Talk about a ‘hall pass’.
The Trump Administration in July withdrew Obama-era guidance that gave colleges a wink and a nod to racially discriminate. This means that colleges like Harvard that use racial preferences in admissions will receive more legal scrutiny, and the examination should be instructive.
Between 2011 and 2016, the Obama Education Department issued seven notices advising colleges how they may legally promote racial diversity. The 1964 Civil Rights Act prohibits racial discrimination by institutions receiving federal funds. But the Supreme Court has held that colleges may consider race in admissions as long it isn’t the “decisive” factor. Quotas and point systems are forbidden.
The Obama department advised colleges to consider race as part of what it called an “individualized, holistic review of all applicants.” Colleges also were urged to consider race-neutral alternatives, but that they need not be adopted if they are “unworkable.” In other words, it’s the thought that counts. Many colleges took the guidance as cover to discriminate.
Harvard’s practices will be the first to be examined under this new spotlight. Students for Fair Admissions has sued the school for discriminating against Asian-American applicants and unconstitutionally favoring other minority groups. The case hasn’t gone to trial, but the plaintiff group’s legal filings based on discovery and depositions are revealing the secrets of Harvard’s use of race.
Consider Harvard’s “holistic” admissions review. Applicants are rated on a scale of one to six on academics, extracurricular activities, athletics and highly subjective “personal” criteria. Admissions officers also assign applicants an overall score.
According to Students for Fair Admissions, Asian-Americans boasted higher extracurricular and academic ratings than all other racial groups. They also received higher scores from alumni interviewers. But they were rated disproportionately lower on personal criteria. Only about one in five Asian-Americans in the top 10% of academic performers received a “2” personal rating. Yet blacks and Hispanics with much lower grades and SAT scores received high personal ratings.
Asian-Americans also disproportionately received lower composite scores. Blacks in the top 10% of academic performers were three times more likely than Asian-Americans to receive a “2” overall rating (“1” is the best). A sample of applicant summary sheets disproportionately refer to Asian-Americans as “busy and bright” and “standard strong”—labels that liberals might call micro-aggressions.
Following complaints of discrimination, Harvard’s Office of Institutional Research (OIR) in 2013 produced three internal reports showing its admissions process was biased against Asian-Americans. Harvard disclosed the reports during discovery in the lawsuit. One report found that purely “demographic” factors reduced the share of admitted Asian Americans by 30% while increasing the proportion of admitted Latinos by about 140% and blacks by 370%.
OIR shared its studies with Harvard administrators who did not ask the researchers questions, suggest further investigation or publish the findings. Were administrators unperturbed or merely uninterested?
By contrast, Harvard published a prescriptive report in 2015 to improve diversity on campus that suggested, among other things, changing objects in a classroom “from those that are conventionally associated with the dominant group to objects that minoritized subjects can better relate to.” Minoritized?
The university also formed what appears to have been a Potemkin committee in 2017 to investigate “race neutral” alternatives. Its conclusion: Race-neutral alternatives were not “workable.” The committee said Harvard “could not significantly increase its financial aid budget” to attract more minority applicants “without detracting from other commitments.” If Harvard’s $37 billion endowment is insufficient, maybe it should stop wasting money on perfunctory studies.
Harvard denies that it discriminates and in a legal filing 10 days ago called the statistical analysis by Students for Fair Admissions “deeply flawed.” Harvard said that “the work done by OIR employees was not intended to address whether Asian-American applicants were experiencing discrimination and did not answer that question.” The school has so far resisted producing student essays and teacher recommendations that may shed more light.
The Supreme Court said in Village of Arlington Heights (1976) that an “invidious discriminatory purpose” may be gleaned from facially neutral policies—i.e., policies that don’t discriminate explicitly—based on “the degree of disproportionate racial effect, if any, of the policy” and “the justification, or lack thereof” for the effect, among other things. And under the Court’s Fisher decision (2013), colleges must demonstrate that their use of racial preferences is narrowly tailored to achieving the benefits of a diverse student body. On the evidence so far, Harvard has not done so.
Fisher is a constitutional muddle and a future Supreme Court should overturn it, but in the meantime it’s the law. Harvard and other schools are now on notice that they may not discriminate on the sly.