The Department of Education’s Office of Civil Rights has dismissed the longstanding discrimination complaints of Asian Americans, giving Ivy League and other institutions a green light to continue chromatically contouring the results of their “holistic” admissions processes so that applicants who are black or brown or red consistently are admitted with lower academic scores than applicants who are yellow or white. Word of the decision came in a 20-page September 9 letter to Princeton president Christopher Eisgruber.
Although Princeton readily conceded, “It does sometimes consider the race and national origin of applicants for admission,” the OCR concluded that it had not engaged in “patently unconstitutional” racial balancing.
As Roger Clegg has pointed out, the OCR did not deny that Princeton engaged in racial balancing or racial discrimination. It just red that these racial practices are not illegal under the Grutter vs. Bollinger ruling.
Does Grutter Apply?
What is interesting here is not OCR’s conclusion (when has any Obama administration agency or ally ever concluded that any organization has ever discriminated against Asians or whites?), but that it reached its conclusion without even considering, much less rebutting, the vast breadth and depth of evidence presented by the complainants revealing differential treatment.
For example, as I discussed here, Princeton sociologist Thomas Espenshade, who supports affirmative action, found in his 2009 book that black applicants to selective universities receive “a 450-point ‘boost’ compared to otherwise similarly qualified Asian applicants.” In an earlier article, Espenshade and a colleague demonstrated that if affirmative action were eliminated across the nation, “Asian students would fill nearly four out of every five places in the admitted class” now taken by African-American and Hispanic students.
A Tower of Evidence
A Wall Street Journal article by Daniel Golden, author of The Price of Admission, cited a study of the University of Michigan by the Center for Equal Opportunity that found “among applicants with a 1240 SAT score and 3.2 grade point average in 2005, the university admitted 10% of Asian-Americans, 14% of whites, 88% of Hispanics and 92% of blacks.” Much more of this sort of evidence showing that Asians have much higher admission hurdles in the Ivy League than other applicants can be found here, here, and here
How, you must wonder, did OCR refute or respond to all this evidence that to be admitted to the Ivies and other selective institutions Asians must have higher grades and test scores than members of other groups? Easy. It did not. Instead, it concluded that Asians had not been subject to discrimination by accepting Princeton’s argument that a few Asians were admitted with lower academic credentials than some rejected non-Asians:
- “The University … reported, and OCR’s file review confirmed, that less than stellar grades or test scores do not mean that an applicant is automatically foreclosed from admission. OCR in its file review found examples of applicants who did not have the highest quantifiable qualifications, such as grades and test scores, who were nonetheless admitted by the University based on other qualities and the overall strength of their applications. Some of these applicants were Asian.”
- “The University reported to OCR that the University ‘frequently accepted to the Class of 2010 applicants from Asian backgrounds with grades and test scores lower than rejected non-Asian applicants.’”
- “The University gave OCR specific examples of Asian American applicants for the Class of 2010 whose grades and SAT scores were not near the top of the range usually seen by the University’s admissions officers, but who nonetheless were offered admission.”
- “As the University told OCR, regarding the Class of 2010, the University “denied admission to literally hundreds of non-Asian applicants for the Class of 2010 who were valedictorians, and over three-thousand non-Asian applicants with a 4.0 GPA. These non-Asian applicants were not admitted despite the fact that many Asian students who did not have these academic credentials were admitted.”
- “OCR found no evidence of the University giving an automatic ‘plus’ for identifying as a particular race or national origin; nor did OCR find evidence of applicants given an automatic ‘minus’ for belonging to a particular race or national origin.”
- “OCR also found no evidence of the University using a fixed formula to weigh an applicant’s race or national origin.”
“In sum,” OCR concluded, “OCR found that the University treated each applicant as an individual, without making an applicant’s race or national origin a defining characteristic. Accordingly, OCR found no evidence of the different treatment of Asian applicants.”
Not Discrimination Because…
In short, OCR concluded that Princeton does not discriminate because
- Asian applicants are not “automatically foreclosed from admission.”
- A few Asians are admitted with lower academic credentials than many rejected non-Asians are. [It would be interesting to know how many, if any, blacks or Hispanics were rejected with higher grades and test scores than some Asians who were admitted].
- The “plusses” awarded to blacks and Hispanics, and the “minuses” in effect awarded to Asians and whites, were not “automatic.”
- However the University may have prevented the admission of too many Asians, it did not “impose a fixed number or percentage which must be attained, or which cannot be exceeded.”
