Harvard Sued for Asian Quotas in Admissions

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Re: Harvard Sued for Asian Quotas in Admissions

Postby pianoman » Thu Aug 03, 2017 4:41 pm

The Trump administration is reportedly preparing to carry out an investigation of the complaint filed by the Asian American Coalition for Education that was tabled during the Obama administration. A leaked memo from the Department of Justice seeking "lawyers interested in working for a new project on 'investigations and possible litigation related to intentional race-based discrimination in college and university admissions'" was reported in the NY Times yesterday. Interestingly, the Times assumes in the first paragraph of its article that the action is to address discrimination against "white applicants," but a DOJ spokesperson issued a statement refuting this report and pointing to the AACE complaint:
http://www.washingtonexaminer.com/it-lo ... le/2630509
The administration, for its part, maintains the reports are false. DOJ spokeswoman Sarah Isgur Flores issued a statement explaining, "Press reports regarding the personnel posting in the Civil Rights Division have been inaccurate. The posting sought volunteers to investigate one administrative complaint filed by a coalition of 64 Asian-American associations in May 2015 that the prior Administration left unresolved."


The AACE actually has a very good page on their website that lays out their case, with links to many more studies and articles (many of which have already been linked in this thread). Hopefully the coalition resumes its activity now that their complaint appears to have been resuscitated:
http://asianamericanforeducation.org/en/issue/ourview/

Here is the NY Times article:

Justice Dept. to Take On Affirmative Action in College Admissions
By CHARLIE SAVAGEAUG. 1, 2017

WASHINGTON — The Trump administration is preparing to redirect resources of the Justice Department’s civil rights division toward investigating and suing universities over affirmative action admissions policies deemed to discriminate against white applicants, according to a document obtained by The New York Times.

The document, an internal announcement to the civil rights division, seeks current lawyers interested in working for a new project on “investigations and possible litigation related to intentional race-based discrimination in college and university admissions.”

The announcement suggests that the project will be run out of the division’s front office, where the Trump administration’s political appointees work, rather than its Educational Opportunities Section, which is run by career civil servants and normally handles work involving schools and universities.

The document does not explicitly identify whom the Justice Department considers at risk of discrimination because of affirmative action admissions policies. But the phrasing it uses, “intentional race-based discrimination,” cuts to the heart of programs designed to bring more minority students to university campuses.

Supporters and critics of the project said it was clearly targeting admissions programs that can give members of generally disadvantaged groups, like black and Latino students, an edge over other applicants with comparable or higher test scores.

The project is another sign that the civil rights division is taking on a conservative tilt under President Trump and Attorney General Jeff Sessions. It follows other changes in Justice Department policy on voting rights, gay rights and police reforms.

Roger Clegg, a former top official in the civil rights division during the Reagan administration and the first Bush administration who is now the president of the conservative Center for Equal Opportunity, called the project a “welcome” and “long overdue” development as the United States becomes increasingly multiracial.

“The civil rights laws were deliberately written to protect everyone from discrimination, and it is frequently the case that not only are whites discriminated against now, but frequently Asian-Americans are as well,” he said.

But Kristen Clarke, the president of the liberal Lawyers’ Committee for Civil Rights Under Law, criticized the affirmative action project as “misaligned with the division’s longstanding priorities.” She noted that the civil rights division was “created and launched to deal with the unique problem of discrimination faced by our nation’s most oppressed minority groups,” performing work that often no one else has the resources or expertise to do.

“This is deeply disturbing,” she said. “It would be a dog whistle that could invite a lot of chaos and unnecessarily create hysteria among colleges and universities who may fear that the government may come down on them for their efforts to maintain diversity on their campuses.”

The Justice Department declined to provide more details about its plans or to make the acting head of the civil rights division, John Gore, available for an interview.

“The Department of Justice does not discuss personnel matters, so we’ll decline comment,” said Devin O’Malley, a department spokesman.

The Supreme Court has ruled that the educational benefits that flow from having a diverse student body can justify using race as one factor among many in a “holistic” evaluation, while rejecting blunt racial quotas or race-based point systems. But what that permits in actual practice by universities — public ones as well as private ones that receive federal funding — is often murky.

