Patterico's Pontifications

10/1/2019

Harvard Wins First Court Skirmish on Asian-American Discrimination Claim

Filed under: General — JVW @ 5:54 pm



[guest post by JVW]

From National Review Online:

A federal judge in Massachusetts on Tuesday upheld Harvard University’s affirmative action admissions process, which considers race as a factor in acceptance decisions.

Judge Allison Burroughs challenged the accusation of the plaintiff, the group Students for Fair Admissions, that the Ivy League institution’s diversity policies intentionally discriminate against Asian-American students, saying the plaintiffs did not provide “a single admissions file that reflected discriminatory animus.”

Dana provided the background on this case four years ago (ah, the speed at which matters wind their way through our legal system). Harvard wants to claim that the admissions process is “holistic” (a favorite word in higher ed admissions speak) and evaluates the student on a variety of factors in which race is but a small part. Yet that approach somehow seems to consistently yield a result where there is a de facto floor on the percentage of black and Hispanic students and therefore as a result a de facto ceiling on the percentage of Asian students. Fancy that. Also, because admitted black students are less likely to enroll at Harvard than kids of other races, the school ends up having to offer admission to a much higher proportion of black applicants in order to ensure they stay at that desired nine percent floor. Never mind the fact that these kids might not exactly be “underserved.”

In her ruling, Judge Burroughs adopted the standard set forth in the Fisher vs. University of Texas decision in which Justice Anthony Kennedy determined that the rather intangible benefits of “diversity” means that having a certain percentage of under-represented minorities is more important than hewing strictly to admissions by merit. Her opinion, found here, declares “It is somewhat axiomatic at this point that diversity of all sorts, including racial diversity, is an important aspect of education.” Of course the wonderful thing about axioms is that by definition they are taken to be true and thus not subject to rigorous analysis, even if some of us heretics find the dedication to diversity to be vastly overrated. The Judge further punishes us with a completely cloying footnote regarding the testimony of Ruth Simmons, born to a share-cropping family and educated at segregated schools until she participated in an exchange program at Wellesley, who then went on to receive a PhD from Harvard and serve as president of Brown University. Left unmentioned is the fact that the standard beneficiary of affirmative action at Harvard today is far more likely to be the black son of a pediatrician and investment banker, or the daughter of a Latino college professor and a white lawyer. There aren’t too many kids from the ghetto or the farms matriculating to Cambridge these days, no matter how much we want to believe that the next Ruth Simmons is showing up on campus each autumn as the leaves begin to change.

But even with that of that, I still generally take Harvard’s side in this matter. As a private school, they ought to be free to choose whomever the hell they want as students, be they the children of well-heeled alumni, star athletes to shore up the various teams, air-headed offspring of vacuous celebrities, or whatever racial and ethnic stew satisfies the oppressive white guilt that burbles in the guts of the administration. But citing the questionable benefits of “diversity” as a justification bothers me, especially in an era when the supposed beneficiaries of diversity seem to be the ones who want to narrow the boundaries for legitimate academic inquiry and debate.

Harvard admission is indeed a zero-sum game, so for every kid that is taken in largely because of the color of her skin or the donor history of his parents, another equally-deserving kid — perhaps more deserving in some cases — is told there is no room in The Yard. Nevertheless, we should let Harvard be Harvard. But if the federal government wants to ask some tough questions as to whether federally-guaranteed student loans ought to be used at schools with racially-biased admissions policies, why then that too is a perfectly legitimate subject for consideration as far as I am concerned.

– JVW

38 Responses to “Harvard Wins First Court Skirmish on Asian-American Discrimination Claim”

  1. To be sure, though, a taxpayer publicly-supported school like the University of Texas or the University of Michigan needs to follow applicable laws on discrimination, and should actually have far less latitude to offer special treatment to athletes, the progeny of alumni, and other non-academic categories.

    (Of course, I can also see myself arguing that top-flight athletes, just like outstanding artists or musicians, are an important part of the higher education experience and should be given priority admission at public universities because of that.)

    JVW (54fd0b)

  2. Note: Changed headling from original “. . . on Asian Discrimination. . . ” to “. . . on Asian-American Discrimination. . .” in order to make clear that these are U.S. citizen applicants who claim discrimination, not overseas applicants.

    JVW (54fd0b)

  3. Great post.

    This, absolutely:

    As a private school, they ought to be free to choose whomever the hell they want as students, be they the children of well-heeled alumni, star athletes to shore up the various teams, air-headed offspring of vacuous celebrities, or whatever racial and ethnic stew satisfies the oppressive white guilt that burbles in the guts of the administration. But citing the questionable benefits of “diversity” as a justification bothers me, especially in an era when the supposed beneficiaries of diversity seem to be the ones who want to narrow the boundaries for legitimate academic inquiry and debate.

