Cotton Grills Garland On Racial Bias In Higher Ed: Asian-American Parents, Kids ‘Disappointed’ In Your Answers

Sen. Tom Cotton (R-AR) grilled President Joe Biden’s nominee to be the nation’s next Attorney General, Merrick Garland, during Garland’s confirmation hearing on Monday over his views on racial discrimination in higher education, specifically in regards to alleged discrimination that Asian-American students have experienced at Yale University.

Cotton highlighted how the Trump administration stood up for the Asian-American students by suing the university last year.

“Based on Yale’s own data, if you look at one of its top academic categories, when you control for academic achievement, the admission rates by racial category were as follows Asian Americans 6%, white applicants 8%, Hispanics, 21% African Americans 49%,’ Cotton said. “Do you think that evidence suggests discrimination based on race in Yale’s admissions process?”

Garland responded by saying that it depends on the facts of the case and that he couldn’t answer the question because he didn’t know, an answer that he repeatedly gave throughout the day.

“So, some of that Supreme Court case law about racial discrimination, higher education, says that race can only be used as a plus factor,” Cotton said. “It can’t be decisive in practice, it can’t be a defining feature, it can’t be the predominant factor.”

“When Asian American kids are eight times less likely to be admitted in the same band of academic achievement, you don’t think that at least suggests a facial case of racial discrimination?” Cotton asked.

Garland spent the next minute talking around the question and did not answer it.

“Will the Department of Justice under your leadership, pursue cases of obvious racial discrimination and higher education?” Cotton later asked.

“Well, if you put it that way, the answer is, of course, yes,” Garland answered.

“Well, I think this presents an obvious case of discrimination against Asian Americans,” Cotton said. “I suspect some Asian American parents and their kids are a little disappointed in those answers, Judge.”

WATCH:

Schools like Yale use affirmative action to discriminate against Asian American applicants.

It’s unfortunate that the Biden Administration and Judge Garland won’t commit to opposing this racial discrimination. pic.twitter.com/RgTw6NnSzK

— Tom Cotton (@SenTomCotton) February 22, 2021

TRANSCRIPT:

SEN. TOM COTTON (R-AR): Judge, I want to return to where we stopped this morning on the question of racial equality, specifically, race discrimination, higher education. Last year, the Department of Justice sued Yale University, for discriminating against students on the basis of race. Based on Yale’s own data, if you look at one of its top academic categories, when you control for academic achievement, the admission rates by racial category were as follows Asian Americans 6%, white applicants 8%, Hispanics, 21% African Americans 49%. Do you think that evidence suggests discrimination based on race in Yale’s admissions process?

MERRICK GARLAND, BIDEN AG NOMINEE: So again, I, my best recollection is that between my nomination and now the department has made a decision about that.

COTTON: The case was voluntarily dismissed on February 3, it’s no longer a pending case.

GARLAND: So, my recollection is correct. So these kinds of cases obviously depend on application of the Supreme Court’s opinion in the Grutter case and the Fisher case. And they require a lot of factual development and examination of the facts. These cases do not only depend on disparate statistics, but on all the factors the Supreme Court instructed the lower courts and the government as to what kinds of affirmative action in higher education are permissible and which ones aren’t. So, I can’t, I honestly can’t draw any conclusions without knowing the facts of the case.

COTTON: So, some of that Supreme Court case law about racial discrimination, higher education, says that race can only be used as a plus factor. It can’t be decisive in practice, it can’t be a defining feature, it can’t be the predominant factor. When Asian American kids are eight times less likely to be admitted in the same band of academic achievement, you don’t think that at least suggests a facial case of racial discrimination?

GARLAND: Well, I think that’s the question that you look at for the underlying facts to know. You are, I think, I don’t remember exactly the words of the Supreme Court opinions, but they seem pretty much exactly you know what you just said, you can’t have a rigid quota, you can’t have a fixed, this was the consequence of the [inaudible] case, which was a companion case to Grutter … with respect to Grutter, the court said it was a holistic approach and was permissible with respect to [inaudible], said it was a fixed ratio or a fixed number and not permissible. But those are things you find out by discovery, in my case and the examination of what the actual practices of the university were, and I have no idea what they were.

COTTON: Judge, did anyone in the Biden administration consult with you about the decision to drop the lawsuit?

GARLAND: No. No, I have assiduously kept out of those. It’s not my, it’s not appropriate for me to be examining anything like that, unless you confirm me.

COTTON: Will the Department of Justice under your leadership, pursue cases of obvious racial discrimination and higher education?

GARLAND: Well, if you put it that way, the answer is, of course, yes.

COTTON: Well, I think this presents an obvious case of discrimination against Asian Americans. I suspect some Asian American parents and their kids are a little disappointed in those answers, Judge.

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