Last Thursday, the Justice Department voiced its support for students suing Harvard University over discrimination against Asian American applicants through affirmative action policies. Through a statement of interest, the Justice Department supported the claims of the plaintiffs, a group of Asian Americans rejected from Harvard. In the statement, the Department of Justice (D.O.J.) contended that Harvard systematically discriminated against Asian American applicants by capping the number of Asian American students it could admit, undermining the chances of many qualified applicants.
The statement noted, “Harvard has failed to carry its demanding burden to show that its use of race does not inflict unlawful racial discrimination on Asian Americans,” criticizing Harvard’s personal rating of applicants and discriminatory racial balancing procedures for perpetuating racial discrimination.
Recently, many Asian Americans have begun supporting anti-affirmative action groups because of their belief that these policies hold them to a higher standard when it comes to college admissions. Indicting admissions policies, however, has remained difficult because for these groups because of the ambiguity surrounding what these policies actually are. Only recently, in fact, has Harvard been pressured to share its admissions policies and the role of race in deciding who to admit to the university.
Last Thursday, Trump voiced a threat to universities that currently incorporate race into their admissions criteria. The Trump Administration contended that the court should reject Harvard’s plea to end the case before a trial, according to New York Times correspondent Katie Benner, advocating instead for race-blind admissions procedures.
The way in which Supreme Court rulings operate concerning race is far more lucid than admissions policies themselves. The government has stated that in order to use race in admissions decisions, institutions must first, explicitly outline all goals pertaining to diversity, and second, explain why they need to consider race in admissions to meet those goals. Under this logic, if the aforementioned diversity related goals can be achieved without knowledge of race, universities cannot use race in making admissions decisions.
Under this framework, the D.O.J. has claimed that Harvard does not sufficiently connect its use of race in admissions to its diversity related goals. Moreover, Harvard doesn’t even adumbrate how precisely it uses race in admissions decisions, leaving the D.O.J. to conclude that “Harvard has failed to show that it does not unlawfully discriminate against Asian Americans.”
The response from the Harvard community to the D.O.J.’s allegations has been all but quiet. Harvard stated, according to Benner of the New York Times, that it felt “deeply disappointed” with Thursday’s statement but saw it coming “given the highly irregular investigation the D.O.J. has currently engaged in thus far.”
A statement from the university furthers, “Harvard does not discriminate against applicants from any group, and will continue to vigorously defend the legal right of every college and university to consider race as one factor among many in college admissions, which the Supreme Court has consistently upheld for more than 40 years.” Harvard alumni and students defended the university’s use of race in admissions criteria in protest to the suit, claiming that “applicants’ opportunities to amass credentials that make for a competitive college application are greatly affected by race.”
Jeannie Park, head of the Harvard Asian-American Alumni Alliance and cofounder of Coalition for a Diverse Harvard, spoke strongly against Edward Blum, the founder of Students for Fair Admissions (the group representing the Harvard case), for suing the university, and Trump, for backing him. “It’s alarming that Trump is aligning himself with anti-civil rights activist Edward Blum in this subversive attempt to say that civil rights protections cause discrimination,” Park condemned. “Trump does not speak for Asian-Americans, just as Blum does not.”
What proponents and opponents of the lawsuit agree on, however, is the scale of the Harvard case. The case, backed by Students for Fair Admissions, is viewed by many as a test to see whether recurring efforts to rollback affirmative action policies will work. Moreover, if the case ends up in the Supreme Court, it may be judged by the conservative Brett M. Kavanaugh, Trump’s current nominee for the court after Kennedy announced his retirement at the Ninth Circuit Judicial Conference in California in late July. The case is sure to set a precedent in terms of the right of not only Harvard, but universities nationwide to involve race as a factor in college admissions.
This entire case—and the broader question of whether to use race in admissions decisions—is complicated by the fact that the Asian American plaintiffs are suing Harvard over affirmative action policies, policies meant to prevent discrimination, not perpetuate it. Part of the group’s contention is that Harvard is discriminating against them by admitting “less qualified students of other races.”