Mr. Clegg said he would expect the project to focus on investigating complaints the civil rights division received about any university admissions programs.

He also suggested that the project would look for stark gaps in test scores and dropout rates among different racial cohorts within student bodies, which he said would be evidence suggesting that admissions offices were putting too great an emphasis on applicants’ race and crossing the line the Supreme Court has drawn.

Some of that data, he added, could be available through the Education Department’s Office for Civil Rights, which did not respond to a request for comment.

The Supreme Court most recently addressed affirmative action admissions policies in a 2016 case, voting 4 to 3 to uphold a race-conscious program at the University of Texas at Austin. But there are several pending lawsuits challenging such practices at other high-profile institutions, including Harvard University and the University of North Carolina. The Justice Department has not taken a position in those cases.

The pending start of the affirmative action project — division lawyers who want to work on it must submit their résumés by Aug. 9, the announcement said — joins a series of changes involving civil rights law since Mr. Trump’s inauguration.

In a lawsuit challenging Texas’ strict voter identification law, the Justice Department switched its position, dropping the claim that the law was intentionally discriminatory and later declaring that the law had been fixed. Mr. Sessions has also made clear he is not interested in using consent decrees to impose reforms on troubled police departments and has initiated a sweeping review of existing agreements.

Last week, the Justice Department, without being asked, filed a brief in a private employment discrimination lawsuit. It urged an appeals court not to interpret the ban on sex-based discrimination in the Civil Rights Act of 1964 as covering sexual orientation. The Obama administration had shied from taking a stand on that question.

Vanita Gupta, who ran the civil rights division in the Obama administration’s second term and is now president of the liberal Leadership Conference on Civil and Human Rights, noted that the briefs in the Texas voter identification and gay-rights cases were signed only by Trump administration political appointees, not career officials, just as the affirmative action project will apparently be run directly by the division’s front office.

“The fact that the position is in the political front office, and not in the career section that enforces antidiscrimination laws for education, suggests that this person will be carrying out an agenda aimed at undermining diversity in higher education without needing to say it,” Ms. Gupta said.

The civil rights division has been a recurring culture-war battleground as it passed between Democratic and Republican administrations.

During the administration of George W. Bush, its overseers violated Civil Service hiring laws, an inspector general found, by filling its career ranks with conservatives who often had scant experience in civil rights law. At the same time, it brought fewer cases alleging systematic discrimination against minorities and more alleging reverse discrimination against whites, like a 2006 lawsuit forcing Southern Illinois University to stop reserving certain fellowship programs for women or members of underrepresented racial groups.

In 2009, the Obama administration vowed to revitalize the agency and hired career officials who brought in many new lawyers with experience working for traditional, liberal-leaning civil-rights organizations.
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Re: Harvard Sued for Asian Quotas in Admissions

Postby pianoman » Mon Aug 07, 2017 9:52 pm

AACE has posted a response to the above reports on its website:
http://asianamericanforeducation.org/pr_20170804/

Asian American Coalition for Education Welcomes DOJ’s Plan to Investigate Harvard
By aace | August 4, 2017 0 Comment
For Immediate Release

August 4, 2017

Asian American Coalition for Education (AACE) is very pleased to learn that the U.S. Department of Justice is considering a civil-rights-violation investigation into the admissions processes of Harvard and other Ivy League colleges for their alleged discrimination against Asian American students. This is a direct and very positive response to the complaint AACE filed in 2015, representing 64 Asian American organizations nationwide.

In our complaint, we have compiled overwhelming evidence that Harvard and other Ivy League colleges have been using de facto racial quotas, racial stereotypes and higher admissions standards to discriminate against Asian American applicants. After adjusting for extracurricular activities and other factors, Asian-Americans have to score on average 140 points higher than a White student, 270 points higher than a Hispanic student and 450 points higher than a Black student on the SAT, in order to get into America’s top universities.

These discrimination are a clear violation of Title VI of the Civil Rights Act of 1964 and the Fourteenth Amendment of the U. S. Constitution, as well as relevant U.S. Supreme Court Rulings. It is one of the biggest civil rights issues that Asian Americans are facing today.

