The Harvard Litigation – an End to Affirmative Action?
Craig Kepler
January 28, 2019
The Inevitability of Discrimination

A group that calls itself “Students for Fair Admissions“, headed by a man named Edward Blum, is suing Harvard University alleging that Harvard discriminates against Asian applicants, diminishing their chances of admission to Harvard as compared to applicants of other races.

Conservatives have been attempting to eliminate all forms of affirmative action for years.  Their reductio ad absurdum catch-phrase goes something like:  “If you want to end discrimination, stop discriminating.  It’s that simple.”

But is it?  You are an employer with one opening, but two applicants. You must discriminate between them to choose one over the other. Every time you make a choice of this nature, you discriminate.  The absurdity of the “stop discriminating” phrase is that discriminating is an ordinary part of daily life.

The question is, what is the basis for your inevitable discrimination? In the case of employment, a wise employer might try to suss out the individual whose skills and experiences most closely match the position, but the law doesn’t require that. In fact, the law allows the employer to choose based on pretty much any arbitrary factor:  he prefers the way one is dressed; he knows the family of an applicant; he thinks one applicant is attractive; he flips a coin.

Over the years, our law has recognized that people in the United States have a history of discriminating against certain groups of people based on immutable characteristics of their ethnicity, religion, or gender.  Without getting into detail of the lengthy and complex history of the law in this area, our law recognizes certain “suspect classifications” (race, religion, gender) and prohibits discriminating against a person for the reason that he or she happens to fall within one of those suspect classifications.

I point this out because the word “discrimination” is bandied about nowadays in a way that suggests any form of discrimination is a bad thing.  In fact, discrimination is both a normal and necessary part of life, and arbitrary discrimination is and should be a reality of life. The world is unfair.  But in narrow circumstances, discriminating against a person because of certain immutable characteristics is and should be prohibited by our laws.

In the period between 1960 and 1965, our nation (first under JFK, then under LBJ) enacted some laws and regulations that were aimed at addressing the shameful history of our nation in terms of discriminating specifically against our African American citizens solely on the basis of their race.  The Civil Rights Act (1964) and the Voting Rights Act (1965) are perhaps the most famous of these.

The Roots of Affirmative Action

The phrase “affirmative action” first appeared in an Executive Order signed by JFK in 1961.  That order required government contractors to take “affirmative action” to ensure that applicants are employed and that employees are treated during employment without regard to their race, creed, color, or national origin.

Since the phrase entered the lexicon, it has taken on a broader meaning in the minds of most people.  Most associate “affirmative action” with a pattern or practice that has the goal of benefitting a specific group.

Under that broad meaning, the United States has practiced affirmative action in favor of white Americans from World War II until well into the 1980s.  I could give numerous examples, such as: racially restrictive real estate covenants that concentrated black Americans into urban ghettos; insurance and mortgage blacklining that created barriers to home ownership; the long history of trade unions in terms of acting as a barrier to African American tradesmen from establishing themselves; police harassment in black neighborhoods.  It is very easy to make a defensible argument that the US used its tax and economic policy after WWII to foster and support the growth of a white-only middle class (the “great” version of America that informs the messaging of the “MAGA” movement).

Decades of these kinds of discriminatory practices against black Americans has created a socioeconomic structure in which resources and, more importantly, opportunities are imbalanced. Efforts to correct this since the mid-1980s have reduced the size of the imbalance to some extent – we have seen a black POTUS, Congressmen and women of color, even Kansas recently elected a state Congressperson who is both Native American and openly lesbian – but the imbalance persists and it is both chronic and significant. One item I frequently mention: the post-WWII GI bill provided cash to returning white GI’s to purchase a new home in the (racially restricted) suburbs for their families while depriving the same of black GI’s and their families. The current wealth gap in our nation — approximately $400,000 plus or minus — is about the current value of that home. Along with that home came access to highly funded and efficiently run public schools that produced kids who matriculated in the nation’s select universities and moved on to high earning and high net worth lifestyles. It is difficult to conceive of a way to negate that imbalance of opportunity without a similar level of affirmative action, in the opposite direction.

This imbalance was particularly acute in 1965 when the Civil Rights Act and the Voting Rights Act were enacted.  Emmett Till had been killed just 10 years earlier (1955). Medgar Evers was shot in 1963, and the infamous Birmingham bombing was also in 1963.  Casual violence against black Americans was openly and brazenly committed by whites nationwide. The 1967 riots served as somewhat of a wake-up call to the nation that our African American citizens would not continue to sit idly by and tolerate their distinct second class citizen status.  Universities were in the vanguard in terms of taking steps to attempt to enfranchise African Americans into sources of opportunity, enacting programs that incorporated express racial quotas into their admissions policy. The rationale for this was based on the same sentiment that propelled the enactment of the civil rights legislation of the mid-1960s, but in addition, there was the economic argument that within the African American community was a large, untapped reservoir of latent talent that could benefit the nation as a whole if given the opportunity.

