Legal Docket: Discrimination at Harvard?

NICK EICHER, HOST: It’s Monday morning, start of a new work week for The World and Everything in It. Today is the 17th of September, 2018.

Good morning to you, I’m Nick Eicher.

MARY REICHARD, HOST: And I’m Mary Reichard.

Some Asian-Americans say Harvard discriminates against them in the admissions process, and they’ve sued to stop it.

The Trump administration last month sided with the Asian-American plaintiffs. Attorney General Jeff Sessions filed a statement of interest in the case. Sessions noted Harvard receives taxpayer funding and therefore the university, quoting now, “has a responsibility to conduct its admissions policy without racial discrimination by using meaningful admissions criteria that meet lawful requirements.”

EICHER: Sessions went on to write that because Harvard considers race in its “holistic” admissions process, it needs to do two things:

One, it should define its diversity goals and, two, demonstrate that those goals cannot be met without using race.

Otherwise, it’s too easy to slip beyond legal boundaries and make race a predominant factor. That’s illegal.

The group Students for Fair Admissions says that’s exactly what Harvard is doing. SFA is the group suing on behalf of the Asian-American students. Ed Blum is president.

BLUM: It’s racial discrimination, and it’s a quota. But the quota today is against Asians, much like the quotas back in the 1920s and 30s was against Jews. In 1992, 19% of Harvard’s incoming freshman were Asian. In 2013, 18% were Asian. During this period of time, the number of Asians applying to Harvard came close to doubling. Now, was this just a coincidence that every year from 1992 through 2013 the numbers stay the same? …You cannot remedy past discrimination with new discrimination.

EICHER: You heard Blum refer to Harvard’s acknowledged exclusion of Jewish students when it first put in place what it calls its “holistic” review.

The school started using the holistic method after it stopped using academic merit alone to evaluate applicants.

By considering more subjective criteria like “promise” and “character,” Jewish students could be rejected under a plausible pretext.

REICHARD: For its part, Harvard rejects the contentions of the plaintiffs. Harvard says it does not make Asian applicants jump through hoops other racial groups need not jump through.

The same internal investigation the other side says shows discrimination is the one Harvard’s experts use to say the opposite.

Harvard says the other side is cherry picking data and ignoring intangibles that really matter.

The problem is nobody agrees on what exactly constitutes a legally fair admissions process.

So I called up two people who take opposite sides.

First, Megan Segoshi, who’s an expert in college access and Asian-Americans. She joined a friend of the court brief on behalf of Harvard and has experience in the holistic review process.

Here she explains.

SEGOSHI: Harvard uses what they refer to as “whole person” review. Holistic review is essentially a process that evaluates all the candidates on a variety of different factors. So we’re not only considering their academic qualifications, which are typically, you know, more easily quantifiable, but they’re also measuring things like the unique achievements of their applicants.

REICHARD: Specifically, Harvard rates applicants on a scale of 1 to 6 in various categories, like academics and extracurricular activities. It also rates more subjective things, such as likeability, courage, and being respected.

Asian-American applicants score highest in the more objective categories, but they seem to get graded down on the subjective ones.

Segoshi says it’s more complicated than that.

SEGOSHI: We don’t say we have this many Asian students and this many black students, and we can only take so many from each group. It really is, okay, who are you? What have you accomplished? … So Harvard is essentially trying to create…a class of incoming students that is dynamic, diverse in many different ways.

Here’s how Segoshi counters the arguments in the Asian-Americans’ lawsuit:

SEGOSHI: One thing that is commonly brought up by the opposing side is that Asian-Americans…have to score higher than..students from other races in order to be admitted.  That doesn’t take into account the fact that Harvard is practicing holistic review, so they’re not basing it on test scores. They could admit an entire class with people with perfect ACT scores or an entire class of students with perfect GPAs, but that’s not how they assess the quality of the candidate.

REICHARD: But how they “assess the quality of the candidate” is precisely where things get mushy.

Ilya Shapiro with the Cato Institute has followed this issue for years.

