Race-conscious admissions apparently constitutional

In ruling that Harvard’s undergraduate admissions policy doesn’t violate federal civil rights law, the U.S. District Court upheld the need for racially diverse campuses (“Judge Rules Harvard’s Race-Conscious Admissions Policy Constitutional,” The Wall Street Journal, Oct. 2).  The court rejected the claim that Harvard held Asian applicants to a higher standard than those of other races.

I’m not a lawyer, but I think the entire controversy can be avoided by understanding the principle of the flat maximum.  The truth is that the qualifications of all those bunched at the very top of the curve can succeed in elite colleges and universities.  Trying to rank them is a fool’s errand.  Therefore, why not use a lottery among these sterling applicants to decide who will be admitted?

Critics will say that a lottery would not produce the desired racial mix.  Quite true.  But it would be totally unbiased and offer legal protection for schools that use it.  California Institute of Technology is unique in offering admission strictly on the basis of academic qualifications.  As a result, Asian enrollment has grown steadily from 25 percent to 43 percent over the past two decades.  To date, the school has not been sued.

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6 Replies to “Race-conscious admissions apparently constitutional”

  1. The Harvard case is not like the major SCt college affirmative-action-in-admissions cases.

    In the Harvard case, the plaintiffs alleged that Harvard admissions officials gave Asian applicants lower ratings on the “personality” factor than the Asian applicants deserved and that therefore Harvard was discriminating against Asian applicants in awarding “personality” factor ratings. Harvard conceded that Asian applicants received lower ratings on the “personality” factor than black, Hispanic and white applicants received but Harvard argued that it was not discriminating against the Asian applicants in awarding the ratings. In effect, Harvard argued that the Asian applicants deserved the lower ratings.

    The burden of proof was on the plaintiffs to show that the Asian applicants’ lower “personality” factor ratings were not deserved — and perhaps to also show that Harvard officials, in giving the Asian applicants these lower ratings, were motivated by a desire to discriminate against the Asian applicants.

    This boiled down to an evidentiary issue. And, the judge concluded that the plaintiffs had not introduced enough evidence to prove that Harvard’s lower “personality” factor ratings for the Asian applicants was incorrect.

    In the major SCt college affirmative-action-in-admissions cases, the colleges admitted that they favoired black/Hispanic applicants and that this favoritism was intentional. There was no evidentiary issue as to the college’s discrimination in favor of the minority applicants; the college admitted the discrimination. The issue in those cases was the legal issue of whether the admitted discrimination was unlawful. The college in each case argued that the college’s interest in achieving racial diversity justified the admitted discrimination. Sometimes the SCt agreed with the college, sometimes the SCt agreed with the plaintiff.

    The Harvard case would have been analogous to the major SCt cases if Harvard had admitted it intentionally discriminated against the Asian students and if the contested issue had been whether the admitted intentional discrimination was justified by Harvard’s interest in achieving racial diversity. But, that is not what happened in the Harvard case. Harvard argued that it had not intentionally discriminated against the Asian students + that the stats showing the lower “personality” factor ratings for the Asian students did not establish anti-Asian discrimination but perhaps were explained by non-discriminatory considerations — in effect, that the Asian students deserved the lower “personality” factor ratings.

    At bottom, the Harvard case is mostly a “disparate impact” case. The plaintiffs argue that Asians did worse on the personality factor than blacks, Hispanics and whites. The plaintiffs then argue that the judge can/should infer from this disparate impact that Harvard was intentionally/unlawfully discriminating against Asians. Harvard replies that something other than intentional/unlawful discrimination can/does explain the Asians’ lower personality factor ratings + that it’s reasonable/important for Harvard to use personality factor ratings in its admissions decisions.

    In my opinion, “disparate impact” analysis is rarely a valid basis for finding racial discrimination. Done properly, it shifts the burden to the alleged discriminator to show that the alleged discriminator had a rational non-discriminatory basis for using the standard or factor. Pretty much all the competitive colleges use something like a “personality” factor in making admissions decisions. Harvard would have met that burden.