A great deal has been written about this topic.  In 1978, the US Supreme Court issued its opinion in the University of California v Bakke case, which upheld the concept of affirmative action but ruled that express or fixed racial quotas violated the Constitution.  Thereafter, universities created various admissions program that included race as a component. There have been many cases addressing affirmative action, but the next major ruling came in 2003 in the twin cases involving the University of Michigan undergraduate and law school admission processes.  These rulings again upheld the notion of considering race as a factor in admission, but held that the rigid points-based structure of the undergraduate admissions office violated the Constitution, whereas the “holistic” approach of the law school, which considered race without giving race any particular fixed benefit, passed Constitutional muster.

Affirmative Action in University Admissions

Since then, many university admissions programs – including Harvard’s admissions system – have been tailored to fit within the allowable “holistic” approach.  Edward Blum’s goal is to eliminate this last vestige of affirmative action in university admissions. In 2008, Blum dredged up a mediocre rejected white applicant to University of Texas, Abigail Fisher, who sued the University of Texas alleging that it violated the Constitution by discriminating against her on the basis of race, admitting an applicant of color whose GPA and admissions exam score were slightly lower than hers.  In 2015 SCOTUS upheld lower court decisions that held that the University of Texas acted properly in its admissions practices.

Blum then devoted himself to a several-year process of researching admissions data and scouring the admissions landscape to find a better plaintiff and better argument to serve as a platform for his goal of eliminating race as a factor in admissions. Eventually, Blum figured out that academe, and especially the super-rarified world of the “Ivy Plus”, has an “Asian problem“.

It is useful to discuss briefly the admissions process at highly selective universities like Harvard. Blum didn’t choose Harvard by accident. In fact, Harvard’s example is somewhat inapt for most of the rest of the world, but this is why Blum selected the university as the defendant.  Blum doesn’t actually care whether elite Asian applicants get into Harvard. Ultimately, Blum wants to create more opportunities for mediocre white applicants at places like the University of Texas, and his vector is a ruling that eliminates race as a consideration altogether.  Harvard, due to its unique and rarified environment, creates the possibility for such a ruling.

In very rough numbers, Harvard’s freshman class is about 1,700 and their initial applicant pool is about 40,000.  Of the freshman class, probably about 700 are legacy admits, rich kids, celebrities, or recruited athletes.  Of the 40,000 applicants, when you winnow out the legacies/recruited athletes, and the applicants who are clearly “reach” applicants without a real shot at admission, you end up with about 1,000 spots and about 10,000-15,000 applicants.  About 10-15 superstar applicants for each spot.

Because of this applicant pool, there isn’t a circumstance where Harvard rejects a strong applicant for a mediocre one. Instead, Harvard has the luxury of being able to assemble a mix of superstar students from widely disparate backgrounds. As an example, evidence in the trial has shown that Harvard makes an effort to admit kids from small Midwest towns, often preferring them over kids from big cities on the coasts.

A school like Harvard looks to many esoteric subjective factors when selecting one highly qualified candidate over another. One of those sets of factors has to do with personality.  Harvard has a preferred personality: an individual who is humble, helpful, and integrated into her or his community. Often, this factor is assessed in the admissions interview. Even where candidates are seemingly homogenous on most social factors, one may get the nod over the other because the interviewer of one thought he seemed egotistical and arrogant, while the other impressed his interviewer as down to earth and humble.

This is both Harvard’s strength and its Achilles Heel. Asian applicants to Harvard are admitted in percentages that are below what their numbers would otherwise suggest.  This persistent “Asian deficit” is underscored by the repeated use of “dog whistle” words in admissions packages that rate Asian applicants lower based on “personality” factors compared to other applicants. This data set would have the entire nation howling in protest if the same were happening to black applicants. Harvard’s admissions have been controlled by a single white man for decades. It seems there is at least some evidence that his vision has sacrificed Asian applicants to his program of inclusiveness.

The data is troubling because, by other measures, Harvard has done a decent job of making its admissions more broad-based on racial and socioeconomic grounds. In other words, Harvard’s process has resulted in more poor kids from the heartland, more black kids, more women, etc. In my opinion, race is a legitimate factor in university admissions so long as race is treated by our nation as a factor in allocating socioeconomic opportunity, which we do.  We are a culture in which being an ethnic minority confers a package of disadvantages and burdens on an individual.

However, the evidence of discrimination against Asian applicants exposes Harvard to a potential negative result in the case.  The narrow result – and in general judges are supposed to try to reach a narrow result if possible – would be to order Harvard to “stop discriminating against Asians”.  But there is wiggle room for a court to say that a school cannot consider race as a factor, at all.

But a court could reach a broader ruling that prohibits Harvard from considering at all. If Harvard were prohibited from considering race even when distinguishing among more or less equally qualified candidates, then nobody can. This is the result Edward Blum seeks.  As mentioned, he doesn’t actually care whether a few more Asian superstars get into Harvard. What he wants is a ruling that race can never be considered at all. Such a ruling will have little impact on a super-selective university like Harvard or MIT or Stanford. But it could be very impactful in places like the University of Texas where mediocre applicants and slightly more mediocre applicants compete for admission.

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