Monday, October 04, 2021

The Misused Concept of "Discrimination" and why SCOTUS Should not Hear the Harvard Affirmative Action Case

 By Eric Segall

The Supreme Court term starts today and, as the whole legal world knows, the Court has already agreed to decide important abortion and gun cases. There is another dispute the Justices might hear that could have enormous consequences for private and public higher education in this country. The right-wing public interest group Students for Fair Admissions (SFFA), which has brought numerus cases challenging racial preferences in colleges and universities, has sued Harvard claiming the university discriminates on the basis of race against Asians. Two lower courts have issued hundred of pages of opinions rejecting these claims, and now SFFA is seeking Supreme Court review. The Court should deny certiorari for a number of reasons but mostly because Harvard is not engaging in "discrimination" under any meaningful sense of that term.

Harvard is a private university and thus not bound by constitutional requirements. However, a federal statute, Title VI of the Civil Rights of 1964, prohibits any organization that receives federal funds from engaging in "discrimination on the basis of race, color, and national origin in programs and activities receiving federal financial assistance." The Supreme Court has said that the legal standards under Title VI and those required by the Fourteenth Amendment's Equal Protection Clause are the same. Thus, a decision that Harvard is or is not violating Title VI could have enormous implications for public colleges and universities across the country.

Harvard's admission program for undergraduate students is quite complicated. In its brief arguing against the Court hearing the case, Harvard says the following

To advance its mission, Harvard 'pursues many kinds of diversity,' including diversity of 'academic interests, belief systems, political views, geographic origins, family circumstances, and racial identities.' Harvard also create[s] opportunities for interactions between students from different backgrounds and with different experiences,' inside and outside the classroom, including through living assignments, extracurricular activities, and athletics....

To identify the strongest applicants, 40 admissions officers conduct a 'time-consuming, whole-person review process' in which each applicant is 'evaluated as a unique individual.' They consider personal essays, recommendation letters, extracurricular activities, athletics participation, honors and prizes, intended major, intended career, transcripts, test scores, family and demographic information, alumni or staff interview reports, and samples of academic or artistic work. 

The result of this long, complicated, and arduous process is that, for the class of 2025, Harvard is going to be roughly 25% Asian, 16% Black, 12% Hispanic, 53% percent white, and a smattering of other groups. Harvard has no official quotas or ceilings, and does not consider race until a student is already deemed qualified on other grounds.

Harvard's admission process does not "discriminate" on the basis of race either individually or by group. Here are some examples of university discrimination in admissions. The University of Texas did  not accept Blacks until 1956. The undergraduate institutions at the Universities of Georgia and Florida did not accept any Blacks until the early 1960's. In my lifetime, major public universities in numerous states said Blacks need not apply. And this was well after Brown v. Board of Education.

SFFA makes a number of arguments revolving around their core claims that the board scores and grades Asians need to have to be accepted at Harvard are higher than the scores of other racial groups. But this entire line of argument is based on a false premise--that Harvard only uses grades and test scores when making admissions decisions. Legacies, athletes, students with unique skills, leadership and otherwise, geographic location, and numerous other factors can substantially affect a student's chances of being admitted.

To the extent that the Fourteenth Amendment's Equal Protection Clause informs the Court's understanding of Title VI, that amendment does not mention race, and its original meaning rather clearly does not foreclose race-based measures to make up for the discrimination that non-whites have suffered throughout our history, including, of course, Asians.  And if Asians were actually suffering "discrimination" under Harvard's admissions system, then Title VI might well be violated. But Harvard should be allowed substantial latitude under Title VI, and public universities the same under the Constitution, to help students of all races by building as diverse a class as possible with grades and test scores just being two of many factors schools use to foster that much-needed diversity. It is hard to make the argument that Asians are suffering legal discrimination at the hands of a university when they make up 25% of the class, especially compared to the total exclusion of racial groups from many major universities for much of our history.

No matter how talented the high school students are at many prestigious private schools in my home town of Atlanta, and public schools as well, in its desire to build a diverse class, Harvard will take only a certain number from each school no matter what. Harvard makes geographical and school-specific decisions to further the diversity of its class. To say that Harvard is "discriminating" in any meaningful legal sense of that term when placing those limits is misleading and does not capture what Harvard is really trying to do. Both the district court and the court of appeals found that Harvard does not discriminate based on racial identity, in hundreds of pages of opinions, and there is no reason in fact or law for the Supreme Court to question those judgments.