SHAPIRO: One can infer that the goal of Harvard here isn’t necessarily that they hate Asians for the same type of racist reasons they might have had a hundred years ago when they were capping Jews, but simply that they’re engaging in racial balancing and the Supreme Court has said repeatedly that the use of race for that purpose is not allowed.

REICHARD: So which is it? “Whole person, holistic?” Or illegal racial balancing?

It all depends on who’s answering the question. Again, Ilya Shapiro:

SHAPIRO: And the problem is that the data isn’t just looking at the overall admission rates by ethnic group. They’re looking at people of the same level of qualifications. …And what the data shows is on the whole, not talking about any one individual person, but on the whole, people of the same level of qualification, it’s significantly harder to be Asian rather than white and white rather than Latino and Latino rather than black. So at any given level of qualification, it is much harder to get in if you happen to be Asian-American and there’s no other difference.

REICHARD: Segoshi, again on Harvard’s side of the argument, counters this way:

SEGOSHI: Asian-Americans comprise about 6 percent of the U.S. population, but over 20 percent of the students at Harvard, so to suggest that they are being discriminated against is just lacks a common sense in the numbers right there. Ed Blum is doing this for white students to dismantle affirmative action policies. It boils down to a white entitlement to admissions to selective, elite selective universities by using Asian-Americans to decrease numbers of students of color in elite universities.

REICHARD: The idea that this lawsuit isn’t about helping Asian-Americans but about Ed Blum’s repeated attempts to end race considerations altogether came up again and again in my research.

Even if that’s true, the larger issue is the muddy waters of affirmative action made muddier by how that area of the law has developed.

Universities haven’t had the clearest guidance on how much race is too much race.

The 1964 Civil Rights Act banned race discrimination for institutions that take federal money, as most universities do.

Public policy involves tradeoffs. When government acts to eradicate discrimination, sometimes those efforts produce side-effects and unintended consequences. Those on the receiving end of them began claiming reverse discrimination.

The famous 1978 case comes to mind: Regents of the University of California v. Allan Bakke. There, a white man claimed the medical school rejected him solely on race, because the school reserved 16 seats specifically for minorities.

The justices issued a jumble of six different opinions. Affirmative action was okay, but the university went too far, according to a majority. Bakke got into medical school and became an anesthesiologist at the Mayo Clinic. But in practical terms, most affirmative action programs continued without change. The court ever since favored the rationale of diversity in college admissions as a reason to consider race.

The high court endorsed it in another case in 2003, saying diversity is a compelling state interest. It endorsed the practice again in 2016, in the Fisher v. University of Texas ruling, upholding that school’s consideration of race in admissions. The deciding vote in that case was now retired Justice Anthony Kennedy, who left the door open to future legal challenges to affirmative action.

I asked Shapiro what he thinks the future holds.

SHAPIRO: This is one area where the replacement of Justice Kennedy with presumably Brett Kavanaugh may have a significant shift. My Twitter feed, at least, shows a lot of apoplexy from the left on how replacing the swing vote, the middle of the court with this more conservative jurist will radically change things and people will die, etc. etc. As it happens, not much will change in most of those areas either because Kennedy was already with conservatives or because John Roberts, who’s now going to be the median vote is a minimalist and won’t decide more than needs to be decided. 

But, on affirmative action, on the use of race in the preferential mode for admissions and other things, John Roberts has stated in no uncertain terms that the ways to stop racial discrimination is to stop discriminating based on race. And I think this is one area that if and when the court takes it up, they will say that it’s time to end the 40-year-old experiment with allowing the use of race for diversity purposes.

REICHARD: I think Segoshi rightly summed it up this way:

SEGOSHI: There’s gonna be people on both sides because our ideologies and perspectives can be manipulated.

This case goes to trial on October 15.

If it proceeds to the Supreme Court, we might be looking at ending affirmative action policies across the nation.

And that’s this week’s Legal Docket.

(AP Photo/Elise Amendola, File) In this Aug. 30, 2012, file photo, a tour group walks through the campus of Harvard University in Cambridge, Mass. 

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