The Corner

Law & the Courts

Two Points about the Harvard Affirmative-Action Ruling

On the campus of Harvard University in Cambridge, Mass. (Jessica Rinaldi/Reuters)

As you may know, a district court has found that the school does not illegally discriminate against Asian applicants.

Thought 1: Who cares? The idea behind the suit is to give the Supreme Court (now with a spiffy new conservative majority) a chance to reconsider racial preferences, not to win right out of the gate in a lower court.

Thought 2: In a way, the ruling gives us a preview of what will happen if the Supreme Court eventually does end affirmative action.

Harvard’s argument here is not, “You’re damn right we discriminate against Asians to keep their share of the class in check, and we have a right to do this as a way of preserving the kind of diversity we want!” The school could make a legal argument to that effect if it wanted, but it wouldn’t dare. Instead, it hired an expert economist to analyze its admissions data in a way that suggests there’s no anti-Asian discrimination to begin with, and thus no anti-Asian discrimination to debate the legality of. 

This is exactly what schools will need to do if the Supreme Court bars racial discrimination in college admissions entirely and they do not wish to comply.

As I’ve written previously, it’s quite informative to read the dueling expert reports prepared for this case. It turns out that if you start with a treasure trove of data about a school’s admissions process — down to information about each individual applicant — you can cut it any number of ways to make it look like a group is or isn’t getting a fair shake. You can analyze the data all at once or split it into subcategories. You can choose whether and how to account for all sorts of variables that correlate with race.

And a school can make it easier for a statistician to massage the numbers. If it just blatantly refuses to admit a bunch of Asians who’d have gotten in if they were white, that might be hard to disguise. But if it instead assigns Asians a lower “personal” rating, as Harvard is accused of doing, and uses those lower ratings as an excuse to deny Asian applicants, at minimum it shifts the debate to whether disparities in such an amorphous category as “personal” are the result of bias.

The judge in this case was tasked, in large part, with going through these reports and deciding which statistical models were best. She chose ones that made any discrimination against Asians look small and unclear at most. She also found that the personal rating was mostly legitimate, though she conceded that “it is possible that implicit biases had a slight negative effect” on Asians’ scores. (I love that “implicit”: These people couldn’t possibly make conscious decisions to hold down the number of Asian admits.)

In a world without legal affirmative action, schools will relentlessly push the limits of the law and try to get judges to let them get away with it. We’ve seen this movie before; California’s affirmative-action ban was also followed by widespread defiance

I think the evidence is pretty clear that Harvard does discriminate against Asians — and at any rate, the Supreme Court’s affirmative-action jurisprudence is a disaster that needs a complete overhaul. But don’t think a ruling against affirmative action will actually end affirmative action, because racial discrimination can be a very difficult thing to prove, and judges will vary in how receptive they are to these claims.

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