BIASED BUT UNBOWED AT HARVARD

No sooner had the Supreme Court released its decision in Students for Fair Admissions v. Harvard, than Harvard, the losing party, released a statement of its own by President-elect Claudine Gay. The statement was apparently prepared in advance, in anticipation of a judicial defeat. Gay, while expressing Harvard’s intention to comply with the Court’s decision, struck a pose of defiance: “We will comply with the Court’s decision, but it will not change our values.”

She did not say what those values were.

She added that the decision “has … strengthened our resolve to continue opening doors.”

She did not mention the fact in opening its doors to some, Harvard has been closing them to others; namely Asian Americans.

Harvard’s post-decision statement represented a missed opportunity. This was the moment for Harvard to own up to its discrimination against Asian Americans and to apologize.

An apology would not have required Harvard to repudiate its admissions policies, far less to admit guilt. Harvard could have still insisted that its actions, in its view, were legal and moral, and that the law would ultimately vindicate it. It could have asserted that any harm done to Asian Americans was the unfortunate but unavoidable cost of remedying greater harms.

An apology would merely have required Harvard to acknowledge that in addressing what it sees as a long history of oppression of blacks by whites, Harvard has been hampering and harming Asian Americans.

Contrary to widespread reporting, the Court’s decision did not “end” race-based affirmative action in college admissions. As we shall see, the Court left open a number of ways for such programs to survive constitutional challenge. So the debate – and the litigation – will go on. That is why this missed opportunity was so unfortunate. An apology at this juncture might have served to create a better, calmer atmosphere for future discussions about this controversial and still very much open question.

The evidence before the Court showed that for the past decade, Harvard has maintained its Asian American acceptance rate at or about 20%. As the number of Asian American applicants has increased, maintaining this 20% ceiling required a certain amount of ingenuity.

Harvard ranks its applicants by four criteria: Academic, Extracurricular, Athletic, and Personal. Asian Americans performed very well under the first three. So to depress their admission rate, Harvard consistently rated them low in the Personal standard. This last criterion was necessarily subjective, involving such factors as likeability, helpfulness, courage, kindness, and other “human qualities.” Even here, Asian American applicants received high marks from alumni who actually interviewed them. But they were ranked at the bottom by admissions officers, who did not. As the majority noted, for applicants in the top academic decile, the percentage receiving a high Personal rating was:  Asian American 22%, White 30%, Hispanic 34%, African American 47%.

 It was only due to this low assessment that Harvard could keep the Asian American admission rate close to 20%.

An ironic consequence of Harvard placing its thumb on the scale in the Personal rating was that it meant that only those Asian Americans at the very top of the academic rating had a chance to gain admission. Other racial groups, with higher Personal ratings, could get in with lower academic performance. Thus, Harvard exacerbated the very problem it confronted, by creating artificially high and low scoring racial groups. For example, a black applicant in the fourth academic decile had a better chance of admission than an Asian American applicant in the top decile.

Even worse for Harvard’s reputation, it turned out that the school had undertaken its own internal investigation, and had produced a report which revealed these racial imbalances.  Harvard fought to keep this report confidential, until forced by the trial court to release it.

When publicized, the data came as no surprise to those in the education business who had  long known that being of Asian descent was a disadvantage in applying to elite schools like Harvard. In his concurring opinion, Justice Gorsuch took note of the existence of a “cottage industry” offering advice to Asian American applicants on ways to conceal their race. One such service promised its clients:  “We will make them appear less Asian when they apply.” The Princeton Review advised:

If you’re given an option, don’t attach a photograph to your application and don’t answer the optional question about your ethnic background. This is especially important if you don’t have an Asian sounding surname. (By the same token, if you do have an Asian-sounding surname but aren’t Asian, do attach a photograph.)

