Asian-American Groups Accuse Harvard of Discrimination in Admissions
It’s nearly every high school valedictorian’s dream: gain acceptance into Harvard University. During the 2017-2018 admission cycle, Harvard received almost 43,000 applications from students around the world, but offered admission to fewer than 2,000 of them. Its 4.59 percent acceptance rate was the lowest in Harvard’s nearly 400-year existence.
In November 2014, an anti-affirmative action group, Students for Fair Admissions representing a dozen Asian-Americans, filed a lawsuit claiming that Harvard systematically discriminates against Asian-Americans, violating federal civil rights laws by adopting “racially and ethnically discriminatory policies and procedures in administering the undergraduate admissions program.”
Though, on average, Asian-American applicants had higher test scores, better grades and stronger extracurricular resumes than applicants from other racial groups, Asian-American applicants received lower scores when the admissions department analyzed their personality traits such as “likability,” “helpfulness,” “integrity,” and “courage.” This, they argue, undermined Asian-American applicants’ chances for admission. Harvard also maintains affirmative action programs, which offer admissions advantages to members of some classes who have historically been underrepresented and discriminated against. These groups typically do not include Asian Americans.
In the higher education context, an affirmative action policy is a program where the university tries to improve opportunities for historically excluded groups in American society, such as women and minorities.
Since universities started implementing these policies in the early 1970s, opponents to affirmative action have argued that past discrimination doesn’t justify present discrimination against non-minorities and that affirmative action destroys the idea of a meritocracy by emphasizing an applicant’s race.
Federal law and the Constitution are at the heart of affirmative action policy disputes. First, opponents claim that affirmative action policies violate Title VI of the 1964 Civil Rights Act, which states that “No person… shall, on the ground of race, color, or national origin, be excluded from participation in... any program or activity receiving Federal financial assistance.” Title VI applies to all institutions that receive Department of Education funds, regardless of whether it’s private (like Harvard) or a public state-affiliated school.
Second, opponents argue that affirmative action policies at public institutions violate the Fourteenth Amendment’s Equal Protection Clause, which provides that “No State shall…deny to any person within its jurisdiction the equal protection of the laws.”
A government-sponsored affirmative action program classifies people based on race, and as such, affirmative action policies must pass “strict scrutiny.” the toughest form of judicial review possible. The university has the burden to demonstrate:
1) The race-conscious program serves a compelling interest; AND
2) The program is tailored in the least restrictive means possible to achieve this
Several court decisions over the last 40 years illustrate judicial inquiry into university affirmative action programs. The first case is from 1978, Regents of the University of California v. Bakke. A white student who had twice been rejected by the University of California at Davis’ Medical School sued, claiming a Title VI violation. At the time, the UC-Davis Medical School operated separate admissions systems for minority and non-minority applicants. Sixteen seats in each 100-person class were reserved for minority applicants. The Court agreed with Bakke. While the school’s goal of promoting educational diversity was compelling, automatically granting 16 seats in every incoming class to minority applicants wasn’t sufficiently narrowly tailored.
25 years later, in Gratz v. Bollinger, the Court held that the University of Michigan’s college of arts and sciences tactic of automatically awarding minority applicants 20 points towards its admissions points system likewise wasn’t “narrowly tailored” to increase diversity at the college because adding 20 points to every minority applicant led to the admission of nearly every such applicant. In a companion case, Grutter v. Bollinger, though, the Court found nothing wrong with the University of Michigan law school’s policy of considering race in admissions. Here, the admissions policy considering race was constitutional because it was flexible. The law school “engaged in a highly individualized, holistic review of each applicant's file, giving serious consideration to all the ways an applicant might contribute to a diverse educational environment” and didn’t take race into account as though it were a quota that it had to fill.
Most recently, in the 2016 case, Fisher v. University of Texas, the Supreme Court held that the school’s race-conscious admissions program was lawful because without a race-conscious plan in place, the University’s history showed that it could not successfully achieve the desired racial diversity. The Court found that the affirmative action plan was well-thought out and that the University engaged “in periodic reassessment of the constitutionality, and efficacy, of its admissions program.”
