Last week, Federal District Judge Allison Burroughs issued a 130-page opinion rejecting a challenge to Harvard College's admissions program. The lawsuit on behalf of Students for Fair Admissions charged that Harvard discriminates against Asian American applicants in violation of Title VI. Because the Supreme Court has construed the prohibition on racial discrimination in Title VI as coextensive with the Fourteenth Amendment's Equal Protection Clause, the ruling in the case has implications for public as well as private colleges and universities--assuming it stands up on appeal.
Much of the press coverage of the Harvard case has treated it as a test of the legality of race-based affirmative action. And indeed, it may prove to be that. Although Judge Burroughs applied existing SCOTUS case law allowing the consideration of race as a plus factor but not a quota and allowing colleges to seek diversity but not racial balancing, the most recent articulation of those principles occurs in a 5-4 ruling by Justice Kennedy. It is conceivable that Justice Kavanaugh or Chief Justice Roberts or both will reaffirm the permissibility of affirmative action in a future case, but it is more likely that a conservative majority will either reject the Bakke/Grutter/Fisher line of cases entirely or reinterpret those cases so narrowly as to effectively eliminate race-based affirmative action. Whether that happens in the Harvard case or some future case remains to be seen.
For what it's worth, I regard it as unfortunate that so much of the discussion of the Harvard case has gotten tied up in a discussion of affirmative action. I understand why that would be so from the perspective of affirmative action's critics. To them, the goal of increasing the enrollment of African Americans and Latinx students necessarily means decreasing the enrollment of other racial groups, including Asian Americans.
But that oughtn't to be the only basis for objecting to discrimination against Asian Americans. Liberal supporters of affirmative action could join its critics in condemning what may be a corrupt bargain, whereby colleges discriminate against Asian American applicants to enable affirmative action for African American and Latinx students while preserving white privilege. Or at least we could so join together if we were persuaded that's what is going on. Is it?
Judge Burroughs says no. She credits Harvard's expert over the plaintiffs' expert on the ultimate factual question whether Harvard intentionally discriminates against Asian Americans. Although the record contains evidence of individual Harvard alumni/ae interviewers indulging stereotypes about Asian American applicants, she finds that there is not a proven pattern of systemic intentional discrimination.
Judge Burroughs also considers the statistical evidence. Putting aside special categories of applicants such as alumni children and recruited athletes (about whom more below), an applicant with the same academic credentials (grades and standardized test scores) and extracurricular rating (according to Harvard's measures) will have a harder time getting admitted if that applicant is Asian American than white, and a much harder time getting admitted than a Latinx or African American applicant. The latter difference is due to efforts to increase student body racial diversity, which, as I've said, are permissible under current law. But what accounts for the difference between white and Asian American applicants?
After parsing the data and the expert reports, Judge Burroughs finds the white/Asian differences sufficiently small as not to show intentional discrimination. I think she's persuasive on her terms, but those terms are problematic in at least one respect.
In addition to compiling an academic, extracurricular, and personal score, Harvard also provides a score for athletics. For recruited athletes, this score can make an enormous difference, but Harvard weighs athletics even for non-recruited athletes. This surprised me. I'm not surprised that athletics for non-recruited athletes would count as part of an extracurricular score, but it's not at all clear to me why, say, one would count playing the cello in a string quartet that practices daily and performs weekly as less valuable than playing on a high school soccer team, assuming roughly equal time commitments. And yet, even on its own admissions website, Harvard treats "athletic . . . commitments" as a category that is distinct from "extracurricular . . . commitments."
Perhaps Harvard has some theory about the impact of exercise on physical and mental health? But Harvard doesn't (and cannot, consistent with the Americans with Disabilities Act or basic fairness) count physical or mental health directly, so why use athletics as a proxy?
