serious and we ought to let people know that we're serious about it."





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