University of the Swamp

Is this just a gratifying dream or a frightful, dangerous fancy: to have a government agency that cracks down on the sources of intellectual and spiritual pollution the way the Environmental Protection Agency treats manufacturers that produce toxic pollutants?

The dream is reality, at least in part, as evidenced by the recent  intervention and inquiry of the Department of Justice in lawsuits against Harvard and other elite colleges and universities. The real monster here is not expanded powers of government that might endanger free minds in higher education but rather the administrative state itself that, of course, gets its brains from these institutions.

The administrative state, which the Trump Administration intends to “deconstruct,” is a hulking monstrosity of bold bureaucracy and supine elected officials that has replaced constitutional government in the United States.

Harvard and other elite colleges have recently attracted the attention of the Trump Department of Justice. The issues include long-suspected discrimination against Asian-Americans in admissions at Harvard and collusion (that is, a conspiracy!) on early decisions in admissions. To prove this in court, the accusers would need access to admissions committees’ data and decision-making. The universities plead privacy and protection of trade secrets about their admissions decisions and financial-aid calculations.

Might colleges violate “antitrust laws by exchanging information about prospective students who make early decision commitments”?

Early decision (narrower than early application) requires students who are accepted to commit to that institution—and no other. This practice requires an applicant to take an offer without being able to compare financial aid packages. “Early decision programs have afforded some colleges nearly half of their freshman classes”—Duke University, for example. One education consultant observed, “only about 200 schools of the more than 4,000 in the country use early decision. ‘Given that this doesn’t affect many schools, or many students, it’s the ultimate first-world problem.’”

With the threat of litigation, it’s as though this Justice Department was treating the elite universities like grubby, for-profit vocational schools, which its predecessor Obama Administration heavily regulated and sued. It’s a different world from the previous militancy on Title IX (sex discrimination) and sexual assault suits.

These government actions take on great significance in light of the new tax legislation and its provision for the taxation of colleges with large endowments and relatively small enrollments.

Taxation (at 1.4 percent) of Harvard’s $35 billion endowment follows, but large institutions such as Johns Hopkins escape, because of even larger enrollments. “Small liberal arts colleges like Claremont McKenna College, in Claremont, Calif., Berea College, in Berea, Ky., and Bowdoin College in Brunswick, Maine—all with endowments of about $1.5 billion or less—are likely to pay,” according to the Wall Street Journal.

What may appear to be mere spiteful strikes against an anti-Trump higher education elite take on more seriousness when we view them as a strategy directed against the administrative state. The first step is to treat venerable institutions as though they had to obey the rules other entities, such as steel mills, play by. Rather than their professors lecturing Americans about the injustice of “white privilege,” they should renounce some of their own.

Though a private institution, Harvard University from the earliest years had favored status in the Massachusetts Constitution of 1780 (notable for its connection between the Declaration of Independence and the Constitution’s separation of powers principles and its influence on 19th century state constitutions).

“[I]t shall be the duty of legislators and magistrates, in all future periods of this Commonwealth, to cherish the interests of literature and the sciences, and all seminaries of them; especially the university at Cambridge, public schools, and grammar schools….” But the Progressive Revolution transformed the old Pilgrim elites into secular Progressive ones, with radically different missions. (See Puritan Boston and Quaker Philadelphia for a detailed history of this evolution and descent of Harvard.)

Among the most insightful critics of Harvard is the venerable political theorist Harvey C. Mansfield, Jr., who has spent over 50 years teaching there, with his doctorate and undergraduate degrees there as well.

Just one sardonicism from him, in 1992, on a debate over an environmental studies major, says it all: Was not this focus just the sort of PC thing that the Faculty ought to stay away from, the sort of thing that was gradually transforming Harvard into an intellectual branch of the Democratic Party?” He continued, according to the notes of the faculty meeting, “Professor Mansfield entreated his colleagues to think of themselves as parents and decide whether they would be pleased if their child told them that he or she was majoring in the environment, instead of something solid and reassuring, such as chemistry or women’s studies.”

Heedless of Mansfield, elite universities function in ways like government agencies in the administrative state. Government agencies (including the Justice Department itself) enjoy the deference of other agencies and Congress. In the contemporary debate over “Chevron deference,” the courts are obliged, in effect, to take the agency’s word for its policies. “In that way, agencies can make binding rules—essentially, can make law….”

The Trump Administration questions this Chevron doctrine and would overturn the administrative state.

But why should government agencies—most far less visible than the Department of Justice—govern in the shadows?

Neither should the mother of intellectual elites have such powers, however proudly it proclaims them. Is a private, privileged institution like Harvard more like a government agency or as a legal person, free citizen? The similarity lies not in legal-bureaucratic institutions and the power that they wield but as well their crowning of the intellectual oligarchy they have brought about, with its arrogance, disastrous policies, and political correctness.

As John Marini has pointed out, the administrative state is fundamentally about “delegitimizing the founding’s principles in order to establish the legitimacy of the administrative née rational state. That has yet to occur.”

As a gatekeeper of privilege, Harvard stands as a great unequalizer, the proud source of a society “coming apart,” as Charles Murray has admonished. So what does Harvard do when it is faced with admitting students from a loosely defined identity group, Asian-Americans? Not merely on formal academic grounds such as test scores, they are a meritocratic model minority, perhaps even a kind of aristocracy.

But it appears that Harvard is protective of the racially and ethnically engineered elite it wishes to create (including legacy admittees). Applying affirmative action for blacks and Hispanics and having for the first time a majority-minority entering class in 2017, Harvard College has for years kept a ceiling on Asian-American admittees (22 percent). Indeed, an article from the Harvard Law Review claims that, “[s]tatistical evidence suggests that, in the aggregate, white students have received ‘bonus points’ in comparison to Asians.”

Compare as well Caltech, which does not practice affirmative action and has a far higher percentage of Asian-Americans (43 percent), with affirmative-action practicing MIT, 26 percent (2016).

Yet Harvard’s ”progressive” pull remains strong to adjust the staffing of the administrative state at appropriate ethnic and racial ratios. One Asian-American law professor declares, without explanation, she “would not relish seeing the nation’s most élite colleges become majority Asian.” She goes on, “What is needed instead, then, is race-conscious affirmative action, to address the historic discrimination and underrepresentation of blacks and Latinos, in combination with far less severity in the favoring of whites relative to Asians.”

How white progressive of her! While advocating continued injustice based on race, she seeks less severe injustice for those amorphous Asian-Americans. Such is the moral calculus of the gatekeepers of the administrative state.

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Photo credit:  Glen Cooper/Getty Images

About Ken Masugi

Ken Masugi, Ph.D., is a distinguished fellow of the Center for American Greatness and a senior fellow of the Claremont Institute. He has been a speechwriter for two cabinet members, and a special assistant for Clarence Thomas when he was chairman of the Equal Employment Opportunity Commission. Masugi is co-author, editor, or co-editor of 10 books on American politics. He has taught at the U.S. Air Force Academy, where he was Olin Distinguished Visiting Professor; James Madison College of Michigan State University; the Ashbrook Center of Ashland University; and Princeton University.

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