53percenter's Blog

The one thing to know about Sen. Kamala Harris (D-CA) is that whenever she has a tiny bit of power, she abuses it.

In introducing Harris on Wednesday, former Vice President Joe Biden said that she was a fighter for the “little guy.” But he gave no examples — because there are none.

There are plenty of examples of Harris fighting against the “little guy.”

The most egregious example is her malicious prosecution of filmmaker and anti-abortion activist David Daleiden, who made undercover videos of Planned Parenthood employees discussing how to make money from the sale of tissue from aborted fetuses.

It was the first and only time undercover journalists had been prosecuted under an obscure California law.

Worse, Harris reportedly acted after meeting with Planned Parenthood, which was apparently upset that Daleiden had caught their employees in the act. The abortion group also wanted the videos suppressed. Daleiden says that when the state executed its search warrant on his home, its purpose was to seize unpublished videos to make sure they were never released.

Harris, he said, colluded with a powerful left-wing interest group to abuse the First Amendment and punish him for exposing it.

So much for fighting for the “little guy.”

Harris also abused the powers of her office to target a political opponent. It was part of a pattern. She attempted to force Americans for Prosperity, a 501(c)4 group supported by the Koch brothers, to reveal its donors, though they are already known to the federal Internal Revenue Service (IRS).

Harris tried to do at the state level what the IRS scandal had done throughout the country: bully and intimidate a conservative group.

A district judge agreed that allowing Harris to accept the donor lists would allow “harassment” and could suppress the group’s constitutionally-protected liberties. That judgment was overturned by the Ninth Circuit, and the case is pending before the Supreme Court.

What remains noteworthy about the case is Harris’s behavior: singling out a conservative, pro-business group for legal intimidation. Ironically, the 501(c)4 rules protected the NAACP during the civil rights struggle.

Once she arrived in the U.S. Senate, Harris continued her abusive behavior. She developed a habit of badgering witnesses and then turning her questioning into viral YouTube videos to raise campaign cash.

Occasionally, this tactic backfired, as when she grilled Brett Kavanaugh during his Supreme Court confirmation hearing about whether he had discussed the Russia “collusion” investigation. Laughably, she had no evidence; even the left-wing California media panned her performance.

The most shocking example came in 2018, when Harris used a confirmation hearing for Ronald Vitiello, who had been nominated to lead the Immigrations and Customs Enforcement (ICE) agency, to compare ICE to the Ku Klux Klan (KKK).

In an outrageous exchange, Harris accused ICE — which exists to enforce federal immigration laws the Senate itself has passed — of being like racist vigilantes who lynched black Americans. She had no evidence, only “perceptions.”

Far from fighting for the vulnerable, Harris has been accused of protecting abusers — most notably, declining to prosecute priests for sexual abuse when she was San Francisco’s district attorney. She was the only DA from a major city to refrain.

In the days since former Vice President Joe Biden picked Harris to be his running mate, conservatives have had a field day mocking the New York Times for calling her a “pragmatic moderate.”

Harris is no pragmatist, no record of working across party lines. She was rated by the non-partisan GovTrack as the #1 most left-wing member of the Senate, further left than Sen. Bernie Sanders (I-VT).

The main basis for claiming she is a “moderate” appears to be that she is a former prosector. But so, too, is Kim Foxx, the George Soros-funded radical notorious for dropping the charges against Jussie Smollett in Chicago after he faked a hate crime and blamed it on Trump supporters.

There is nothing intrinsically “conservative” or “moderate” about being a prosecutor, even if the current politics of the Democratic Party and Black Lives Matter are hostile to law enforcement. Harris, like many Democrats in politics, saw the prosecutor’s job as a political stepping stone.

When Rep. Tulsi Gabbard (D-HI) took Harris to task at the second Democratic debate last year, it was not just because Harris had taken a tough approach to marijuana offenders, but because she had laughed later about having smoked pot herself.

The attack resonated because it was an example of Harris abusing her power. She was willing to put thousands of people in jail for breaking a law she did not believe in herself because doing so would burnish her political credentials.

Another basis for claiming Harris is a “moderate” is that she is a creation of the Democratic Party political establishment. She got her start in politics from her association with California State Assembly leader and San Francisco Mayor Willie Brown. She won her Senate seat in 2016 with the help of the Bay Area liberal gentry and national Democratic leaders, including then-President Barack Obama. After the 2016 election, Harris tapped into Hillary Clinton’s donor network.