Critically, this landmark case begs the question of whether race should be used as a factor in college admissions whatsoever. While the affirmative action policies employed by schools like Harvard use race in the admissions process, many other schools have looked to alternatives to maintain a merit-based admissions system while at the same time reserving seats for underprivileged communities. Many states have gone to ban their public universities from utilizing affirmative action policies that incorporate race, as seen in California, with the passing of Proposition 209. Some schools, for example, public universities in Washington and California, have even begun to use socioeconomic status—instead of race—as a way of maintaining diversity in their incoming cohorts.
What’s laudable about this system of using socioeconomic status as a means of structuring diversity into America’s top-tier universities is that it allows colleges to ensure spots are reserved for underserved minorities, in the socioeconomic sense, while at the same time, not purely granting a student admission because of his or her race. While it is true that the intent of many affirmative action policies is to increase diversity and provide equal opportunity to racial minorities, the reality is that some of these so-called affirmative action policies have backfired. They’ve provided a loophole for institutions like Harvard, for example, to focus on capping and restricting the number of qualified Asian American applicants they accept instead of reserving ample spots for African American and Hispanic minority groups. Additionally, institutions like Harvard can exploit these affirmative action policies that use race in the admissions process to continue to engineer a white, upper-class majority in their student bodies, again, focusing on shutting minorities out through the aforementioned capping mechanisms, as we see with the recent lawsuit.
This is not to say that affirmative action policies in themselves are the problem. In fact, having systems in place to reserve spots for minority students is essential to bridging the education gap so problematic in 21st century America. The problem is that allowing colleges to use race as a factor in college admissions allows institutions to engineer their student bodies based on color instead of academic merit, often times, not to include more black and brown students, but rather, to limit the number of them. In a world where racial biases, implicit and explicit, necessarily do exist, we need to rethink these affirmative action policies on a national scale so these programs meant to help minorities actually do so.
Resorting to a system of pure meritocracy, even if that were possible, is not the answer either. The Asian American students suing Harvard on the basis of discrimination are right in that race-conscious admission processes allow for problematic capping procedures and equally problematic racially-tinged “personal ratings” of applicants. However, using academic qualification alone to select the incoming classes at major universities may come at the expense of the diversity so integral to those institutions, racial and economic. For example, while one student may have slightly lower test scores and a slightly lower grade point average than a fellow applicant, given their opportunities in life—academic and socioeconomic—
if the former applicant worked harder and performed better, accounting for differences in opportunities inflicted by socioeconomic lines, then there is no reason that applicant should be ruled out simply because they have a 3.7 and not a 3.75.
For this reason, a socioeconomically informed merit-based system is what universities nationwide need to strive for in order to maintain diversity in their incoming classes without creating loopholes for racial discrimination, implicit or otherwise, in the admissions process. It is a reality that at present, several private institutions use race while making admissions decisions while remaining need-blind to applicants’ financial status. The challenge our nation must confront is how to hold universities accountable for improving diversity in their institutions, racial and economic—as affirmative action policies are meant to do—while at the same time not creating loopholes that allow universities to exploit race-conscious admissions procedures to shut out groups like the Asian American plaintiffs in the Harvard case instead of letting minorities in. Since racial inequities and historic disparities in many cases do manifest themselves in applicants’ socio-economic statuses, why not seriously consider using those instead of race in our college admissions processes?
This is not to say that class-based affirmative action will be entirely perfect. Indeed, the student bodies in institutions that have employed this method still don’t fully reflect the demographics of the states those schools are located in. But even race-based affirmative action policies don’t generate this kind of perfect demographic representation. Moreover, as explained in the plaintiff’s court filing, they allow Harvard to “engage in the same kind of discrimination and stereotyping that [was] used to justify quotas on Jewish applicants in the 1920s and 1930s,” which is simply not acceptable. Class-based affirmative action is imperfect, but at the very least, it does not carry with it the same opportunity for racial discrimination that Harvard’s current admissions procedures do.
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