Since 2006, in the face of such severe discrimination, many Asian American students and organizations have filed complaints with the Department of Education and the Department of Justice. However, over the last ten years, the prior administrations have not conducted objective investigation into these complaints. Today, we are very encouraged that the Trump Administration will start looking into this issue, providing Asian American students with equal protection under the laws.

Mr. Yukong Zhao, the president of AACE said: “It is long overdue to the Asian American community, who follows the laws, works hard and has been making tremendous contribution to American economic prosperity and technology leadership in the world. We expect that the U.S. Departments of Justice and Education will take concrete actions to help restore the spirit of American Dream: reward individual efforts and merits, and treat all individuals equally.”

He also pointed out: “The purpose of our complaint is to eliminate all unlawful discrimination against our children. We believe the fundamental way to achieve diversity is to reduce achievement gap in K-12 education, not through illegal racial balancing during college admissions. We would also support a socioeconomic status based policy if it effectively helps low-income families.”

Finally, AACE wants to express our sincere appreciation to all participating Asian American organizations, volunteers and other supporters from all over the nation!

Asian American Coalition for Education
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Re: Harvard Sued for Asian Quotas in Admissions

Postby pianoman » Fri Mar 02, 2018 11:05 pm

A new twist: what appears to be left-leaning student organizations in elite colleges are preparing to hold referenda on the use of legacy status in college admissions. These groups may think that they are countering efforts to end affirmative action, but legacies and doners are just another form of non-meritocratic promotion. I was listening to an interview with a British man who had written a book about America on NPR (wish I could remember the name of the book), and one of the things this man said is that he could not believe the amount of shenanigans that went on in American college admissions and that what we have here would never be allowed in Britain.

https://www.theatlantic.com/education/a ... hy/553313/

A New Call to End Legacy Admissions
First-generation student groups are protesting affirmative-action practices that privilege the relatives of alumni—even though their own families could one day benefit.


RICHARD D. KAHLENBERG FEB 14, 2018

Up until now, most of the legal and political fights over college-admissions policies have centered around the use of race as a factor in admissions at selective colleges. But that may be changing. On Wednesday, student groups at 13 elite colleges announced that they are mobilizing against a different type of affirmative-action program: that which privileges the children of alumni.

About three-quarters of U.S. News & World Report’s top 100 universities give a boost in admissions to the relatives of alumni, according to an analysis by The Century Foundation, where I am a senior fellow. But student groups such as the Cornell First Generation Students Union, Socioeconomic Diversity Advocates at the University Chicago, and First-Gens@Brown have announced that they plan to challenge such policies, which research finds tend to benefit white and wealthy applicants.

It’s ironic, said Mayra Valadez, a senior and first-generation student at Cornell, that “at institutions of higher learning, there are people doing research on combating income inequality,” yet admissions officers in those same colleges are providing “affirmative action for the wealthy.”

As a start, student organizations that champion the rights of low-income and minority communities at Princeton, Yale, Cornell, Brown, Columbia, and the University of Chicago plan to gather signatures for petitions to hold non-binding referenda in the spring on whether students think it is fair for their respective institution to give admissions preference to “legacies.”

If students vote to eliminate legacy preferences on their given campus, the groups plan to build alliances with alumni who oppose legacy preferences on principle. (Students at the other seven institutions involved—Duke, Swarthmore, Emory, University of Pennsylvania, Harvard, Vanderbilt, and Amherst—plan to pursue referenda later or use other means to draw attention to this issue, such as op-eds.)

At the very least, student organizers say, they want colleges to be transparent about their policies and disclose any written documents outlining how legacy preference is weighed in the admissions process. While universities typically disclose whether they use legacy preferences or not, they tend not to publicize details on how the process actually works—how heavily such preferences are weighted, for example, and how many students benefit each year.

Many college officials defend legacy preferences as a mere tiebreaker among otherwise equally qualified applicants. Brian Clark, who oversees communications at Brown, said in an email: “When it comes to choosing among equally strong candidates, one consideration can be the natural affinity for the University that often emerges among children of alumni from Brown’s undergraduate college. Such a relationship may be one consideration among a great many factors.”

