The trial of Students For Fair Admissions v. President and Fellows of Harvard College began last week in federal district court in Boston to determine whether “Fair Harvard” treats its Asian-American applicants, and perhaps others, equitably.
The SFFA plaintiffs claim Harvard discriminates against Asian-American applicants, and others, every which way from Sunday, but it is not clear whether they are calling for a halt to all that discrimination or only some of it. Thus on the first day of trial, an SFFA attorney insisted that “diversity is not on trial here,” and their filings make clear that a great deal of discrimination against Asians could be eliminated even if current preferences for blacks and Hispanics were left in place.
For its part, Harvard strenuously denies that it engages in any discrimination, that the ways it treats different groups based on their race (what most people who are not Harvard administrators regard as discrimination) are not only legal but essential, and that racial diversity will be dead if it is forced to stop.
The Chronicle of Higher Education has been reporting from the trial daily. After the first week, its reporter writes, “the strategies of each side are starting to come into focus.”
Students for Fair Admissions has sought to show that Harvard admissions officials try to admit target numbers of students in different racial and ethnic groups. Lawyers for the organization have tried to use data compiled by the university’s Office of Institutional Research and testimony by Harvard officials to show that Asian-American applicants are penalized in personal ratings given by admissions officials. On Friday they tried to make the case that Harvard College’s director of admissions had a bias against Asian-Americans.
The university vehemently denies those claims. Its lawyers have argued that the data being presented does not show the full picture of how the admissions office works.
Even though most of the commentary about this case has concentrated on the charge that Harvard discriminates against Asians, much of it — including, it would seem, some of SFFA’s filings and trial tactics — confuses the issue of bias with that of discrimination. I believe SFFA’s strongest claim is the one summarized in the first part of the Chronicle report quoted above: that Harvard has consistently sought to limit the number of Asians who are admitted, a charge that is not refuted by repeated insistence that it has no “quota.”
That is, it seeks to limit the number of Asians not primarily or maybe even at all out of bias on the part of Harvard officials or admissions officers (unlike the attitudes of those officials toward Jews early in the last century, when “holistic review” was invented for similar purposes and to identical effect) but because “too many” Asians would result in numbers of blacks and Hispanics below what their devotion to “diversity” demands.
Awarding preferences to athletes, legacies, and favorites of large donors has a disparate impact on the number of Asians admitted, but there are solid, non-discriminatory defenses of those policies. Harvard’s systematic downgrading of Asian applicants on their personal qualities, however, can be explained only by a policy of holding down Asian admissions. (Unless, of course, it is pure bias, which strikes me as unlikely.)
In an earlier discussion of the downgrading of Asians because of their lack of “courage, kindness, likability,” I discussed SFFA’s claims, based on its analysis of reams of Harvard’s admission data and presented in its original complaint and its expert’s report by Duke economist Peter Arcidiacono, that the barriers to the admission of Asian applicants are dramatically higher than for blacks, Hispanics, or whites. Stuart Taylor Jr. discusses this evidence, and more is a superb recent Weekly Standard article.
Much of this data was addressed last week in court. For example, “Consider the example of a male Asian-American applicant who is not disadvantaged and has other characteristics that result in a 25% chance of admission,” Prof. Arcidiacono wrote in his report. “Simply changing the race of this applicant to white—and leaving all his other characteristics the same—would increase his chance of admission to 36%. Changing his race to Hispanic (and leaving all other characteristics the same) would increase his chance of admission to 77%. Changing his race to African- American (again, leaving all other characteristics the same) would increase his chance of admission to 95%.”
Among other findings presented by SFFA:
- “Randomly drawing from those in the top academic index decile would results in over 50% of the admitted class being Asian American, compared to their current share of approximately 22%. Over the six-year period, this would result in an increase of 1563 Asian-American admits in the baseline dataset.” [Arcidiacono Report, 45]
- “About three-quarters of whites on the waitlist were ultimately admitted v. about half of the Asians.” [Arcidiacono Report, 31-32]
- “Harvard has manipulated the size of the actual preferences to ensure it maintained racial balance.” (Complaint, 70)
- In defending Harvard’s lower “personal qualities” ranking of Asian applicants, its expert, Berkeley economics professor David Card, “means Asian Americans have, among other things, a less ‘positive personality,’ ‘others like to be around’ them less, they have worse ‘character traits’ such as ‘likability … helpfulness, courage, [and] kindness,’ they are not ‘attractive [people] to be with,’ they are not ‘widely respected,’ and they have worse ‘human qualities.’” (Plaintiff’s Memo in Support of Motion for Summary Judgment, 28)
- An internal study by Harvard’s own Office of Institutional Research in 2012-2013 analyzed 10 years of admissions data and found that if admission had been based on the academic index alone as opposed to including other criteria such as personality traits, race, and legacy status, Asian admissions would have increased from 18% to 43%.
