Affirmative-Action Jurisprudence: Court Greenlights Naked Discrimination Against Asians

Stephen Kershnar

Harvard Admissions: Asians are Dull

Dunkirk-Fredonia Observer

November 4, 2019

In a recent case, Students for Fair Admissions, Inc. v. Harvard University (2019), a federal court judge, Allison Burroughs, ruled that the Constitution and 1964 Civil Rights Act permit Harvard to discriminate against Asians.  

Burroughs followed Supreme Court precedent in holding that a policy of an institution that receives federal dollars and uses race or ethnicity as a factor must receive strict scrutiny. This means that the state has a compelling interest in the institution’s goal and its means is narrowly tailored to achieve that goal.

The judge found that the state had a compelling state interest in Harvard’s goals. She listed Harvard’s incoherent soup of goals. The soup includes preparing students to be leaders in a diverse society, exposing them to people from different races, backgrounds, and life experiences, teaching them to engage with people different from themselves, expanding the curriculum, and promoting the faculty’s research interests. On a side note, none of this has been shown to increase academic performance when compared to purely meritocratic admissions.   

Burroughs further found that the university admission’s system was narrowly tailored to accomplish these goals. In particular, she found that race was used as part of an individualized and holistic review of each applicant’s file. This was done to ensure that serious consideration was given to the many ways an applicant might contribute to a diverse educational environment. This apparently explains why black and Hispanic students at Harvard were admitted with SATs roughly 120 and 110 points lower than Asians and 60 points and 80 points lower than whites.

The discrimination against Asian occurred in part because Asian applicants were judged to be less attractive as people (lower personal ratings) than members of other races. This despite the fact that the people who interviewed them didn’t see them as having less attractive personalities and the fact that they were more likely to engage in extracurricular activities. Still, admissions officers who never met them viewed them as having less attractive personalities. Harvard further argued that without this considering race, there would be fewer black students and, so, they would feel alienated.  

What is interesting is not Harvard’s paper thin goals or the dubious Asians-are-less-attractive-people way in which they were discriminated against. Rather, it is the degree to which leftist ideology controls the way in which Harvard argued the case and the judge decided it.

Burroughs stated that it was “somewhat axiomatic” that racial diversity is an important aspect of education. She argued that “a heterogeneous student body promotes a more robust academic environment with greater depth and breadth of learning, encourages learning outside of the classroom, and creates a richer sense of community.” Side note: This suggests that it is not axiomatic.

None of this is supported by the academic literature, especially when compared to an admissions process that admits students purely on the basis of academic excellence. Nearly 8,000 applicants to Harvard had perfect GPAs, 3,400 had perfect math SATs, and 2,700 had perfect verbal SATs. There is no evidence that the student body would learn or accomplish less if it were chosen purely for academic excellence. On a side note, Burroughs and I attended the same law school a few years apart. It had almost none of the diversity she now thinks is axiomatic and we both received an excellent education.  

In addition, diversity is what you want it to be. Children of ICE officers, correctional officers, evangelical Christians, ex-felons, former drug addicts, loggers, Marines, and porn actresses would add diversity. There is no way in theory or practice to decide whether they add more or less diversity than do black and Hispanic students. The interest in demographic diversity conflicts with the interest in diversity of ideas and experiences. In a campus in which the students and faculty already skew far left, adding more blacks and Hispanics further skews it to the left and, thus, reduces diversity of ideas. Favoring minorities over ex-felons, Marines, and porn actresses lessens experiential diversity. 

Also interesting is the degree to which Harvard chooses students for reasons other than academic excellence. Roughly a third of its students are athletes, legacies, dean’s list applicants (often children of big donors), and children of faculty and staff. These groups are accepted at high rates. For whites, the acceptance rate is as follows: recruited athletes (88%), dean’s list (48%), and children of faculty and staff (43%). Some of this is unsurprising. For example, big-time donors benefit the whole campus.  

Further interesting is the fact that some of Harvard competitors don’t try to compete by doing something different. Second tier Ivy League and their elite cousins (Brown, Columbia, Cornell, Dartmouth, Duke, and Rice) compete against the first tier (Harvard, Princeton, Stanford, and Yale) for students, faculty, and alumni dollars. One way they might do so is by distinguishing themselves by doing something different. For example, they might focus solely on academic or research prowess and reject any anti-meritocratic factors (for example, athletics, diversity, and legacy). So deeply embedded is the left’s commitment to demographic diversity that none distinguishes itself by taking this obvious step.   

There is no right answer as to whether a school should favor academic prowess over excellence in polo, sailing, and squash. Universities have multiple goals. These include attracting the best students, being a top flight research center, increasing endowment, keeping the federal money spigot open, and promoting equal opportunity. Different admissions criteria will affect these goals differently. There is no right answer, other than the preference of a university’s owners, as to which of these goals a university should have and how to prioritize them.

Making things murkier is the fact that it is unclear who owns Ivy League schools. The trustees are elected, college officials are mere employees, and it doesn’t have private owners similar to those found in a partnership or a publicly traded corporation. In short, the issue of admissions defies a principled solution. Even in this context, though, Harvard’s anti-Asian discrimination is distasteful.