The latest controversy over affirmative action in higher education, involving Asian-American applicants rejected by Harvard, does not raise any novel legal issues but only two very old ones: one, the legality of race-based affirmative action; and two, the legal standard for proving intentional race discrimination. Both of these questions have been well settled for decades: race-based affirmative action is lawful as long as it is narrowly tailored to achieve the university’s interest in a diverse student body or to remedy specific instances of past discrimination. Otherwise, any consideration of race in admissions is unlawful.
The Harvard case has received much more attention than these legal questions deserve for two reasons. One, it involves Harvard, the best-known brand name in higher education. Two, the media, and to some extent the plaintiffs themselves, led by anti-affirmative action activist Edward Blum, have cleverly collapsed the two distinct legal questions: Is affirmative action lawful? And did Harvard discriminate against Asian-American applicants? This conflation wrongly suggests that affirmative action is the cause of any disadvantage suffered by Asian applicants to Harvard and attempts to turn a simple claim of race discrimination into an attack on affirmative action as such, needlessly pitting one minority group against another.
In fact, there are several admissions practices that put Asian-Americans at a disadvantage relative to some other racial groups, as well as several that advantage them. Asian-American applicants to Harvard have higher average grades and test scores than other racial groups—so much so that if these were the only criteria for admission, Harvard’s entering class would be 43 percent Asian-American. But Harvard also considers a host of other things such as athletic and artistic talent, underrepresented geographic region, and “legacy” status. Many of these considerations are more likely to benefit white applicants as a group at the expense of applicants of other races, Asians included. Indeed, according to an internal study, athletics and legacy preferences alone reduce the expected Asian-American representation in Harvard’s admissions to roughly 31 percent while extracurricular activities and personality ratings further reduce it to 26 percent. Each of these preferences is controversial, but none are unlawful.
Should Harvard rely exclusively, or at least more heavily, on objective measures? Much of the public conversation about university admissions implies that objective measures are almost synonymous with merit; hence the subtle but unmistakable suggestion that consideration of other factors is, if not a scandal, then at least an embarrassment. And unfortunately, many high school students see university admissions as a measure of their self-worth, a misconception that to some extent elite universities encourage.
From the perspective of individual fairness, one can defend consideration of athletic and artistic talent, but legacy preferences and consideration of geographic diversity, which benefits disproportionately white applicants from rural areas and land-locked states over more heavily minority urban areas and coastal states, are harder to justify. But admission to a selective university is not a reward for individual virtue or hard work; indeed, it is not even based exclusively on individual merit at all. From the perspective of a university, considerations of things like legacy status and geography make sense because universities are not looking for the “best” individual applicants but for the best ensemble in the same way a theater company is not looking for the best actors as individuals but the best cast.
Moreover, grades and test scores are not, in and of themselves, merit, but only imperfect proxies for it. Both are meant to measure less tangible virtues such as intelligence, diligence, and academic potential. It’s well known, however, that performance on standardized tests predicts family wealth more accurately than anything else, in large part because family wealth corresponds with test preparation, both in schools and in specialized test preparation tutoring.
But of course test preparation is not a virtue: It actually undermines the accuracy of academic aptitude tests. From the perspective of test administrators and universities, it would be ideal if no one prepared specifically for the test at all. In this light, there is some irony when those lamenting Harvard’s admission process point out that many families of applicants rejected by Harvard sacrificed to send their children to test preparation classes. Of course, this speaks well of the families in question and their commitment to their children, but from the perspective of a university seeking an accurate assessment of applicants and their potential, test preparation is something to be discouraged, or at least adjusted for when considering whether test scores reflect underlying potential.
Harvard’s use of subjective criteria, such as “likability” or “courage,” seems to have disadvantaged Asian applicants. This might reflect a persistent stereotype that Asian-Americans are boring grinds with poor interpersonal skills. If the plaintiffs can prove that Harvard’s subjective evaluations are tainted by this type of bias and stereotyping, they should prevail on a straightforward theory of intentional discrimination. Of course, this would discredit only a racially biased application of subjective criteria, not affirmative action, nor even the use of subjective criteria generally. For instance, in the employment context, subjective criteria are routinely used in making hiring and promotion decisions. When plaintiffs cite statistical disparities as evidence of discrimination, they ultimately must prove that differences in both objective and subjective qualifications do not explain the disparity or that the subjective criteria are really a cloak for discrimination.
This doesn’t mean that Harvard isn’t discriminating, and its history shows that if it is discriminating today it would hardly be for the first time. It just means that a statistical disparity alone doesn’t prove that it is. Civil rights advocates have long argued that the legal standard for proof of discrimination is too demanding: Indeed, according to recent studies, discrimination complaints are the least successful civil claims heard by the Federal courts. Employers and governmental actors, they insist, should be required to justify questionable decisions and unexplained racial disparities. In response, many of the same people who attack subjectivity in university admissions have insisted that businesses shouldn’t have to defend or even explain all of their decisions to courts or juries who often don’t understand the demands and complexities of the enterprise. Of course, one could make precisely the same arguments for deference to university admissions decisions.
One of the reasons for these differing expectations is of course that many of the strongest defenders of free enterprise in the market tend to be less sympathetic to the enterprise of higher education. But perhaps some of the reason for the difference is also that few people think that employers can be ranked in the way U.S. News & World Report ranks universities or that their individual self-worth or shot at a good life is accurately measured by a single employment decision.
By contrast, selective universities have carefully cultivated an image of both elite status and of infallibility and precision with respect to admissions: They benefit from and encourage the myth that their students are “the best and brightest.” Now they are also suffering from it. It’s telling and troubling that one of the plaintiffs in the Harvard lawsuit, who was in his own words, “super disillusioned” by the university admissions process, was admitted to and attended Duke, one of the most selective and elite universities in the world. If college admissions were supposed to reflect some sort of ordinal ranking of both schools and applicants, maybe he deserved to get into Harvard. But in the real world no one “deserves” admission to an Ivy League school—a lucky few just win the admissions lottery.
Understandably, in a society full of injustices, many people want to create a pure meritocratic competition with simple criteria and clear rules. But successful institutions—whether profit-making businesses or exclusive schools—know that merit can’t be so easily measured, people can’t be so easily ranked, and there is no “best” applicant. And despite what some publications may claim and some schools may imply, there is, for that matter, no “best” university or college either.