Because Brown does not disclose relevant data, it’s hard to know precisely how big a factor legacy preference is in the Ivy League institution’s admissions decisions. But evidence suggests that legacy is a significant factor at many elite schools. Research from the Princeton sociologist Thomas Espenshade of 10 highly selective colleges suggests being a legacy provides a boost equivalent to scoring 160 points higher on the SAT (out of 1600 points). And in 2011, research on 30 elite schools from the higher-education expert Michael Hurwitz found that the children of alumni saw a 45 percentage-point increase in their chances of admission compared to otherwise equally qualified candidates who were not legacies, controlling for factors such as SAT scores, athlete status, gender, race, and “many less-quantifiable characteristics.”

At many prestigious colleges, the relatives of alumni abound on campus. A recent Harvard Crimson survey of the class of 2021 found that 29 percent of students had a relative who attended Harvard. This proportion far outnumbered those whose parents lacked a four-year college degree.

Supporters of the new campaign against legacy preferences say they are getting pushback from those who contend that scholarship students should be grateful for the grants they are receiving and not challenge a system that allegedly encourages donations among alumni—donations that make those scholarships possible.

But Viet Nguyen, a 2017 graduate of Brown University and a leading force behind the anti-legacy preference drive, told me that “we aren’t biting the hand that feeds us.” There is very little evidence that legacy preferences increase donations, he said. Indeed, a 2010 study in a volume I edited called Affirmative Action for the Rich found that the existence of a legacy-preference policy did not meaningfully increase total alumni giving at leading universities. Furthermore, the study found that seven institutions that dropped legacy preferences between 1998 and 2007 did not suffer any serious reductions in alumni giving.

Students are not the only ones beginning to question legacy preferences. In an October speech, the president of the Federal Reserve Bank of New York, William Dudley, declared that giving the children of alumni preferential access “is patently unfair, and scrapping such policies would help increase social mobility.” He went on to ask: “Do we really want to encourage what is essentially a ‘donate to admit’ policy at our major universities?”

In this populist moment, when the victorious candidate for president emphasized that the system is “rigged,” it is possible that some colleges will be shamed into ending their legacy-preference policies. Elite colleges are already reeling from the passage of a new federal tax on large endowments at private institutions, and they may decide that now is a prudent time to eliminate a practice that blatantly rewards lineage over merit.

Moreover, the new campaign among first-generation students at elite colleges may have special resonance among the general public. After all, young people such as Valadez and Nguyen, who have overcome considerable odds to become the first in their families to attend college, are now part of an elite club. Their own children one day could benefit from legacy preferences, so they have all the reason in the world to stay quiet on the issue.

But they and many of their first-generation colleagues simply can’t come to grips with the idea that children lucky enough to have parents who attended elite colleges should then have yet further advantages heaped upon them in the admissions process. “Just because we would benefit from it does not make it fair,” Nguyen said, echoing a sentiment Valadez similarly stressed. Instead, he said, their focus is on a different question: “How do we extend the ladders of opportunity” to other bright students from their communities who have been left behind?”
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Re: Harvard Sued for Asian Quotas in Admissions

Postby pianoman » Mon Mar 19, 2018 8:29 pm

The plaintiffs in the Harvard suit have the documents they requested and the court is narrowing in on a trial date. Surprisingly, it is Students for Fair Admissions (anti-affirmative action side) that is requesting more time to prepare. Defense wants a late summer start date; plaintiffs want a fall date:

https://www.cnn.com/2018/03/10/politics ... cans-trial

A lawsuit that claims Harvard caps the number of high achieving Asian-Americans it admits could go to trial in Boston as early as this summer, according to a new filing in the case.

The lawsuit, begun in 2014 by a conservative advocate who has long challenged affirmative action that benefits blacks and other historically disadvantaged racial minorities, could affect who gets a place on the selective Ivy League campus.

It could have even greater consequences nationwide. The case was devised ultimately to topple a 1978 US Supreme Court decision that first endorsed college affirmative action, Regents of the University of California v. Bakke.