    It’s possible — even probably — that the Harvard admissions officials sat around talking to themselves about how it would be bad for Harvard to have more than X% Asians in the freshman class. But, from what I can tell, the evidence neither shows such discussions nor shows that, if such discussions occurred, that Harvard acted to achieve the suggested quota. That distinguishes the current case from the Harvard admissions decisions back in the early 1900s when Harvard (as well as Yale and Princeton) officials worried that there were too many Jews being admitted and implemented Jewish quotas (as reported in great detail in a very long book, The Chosen).


  2. Labor Lawyer: Thanks for this excellent analysis. I still believe that the principle of the flat maximum is the solution. Let’s face it: Students who apply to Harvard and other elite schools are all extremely qualified. Trying to separate them out is a fool’s errand, regardless of what criteria are used. I say let’s use a lottery to determine who among these applicants are admitted. There’s no guarantee that doing so will produce the desired diversity, but it would shield schools from lawsuits.


    1. Not sure a lottery would shield colleges from lawsuits. The college would still have to decide which students were included in the “highly-qualified” pool for the lottery drawing. In this case, if Harvard had used the “personality” factor ratings in calculating applicants’ scores for inclusion/exclusion from the pool, Harvard would still have been vulnerable to the same legal challenge — that is, that the “personality” factor ratings were themselves discriminatory against Asians. Of course, colleges could use a straight “academic-records” or “academic-records + test scores” measure to decide inclusion/exclusion from the lottery pool. That would pretty much protect the colleges from discrimination lawsuits. But, it would also prevent the colleges from achieving significant numbers of black/Hispanic students. In other words, there is no lawsuit-proof way for colleges to achieve racial diversity.


  3. Labor Lawyer: If test scores and GPAs were used as the sole basis for the lottery, then colleges would be a safer ground. Of course, there would be no assurance that following this would provide the desired diversity. It’s interesting that CalTech is not troubled by engineering diversity. As a result, Asians constitute the largest portion of the student body. I wonder why other schools do not follow CalTech in this regard.


  4. That, of course, is the core question that college admissions officials (as well as college boards of trustees) have wrestled with for over a century. Should colleges seek to admit/educate the academically most qualified? Or, should colleges seek to admit/educate some other mix of applicants? It’s tempting to opt for the former approach — certainly, that’s what society does in many other contexts, such as selecting athletes for the high school varsity basketball team or selecting athletes for a pro football team. But, if we get away from sports (where it’s relatively easy to see who’s the “best” and where it’s relatively easy to see what “winning” means), the analysis gets much more complicated.

    At a minimum, most colleges have to consider the impact of admissions decisions on the college’s finances. Preferences for legacy applicants, prep school grads and rich applicants generally increase the odds of huge donations down the line + preferences for low-income applicants mean less tuition income. For major-sports colleges, preferences for football/basketball stars mean greater general publicity for the college (including more applicants) and more net income from the football/basketball programs.

    There’s also the issue of what weight, if any, a college should give to its role in training society future movers/shakers when the college makes its admissions decisions. It’s likely that many/most of those future movers/shakers will be people who had decent but not absolutely top-notch high school academic credentials. They will be the people who were the sports team captains, the student govt leaders, the yearbook/newspaper editors, the weirdos, the musicians, the actors/actresses, the young entrepreneurs, the writers, the computer nerds, the social butterflies, even the beautiful women.

    And, of course, there’s the ever-present issue of racial diversity as well as the similarly important issue of economic diversity — what, if any, obligation does a college owe to applicants whose racial and/or socio-economic backgrounds placed them at a disadvantage re academic performance in high school + what, if any, obligation does a college owe to those same applicants vis-a-vis combating the increasing economic/social inequality in US society?

    All tough questions.


  5. Labor Lawyer: I keep coming back to CalTech, which bases admissions strictly on academic credentials and not diversity. The school is largely Asian, which other schools would find unacceptable. Yet CalTech’s graduates go on to become leaders in their respective fields. My point is that diversity has become an obsession that I question is quite as important as most schools maintain.


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