In October of this year, a US District Court began
hearings on a suit filed on behalf of Asian Americans who believe that Harvard
(and other elite universities) discriminates against them because of their
race. This is a complex issue with the
potential to eliminate the vestiges of affirmative action in college
admission. If the suit is successful, it
is likely that white and Asian American students would gain higher admission
rates at elite schools at the expense of African-American and Hispanic
students. Hua Hsu produced an
interesting assessment of the issues involved for The New Yorker. His article
appeared in the paper version as School
Colors, and online as The Rise and Fall of Affirmative Action.
Asian Americans tend to be left-leaning in their
politics, and when surveyed, announce that they are in favor of affirmative
action. And, in fact, older Asian Americans
well remember riding on the vehicle of affirmative action to overcome
discrimination they experienced in years past.
“For previous generations of
Asian-American activists, affirmative action was a key component in the
struggle for multiracial justice. In the late eighties, the Department of
Education investigated a series of claims alleging that Berkeley, Harvard, and
other élite institutions had put a limit on the number of Asian-Americans
admitted. The claims had been lodged by young, largely progressive
Asian-American activists, for whom affirmative action was the solution to the
problems they were identifying, not the cause.”
“In most cases, the students’ suspicions of unfairness were well founded,
and Asian-American populations at these schools began to grow. This history
captures the almost paradoxical position of many Asian-American supporters of
affirmative action.”
It is therefore both ironic and contentious that younger
Asian Americans are teaming with conservative activists, led by Edward Blum,
who wish to eliminate affirmative action and any other racial considerations in
society. Blum organized students and
others into an organization called Students for Fair Admissions (S.F.F.A.) to
bring the suit against Harvard.
“If Blum’s suit is successful,
the effect will be felt far beyond Harvard. It will limit the freedom that
academic institutions have often had in pursuing their unique educational
missions. The lawsuit, and Blum’s efforts to change the cultural conversation
surrounding diversity and discrimination, could end affirmative action in
higher education as we know it.”
Are Asian Americans being discriminated against? Hsu produced these data.
“S.F.F.A. alleges that Harvard
attempts to curate the racial breakdown of each incoming class. In order to
achieve classes that, in recent years, have been roughly half white, twenty per
cent Asian-American, fifteen per cent black, and twelve per cent Hispanic…”
This source
indicates that Asian Americans make up about 5% of public-school students and
23% of those admitted to Harvard’s 2017 freshman class. Is that a sign of discrimination? The argument for a higher admission level
must be based on a narrow definition of what defines “merit” in college
admissions. The plaintiffs argue that
admission should be based on grades and performance on standardized tests
only. The assumption is that Asian
Americans work harder than others, including the white students, and they
deserve an even higher acceptance rate. Under
that constraint, admissions of both whites and Asian Americans would likely increase
at the expense of other minorities, including poor whites and poor Asian
Americans. However, it is well-known
that tests like the SAT and ACT are burdened with cultural biases that favor
those with higher family incomes. Is it
in the best interests of a university, and of society in general, to create a
student environment that favors the wealthy and culturally endowed?
Do these angry Asian Americans have a legitimate beef or
are they merely over-entitled students?
And are they merely tools in a conservative plot to eliminate
affirmative action once and for all? It
is notable that Trump’s Justice Department supports the suit against Harvard,
apparently seeing this as an opportunity to eliminate affirmative action for
the less-entitled African-American and Hispanic minorities.
To address the issues raised it is necessary to review
the history of affirmative action and that of prior court rulings.
“…the first time the government
used the term [affirmative action] in relation to race was in March, 1961, when
John F. Kennedy signed Executive Order 10925, which required government
contractors to ‘take affirmative action’ to help realize the nation’s goal of ‘nondiscrimination’.”
“The premise of affirmative
action was that, for African-Americans, the status quo was innately negative.
To act affirmatively was to acknowledge the history of denigration and inequity
that continued to define black life, and to come up with ways in which the
future could be different.”
The intention was good, but a coherent implementation
plan never developed. It would be the
courts that stepped in and defined what affirmative action could and could not
mean. Hsu discusses this history, but a
more concise treatment can be found in an article by Noah Feldman in the New York Review of Books: Justifying Diversity.
The Fourteenth Amendment
would form the basis for most litigation regarding affirmative action. Adopted in 1868, it was mainly focused on
ensuring that the freed slaves would be considered citizens (Citizenship Clause)
and that they would have the same rights as any other resident of the nation (Equal
Protection Clause). Any actions to
compensate African Americans for centuries of abuse and discrimination became
an easy target for court litigation as an infringement on the rights of other
groups, particularly whites. The
critical ruling with respect to affirmative action in university admissions
came in Regents of the University of
California v. Bakke (1978).
“The case was brought by an
unsuccessful white medical school applicant who claimed that affirmative action
violated equality under the Civil Rights Act and the equal protection clause of
the Fourteenth Amendment. His challenge was part of the fascinating—and in many
ways horrifying—revisionist backlash against the integrationist jurisprudence
of the Warren Court. In a series of close decisions, conservative majorities of
the Burger and Rehnquist Courts struck down various types of affirmative action
as violating the equal protection rights of whites.”
“These decisions undermined the
rationale for affirmative action, which was, its advocates generally
maintained, to make up for slavery and segregation by ensuring that
African-Americans (and sometimes Latinos) would be able to obtain professional
opportunities that had historically been denied them.”