I do not mean any of this to suggest that the law of affirmative action does not need serious repair. As many have noted, the Supreme Court has erred by saying that diversity alone can justify colleges and universities using racial criteria, and that the no-quota rule drives the use of race behind closed doors (absent costly and unnecessary litigation). But this Supreme Court will not improve that doctrine and is likely to make it much worse. That being the case, the best we can hope for, and what the Court should do, is allow the lower courts to do their jobs, which is all about finding facts, conclude that Harvard does not illegally discriminate against Asians, and deny certiorari in a case that has already gone on way too long.


Joe said...

Affirmative action involves a range of careful policy decisions in the promotion of the overall constitutional principle of equality. This is clearly the case when colleges weigh a range of things -- including race -- when choosing students and employees.

The courts should give wide discretion when dealing with policy details though with some constitutional oversight in certain clear cases. I agree, for example, Bakke was wrong to provide such a limited legitimate justification for taking into consideration race in affirmative action programs. Social discrimination is an appropriate factor.

Just my .02. Thanks for the analysis.

Phil said...

After implementing their meticulous "whole-person-review-in-which-each-applicant-is-evaluated-as-a-unique-individual" process, Harvard somehow decides that people of Asian ancestry are less suited to attend Harvard. California, where since the 1990s race cannot be taken as an admission factor in public colleges, has 37% plus and 48% plus Asians admitted to UC Berkeley and Caltech. Compare that with Harvard's 20-something %. However you cut it, this is still the old ugly racial discrimination. Actual affirmative action would mean investing in underfunded schools, infrastructure, crime-prevention... Instead, American white liberals prefer to make themselves feel better by graciously admitting Black and Latino students into colleges. At least this does not cost white liberals any tax dollars.

egarber said...

This is another one that gets all tied up in "originalism"/"textualism" contortions. We of course know that colorblindness wasn't the test for original application - see the history of Freedmen's Bureau. So then we move on to the Scalia mode of thinking around textualism and common public meaning at the time. On that count, I would say that it's a major stretch to say something like this: "a typical person in 1868 would say that 'social equality' equates to a standard of colorblindness..."

I simply don't buy that. I think that properly understood, there wasn't really any light between expected application and public meaning when it came to race in those days. Whether for good purpose (the Bureau) or poor (segregation), equality did NOT mean excluding race from cognizance. Which leads to my conclusion that "colorblindness" is a modern activist construct, not some disciplined form of restraint.

egarber said...

*the Freedmen's Bureau.....

Joe said...

"affirmative action would mean investing in underfunded schools, infrastructure, crime-prevention"

That would be a form of affirmative action and some of that is done.

For instance, generally speaking, the Democrats are trying to pass a major package in Congress that is a major investment. Like expansion of Medicaid in the Affordable Care Act, this will partially be affirmative action to help disadvantaged groups.

There has been a push in various respects to deal with funding schools (including by litigation to push for more equitable funding) and so forth. Not enough. But, there has been. It would be appreciated if some opponents of certain types of affirmative action would support such things more.

The sort of affirmative action involved here very well can be on top of that. Let's take West Point, again in a general sense. Early on, West Point didn't just pick the best and brightest nation wide. So, e.g., maybe a lot of engineers would be found in certain urban areas. It was a way to attract students from all over the country, who would come together into one military academy.

There were other ways to advance uniting the country, such as infrastructure projects. But, student choice was one additional basis.

Joe said...

A response to egarber's discussion, at least in part, seems to be to treat the Reconstruction as an extreme situation akin to using race to address blatant race discrimination in the days of Brown v. Board. But, now "it's different" (shades of Shelby v. Holder; see also, Roberts v. Breyer in the Parents Involved case), but Prof. Segall et. al. say "not quite as much as you think."

Hashim said...

Eric, I don't understand how you can say that Harvard "does not "discriminate" on the basis of race ... individually." Harvard concedes that, as part of their purportedly holistic analysis, they treat race itself as a factor. By definition, that means that, for two individuals who are otherwise similarly situated on all the other factors that Harvard considers, but who are of races that are given different weights for such students, Harvard is treating one student worse than the other based on the student's race. (If that were not true, it would mean that Harvard is giving race literally no weight, which is of course inconsistent with considering it in the first place.) And under both the ordinary dictionary definition of "discrimination" and the definition that's been universally employed under Title VI/VII/etc., treating an individual of one race worse than an otherwise similarly situated person of a different race is discrimination based on the individual's race.