    Dana (05f22b)

  4. “star athletes to shore up the various teams”

    Diversity seems to be remarkably unimportant on the field of play. I wonder why that is.

    Munroe (53beca)

  5. To ‘splain why this is in federal court and not in a Massachusetts court under state anti-discrimination law, although it’s almost certainly unnecessary with this brilliantly-informed commentariat:

    Harvard, like all major research universities, receives lot of grants from the federal government, and federal student loans make up a major part of financial aid packages for students. If Harvard decided to give up all of this federal funding, they could then choose to discriminate based on race.

    However, since they do currently receive all that sweet, sweet federal cash, they are subject to Title VI and cannot discriminate based on race, nor would they have been able to since the law was passed.

    It goes without saying that this would be utterly fatal to both the Harvard brand and the private donations that are their prime source of revenue.

    https://www.quora.com/As-a-private-corporation-does-Harvard-technically-have-the-right-to-discriminate-by-race-How-would-a-progressive-Supreme-Court-decision-impact-Asian-American-recruiting-in-the-private-sector-beyond-universities

    nk (dbc370)

  6. To further ‘splain, a state as a sovereign with plenary police power can forbid discrimination by private schools too, and a school would have to find a Constitutional right, such as First Amendment freedom of religion, to raise as a defense.

    nk (dbc370)

  7. Fine if they dont take financial aid, they can do like hillsdale or grove city

    Narciso (a4d5d7)

  8. To further ‘splain, a state as a sovereign with plenary police power can forbid discrimination by private schools too, and a school would have to find a Constitutional right, such as First Amendment freedom of religion, to raise as a defense.

    Right, but Harvard can’t be compelled to change their admissions policies, they can merely be subject to losing all federal support such as research and tuition grants for failure to do so, correct? It’s not as if the U.S. Marshalls are going to chain-up the gates at Harvard Yard and not let anyone pass through until they stop discriminating.

    JVW (54fd0b)

  9. Under state law, they could be compelled to change their admissions policy unless they invoked a Constitutional right such as religious freedom (I cannot think of another).

    Under the federal law, they would only be okay prospectively if they stopped accepting federal money. Retrospectively, they would be liable for the past discrimination when they were still under Title VI, and the penalties would be private damages to the rejected students, fines to the government, and maybe even repayment of grants (guessing on this last one).

    nk (dbc370)

  10. Really? The Commonwealth of Massachusetts could do something to them more sinister than, say, removing the Harvard Foundation’s tax-exempt status and socking them with huge tax bills for endowment and property taxes? Not that I would ever expect the Bay State Democrats to go to battle on behalf of Asian-American kids.

    JVW (54fd0b)

  11. Under state law, they could be compelled to change their admissions policy unless they invoked a Constitutional right such as religious freedom (I cannot think of another).

    Freedom of association.

    (Which has a long history of being used as a justification for discrimination at country clubs, wedding cake bakeries, etc…)

    Dave (1bb933)

  12. The Commonwealth of Massachusetts could do something to them more sinister than,

    To begin with, don’t all schools, public and private, primary and secondary, need some kind of state license?

    This isn’t really my field.

    nk (dbc370)

  13. To begin with, don’t all schools, public and private, primary and secondary, need some kind of state license?

    I’m not sure a private university needs a license to award degrees in things that aren’t themselves licensed (medicine, law, etc). AFAIK, accreditation is handled by associations of the schools themselves. Trump University (to take one random example) had no accreditation whatsoever.

    But as a business, an employer and a commercial land-user, I’m sure there are plenty of forms to fill out…

    Dave (1bb933)

  14. Harvard is nearly 150 years older than the Commonwealth of Massachusetts — at least as a free state divorced from His Majesty — and in the years I lived there Fair Harvard seemed to call the shots on Beacon Hill. I understand that things are starting to change: a hard-left Democrat candidate in last year’s gubernatorial contest ran on a platform of making rich universities pay taxes. But it’s still kind of hard to see the Bay State biting the hands that have so fully fed them all these years.

    JVW (54fd0b)

  15. There aren’t too many kids from the ghetto or the farms matriculating to Cambridge these days, no matter how much we want to believe that the next Ruth Simmons is showing up on campus each autumn as the leaves begin to change.

    Harvard says 15% of their enrollment are first-generation college students.

    At UCI, where I work, 50% of the graduating class last year were first-generation college students.

    Zot!