But the “woke” Democratic Party establishment is no longer politically “moderate.”

As Shadi Hamid noted in the Wall Street Journal in 2018, it was the Democratic establishment that became most politically extreme after Donald Trump won in 2016, embracing “Russia collusion” conspiracy theories and the like.

The establishment — of both parties — will adopt any outward political stance to protect its power. And Kamala Harris has a career-long habit of abusing hers.

Harris represents a clear and present danger to liberty in an era when the Democratic Party is siding with violent mobs and vowing to sweep away all obstacles to its power if it wins the November elections. Harris actually joined protests outside the White House on May 30, the same day that demonstrators there assaulted a Breitbart News journalist and others. Back home in California, antisemitic Black Lives Matter mobs were rioting through the heart of Los Angeles.

Biden is promising that he will “fundamentally transform” the country, which he says need “revolutionary institutional changes.” Harris, too, said Wednesday that she intends to overhaul a system afflicted by “systemic” racial injustice. And Obama called for eliminating the Senate filibuster to allow Democrats to do whatever they want.

If Harris would be, as many suspect, running a Biden administration from “day one,” the freedom of every American citizen would be at risk.

Joel B. Pollak is Senior Editor-at-Large at Breitbart News and the host of Breitbart News Sunday on Sirius XM Patriot on Sunday evenings from 7 p.m. to 10 p.m. ET (4 p.m. to 7 p.m. PT). His new book, RED NOVEMBER, tells the story of the 2020 Democratic presidential primary from a conservative perspective. He is a winner of the 2018 Robert Novak Journalism Alumni Fellowship. Follow him on Twitter at @joelpollak.

Israel and the United Arab Emirates reached an historic agreement on Thursday to establish full diplomatic relations, the White House announced after trilateral talks between the three countries.

President Donald Trump wrote on Twitter: “HUGE breakthrough today. Historic Peace Agreement between our two GREAT friends, Israel and the United Arab Emirates!”

Netanyahu described it as a “historic moment of breakthrough for peace.”

“A new era has opened in Israel’s relations with the Arab world,” he said.

The deal marks the third Arab country to hold diplomatic ties with the Jewish state after Egypt and Jordan. Most of the Arab world does not recognize the existence of Israel.

UAE leader Sheikh Mohammed bin Zayed Al Nahyan posted on Twitter: “The UAE and Israel also agreed to cooperation and setting a roadmap towards establishing a bilateral relationship.”

He also added that “an agreement was reached to stop further Israeli annexation of Palestinian territories.”

However in an address to the nation, Netanyahu said later that there were “no changes” to his plan to apply Israeli law over parts of the West Bank but that Trump had only requested to pause it for now.

In the address, Netanyahu described the agreement between the two countries as an “official and complete peace.”

According to the Israeli premier, it would pave the way for further peace agreements with Arab countries. “There will be more Arab states joining the peace circle with us,” he said.

He hailed the UAE as “one of the most powerful and advanced countries in the world.”

In outlining the terms of the deal, Netanyahu said the agreement includes “full diplomatic relations, the establishment of embassies, exchange of ambassadors, extensive investments that will benefit the Israeli economy, tourism and aviation – including direct flights between Tel Aviv and Abu Dhabi.”

“The United Arab Emirates will invest very significantly in Israel in the development of the coronavirus vaccine,” Netanyahu said. “We will also cooperate in energy, water, environmental protection and many other areas. This is a very important thing for our economy, the economy of the region and our future.”

Trump told reporters after the announcement that agreements between Israel and other Muslim states in the region could be in the offing.

“Things are happening that I can’t talk about,” he said.

Palestinian Authority officials were fuming at the announcement, calling Trump a “donkey” and “audacious,” Israel’s public KAN radio reported.

 

Democratic candidate Joe Biden has been stuck in his basement all these months and now wants us all to be mandated by law to wear masks. That’s his big idea.

According to CBS News:

“Every single American should be wearing a mask when they’re outside for the next three months, at a minimum. Every governor should mandate mandatory mask-wearing,” Biden said, suggesting that widespread mask use could save 40,000 lives over the next three months. “Let’s institute a mask mandate nationwide starting immediately, and we will save lives.”

Where ya been, Joe?