Harvard responds to all this data, and more, by in effect shouting “It’s not true!” In what has become a veritable mantra, Harvard and its defenders insist that race is but “one factor among many.” No affirmative action critics, including the SFFA plaintiffs, deny that “many factors” are considered in making admission decisions; their complaint is that race is the determining factor in far too many cases
On October 10 Harvard president Lawrence Bacow emailed students and alumni: “Let me be unequivocal: The College’s admissions process does not discriminate against anybody.” In late September Yale president Peter Salovey sent an almost identical email to the Yale community: “I write now to state unequivocally that Yale does not discriminate in admissions against Asian-Americans or any other racial or ethnic group.”
It’s hard to know what to make of these assertions. Do these people really believe what they say? Do they live in an alternate universe? I referred above to an excellent recent article by Stuart Taylor Jr., who is equally unequivocal. A careful analyst not given to bombast or overstatement, Taylor concludes that “the evidence suggests these are bald-faced lies.”
Lying or not, Harvard representatives are nothing if not consistent. In his opening statement, for example, Harvard lawyer Bill Lee said: “A Harvard applicant’s status as Asian-American does not affect his or her chance of admission.” Lee also repeated another common refrain from the “race-conscious” chorus: “Harvard never considers an applicant’s race to be a negative. If it considers race, it’s always considered in a positive light.”
This assertion may not be a lie, but it is not — in fact, it cannot be — true. Harvard itself claims that if denied the “consideration” of race the percentage of blacks admitted would decline from 14% to 6% and Hispanics from 14% to 9%. That means that every one of those blacks and Hispanics who would not have been admitted but for their race took the place of another applicant who was not admitted because of his or her race. Mr. Lee should try telling those applicants excluded because of their race that their race was not “a negative.”
One of the worst effects of affirmative action’s ubiquitous “consideration” of race is that it inevitably results in race being considered almost everywhere, certainly in many places where it has absolutely no business. Take the leader of Harvard’s legal team, Mr. Lee himself. Although he is a distinguished senior partner at Wilmer Hale, a Harvard law professor, and the senior fellow of the Harvard Corporation, Mr. Lee “is a leading intellectual property litigator” who “continues to concentrate his practice primarily on intellectual property and commercial litigation.”
Could the fact he is Asian American have had anything to do with Harvard choosing an intellectual property and commercial litigator to defend it against charges of anti-Asian discrimination? Given what Harvard preaches, it is difficult not to ask that question about its practice. If Harvard insists that Lee the commercial litigator was selected to head its defense of racial preference without regard to his racial or ethnic identity, why doesn’t it select its applicants for admission the same way?
Many of Harvard’s defenses seem threadbare, or worse. On Tuesday, the second day of the trial, replying to a plaintiffs’ attorney’s question that “Asian-Americans as a group do not benefit from Harvard’s use of race [given] how many are admitted in a given class, correct?” long-serving Dean of Admissions William Fitzsimmons replied that they benefit because diversity improves their education like everyone else’s.
Of course, the many Asian-Americans who were not admitted because of their race or ethnicity do not receive that benefit, and the blacks and Hispanics who received preferential treatment to provide that diversity to others would have received whatever benefits diversity has to offer at the less selective institutions they would have attended if not admitted to Harvard.
Fitzsimmons added that “certainly there are some Asian-Americans who end up at Harvard themselves because their background was a factor in admissions in a positive way.” That is no doubt true, but given the higher hurdles Asians have to surmount, that would seem to be true for only two reasons.
1) Either that lucky Asian was poor, overcame some adversity, or wrote a brilliant personal essay, as was the case with one Harvard student, Thang Diep, whose record was admitted as trial evidence. In any one of those cases, the applicant would not need to be given preference as an Asian to be admitted.
2) The applicant belonged to an “underrepresented” Asian group, such as the Hmong, in which case he or she may have been preferred over someone from the “overrepresented” groups of Chinese, Japanese, or Korean-Americans.
Even better if both 1) and 2) apply, as in the case of Thang Diep, who is Vietnamese-American.
Perhaps Chinese, Japanese, or Korean parents would see no discrimination if their sons or daughters were rejected to make room for a Hmong or Filipino applicant who would have been rejected but for this odd affirmative action preference. Certainly, that is the way many defenders of affirmative action feel. Harvard law professor Jeannie Suk Gersen, for example, wrote in the New Yorker recently that since “some amount of racial balancing seems unavoidable” (an odd comment from a law professor, since racial balancing is clearly illegal), she has no problem with the fact that “an Asian may have to swim upstream to be admitted.”
