Diversity Programs: Elite Discrimination Against “Over Represented” Jews and Asian Americans

In 1963, Dr. Martin Luther King, Jr. challenged Americans to judge each other by the “content of their character” and not “the color of their skin.” By many measurable standards, the nation has heeded Dr. King’s call. Blacks now participate in all aspects and at all levels of American society.

Yet through diversity programs, much of the upper echelon of academia and industry rejects Dr. King’s challenge and instead blatantly discriminates based on race and ethnicity in admissions and hiring. It is long past time to end this odious practice, rethink these issues, and find a better way.

To redress what these institutions deem racial and ethnic “under representation,” they use racial and ethnic discrimination in favor of less qualified black and Hispanic applicants to increase black and Hispanic enrollment and employment shares.

But in doing so, they inherently use racial and ethnic discrimination against more qualified applicants from “over represented” groups – most often Jews and Asian Americans.

To make matters worse, as documented in a 2012 U.S. Supreme Court case, Fisher v. University of Texas, these diversity programs often help less qualified – but already affluent – black and Hispanic applicants who have not lacked opportunity. In other words, they often fail to provide significant opportunity for poor folks, of any race or ethnicity, who have had less.

Harvard University is the poster child for these discriminatory practices. As has been documented by, among others, Harvard’s own Alan Dershowitz and Edward Blum of the American Enterprise Institute, Harvard’s history of discrimination goes back to 1925. Rising Jewish enrollment that year reached at least 27 percent. Harvard’s response? For the next 20 years, it capped Jewish enrollment at about 15 percent.

Harvard’s more recent admissions practices have followed a similar approach with Asian Americans, Blum and others have shown. In 1992, Asian American enrollment at Harvard was 19.1 percent. In 2013, it was 18 percent. In the intervening years, it ranged from 14.3 percent to 20.6 percent. Yet during the same period, Asian American enrollment rose from 25.2 percent to 42.5 percent at the similarly elite California Institute of Technology – which does not consider race or ethnicity in admissions.

The best students typically apply to the best schools. This means that from 1992 to 2013, essentially the same best students that applied to Cal Tech also applied to Harvard. Cal Tech’s non-discriminatory admissions process resulted in a sharp increase in the share of Asian American enrollment. Harvard’s admissions process did not. This shows Harvard’s discrimination against Asian Americans.

The story, Blum also has shown, appears to be generally the same throughout the Ivy League, where from 2007 to 2013 Asian American enrollment ranged from 12 percent to only 19 percent.

At large law firms, Jews are the most “over represented” group and thus are the principal victims of diversity programs. While about two percent of Americans are Jewish, Willkie Farr & Gallagher partner Francis Menton estimated in 2014 that at top New York City law firms, for example, at least 25 percent of partners are Jewish. Promoting less qualified black and Hispanic lawyers into large law firm partnerships in New York and other big cities, instead of other more qualified lawyers, thus frequently means not promoting more qualified Jewish lawyers.

These discriminatory diversity programs are inherently racist. They fundamentally discriminate based on race and ethnicity. If we are ever to stop judging by “the color of their skin,” these programs must end. As Supreme Court Chief Justice John Roberts wrote in 2007 in Parents Involved in Community Schools v. Seattle School District No. 1: “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”

Fundamental American principles show a different and better way forward. Use objective, non-discriminatory criteria to decide who should be admitted or hired. Rely on competition to produce the most qualified applicants. And, as some universities recently have done, increase opportunity for poor folks, of any race or ethnicity, who have had less.

About the author: David M. Simon is a lawyer in Chicago. The views expressed in this article are his own and not those of the law firm with which he is affiliated. For more, see http://www.dmswritings.com.