Stop Letting Harvard Discriminate

An Op-Ed By Elisabeth Seiple

In November 2014, the organization Students for Fair Admissions sued Harvard University, alleging that their race-conscious admissions process discriminated against Asian-American applicants. The lawsuit was filed on behalf of an anonymous group of Asian applicants who felt they were being held to a higher admission standard because of their race. Despite three weeks of testimony, exactly how Harvard comes to their admissions decisions remains a mystery. Still, undeniable evidence demonstrated that Asian applicants were, in some cases, treated differently than other minority applicants. Whether this constituted discrimination on the basis of race, or a constitutionally sanctioned effort to maintain a diverse student body, though, remained unclear. On October 1st, presiding District Court Judge Allison Burroughs released her decision, stating that Harvard’s admissions practices were, in fact, constitutional. She recognized that “no workable and available race-neutral alternatives would allow [Harvard] to achieve a diverse student body while still maintaining its standards for academic excellence,” that Harvard had not imposed unconstitutional quotas, and, in her opinion, had not unduly discriminated against Asian applicants. Judge Burroughs’s decision was widely celebrated as a strong defense of Affirmative Action in a precarious time for the policy. In defending Harvard’s admissions practices, though, Judge Burroughs ignored clear evidence of systematic discrimination on the part of Harvard and furthered the distillation of Affirmative Action into a charade for a university’s personal benefit.

The evidence brought against Harvard in court clearly shows that it utilizes racial stereotypes and inflated standards for Asian applicants in its admissions process. While remaining silent on many of the details of its admissions process, Harvard consistently emphasized its holistic review process, through which the admissions committee can discern the uniqueness of each applicant and evaluate them based on a myriad of highly individualized contextual information. It would seem, though, that they are willing to make exceptions to this holistic approach when it comes to Asian students, including maintaining a different PSAT minimum and seemingly preferring those who defy the notion of the “typical Asian student” in Harvard’s eyes. While Harvard acknowledged in court that they were aware Asian students consistently scored lower on personality rankings (a ranking assigned to an applicant based on a combination of interviews and recommendation letters) and that this was likely due to the stereotype of Asians as unfriendly and cold, Harvard made no attempts to take into account the recognized underlying biases of the high school guidance counselors they so casually shirked responsibility onto. In Fisher I vs University of Texas, in which Abigail Fisher, a white applicant to UT-Austin argued the University’s use of a race-conscious admissions policy violated the Equal Protection Clause of the 14th Amendment, the Supreme Court, initially declining to rule on the case, stated that if a University decides diversity of the student body is essential to its educational interests, it must be able to prove “that the means chosen by the University to attain diversity are narrowly tailored to that goal.” When a white student receives a personal invitation to apply to Harvard after scoring a 1310 on the PSAT, but an Asian student must score at least 40 points higher to receive the same invitation, it becomes clear that Harvard has not tailored their admissions policies to achieve a diverse student body, but rather adjusted their standards in order to broadly prevent a large number of potential Asian applicants. In Bakke v. Regents of the Univ. of California, the Supreme Court ruled that race may be used as a “plus factor” in the consideration of an application. However, Harvard has mistakenly distorted the allowance of race-conscious plus-factors into an adverse ability to create racial “minus-factors.” Harvard’s treatment of Asian students as equal to neither white students nor other minority students violates pre-determined limitations on the implementation of Affirmative Action as outlined by the Supreme Court.

By sanctioning Harvard’s discriminatory admissions practices, Judge Burroughs contributes to a larger paradigm shift in the common interpretation of Affirmative Action’s intentions. Over the years, Affirmative Action in education has been interpreted in a variety of ways. The two prevailing interpretations, though, are either as a means of servicing a school’s educational interest in preserving a diverse student body, or as a form of reparation for previous exclusion of minorities from higher education. Harvard’s decision to interpret it as a tool for diversification, while based in a Supreme Court-backed understanding of Affirmative Action, is wrongfully implemented. Affirmative Action’s intent was not to vary each racial and ethnic group’s preferentiality based on a school’s year-to-year demographics. This would essentially amount to a numberless quota system, and Kennedy warns us in Parents Involved v Seattle School District No. 1, a case involving the use of racial quotas in Seattle public schools, that “crude measures of this sort threaten to reduce children to racial chits valued and traded according to one school’s supply and another’s demand.” Harvard has twisted the Affirmative Action-granted ability to consider race in admissions into their own tool for class racial balancing. They do not, as Affirmative Action requires, truly view each student independently and holistically. Despite stating that their policies are in pursuit of a Court-sanctioned interest in diversity, Harvard has demonstrated that its approach is really in pursuit of more aesthetic interests. Affirmative Action was created to protect minority students from the biases of race-blind admissions that Ginsburg warned against in her Fisher I dissent: “Only an ostrich…could regard the supposedly race neutral alternatives as race unconscious.” It was not created to be used as a tool by a University to implement broad, stereotypical, and arbitrarily differing standards for applicants based on their race. Universities have increasingly been assigned the role of “the great equalizer” of American education, giving them almost God-like power to decide which groups are recognized as marginalized and which are not. By ruling in Harvard’s favor, Judge Burroughs signals that Universities may decide for themselves who is and who isn’t protected under Affirmative Action, and can create their own definitions of diversity, separate from the historical context Affirmative Action relies on.

Soon after their defeat in District Court, Students for Fair Admissions expressed their intentions to appeal the case, with a clear interest in having it eventually reach the Supreme Court. Due to the complexity of the issue, and the controversy surrounding the potential decisions, a Supreme Court ruling might be able to create powerful and useful precedent for similar issues. Much of the apprehension surrounding the case’s approach to the Supreme Court surrounds the newly cemented Conservative Court majority. This concern is, arguably, misplaced. The Court’s role is to interpret the Constitution in cases where it may have been violated. Its purpose is not to make legislative acts or to issue binding political opinions. If every case waited until the Supreme Court appeared to lean in whatever political direction they favored, the Courts would be relegated to the status of another stalemated legislature. In making their decision, though, the Court might benefit from the words of Justice Breyer in Parents Involved: “I do not claim to know how to best stop harmful discrimination; how to best create a society that includes all Americans; how best to overcome our serious problems of increasing de facto segregation, troubled inner city schooling, and poverty correlated with race. But, as a judge, I do know that the Constitution does not authorize judges to dictate solutions to these problems.” Sixteen years after Justice Sandra Day O’Connor calculated Affirmative Action’s 25-year lifespan, it remains an essential policy in the American education system. The effects of the policy’s absence can be seen in the increasingly segregated school districts of America’s cities. The Court, though, cannot ignore the unconstitutional implementation of a policy, even if that policy’s existence may hang in the balance. By ignoring injustice, the Court neglects its duty to interpret and enforce the law in favor of becoming an unelected body with the power to decide which policies are beyond questioning.

 

Sources:

  1. Caldera, Camille G., and Delano R. Franklin. “The Harvard Admissions Lawsuit Decision, Analyzed: News: The Harvard Crimson.” The Harvard Admissions Lawsuit Decision, Analyzed | News, https://www.thecrimson.com/article/2019/10/3/admissions-decision-explained/.
  2. Kang, Jay Caspian, and Ronghui Chen. “Where Does Affirmative Action Leave Asian-Americans?” The New York Times, The New York Times, 28 Aug. 2019, https://www.nytimes.com/2019/08/28/magazine/affirmative-action-asian-american-harvard.html.
  3. Ibid

Photo Credit: https://www.bloomberg.com/news/articles/2018-10-17/students-suing-harvard-for-admission-bias-unlikely-to-stop-there

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