Since this conclusion comes from an administration notorious for seeing disparate impact discrimination anywhere and everywhere racial outcomes are even ever so mildly disproportionate, calling it hypocritical hardly seems to do it justice. Maybe we need a new word, such as hyper hypocritical. In fact, this OCR ruling is so bad, that it may well have some very good effects. Here are two:
- It will buttress the defense of other organizations accused by this administration (or, heaven forbid, similar future administrations) of discrimination. Following OCR’s analysis, for example, a school district accused of racially disparate discipline rates need produce in its defense evidence of only a few occasions when whites or Asians were disciplined for behavior for which blacks were not punished. Ditto for racial profiling by police.
- It should persuade Justice Kennedy that Grutter needs to be revisited when the Court considers the return of Fisher v. University of Texas next term. OCR insisted repeatedly that Princeton’s treatment of Asian applicants was legal under Grutter, which was mentioned or quoted 47 times in its 20-page ruling and cited in 27 of its 49 footnotes. I don’t think that conclusion is correct, but every selective institution in the country that subjects Asians to differential treatment (probably all of them except for Caltech) thinks so, as do their enablers in the Obama administration and four Justices of the Supreme Court. If Justice Kennedy believes Grutter allows — or even that it allows so many to believe it allows — the Ivies and others to treat Asians the way Princeton does, he may well conclude that it should be overruled or significantly modified.
One last point deserves attention, among other reasons because it also is involved in the Fisher v. University of Texas case that the Supremes will revisit this fall: how do institutions that strive for racial and ethnic diversity define race and ethnicity?
Need to Be Culturally Aware
“OCR’s review of more than 1,000 application files for the Class of 2010 showed that sometimes the race or national origin of an applicant garnered positive attention (as indicated by comments made by admissions staff on the reader cards),” OCR noted in its Princeton letter; “sometimes it did not.” In OCR’s view, the fact that Princeton did now always award “plus” points for race or ethnicity, or not enough to guarantee admission, means it was not engaged in racial discrimination. In fact, it means its discrimination was egregious, since it attempted to admit only members of racial and ethnic groups who were “culturally aware” of their identity. That is, only “true” blacks and Hispanics need apply.
OCR is so oblivious to this offensive insult that it even provides evidence of it in its letter. Consider the following revealing passage:
For example, for an applicant attending high school in the U.S., admissions staff commented that “Polish heritage is neat but not a hook”; and based on other information in the record, the applicant was not offered admission. On the other hand, admissions staff noted that for a Mexican applicant attending high school in the U.S., the individual was a “cultural add as well”; and based on other information in the record, the applicant was waitlisted…. However, for another applicant of Hispanic national origin also attending high school in the U.S., admissions staff wrote that there was “No cultural flavor” in the application; and based on other information in the record, the applicant was not even waitlisted. For another applicant who was waitlisted, admissions staff wrote that the applicant was a “true American Native . . . One to do.”
Being Polish Doesn’t Count
One would love for Princeton to explain why Polish heritage isn’t “a hook” (are there too many Poles at Princeton?), what its tastes are in Mexican “cultural flavor,” and how it can tell a “true American Native” from a presumably counterfeit one (like Elizabeth Warren, perhaps). What all of this determining the true from the false identity on the basis of “cultural awareness” amounts to the same thing Rush Limbaugh parodies with his reference to the NAACP as in fact the NAACLP, the National Association for the Advancement of Liberal Colored People and that liberals used in opposing President Bush’s nomination of Miguel Estrada to the D.C. Court of Appeals because, as I discussed here and here, “Estrada isn’t Hispanic enough to represent Hispanic interests on the bench.”
Like Princeton, in its original Supreme Court brief in Fisher the University of Texas also asserted, “No automatic advantage or value is assigned to race …, and race is considered ‘in conjunction with an applicant’s demonstrated sense of cultural awareness.” As I pointed out at the time in National Review, Texas does not “explain how admissions officials determine whether applicants have demonstrated a ‘sense of cultural awareness.’”
The current Fisher amicus brief for the Cato Institute makes the same point:
In deposition testimony submitted at the summary-judgment stage, the only thing the University’s admissions representatives would say regarding the way the University uses race is that they value a “sense of cultural awareness.” …. That distinctive phrase — “cultural awareness” — appears a dozen times in the testimony of the University’s admissions consultant, … as well as repeatedly in the testimony of the University’s associate director of admissions, who is responsible for admissions policy. In fact, it is the only evidence the district court was able to muster when it sought to describe how the University actually uses race in evaluating applications. No other evidence supports any connection between the University’s use of race in holistic review and its avowed diversity goal
OCR’s, Princeton’s, and Texas’s argument to the contrary notwithstanding, the fact that being black or brown is insufficient to gain “plus points” does not mean race or ethnicity is not very important On the contrary, it means that institutions claim the right not only to distribute benefits on the basis of race and ethnicity but also to limit those benefits to those who conform to the “cultural flavors” approved by their admissions offices.