Governors have already been there. Here in California and in most big-population states, we’ve been wearing masks for months — in the Walmarts, in the Targets, at the Costcos, to the doctors’ office, to the post office, on our walks — the very few places we’ve been allowed to go, and during that brief period when we could go to the gym and indoor church services. Masks do do some good, and people generally follow the idea. So to put that idea out there as if none of us have noticed is rather obnoxious. Been there, done that.

Yet Joe puts this out as his bright new idea as if no one had ever thought of it before. Why exactly would Biden’s federal mask mandate somehow make things different? This is old hat stuff by someone who just woke up and smelled the coffee that’s gone cold. He seems to have missed the different gubernatorial mandates tailored to various state needs, as well as the months and months of wearing masks, particularly in big cities. It’s not a panacea, but it has been helpful there. Yet Biden wants one-size-fits-all, and is convinced he can wave the entire problem away with this sweeping diktat.

Here’s why it’s stupid: We’ve already begun solving the problem as masks (and many other solutions) have been followed. Outdoor activities have been positive – church services, beach activity, and if California would just allow it, outdoor school would be great. Hydroxychloroquine combined with zinc and other adjacent treatments has been a lifesaver. Operation Warp Speed, to develop a vaccine, is on track for a successful year-end launch. And there are also signs of herd immunity developing. A lot of us have marveled at the low transmission rate on New York City’s packed subways, and many experts think sufficient immunity has come of it. The latest news is that it doesn’t take much for herd immunity to develop.

Yes, new cases are high but only because more testing is available – lots of undetected cases have been found, often among symptomless young people, which would have otherwise gone away unnoticed. More important, deaths are down, bigtime down, down from April, where deaths peaked at 4,928 on one bad day in that month. In late July, the last day recorded, they were at 391. Catching COVID no longer means you are going to die, because almost no one does. 

Yet for Biden, it’s still March 2020 and he’d like us all to know he’d handle the coronavirus better than President Trump did with this vast new imposition. Yes, it’s good to wear masks, but only in place where it can do some good. America has 300 million people, and a rancher in South Dakota where few COVID cases exist anyway, is going to need one a lot less than a packed multi-generational house in a Los Angeles tenement or an infirm elderly person living in a nursing home.

And an order that sweeping is also going to get ignored. We’ve already seen how spring breakers ignored it. We’ve seen how protestors, rioters, and looters ignore it. We’ve also seen farmworkers working in tight quarters from places with little understanding of viruses ignore it. And we’ve seen inner-city Black communities where multigenerational families are common and distrust of mostly white authorities handing out edicts is even more common to ignore. Some of these places do, indeed have more COVID cases. 

Seriously – 300 million people here and police budgets being cut by blue-city governments, how’s Biden going to enforce this? The old dinosaur hasn’t worked this out yet. Let’s see how he does when protestors and rioters take to the streets, forgetting their masks.

Is Joe Biden proposing to go after the rioters on mask grounds? As long as he’s got cops out issuing tickets for these mask violations, maybe he can arrest a few for hurling bombs and setting fires.

And for additional idiocy, note that Biden threw out a three-month period for it, as if the ‘experts’ he’s consulted have ever been right before. (Remember the two-week lockdowns? Funny how they extend).

First we weren’t supposed to wear masks, then we were, and in response to state orders, most of us complied. In places where Karens were present, we were scolded on the streets if we didn’t.

What most people want is not more masks – we have all had a bellyful of masks, and as Andrea Widburg noted here, some people are getting something called “mask mouth” as a result of their compliance – we want the problem solved and times to go back to normal.

Biden isn’t offering that. He’s offering the false promise of that, but he’s focused on the power to impose, not the solution, and oh gosh, it’s so old – kind of like him. When no solution comes, he’ll extend the mask mandate forever, in the name of ending all risk. And as Issues & Insights notes today, it won’t stop there.

Not only will it not work, it’s a hideous campaign platform — Joe Biden, candidate of permanent lockdown, March 2020 forever. 

Since, as Robert Conquest noted, everyone’s a conservative about things they know best, it is going to bomb with the voters. We all know this mask thing and what it can do very very well. Biden’s offering us a lot of day-old bread with nothing between the slices.

Photo illustration by Monica Showalter with use of image from Public Domain Pictures // public domain, enhanced with Photoshop.

 

Democratic candidate Joe Biden has been stuck in his basement all these months and now wants us all to be mandated by law to wear masks. That’s his big idea.