And since it is discrimination against the individual, it does not matter whether it constitutes aggregate discrimination against the group. Though, fwiw, it undoubtedly does, given the virtual certainty that Harvard would admit even more than 25% Asians if it dropped all racial considerations while otherwise maintaining a holistic approach -- it's true that Harvard considers more than just grades and tests, but those factors are of course highly important and Asians do disproportionately well on them; indeed, didn't Asian enrollment spike in California's most selective public schools after the State banned affirmative action even though those schools likewise engage in "holistic" admissions consideration?.

Likewise, while it is discrimination in service of one conception of diversity, rather than raw segregationist animus of the pre-Title VI type that you emphasize, it is discrimination nonetheless. So even bracketing our disagreement about what the original understanding of the 14A shows about such policies, it seems to me that they clearly violate the unambiguous text of Title VI, unless one rewrites the text to exclude a form of discrimination that some think are less invidious than the primary evil that motivated the statute. But see Oncale etc.

Eric Segall said...

So Hashim is Harvard “discriminating” against my daughter’s school by not taking more than 2 or 3 students from there when they take similarly situated students from other schools to get a diversity of schools. Of course not.

Unknown said...

You seem to be conflating discrimination with invidious discrimination.

Yes, what you are describing would be discrimination. It would not be unlawful discrimination. Harvard also discriminates on the basis of legacy and athletic ability and parental donations. All of this discrimination, while of questionable morality, is at least not unlawful.

Hashim said...

Yes, Eric, if congress had passed a statute saying that Harvard couldn't "discriminate" against a student based on what high school she goes to, then Harvard absolutely would be prohibited from taking into account how many students from your daughter's school would be admitted under a school-blind process. Of course, congress has not passed any such statute, but they have passed one banning discrimination based on race.

Eric Segall said...

It’s your position, what, that Title VI requires a race blind admissions process? You think that’s what the law means. And gender blind for Title 9. You’re just wrong that using race as a factor of a factor and only for already qualified applicants, and in a school with substantial racial diversity, is “discrimination.” You can call it that but then we can’t communicate.

Michael A Livingston said...

Just two points: 1. I don’t understand the argument that there can’t be discrimination because there are a lot of Asians. By that token, the Jewish Quotas didn’t discriminate. There were still a disproportionate number of Jews. 2. The facts of the case suggest that Harvard interviewers systematically rated Asians as boring or uninteresting. What is that if not discrimination.

Unknown said...

If Congress passed a law modeled on title vi but forbidding discrimination on the basis of the high school of applicants, is it your position that a university could in no way run afoul of that law if it matriculated at least one person from any given school?

To put it another way, in that scenario, would no one have a claim if at least one other person was offered admission from their high school?

Taken to an extreme, does this imply that if Harvard College offers admission to exactly one Asian person, then Harvard cannot be guilty of discriminating against Asians?

Hashim said...

Eric, I think between the earlier comments from me, Michael Livingston, and Unknown we've hit all the key problems in your response, but just to sum them up.

You say that that you can't understand how to "communicate" with those who think that "using [trait x] as a factor of a factor and only for already qualified applicants, and in a school with substantial [trait x] diversity, is 'discrimination.'"

First, that's pretty odd, because both dictionaries and SCt statutory discrimination cases outside the affirmative-action context typically define "discrimination" based on trait x to mean *treating differently* an individual with trait x from an *otherwise similarly situated individual* without trait x. Isn't that the ordinary way one would determine how to "communicate" about the meaning of the term "discrimination"? By contrast, whether the discrimination concerns "a factor of a factor," "already qualified applicants," or "substantial [trait x] diversity" has nothing to do with the ordinary meaning of the term "discrimination" -- at most, those are factors that you personally think are relevant to whether the discrimination is *invidious or otherwise unjustified.*

Second, in actuality , I don't think that even you think those are the decisive factors. I would certainly hope, at least, that you wouldn't abide it if Harvard was otherwise race-blind but then expressly decided to apply a slight negative weight to all Jewish and Asian applicants, but only as a "factor of a factor," without admitting any "not already qualified" non-Jews and non-Asians, and so long as there remained "substantial diversity" of Jews and Asians. Which demonstrates, I think, that those factors are make-weights in your analysis, and what is *really* doing the work in your answer is that modern Harvard is acting for what you think is a benign motive (diversity) rather than what we all agree is an invidious motive (anti-Semitism/anti-Asian-ism). But again, the Supreme Court has made clear time and again that one's *motive* for racially discriminatory treatment is irrelevant to whether the treatment is in fact racially discriminatory.

