Some Preliminary Thoughts on the Lawsuits and Protests by Asian Groups and Individuals Alleging Unfair Treatment by College Admissions Offices

Posted in: Constitutional Law

Recent months have seen a great deal of pushback by some Asian American groups against what they feel is unfair treatment in university admissions. Prominent lawsuits alleging impermissible race discrimination by admissions offices at Harvard and the University of North Carolina have been filed. And last month a group of Asian American organizations registered a federal complaint with the civil rights offices of the federal Departments of Education and Justice asking for investigations.

It is too early to say where these litigations and investigations might ultimately lead, and whether any universities will be found to have violated the law; much will depend, of course, on the facts that are established in these various proceedings. I make no predictions and express no views as to the appropriate outcomes of these disputes. But even at this early stage, it is appropriate to correct some fallacies of law and logic that have been expressed by various critics of the individuals and groups who have been raising complaints. In the space below, I identify and attempt to debunk three flawed criticisms in particular.

Fallacy Number One: Discrimination Against a Group Necessarily Means Every Member of the Group Has Suffered Tangible Harm From the Discrimination

Some defenders of the status quo seem to believe that if Ivy League and other top universities are found to be illegally discriminating against Asians or Asian Americans, this would mean that all applicants of Asian ethnicity would be materially affected by such discrimination. For example, in a Washington Post criticism of the lawsuit against Harvard entitled “The Misleading Lawsuit Accusing Harvard of Bias Against Asian Americans,” Julie Park, an Asian American assistant professor of education at the University of Maryland, begins by saying that the alleged fact that “Asian Americans [at Harvard] needed SAT scores that were 140 points higher than white students” to be admitted “ought to earn me a spot in the disgruntled ‘Rejected by Harvard’ . . . association [given that] my 1520 SAT score” and many extracurriculars would seem to have been sufficient for admission. But if the list of disgruntled rejected applicants is reserved for those who would have gotten in absent race discrimination, then whether Ms. Park has cause to feel disgruntled is hard to know. Even if Harvard is shown, in the aggregate, to have held applicants of Asian ancestry to a higher admissions standard than white applicants, there are plenty of Asian Americans, even with strong SAT scores, whose negative admissions outcomes were not, in fact, caused by any such discrimination. Under the so-called “holistic review” of college applicants that many private and public colleges use, scores, grades and even extracurricular activities are not the only criteria for admission. Interviews (for schools like Harvard, that use them) count, as do letters of recommendation, a record of leadership and public service, demonstration of having overcome obstacles, etc. So we would need to know a lot more before we could ever decide whether the author of the Washington Post essay, in particular, likely had her race used against her in an outcome- determinative way, or whether she was rejected for one of many other reasons. (It turns out that, in federal courts at least, plaintiffs challenging the use of race by universities do not need to establish that they are disgruntled in the sense that they would have been admitted absent the use of race; the fact that a university improperly considers race at all could infect the process, the Supreme Court has said, regardless of whether the infection actually altered the admissions outcome of the person bringing the challenge.)

I should point out here that the complaint filed against Harvard is replete with stories of particular Asian applicants with high grades and test scores and impressive extracurricular accomplishments, presumably to give the complaint a human feel. (This may be why Ms. Park assumed that those bringing the complaint were implying that the results in all these individual instances were affected by Harvard’s policy toward Asian persons.) But it is possible that many or all of these highly qualified folks would not have been admitted to Harvard whether or not the University has a policy or practice of discriminating against Asians, and thus may not have cause to be disgruntled in an outcome-determinative sense. But, as explained below, the individual stories are not the most important part of the lawsuit; the aggregate data is.

Fallacy Number Two: Aggregate Numbers Are Unimportant Because Each Applicant’s File Brings Unique Strengths

Ms. Park’s essay does explore the “holistic review,” admissions process, a policy that explains why (as she rightly points out) “elite universities [do not] have required scores for applicants” and that “meeting [particular] requirements [will not] . . . guarantee acceptance.” So far, so good. But it is where critics like Ms. Park go from there that seems wrong to me. For Ms. Park, the fact that “many” applicants who have a “top class ranking” and a “perfect or near-perfect” SAT score along with the “appropriate extracurricular activities” will “be rejected” means that Asians who have those attributes and who are not admitted can have nothing to complain about. Her argument seems to be that because no individual—no matter how strong her objective credentials are—is “guaranteed” a slot under a holistic review admissions process, the disappointment Asians feel about being denied admission is a product of “misunderstandings [in Asian households] about how admission works at elite colleges[,]” rather than any fault in the admissions systems themselves. But that reasoning is deeply flawed. It is true that no one’s record “guarantees” admission. But if, holding all other factors (e.g., extracurricular breadth and depth, community service, strength of letters of recommendation and interview performance) constant, Asians need to have significantly higher SAT scores or high school grades than whites to be admitted to a university, there is a big problem, both legally and morally, with what the university is doing. Even though particular individuals may not be able to prove that discrimination affected the outcome of their particular cases, if aggregate data shows that Asians are subject to a higher admissions standard, then we know that the process is being used to the detriment of at least some members of the discriminated-against group. Use of such aggregate statistics, and running regression analyses to control for all non-racist factors, is precisely how discrimination cases of patterns and practices are proven. And for defenders of the status quo to dismiss such alleged aggregate disparities between different racial groups on the ground that no one, regardless of her accomplishments, is “guaranteed” an admissions slot is to disregard the essence and importance of anti-discrimination law.

Fallacy Number Three: Complaints by Asians Are Necessary Attacks on Affirmative Action

All of this brings me to the third fallacy to which some critics of the Asian complainant groups fall prey—that these lawsuits and protests are best viewed as fundamental attacks on affirmative action programs that are designed to increase representation of underrepresented groups such as African Americans and Latinos. To be sure, some of the detractors of Harvard’s admissions policies do prefer to do away with all race-based admissions practices, including practices that are perfectly legal and appropriate means of creating a critical mass of students from certain historically underrepresented groups. (It also bears note, however, that some of these same challengers also want to do away with other practices, like admitting children of alums and applicants of families that have donated to the university, that tend to account for some of the underrepresentation of African Americans, Latinas and others.)

But, in fact, the recent complaints by Asian groups need not be understood as attacks on the idea of affirmative action itself, but as attacks on specific admissions policies (whether part of diversity-based affirmative action programs or not) that impose undue burdens on Asian applicants vis-à-vis white applicants. Whether or not affirmative action (i.e., the consideration of race) to increase representation of African Americans and Latinos (along with Native Americans and perhaps a few other groups) is valid and worthwhile (as I firmly believe it is), it is hard to see why Asian applicants, as a group, should lose out to white applicants with objectively less strong admissions files. Whites, after all, are not a group that has been historically (or currently) underrepresented, and there is generally no absence of a critical mass of white students at any university (even though the share of whites at some campuses has fallen.) Whites need no special policies designed to help them gain access to overcome past exclusion or to ensure they will matriculate in significant numbers. So if the data the Asian groups allege is backed up (and I repeat that I don’t know whether it is, but that should be the key question), then it would seem that the universities in question have been guilty of Asian stereotyping or, worse still, animus against Asians, neither of which should play any part in a legitimate affirmative action regime.