Lawyers for both sides submitted a status report and proposed schedule Friday in US District Court in Boston. Harvard has asked that a trial begin in July or August. Students for Fair Admissions, the group that filed the complaint, wants a trial to begin no earlier than October 1. It says it would need the extra time to prepare for a trial of the size and scope anticipated.
The challengers recently finished data analysis of about 200,000 Harvard undergraduate admissions files from a six-year period. The files included students' grades, test scores and extracurricular activities; demographic and legacy information; and admissions officers' ratings.

Students for Fair Admissions' team of analysts have been trying to detect patterns that would support the group's claim that Asian-Americans are held to a higher standard than other applicants while the college puts a thumb on the scale for African-Americans and other minorities. The group contends that Harvard engages in unlawful racial balancing, violating Title VI of the 1964 Civil Rights Act.

In their Friday submission, the challengers said they had collected 37 deposition transcripts and other documentary evidence that includes "incriminating emails" and "Harvard's own inculpatory studies."


Meanwhile, Wesley Yang, who wrote this long piece on the peculiar predicament of Asian Americans linked in the first post of this thread, has written what I think is one of the best overviews of the history of East Asians in America and their strange relationship to left-wing political activism here. The article gives very good historical context for the current lawsuit. Yang argues that it is recent Chinese immigrants who are making this new push for meritocracy that goes against the main thrust of Asian activism since the 60s that has sought to leverage power by aligning with other racial minorities. This "Asian" identity politics was always an imposed construct and has resulted in many instances where Asian activists appear to be advocating against their own base's interests. Yang does not take a side on the lawsuit--he is only an observer here:

http://www.tabletmag.com/jewish-news-an ... ota-system

There has always been something faintly ludicrous about the “Asian-American” identity. A survey conducted in 2012 by the Pew Research Institute of the attitudes of the six largest (Indian, Filipino, Chinese, Japanese, Vietnamese, and Korean) of the more than 30 distinct nationalities collected under the umbrella of the “Asian-American” identity found that fewer than 15 percent of respondents considered themselves to be “Asian-Americans.” All races are, to varying degrees, artificial constructs. The “Asian-American” identity is an artificial construct that scarcely anyone claims.

There is no reason to expect otherwise. The term was coined by a handful of Yale College student activists of Chinese and Japanese descent in the 1960s. As immigrants from Asia began to arrive in large numbers in the 1970s, the term came to encompass successive waves of immigrants from a growing list of countries. It became a bureaucratic designation adopted by the government in 1977. No one chose it for themselves. Others applied it to them.
The question of whether Asian-American leaders actually represent any of the people they claim to represent has been put to the test in recent years. The answer is no: at least with respect to one of the largest Asian-American constituencies, a recent cohort of newly arrived Chinese-Americans from the mainland, who seek what the multicultural politics of racial patronage that the Asian-American coalition has embraced specifically forbids.

These new Chinese-Americans want a strictly meritocratic, race-neutral admissions schema to be imposed by the Supreme Court onto the nation’s elite colleges. They want this because it is the schema that will result in higher rates of acceptance for their children. The sharp-elbowed ethnic lobby of Chinese immigrants doesn’t care about the other parts of the multicultural coalition of which the Asian-Americans feel themselves to be a part. It’s not concerned to preserve the tense compromises around affirmative action that black and Hispanic elites have made with white elites to preserve a space for the white scions of privilege to avail themselves of legacy and donor preferences, or the preferences for the country club sports of squash and fencing in exchange for minority set-asides. They don’t want to preserve this consensus because it is this consensus that has kept the Asian-American population at Ivy League colleges frozen in place, even as the Asian-American population has exploded. They want a system in which applicants are rank ordered according to transparent, quantifiable criteria with no racial gerrymandering.
This would mean the end of Asian-American deference not just to blacks and Hispanics who are the beneficiaries of affirmative action and other diversity initiatives that focus on “underrepresented minorities,” but also to whites who have their own coded forms of preference that prop up their own incumbency in a spoils systems that favors everyone else over the highest-achievement group. This defection of Chinese-Americans from the Asian-American coalition doesn’t just threaten the Asian-American political project. It also threatens the entire system of racial patronage, in which America is organized into four racial collectives—white, black, Hispanic, and Asian, with the three non-white groups allied together to defend the interests of minorities amidst white hegemony. It presents another possibility: That in pursuing their own narrow ethnic interests, Asians can break up the coalescence of the country into racial blocs and come to occupy a key fulcrum point in the racial politics of America.
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Re: Harvard Sued for Asian Quotas in Admissions