The court had four justices who believed the actions
taken by the University of California were legally acceptable as a response to past
acts of discrimination. Among those was
Thurgood Marshall who provided this comment.
“…the Constitution as
interpreted by this Court did not prohibit the most ingenious and pervasive
forms of discrimination against the Negro. Now, when a State acts to remedy the
effects of that legacy of discrimination, I cannot believe that this same
Constitution stands as a barrier.”
Four other justices were ready to declare the actions violated
equality protections. The ninth justice,
Lewis Powell Jr., offered a compromise between the opposing views. Selection explicitly on the basis of race
would not be allowed, but race could be considered as a factor a university
could use in assembling a diverse student population that it considered
necessary to meet its educational goals.
Curiously, Powell arrived at this compromise after reading a brief filed
in the case by Harvard University.
“Powell famously got the idea of
using diversity as the rationale for affirmative action from the amicus brief
filed by Harvard University and flagged for him by his law clerk. The
most famous line from the brief, included in Powell’s opinion, read: ‘A farm
boy from Idaho can bring something to Harvard College that a Bostonian cannot
offer. Similarly, a black student can usually bring something that a white
person cannot offer’.”
Although a decision was reached, the compromise did not
satisfy either those who insisted that affirmative action could be based on
remediation of past abuses, or those who were against it under any
circumstances. It would only be in 2003
that Sandra Day O’Connor would write an opinion on diversity that the majority
of the court would agree with.
“Powell had emphasized that
courts should defer to universities’ stated educational mission. O’Connor
preserved the appeal to diversity, but subtly shifted the argument away from
the educational benefits of diversity and toward its broader social effects
among the graduates of elite institutions. Invoking both businesses and the US
military, she insisted that ‘in order to cultivate a set of leaders with
legitimacy in the eyes of the citizenry, it is necessary that the path to
leadership be visibly open to talented and qualified individuals of every race
and ethnicity’.”
While these decisions allow race and ethnicity to be
factors in university selection, they do not provide much guidance in terms of
how this should be done.
“In reality, elite institutions
do seek to evaluate applicants individually. Yet they simultaneously manage to
produce demographically balanced classes according to established proportions
of race, geography, and wealth, which do not necessarily correspond to the
demographics of the larger population. The balance typically differs only a
little from year to year and even less when one compares the classes admitted
by all schools of similar standing in any given year.”
“Those consistent results would
be highly improbable if the admissions officers were merely evaluating
individual applicants on a ‘holistic’ basis, without attention to overall
numerical goals. The balanced classes are sometimes defended (although not by
Harvard) as creating a ‘critical mass’ of minority students. Presumably, the
similarity across institutions satisfies the universities’ desire to include
students of many backgrounds while simultaneously protecting them from the
criticism that they got the balance wrong by appealing to shared institutional
norms.”
The fact that elite universities tend to arrive at fairly
consistent fractions of minorities in their admission classes year after year
suggests that there might be some form of algorithm at work that “balances” out
the numbers. Any hint of such balancing
would provide those determined to eliminate affirmative action entirely with
justification for supporting the Asia-American suit against Harvard.
Harvard could argue that its conception of the ideal admissions
class to meet its perceived educational goals might arrive at fairly consistent
distributions of minorities. Feldman
pores over Harvard’s statements about its intentions and provides this
description of the types of interactions between students for which it is aiming.
“The interactions ‘ensure that
our students truly engage with other people’s experiences and points of view,
[and] that they truly develop their powers of empathy.’ This account strives to
make diversity not only useful but an inherent good for an educational
community, since different identities generate the different ideas that are
necessary for a proper education.”
This is a view that is easy to accept, but it does not
define how this mixture of individuals is arrived at. Feldman finds diversity as a goal to be a
rather slippery topic. He would prefer
that a redefinition of what is considered “merit” should be the basis for
assembling a “diverse” student body. Merit
should consist of something more complex than just grades and test scores; it
should include the potential for contribution to the school and to society from
those who have experienced unusual or challenging backgrounds.
“But
diversity should not be an end in itself. Rather, diversity should be the
indirect result of the goal of inclusion based on forms of merit found in every
part of the population and not purely reducible to grades and scores. The
university need not look precisely like America. But its classes should reflect
a conscientious effort to find and admit the students who are best placed to
pursue truth and become future leaders, weighing their abilities and potential
in the light of the challenges they have faced. That should logically result in
a wide range of students. Diversity could then live on—as an outcome, not as an
objective.”
One could argue that this view merely replaces a slippery
concept of diversity with a slippery concept of merit.
Feldman does come up with a firm and defensible view of
the suit against Harvard.
“Finally, although the
plaintiffs in the suit assert that affirmative action for African-Americans and
Latinos is the reason that more Asian-Americans are not admitted, it is very
unlikely to be the case. Given current balancing goals in admissions, Asian-Americans
are being compared with and balanced against white applicants, not
African-American or Latino ones. If there exists unconscious, stereotype-based
admissions discrimination against Asian-American applicants, as the suit
alleges, that problem must be addressed by examining the unspoken bias and
ensuring it does not persist. That might conceivably lead to fewer white
admissions and more Asian-American ones. It should not reduce the numbers of
African-Americans and Latinos admitted.”
The suit against Harvard is designed to satisfy the
conservatives who wish to eliminate race from consideration at all. Their goal is to minimize for white students
any competition from African Americans and Hispanics. If the Asian Americans have a complaint, it
is due to a bias shown them with respect to white students. That is the battle they should be fighting.
The interested reader might find the following article
informative:
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