According to CBS News:

“Every single American should be wearing a mask when they’re outside for the next three months, at a minimum. Every governor should mandate mandatory mask-wearing,” Biden said, suggesting that widespread mask use could save 40,000 lives over the next three months. “Let’s institute a mask mandate nationwide starting immediately, and we will save lives.”

Where ya been, Joe?

Governors have already been there. Here in California and in most big-population states, we’ve been wearing masks for months — in the Walmarts, in the Targets, at the Costcos, to the doctors’ office, to the post office, on our walks — the very few places we’ve been allowed to go, and during that brief period when we could go to the gym and indoor church services. Masks do do some good, and people generally follow the idea. So to put that idea out there as if none of us have noticed is rather obnoxious. Been there, done that.

Yet Joe puts this out as his bright new idea as if no one had ever thought of it before. Why exactly would Biden’s federal mask mandate somehow make things different? This is old hat stuff by someone who just woke up and smelled the coffee that’s gone cold. He seems to have missed the different gubernatorial mandates tailored to various state needs, as well as the months and months of wearing masks, particularly in big cities. It’s not a panacea, but it has been helpful there. Yet Biden wants one-size-fits-all, and is convinced he can wave the entire problem away with this sweeping diktat.

Here’s why it’s stupid: We’ve already begun solving the problem as masks (and many other solutions) have been followed. Outdoor activities have been positive – church services, beach activity, and if California would just allow it, outdoor school would be great. Hydroxychloroquine combined with zinc and other adjacent treatments has been a lifesaver. Operation Warp Speed, to develop a vaccine, is on track for a successful year-end launch. And there are also signs of herd immunity developing. A lot of us have marveled at the low transmission rate on New York City’s packed subways, and many experts think sufficient immunity has come of it. The latest news is that it doesn’t take much for herd immunity to develop.

Yes, new cases are high but only because more testing is available – lots of undetected cases have been found, often among symptomless young people, which would have otherwise gone away unnoticed. More important, deaths are down, bigtime down, down from April, where deaths peaked at 4,928 on one bad day in that month. In late July, the last day recorded, they were at 391. Catching COVID no longer means you are going to die, because almost no one does. 

Yet for Biden, it’s still March 2020 and he’d like us all to know he’d handle the coronavirus better than President Trump did with this vast new imposition. Yes, it’s good to wear masks, but only in place where it can do some good. America has 300 million people, and a rancher in South Dakota where few COVID cases exist anyway, is going to need one a lot less than a packed multi-generational house in a Los Angeles tenement or an infirm elderly person living in a nursing home.

And an order that sweeping is also going to get ignored. We’ve already seen how spring breakers ignored it. We’ve seen how protestors, rioters, and looters ignore it. We’ve also seen farmworkers working in tight quarters from places with little understanding of viruses ignore it. And we’ve seen inner-city Black communities where multigenerational families are common and distrust of mostly white authorities handing out edicts is even more common to ignore. Some of these places do, indeed have more COVID cases. 

Seriously – 300 million people here and police budgets being cut by blue-city governments, how’s Biden going to enforce this? The old dinosaur hasn’t worked this out yet. Let’s see how he does when protestors and rioters take to the streets, forgetting their masks.

Is Joe Biden proposing to go after the rioters on mask grounds? As long as he’s got cops out issuing tickets for these mask violations, maybe he can arrest a few for hurling bombs and setting fires.

And for additional idiocy, note that Biden threw out a three-month period for it, as if the ‘experts’ he’s consulted have ever been right before. (Remember the two-week lockdowns? Funny how they extend).

First we weren’t supposed to wear masks, then we were, and in response to state orders, most of us complied. In places where Karens were present, we were scolded on the streets if we didn’t.

What most people want is not more masks – we have all had a bellyful of masks, and as Andrea Widburg noted here, some people are getting something called “mask mouth” as a result of their compliance – we want the problem solved and times to go back to normal.

Biden isn’t offering that. He’s offering the false promise of that, but he’s focused on the power to impose, not the solution, and oh gosh, it’s so old – kind of like him. When no solution comes, he’ll extend the mask mandate forever, in the name of ending all risk. And as Issues & Insights notes today, it won’t stop there.

Not only will it not work, it’s a hideous campaign platform — Joe Biden, candidate of permanent lockdown, March 2020 forever. 

Since, as Robert Conquest noted, everyone’s a conservative about things they know best, it is going to bomb with the voters. We all know this mask thing and what it can do very very well. Biden’s offering us a lot of day-old bread with nothing between the slices.