Postby pianoman » Sat Jun 16, 2018 10:34 pm

Man, a whole slew of articles out now about an internal investigation Harvard conducted in 2013 that uncovered an anti-Asian bias, but which was kept secret until the lawsuit.

https://www.nytimes.com/2018/06/15/us/h ... cants.html
Harvard consistently rated Asian-American applicants lower than others on traits like “positive personality,” likability, courage, kindness and being “widely respected,” according to an analysis of more than 160,000 student records filed Friday by a group representing Asian-American students in a lawsuit against the university.

Asian-Americans scored higher than applicants of any other racial or ethnic group on admissions measures like test scores, grades and extracurricular activities, according to the analysis commissioned by a group that opposes all race-based admissions criteria. But the students’ personal ratings significantly dragged down their chances of being admitted, the analysis found.

The court documents, filed in federal court in Boston, also showed that Harvard conducted an internal investigation into its admissions policies in 2013 and found a bias against Asian-American applicants. But Harvard never made the findings public or acted on them.
“It turns out that the suspicions of Asian-American alumni, students and applicants were right all along,” the group, Students for Fair Admissions, said in a court document laying out the analysis. “Harvard today engages in the same kind of discrimination and stereotyping that it used to justify quotas on Jewish applicants in the 1920s and 1930s.
On summary sheets, Asian-American applicants were much more likely than other races to be described as “standard strong,” meaning lacking special qualities that would warrant admission, even though they were more academically qualified, the plaintiffs said. They were 25 percent more likely than white applicants to receive that rating. They were also described as “busy and bright” in their admissions files, the plaintiffs said.

One summary sheet comment said the Asian-American applicant would “need to fight it out with many similar” applicants. The plaintiffs’ papers appeared to offer other examples of grudging or derogatory descriptions of Asian applications, but they had been redacted.
Alumni interviewers give Asian-Americans personal ratings comparable to those of whites. But the admissions office gives them the worst scores of any racial group, often without even meeting them, according to Professor Arcidiacono.
University officials did concede that its 2013 internal review found that if Harvard considered only academic achievement, the Asian-American share of the class would rise to 43 percent from the actual 19 percent. After accounting for Harvard’s preference for recruited athletes and legacy applicants, the proportion of whites went up, while the share of Asian-Americans fell to 31 percent. Accounting for extracurricular and personal ratings, the share of whites rose again, and Asian-Americans fell to 26 percent.

What brought the Asian-American number down to roughly 18 percent, or about the actual share, was accounting for a category called “demographic,” the study found. This pushed up African-American and Hispanic numbers, while reducing whites and Asian-Americans. The plaintiffs said this meant there was a penalty for being Asian-American.
But, the plaintiffs said in their motion Friday, there was no further insight, because, “Harvard killed the study and quietly buried the reports.

Harvard said that the review was discounted because it was preliminary and incomplete.

At the end of the admissions process, the class of applicants is fine-tuned through a so-called “lop list,” which includes race. Almost the entire page in which the plaintiffs describe that fine-tuning has been blacked out. Mr. Blum, the founder of Students for Fair Admissions, said Friday that it was “disreputable” of Harvard to complain that information was being taken out of context while at the same time insisting on significant redactions of the evidence.
In a heavily redacted section, the plaintiffs describe how Harvard and 15 other elite schools share notes about the race of admitted students at a meeting of the Association of Black Admissions and Financial Aid Officers of the Ivy League and Sister Schools every year. The court papers portray them as a sort of secret society of admissions officers exchanging information about race, a sensitive aspect of admissions.


More coverage:
https://www.msn.com/en-us/news/us/harva ... smsnnews11
https://www.reuters.com/article/us-usa- ... reddit.com
http://www.foxnews.com/us/2018/06/16/ha ... -suit.html
https://www.telegraph.co.uk/news/2018/0 ... pplicants/
https://www.independent.co.uk/news/worl ... 01466.html
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Re: Harvard Sued for Asian Quotas in Admissions

Postby pianoman » Sun Jul 01, 2018 11:48 pm

First, this article by Wesley Yang is the angriest I've seen from an Asian person allowed to be a public intellectual in the US.

