As previously discussed the controversy over the race-based criteria used Harvard University’s undergraduate admissions program and whether it discriminates against Asians. Not only do the criteria limit Asian-American students to 20 percent of the class but the plaintiffs alleged that such students are routinely given low scores on “personal ratings” to further reduce their admission numbers. U.S. District Judge Allison Burroughs in Boston has now rejected those claims and upheld the admissions criteria, writing in the 130 page opinion that “The court will not dismantle a very fine admissions program that passes constitutional muster, solely because it could do better.” This case could prove a major new challenge to race-based admissions as it now works up to the court of appeals.
Students for Fair Admissions had brought the lawsuit.
The court acknowledged that the criteria resulted in Asian Americans being admitted at a lower rate than white students. White students have a 7-8 percent acceptance while Asian-American students have a 5-6 percent rate.
Burroughs acknowledged that Asian American applicants “would likely be admitted at a higher rate than white applicants if admissions decisions were made based solely on academic and extracurricular ratings.”
Parts of the opinion seem inconclusive and speculative. For example, on the personal ratings, Burroughs states
“The disparity in personal ratings suggests that at least some admissions officers might have subconsciously provided tips in the personal rating, particularly to African American and Hispanic applicants to create an alignment between the profile ratings and the race-conscious overall ratings that they were assigning. It also possible, although unsupported by any direct evidence before the court, that part of the statistical disparity resulted from admissions officers’ implicit biases that disadvantaged Asian American applicants in the personal rating relative to white applicants, but advantaged Asian American over whites in the academic rating.”
That seems like a judicial shrug on a critical allegation of discrimination.
The problem is that the Supreme Court has made an utter mess of this area with 5-4 decisions that left more questions than answers. In Grutter v. Bollinger, the Court divided 5-4 on the question in upholding the admissions criteria for Michigan Law School. However, even the author of the 2003 majority opinion, Associate Justice Sandra Day O’Connor, stated that she did not believe the use of race would be acceptable for more than a couple decades more. The Court ruled that it “expects that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.” O’Connor’s statement was ridiculed by other justices (and others) since the constitutionality of affirmative action should not have an expiration date like one-percent milk.
The court does say that “The process would likely benefit from conducting implicit bias trainings for admissions officers, maintaining clear guidelines on the use of race in the admissions process, which were developed during this litigation, and monitoring and making admissions officers aware of any significant race-related statistical disparities in the rating process.”
That may not be enough. The case could prove the vehicle for forcing the Supreme Court to grapple again with this issue.
Here is the opinion: Harvard Admissions Opinion