Photo illustration by Monica Showalter with use of image from Public Domain Pictures // public domain, enhanced with Photoshop.

 

The United States Department of Justice has placed Yale University on notice that it has been found in violation of Title VI of the Civil Rights Act of 1964 by discriminating on the basis of race and national origin, putting more than half a billion dollars in yearly federal funding of the university in jeopardy

The DOJ’s letter of notification sent to Yale’s lawyers lays out the case and is worth reading in its entirety.  But here are some key findings:

Yale grants substantial, and often determinative, preferences based on race to certain racially-favored applicants and relatively and significantly disfavors other applicants because of their race. Yale’s race discrimination imposes undue and unlawful penalties on racially-disfavored applicants, including in particular Asian American and White applicants.

For example, the likelihood of admission for Asian American and White applicants who have similar academic credentials is significantly lower than for African American and Hispanic applicants to Yale College. For the great majority of applicants, Asian American and White applicants have only one-tenth to one-fourth of the likelihood of admission as African American applicants with comparable academic credentials.

Yale’s Sterling Memorial and Bass Libraries

Photo credit: Gunnar Klack licensed under the Creative Commons Attribution-Share Alike 4.0 International license.

The legal burden of proof is on Yale:

To comply with Title VI, Yale cannot engage in discrimination barred by the Equal Protection Clause of the United States Constitution. See Gratz v. Bollinger, 539 U.S. 244, 276 n.23 (2003). Because Yale admits that it usesrace in admissions, Yale bears the burden of showing that it satisfies strict scrutiny. This means that Yale bears the burden of demonstrating that its use of race is narrowly tailored to serve a compelling interest. E.g., Fisher v. University of Tex. at Austin, 570 U.S. 297, 309-11 (2013) (Fisher I); Parents Involved in Cmty. Schs. v. Seattle Sch. Dist. No. 1, 551 U.S. 701, 720 (2007).

Yale asserts that it has a compelling interest in obtaining the educational benefits of diversity. Yale’s diversity “goals cannot be elusory or amorphous—they must be sufficiently measurable to permit judicial scrutiny of the policies adopted to reach them.” Fisher v. University of Tex. at Austin, 136 S. Ct. 2198, 2211 (2016) (Fisher II). Furthermore, strict scrutiny requires Yale to “prove that the means chosen by” the school to achieve its stated interest in diversity “are narrowly tailored to that goal.” Fisher I, 570 U.S. at 311.

Yale is also violating other conditions that the Supreme Court has required to justifyaffirmative action discrimination.

Proving that a race-conscious program is narrowly tailored is a “heavy burden.” Fisher II, 136 S. Ct. at 2211; Parents Involved, 551 U.S. at 747. Narrow tailoring requires, among other things, that a university use race only as a “plus” factor “in a flexible, nonmechanical way.” Grutter v. Bollinger, 539 U.S. 306, 334 (2003). Race cannot be “decisive in practice.” Gratz, 539 U.S. at 272 & n.19; accord Grutter, 539 U.S. at 337. In other words, narrow tailoring requires that race cannot be “the defining feature” of the application or “the predominant factor” that decides an applicant’s admission. Grutter, 539 U.S. at 317, 320, 337. Additionally, “racial balancing” is “patently unconstitutional” under the Equal Protection Clause, id. at 330, and thus also violates Title VI. In addition, an admissions program cannot “unduly burden individuals who are not members of the favored racial and ethnic groups.” Id. at 341 (citation omitted). Finally, a university’s “race-conscious admissions policies must be limited in time.” Id. at 342.

Applying these principles, and based on our review of information we obtained during our investigation, we have determined that Yale violated, and is continuing to violate, Title VI.

First, it appears Yale’s diversity goals are not sufficiently measurable. Our investigation indicates that Yale’s diversity goals appear to be vague, elusory, and amorphous. Yale’s use of race appears to be standardless, and Yale does virtually nothing to cabin, limit, or define its use of race during the Yale College admissions process.

Second, Yale’s race discrimination in undergraduate admissions is also not narrowly tailored. Our investigation revealed that Yale’s discrimination affects hundreds of admissions decisions each year. Yale uses race at multiple points in its admissions process.