But this post is about an in-depth article in the Harvard Law Review that addresses affirmative action and the current lawsuit. The article is from 2017, but I have only recently had time to read and digest it:

Harvard Law Review: The Harvard Plan that Failed Asian Americans

This piece digs into the nuts and bolts of the legal basis for affirmative action. Essentially, it is a critique of Regents of the University of California v. Bakke, the 1978 Supreme Court case that established that race can be used as a factor in college admissions.

As the article reveals, Bakke was actually a very complicated decision. The judgement of the court was written by Justice Lewis F. Powell Jr., but in actuality a total of six opinions were issued, leading some to consider the judgement an unbinding plurality until Powell’s take was affirmed with Grutter v. Bollinger in 2003. Further complicating the case, the white plaintiff in Bakke, Allan P. Bakke, was ordered to be admitted to the UC medical school to which he applied. Powell argued that UC Davis’ racial quota system that set aside 16 out of 100 seats was unconstitutional. So the judgment on which every affirmative action program in the US is based actually vindicated the white plaintiff.

But what this article argues is that the most confusing thing about Bakke is the disconnect between the intent of Powell’s decision and the way that decision has been applied in practice—that every aspect of it that attempted to limit the scope of race-based affirmative action has actually had the effect of broadening it. After an overview of the current claims that affirmative action discriminates against Asians, the legal analysis begins by noting that Bakke:

. . . shifted the justification for racial preferences from remedying societal discrimination to the attainment of diversity. This shift has had a largely negative impact on Asian applicants.


So affirmative action grew out of the Civil Rights Movement, but:

The concept of general societal discrimination against minorities — without “particularized findings of past discrimination” — was simply too “amorphous” to justify the burden on innocent white applicants like Allan Bakke.”

The article also notes that:

Although Justice Powell was the lone Justice to favor the diversity rationale at the time, his opinion was typically viewed as controlling, and the Supreme Court later endorsed it in Grutter v. Bollinger and Fisher v. University of Texas at Austin (Fisher II). Today, diversity remains the primary compelling interest that can justify race-based admissions programs in higher education.


But the problem is Powell’s decision never really attempted to define what “diversity” meant, deferring everything to college administrators:

Deference to the university is substantial, so much so that some commentators have argued that university administrators have a “blank check” to craft race-based admissions programs. The Court defers both to the university’s conclusion that “diversity is essential to its educational mission” and to its definition of student body diverdsity. It also presumes the university’s good faith, “absent ‘a showing to the contrary.’” Consequently, the Supreme Court “impose[s] no formal evidentiary requirement” on the university to justify its diversity interest.
A legitimate interest in diversity is often defined in opposition to racial balancing, which the Court rejects as “patently unconstitutional.” But the difference between the two is too subtle to be meaningful.
Because the Court presumes the good faith of admissions officers who purport to pursue educational benefits, it is difficult to imagine any admissions goal that could not be easily reframed from unconstitutional to constitutional.


And the idea of “diversity” has never been decoupled from the idea of “proportionate representation.” Even the concept of “critical mass” representation, which was an attempt to put space between diversity and rigid proportionality, has never been applied in a way that was not shaped by proportionality:

On its face, the admissions goal of “critical mass,” first approved by the Court in Grutter, seems to cut against the idea of proportionate representation. Critical mass means “‘meaningful representation,’ . . . a number that encourages underrepresented minority students to participate in the classroom and not feel isolated.”
But data do not support this theory. As Chief Justice Rehnquist noted in his Grutter dissent, each group’s apparent critical mass varies dramatically and correlates with population. Justice Alito, dissenting in Fisher II, made the same observation.


