Magazine | October 15, 2018, Issue

Harvard’s Discrimination Problem

One of the 25 gates to Harvard Yard at Harvard University in Cambridge, Mass., June 18, 2018 (Brian Snyder/Reuters)
A lawsuit against the university meets the incoherence of affirmative-action jurisprudence

Harvard stands accused of illegal discrimination against Asian Americans — an overrepresented minority. About a fifth of Harvard students are Asian, far outstripping Asians’ percentage of the overall population. But if the slots were given out solely on the basis of academic credentials, the number would be even higher.

This lawsuit, and several others like it, faces a long road ahead. First, judges will decide whether colleges are breaking the law as interpreted in a series of highly confusing previous Supreme Court decisions. Then, the Supreme Court itself may have an opportunity to revisit those rulings with a conservative majority. And finally, should the Court bar racial preferences at colleges that receive federal funding (which is nearly all of them), universities will likely turn to a series of dubious workarounds, forcing courts to decide how much they’d like to micromanage the admissions process.

The case that Harvard is discriminating against Asians is strong. Harvard’s Asian population fluctuated in a narrow range of about 15 to 20 percent from the early 1990s through 2013 (the year before the lawsuit was filed), even though the Asian population grew substantially in that period, whether measured as a percentage of college-age Americans, as a percentage of applicants to elite schools, or as a percentage of high scorers on the SAT. A private analysis conducted by Harvard’s own Office of Institutional Research in 2013, released publicly pursuant to the lawsuit, found that Asians were less likely to be admitted than whites with the same qualifications. Using Harvard’s admission data, Duke economist Peter Arcidiacono — an expert witness for the plaintiffs — found the same thing. This seems par for the course among highly selective colleges in general: A study of ten schools by Princeton’s Thomas Espenshade and Alexandria Walton Radford found that, at private schools in 1997, “an Asian candidate with a 1250 SAT [out of 1600] would be just as likely to be admitted” as “a white student with an SAT score of 1110.” At public schools, Espenshade and Radford measured the “Asian disadvantage” in ACT points and put it at 3.4 out of 36.

Harvard’s lawyers argue, in part, that Arcidiacono’s analysis is wrong — an idea we’ll return to. But it’s worth asking whether what the plaintiffs allege is even illegal. This is an open question because the Supreme Court’s affirmative-action jurisprudence, a line of cases stretching from 1978’s University of California v. Bakke to 2016’s Fisher v. University of Texas, is a mess.

Outside the courtroom, the case for affirmative action usually stems from the idea that it can help to counteract discrimination and make up for the legacy of past oppression. The courts, however, have always rejected this as a legal argument. Schools may not use racial preferences simply to help maltreated minority groups.

What they may do is use racial preferences to promote diversity, which allegedly has educational benefits and is thus an interest compelling enough to justify racial discrimination. What’s “diversity” and how might schools achieve it? Well, schools are allowed “considerable deference” to define what they’re trying to accomplish, but they have to explain their goals in terms that are “sufficiently measurable” that courts can ensure any consideration of race is “narrowly tailored” to achieving them. Harvard says it wants to expose students to “new ideas, new ways of understanding, and new ways of knowing,” and to prepare them “to assume leadership roles in the increasingly pluralistic society into which they will graduate.”

The Supreme Court has okayed a variety of similar rationales over the years: In the 2016 Fisher case, it held that the University of Texas had provided “concrete and precise goals” when it said its aims were “ending stereotypes, promoting ‘cross-racial understanding,’ preparing students for ‘an in­creasingly diverse workforce and society,’ and cultivating leaders with ‘legitimacy in the eyes of the citizenry.’” In the 2003 case Grutter v. Bollinger, it approvingly discussed such goals as ensuring “exposure to widely diverse people, cultures, ideas, and viewpoints”; admitting a “critical mass” of minority students so that they “do not feel isolated or like spokespersons for their race”; and including specifically the diversity of “students from groups which have been historically discriminated against.”

As for methods, schools aren’t allowed to employ “quotas” or “racial balancing” — but their efforts can be informed by consulting their current demographics, and indeed, once a new policy goes into effect, schools are expected to track their demographics to ensure their use of race remains “narrowly tailored.” In other words, a school can look at its racial balance, decide it’s unacceptable, take steps to change it, and make adjustments until an acceptable balance is achieved. But it can’t try to achieve a specific racial balance.

By the same token, when considering individual applicants, schools can’t mechanically give bonus points to everyone from a preferred minority group. Race must be worked in as a “plus factor” on a case-by-case basis — as part of a “holistic” consideration of each applicant’s qualifications — and can’t overwhelm all other considerations.

These standards are highly subjective, to put it mildly, even when it comes to underrepresented minority groups, which have always been at the center of the affirmative-action debate. But they are even less helpful when applied to the issue at the heart of the current case: the disfavoring of an overrepresented minority group (Asians) relative to the dominant group (whites). The question is exactly how far that “considerable deference” stretches when it comes to what’s “promoting diversity” and what’s “invidious discrimination.”

Mathematically speaking, there are two different conceptions of “diversity” that lead to very different conclusions re­garding Harvard’s Asian problem. And while the Supreme Court likes to pretend it doesn’t let colleges nudge the process toward an ideal demographic profile, one conception or the other has to lurk in the back of administrators’ minds when they decide whether they need preferences to achieve the diversity they want.