Third, if we took this out of the freighted racial context, I don't think there's any chance you'd disagree. Again, to use your own hypo, if Congress had passed a law prohibiting colleges from discriminating against a student based on his or her secondary school, I'm pretty sure you wouldn't have thought twice about saying that colleges would need to adopt secondary-school-blind metrics, rather than continuing to keep extensive track of secondary schools, but only purportedly as a "factor of a factor" etc.

Finally, I've taken as given the "factor of a factor" stuff until now, but do you sincerely believe that? You seriously think that race is just a "factor of a factor," and that Harvard is letting in only "qualified" applicants, even though blacks in the *forth-lowest academic decile* have *the same* likelihood of getting admitted to harvard as asians in the *top* decile (~12.75%), and even though blacks in the top academic decile are instead *more likely than not* to get into Harvard (~56.1%). And even though it turns out that a significant driver of this difference is *concededly* that Asians consistently get the worst "personality" scores and blacks/hispanics consistently get the best.

Eric Segall said...

What everyone is missing is that putting together a diverse class is hard work and it is a worthy goal. Neither Title VI nor the Constitution mandates color blindness. Again, there is a world of difference between a no discrimination rule and color blindness. I’m not arguing policy I’m arguing law and the law doesn’t require color blindness. Also, two courts and hundreds of pages shows the admission process is far more complex than the one described in these comments. Thanks to everyone for engaging.

Michael C. Dorf said...

As Eric knows from our off-line conversation, I have a somewhat different view. I believe that the plaintiffs in this case were ill-served by allying with lawyers who want to use their case as a vehicle for forbidding affirmative action, because I think a plausible case can be made that Harvard and other elite institutions are engaged in traditional discrimination against Asian American applicants, chiefly for the purpose of limiting their numbers relative to white students. To be sure, admissions is a zero-sum game, so that there are substantial numbers of Asian American applicants (and parents of those applicants) who oppose affirmative action for traditionally disadvantaged minorities. In that dispute, my policy druthers are with the traditionally disadvantaged minority applicants, especially African American applicants. But if the issue is whether Harvard or other elite institutions should be permitted to engage in stereotyping of Asian Americans as studious nerds without personality so that more white applicants are admitted, then I would side with the Asian American applicants. And there is some evidence that Harvard and other institutions engage in such stereotyping under the cover of holistic processes. That said, the district court found otherwise; its findings of fact are not necessarily clearly erroneous; even if they were, that would not itself be a basis for the Supreme Court, which is not a "court of error," to review the case; and given how the case has been used as a vehicle for attacking affirmative action more broadly, I agree with the bottom line hope that the Court does not take the case. But I do think the issues here are somewhat different from those the main post and the comments raise.

Unknown said...

Does Bostok have any application in this context?

Joe said...

I think Prof. Dorf's comment, including the "plausible case" part, fits with my original comment on the complicated nuances involved here and how restricting the allowable policy moves by court action is something we should be wary about.

(This apart from the firm stances on each side on the merits in this thread.)

Again, matching the comment, this would suggest that the students might have a case as a matter of policy & press their point in some other way. It is also possible that the statutory rules in place do not completely match the constitutional text & the statute is more strict and the students win there.

And, just to cover my bases, I think there are likely a few cases where a specific plan does cross the constitutional line.

kotodama said...

I think folks like Ed Blum and his ilk would have a bit more credibility on the issue of discrimination against Asians if they weren't also such ardent supporters of the guy who likes to throw around the terms "Wuhan virus" and "kung flu".

Unknown said...

I am willing to leave the legal analyses to you experts. But I'm surprised how much credence you give to the "idealized" presentation of what the Harvard admissions process does. I say this as a Harvard alumnus who did alumni interviews for many years--and someone with many years experience with undergraduate admissions at a "comparable" Ivy League school.

So the problem is that there are way way way too many "fuzzy" parameters that enter into the admissions process; and that as currently constituted the actual process would seem to be that "we decide what numbers we want" and then "we decide what factors we wish to include, how we will normalize them and weight them, and then do admissions--unless we get the wrong results".

