//  6/18/18  //  In-Depth Analysis

Last week, troubling allegations of discrimination against Asian American applicants emerged from an ongoing lawsuit against Harvard University. The lawsuit, filed by Students for Fair Admissions (SFFA), claims that Harvard violated Title VI of the Civil Rights Act of 1964, which prohibits race discrimination in programs that receive federal funding. Scrutiny of Harvard’s admissions process further intensified last October when Attorney General Jeff Sessions announced that the Department of Justice would investigate a complaint about discrimination in Harvard’s admissions process.

After extensive discovery and statistical analysis of 160,000 student records in Students for Fair Admissions v. Harvard, SFFA claimed that Harvard’s admissions office consistently rated Asian American applicants lower on personality characteristics than any other racial group. Harvard’s statistical analysis, unsurprisingly, reached a different conclusion. Both parties filed motions for summary judgment on Friday (available here and here).

In this piece, I’ll analyze the possible implications of SFFA’s allegations of discrimination, as well as Harvard’s response. A few caveats are in order: (1) both parties’ filings contain a fair amount of redaction; (2) while I have read all the publicly-available filings, I have not examined the competing statistical analyses in any detail; (3) I would expect the parties to respond to one another’s motions for summary judgment. So, many of my conclusions are necessarily tentative, and I will update them as more information becomes available.

If SFFA’s analysis is correct, it presents a disturbing picture of systematic discrimination—either intentional or unconscious—by Harvard’s admissions office. In a nutshell, SFFA says that on average Asian American applicants to Harvard have higher test scores and grades, more impressive extracurricular activities, better essays and letters of recommendation, and higher ratings by alumni interviewers than applicants of any other racial group. But within a particular band of numerical indicators (e.g., test scores and grade point averages) Asian American applicants also received lower overall ratings of their personal characteristics from the admissions office than any other racial group.

Because Harvard is a private university, SFFA brought suit under Title VI rather than the Equal Protection Clause, but available precedent indicates the legal standards are the same or similar as in lawsuits challenging affirmative action programs at public universities. The Supreme Court has held for forty years that some affirmative action programs survive constitutional scrutiny. Beginning with Bakke v. Regents of the University of California, the Court has made clear that colleges and universities may employ race-conscious admissions programs if those programs are narrowly tailored to serve the compelling interest of diversity within a school’s student body. Programs should employ a holistic review that takes into account the applicant as a person and should not use racial quotas or assign points mechanically. But within those parameters, schools have discretion to develop a range of admissions programs.

My initial reaction is that the most recent allegations in the lawsuit may be more important to public opinion than they are to the broader development of the law. In thinking these issues through, it’s worth taking a closer look at the organization bringing the lawsuit. SFFA is essentially a vehicle for longtime affirmative action opponent Edward Blum. Several years ago, Blum backed Abigail Fisher’s unsuccessful lawsuit against the University of Texas, in which the Supreme Court held in favor of the University. Perhaps realizing that an unexceptional white woman was not a particularly appealing plaintiff, Blum turned to a different strategy. As he put it: “I needed plaintiffs; I needed Asian plaintiffs . . . so I started” a website to recruit plaintiffs for litigation that prominently features photos of Asian Americans. In service of such litigation, he also founded SFFA, which originally had a board of directors comprised of only three members: Blum, Fisher, and her dad, none of whom is Asian American. While the organization now claims to have 20,000 members, it appears to be funded almost entirely through Blum’s efforts, and its website does not list any information about the number of members who are either students or Asian American, let alone both. Moreover, the lawyers on representing SFFA against Harvard are all male and (with, I believe, one exception) all white.

As SFFA’s origin and evolution suggest, and as I have repeatedly argued elsewhere, this lawsuit is not really about Asian Americans. What SFFA really cares about is dismantling affirmative action programs. Allegations of discrimination against Asian Americans is simply a convenient way of getting to that goal.

Consider, for example, the following claim from SFFA’s brief:

“Race plays such a decisive role in the admissions chances of Hispanics and African Americans that the percentage of Asian Americans admitted to Harvard would increase by 40% if all racial preferences and penalties were eliminated.”