One measure of campus diversity is the chance that two randomly selected individuals from the college will be from different racial or ethnic groups — a rough indication of how much people of different races will interact with each other, so long as they are not secluded away in ethnic-studies majors and race-based student organizations. If an increase in this measure is an increase in education-enhancing diversity, there’s no reason to hold down the number of Asian students to the advantage of whites, up until the point at which Asians actually outnumber whites (though of course one might give other groups a boost over both Asians and whites). Indeed, to prefer whites over Asians is to reduce diversity; making minority groups bigger at the expense of the dominant group always makes the campus more diverse, and it doesn’t matter whether a given group is underrepresented or overrepresented relative to its share of the larger population. In terms of the alleged educational benefits the Court has explicitly approved, this measure is a good fit for most: It maximizes students’ exposure to “widely diverse people [and] cultures,” for example, and it helps to promote the existence of a “critical mass” of any minority group that’s present.

But one might instead think that U.S. college campuses should “look like America,” believing that students gain from living among a racial mix similar to the one that obtains in the broader society. In this way of looking at it, because fewer Asians than whites are needed to achieve proportional representation, the educational returns to exposing students to Asian peers diminish much more rapidly than do the returns to exposing students to whites — not that anyone supporting Harvard would put it that way. (Briefs from the university and its friends are far more keen on defending the general use of race in admissions than they are on defending the whites-over-Asians preference alleged here.) This notion finds some backing in the Court’s support of “preparing students for ‘an increasingly diverse workforce and society’”: Perhaps society can serve as the implicit statistical benchmark for the diversity a college seeks. This benchmark, after all, lies behind every claim that a group is “over­represented” or “underrepresented.”

Whether that benchmark provides a “compelling interest” in disfavoring a racial minority group probably depends on the judge asked to make the decision. The Court has never said so explicitly, though it’s also never said that whites, alone among racial groups, are not allowed to be on the receiving end of affirmative action.

Of course, the conservative justices have consistently offered a different view of these matters. Their dissent in the 2016 Fisher case specifically argued that “demographic parity” is not a legitimate goal. It also high­lighted the plight of Asian Americans under the racial-preference regime at issue. Which brings us to the endgame of the Harvard case: putting affirmative action before a Supreme Court with a conservative majority.

It’s likely that a Court with Neil Gorsuch and another Trump pick on board would invalidate Harvard’s policy — and such a Court might also wipe away a lot of bad precedent rather than try to carve out a fresh niche for cases involving overrepresented minorities. A new ruling might be sweeping indeed: In cases involving public schools, some conservative justices have endorsed the argument that affirmative action violates the 14th Amendment’s guarantee of equal protection under the law. And according to current Supreme Court precedent, federal law applies this guarantee to private schools that receive federal funds as well.

Further, as National Review’s Ramesh Ponnuru has noted (“The Right’s Civil Wrongs,” June 21, 2010), the Court erred in this interpretation of federal law, giving originalist judges yet another option. The statute actually does something much clearer than expand the reach of the equal-protection clause: It states that “no person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” To take these words seriously would be to invalidate all affirmative action at federally funded schools on statutory grounds, without needing to reach the question of whether racial preferences violate the Constitution itself.

Enforcing such an edict in case after case would prove cumbersome, though, as seen in the vigorous response Harvard has mounted to the current lawsuit. The university argues that it doesn’t even discriminate against Asians — at least relative to whites, as opposed to blacks and Hispanics (for whom the existence of preferences is not seriously in dispute) — and David Card, a Berkeley economist, produced a lengthy expert report backing this claim, running the numbers a bit differently than Duke’s Arcidiacono had. It turns out that there are a lot of judgment calls one can exploit to change the results when analyzing admissions data: whether to include recruited athletes and those who receive legacy preferences (cases in which race is arguably not relevant), whether to analyze each year separately (which could obscure changes to the process designed to preserve a racial balance), which variables to “control” as potential confounding factors, whether to include the “interactions” that different variables may have with one another, and so on. There is also the matter of how to treat the school’s “personal” ratings (referring to positivity, likability, courage, etc.), on which Asians tend to receive lower scores, and which Arcidiacono argues are racially biased.

Given that Asian applicants outscore white applicants on academics and extracurriculars but fall behind in the “personal” category, that anti-Asian discrimination at elite colleges has been an open secret for years, that Harvard’s Asian percentage has remained so suspiciously confined over recent decades as the Asian population has exploded, and that Harvard’s own research found evidence of discrimination, the plaintiffs have the better argument, and courts should not hesitate to rule in their favor. But even in this case, judges are to some degree being asked to decide which highly respected economist’s equations do a better job of measuring racial discrimination. That’s a difficult task — judges are not statisticians — and it will only get more difficult in future cases as universities attempt to disguise their practices.

In some states that have banned affirmative action, universities have turned to defensible race-blind proxies — admitting the top 10 percent of each high school’s graduating class, increasing the weight of socioeconomic preferences, etc. — and they’ve often succeeded in keeping minority enrollment up that way, according to a report from Richard Kahlenberg of the Century Foundation (who has also submitted expert testimony in the Harvard case). But covert defiance is also an option.

When California voters banned racial preferences in 1996, affirmative-action supporters first sued to stop the law and then did their best to undermine it. Universities watered down academic requirements so that admissions officials would have more leeway to admit preferred applicants. In 2008, UCLA political-science professor Tim Groseclose resigned from his school’s admissions committee and released a report alleging that it had been reinstating racial preferences under the guise of a “holistic” process — specifically, putting great emphasis on “personal statements” in which minority applicants often just happened to mention their race. When he finally got hold of some data from the school, he discovered that rich blacks had a better chance of getting in than did poor Asians with the same academic qualifications, as he detailed in Cheating: An Insider’s Report on the Use of Race in Admissions at UCLA. One shudders to think how many variations on this scam are possible.

The folks suing Harvard are correct that the institution discriminates against Asians, and they deserve to win. At the same time, no one should envy the nation’s judges for what they’re getting themselves into.

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