Perhaps the separate category of athletics aims to capture the cooperative skills one develops as part of a team? If so, this is an inexact proxy. Team sports like volleyball, basketball, and lacrosse require cooperation, but athletics encompasses sports like singles tennis and cross-country, in which one performs alone. Meanwhile many non-athletic activities (such as acting, musical performance, and putting together a yearbook) involve a great deal of cooperation.
Whatever the justification for weighting athletics as its own category (and thus, presumably, giving it more weight than other kinds of extracurricular activities, which are all lumped together), the separate categorization appears to disadvantage Asian American applicants, who score higher, on average, on "extracurricular" but lower, on average, on "athletics." That's not, by itself, sufficient reason to believe that Harvard's weighting of athletics was adopted for the purpose of discriminating against Asian Americans, but in the absence of an explanation for the separate categorization, it's a bit suspicious. The district court opinion would have been better had it addressed the possibility that Harvard awards particular points to recreational athletes because, not in spite of, the fact that the practice on average disadvantages Asian American applicants.
Had Judge Burroughs chosen to address that issue, she might have found support for her bottom line in the record. One of plaintiffs' own two experts -- Peter Arcidiacono -- stated in his analysis that setting aside recruited athletes, "the relationship between the athletic rating and admissions is weak." (That's from footnote 31 of page 24 of his report.) Put differently, the separate athletic rating may not be doing anything to boost the prospects of those who have it.
Although the best argument for Harvard on this point comes from the plaintiffs' expert, the plaintiffs could have had a response based on the report of David Card, who is Harvard's expert! His paragraphs 60-62 say that Arcidiacono is wrong, citing documentary and testimonial evidence that Harvard actually does place substantial weight on recreational athletics.
So maybe the reason the district judge did not directly address the possibility that Harvard uses athletic participation as a means of discriminating against Asian American applicants is that the experts for each side made claims that supported the other side's position, thus confusing the issue. If that sounds harsh to the lawyers and experts, I don't mean it to be. They were focused on a different issue. The plaintiffs were trying to show that athletics doesn't count for much, so Harvard must be using the soft variable of "personal" to discriminate against Asian Americans, while Harvard was trying to show the opposite. Apparently it didn't occur to either side to question the inclusion of a score for recreational athletics in the first place.
Nor did it occur to either side to challenge the much greater weight given to recruited athletes. That category also has a disparate negative impact on Asian American applicants. Depending on the sport, it can have a disparate positive impact on African American applicants. Still, while one can think (as I do) that even the prospect of college varsity athletics ought to count only in the same way as other extracurriculars that evidence commitment, ability for teamwork, and leadership, the fact that Harvard and other colleges in fact give much more substantial weight to recruited-athlete status doesn't seem like it is a proxy for discrimination.
I don't think that the extra weight Harvard attaches to recreational athlete status (beyond a comparable non-athletic extracurricular) is a proxy for race discrimination either, but I think the record is less clear on that point. And in any event, I don't see anything resembling a good justification, so even if the bonus for recreational athletics does not create legal liability for Harvard, it does not appear to be justified and should be eliminated (which is to say folded into extracurriculars) on policy grounds.
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There is a real risk that the Harvard case will be the vehicle by which the Supreme Court officially or unofficially dooms affirmative action in American higher education. That would be very unfortunate, in my view. Accordingly, I sincerely hope that Harvard can preserve its victory or, if the judgment is ultimately reversed, that it is reversed on narrow grounds.
Meanwhile, those of us who favor affirmative action have a responsibility to argue--as I am arguing here--that colleges that practice it might also be engaged in illicit discrimination. Judge Burroughs plausibly reads the record as failing to establish that Harvard is engaged in such illicit discrimination against Asian American applicants. That doesn't mean--and she specifically and wisely rejects the suggestion--that Harvard's (or any other college's) admissions program is perfect.
Finally, if one were to think these things through from first principles, one might question numerous premises about the goals of college, not just college admissions. For an excellent effort along those lines, I recommend Louis Menand's recent review essay.