SFFA is attempting to link two practices that need not be coupled. One is discrimination against Asian Americans. The other is affirmative action. If “Hispanics and African Americans” did not receive “racial preferences,” SFFA implies, discrimination against Asian Americans would disappear.

Yet contrary to this implication, it’s entirely possible to maintain a race-conscious admissions program without discriminating against Asian American applicants. The cause of the alleged discrimination against Asian Americans is not that Harvard sometimes takes race (among many other factors) into account while evaluating other applicants in an effort to enroll a class that is diverse along lines of race, class, and many other dimensions.

Rather, Harvard could admit more Asian American applicants while maintaining the race-conscious practices that lead to the current number of admitted African American and Latinx students. SFFA claims that “[i]f Asian American applicants “had been treated like white applicants, an average of approximately 44 more Asian Americans per year would have been admitted to Harvard over the six-year period the experts analyzed.” If this is indeed true, then Harvard need not change its practices with respect to Latinx or African American applicants. Rather, it could simply admit fewer white students. Legacies, who are predominantly white, would be a logical place to start.[1] Indeed, many affirmative action opponents’ fixation on the exceedingly small number of Black and Latinx students who might have benefited from affirmative action policies, when juxtaposed against their hands-off attitude to legacy admissions, reveals that their goal is not really “fair” admissions, but, rather, admissions policies that ignore the centuries of discrimination that have disproportionately advantaged white students.

With all that said, the prospect of Harvard’s admissions office rating Asian American applicants lower on personality than other racial groups is both troubling and disheartening. If true, it reflects either intentional discrimination or else unconscious bias that seems to rely on derogatory stereotypes about Asian Americans—that Asian Americans are good at tests, but lacking in warmth, courage, humor, leadership, kindness and other desirable personality traits. Such biases are real. They help explain why Asian Americans are underrepresented in all sorts of endeavors, ranging from roles in movies and television to corporate leadership. I have experienced such bias firsthand and so has every Asian American person I know. If Harvard, too, has engaged in this kind of discrimination, it is surely a shameful chapter in the history of the university.

Perhaps most troubling—again, if the allegations of discrimination are true—is that by engaging in such discrimination Harvard will have profoundly damaged the discourse around race-conscious admissions policies. If Harvard indeed rated Asian American applicants lower without justification, it will have handed affirmative action opponents a gift, allowing them to reframe the conversation about affirmative action in terms of discrimination against Asian Americans, when most opponents’ real objection is to the disruption of a racial status quo that advantages white people. Moreover, Harvard will have done great harm to the project of racial solidarity. Advocates for race conscious admissions have put considerable effort into building alliances among people of color, often with great success. But if Harvard has indeed discriminated against Asian American applicants, it has fed directly into the narrative that affirmative action harms Asian Americans. In short, Harvard will have allowed affirmative action opponents to portray affirmative action as a direct competition among people of color for scarce resources, while the way that so-called “race-blind” admissions advantages white people will remain unchallenged

Versus Trump: California X Trump

3/7/19  //  In-Depth Analysis

On this week's episode of Versus Trump, Charlie and Jason discuss a new lawsuit from California challenging new regulations regarding Title X, an important federal family planning program. Listen now!

Charlie Gerstein

Civil Rights Corps

Jason Harrow

Equal Citizens

Against Establishment Clause Concession

2/28/19  //  In-Depth Analysis

There are reasons to worry about whether certain liberal justices on the Supreme Court fully appreciate that we are at an inflection point in the history of the Religion Clause

Nelson Tebbe

Brooklyn Law School

Micah Schwartzman

University of Virginia School of Law

Wither the Establishment Clause: The Bladensburg Cross Case

2/24/19  //  In-Depth Analysis

The Bladensburg Cross case has our country on the verge of abandonment of longstanding and hard won principles about the secular character of American government. SCOTUS can and should step back from the brink.

Robert W. Tuttle

George Washington University Law School

Ira C. Lupu

George Washington University Law School