One of the ways Bakke limits administrators' use of race is by outlawing strict quotas. But as this article points out, the difference between a hard “quota” and a flexible “goal” may simply be one of semantics. What Bakke really limits are the ways college administrators can talk about how they are arriving at their numbers, not necessarily the numbers themselves:

Notably, racial quotas are impermissible. This means that a university cannot — for any racial group — set aside “a fixed number or percentage which must be attained, or which cannot be exceeded.” By implication, it also means that all applicants must compete within the same pool: no group can be insulated from competition with other groups through “separate admissions tracks.” Numerical goals, on the other hand, are perfectly permissible. Goals are not quotas because they do not involve rigid numbers; they are flexible and can vary from year to year. As the dissenting Justices and commentators have pointed out, again and again, the line between quotas and goals is a thin one. In practice, universities may “‘sculpt’ the class with race and gender percentages in mind.” To avoid the appearance of quotas, admissions officers have been told to “vary the numbers a bit more” and produce yearly fluctuations.

So the “diversity rationale” is a cover for remedial action (real or perceived past discrimination), but excludes Asians (who would be included under an explicit “remedial” mandate) because they are overrepresented:

To many commentators, this focus on form over function is evidence that the diversity rationale is merely an “elaborate pretext” for the remedial rationale — under the cover of diversity, universities continue to operate affirmative action programs in order to remedy the effects of racial discrimination.
Any “Asian handicap” would be unjustifiable under the remedial rationale.
Instead, universities appear to have taken the diversity rationale seriously and have adopted a vision of diversity that is driven by the notion of representation. Because Asians are an overrepresented minority group, this interpretation of diversity works to their detriment.
When diversity is inseverable from proportionate representation, the worst position for an applicant is to be a member of an “overrepresented” group.


But the most damning point this article makes is that the Harvard model Justice Powell turned into law in Bakke is literally the same plan that was used to discriminate against that other overrepresented minority by Harvard earlier in the century—Jews. It is not simply a popular analogy. It is the same plan, used against a different group of people:

The Court-approved diversity rationale provides universities with the flexibility to curtail Asian overrepresentation with very little accountability. Professor Alan Dershowitz has argued that because the “‘diversity-discretion’ model . . . lacks real substantive content, [it] is inherently capable of manipulation for good or evil results.” The Harvard Plan lauded by Justice Powell was, in fact, created for the purpose of limiting the number of overrepresented, high-scoring Jewish students in the 1920s. To tackle what he called Harvard’s “Jewish problem,” then-President Lowell came up with a diversity-based “admissions system capable of manipulating a variety of factors, such as personality, character, geography, and genealogy, in order to produce the desired ethnic balance in an entering class.” Modern admissions officers are free to consider these same factors and weigh them however they see fit, provided that their methods are not too mechanical.
Even if admissions officers do not expressly aim to cap Asian enrollment, they are nevertheless subject to implicit racial biases. In particular, implicit biases influence how university administrators conceptualize diversity and the ways in which students can contribute to it. Motivated by numerical goals and unchecked by the law, officers may subconsciously hold different groups to different standards or carry out within-group comparisons.
Justice Powell thought that Jewish quotas were despicable, and there is little doubt that he did not intend to endorse an admissions plan that could allow for something similar. His clerk had persuaded him that the modern Harvard Plan was distinguishable from President Lowell’s Harvard Plan: it was open rather than closed, and it treated race positively rather than negatively. The problem, however, is that it was essentially the same plan. As discussed above, the open/closed and positive/negative distinctions are formalistic and functionally meaning-less. And even Harvard’s past Jewish quotas weren’t explicitly closed — the whole class was supposedly open to all, while the admissions office used multifactor considerations to indirectly lower the number of Jewish students. The Harvard Plan discussed in Bakke was just as discretionary and “inherently capable of gross abuse” as Lowell’s plan. It even considered many of the same factors as the original one.

The article’s take on the current lawsuit is that it has little chance of succeeding if judging by legal precedent:

Even if litigants can prove that admissions policies effectively penalize Asians in comparison to white students, it is unlikely that they would win under Supreme Court doctrine. Absent a “smoking gun” demonstrating bad faith or particularly egregious discrimination, almost all affirmative action programs are insulated from legal challenge.

But another way of putting this is to come to the conclusion that Bakke itself must be overturned.

I'll say that again: Bakke must be overturned.
pianoman
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