I've been advised that the move to eliminate SAT scores is driven in no small part by the lawyers who wish to remove "objective" measures from the process. In the Harvard case, one of the features of the assessment was the observation that for whites the alumni interviews were reasonably correlated with the "personal" rankings provided by the admissions staff--while for Asians they were ranked lower by staff, and black/Hispanic applicants ranked higher. One would suspect that a "personal" rating is best made, well, in person, no? When you add in that the "weight" ascribed to the personal rating is, well, a number in found in a secret recipe--the potential for mischief is unlimited. And the idea that "race enters into the admissions decision only after we've created a qualified pool"--well that is simply not correct.

The fundamental problem is that the criterion for "above the bar" is adjustable, and anyone working in the admissions field knows that the higher-ups have expectations. So to argue as if "the bar" is some objective measure of at best naive.

You can argue the legalities. I'm assuming most if not all of your bloggers/commenters are associated with universities. To argue that the process itself is designed to be "fair", however, is to misunderstand the modern university...

Unknown said...

Just so everyone is aware, at least 2 people are commenting as “Unknown”

Jason S said...

It has been a while since I read the case law on this subject (back in law school), and also since I skimmed the Court of Appeals opinion in this case, so my comment is not a legal analysis. What I want to point out is that there seems to be a flaw in the way we think about this issue.

I think that the right have snookered us all (including the courts) into accepting that objective qualifications (grades & test scores) determine the applicants’ relative qualifications, such that an applicant’s higher GPA makes him more qualified than one with a lower GPA. This seems to me to be an indefensible way of thinking. And at bottom it is another example of how colorblindness gets confused with fairness.

In other aspects of life we don’t think about qualifications this way. For example, when you got your driver’s license you had to pass a written test with a score of 75% or better. But, once you have your license nobody cared what your test score was. We don’t think a driver who got a 75% on that test is a less-qualified than another who got a score of 95%. (We also don’t think about the bar exam in this way).

But in college admissions the right has convinced us that this is how we should think. Instead of being minimum qualification, we are told that grades and tests determine the relative fairness of admissions decisions. If we don’t admit a white with a 3.5 GPA and instead admit a black with 3.25 GPA, then we are discriminating on the basis of race against the white student, since he was obviously the more qualified applicant when viewed objectively (i.e., color-blindly. It never seems to occur to anyone that both applicants were equally qualified as to GPA.

This seemingly unshakable view is apparent to me in the comments. For example, Hashim’s initial comment says:

“By definition, that means that, for two individuals who are otherwise similarly situated … but who are of races that are given different weights for such students, Harvard is treating one student worse than the other based on the student's race.”

Hashim puts it in terms of a side-by-side comparison of two applicants of different races. But, such a comparison only arises where students are ranked on a list from more- to less-qualified, for how else would it ever come down to just those two? (As for more subjective things that Harvard considers, I think that Hashim is wrong that they could place two applicants next to one another on a list).

What Hashim is not seeing is that the admission’s process in the Harvard case would never be about side-by-side comparisons of two applicants of different races. Rather, Harvard’s policies would instead seem involve the winnowing down of the applicants based on side-by-side comparisons of applicants who are of the same race. The admissions officers will find themselves with relatively too many applicants of one or more races, like Asians. They will then be eliminating applications from Asians in favor of other Asians, not applicants of another race. And hence, no one is being racially discriminated against.

The diversity of the class is properly understood as an important end in itself that directly implicates the quality of education being offered, and difficult choices have to be made, but they are not choices preferring one person over one other person because of race (the old conservative Bugaboo).

Unknown said...

“I think that the right have snookered us all (including the courts) into accepting that objective qualifications (grades & test scores) determine the applicants’ relative qualifications, such that an applicant’s higher GPA makes him more qualified than one with a lower GPA.”

Is it your understanding that “the right” is in charge of college admissions? Boy have I got a surprise for you!

Jason S said...

The "right" I am referring to are the thinktanks and advocacy groups who bring these lawsuits that insist that anything but colorblindness is unconstitutional.

Unknown said...

Do you really think a vast right-wing conspiracy is responsible for most people accepting GPA and standardized test scores as measures of academic merit?

Jason S said...

Yes. I do.

Unknown said...

Before the VRWC did it’s dirty work, what did most people believe was a shorthand marker for academic merit?