Yale uses race when it initially rates applicants, when it again rates those previously rated applicants, and again when it considers applicants at subsequent stages of the admissions process. Yale discriminates based on race among comparable applicants to whom Yale’s own admissions staff gave identical ratings earlier in the admissions process. Yale’s use of race at multiple steps of its admissions process results in a multiplied effect of race on an applicant’s likelihood of admission. Yale’s race discrimination contrasts starkly with the program upheld in Fisher II, in which the University of Texas considered race as one “subfactor” of its multi-factor assessment of applicants, and “[t]he admissions officers who ma[d]e the final decision as to whether a particular applicant will be admitted ma[d]e that decision without knowing the applicant’s race.” 136 S. Ct. at 2206-07.

Yale’s admissions data and other information also show that the University is using race as more than just plus factors but rather as predominant criteria that in practice are determinative in many admissions decisions. Data also show that this determinative effect of race is multiplied for competitive applicants. Yale’s approach is thus a far cry from the admissions process in Fisher II, where “race [was] but a ‘factor of a factor of a factor’ in the holistic-review calculus.” Id. at 2207 (citation omitted).

Yale’s oversized use of race favors some applicants because of their race and correspondingly disfavors other applicants because of their race, with most Asian American and White applicants unduly bearing the brunt of the preferences Yale grants to its racially-preferred applicants. Yale grants racial and national origin preferences in favor of African American, Hispanic, and certain other applicants and disfavors most Asian American and White applicants. Yale’s use of race cannot satisfy the narrow tailoring requirement because Yale “unduly burden[s] individuals who are not members of the favored racial and ethnic groups.” Grutter, 539 U.S. at 341 (citation omitted).

For example, data produced by Yale show that Asian American applicants have a much lower chance of admission than do members of Yale’s preferred racial groups, even when those Asian Americans have much higher academic qualifications and comparable ratings by Yale’s admissions officers. Every year from 2000 to 2017, Yale offered admission to Asian American applicants to Yale College at rates below their proportion of the applicant pool. During this same 18-year period, Yale offered admission to White applicants at rates below their proportion of the applicant pool in a majority of years. And, every year during the same 18-year period, Yale admitted applicants to Yale College from Yale’s preferred racial groups at rates higher than their representation in the applicant pool.

Additionally, Yale’s data and other information show that Yale is racially balancing its admitted class, with the major racial groups remaining remarkably stable for approximately the last decade.

Yale’s president, Peter Salovey, is defiant, setting up a high stakes showdown:

The department’s allegation is baseless. Given our university’s commitment to complying with federal law, I am dismayed that the DOJ inexplicably rushed to conclude its investigation without conducting a fully informed analysis, which would have shown that Yale’s practices absolutely comply with decades of Supreme Court precedent.

Yale College will not change its admissions processes in response to today’s letter because the DOJ is seeking to impose a standard that is inconsistent with existing law. We will continue to look at the whole person when selecting whom to admit among the many thousands of highly qualified applicants. We will continue to look at what students have accomplished and hope to contribute to Yale and the world. We will continue to create a student body that is rich in a diverse range of ideas, expertise, and experiences. Such a student body greatly enhances students’ academic experiences and maximizes their future success. By bringing people of different backgrounds, talents, and perspectives together, we best prepare our students for a complex and dynamic world.

Yale’s admissions practices help us realize our mission to improve the world today and for future generations. At this unique moment in our history, when so much attention properly is being paid to issues of race, Yale will not waver in its commitment to educating a student body whose diversity is a mark of its excellence.

The DOJ is giving Yale 2 weeks to think over its defiance or else face a lawsuit:

We would like to secure Yale’s compliance with Title VI by voluntary means. 28 C.F.R. §§ 42.107 & 42.108; see also 42 U.S.C. § 2000d-1. To that end, Yale must agree not to use race or national origin in its upcoming 2020-2021 undergraduate admissions cycle, and, if Yale proposes to consider race or national origin in future admissions cycles, it must first submit to the Department of Justice a plan demonstrating that its proposal is narrowly tailored as required by law. Any such proposal should include an end date to Yale’s use of race.

Please be advised that if Yale does not agree to this remedial measure by August 27, 2020, we may determine that “compliance cannot be secured by voluntary means.” 28 C.F.R. § 42.108; see also 42 U.S.C. § 2000d-1. If we make that determination, the Department will be prepared to file a lawsuit

Unless Yale changes its mind (unlikley, given the arrogance on display), there is going to be an epic lawsuit with huge financial stakes. My guess is that AG Barr is confident that the evidence available is so strong that he expects to win.  