    Dave (1bb933)

  16. Live by the “diversity”, die by the “diversity”. Harvard could adopt an entirely color-blind policy. As I read the opinion, “discriminatory impact” under Title VI is not enough like it is in employment — there must be actual racial animus. Admit people without regard to race and let the demographics fall where they may.

    nk (dbc370)

  17. Harvard says 15% of their enrollment are first-generation college students.

    I would love to see what that number is when international students are factored out. It looks like just about 8% of Harvard undergraduates come from outside the U.S. If we guess (wild guess at that) half of them are first generation, then that would drop the U.S. share of first generation students down to more like 11%. And it would be really interesting to compare that data by race and ethnicity. I have some suspicions as to what we would find.

    JVW (54fd0b)

  18. Admit people without regard to race and let the demographics fall where they may.

    That’s what I was raised to believe was the right and just thing to do.

    But there are strong arguments (which, misanthrope that you are, I expect you to scoff at…) backed by a lot of data and experience that being color-blind can have the unintended effect of perpetuating past discrimination.

    There are volumes of statistical documentation that if a minority student is the only woman, or African-American or Latino in a program, their chances of making it through are much worse than if there are a few other people like them. I have read countless personal statements about how a mentor (professor or more senior student) that the student could identify with made an enormous difference for them.

    We have started doing a lot of things to try to help all the students through various organized mentoring programs. We are forbidden by law to use race as a factor, but one thing that has helped URM (under-represented minority) retention and graduation enormously is that we have more than doubled the number of students we admit into the physics program over the last 6-7 years. Used to be 40-50, or maybe even less when I was hired; this year it was about 120. The larger numbers have definitely helped by creating a larger “cohort” of minority students and women, and they definitely help each other. We haven’t changed the *proportions* of women/minorities admitted, just increased the total number by looking more carefully at the applications. Back when we had 40-50 freshman per year, the admissions department was the only one who reviewed our applications. Now we go through them individually in the department. Last year I reviewed around 200 myself (and that was only maybe 1/6 of the applicant pool). Admissions still makes the final decision, but we rank (or veto) the applications and they generally follow what we tell them.

    Dave (1bb933)

  19. which, misanthrope that you are,

    Now wait a minute, Dave. I have been called many things, but this one here I don’t consider to be even halfway earned. Misanthrope? I don’t hate my fellow man. Not even when he’s tiresome and surly and tries to cheat at golf. I figure that’s just human material, and him that finds in it cause for anger and dismay is just a fool for expecting better.

    nk (dbc370)

  20. Now wait a minute, Dave. I have been called many things, but this one here I don’t consider to be even halfway earned.

    If you’re being sincere, then I certainly apologize. It wasn’t meant as an insult, but as a tribute to your entertaining personality.

    Dave (1bb933)

  21. Harvard wants to keep asians out, in the ‘fine tradition’ they did to jews, this is an extremely cynical decision.

    Narciso (a4d5d7)

  22. I tutored in the Office of Minority Education when I was in school, so I am a little bit more sympathetic to arguments for diversity than I let on. But in my tutoring position I saw some clear examples of the Mismatch phenomenon that Richard Sanders diagnosed. I don’t know what percentage of Harvard students do not complete the work for a degree at Harvard when compared by race and compared with other schools, and I don’t expect that they would be too forthcoming with that data.

    JVW (54fd0b)

  23. I’m probably the closest to a misanthrope here, and I think I technically still pass for a curmudgeon.

    JVW (54fd0b)

  24. If you’re being sincere, then I certainly apologize. It wasn’t meant as an insult, but as a tribute to your entertaining personality.

    Heh! No apology necessary. Thank you for the straight line. BTW, I pretty much stole all of my response from a really, really, really bad Coen brothers Netflix production (it does not deserve to be called a movie). But it had that one good line in it.

    nk (dbc370)

  25. Yeah, something told me I was being trolled…

    :)

    Dave (1bb933)

  26. And yet Asian Americans continue to favor Democratic/leftist candidate for office, who push racial bean-counting programs once elected. Maybe this lawsuit will raise their consciousness.

    norcal (eec1aa)

  27. candidates

    norcal (eec1aa)

  28. They’re not a private university. they receive hundred of $millions directly and indirectly in Research Grants, tax breaks, and student aid and federally guaranteed loans. You act like they aren’t already governed and regulated by a Zillion state and local laws already. Ever hear of Title IX?
    In any case,who cares if they have the theoretical right to discriminate and “pick who they choose”?
    And we have anti-discrimination laws that effect college student admissions.