Actually, that is not quite true since Prof. Gersen strenuously objects to the “sub-rosa deployment of racial balancing in a manner that keeps the number of Asians so artificially low relative to whites who are less strong on academic measures.”
In other words, discriminating against some Asians because they are Chinese or Japanese is fine unless it benefits whites. The fact that serious people can make arguments like this is a good measure of the muddle Congress and the courts have made of the very concept of discrimination. Another good example of this conceptual mess concerns the relevance of intent.
Harvard insists that there is no evidence of discriminatory intent on its part. For example, with regard to the damning conclusions reached by its own Office of Institutional Research referred to above, Harvard lawyers insisted in one of their filings that “the analysis in those documents was not designed to evaluate whether Harvard was intentionally discriminating and reached no such conclusion.”
This muddle contains a large dose of irony since in many areas of life other than education a disparate impact standard can apply and means that intent is not necessary to establish culpability. The irony is that the most avid defenders of affirmative action are the most avid advocates of disparate impact, and yet regarding admission practices they claim innocence due to the claimed lack of discriminatory intent behind affirmative action.
Or take the “one factor among many” defense of racial discrimination. In employment law that would be a non-starter, given this provision of the Civil Rights Act of 1991: “an unlawful employment practice is established when the complaining party demonstrates that race, color, religion, sex, or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice.”
Thus, what’s discrimination here may not be discrimination there, even within the same institution. Under current law, for example, it is presumably legal to “take race into account” as “one factor among many” (in some circumstances and with some qualifications) in a way that would be presumptively illegal if done in an employment decision, such as hiring an admissions officer to implement intent-less affirmative action.
The way to drain this swamp is to apply the colorblind non-discrimination principle across the board, the way it was written and intended in the Civil Rights Act of 1964. And this brings me back to Stuart Taylor’s Weekly Standard article.
In reviewing Mismatch, which Taylor co-authored with Richard Sander, and which I described in a review as “A ‘Magisterial’ Work on Affirmative Action,” I concluded that “Its only flaw, so far as I can see, is its failure to agree with me. Well, not just with me but with all those who believe that preference based on race should be ended, not mended.” Sander and Taylor refrained from calling for the abolition of race preferences primarily because they believed that academia is so committed to preserving them that the subterfuges and substitutes they would create to avoid implementing race neutrality would be worse than a well-regulated regime of carefully limited preferences.
I suspect Taylor still believes that, but he seems to have moved a bit closer to applying the non-discrimination principle than he was in 2012. After discussing some possible outcomes of the Harvard trial, such as leaving preferences for blacks and Hispanics intact and simply reining in the burdens placed on Asians relative to whites, he writes that “a ban, or at least a mandate to phase out preferences on a strict timetable, would be an overdue vindication of the nondiscrimination principle of the Constitution and our civil rights laws.”
Even now, however, he stops short of a full embrace and application of the non-discrimination standard. Here is his current proposal for how the Supreme Court should dispose of the Harvard case, should it reach that court:
A conservative majority might be tempted to declare an immediate, categorical ban on all racial admissions preferences. The danger is that, apart from the vast eruption of protest that would ensue, schools would be unprepared to mitigate the effects of the change. Better might be for the justices to give Harvard and other universities a few years to work out how best to come into compliance and implement nondiscriminatory ways to promote diversity.
The Court could, for example, order Harvard—and, by extension, other colleges and graduate schools—to phase out all use of racial admissions preferences by 2028—50 years after Bakke. That timetable would be in line with the views expressed or implied by all nine justices in the 2003 Grutter decision. And if, as seems likely, the Court does not issue a final decision in the Harvard case until about 2022 or 2023 (if at all), that would give Harvard time to phase out consideration of race and put pressure on other schools to prepare to do the same.
So once again my only complaint with Taylor’s long article — magisterial in its own way, and a must read for everyone following this issue — is that he doesn’t agree with me — or, more important, with Chief Justice Roberts’ argument in Parents Involved that “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”
I’m afraid the delay/phase-out approach to ending racial preferences would amount to a nasty replay of the Supreme Court’s “with all deliberate speed” approach after Brown to ending segregation. That approach, as some of us remember, and all should know, led directly not to peaceful compliance but Massive Resistance. In fact, a new massive resistance led by an already seething Resistance movement would make the version practiced by Virginia’s Senator Harry Byrd, Mississippi’s Ross Barnett, Arkansas’s Orval Faubus, and Alabama’s George Wallace look tame and gentlemanly by comparison.