In its memorandum in support of a motion for summary judgment, Harvard pointed out that the Supreme Court’s decisions on race-conscious admissions were all issued in the context of suits against public universities which are governed by the Equal Protection Clause of the Fourteenth Amendment. Keep in mind that private schools are not subject to the due process clauses of the Constitution.
In fact, courts have given substantial deference to private universities in how they select and educate their students. In Bakke, Justice Powell wrote “Academic freedom, though not a specifically enumerated constitutional right, long has been viewed as a special concern of the First Amendment.” While academic freedom doesn’t grant a university the freedom to discriminate, the Ninth Circuit Court of appeals observed that to intrude on academic affairs would “threaten the diversity of thought, speech, teaching, and research both within and among universities upon which free academic life depends.”
Still, because private schools like Harvard accept federal financial aid money, they are subject to the rigors of discrimination rules and scrutiny. As explained by the privately run but acclaimed financial aid information website, finaid.org,
It isn't entirely clear whether private colleges and universities that receive federal funds are affected by restrictions on the use of race in college admissions and financial aid. The argument that private colleges and universities are affected by the ruling hinges on Title VI of the Civil Rights Act of 1964 which bans discrimination on the basis of race at any institution that receives federal funds. The US Supreme Court has previously found that the 14th Amendment and Title VI are coextensive, which means that if a policy violates the 14th Amendment, it also violates the Civil Rights Act.
Returning to Harvard University, the admissions department comprehensively reviews every applicant. It looks at grades, essays, and standardized test scores in addition to race.
Harvard’s stated objective in considering race in admissions is to expose its current and future students to “new ideas, news ways of understanding, and new ways of knowing.” The Supreme Court has recognized that an institution has a compelling interest in attaining “a diverse student body and the educational benefits flowing from such diversity.”
Another plaintiff’s argument under Title VI is disparate impact. Although Title VI expressly prohibits only intentional discrimination, a Department of Education regulation clarified that a recipient of federal funds may not “utilize criteria or methods of administration which have the effect of subjecting individuals to discrimination because of their race, color or national origin.” Thus, a discrimination action can be sustained by showing that a facially neutral policy has a disproportionately adverse effect on a protected class.
The disparate impact argument here is that Harvard’s admissions department’s consideration of applicant personality consistently rated Asian-American applicants lower than other applicants. However, admissions statistics do not show a “disproportionate” impact on the number of Asian-Americans admitted. While the numbers of Asian-Americans admitted fluctuates annually, their percentages in annual classes have not fallen. For example, Asian-Americans comprised 22.2 percent of the Class of 2021, which is comparable to their 22.7 percent of the Class of 2019. Furthermore, the percentage of Asian-American students in admitted classes has grown by 29 percent in the last decade. The lack of a clear negative impact on Asian Americans makes a disparate impact claim difficult to sustain.
Both the plaintiffs and Harvard have filed motions for summary judgment, If the reviewing court doesn’t grant either motion, a trial will commence this autumn. Universities across the United States seeking to craft affirmative action programs that won’t run afoul of the law and hundreds of thousands of applicants who seek admission to their schools annually are eagerly awaiting a decision and the impact it will have for years to come.
 Sam Erman and Gregory Walton, STEREOTYPE THREAT AND ANTIDISCRIMINATIONLAW: AFFIRMATIVE STEPS TO PROMOTE MERITOCRACY AND RACIAL EQUALITY IN EDUCATION,88 S. Cal. L. Rev. 307, 316 (2015).
 42 USCS § 2000d.
 Nancy Zisk, Following the "Pathmarkers" from Bakke to Fisher: Understanding How Race-Conscious Admissions Programs May Withstand Constitutional Scrutiny, 30 Harv. J. Racial & Ethnic Just. 1 (2014).
 Powell v. Syracuse Univ., 580 F.2d 1150, 1978 U.S. App. LEXIS 10170, 17 Fair Empl.Prac. Cas. (BNA) 1316, 17 Empl. Prac. Dec. (CCH) P8468
 Kimberly West-Faulcon, Obscuring Asian Penalty with Illusions ofBlack Bonus, 64 UCLA L. Rev. Disc. 590 (2017).
 34 C.F.R. § 100.3(b)(2).