The day after the Supreme Court issued its opinion, as if to vindicate Justice Gorsuch’s observations, the New York Times published an op-ed by Dr. Tyler Harper, a black professor at Bates College, and a self-described supporter of affirmative action. Dr. Harper recounted his own experience as a tutor:

Nearly every college admissions tutoring job I took … would come with a version of the same behest. The Chinese and Korean kids wanted to know how to make their application materials seem less Chinese or Korean. The rich white kids wanted to know ways to seem less rich and less white. The Black kids wanted to make sure they came across as Black enough. Ditto for the Latino and Middle Eastern kids. Seemingly everyone I interacted with as a tutor — white or brown, rich or poor, student or parent — believed that getting into an elite college required what I came to call racial gamification. For these students, the college admissions process had been reduced to performance art, in which they were tasked with either minimizing or maximizing their identity in exchange for the reward of a proverbial thick envelope from their dream school.

The dissenting opinions by Justices Sotomayor and Jackson (joined by Justice Kagan) did not seriously challenge this evidence. (Justice Jackson recused herself from the Harvard case, but her dissent in the companion University of North Carolina case revealed her views on the issues before the Court.) For the most part, the dissenters focused on comparing the black and white experience, as if no other racial groups were involved. Justice Sotomayor did attempt to argue that “some Asian American applicants are actually ‘advantaged by Harvard’s use of race.’”  Citing the trial court’s opinion, she contended that Harvard admissions policy would “allow Asian American applicants ‘who would be less likely to be admitted without a compre­hensive understanding of their background’ to explain ‘the value of their unique background, heritage, and perspec­tive.’” She simply ignored the existence of the “cottage industry” designed to do the very opposite; namely, to help Asian American applicants conceal their “background, heritage, and perspective.”

As mentioned above, the decision does not mark the “end” of race-based affirmative action.  The majority opinion penned by Chief Justice Roberts makes clear that such programs may still survive a constitutional challenge if they are narrowly focused on measurable objectives, avoid using race in a negative manner, avoid stereotyping, and carry an endpoint. The majority opinion also permits the use of race in evaluating how it affected an individual applicant’s life, whether through discrimination or inspiration.

So the Supreme Court did not “end” racial preferences. It just moved the goal posts.

Racial preferences, even when allowed, have always been disfavored by the Court. In his concurring opinion in the 1978 Bakke case, Justice Blackmun expressed the hope that race-based measures would be “unnecessary” and a “relic of the past” within 10 years “at the most.” In her majority opinion in the 2003 Grutter decision, Justice O’Connor expressed the hope that “25 years from now, the use of racial preferences will no longer be necessary.”  

Throughout the history of race-based affirmative action litigation, the Supreme Court has subjected them to “strict scrutiny.”  Seen against this background of disfavoring such programs, this latest decision is not a fundamental change. It merely makes strict scrutiny stricter still.

Which is why the decision’s release marked a good time for Harvard to apologize.  An apology would not have represented a surrender. Harvard could have expressed regret without engaging in repudiation. An apology might have served to salve the mental wounds inflicted on untold thousands of young Asian Americans who have been shamed into distancing themselves from their heritage and identity.

And an apology would not have been unprecedented.

Last year, while the Harvard case was pending, Stanford officially apologized for its 1950s policies which discriminated against Jewish applicants. Its discrimination was comparable in purpose and practice to Harvard’s discrimination against Asian American applicants. In both cases, the institution feared that a certain minority’s presence on campus was becoming disproportionately large because of the group’s high academic performance. In both cases, the institution resorted to subterfuge to hide its discrimination.

In Harvard’s case, the subterfuge was the artificial lowering of a certain racial group’s Personal rating. Stanford could not play that game because it had a stated policy of disregarding its applicants’ race or religion. So it used a different ruse. It limited applicants from two Los Angeles high schools which just happened to have disproportionately Jewish student bodies.

The aims and results for Stanford and Harvard were much the same. The main difference is that Stanford has apologized.

President-elect Gay may have convinced herself that her statement was a brave act of defiance. But an apology to Asian Americans applicants would have required still more bravery, and would have been a nobler thing to do. Hers was no Invictus moment. The best that may be said of Harvard is that it stands biased but unbowed.