Staytuned for fireworks.

The United States Department of Justice has placed Yale University on notice that it has been found in violation of Title VI of the Civil Rights Act of 1964 by discriminating on the basis of race and national origin, putting more than half a billion dollars in yearly federal funding of the university in jeopardy

The DOJ’s letter of notification sent to Yale’s lawyers lays out the case and is worth reading in its entirety.  But here are some key findings:

Yale grants substantial, and often determinative, preferences based on race to certain racially-favored applicants and relatively and significantly disfavors other applicants because of their race. Yale’s race discrimination imposes undue and unlawful penalties on racially-disfavored applicants, including in particular Asian American and White applicants.

For example, the likelihood of admission for Asian American and White applicants who have similar academic credentials is significantly lower than for African American and Hispanic applicants to Yale College. For the great majority of applicants, Asian American and White applicants have only one-tenth to one-fourth of the likelihood of admission as African American applicants with comparable academic credentials.

Yale’s Sterling Memorial and Bass Libraries

Photo credit: Gunnar Klack licensed under the Creative Commons Attribution-Share Alike 4.0 International license.

The legal burden of proof is on Yale:

To comply with Title VI, Yale cannot engage in discrimination barred by the Equal Protection Clause of the United States Constitution. See Gratz v. Bollinger, 539 U.S. 244, 276 n.23 (2003). Because Yale admits that it usesrace in admissions, Yale bears the burden of showing that it satisfies strict scrutiny. This means that Yale bears the burden of demonstrating that its use of race is narrowly tailored to serve a compelling interest. E.g., Fisher v. University of Tex. at Austin, 570 U.S. 297, 309-11 (2013) (Fisher I); Parents Involved in Cmty. Schs. v. Seattle Sch. Dist. No. 1, 551 U.S. 701, 720 (2007).

Yale asserts that it has a compelling interest in obtaining the educational benefits of diversity. Yale’s diversity “goals cannot be elusory or amorphous—they must be sufficiently measurable to permit judicial scrutiny of the policies adopted to reach them.” Fisher v. University of Tex. at Austin, 136 S. Ct. 2198, 2211 (2016) (Fisher II). Furthermore, strict scrutiny requires Yale to “prove that the means chosen by” the school to achieve its stated interest in diversity “are narrowly tailored to that goal.” Fisher I, 570 U.S. at 311.

Yale is also violating other conditions that the Supreme Court has required to justifyaffirmative action discrimination.

Proving that a race-conscious program is narrowly tailored is a “heavy burden.” Fisher II, 136 S. Ct. at 2211; Parents Involved, 551 U.S. at 747. Narrow tailoring requires, among other things, that a university use race only as a “plus” factor “in a flexible, nonmechanical way.” Grutter v. Bollinger, 539 U.S. 306, 334 (2003). Race cannot be “decisive in practice.” Gratz, 539 U.S. at 272 & n.19; accord Grutter, 539 U.S. at 337. In other words, narrow tailoring requires that race cannot be “the defining feature” of the application or “the predominant factor” that decides an applicant’s admission. Grutter, 539 U.S. at 317, 320, 337. Additionally, “racial balancing” is “patently unconstitutional” under the Equal Protection Clause, id. at 330, and thus also violates Title VI. In addition, an admissions program cannot “unduly burden individuals who are not members of the favored racial and ethnic groups.” Id. at 341 (citation omitted). Finally, a university’s “race-conscious admissions policies must be limited in time.” Id. at 342.

Applying these principles, and based on our review of information we obtained during our investigation, we have determined that Yale violated, and is continuing to violate, Title VI.

First, it appears Yale’s diversity goals are not sufficiently measurable. Our investigation indicates that Yale’s diversity goals appear to be vague, elusory, and amorphous. Yale’s use of race appears to be standardless, and Yale does virtually nothing to cabin, limit, or define its use of race during the Yale College admissions process.

Second, Yale’s race discrimination in undergraduate admissions is also not narrowly tailored. Our investigation revealed that Yale’s discrimination affects hundreds of admissions decisions each year. Yale uses race at multiple points in its admissions process.