    Ever flexible, ever changing, seeming to differ from person to person, “Libertarian Principles” are useless in the real world.

    rcocean (1a839e)

  29. nk (dbc370) — 10/1/2019 @ 9:08 pm

    The ballad of nk.

    felipe (023cc9)

  30. norcal- though I am not really sure of any sea changes amongst the yellow Asian Americans, they’ve been saying that for years, even CA tried to replicate the Jindal gambit 5 years ago with Kashkari, though this presidential administration is pulling out many stops for the brown/tan Asians.

    urbanleftbehind (003ae1)

  31. But even with that of that, I still generally take Harvard’s side in this matter. As a private school, they ought to be free to choose whomever the hell they want as students, be they the children of well-heeled alumni, star athletes to shore up the various teams, air-headed offspring of vacuous celebrities, or whatever racial and ethnic stew satisfies the oppressive white guilt that burbles in the guts of the administration.

    Patterico – you have a good point on Harvard being a private school & can do what ever it wants.

    With school sponsored discrimination – should harvard lose its tax exempt status under the rationale of Bob Jones University v US (ussc may 1983)

    joe (debac0)

  32. This one’s complicated and, to me, involves trading off competing good things.

    Admission based strictly on quantifiable merit: GPA, Standardized test scores.

    Pro: Process is very clear. Only issues of bias are those inherent to GPA and Standardized tests. Admission decisions can be made very quickly.
    Con: More people with 4.0 and perfect SAT’s than spots in Harvard. Those tests don’t capture leadership and other worthy considerations. Athletics and Alumni relations will suffer. “College Experience” will suffer.

    Admissions based on factors that are not readily quantified such as extra-curricular activities, athletics, relationship to Alumni, Race, & Gender.

    Pro: Can field a decent football team, maintain alumni relations, address historical inequities,
    Con: Can be unfair at the individual level. No broad agreement on which factors should he considered or how these factors should be weighted. (For instance, does being a member of under represented group count more or less than being good at sports or the child of an Alumni?).

    My take is that within the current zone Harvard is free to figure this out on their own and if they mess it all up than the value of going to Harvard will diminish. Same should apply to other private colleges.

    Time123 (dba73f)

  33. Speaking of legal wins…..

    “In a formal memo to city officials, San Francisco mayor London Breed declared that “no [municipal] department will take steps to restrict any contractor from doing business with the NRA or to restrict City contracting opportunities for any business that has any relationship with the NRA.”

    The memo declares, “resolutions making policy statements do not impose duties on City departments, change any of the City’s existing laws or policies, or control City departments’ exercise of discretion.”

    https://www.nationalreview.com/corner/nra-sues-san-francisco-city-backs-down/
    _

    harkin (58d012)

  34. But even with that of that, I still generally take Harvard’s side in this matter. As a private school, they ought to be free to choose whomever the hell they want as students, be they the children of well-heeled alumni, star athletes to shore up the various teams, air-headed offspring of vacuous celebrities, or whatever racial and ethnic stew satisfies the oppressive white guilt that burbles in the guts of the administration.

    While I agree with this in principle, it’s extra-legal. The LAW says they cannot do some of this (e.g. only accept white people) and accept federal money for a variety of purposes. Now, they COULD say “We have a big endowment and we don’t need that federal income stream” but they don’t, and they won’t.

    So, they have to follow the rules and the question is whether they do, not what their rights would be in a perfect world.

    Kevin M (19357e)

  35. Ever flexible, ever changing, seeming to differ from person to person, “Libertarian Principles” are useless in the real world.

    You on the other hand, rcocean, are apparently a huge fan of the gigantic regulatory state, provided that the regulatory state is run by the people whom you support. You’re simply the mirror image of the Sanders/Warren folks, but that irony almost entirely escapes you. “Trumpian Principles” just mean whatever is convenient at that given moment.

    JVW (54fd0b)

  36. I live in the real world – not crazy Libertarian Fantasy world. Its like listening to Libertarians say stuff like “Y’know open borders would be OK, if we got rid of the welfare State”.

    Except we have a welfare state. Almost every country has a welfare state. And the chances of our ever getting rid of the welfare state are ZERO. But hey, lets waste time talking about imaginary libertarian principles in our imaginary pretty unicorns and free lollipop world.

    The Left uses the State to push their policies, but the Right shouldn’t because of “libertarian principles”. Heads they win, tails we lose. Libertarians do nothing in the REAL WORLD except help the Left.

    rcocean (1a839e)

  37. The Left uses the State to push their policies, but the Right shouldn’t because of “libertarian principles”. Heads they win, tails we lose.

    The flip side of that argument is by using the State to force other people to do stuff, we have abandoned our principles already.

    Rather than grow the state we should strive to shrink it, while DEMANDING that those that like the State abide by its rules to the flipping letter. The way to repeal a bad law is to enforce it rigorously, not excuse violations for reasons that won’t be extended to us.

    Kevin M (19357e)


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