Yale uses race when it initially rates applicants, when it again rates those previously rated applicants, and again when it considers applicants at subsequent stages of the admissions process. Yale discriminates based on race among comparable applicants to whom Yale’s own admissions staff gave identical ratings earlier in the admissions process. Yale’s use of race at multiple steps of its admissions process results in a multiplied effect of race on an applicant’s likelihood of admission. Yale’s race discrimination contrasts starkly with the program upheld in Fisher II, in which the University of Texas considered race as one “subfactor” of its multi-factor assessment of applicants, and “[t]he admissions officers who ma[d]e the final decision as to whether a particular applicant will be admitted ma[d]e that decision without knowing the applicant’s race.” 136 S. Ct. at 2206-07.

Yale’s admissions data and other information also show that the University is using race as more than just plus factors but rather as predominant criteria that in practice are determinative in many admissions decisions. Data also show that this determinative effect of race is multiplied for competitive applicants. Yale’s approach is thus a far cry from the admissions process in Fisher II, where “race [was] but a ‘factor of a factor of a factor’ in the holistic-review calculus.” Id. at 2207 (citation omitted).

Yale’s oversized use of race favors some applicants because of their race and correspondingly disfavors other applicants because of their race, with most Asian American and White applicants unduly bearing the brunt of the preferences Yale grants to its racially-preferred applicants. Yale grants racial and national origin preferences in favor of African American, Hispanic, and certain other applicants and disfavors most Asian American and White applicants. Yale’s use of race cannot satisfy the narrow tailoring requirement because Yale “unduly burden[s] individuals who are not members of the favored racial and ethnic groups.” Grutter, 539 U.S. at 341 (citation omitted).

For example, data produced by Yale show that Asian American applicants have a much lower chance of admission than do members of Yale’s preferred racial groups, even when those Asian Americans have much higher academic qualifications and comparable ratings by Yale’s admissions officers. Every year from 2000 to 2017, Yale offered admission to Asian American applicants to Yale College at rates below their proportion of the applicant pool. During this same 18-year period, Yale offered admission to White applicants at rates below their proportion of the applicant pool in a majority of years. And, every year during the same 18-year period, Yale admitted applicants to Yale College from Yale’s preferred racial groups at rates higher than their representation in the applicant pool.

Additionally, Yale’s data and other information show that Yale is racially balancing its admitted class, with the major racial groups remaining remarkably stable for approximately the last decade.

Yale’s president, Peter Salovey, is defiant, setting up a high stakes showdown:

The department’s allegation is baseless. Given our university’s commitment to complying with federal law, I am dismayed that the DOJ inexplicably rushed to conclude its investigation without conducting a fully informed analysis, which would have shown that Yale’s practices absolutely comply with decades of Supreme Court precedent.

Yale College will not change its admissions processes in response to today’s letter because the DOJ is seeking to impose a standard that is inconsistent with existing law. We will continue to look at the whole person when selecting whom to admit among the many thousands of highly qualified applicants. We will continue to look at what students have accomplished and hope to contribute to Yale and the world. We will continue to create a student body that is rich in a diverse range of ideas, expertise, and experiences. Such a student body greatly enhances students’ academic experiences and maximizes their future success. By bringing people of different backgrounds, talents, and perspectives together, we best prepare our students for a complex and dynamic world.

Yale’s admissions practices help us realize our mission to improve the world today and for future generations. At this unique moment in our history, when so much attention properly is being paid to issues of race, Yale will not waver in its commitment to educating a student body whose diversity is a mark of its excellence.

The DOJ is giving Yale 2 weeks to think over its defiance or else face a lawsuit:

We would like to secure Yale’s compliance with Title VI by voluntary means. 28 C.F.R. §§ 42.107 & 42.108; see also 42 U.S.C. § 2000d-1. To that end, Yale must agree not to use race or national origin in its upcoming 2020-2021 undergraduate admissions cycle, and, if Yale proposes to consider race or national origin in future admissions cycles, it must first submit to the Department of Justice a plan demonstrating that its proposal is narrowly tailored as required by law. Any such proposal should include an end date to Yale’s use of race.

Please be advised that if Yale does not agree to this remedial measure by August 27, 2020, we may determine that “compliance cannot be secured by voluntary means.” 28 C.F.R. § 42.108; see also 42 U.S.C. § 2000d-1. If we make that determination, the Department will be prepared to file a lawsuit

Unless Yale changes its mind (unlikley, given the arrogance on display), there is going to be an epic lawsuit with huge financial stakes. My guess is that AG Barr is confident that the evidence available is so strong that he expects to win.  

Staytuned for fireworks.